SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to 240.14a-11(c) or 240.14a-12
<PAGE>
COMC, INC.
--------------
(Name of Registrant as Specified In Its Charter)
-------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed pursuant
to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee
is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
<PAGE>
[COMC, Inc. Letterhead]
October 24, 2000
Dear Shareholder:
You are cordially invited to attend our Annual Meeting of
Shareholders at 9:00 A.M. on Tuesday, November 28, 2000, at the executive
offices of COMC, Inc., located at 2840 Howe Road, Suite C, Martinez,
California, 94553-4000. At the Annual Meeting, we will review our 1999
performance and answer any questions you may have.
With this letter, we are including the notice for the Annual Meeting,
the proxy statement, the proxy card and the 1999 annual report. This year we
have made arrangements for you to vote in person or by the traditional proxy
card. See the proxy card for instructions on these methods of voting.
We have taken the opportunity to write the proxy statement in
jargon-free "plain English." We hope you find its simplified format helpful and
we welcome your comments.
There are a total of five proposals for you to consider and decide
upon.
First, you will be deciding who will serve as our directors until our
next Annual Meeting. The nominated directors, if elected, also will serve on the
board of our subsidiary, ICF Communication Solutions, Inc. Our Board and
management believe that the five nominees named in this proxy statement
should be elected to our Board. Our Board and management believe that the
election of these nominees is in our best interest and your best interests, as
our shareholders, and strongly recommend that you vote for their election.
Second, you will be deciding on a proposal to change our state of
incorporation from Illinois to Delaware. The description of this
"reincorporation" and questions and answers on the following pages provide
information on the proposal and what it means to you as a shareholder. Our Board
and management believe that reincorporating as a Delaware corporation is in our
best interest and your best interests, as our shareholders. They strongly
recommend approval of the proposal and urge each of you to vote in favor of the
proposal.
Third, you will be deciding whether to approve the adoption of the
COMC, Inc. 1999 Stock Option Plan, as amended. The COMC, Inc. 1999 Stock Option
Plan was approved by our Board in November of 1999 and was amended on October
10, 2000 to increase the number of options that could be issued thereunder. Our
Board and management strongly recommend approval of the COMC, Inc. 1999 Stock
Option Plan and urge each of you to vote for the proposal.
Fourth, you will be deciding whether to ratify the grant of stock
options to acquire a total of 286,000 shares of our common stock to certain of
our key employees under the COMC, Inc. 1999 Stock Option Plan. Our Board and
management strongly recommend ratification of the stock options granted to date
under the COMC, Inc. 1999 Stock Option Plan. They strongly recommend approval of
the proposal and urge each of you to vote for the proposal.
1
<PAGE>
Finally, you will be deciding whether to ratify the appointment of
BDO Seidman, LLP as our independent public accountants for the fiscal year ended
December 31, 1999. Our Board appointed BDO Seidman, LLP as our independent
public accountants on March 28, 2000. Our Board and management strongly
recommend ratification of BDO Seidman, LLP as our independent public accountants
for the fiscal year ended December 31, 1999. They strongly recommend approval of
the proposal and urge each of you to vote for the proposal.
I look forward to seeing you on November 28th, 2000. However,
regardless of whether you plan to attend, please return your completed proxy in
the envelope provided as soon as possible. Your vote is important.
Sincerely,
/s/
---------------------
John J. Ackerman
Chairman of the Board
2
<PAGE>
COMC, INC.
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON NOVEMBER 28, 2000
TO OUR STOCKHOLDERS:
You are cordially invited to attend the Annual Meeting of
Stockholders of COMC, Inc., an Illinois corporation ("we" or "us" or the
"Company"). Our annual meeting will be held on November 28, 2000, at 9:00 a.m.,
Pacific Time, at our offices located at 2840 Howe Road, Suite C, Martinez,
California, 94553-4000. Our phone number is (925) 335-4060, in case you have any
questions.
The matters we expect to act upon at our annual meeting include the
following proposals:
1. Election of a Board of Directors to serve until our next
Annual Meeting of Stockholders, or until their successors
are elected and qualified (Proposal 1);
2. Approval of a proposal to change our state of
incorporation from Illinois to Delaware (Proposal 2);
3. Approval of the COMC, Inc. 1999 Stock Option Plan, as
amended (Proposal 3);
4. Ratification of the grant of stock options to acquire a
total of 286,000 shares of our common stock to certain of
our key employees under the COMC, Inc. 1999 Stock Option
Plan (Proposal 4);
5. Ratification of the appointment of BDO Seidman, LLP as our
independent public accountants for the fiscal year ending
December 31, 1999 (Proposal 5); and,
6. The transaction of such other business as may properly
come before the Annual Meeting and any adjournment(s)
thereof.
These items of business are more fully described in the Proxy
Statement accompanying this notice. You should read this document carefully.
Our Board of Directors has fixed the close of business on October 20,
2000, as the record date (the "Record Date") for the determination of
stockholders entitled to receive notice of and vote at our Annual Meeting and
any adjournment thereof. All stockholders of record as of the Record Date are
cordially invited to attend our Annual Meeting. However, to assure your
representation at our Annual Meeting, and whether or not you plan to attend, you
are urged to mark, sign, date, and return the enclosed proxy card as promptly as
possible in the postage-prepaid envelope enclosed for that purpose. Your shares
1
<PAGE>
will then be voted in accordance with your instructions. Any stockholder
attending the Annual Meeting may vote in person even if such stockholder has
returned a proxy.
BY THE ORDER OF THE BOARD OF DIRECTORS
/s/
---------------------------------
William M. Burns, Secretary
Martinez, California
October 24, 2000
--------------------------------------------------------------------------------
YOUR VOTE IS IMPORTANT
IN ORDER TO ASSURE YOUR REPRESENTATION AT THE ANNUAL MEETING, YOU ARE REQUESTED
TO COMPLETE, SIGN, AND DATE THE ENCLOSED PROXY CARD AS PROMPTLY AS POSSIBLE AND
RETURN IT IN THE ENCLOSED ENVELOPE, REGARDLESS OF WHETHER YOU PLAN TO ATTEND THE
ANNUAL MEETING.
--------------------------------------------------------------------------------
2
<PAGE>
COMC, INC.
PROXY STATEMENT
TABLE OF CONTENTS
Proxy Statement for the 2000 Annual Meeting of Stockholders
Information Concerning Solicitation and Voting ......................... 1
Proposal No. 1 - Election of Directors ................................. 8
Proposal No. 2 - Approval of Reincorporation ........................... 12
Proposal No. 3 - Approval of COMC, Inc. 1999 Stock Option Plan ......... 24
Proposal No. 4 - Ratification of Grant of Stock Options ................ 29
Proposal No. 5 - Ratification of Appointment of Accountants ............ 30
Attachments
Attachment A: Agreement and Plan of Merger ............................. A-1
Attachment B: Certificate of Incorporation of COMC, Inc.,
a Delaware corporation ................................... B-1
Attachment C: Bylaws of COMC, Inc., a Delaware corporation ............. C-1
Attachment D: Election to Dissent ...................................... D-1
Attachment E: Sections 11.65 and 11.70 of the Illinois
Business Corporation Act ................................. E-1
Attachment F: COMC, Inc. 1999 Stock Option Plan ........................ F-1
Attachment G: First Amendment to the COMC, Inc.
1999 Stock Option Plan ................................... G-1
<PAGE>
COMC, INC.
2840 HOWE ROAD, SUITE D
MARTINEZ, CALIFORNIA 94553-4000
PROXY STATEMENT
INFORMATION CONCERNING SOLICITATION AND VOTING
GENERAL INFORMATION: DATE, TIME AND PLACE
This proxy statement (this "Proxy" or "Proxy Statement") is solicited
on behalf of the Board of Directors (the "Board of Directors" or "Board" or
"Directors") of COMC, Inc. ("we" or "us" or the "Company") for use at the annual
meeting ("Annual Meeting") of our stockholders ("Stockholders"). The Annual
Meeting will be held at our offices located at 2840 Howe Road, Suite C,
Martinez, California, 94553-4000, telephone no. (925) 335-4060, on November 28,
2000, at 9:00 a.m. Pacific Time, and at any adjournment(s) thereof, for the
purposes set forth herein and in the accompanying Notice of Annual Meeting of
Stockholders. These proxy solicitation materials were mailed on or about October
20, 2000, to all holders of our common stock ("Common Stock") entitled to vote
at our Annual Meeting. A copy of our annual report on Form 10-KSB for the year
ended December 31, 1999 is enclosed with this Proxy Statement for your review.
QUESTIONS & ANSWERS REGARDING OUR ANNUAL MEETING
Who may attend our Annual Meeting?
All of our Stockholders may attend.
Who is entitled to vote?
Stockholders of record at the close of business on October 20, 2000
(the "Record Date"), or those with a valid proxy from a brokerage firm or
another similar organization which held shares of our Common Stock on the Record
Date.
How many Stockholders are there and how many shares of Common Stock are
outstanding?
At the Record Date, there were approximately 2,991 Stockholders of
record and 17,392,754 shares of our Common Stock outstanding and entitled to
vote at the Annual Meeting.
1
<PAGE>
What am I voting on?
There are a total of five separate proposals ("Proposals") for
consideration at our Annual Meeting. In brief, the Proposals for consideration
are:
o The election of five Directors to serve until our 2001 Annual
Meeting (Proposal 1);
o Changing our state of incorporation ("Reincorporation") from
Illinois to Delaware (Proposal 2);
o Approval of the COMC, Inc. 1999 Stock Option Plan (the "1999
Option Plan"), as amended (Proposal 3);
o Ratification of our Board's decision to grant stock options to
acquire a total of 286,000 shares of our Common Stock to
certain of our key employees under the 1999 Option Plan
(Proposal 4); and
o Ratification of our Board's selection of BDO Seidman, LLP as
our independent auditors for 1999 (Proposal 5).
Individuals elected to serve on our Board will also serve as directors
of ICF Communication Solutions, Inc. ("ICF"), our wholly owned subsidiary.
What percentage vote by the Stockholders is required for the approval of each of
the Proposals listed above?
As for Proposal 1, our bylaws, as amended ("Bylaws"), provide that
Directors shall be elected by the vote of Stockholders owning at least a
majority of our outstanding shares (i.e., at least 8,696,378 shares of our
Common Stock). Each nominee receiving a vote by Stockholders owning at least a
majority of our outstanding shares of Common Stock will be elected to our Board.
As for Proposal 2, Illinois law provides that Stockholders owning at
least two thirds of our outstanding shares (i.e., at least 11,479,218 shares of
our Common Stock outstanding) must vote in favor of changing our state of
incorporation from Illinois to Delaware in order for this proposal to be
approved.
Proposals 3, 4 and 5 can be approved by the affirmative vote of the
majority of the votes of Stockholders represented at the Annual Meeting and
entitled to vote on a matter so long as a quorum exists.
What constitutes a quorum?
A majority of the outstanding shares of our Common Stock (i.e., at
least 8,696,378 shares), present at the Annual Meeting or represented by persons
holding valid shareholder proxies, constitutes a quorum for the Annual Meeting.
If you submit a valid Proxy Card, you will be counted for purposes of
determining whether a quorum exists. Abstentions will be also counted for
purposes of determining whether or not a quorum exists. If you do not attend our
Annual Meeting or fail to return a valid Proxy Card, you will not be counted for
purposes of determining whether a quorum exists.
Without a quorum, no business may be transacted at the Annual Meeting.
However, whether or not a quorum exists, a majority of the voting power of those
present at the Annual Meeting may adjourn the Annual Meeting to another date,
time and place.
2
<PAGE>
How many votes do I get?
Each share of our Common Stock is entitled to one vote for each
Proposal. With respect to the election of Directors, each share of our Common
Stock is entitled to one vote for each nominee.
Can votes be cumulated?
Our Bylaws and Articles of Incorporation, as amended (the "Illinois
Articles"), do not permit Stockholders or persons holding a valid Proxy to
cumulate their votes for the election of our Directors.
How do I vote?
The simplest way to vote is to sign and date each proxy card ("Proxy"
or "Proxy Card") you receive and return it in the postage-prepaid envelope
enclosed herewith. The shares represented by a signed and dated Proxy will be
voted in accordance with the directions given by the Stockholder on the Proxy.
If you return a signed and dated Proxy without marking any selections, your
Proxy Card will be voted in favor of each of the Proposals. You may revoke your
Proxy any time before the Annual Meeting by following the procedures set forth
on page 6 below.
What happens if I abstain or do not vote at all?
You may abstain from voting on one or more of the Proposals either in
person at the Annual Meeting or by placing an "X" where indicated on the Proxy
Card next to the word "Withheld" and/or "Abstain." Abstaining from voting on any
one or more of the Proposals by you (or the person holding your proxy) will have
the same effect as voting against such Proposal(s).
If you do not vote in person at the Annual Meeting or return a signed
Proxy Card, it will be treated as a non-vote. Non-votes will have the same
effect as a vote against Proposals 1 and 2 since each of these Proposals require
a certain percentage vote for approval (i.e., at least 51% in favor of each
Director nominee and at least 66 2/3% in favor of Reincorporation). With respect
to Proposals 3, 4 and 5, a non-vote will not have any effect so long as a quorum
is present. As indicated above, Proposals 3, 4 and 5 may be approved by the
affirmative vote of the majority of the votes of Stockholders represented at the
Annual Meeting and entitled to vote on a matter so long as a quorum exists.
What happens if my shares are held under the name of a brokerage firm?
If you hold your shares in "street name" at a brokerage firm and do not
instruct the brokerage firm on how to vote, the brokerage firm may not vote for
you in certain circumstances. This is known as a "broker non-vote." Broker
non-votes will be counted for quorum purposes. However, broker non-votes will
have no effect on the election of Directors or any other Proposal.
Who will count the vote?
Representatives of American Stock Transfer, our transfer agent, will
serve as the inspector of elections and count the votes.
3
<PAGE>
What does it mean if I get more than one Proxy Card?
It may indicate that your shares are registered under more than one
name. Please sign and return all Proxy Cards to ensure that all your votes are
counted.
What percentage of stock do the Directors and officers own?
Together, they own, 44.16% of our Common Stock as of the Record Date.
See Pages 7 for more details.
Which Stockholders own and/or control the largest number of shares of our Common
Stock?
On October 20, 2000, the Stockholders owning and/or controlling the
largest number of shares of our Common Stock were:
o John J. Ackerman (3,333,052 shares of Common Stock, which
includes 500,000 shares that Mr. Ackerman has the power to
vote pursuant to irrevocable proxies granted to Mr. Ackerman,
representing 19.16% of our Common Stock);
o William M. Burns (3,246,753 shares of Common Stock,
representing 18.6% of our Common Stock);
o Charles E. Lincoln (3,246,753 shares of Common Stock,
representing 18.6% of our Common Stock);
o Marvin P. Loeb (1,544,298 shares of Common Stock, representing
8.9% of our Common Stock);
o Albert P. Vasquez (770,000 shares of our Common Stock,
representing 4% of our Common Stock)
o Ernie Mauretson (500,000 shares of our Common Stock,
representing 2.9% of our Common Stock)
o Christopher R. Smith (200,000 shares of Common Stock owned
beneficially plus 901,961 shares of Common Stock which Mr.
Smith has the power to vote pursuant to irrevocable proxies
granted to Mr. Smith, representing 6.3% of our Common Stock)
See Page 7 for more details.
Who are the Board nominees?
The nominees are John J. Ackerman, Paul M. Bakker, William M. Burns,
Patrick J. Guarino, and Christopher R. Smith. Messrs. Ackerman, Burns and Smith
are current Board members. See page 8 for biographical information.
What is the significance of the proposal to reincorporate in Delaware?
We have provided a detailed section of Questions and Answers and
additional information about our reincorporation in Delaware, beginning at Page
12, below, under the heading "Proposal 2 - Reincorporation in Delaware."
4
<PAGE>
RECORD DATE AND SHARE OWNERSHIP
Stockholders of record at the close of business on October 20, 2000,
the Record Date fixed by our Board, are entitled to notice of and to vote at the
Annual Meeting and at any adjournment(s) thereof. Only holders of record of
outstanding shares of our Common Stock on the Record Date are entitled to notice
of, and to vote at the Annual Meeting or any adjournments thereof. As of the
close of business on the Record Date, there were approximately 17,392,754 shares
of our Common Stock, held by approximately 2,991 holders of record. Our Common
Stock is the only class of stock outstanding and entitled to vote. Each share of
our Common Stock is entitled to one vote on each matter submitted for a vote at
our Annual Meeting.
QUORUM; ABSTENTIONS
Stockholders holding a majority of the shares of our Common Stock
issued and outstanding and entitled to vote on the Record Date, present in
person or represented by proxy, constitute a quorum at meetings of our
Stockholders. Shares that are voted "FOR," "AGAINST," or "WITHHELD" on a matter
are treated as being present at the meeting for purposes of establishing a
quorum and are also treated as "entitled to vote on the subject matter" (the
"Votes Cast") at the Annual Meeting with respect to such matter. If a quorum is
present, the affirmative vote of the majority of the votes of the shares
represented at the meeting and entitled to vote on a matter shall be the act of
the Stockholders, unless a greater number of votes or voting by classes is
required by the Illinois Business Corporation Act (the "Act") or the Illinois
Articles or Bylaws.
While there is no definitive statutory or case law authority in
Illinois as to the proper treatment of abstentions, we believe that abstentions
should be counted for purposes of determining the presence or absence of a
quorum for the transaction of business and the total number of Votes Cast with
respect to a particular matter. In the absence of controlling precedent to the
contrary, we intend to treat abstentions in this manner. Accordingly,
abstentions will have the same effect as a vote against the Proposal.
If you return a signed and dated Proxy without marking any
selections, your Proxy Card will be voted in favor of each of the Proposals.
If you do not return a signed and dated Proxy and do not attend the
Annual Meeting in person, it will be treated as a non-vote. Non-votes will have
the same effect as a vote against Proposals 1 and 2. With respect to Proposals
3, 4 and 5, a non-vote will not have any effect so long as a quorum is present.
VOTING
On all matters, each share of Common Stock has one vote. Directors are
elected by a majority vote of our Common Stock, in person or represented by
Proxy. The approval of Proposal 2, the Reincorporation of the Company in
Delaware, will require a two-thirds majority vote of our Common Stock. The
approval and adoption of Proposals 3, 4 and 5 will require the affirmative vote
of a majority of our Stockholders present or represented by Proxy at the Annual
Meeting so long as a quorum is present. Stockholders do not have a right to
cumulate their votes.
5
<PAGE>
If a broker or nominee holding our stock in "street name" indicates on
a proxy that it does not have discretionary authority to vote as to a particular
matter, or does not instruct us on how to vote, which we refer to as a broker
non-vote, those shares will be treated as present and entitled to vote at our
Annual Meeting for the purpose of determining whether a quorum exists. However,
broker non-votes will have no effect on the election of directors or any other
Proposal.
A number of our Stockholders, including each of our present Directors
and/or their trusts or persons affiliated with them, have entered into a voting
agreement under which they have agreed to vote all of the shares of Common Stock
owned by them, constituting, in the aggregate, 62.82% of our outstanding Common
Stock, in favor of the election of the directors nominated for office. See
"Security Ownership of Certain Beneficial Owners and Management," below.
SOLICITATION OF PROXIES
This document is being furnished to our Stockholders in connection with
the solicitation of proxies by and on behalf of our Board for use at our Annual
Meeting, and is accompanied by a form of Proxy.
We will bear the entire cost of this solicitation, including the cost
of preparing and mailing this document to our Stockholders. Proxies may also be
solicited by certain of our directors, officers and regular employees, without
additional compensation, personally or by telephone, letter, or electronic mail.
REVOCABILITY OF PROXIES
A Stockholder may revoke any Proxy the Stockholder gives pursuant to
this solicitation at any time before it is voted. Stockholders may revoke
Proxies as follows:
1. Filing with our Secretary, at or before the taking of the vote
at our Annual Meeting of Stockholders, a written notice of
revocation bearing a later date than the Proxy;
2. Duly executing a later-dated Proxy relating to the same shares
and delivering it to our Secretary before the taking of the
vote at our Annual Meeting of Stockholders; or
3. Attending our Annual Meeting and voting in person (although
attendance at our Annual Meeting will not in and of itself
constitute a revocation of a Proxy).
Any written notice of revocation or subsequent Proxy should be sent to
American Stock Transfer and Trust, 59 Maiden Lane, New York, NY 10038, or hand
delivered to our Secretary at or before the taking of the vote at our Annual
Meeting.
All shares of our Common Stock that are entitled to vote and are
represented at our Annual Meeting by properly executed Proxies received prior to
or at such meeting, and not revoked, will be voted at such meeting in accordance
with the instructions indicated on such Proxies. If no instructions are
indicated, other than in the case of broker non-votes, the Proxies will be voted
FOR approval of each of the Proposals.
6
<PAGE>
If any other matters are properly presented at our Annual Meeting for
consideration, including, among other things, consideration of a motion to
adjourn the meeting to another time and/or place, including, without limitation,
for the purpose of soliciting additional Proxies, the persons named in the
enclosed forms of Proxy and acting thereunder will have discretion to vote on
these matters in accordance with their best judgment.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth as of the Record Date certain
information with respect to the beneficial ownership of our voting securities by
(i) any person (including any "group" as that term is used in Section 13(d)(3)
of the Securities Exchange Act of 1934) known by us to be the beneficial owner
of more than 5% of any class of our voting securities, (ii) each Director and
each nominee for Director, (iii) each of the named executive officers identified
in the Summary Compensation Table appearing herein, and (iv) all of our
Directors and executive officers as a group.
Shares Owned Beneficially
and of Record
-------------
No. of % of
Name Class Shares Owned Total
---- ----- ------------ -------
John Ackerman(1) Common Stock 3,333,052 19.16%
William Burns (2) Common Stock 3,246,753 18.66%
Charles Lincoln (3) Common Stock 3,246,753 18.66%
Marvin P. Loeb (4) Common Stock 1,544,298 8.88%
Christopher R. Smith (5) Common Stock 1,101,961 6.34%
Albert P. Vasquez Common Stock 770,000 4.00%
Ernie Mauretson Common Stock 500,000 2.90%
All Five Percent Holders, Common Stock 13,742,817 78.61%
Officers and Directors as a
Group (5 persons)
7
<PAGE>
(1) Includes 500,000 shares that Mr. Ackerman has the power to vote
pursuant to irrevocable proxies granted to Mr. Ackerman from two
individuals to whom a portion of Mr. Ackerman's stock was recently
transferred in a private transaction.
(2) Includes 3,246,753 shares of Common Stock held by a trust of which
Mr. Burns is a trustee and beneficiary, and does not include 376,623
shares of which Mr. Burns has the right to purchase upon exercise of
options that are currently exercisable.
(3) Includes 3,246,753 shares of Common Stock held by a trust of which
Mr. Lincoln is a trustee and beneficiary, and does not include
376,623 shares of which Mr. Lincoln has the right to purchase upon
exercise of options that are currently exercisable.
(4) Includes 56,127 shares of Common Stock held by the Marvin P. Loeb
Irrevocable Living Trust, of which Mr. Loeb is the sole trustee, and
by Mr. Loeb as nominee for his children. Mr. Loeb disclaims
beneficial ownership in such shares.
(5) Includes 200,000 shares of Common Stock that Mr. Smith owns of
record, 901,861 shares which Mr. Smith has the power to vote pursuant
to irrevocable proxies granted to Mr. Smith by certain accredited
investors, and does not include shares Mr. Smith has a right to
purchase upon exercise of options that are currently exercisable.
PROPOSAL ONE
ELECTION OF DIRECTORS
(Item 1 on Proxy Card)
Our Bylaws currently provide that our Board shall be composed of seven
Directors. There are currently three vacancies on our Board, and following the
Annual Meeting there is expected to be two vacancies on our Board.
DIRECTORS
Five directors, constituting the entire Board, are to be elected at
the Annual Meeting to serve until their successors have been duly elected and
qualified. Three of the nominees are presently on our Board.
NOMINEES
The names and ages of the nominees, their principal occupations
during the past five years and certain of their other affiliations are given
immediately below.
John Ackerman, age 42, is the founder of COMC, Inc. and has been our
Chairman and a member of our Board since November 1996, and served as our Chief
Executive Officer from November 1996 until October 1999. Mr. Ackerman is
responsible for identifying acquisition targets, establishing negotiations and
managing integration, as well as developing our valuable supplier relationships.
Mr. Ackerman founded and was the President and Chief Executive Officer of
8
<PAGE>
Complete Communications, Inc., a California corporation ("CCI") and the
predecessor of COMC, Inc. Prior to founding CCI, Mr. Ackerman held a senior
position at London-based Justwise Limited, overseeing that firm's European sales
and operations.
Paul M. Bakker, age 41, co-founded Cheslock, Bakker & Associates,
Inc. ("CBA") and manages CBA's mortgage lending and CMBS issuance units. Mr.
Bakker created CBA's core risk control systems as well as more than 500
proprietary transaction structuring and valuation models employed in CBA's
disciplined investment service. Mr. Bakker has more than 15 years experience in
both real estate and corporate finance. Prior to co-founding CBA, Mr. Bakker was
a consultant at USGI Capital Markets, a Vice President at CS First Boston, and a
Director of Kouri Capital, a European-based leverage buy-out and mergers and
acquisitions firm. Mr. Bakker has been a member of the American Economic
Association since 1980, and from 1991 to 1993, he served on the Board of
Directors of Bond Technologies. A 1980 graduate of Whitman College, Mr. Bakker
completed course work for a Ph.D. in Economics at New York University. Mr.
Bakker was both a Research Assistant and a Research Fellow at NYU and taught
Economics at NYU and Yeshiva University in 1982 and 1983.
William M. Burns, age 42, is our Chief Operations Officer, Secretary
and one of our Directors. Mr. Burns became one of our Directors in 1997. Mr.
Burns was also a co-founder of and is now the President and CEO of our wholly
owned subsidiary ICF. Mr. Burns has over eighteen years of experience in the
communications industry, starting ICF's predecessor in 1988. Prior to that, Mr.
Burns held technical and management positions at the PacTel-PacBell Company.
Prior to that he was employed at John Jackson Enterprises in Sacramento from
1978 through 1986. Mr. Burns attended four years of college at Rockland,
California.
Patrick J. Guarino, age 58, is a partner at Gramercy Equity LLP
("Gramercy"), a boutique venture capital group located in New York, N.Y. Prior
to joining Gramercy he was Executive Vice President and general counsel of
Ultramar Diamond Shamrock Corporation ("UDSC"), a Fortune 200 independent
petroleum refining and marketing company listed on the New York Stock Exchange.
UDSC was the result of a merger between Ultramar Corporation and Diamond
Shamrock, Inc., in 1996. Prior to this merger, Mr. Guarino was the Senior Vice
President, General Counsel and Chief Administrative Officer of Ultramar
Corporation. Prior to becoming Senior Vice President, he was primarily involved
in mergers and acquisitions and held executive positions and served on the
boards of Ultramar's operating subsidiaries in the US, Europe and Asia. Prior
to joining Ultramar in 1974, Mr. Guarino was in private practice with a
9
<PAGE>
New York City law firm. In addition, Mr. Guarino holds a BA degree from the City
University of New York, and JD degree from Brooklyn Law School, Mr. Guarino
completed an international business management program at Oxford University in
England.
Christopher R. Smith, age 36, is our Chief Executive Officer, interim
President, Chief Financial Officer and one of our Directors. Mr. Smith is
responsible for our day to day management, acquisitions, strategic planning and
financial reporting. Mr. Smith became one of our Directors in November of 1999.
Prior to joining us in 1999, Mr. Smith spent over seven years as a Managing
Director with Wafra Partners, L.P., a New York-based private equity investment
fund. Prior to joining Wafra, Mr. Smith was a Vice President with Kouri Capital,
Inc., a private merchant bank group. Mr. Smith also held senior positions with
Lambert Brussels Capital Corp. (an affiliate of Drexel Burnham Lambert) and
First Union Corporation. Mr. Smith earned his degree in finance and accounting
from Florida State University in 1985.
The nominees have previously consented to be named as nominees in
this Proxy Statement and to serve or continue to serve, as the case may be, as
Directors if elected. Should the nominees become unable or unwilling to accept
nomination or election, or should additional persons be nominated at the Annual
Meeting, the persons named in the Proxy will vote for the election of the
nominees hereafter designated by the Board (or if new nominees have been
designated by the Board, in such a manner as to elect such new nominees) to fill
the vacancy. We are not aware of any reason that any nominee will be unable or
will decline to serve as a Director.
Stockholders may withhold authority to vote for any nominee by
entering the name of such nominee in the space provided for such purpose on the
Proxy Card.
BOARD MEETINGS AND COMMITTEES
Board Meetings
During 1999, our Board acted by written consent 2 times and held
two meetings via teleconference. Our Board of Directors has acted by written
consent three times thus far this year and has held three meetings this year
to date.
Board Committees
Our entire Board has acted as our nominating committee to date.
We are in the process of selecting members for other standing committees
previously established by our Board. Specifically, we are in the process of
selecting members for our Audit Committee, our Compensation Committee, and our
Option Committee. The individuals who previously served on each of these
committees resigned in 1999.
Our Audit Committee will:
- Make recommendations to our Board regarding the selection of
independent public accountants;
10
<PAGE>
- Review/approve the services performed by such independent public
accountants; and
- Review and evaluate our financial statements, accounting
principles and practices, and our system of internal accounting
controls.
Our Compensation Committee will:
- Review and recommend to our Board the compensation and benefits
of all of our officers, directors and consultants; and
- Review and recommend general policy relating to compensation and
benefits.
Our Option Committee will:
- Evaluate and recommend to our Board the granting of stock options
to employees, including officers, and other eligible persons; and
- Administer the 1999 Option Plan.
Director Compensation
Our Directors are not entitled to receive any cash compensation for
serving on the Board but are entitled to participate under the 1999 Option Plan
and be reimbursed for reasonable expenses incurred in the performance of their
duties. To date, our Directors have not been granted any options under the 1999
Option Plan.
RESIGNATIONS
On February 3, 1999, Albert P. Vasquez tendered his resignation as a
member of our Board of Directors, which became effective February 18, 1999. On
May 10, 1999, Richard F. Horowitz resigned as a member of our Board of
Directors. The letters of resignation submitted by Mr. Vasquez and Mr. Horowitz
did not state any reason for their resignations. On July 1, 1999, Marvin P. Loeb
resigned as a member of our Board of Directors. Mr. Loeb's letter of resignation
stated that his resignation was due to the demands of Mr. Loeb's other business
concerns. On May 11, 2000, Mr. Lincoln tendered his resignation as a member of
our Board of Directors, to be effective immediately. Mr. Lincoln's letter of
resignation did not state any reason for his resignation.
REQUIRED VOTE
The nominated Directors will be elected by a majority vote of the
shares of our Common Stock present or represented and entitled to vote on this
matter at our Annual Meeting. On the matter of the election of Directors, each
share of Common Stock has one vote. Cumulative voting in the election of
Directors is not authorized by the Illinois Articles or Bylaws. On all matters,
each share of Common Stock has one vote.
11
<PAGE>
Several of our Stockholders, including each of our current Directors
and/or their trusts or persons affiliated with them, have entered into a voting
agreement under which they have agreed to vote all of the shares of Common Stock
owned by them, constituting, in the aggregate 62.3% of our outstanding Common
Stock, in favor of the election of the Directors nominated for office.
Specifically, all 14,058,700 shares of Common Stock beneficially owned or
controlled by Messrs. Ackerman, Burns, Smith and Lincoln are subject to a
Stockholders Agreements by and between Messrs. Ackerman, Burns, Lincoln, Smith
and the Company, which provides for, among other things:
(A) the ability of Messrs. Burns (3,246,753 shares,3,623,376 shares
on a fully diluted basis), Lincoln (3,246,753 shares,3,623,376 shares on a fully
diluted basis,) Ackerman (2,833,252 shares and 500,000 shares via irrevocable
proxy) and Smith (200,000 shares, 2,663,896 shares on a fully diluted basis, and
815,000 shares via irrevocable proxy) to nominate one member of our Board each
at our annual meetings and the four of them together to nominate a fifth member
of our Board, and
(B) an agreement to vote for the election of those five nominated
directors.
Since the holders of more than 50% of the shares of our Common Stock
can elect 100% of the nominees for our Board if they choose to do so, these
Stockholders have the ability to elect all of the proposed nominees to our
Board.
See "Quorum; Abstentions," "Voting" and "Security Ownership of
Certain Beneficial Owners and Management."
THE BOARD RECOMMENDS A VOTE "FOR" THE ELECTION OF EACH OF THE NOMINATED
DIRECTORS.
PROPOSAL TWO
REINCORPORATION IN DELAWARE
(Item 2 on Proxy Card)
GENERAL
Our Board has recommended that we reincorporate ("Reincorporate") in
Delaware. To accomplish Reincorporation, our Board has recommended the adoption
of the Agreement and Plan of Merger ("Merger Agreement") attached to this Proxy
Statement as Attachment A, pursuant to which we will merge (the "Merger") into
COMC, Inc., a Delaware corporation (the "Delaware Company"). We created the
Delaware Company with an identical name as ours specifically for the purpose of
completing the Reincorporation. The Delaware Company has not and will not have
any activities unless and until the Merger is completed. Once the Merger is
completed, our operations and business will be identical to our operations and
business prior to the Merger.
Under the terms of the Merger Agreement, each outstanding share of
our Common Stock will be converted into one share of the Delaware Company's
common stock, $.01 par value per share. The Illinois Articles and our Bylaws are
substantially similar to the Certificate Incorporation (the "Certificate of
Incorporation") and proposed Bylaws (the "Delaware Bylaws") of the Delaware
Company. Copies of the Certificate of Incorporation are attached hereto as
Attachment B. Copies of the Delaware Bylaws are attached hereto as Attachment C.
12
<PAGE>
The sole purpose of the Reincorporation is to change our place of
incorporation from Illinois to Delaware, thereby enabling us to enjoy the
benefits of certain provisions of Delaware law that our Board believes would be
more beneficial to us than the comparable provisions of Illinois law. The
Proposed Reincorporation will NOT result in any change in the name, business,
management, fiscal year, assets or liabilities or location of the facilities of
the Company. Our officers and Directors on the Effective Date of the Merger will
hold the same offices with the Delaware Company. Upon the effective date of the
Merger, the Delaware Company will be the continuing corporation and will own all
of our assets and will be responsible for all of our liabilities. The Delaware
Company will continue our existing business under the name COMC, Inc. We do not
believe that we will suffer any disruption of our operations as a result of
reincorporating in Delaware.
The rights of our Stockholders, who upon consummation of the Merger
will become stockholders of the Delaware Company, will upon completion of the
Reincorporation be governed by the laws of the State of Delaware and by the
terms and provisions of the Certificate of Incorporation and the Delaware
Bylaws.
Our Stockholders have the right to dissent from the Merger and to
demand and receive appraisal rights for their shares of Common Stock in the
Company by complying with the requirements of Sections 11-65 and 11-70 of the
Illinois Business Corporations Act ("BCA"). See "Right to Dissent and Appraisal
Rights of Shareholders Objecting to the Proposed Merger," below. OUR BOARD
BELIEVES THAT THE REINCORPORATION IS IN THE BEST INTEREST OF OUR STOCKHOLDERS
AND HAS DETERMINED THAT IT MAY ABANDON THE MERGER IF WE RECEIVE ELECTIONS TO
DISSENT FROM STOCKHOLDERS HOLDING MORE THAN 1% OF OUR OUTSTANDING SHARES. SEE
"TERMINATION" BELOW.
The discussion contained in this Proxy Statement is qualified in its
entirety by reference to the Agreement and Plan of Merger, a copy of which is
attached hereto as Attachment A, and to the Certificate of Incorporation and the
Delaware Bylaws, copies of which are attached hereto as Attachments B and C,
respectively.
QUESTIONS AND ANSWERS ABOUT THE REINCORPORATION PROPOSAL
Who is making the Reincorporation Proposal?
Our Board has approved Reincorporation as a Delaware corporation and
has made this proposal to seek your approval.
What is a reincorporation?
Reincorporation is a process by which a corporation becomes subject
to new articles of incorporation filed in a different state. Doing so causes a
corporation to become subject to the new state's laws on corporate governance
and related matters and to the provisions of new articles of incorporation.
Delaware law uses the term "certificate of incorporation" rather than "articles
of incorporation," and the term "stockholder" rather than "shareholder."
13
<PAGE>
How will Reincorporation be accomplished?
To accomplish the Reincorporation, we have incorporated the Delaware
Company under Delaware law. Upon receiving the necessary Stockholder approval,
we will merge with the Delaware Company, which will be the surviving
corporation.
As indicated above, the Certificate of Incorporation and Delaware
Bylaws are attached to this Proxy Statement as Attachment B and Attachment C.
The proposed Agreement and Plan of Merger is attached to this Proxy Statement as
Attachment A. Please read each of these documents in full rather than relying on
any summary or description of their terms.
Will Reincorporation change our business?
The Delaware Company will carry on our business as before, with all
of the same Directors, officers, employees and properties.
Will Reincorporation have any tax or accounting effect?
No. The Delaware Company will inherit our tax and financial history
and attributes. You will not recognize any gain or loss on your shares of Common
Stock.
Will Reincorporation affect my stock in the Company?
Each share of our Common Stock will be exchanged for one share of the
Delaware Company's common stock. However, you need not exchange your
certificate(s) at any particular time. We will record the change on our records
and will contact you if exchanging certificates becomes required for any reason.
The symbol for the Company's stock will remain "CINJ.OB" It will
continue to be listed on the OTC Market. The Company expects no interruption in
trading as a result of the Reincorporation
We cannot predict whether the stock price for our Common Stock will
increase, remain the same or decrease if and when the Reincorporation is
completed. We do not expect the Reincorporation to have any direct effect on the
market price of our Common Stock.
Will my rights as a shareholder in the Company change?
Yes. We are now incorporated in Illinois. We propose to reincorporate
in Delaware. Although similar in many respects, Illinois corporate law and
Delaware corporate law have significant differences. In addition, the
Certificate of Incorporation of the Delaware Company varies in certain respects
from the Illinois Articles. Some of the differences are discussed in the
following questions and answers. The changes in your rights are described in
more detail in the sections below entitled "The Charters and Bylaws of the
Company and the Delaware Company" and "Principal Differences between the
Corporation Laws of Illinois and Delaware."
14
<PAGE>
Are there any major differences between the Delaware Certificate of
Incorporation the Illinois Articles?
No, the Illinois Articles and the Delaware Certificate of
Incorporation are substantially similar in all material respects.
What are the major differences between Delaware corporate law and Illinois
corporate law?
There are many differences and many similarities. Generally, Delaware
law places more authority in the hands of the Board of Directors. Some of the
specific differences and similarities are:
o Both Illinois and Delaware law allow a corporation to
eliminate directors' personal liability for actions they
take in their role as directors, but the ability to do so
under Delaware law is broader.
o Both Illinois and Delaware law allow a corporation to
indemnify its directors, officers and other corporate
agents if they are sued or incur liability in the course
of performing their duties for the corporation. To
"indemnify" means to reimburse for personal liability and
personal expenses, or to advance funds for expenses as
incurred. Each state also restricts or prohibits
indemnification of these persons in certain circumstances.
Illinois law does require notification to shareholders in
writing of any indemnification paid or expenses incurred.
Delaware does not require such notification.
o Delaware prohibits a merger or similar transaction with a
person or entity that controls 15% or more of the
company's stock unless certain conditions are met. One of
the conditions is that the Board of Directors and holders
of two-thirds of the shares held by other shareholders
approve the transaction. Illinois has no comparable law.
o Both Illinois and Delaware law permit shareholders to
inspect the corporation's shareholder list for appropriate
purposes under certain circumstances.
o Both Illinois and Delaware require a corporation to meet
certain financial tests before paying cash dividends or
making other distributions to shareholders. The test in
Delaware is less stringent than in Illinois. This does not
mean that the Company's dividend policy will change.
For a more complete discussion of this topic, see the section below
entitled "Principal Differences between the Corporation Laws of Illinois and
Delaware."
What approvals are required to complete the reincorporation?
Under Illinois law, we may complete the Reincorporation only if
holders of a two-thirds majority of the shares of our Common Stock vote in favor
of the Proposal at the Annual Meeting. Our Board has already approved the
Proposal and is now seeking your approval as a Stockholder.
15
<PAGE>
Will the reincorporation deter takeover offers of the Company?
Some provisions of Delaware law may deter another person or entity
from making a hostile acquisition proposal for part or all of the Company,
because they make it harder for the acquirer to acquire control without the
cooperation of our Board. The Board believes that these provisions are in your
best interests. However, they may also discourage a third party from proposing a
transaction you would approve if given the opportunity to vote on it.
A BRIEF DESCRIPTION OF THE REINCORPORATION PROPOSAL
The Reincorporation Proposal includes the following steps:
o The Company has formed a wholly owned subsidiary
incorporated in Delaware. This Proxy Statement refers to
the new company as the "Delaware Company." Its legal name
is COMC, Inc.
o If the shareholders approve, the Company will merge with
the Delaware Company.
o The Delaware Company will be the surviving corporation and
will carry on our business.
o Each share of our Common Stock will be converted into one
share of common stock of the Delaware Company.
Our Common Stock is listed for trading on the "over-the-counter"
market under the symbol "CINJ.OB" After the Reincorporation, the Delaware
Company's common stock will continue to be traded on the "over-the-counter"
market under the symbol "CINJ.OB" without interruption.
It will not be necessary for Stockholders to exchange their existing
stock certificates for stock certificates of the Delaware Company. However,
Stockholders may exchange their certificates if they so choose.
REASONS FOR REINCORPORATION
Our Board recommends the Reincorporation Proposal for several
reasons. Generally, our Board believes that incorporation in Delaware will
improve the Board's ability to manage the Company for the benefit of our
Stockholders. Additionally, our Board recommends Reincorporation for the
following reasons:
Predictability of Delaware Law. Delaware has a modern statutory
corporation law and well-developed case law. It has courts specializing in
corporate law. These courts have developed expertise in dealing with corporate
issues. Delaware case law on corporate issues is the most comprehensive of any
state. These factors will all provide our Board and management with greater
certainty in discharging their duties. The predictability of Delaware corporate
law provides a reliable foundation on which our governance decisions can be
based.
16
<PAGE>
Flexibility of Delaware Law. For many years, Delaware has followed a
policy of encouraging corporations to incorporate in that state. It has done so
by adopting and administering comprehensive and flexible corporate laws
responsive to the legal and business needs of corporations. Historically,
Delaware's legislature and courts have acted quickly and effectively to meet
changing business needs. The expertise of Delaware courts in dealing with new
corporate law issues and a changing business climate contributes to the orderly
development of Delaware corporate law.
Prominence of Delaware Law. Among public companies, Delaware is one
of the most common states of incorporation. Many large companies have
reincorporated in Delaware as we propose to do. Delaware has the most well
developed corporation law of any state. The legislatures and courts of other
states often look to Delaware law for guidance on corporate law issues. Our
Board believes we can best obtain the benefits of Delaware law by
reincorporating in that state and becoming directly subject to its corporation
laws.
Increased Ability to Attract and Retain Qualified Directors. The
Board of Directors believes that a Delaware corporation has certain advantages
in attracting qualified candidates to act as directors and officers:
o Both Illinois and Delaware law permit a corporation to adopt
charter provisions that reduce or limit the monetary liability of directors for
breaches of their fiduciary duty in certain circumstances and provide for
indemnification of directors and officers. The frequency of claims and
litigation directed against directors and officers may discourage qualified
persons from taking on these positions. We believe that, in general, Delaware
law provides greater protection to directors and officers than Illinois law and
that Delaware case law regarding a corporation's ability to limit director
liability and provide indemnification is more developed and provides more
guidance than Illinois law.
o With clearer corporation laws, directors and officers should
be able to carry out their duties with more assurance that they are acting
properly. A more developed and clearer corporation law should reduce the risk of
liability and claims. Potential directors and officers can accept roles with the
Company with less concern for their own financial risk.
To date, no person invited to become a director or officer of the
Company has declined because it was an Illinois corporation.
THE CHARTER AND BYLAWS OF THE COMPANY AND THE DELAWARE COMPANY
Principal Difference. The Delaware Company's Certificate of
Incorporation and the Delaware Bylaws are similar to the Illinois Articles and
Bylaws in all material respects.
Capital Structure. The Illinois Articles of incorporation of the
Company currently authorize the Company to issue up to 40,000,000 shares of
Common Stock. The Certificate of Incorporation of the Delaware Company
authorizes the issuance of 40,000,000 shares of common stock, par value $.01.
The shares of the Delaware Company, as well as our outstanding shares of Common
Stock, have no preemptive, conversion, redemption or similar rights. Except for
those shares purchased from dissenting Stockholders pursuant to their appraisal
rights, each of the outstanding shares of our Common Stock will be exchanged for
one share of the Delaware Company's common stock.
17
<PAGE>
The Delaware Company is authorized to issue an aggregate of
10,000,000 shares of Preferred Stock. The Delaware Company's Board of Directors
will have the authority to issue such shares of Preferred Stock in one or more
series and to fix the number of shares constituting any such series, the voting
powers, designation, preferences and relative participation, optional or other
special rights and qualifications, limitations or restrictions thereof,
including the dividend rights and dividend rate, terms of redemption (including
sinking fund provisions), redemption price or prices, conversion rights and
liquidation preferences of the shares constituting any series, without any
further vote or action by the stockholders. Such Preferred Stock may be used by
the Delaware Company in acquisitions or to obtain financing.
Upon the liquidation of the Delaware Company, holders of the Delaware
Company's common stock would be entitled to share ratably in the net assets
available for distribution to such shareholders. Since the Delaware Company's
shares of common stock, like our outstanding shares of Common Stock, do not have
cumulative voting rights, the holders of more than 50% of the shares voting for
the election of directors will be able to elect 100% of the directors if they
choose to do so.
Monetary Liability of Directors. The Illinois Articles and the
Delaware Company's Certificate of Incorporation both provide for the elimination
of personal monetary liability of directors to the fullest extent permissible
under the law of the respective states. The Delaware provision is potentially
more expansive, in that it incorporates future amendments to Delaware law with
respect to the elimination of such liability. See "Principal Differences Between
the Corporation Laws of Illinois and Delaware."
Possible Future Changes. While the Company has no present intention
to do so, the Delaware Company could in the future implement certain other
changes by amendment of its Certificate of Incorporation or the Delaware Bylaws.
For a discussion of such changes, see "Principal Differences Between the
Corporation Laws of Illinois and Delaware."
This discussion of the Certificate of Incorporation and the Delaware
Bylaws is qualified by reference to Attachments B and C, which set out their
full text.
PRINCIPAL DIFFERENCES BETWEEN ILLINOIS & DELAWARE LAW
Summarized below are the principal differences between the BCA and
the Delaware General Corporation Law that may affect your interests as a
Stockholder. This summary does not purport to be a complete statement of the
differences between the BCA and the Delaware General Corporation Law and related
laws affecting shareholders' rights, and this summary is qualified in its
entirety by reference to the provisions of these laws. You are advised to
consult with your own legal counsel regarding these matters.
18
<PAGE>
Shareholders' Approval Respecting Certain Business Combinations.
Illinois law requires shareholders' approval in connection with more types of
business combinations than Delaware law. For example, Illinois law requires
shareholders' approval for a share exchange whereas Delaware law generally
requires shareholders' approval in the event of a statutory merger or a
consolidation only. In addition, Illinois law requires a two-thirds affirmative
vote in favor of mergers, consolidations and share exchanges unless the articles
of incorporation stipulate a smaller or larger percentage. Delaware law
generally requires that a majority of the shareholders of both acquiring and
target corporations approve such actions.
Appraisal Rights. Illinois law provides shareholders with appraisal
rights in more situations than does Delaware law. Under Illinois law, a
shareholder may be entitled to appraisal when the shareholders vote: (1) to
merge or consolidate with other corporations, (2) to sell or exchange all or
substantially all of a corporation's property and assets, or (3) to approve
business combinations through a share exchange. Delaware does not permit
appraisal rights in the event of a merger or consolidation for the shares of any
class or series which are listed on a national stock exchange or which are held
of record by more than two thousand shareholders.
Special Meetings of Shareholders. Illinois law allows a special
meeting of shareholders to be called by 1/5 of the shares entitled to vote
thereon. Delaware law allows a corporation to determine the number of shares
needed to call a special meeting.
Action by Shareholders without Meeting. Under Illinois law,
shareholders' actions that are taken by written consent without a meeting and
that are not unanimous require the notification of all shareholders entitled to
vote prior to execution of the consent. Delaware law permits any such action to
be taken by majority vote without prior notification, provided that written
notice is subsequently sent to the other shareholders informing them of the
actions taken.
Indemnification and Limitation of Liability of Directors and Other
Agents. Illinois and Delaware have similar laws on indemnification by a
corporation of its officers, directors, employees and other agents. With certain
exceptions, the laws of both states also permit a corporation to adopt charter
provisions eliminating the liability of a director to the corporation or its
shareholders for monetary damages for breach of the director's fiduciary duty.
Dividends and Repurchases of Shares.
Delaware. Delaware law permits a corporation to declare and pay
dividends out of surplus or out of net profits for the fiscal year in which the
dividend is declared and/or for the preceding fiscal year as long as the amount
of capital of the corporation following the declaration and payment of the
dividend is not less than the aggregate amount of the capital represented by the
issued and outstanding stock of all classes having a preference upon the
distribution of assets. In addition, Delaware law generally provides that a
corporation may redeem or repurchase its shares only if the capital of the
corporation is not impaired and the redemption or repurchase would not impair
the capital of the corporation.
Illinois. Under Illinois law, a corporation may not make any
distribution to its shareholders if as a result of such distribution the
corporation would be insolvent or the net assets of the corporation would be
less than zero or less than the maximum amount payable at the time of
distribution to shareholders having preferential rights in liquidation if the
corporation were then to be liquidated.
19
<PAGE>
Dissolution. Under Illinois law, if the board of directors has not
approved the proposal to dissolve, the dissolution must be unanimously approved
by all the stockholders entitled to vote. If the board of directors initially
approves the dissolution, approval by 1/5 of the outstanding shares of the
corporation's stock is sufficient. Under Delaware law, if the board of directors
has not approved the proposal to dissolve, the dissolution must be unanimously
approved by all the stockholders entitled to vote. If the board of directors
initially approves the dissolution, approval by a simple majority of the
outstanding shares of the corporation's stock is sufficient. In the event of
such a board-initiated dissolution, Delaware law allows a Delaware corporation
to include in its certificate of incorporation a supermajority voting
requirement for dissolution. The Delaware Company's Certificate of Incorporation
does not include a supermajority voting requirement for dissolution.
FEDERAL SECURITIES LAW CONSEQUENCES
The issuance by the Delaware Company of shares to our Stockholders
under the Merger constitutes an exchange offer under the Securities Act of 1933,
as amended (the "Securities Act"). Nevertheless, the shares of common stock to
be issued by the Delaware Company in exchange for the shares of Common Stock are
exempt from registration under the Securities Act. Pursuant to Rule 145
promulgated under the Securities Act, shares issued under a statutory merger are
subject to registration under the Securities Act unless the sole purpose of the
transaction is to change an issuer's domicile within the United States. Since
the sole purpose of the issuance and exchange is to effectuate the
Reincorporation, the exchange and issuance is exempt from registration under
Rule 145. Shares of common stock that will be issued in exchange for shares of
Common Stock that are currently restricted will remain restricted from transfer
unless such shares are subsequently registered or an exemption from registration
is available.
FEDERAL TAX CONSEQUENCES
The following material does not address all of the tax consequences
of the Proposed Reincorporation that may be relevant to particular Stockholders,
such as dealers in securities, or those Stockholders who acquired their shares
upon the exercise of stock options, nor does it address the tax consequences to
holders of options or warrants to acquire our Common Stock. Furthermore, no
foreign, state, or local tax considerations are addressed herein. IN VIEW OF THE
VARYING NATURE OF SUCH TAX CONSEQUENCES, EACH SHAREHOLDER IS URGED TO CONSULT
HIS OR HER OWN TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES OF THE PROPOSED
REINCORPORATION, INCLUDING THE APPLICABILITY OF FEDERAL, STATE, LOCAL OR FOREIGN
TAX LAWS.
The Merger will constitute a reorganization under Section 368(a)(1)
of the Internal Revenue Code of 1986, as amended (the "Code"). For federal
income tax purposes, no gain or loss will be recognized by our Stockholders
(other than those Stockholders who exercise their dissenter and appraisal
rights) on the automatic conversion of their shares of Common Stock into shares
of the Delaware Company as a result of the Merger. Each of our Stockholders
(other than dissenting Stockholders) will have a basis in their shares of the
Delaware Company equal to their basis in the Common Stock immediately prior to
the Effective Date of the Merger. The stockholder's holding period with respect
20
<PAGE>
to the shares of the Delaware Company will include the period during which such
stockholder held the corresponding shares of our Common Stock, provided such
shares were held by such stockholder as a capital asset on the Effective Date of
the Merger. We will not recognize and the Delaware Company will not recognize
any gain or loss as a result of the Merger.
The receipt of cash in exchange for their shares by objecting
Stockholders will be a taxable event to such Stockholders. Each Stockholders is
advised to consult his, her or its own attorney or tax advisor as to the
Federal, state or local tax consequences of the proposed Merger in view of his
individual circumstances.
The Company has not requested a ruling from the Internal Revenue
Service (the "IRS") with respect to the federal income tax consequences of the
Reincorporation under the Code. The Company will, however, receive an opinion
from McCutchen, Doyle, Brown & Enersen, LLP substantially to the effect that the
Proposed Reincorporation will qualify as a reorganization within the meaning of
section 368(a) of the Code (the "Tax Opinion"). The Tax Opinion will neither
bind the IRS nor preclude it from asserting a contrary position. In addition,
the Tax Opinion will be subject to certain assumptions and qualifications and
will be based on the accuracy of representations made by the Delaware Company
and the Company. Of particular importance will be assumptions and
representations relating to the requirement (the "continuity of interest"
requirement) that the Stockholder of the Company retain, through ownership of
the Delaware Company common stock, a significant equity interest in the
Company's business after the Reincorporation.
A successful IRS challenge to the reorganization status of the
Reincorporation (in consequence of a failure to satisfy the "continuity of
interest" requirement or otherwise) would result in a Stockholder recognizing
gain or loss with respect to each share of the Company Common Stock exchanged in
the Reincorporation equal to the difference between the Stockholder's basis in
such share and the fair market value, as of the time of the Reincorporation, of
the Delaware Company's common stock received in exchange therefor. In such
event, a Stockholder's aggregate basis in the shares of Delaware Company common
stock received in the exchange would equal their fair market value on such date,
and the Stockholder's holding period for such shares would not include the
period during which the shareholder held the Company Common Stock. Even if the
Reincorporation qualifies as a reorganization under the Code, a Stockholder
would recognize gain to the extent the Stockholder received (actually or
constructively) consideration other than Delaware Company common stock in
exchange for the Stockholder's the Company Common Stock.
The state, local or foreign income tax consequences to shareholders
may vary from the federal tax consequences described above.
21
<PAGE>
RIGHT TO DISSENT AND APPRAISAL RIGHTS OF SHAREHOLDERS OBJECTING TO THE PROPOSED
MERGER
Pursuant to Sections 11.65 and 11.70 of the BCA, holders of our
Common Stock have the right to dissent from the Merger and obtain payment of the
fair value of their shares. A Stockholder who elects to dissent from the Merger
and obtain payment for his shares (a "Dissenter"), must complete a form of
election to dissent (a copy of which has been included in this mailing, and is
attached hereto as Attachment D). Merely voting against the Reincorporation and
Merger will not satisfy the dissent requirements. If you wish to dissent from
the Reincorporation and Merger you must complete the form of election to dissent
and return it to us at 2840 Howe Road, Suite C, Martinez, Ca 94553-4000. If we
do not receive an originally executed copy of the election form by November 28,
2000, the Dissenter will lose his right to dissent and obtain payment for his
shares as a result of the Merger. You will not receive any further notification
regarding the date upon which your right to dissent will terminate. In order to
be entitled to receive payment, a Dissenter must return to us any stock
certificates or other evidence of share ownership to our satisfaction.
Upon consummation of the Merger, we will pay to the Dissenter the
fair value of his shares plus accrued interest. If the Dissenter disagrees with
our determination of fair value, he must so notify us in writing within 30 days
from the date of delivery of payment. If within 60 days from the mailing date of
this document we have not agreed with the Dissenter upon the estimated fair
value, we will either pay the Dissenter the difference in value demanded by the
Dissenter or file with a court of competent jurisdiction a petition for a
determination of the fair value.
The foregoing summary is not a complete statement of the provisions
of Sections 11.65 and 11.70 of the BCA and is qualified in its entirety by
reference to the relevant portions of such Sections of the BCA, copies of which
are attached hereto as Attachment E.
A Dissenter who receives payment for his shares upon exercise of his
right of dissent will, subject to the provisions of Section 302(b) of the Code,
recognize gain or loss for Federal income tax purposes, measured by the
difference between the cost basis for his shares and the amount of payment
received.
SHAREHOLDERS ARE URGED TO CAREFULLY REVIEW THE ENCLOSED LETTER AND,
IF THEY ELECT TO DISSENT FROM THE MERGER, TO EXECUTE AND RETURN TO THE COMPANY
THE FORM OF ELECTION TO DISSENT ATTACHED HERETO AS ATTACHMENT D. IF THIS LETTER
IS NOT RECEIVED BY US ON OR BEFORE NOVEMBER 28, 2000 YOU WILL LOSE YOUR RIGHT TO
DISSENT. YOU WILL NOT RECEIVE ANY FURTHER NOTIFICATION REGARDING THE DATE UPON
WHICH YOUR RIGHT TO DISSENT WILL TERMINATE.
TERMINATION
THE MERGER AGREEMENT PROVIDES THAT OUR BOARD OF DIRECTORS MAY
TERMINATE AND CANCEL THE MERGER AT ANY TIME PRIOR TO THE EFFECTIVE DATE, EITHER
BEFORE OR AFTER SUBMISSION OF THE MERGER TO A VOTE OF STOCKHOLDERS. OUR BOARD
BELIEVES THAT THE REINCORPORATION IS IN THE BEST INTEREST OF OUR STOCKHOLDERS
AND HAS DETERMINED THAT IT MAY ABANDON THE MERGER IF WE RECEIVE ELECTIONS TO
DISSENT FROM STOCKHOLDERS HOLDING MORE THAN 1% OF OUR OUTSTANDING SHARES OF OUR
COMMON STOCK. THE BOARD'S DETERMINATION WAS BASED UPON THE FOLLOWING: (I) THE
MERGER IS MERELY "MIGRATORY" IN NATURE (IN OTHER WORDS, WE ARE ONLY CHANGING OUR
STATE OF INCORPORATION); (II) THE MERGER WILL NOT RESULT IN ANY CHANGE TO OUR
BUSINESS, PROPERTIES OR MANAGEMENT; AND (III) GIVEN THE WORKING CAPITAL NEEDS OF
THE COMPANY AT THIS TIME, THE MERGER IS NOT AN APPROPRIATE OCCASION TO
REPURCHASE SHARES OF OUR OUTSTANDING COMMON STOCK.
22
<PAGE>
EFFECTIVE DATE OF THE MERGER
It is presently anticipated that the date on which the Merger will be
consummated (the "Effective Date") will be November 28, 2000, or as soon
thereafter as practicable. However, our Board of Directors of the Company has
reserved the right to abandon the Merger prior to the Effective Date of the
Merger. See "Termination" immediately above.
Upon the Effective Date of the Merger, each share of Common Stock
will be converted automatically into one share of common stock of the Delaware
Company. Thereafter the outstanding certificates for shares of our Common Stock
will represent the same number of shares of common stock of the Delaware
Company. Any of our Stockholders desiring new certificates of the Delaware
Company may submit their existing certificates representing shares of our Common
Stock to American Stock Transfer & Trust Company, the transfer agent of the
Delaware Company, and obtain new certificates. We will obtain a new CUSIP number
for shares of common stock of the Delaware Company authorized after the
Effective Date of the Merger.
AGREEMENT AND PLAN OF MERGER AND CHARTER DOCUMENTS ARE ATTACHED AS ATTACHMENTS
You are urged to read the Agreement and Plan of Merger, the
Certificate and the Delaware Bylaws, the text of which are attached as
Attachment A, Attachment B and Attachment C to this Proxy Statement,
respectively.
APPROVAL REQUIRED
Under Illinois law, the Reincorporation must be approved by a
two-thirds vote of our Stockholders. On the matter of the vote for the Merger,
each share of Common Stock has one vote. An abstention is not an affirmative
vote and, therefore, will have the same effect as a vote against the proposal. A
broker "non-vote" will not be treated as entitled to vote on this subject matter
at the meeting.
Your approval of the Reincorporation Proposal will also constitute
your approval of (i) the Agreement and Plan of Merger (see Attachment A), and
(ii) the Certificate of Incorporation and the Delaware Bylaws (see Attachment B
and Attachment C).
OUR BOARD BELIEVES THAT THE REINCORPORATION IS IN THE BEST INTEREST
OF OUR STOCKHOLDERS AND HAS DETERMINED THAT IT MAY ABANDON THE MERGER IF WE
RECEIVE ELECTIONS TO DISSENT FROM STOCKHOLDERS HOLDING MORE THAN 1% OF OUR
OUTSTANDING SHARES OF OUR COMMON STOCK. IF THE BOARD ABANDONS THE
REINCORPORATION, THE AGREEMENT AND PLAN OF MERGER WILL BE OF NO FORCE OR EFFECT.
See "Quorum; Abstentions," "Voting" and "Security Ownership of Certain
Beneficial Owners and Management."
THE BOARD RECOMMENDS A VOTE "FOR" THE REINCORPORATION.
23
<PAGE>
PROPOSAL THREE
APPROVAL OF THE COMC, INC.
1999 STOCK OPTION PLAN
(Item 3 on Proxy Card)
GENERAL
In November 1999 our Board determined that a single plan for granting
options, whether incentive or nonincentive, to our employees, consultants,
advisors and/or Directors would be desirable and in our best interest to
attract, retain and provide incentives for key personnel.
Accordingly, on November 30, 1999, our Board of Directors adopted,
subject to approval of our Stockholders, the 1999 Option Plan. A copy of the
1999 Option Plan is attached hereto as Attachment F. The 1999 Option Plan
authorizes the grant of incentive stock options within the meaning of Section
422 of the Code, to our employees; and the grant of nonstatutory or
"nonincentive" stock options to our Directors, advisors, employees and
consultants.
Originally, the 1999 Option Plan provided that options to acquire a
total of One Million shares of our Common Stock could be issued under the 1999
Option Plan. On October 10, 2000, our Board determined that it was in the best
interest of our Stockholders to amend the 1999 Option Plan to increase this
number to two million. A copy of the First Amendment to the COMC, Inc. 1999
Stock Option Plan (the "First Amendment") is attached as Attachment G. A vote
in favor of the 1999 Option Plan will count in favor of the 1999 Option Plan,
as amended by the First Amendment.
The 1999 Option Plan may be administered by our Board or a committee
approved by our Board. Subject to the approval of our Stockholders, on November
30,1999, our Board granted incentive stock options to certain of employees of
ICF to purchase a total of 240,000 shares of our Common Stock at an exercise
price of $.50 per share. Subject to the approval of our Stockholders, on
September 18, 2000, our Board granted incentive stock options to certain ICF
employees to purchase a total of 46,000 shares of our Common Stock at an
exercise price of $0.80 per share. The right to exercise such options vests over
a five-year period.
PROPOSAL
At the Annual Meeting, our Stockholders are being requested to
approve the 1999 Option Plan, as amended, with 2,000,000 shares of our Common
Stock reserved for issuance thereunder.
Our Board believes that the ability to grant stock options is
essential to the future success of the Company. The granting of stock options
can motivate high levels of performance and provide an effective means of
recognizing contributions of employees, consultants, advisors and Directors to
our success. We believe that this policy is of great value in recruiting and
retaining highly qualified technical personnel, other key personnel,
consultants, advisors and directors who are in great demand, and that this
policy is appropriate for rewarding the efforts of our current employees,
consultants, advisors and Directors. The material features of the 1999 Option
Plan are outlined below.
24
<PAGE>
SUMMARY OF THE 1999 OPTION PLAN
Purpose. The purposes of the 1999 Option Plan are: (i) to attract and
retain the best available personnel, including officers, consultants, advisors,
and directors, for positions of substantial responsibility; (ii) to provide
additional incentives to such employees, consultants, advisors, and directors;
and (iii) to promote the success of our business.
Administration. The 1999 Option Plan may be administered by multiple
administrative bodies. With respect to option grants to our officers and
Directors, the 1999 Option Plan may be administered by either our Board or one
or more committees designated by our Board as may be necessary to comply with
the rules governing a plan intended to qualify as a discretionary grant under
Rule 16b-3of the Securities and Exchange Commission. With respect to persons
other than officers or Directors, the 1999 Option Plan may be administered by
our Board or a committee designated by our Board as necessary to comply with
applicable law. These multiple administrative bodies are hereinafter
collectively referred to as the "Plan Administrator."
Eligibility. Incentive and nonincentive stock options may be granted
to our employees, consultants, advisors and/or Directors, as well as the
employees, consultants, advisors and/or Directors of our subsidiaries. Incentive
stock options may only be granted to our employees and employees of our
subsidiaries. The Plan Administrator selects the employees, consultants,
advisors or Directors who will be granted options and determines the number of
shares to be subject to each option. In making such determination, the Plan
Administrator takes into account the duties and responsibilities of the relevant
individual, the value of the services of such person, his or her present and
potential contributions to our future success, the anticipated years of future
service of such person, and other relevant factors.
Exercise of Options. Options vest at such times as are determined by
the Plan Administrator and set forth in the option agreement. Generally, options
vest over a four-year period with a certain number vesting after one year and
the remainder vesting in equal monthly installments thereafter, with such
vesting accelerated upon the occurrence of certain specified in the 1999 Option
Plan.
An option is exercised by delivery of written notice to our Secretary
specifying the number of full shares of Common Stock to be purchased and payment
of the option exercise price. The method of payment of the exercise price for
the shares of purchased upon exercise of an option is determined pursuant to the
1999 Option Plan and relevant option agreement.
Exercise Price. The exercise price for stock options granted under
the 1999 Option Plan is determined by the Plan Administrator according to
standards set forth in the 1999 Option Plan. In case of incentive stock options,
the exercise price must not be less than 100 percent of the fair market value of
the Common Stock on the date of grant. Incentive stock options granted to
Stockholders owning more that 10 percent of our voting stock are subject to the
additional restriction that the exercise price per share of each option must be
at least 110 percent of the fair market value per share on the date of grant.
The exercise price of nonstatutory options granted under the 1999 Option Plan
must not be less than 85 percent of the fair market value of our common stock on
the date of grant.
25
<PAGE>
Termination. If an optionee employed by us ceases to be an employee
for any reason other than death or disability, the optionee may exercise an
existing unexercised option within such period of time as is specified in the
notice of grant (to the extent that he or she is entitled to exercise the option
on the date of termination). If the employment of an optionee is terminated "for
cause", any unexercised option becomes void and unexercisable on the date of
termination. An option also terminates immediately in the case of an optionee
who is a Director if the Director is removed for cause as defined by applicable
law.
If an optionee ceases to be an employee, consultant, advisor or
Director as a result of his or her death or permanent and total disability, the
unexercised option may be exercised to the extent that the optionee was entitled
to do so at the time of his or her death. However, the option shall terminate
and cease to be exercisable upon the earlier of: (i) the expiration of one (1)
year from the date of death or termination of employment in the event of
disability; or (ii) the expiration date of the option.
Terms. Options granted under the 1999 Option Plan expire as
determined by the Plan Administrator and provided in the relevant option
agreement, but in no event later than 10 years after the date of the grant. No
option may be exercised by any person after such expiration. In addition,
incentive stock options granted to Stockholders owning more that 10 percent of
our outstanding voting stock may not have a term of more than five years.
Non-Transferability. In the case of an incentive stock option, such
options are non-transferable by the optionee other than by will or the laws of
descent and distribution. Incentive stock options granted under the 1999 Option
Plan are exercisable during the optionee's lifetime only by the optionee, or in
the event of his or her death, by a person who acquires the right to exercise
the option by will, inheritance or the laws of descent and distribution. In the
case of a nonincentive stock option, such options are also transferable to a
trust to be passed to beneficiaries upon the death of the optionee or by gift to
immediate family members as defined by the relevant federal securities law.
Adjustments Upon Changes in Capitalization; Changes of Control. The
number of shares covered by each outstanding option, and the exercise price
thereof, shall be proportionately adjusted for any increase or decrease in the
number of issued shares resulting from certain defined changes in our
capitalization, such as a stock splits, stock dividends and similar changes.
Option agreements under the 1999 Option Plan generally provide that if we are a
participant in any merger or consolidation, each outstanding and unexercised
option may be assumed or substituted by the surviving corporation. If such
options are not so assumed, the options become fully exercisable prior to the
closing of such merger or consolidation.
Amendment and Termination. Our Board may from time to time, with
respect to any shares at the time not then subject to options, suspend or
discontinue the 1999 Option Plan or amend or terminate the Plan in any respect
whatsoever. However, our Board may not amend the 1999 Option Plan without the
approval of a majority of our Stockholders if such amendment will: (a) increase
the number of shares subject to the 1999 Option Plan; (b) change the designation
of the class of persons eligible to receive options; or (c) amend any provisions
to defeat the stated purpose of the Plan. In addition, no amendment may
adversely affect any outstanding options or unexercised portion thereof without
the consent of the optionee.
26
<PAGE>
Term of the 1999 Option Plan. Options may be granted pursuant to the
1999 Option Plan during the ten-year period expiring on November 30, 2009. The
1999 Option Plan shall expire for all purposes no later than November 30, 2009.
However, terms of the 1999 Option Plan shall apply to unexpired options issued
on or before November 30, 2009 until the earlier of the expiration or
termination of the term of any such option.
Our Common Stock is currently traded over-the-counter on the Bulletin
Board ("BB") under the symbol "CINJ.OB". On October 20, 2000, the last reported
closing price for the Common Stock was $0.906.
UNITED STATES TAX INFORMATION
Options granted under the 1999 Option Plan may be either "incentive
stock options" as that term is defined in Section 422 of the Code or
nonstatutory or "non-incentive" stock options. The following is a summary of
United States federal tax information relevant to such options:
Incentive Stock Options. Incentive stock options can only be granted
to our employees or employees of our subsidiaries. Directors, consultants and
advisors are not eligible to receive incentive stock options in such capacities.
An optionee who is granted an incentive stock option under the 1999 Option Plan
will not recognize taxable income either at the time the option is granted or
upon its exercise, although the exercise may subject the optionee to the
alternative minimum tax. Upon the sale or exchange of the shares more than two
(2) years after the date of grant and one (1) year after the date of exercise of
the option, any gain or loss will be treated as long-term capital gain or loss.
If these holding periods are not met, the optionee will recognize ordinary
income at the time of earlier sale or exchange equal to the difference between
the exercise price and the lower of (i) fair market value of the shares on the
date of the option exercise or (ii) the sale price of the shares. A different
rule for measuring ordinary income upon such a premature disposition may apply
if the optionee is also one of our officers, Directors or 10 percent
stockholders. We generally will be entitled to a deduction in the same amount as
the ordinary income recognized by the optionee. Any gain or loss recognized on
such a premature disposition of the shares in excess of the amount treated as
ordinary income will be characterized as long-term or short-term capital gain or
loss, depending on the holding period.
Nonstatutory or Nonincentive Stock Options. All other options which
do not qualify as incentive stock options are referred to as nonstatutory or
nonincentive stock options. An optionee will not recognize any taxable income at
the time he or she is granted a nonstatutory stock option. However, upon its
exercise, the optionee will recognize taxable income generally measured as the
excess of the then fair market value of the shares exercised over the exercise
price. Any taxable income recognized in connection with an option exercise by an
optionee who is also one of our employees or an employee of ICF will be subject
to income tax withholding by the Company by payment in cash or out of the
current earnings paid to the optionee.
27
<PAGE>
Restricted Shares. The receipt of restricted shares upon exercise of
a stock option generally will not result in a taxable event to the optionee
unless and until the restrictions with respect to such shares expire. However,
the optionee may make an election under Section 83(b) of the Code to be taxed as
of the date of exercise. If a Section 83(b) election is made, the optionee will
recognize ordinary income in an amount equal to the excess of the fair market
value of such shares on the date of exercise over the amount paid for such
shares. All future appreciation with respect to the shares acquired will be
subject to tax upon sale or disposition at capital gains rates. The 83(b)
election must be filed with the Internal Revenue Service no later than 30 days
after the date of exercise.
If no Section 83(b) election is made, the optionee will recognize
ordinary income on each date on which the restrictions expire as to the subject
shares on that date, and the holding period for long-term capital gain purposes
will not commence until such date. However, if the participant is subject to
Section 16(b) of the Securities Exchange Act of 1934 (hereinafter "Exchange
Act"), and if no Section 83 (b) election was made at the time of purchase, the
recognition date for ordinary income for shares that vest within six months of
purchase generally will be subject to deferral to the date six months after the
date of exercise. We are entitled to a tax deduction in an amount equal to the
ordinary income recognized by the optionee, provided that the applicable
withholding requirements are satisfied.
The foregoing is only a summary of the effects of United States
federal income taxation laws upon the optionee and the Company in connection
with the 1999 Option Plan. This summary is not complete, is subject to change,
and reference should be made to the applicable provisions of the Code and
related rules and regulations for further details. In addition, this summary
does not discuss the provisions of the income tax laws of any state or local or
foreign jurisdiction to which the optionee may be subject.
REQUIRED VOTE
The adoption of the 1999 Option Plan requires the affirmative vote of
a majority of the shares of our Common Stock present or represented and entitled
to vote on this subject matter at the Annual Meeting. On the matter of the
adoption of the 1999 Option Plan, as amended by the First Amendment, each
share of Common Stock has one vote. An abstention is not an affirmative vote
and, therefore, will have the same effect as a vote against the proposal. A
broker "non-vote" will not be treated as entitled to vote on this subject matter
at the meeting. See "Quorum; Abstentions," "Voting" and "Security Ownership of
Certain Beneficial Owners and Management."
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ADOPTION
OF THE 1999 OPTION PLAN, AS AMENDED BY THE FIRST AMENDMENT.
28
<PAGE>
PROPOSAL FOUR
RATIFICATION OF THE
GRANT OF OPTIONS TO
CERTAIN EMPLOYEES UNDER THE
1999 OPTION PLAN
(Item 4 on Proxy Card)
GENERAL
On November 30, 1999, the Board granted incentive stock options
representing 240,000 shares of Common Stock to certain of ICF's employees. These
options were granted effective as of November 30, 1999, subject to Stockholder
approval, at an option price equal to the "fair market value" of the Common
Stock as of such date, as determined by our Board. For these purposes, our Board
determined that the fair market value of each share of our Common Stock on
November 30, 1999, was equal to $.50 per share.
On September 18, 2000, the Board granted incentive stock options
representing 46,000 shares of Common Stock to certain of ICF's employees. These
options were granted effective as of September 18, 2000, subject to Stockholder
approval, at an option price equal to the "fair market value" of the Common
Stock as of such date, as determined by our Board. For these purposes, our
Board determined that the fair market value of each share of our Common Stock on
September 18, 2000, was equal to $.80 per share.
PROPOSAL
At the Annual Meeting, our disinterested stockholders are being
requested to ratify the grant by our Board of incentive stock options to acquire
a total of 286,000 shares of our Common Stock to certain ICF employees. Such
approval also requires adoption of the 1999 Option Plan being proposed to our
Stockholders under Proposal 3 of this Proxy Statement. Such options granted to
such employees are on terms consistent with the 1999 Option Plan, with vesting
of the options in accordance with the 1999 Option Plan; and with an exercise
price at the fair market value of the shares determined by our Board as
described above under the heading "General" of this Proposal 4.
The Board believes that the grant of options to ICF employees as
described above is important to our future success. The grant of options
29
<PAGE>
is intended to motivate high levels of performance and effort and to retain the
personal services and commitment of these individuals, thereby increasing
shareholder value. In making its determination to grant such options and in
evaluating the terms of the options, the disinterested members of our Board
reviewed, discussed and analyzed our current status and the particular
qualifications of each grantee. In addition, several other factors were
considered including such grantees' business and technical experience, prior
success and respective current contributions, the past and current value of the
Common Stock; our operations, financial condition and prospects; the likely
demand such grantees would command in the marketplace for their respective
services; and the determination of the option exercise price with reference to a
"fair value" of our Common Stock for such purposes from a financial point of
view as of the grant date pursuant to the Plan. In view of the variety of
factors considered by our Board, no one factor nor any combination of these
factors was determinative in the recommendation of our Board. Without giving
relative weights to the respective factors, favorable and adverse, the Board
determined that the factors adverse to the grant of the relevant options were
not sufficiently so to negate the potential benefits of such grants.
REQUIRED VOTE
The ratification of the grant of options by our Board requires the
affirmative vote of a majority of the shares of our Common Stock present or
represented and entitled to vote on this subject matter at the Annual Meeting.
Shares of our Common Stock owned by the grantees receiving options are not
entitled to vote on this subject matter. On the matter of the ratification of
these option grants, each share of our Common Stock has one vote. An abstention
is not an affirmative vote and, therefore, will have the same effect as a vote
against the proposal. A broker "non-vote" will not be treated as entitled to
vote on this subject matter at the meeting. See "Quorum; Abstentions," "Voting"
and "Security Ownership of Certain Beneficial Owners and Management."
THE DISINTERESTED MEMBERS OF OUR BOARD OF DIRECTORS
RECOMMEND A VOTE "FOR" THE RATIFICATION OF THE GRANT OF SUCH OPTIONS.
PROPOSAL FIVE
RATIFICATION OF APPOINTMENT OF INDEPENDENT PUBLIC ACCOUNTANTS
(Item 5 on Proxy Card)
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
In 1997, our Board of Directors appointed Hollander, Gilbert & Co.,
which later became known as Hollander, Lumer & Co. ("Hollander"), as our new
independent auditors, subject to ratification by the Company's shareholders.
During April 1997, John J. Ackerman, then our largest shareholder
(who at the time owned 10,000,000 shares of our Common Stock or 80%) consented
to the appointment of Hollander. As a result, Hollander's appointment was
approved by a majority of the shares of our voting stock, as required by law and
no further vote was needed.
30
<PAGE>
Effective February 2, 2000, our Board of Directors decided to dismiss
Hollander as our independent public accountants. We believe and have been
advised by Hollander that it concurs, that for the two fiscal years ended
December 31, 1998, and the subsequent interim period through February 2, 2000,
we did not have any disagreement with Hollander on any matter of accounting
principles or practices, financial statement disclosure, or auditing scope or
procedure, which disagreement, if not resolved to the satisfaction of Hollander,
would have caused Hollander to make reference in connection with its report on
our financial statements to the subject matter of the disagreement.
The report of Hollander on our financial statements for the years
ending December 31, 1997 and December 31, 1998 did not contain an adverse
opinion or disclaimer of opinion, and was not qualified or modified as to
uncertainty, audit scope or accounting principles. During that period, there
were no "reportable events" within the meaning of Item 304(a)(1)(v) of
Regulation S-K promulgated under the Securities Act of 1933.
Hollander furnished a letter addressed to the Securities and Exchange
Commission stating that Hollander agreed with the above statements, which was
attached as Exhibit 1 to our Form 8-K describing the above referenced changes,
filed with the Commission on February 25, 2000.
On February 2, 2000, we engaged Deloitte & Touche LLP ("Deloitte") to
replace Hollander as our independent public accountants. On February 15, 2000,
Deloitte resigned as our independent auditors because Deloitte determined that,
prior to its engagement as our auditors, it had performed certain valuation
services that could impact its independence. During the period of Deloitte's
engagement, we did not have any disagreement on any matter of accounting
principles or practices, financial statement disclosure, or auditing scope of
procedure with Deloitte, which disagreement, if not resolved to the satisfaction
of Deloitte, would have caused it to make reference in connection with its
report on our financial statements to the subject matter of the disagreement.
Deloitte did not issue any reports on our financial statements.
Deloitte furnished a letter addressed to the Securities and Exchange
Commission stating that Deloitte agreed with the above statements, which was
attached as Exhibit 2 to our Form 8-K describing the above referenced changes,
filed on February 25, 2000.
Between February 25, 2000, and March 27, 2000, we received and
reviewed engagement proposals from other nationally recognized independent
accounting firms. On March 27, 2000, our Board of Directors decided to retain
BDO Seidman, LLP as our new independent public accountants to replace Deloitte.
We formally retained BDO Seidman, LLP as our independent public accountants on
March 28, 2000. No other independent accounting firms were consulted by us on
any accounting and/or reporting matters between February 15, 2000, and March 28,
2000.
Additional details concerning these changes in our independent public
accountants may be found in Form 8K Current Reports that we filed with the SEC
on February 25, 2000 and March 29, 2000.
31
<PAGE>
PROPOSAL
Our Board has selected BDO Seidman, LLP, to audit our financial
statements for the year ending December 31, 1999, and recommends that the
stockholders vote for ratification of such appointment. In the event of a
negative vote on ratification, our Board will reconsider its selection.
Representatives of BDO Seidman, LLP are expected to be present at the meeting
with the opportunity to make a statement if they desire to do so, and are
expected to be available to respond to appropriate questions.
REQUIRED VOTE
The ratification of the appointment of the independent public
accountants requires the affirmative vote of a majority of the shares of our
Common Stock present or represented and entitled to vote on this subject matter
at the Annual Meeting. An abstention is not an affirmative vote and, therefore,
will have the same effect as a vote against the proposal. A broker "non-vote"
will not be treated as entitled to vote on this subject matter at the meeting.
See "Quorum; Abstentions," "Voting" and "Security Ownership of Certain
Beneficial Owners and Management."
THE BOARD OF DIRECTORS RECOMMEND THAT STOCKHOLDERS VOTE
"FOR" RATIFICATION OF THE APPOINTMENT OF BDO SEIDMAN, LLP AS OUR
INDEPENDENT PUBLIC ACCOUNTANTS.
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION
The following table shows, as to the Chief Executive Officer and each
of the other current executive officers and former executive officers whose
salary plus bonus exceeded $100,000, information concerning compensation awarded
to, earned by or paid for services to the Company in all capacities during the
last three fiscal years:
32
<PAGE>
SUMMARY COMPENSATION TABLE(1)(2)
--------------------------------------------------------------------------------
Long-Term
Annual Compensation Compensation
---------------------------- --------------
(a) (b) (c) (d) (e)
--------------- ------------- ------------ ------------ --------------
Name/Principal Year Ended Restricted
Position December 31 Salary ($) Bonus ($) Stock Awards
--------------- ------------- ------------ ------------ --------------
John J. Ackerman
Chairman,
COMC and ICF (3) 1999 137,692 -0- -0-
1998 180,262 25,000 -0-
1997 96,400 -0- -0-
------------- ------------ ------------ --------------
Christopher R. Smith,
CEO, Interim
President and CFO,
of COMC, Exec. Vice
President of ICF 1999 44,135 -0- 2,463,896
1998 -0- -0- -0-
1997 -0- -0- -0-
William M. Burns
COO of COMC,
President and
CEO, ICF 1999 135,000 -0- 376,623
1998 31,731 40,000 -0-
1997 -0- -0- -0-
Charles E. Lincoln,
Former President,
CEO, COMC 1999 135,000 -0- 376,623
1998 31,731 40,000 -0-
1997 -0- -0- -0-
(1) The above compensation does not include the use of an automobile and
other personal benefits, the total value of which do not exceed as to
any named officer or director or group of executive officers the
lesser of $50,000 or 10% of such person's or persons' cash
compensation.
(2) Pursuant to the regulations promulgated by the Commission, the table
omits columns reserved for types of compensation not applicable to
us.
(3) Mr. Ackerman resigned as President in August 1998. Mr. Ackerman
resigned as Chief Executive Officer in October 1999. Since October
1999, Mr. Ackerman has acted solely as the Chairman of our Board of
Directors.
33
<PAGE>
Stock Option Grants and Exercises
The following table sets forth information for our executive officers
who received salary compensation of more than $100,000 in 1999, relating to
option exercises in 1999 and the number and value of securities underlying
exercisable and unexercisable options held at December 31, 1999.
<TABLE>
<CAPTION>
Number of Securities
Underlying Value of Unexercised
Unexercised Options at In-The-Money Options at
Shares December 31, 1999(2) December 31, 1999
Acquired Value ------------------------------ ------------------------------
Name on Exercise Realized(1) Exercisable Unexercisable Exercisable Unexercisable
-------------------- ----------- ----------- ------------- ------------- ------------- --------------
<S> <C> <C> <C> <C> <C> <C>
William M. Burns 0 0 376,623 0 $393,571 0
Charles E. Lincoln 0 0 376,623 0 $393,571 0
Christopher R. Smith 0 0 2,463,896 0 $2,574,777 0
</TABLE>
(1) Value realized reflects the fair market value of our common stock
underlying the option on the date of exercise minus the aggregate
exercise price of the option.
(2) Value of unexercised in-the-money options are based on a value of
$1.125 per share, the fair market value of our common stock on
December 31, 1999 as determined by our Board of Directors. Amounts
reflected are based on the value of $1.125 per share, minus the per
share exercise price, multiplied by the number of shares underlying
the option.
The following table sets forth information for our non-executive
employees who have received options to acquire shares of our Common Stock under
the 1999 Option Plan, subject to stockholder ratification.
Dollar Value Number of Options
------------ -----------------
Non-Executive Employees (25 total) $156,800 286,000
34
<PAGE>
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Pursuant to consulting and purchase and sale agreements entered into
in January of 1998, John Ackerman, our Chairman, transferred 1,000,000 shares of
Common Stock and 500,000 shares of Common Stock at a price of $.01 per share
from his personal holdings to Albert Vasquez, one of our former directors, and
Ernie Mauritson, our former Chief Financial Officer, respectively. In April of
1999, the Audit Committee of our Board of Directors placed a value of $.01 per
share on these transactions, deeming the sale to be at fair market value, and
consequently the excess consideration was zero.
In October of 1998, John Ackerman transferred 500,000 shares of
Common Stock to a former employee of our wholly owned subsidiary, CCI, in
settlement of an employment dispute between CCI and this former employee arising
in 1996 and 1997. The shares were transferred at a value of $.01 per share, the
fair market value of CCI at the time of the dispute.
On August 17, 1998, we consummated the acquisition of ICF. Under the
terms of the Agreement and Plan of Merger dated July 24, 1998 (as amended on
August 3, 1998, the "Agreement"), ICF merged with and into our wholly owned
subsidiary, COMC Acquisition Corp., which we created for purposes of this
transaction (the "Merger"). Immediately following the Merger, we changed the
name of COMC Acquisition Corp. to ICF Communication Solutions, Inc. As
consideration for the Merger, the two principals of ICF, Charles Lincoln and
William Burns, received consideration valued at $14,000,000, as follows:
1. $1,500,000 in cash at the closing of the Merger; $1,500,000 in
promissory notes due and payable on January 5, 1999, secured by all
accounts receivable of ICF;
2. $1,000,000 in promissory notes due and payable January 4, 1999;
3. $1,000,000 in promissory notes due and payable August 17, 1999; and
4. 6,493,506 shares of Common Stock.
We also agreed to use our best efforts to register the shares of
Common Stock issued in connection with the Merger.
Under the Agreement, and pursuant to separate two-year employment
agreements, Messrs. Lincoln and Burns were elected to our Board of Directors.
Mr. Lincoln was also elected as our President, and as the Chief Executive
Officer of ICF. Mr. Burns was elected as our Chief Operations Officer and as the
President of ICF. Messrs. Burns' and Lincoln's employment agreements provided,
among other things, that they would each receive annual salaries of $135,000, as
well as annual bonuses at the discretion of the our Board of Directors. Messrs.
Burns recently changed his position with us and with ICF as a result of a recent
restructuring, and Mr. Lincoln's employment with us was recently terminated. Mr.
Lincoln also recently resigned from our Board of Directors. These recent events
are described in further detail below.
In August of 1999, and as part of an overall restructuring of certain
of our outstanding debt obligations to Messrs. Burns and Lincoln, we entered
35
<PAGE>
into a series of agreements related to such debt obligations. We also entered
into an employment agreement with Mr. Smith on August 10, 1999, which provided
for Mr. Smith to commence employment as our Chief Financial Officer on August
23, 1999, along with another group of related agreements. The agreements which
we entered into as of August 10, 1999, may be summarized as follows:
(i) two separate loan agreements, one between us and Mr. Burns, and the
other between us and Mr. Lincoln, pursuant to which we re-structured
our debt obligations to Messrs. Burns and Lincoln and extended the
re-payment term of our debt obligations to August 10, 2002;
(ii) two separate promissory notes, pursuant to which we memorialized our
obligation, as restructured, to repay a total of $1,750,000 to Mr.
Burns and $1,750,000 to Mr. Lincoln;
(iii) an employment agreement with Mr. Burns, pursuant to which we agreed
to employ Mr. Burns for a term of two years as our Secretary and
Chief Operations Officer, and President of ICF;
(iv) an employment agreement with Mr. Lincoln, pursuant to which we agreed
to employ Mr. Lincoln for a term of two years as our President, and
as CEO of ICF;
(v) nine separate Stock Purchase Agreements, pursuant to which various
accredited investors, including Mr. Smith, acquired a total of
1,015,000 shares of Common Stock from Mr. Ackerman;
(vi) a Contribution Agreement by and between us and Mr. Ackerman pursuant
to which Mr. Ackerman contributed 3,651,948 outstanding shares of
Common Stock to us in order to fund options we granted to Messrs.
Burns, Lincoln and Smith, and Gramercy National Partners, LLC
("Gramercy");
(vii) four separate stock option agreements, pursuant to which we granted
Messrs. Burns, Lincoln, Smith, and Gramercy options to acquire a
total of 3,651,948 shares of Common Stock;
(viii) a Registration Rights Agreement, pursuant to which we granted certain
registration rights to Messrs. Burns, Lincoln and Smith, and certain
other accredited investors with respect to their shares of Common
Stock;
(ix) a Stockholders Agreement by and between us, William M. Burns and
Nellie J. Burns, Trustees of the Burns Family Trust (the "Burns
Trust"), Charles E. Lincoln and Carolyn D. Lincoln, Trustees of the
Lincoln Family Trust (the "Lincoln Trust"), and Messrs. Ackerman and
Smith, providing for, among other things:
(A) the ability of the Burns Trust (3,246,753 shares,
3,623,376 shares on a fully diluted basis), the Lincoln
Trust (3,246,753 shares, 3,623,376 shares on a fully
36
<PAGE>
diluted basis,) and Messrs. Ackerman (2,833,252 shares and
500,000 shares via irrevocable proxy) and Smith (200,000
shares, 2,663,896 shares on a fully diluted basis, and
815,000 shares via irrevocable proxy) to nominate one
member of the Board of Directors at each annual meeting
and the four of them together to nominate a fifth member
of the Board of Directors,
(B) an agreement to vote for the election of those five
nominated directors, and
(C) certain rights of first refusal and restrictions on sales
of Common Stock by the parties to the agreement.
(x) an employment agreement with Mr. Smith, pursuant to which we agreed
to employ Mr. Smith for a term of two years as our Chief Financial
Officer and as Executive Vice President of ICF.
After the closing of the above referenced transactions, the total
number of issued and outstanding shares of our Common Stock was 19,401,491. Mr.
Ackerman's stock ownership decreased from 8,000,200 to 3,333,252. Mr. Smith now
owns 200,000 shares and the option to purchase an additional 2,463,896 shares.
Other accredited investors purchased a total of 800,000 shares from Mr. Ackerman
at $.50 per share. Mr. Ackerman used a portion of the proceeds from such sales
to re-pay the balance of a loan that we made to Mr. Ackerman, which, at the time
of re-payment, equaled $114,281. Gramercy purchased 15,000 shares from Mr.
Ackerman at $.50 per share and acquired the option to purchase an additional
434,806 shares from us. Messrs. Burns and Lincoln were granted options to
purchase 376,623 shares each from us.
Effective October 11, 1999, we instituted a number of organizational
and administrative changes involving certain key personnel. Specifically, Mr.
Ackerman resigned from his position as our Chief Executive Officer and was
appointed the Chairman of the Board of ICF. Mr. Ackerman continues to serve as
the Chairman of our Board of Directors. Mr. Lincoln was appointed as our Chief
Executive Officer and continued to serve as our President. Mr. Burns was
appointed the President and CEO of ICF. These changes were motivated by a desire
to streamline our management, as well as the management of ICF, and to allow
these key employees to focus on those areas where their strengths are greatest.
These changes were approved by our Board of Directors and the Board of Directors
of ICF effective as of October 11, 1999.
In November 1999, our Board of Directors determined that it was in
the best interests of the Company to adopt the 1999 Option Plan. The 1999 Option
Plan was adopted by our Board of Directors on November 30,1999, and 1,000,000
shares of our common stock were reserved for issuance under the 1999 Option
Plan. Subject to the approval of our stockholders, in November, 1999, we granted
incentive stock options to our employees to acquire a total of 240,000 shares of
our common stock at an exercise price of $.50 per share, with the right to
exercises such options vesting over a five year period. The 1999 Option Plan is
the subject of Proposal Number 3, above.
37
<PAGE>
On November 30, 1999, Mr. Smith was appointed to our Board of
Directors in order to fill one of the vacancies created by the resignations of
Messrs. Vasquez, Horowitz and Loeb in early 1999.
During a meeting of our Board of Directors that took place on March
27, 2000, our Board of Directors approved resolutions that, among other things,
authorized the following: (i) the sale of Two Million Six Hundred Twenty-five
Thousand Dollars worth of our common stock (ii) the termination of Mr. Lincoln's
employment with the Company and the negotiation of a settlement and mutual
release agreement by and between the Company, ICF and Mr. Lincoln. Our Board of
Directors determined that the termination of Mr. Lincoln was necessary due to
differences in management styles between Mr. Lincoln and our other officers and
different visions for the future of the Company.
On May 10, 2000, we entered into a Settlement and Release Agreement
with Mr. Lincoln. ICF was also a party to this agreement. This Settlement and
Release Agreement provided for, among other things: a) the termination of Mr.
Lincoln's Employment as our President and Chief Executive Officer and the
termination of our Employment Agreement with Mr. Lincoln; b) our agreement to
repay all amounts owing under our note made in favor of Mr. Lincoln in the
original principal amount of $1,750,000; c) our agreement to pay a lump sum of
$185,291.73 to Mr. Lincoln as an aggregate severance payment under Mr. Lincoln's
Employment Agreement; d) our agreement to pay for Mr. Lincoln's continued
participation in the Company's health insurance and disability insurance
programs (to the extent such programs were previously offered to Mr. Lincoln and
continued participation is permitted under such programs), until August 10,
2001; and e) the mutual release of all claims that we or ICF has or may have
against Mr. Lincoln, and vice versa.
On May 11, 2000, Mr. Lincoln tendered his resignation as a member of
our Board of Directors, to be effective immediately. Mr. Lincoln's letter of
resignation does not state any reason for his resignation.
Effective as of May 18, 2000, Mr. Smith was appointed as our CEO. At
this time, Mr. Smith was also appointed as our President until such time that
our Board of Directors is able to locate a successor or a new President is
elected by our directors at the next meeting of our Board of Directors,
whichever occurs earlier.
ADDITIONAL INFORMATION
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT
Section 16(a) of the Securities Exchange Act of 1934 requires our
officers and directors, and persons who own more than ten percent of a
registered class of our equity securities to file reports of ownership and
changes in ownership with the Securities and Exchange Commission. Officers,
directors and greater than ten-percent shareholders are required by SEC
regulation to furnish us with copies of all Section 16(a) forms they file. Mr.
Ackerman, the Burns Trust and the Lincoln Trust have recently made necessary
Section 16(a) filings. To our knowledge, Marvin Loeb and Albert Vasquez, who
were both formerly officers and directors, have not complied with all applicable
Section 16(a) filing requirements. Mr. Loeb and Mr. Vasquez resigned from all of
their officer and director positions in the early part of 1999.
38
<PAGE>
ANNUAL REPORT/ FORM 10-KSB
A copy of our Annual Report on Form 10-KSB for the year 1999 has been
mailed concurrently with this Proxy Statement to all Stockholders entitled to
notice of and to vote at the Annual Meeting. The Annual Report is not
incorporated into this Proxy Statement and is not considered proxy solicitation
material.
DEADLINE FOR RECEIPT OF STOCKHOLDER PROPOSALS
We know of no other matters that will be presented for consideration
at the Annual Meeting. If any other matters properly come before the Annual
Meeting, it is the intention of the persons named in the enclosed Proxy to vote
the shares they represent as the Board of Directors may recommend. Discretionary
authority with respect to such other matters is granted by the execution of the
enclosed Proxy.
We currently intend to hold our 2001 Annual Meeting of Stockholders
on June 15, 2001 and to mail proxy statements relating to such meeting on
May 15, 2001. We must receive Proposals of Stockholders that are intended to be
presented at the 2001 Annual Meeting no later than one hundred and fifty days
prior to the meeting date, and they must otherwise be in compliance with
applicable laws and regulations in order to be considered for inclusion in the
Proxy Statement and form of proxy relating to that meeting, including the
following: (i) a brief description of the matter and the reasons for conducting
such business at the Annual Meeting, (ii) the name and address of the
Stockholder, as they appear on our books, (iii) the number of shares
beneficially owned by the Stockholder, (iv) any material interest of the
Stockholder in the proposal, and (v) any other information that is required to
be provided by the Stockholder pursuant to Regulation 14A under the Exchange
Act. Nominations of persons to our Board of Directors must include, with respect
to each nomination and the nominating stockholder, (A) the name, age, business
address and residence address of such person, (B) the principal occupation or
employment of such person, (C) the class and number of shares of our Common
Stock which are beneficially owned by such person, (D) a description of
arrangements or understandings between the Stockholder and each nominee and
other person or persons (naming such person or persons) pursuant to which the
nominations are to be made by the Stockholder, and (E) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for elections of Directors, or is otherwise required under the Exchange
Act.
The attached proxy card grants discretionary authority to the proxies
named therein to vote on any matter raised by a Stockholder at the Annual
Meeting. We intend to confer similar authority in the Proxy to be solicited for
the 2001 Annual Meeting for any Stockholder proposal as to which we receive
notification by February 5, 2001 of the Stockholder's intent to
raise the matter at the 2001 Annual Meeting.
39
<PAGE>
Notwithstanding the foregoing, the Stockholder must also provide
notice as required by the Exchange Act and the applicable regulations
thereunder. The chairman of the Annual Meeting may determine, if the facts
warrant, that a matter has not been properly brought before the Annual Meeting
and, therefore, may not be considered at the Annual Meeting.
THE BOARD OF DIRECTORS
Dated: October 20, 2000
40
<PAGE>
Attachment A
------------
THIS AGREEMENT AND PLAN OF MERGER by and between COMC, Inc., an
Illinois corporation (herein sometimes called the "Illinois Corporation") and
COMC, Inc., a Delaware corporation (herein sometimes called the "Delaware
Corporation")
W I T N E S S E T H :
WHEREAS, the Illinois Corporation was incorporated by the filing of a
Certificate of Incorporation in the office of the Secretary of State of the
State of Illinois in December 1978 under the name Automedix Sciences, Inc., and
subsequently changed its name to COMC, Inc.;
WHEREAS, the Illinois Corporation is authorized to issue a total of
40,000,000 shares of Common Stock and the total number of shares that are issued
and outstanding is 20,957,741 and 17,392,754, respectively, shares of Common
Stock;
WHEREAS, the Delaware corporation was incorporated on May 7, 1997,
under the provisions of the General corporation Law of the State of Delaware;
its registered office in Delaware is in the City of Dover, County of Kent; the
total number of shares which it is authorized to issue is 40,000,000 Common
Stock, par value $.01 per share and 10,000,000 shares of Preferred Stock;
WHEREAS, the laws of the State of Delaware and the State of Illinois
permit the merger of said corporations (herein sometimes called the "constituent
corporations") into a single corporation; and,
WHEREAS, it is deemed advisable by the Board of Directors of each of
the constituent corporations that the Illinois Corporation merger into the
Delaware Corporation.
NOW, THEREFORE, it is agreed as follows:
1. As of the Effective Date, the Illinois corporation shall be and
hereby is merged pursuant to Section 252 of the General Corporation Law of the
State of Delaware into the Delaware corporation. The Delaware Corporation shall
be the surviving corporation and it shall continue and shall be deemed to
continue for all purposes whatsoever after the merger of the Illinois
Corporation with and into the Delaware Corporation. For convenience, the
Delaware Corporation, as it shall exist after such merger, is hereinafter
referred to as the "Surviving Corporation."
2. The Merger shall become effective when this Agreement has been
adopted by the Illinois Corporation and by the Delaware Corporation and
appropriate documentation has been prepared and filed in accordance with the
laws of the States of Illinois and Delaware. For operational, accounting and
bookkeeping purposes, the time when the Merger shall become effective is
<PAGE>
referred to herein as the "Effective Date" and shall be the date fixed in
accordance with the laws of and the documentation filed with the state of
incorporation of the Surviving Corporation.
3. After the Effective Date, the Surviving Corporation shall be
governed by the laws of the State of Delaware and its name shall continue to be
COMC, Inc. The present Certificate of Incorporation of the Delaware Corporation
shall continue to be the Certificate of Incorporation of the Surviving
Corporation. The present Bylaws of the Delaware Corporation shall be and remain
the Bylaws of the Surviving Corporation and the existing Bylaws of the Illinois
Corporation shall no longer be in effect. The directors and officers of the
Delaware Corporation immediately prior to the Effective Date shall continue to
be the directors and officers of the Surviving Corporation upon the Effective
Date.
4. The 17,392,754 shares of stock of Illinois Corporation which are
outstanding immediately prior to the Effective Date shall be canceled as of the
Effective Date. Each share of Common Stock of the Illinois Corporation shall be
converted into one share of Common Stock of the Surviving Corporation as of the
Effective Date.
5. Upon the Effective Date, the outstanding certificates for shares
of the Illinois Corporation's Common Stock will, until replaced by the Surviving
Corporation, represent the same number of shares of Common Stock of the
Surviving Corporation.
6. This Agreement may be terminated and abandoned by action of the
Board of Directors of the Illinois Corporation or the Delaware Corporation at
any time prior to the Effective Date, for any reason whatsoever.
7. Upon the Effective Date the rights, capacity, privileges, powers,
franchises and authority of each of the constituent corporations, and all
property real, personal and mixed, and all debts, obligations and liabilities,
due to each of the constituent corporations on whatever account as well as for
subscriptions for shares as for all other things, belonging to each of the
constituent corporations shall be vested in the Surviving Corporation; and all
such property, rights, capacity, privileges, powers, franchises, authority and
immunities and all and every other interest shall be thereafter as fully and
effectually the property of the Surviving Corporation as though they were the
property of the several and respective constituent corporations, and shall not
revert or be in any way impaired by reason of the merger; provided however, that
all rights of the creditors of the constituent corporations shall be preserved
unimpaired and all debts, liabilities (including liability, if any, to
dissenting shareholders) and duties of the respective constituent corporations
shall thenceforth be attached to the Surviving Corporation and may be enforced
<PAGE>
against it to the same extent as if said debts, liabilities and duties had been
incurred or contracted by the Surviving Corporation.
8. The Illinois Corporation agrees that from time to time as when it
shall be requested by the Surviving Corporation or by its successors or assigns,
it will execute and deliver or cause to be executed and delivered all such other
instruments and will take or cause to be taken such further or other action as
the Surviving Corporation may deem necessary or desirable in order to vest in
and to confirm to the Surviving Corporation title to all of the property,
capacity, privileges, powers, franchises, authority, and immunities of the
Illinois Corporation and otherwise to carry out the intent and purposes of the
Agreement.
9. The Surviving Corporation agrees that it may be served with
process in the State of Delaware or in the State of Illinois, in any proceeding
for enforcement of any obligation of the Illinois Corporation as well as for
enforcement of any obligation of the Surviving Corporation arising from the
merger, including any suit or other proceeding to enforce the right of any
stockholder as determined in any appraisal proceeding pursuant the Illinois
Business Corporation Act and shall irrevocably appoint the Secretary of State of
the State of Delaware as its agent in Delaware and the Secretary of State of the
State of Illinois as its agent in Illinois to accept service of process in any
such suit or other proceeding. The address to which a copy of such process shall
be mailed by the Secretary of State of the State of Delaware shall be c/o United
Corporate Services, Inc., 15 East North Street, Dover, Delaware 19901, and by
the Secretary of State of the State of Illinois shall be c/o United Corporate
Services, Inc.
IN WITNESS WHEREOF, we have signed this Agreement this ___ day of
________, 2000.
COMC, Inc., an Illinois corporation
By:
-------------------------------
Name:
--------------------------------
Title:
--------------------------------
COMC, Inc., a Delaware corporation
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
<PAGE>
Attachment B
------------
CERTIFICATE OF INCORPORATION
OF
COMC, INC.
FIRST: The name of the Corporation is COMC, Inc., a corporation
formed in accordance with the General Corporation Law of Delaware.
SECOND: The address of the Corporation's registered office in the
State of Delaware is 15 East North Street, Dover, Delaware 19901. The registered
agent at such address shall be United Corporate Services, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: (a) The aggregate number of shares which the Corporation
shall have the authority to issue is 50,000,000, which are divided into
40,000,000 shares of Common Stock of par value of $.01 per share and 10,000,000
shares of Preferred Stock of a par value of $.01 per share.
(b) PREFERRED STOCK. (1) Shares of Preferred Stock may be issued from
time to time in one or more series as may from time to time be determined by the
Board of Directors, each of said series to be distinctly designated. All shares
of any one series of Preferred Stock shall be alike in every particular, except
that there may be different dates from which dividends, if any, thereon shall be
cumulative, if made cumulative. The voting powers and the preferences and
relative, participating, optional and other special rights of each such series,
and the qualifications, limitations or restrictions thereof, if any, may differ
from those of any and all other series at any time outstanding; and the Board of
Directors of the Corporation is hereby expressly granted authority to fix by
resolution or resolutions adopted prior to the issuance of any shares of a
particular series of Preferred Stock, the voting powers and the designation,
preferences and relative, optional and other special rights, and the
qualifications, limitations and restrictions of such series, including, but
without limiting the generality of the foregoing, the following:
(A) The distinctive designation of, and the
number of shares of Preferred Stock which shall constitute
such series, which number may be increased (except where
otherwise provided by the Board of Directors) or decreased
(but not below the number of shares thereof then
outstanding) from time to time by like action of the Board
of Directors;
(B) The rate and times at which, and the terms
and conditions on which, dividends, if any, on Preferred
Stock of such series shall be paid, the extent of the
preference or relations, if any, of such dividends to the
dividends payable on any other class or classes, or series
of the same or other classes of stock of the Corporation
and the terms and conditions of such conversion or
exchange;
<PAGE>
(C) The right, if any, of the holders of
Preferred Stock of such series to convert the same into or
exchange the same for, shares of any other class or classes
or of any series of the same or any other class or classes
of stock of the Corporation and the terms and conditions of
such conversion or exchange;
(D) Whether or not Preferred Stock of such series
shall be subject to redemption, and the redemption price or
prices and the prices and the time or times at which, and
the terms and conditions on which, Preferred Stock of such
series may be redeemed;
(E) The rights, if any, of the holders of
Preferred Stock of such series upon the voluntary or
involuntary liquidation, merger, consolidation,
distribution or sale of assets, dissolution or winding-up,
of the Corporation;
(F) The terms of the sinking fund or redemption
or purchase account, if any, to be provided for the
Preferred Stock of such series; and
(G) The voting powers, if any, of the holders of
such series of Preferred Stock which may, without limiting
the generality of the foregoing, include the right, voting
as a series or by itself or together with other series of
Preferred Stock or all series of Preferred Stock as a
class, to elect one or more directors of the Corporation if
there shall have been a default in the payment of dividends
on any one or more series of Preferred Stock or under such
other circumstances and on such conditions as the Board of
Directors may determine.
(2) The relative powers, preferences and rights of each series of
Preferred Stock in relation to the powers, preferences and rights of each other
series of Preferred Stock shall, in each case, be as fixed from time to time by
the Board of Directors in the resolution or resolutions adopted pursuant to
authority granted in paragraph (b)(1) of this Paragraph FOURTH, and the consent,
by class or series vote or otherwise, of the holders of such of the series of
Preferred Stock as are from time to time outstanding shall not be required for
the issuance by the Board of Directors of any other series of Preferred Stock
whether or not the powers, preferences and rights of such other series shall be
fixed by the Board of Directors as senior to, or on a parity with, the powers,
preferences and rights of such outstanding series, or any of them; provided,
however, that the Board of Directors may provide in the resolution or
resolutions as to any series of Preferred Stock adopted pursuant to paragraph
(b)(1) of this Paragraph FOURTH that the consent of the holders of a majority
(or such greater proportion as shall be therein fixed) of the outstanding shares
of such series voting therein shall be required for the issuance of any or all
other series of Preferred Stock.
(3) Subject to the provisions of subparagraph 2 of this paragraph
(b), shares of Common Stock or any series of Preferred Stock may be issued from
time to time as the Board of Directors of the Corporation shall determine and on
such terms and for such consideration as shall be fixed by the Board of
Directors.
<PAGE>
(4) The authorized amount of shares of Common Stock and of Preferred
Stock may, without a class or series vote, be increased or decreased from time
to time by the affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon. The total number of shares of stock which
the corporation shall have authority to issue is 2,000,000 shares, par value
$.01 per share.
FIFTH: The name and mailing address of the incorporator are as
follows:
Louis A. Brilleman
292 Madison Avenue
New York, NY 10017
SIXTH: The original Bylaws of the Corporation shall be adopted by the
incorporator. Thereafter, the power to make, alter or repeal Bylaws shall be in
the Directors of the Corporation.
SEVENTH: The business and affairs of the corporation shall be managed
and directed by a Board of Directors, which may be comprised of a single
director, the number of directors to be fixed by the Bylaws. A director, or
former director, shall not be liable to the corporation or to any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that this provision shall not eliminate or limit the liability of a
director: (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii) under
sec.174 of the General Corporation Law of the State of Delaware, pertaining to
the liability of directors for unlawful payment of dividends or unlawful stock
purchase or redemption; or (iv) for any transaction from which the director
derived an improper personal benefit.
IN WITNESS WHEREOF, the undersigned hereby executes this document and
affirms that the facts set forth herein are true under the penalties of perjury
this 7th day of May 1997.
/s/
------------------------------------
Louis A. Brilleman, Incorporator
<PAGE>
Attachment C
------------
BYLAWS
OF
COMC, INC.
-----------------------------
(a Delaware corporation)
<PAGE>
BYLAWS
OF
COMC, INC.
Section 1. Offices.
1.1 Registered Office. The registered office shall be in the City of
Dover, County of Kent, State of Delaware.
1.2 Other Offices. The corporation may also have offices at such
other places both within and without the State of Delaware as the board of
directors may from time to time determine or the business of the corporation may
require.
Section 2. Meetings of Stockholders.
2.1 Place and Time of Meetings. All meetings of the stockholders for
the election of directors shall be held at the principal office for the
transaction of business, or at such place as may be fixed from time to time by
the board of directors, or at such other place either within or without the
State of Delaware as shall be designated from time to time by the board of
directors and stated in the notice of the meeting. Meetings of stockholders for
any other purpose may be held at such time and place, within or without the
State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
2.2 Annual Meeting. Annual meetings of stockholders shall be held on
June 15th of each year if not a legal holiday, and if a legal holiday, then on
the next secular day following, or at such other date and time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect by a plurality vote a board of
directors, and transact such other business as may properly be brought before
the meeting.
2.3 Notice of Annual Meeting. Written notice of the annual meeting
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more
than sixty (60) days before the date of the meeting.
2.4 Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the president and shall be called
by the president or secretary at the request in writing of a majority of the
board of directors, or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
2.5 Notice of Special Meetings. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be given not less than ten (10) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to
vote at such meeting.
<PAGE>
2.6 Conduct of Business. Business transacted at any special meeting
of stockholders shall be limited to the purposes stated in the notice.
2.7 Stockholders List. The officer who has charge of the stock ledger
of the corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
2.8 Quorum. The holders of stock issued and outstanding representing
a majority of the total votes represented by all of the issued and outstanding
stock entitled to vote at the meeting, present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by statute or by the certificate of incorporation.
2.9 Adjournments. If a quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote at the
meeting, present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
2.10 Voting and Proxies. Unless otherwise provided in the certificate
of incorporation each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder and a proportionate vote for each
fractional share so held. Each stockholder of record entitled to vote at a
meeting of stockholders, or to express consent or dissent to corporate action in
writing without a meeting, may vote or express such consent or dissent in person
or may authorize another person or persons to vote or act for him or her by
written proxy executed by the stockholder or his or her authorized agent and
delivered to the secretary of the corporation. No such proxy shall be voted or
acted upon after three (3) year(s) from the date of its execution, unless the
proxy provides for a longer period.
2.11 Action at Meeting. When a quorum is present at any meeting, the
vote of the holders of a majority of the voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
<PAGE>
2.12 Action Without a Meeting. Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual or
special meeting of stockholders of the corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
Section 3. Directors.
3.1 General Powers. The business of the corporation shall be managed
by or under the direction of its board of directors which may exercise all such
powers of the corporation and do all such lawful acts and things as are not by
statute or by the certificate of incorporation or by these bylaws directed or
required to be exercised or done by the stockholders. In the event of a vacancy
in the board of directors, the remaining directors, except as otherwise provided
by statute, may exercise the powers of the full board until the vacancy is
filled.
3.2 Number; Election and Term of Office. The Board of Directors shall
consist of a total of seven directors. Changes to the authorized number of
directors may be set by resolution of the Board of Directors. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 3.3, and each director elected shall hold office until his or her
successor is elected and qualified. Directors need not be stockholders.
3.3 Vacancies. Except as otherwise provided in the certificate of
incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute. Except as otherwise
provided in the certificate of incorporation, if, at the time of filling any
vacancy or any newly created directorship, the directors then in office shall
constitute less than a majority of the whole board (as constituted immediately
prior to any such increase), the Court of Chancery may upon application of any
stockholder or stockholders holding at least ten percent (10%) of the total
number of the shares at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the directors
then in office.
3.4 Resignation. Any director may resign by delivering a written
resignation to the corporation at its principal office or to the chairman of the
board, the president, the secretary or the board of directors. Such resignation
shall be effective upon receipt unless it is specified to be effective at some
other time or upon the happening of some other event.
3.5 Removal. Unless otherwise restricted by the certificate of
incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors, except that the directors elected by the
holders of a particular class or series of stock may be removed without cause
only by vote of the holders of a majority of the outstanding shares of such
class or series.
<PAGE>
3.6 Place of Meetings. The board of directors of the corporation may
hold meetings, both regular and special, either within or without the State of
Delaware.
3.7 First Meeting of Board of Directors. The first meeting of each
newly elected board of directors shall be held at such time and place as shall
be fixed by the vote of the stockholders at the annual meeting and no notice of
such meeting shall be necessary to the newly elected directors in order legally
to constitute the meeting, provided a quorum shall be present. In the event of
the failure of the stockholders to fix the time or place of such first meeting
of the newly elected board of directors, or in the event such meeting is not
held at the time and place so fixed by the stockholders, the meeting may be held
at such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
3.8 Regular Meetings. Regular meetings of the board of directors may
be held without notice at such time and at such place as shall from time to time
be determined by the board; provided, however, that any director who is absent
when such determination is made shall be given notice of the determination.
3.9 Special Meetings. Special meetings of the board of directors may
be held at any time and place, within or without the State of Delaware, and
shall be called by the chairman of the board, president or two or more
directors, unless the board consists of only one director, in which case special
meetings shall be called at the request of the sole director.
3.10 Notice of Special Meetings. Notice of special meetings of the
board of directors shall be given to each director by the president, secretary
or one of the directors calling the meeting. Notice shall be given to each
director at least by forty-eight (48) hours in advance of the meeting. A notice
or waiver of notice of a meeting of the board of directors need not specify the
purposes of the meeting.
3.11 Meetings by Telephone Conference Call. Unless otherwise
restricted by the certificate of incorporation or these bylaws, members of the
board of directors, or any committee designated by the board of directors, may
participate in a meeting of the board of directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
3.12 Quorum and Adjournments. Subject to Section 3.17, at all
meetings of the board a majority of the total number of the whole board of
directors shall constitute a quorum for the transaction of business. In the
event one or more of the directors shall be disqualified to vote at any meeting,
then the required quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than one-third (1/3)
of the number so fixed constitute a quorum. If a quorum shall not be present at
any meeting of the board of directors the directors present may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
3.13 Action at a Meeting. When a quorum is present at any meeting of
the board of directors, the vote of a majority of the directors present shall be
sufficient to take any action, except as may be otherwise specifically provided
by statute or by the certificate of incorporation.
<PAGE>
3.14 Action Without a Meeting. Unless otherwise restricted by the
certificate of incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee.
3.15 Committees. The board of directors may, by resolution passed by
a majority of the whole board, designate one or more committees, each committee
to consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the
board of directors and subject to the provisions of the Delaware General
Corporation law, shall have and may exercise all the powers and authority of the
board of directors in management of the business and affairs of the corporation,
and may authorize the seal of the corporation to be affixed to all papers which
may require it; but no such committee shall have the power or authority in
reference to the following matters: (i) approving or adopting, or recommending
to the stockholders, any action or matter expressly required by the Delaware
General Corporation law to be submitted to the stockholders for approval or (ii)
adopting, amending or repealing any bylaw of the corporation.
3.16 Compensation. Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the board of directors and may be paid
a fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
Section 4. Officers.
4.1 Number and Appointment. The officers of the corporation shall be
chosen by the board of directors and shall be a president, a secretary and a
treasurer. The board of directors may also choose a chairman of the board, a
vice chairman of the board, Chief Financial Officer, one or more
vice-presidents, assistant secretaries and assistant Chief Financial Officers.
Any number of offices may be held by the same person, unless the certificate of
incorporation or these bylaws otherwise provide. The board of directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the board.
4.2 Election and Qualification. The board of directors at its first
meeting after each annual meeting of stockholders shall choose a president, a
secretary and a chief financial officer. No officer need be a stockholder.
4.3 Term of Office. The officers of the corporation shall hold office
until their successors are chosen and qualified. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the board of directors. Any vacancy occurring
in any office of the corporation shall be filled by the board of directors.
<PAGE>
4.4 Resignation and Removal. Any officer may resign by delivering a
written resignation to the corporation at its principal office or to the
president or secretary. Such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of some
other event. Any officer may be removed at any time, with or without cause, by
vote of a majority of the entire number of directors then in office. Except as
the board of directors may otherwise determine, no officer who resigns or is
removed shall have any right to any compensation as an officer for any period
following his or her resignation or removal, or any right to damages on account
of such removal, whether such compensation be by the month or by the year or
otherwise, unless such compensation is expressly provided in a duly authorized
written agreement with the corporation.
4.5 Vacancies. The board of directors may fill any vacancy occurring
in any office for any reason and may, in its discretion, leave unfilled for such
period as it may determine any offices other than those of president, Chief
Financial Officer and secretary. Each such successor shall hold office for the
unexpired term of his or her predecessor and until his or her successor is
elected and qualified, or until his or her earlier death, resignation or
removal.
4.6 Chairman of the Board and Vice-Chairman of the Board. The board
of directors may appoint a chairman of the board and may designate the chairman
of the board as chief executive officer. If the board of directors appoints a
chairman of the board, he or she shall perform such duties and possess such
powers as are assigned to him or her by the board of directors. If the board of
directors appoints a vice-chairman of the board, he or she shall, in the absence
or disability of the chairman of the board, perform the duties and exercise the
powers of the chairman of the board and shall perform such other duties and
possess such other powers as may from time to time be vested in him or her by
the board.
4.7 President. Unless the board of directors has designated the
chairman of the board as chief executive officer, the president shall be the
chief executive officer of the corporation. He or she shall preside at all
meetings of the stockholders and the board of directors, shall have general and
active management of the business of the corporation and shall see that all
orders and resolutions of the board of directors are carried into effect. The
president shall execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or permitted by law to
be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the board of directors to some other
officer or agent of the corporation.
4.8 Vice-President. In the absence of the president or in the event
of his or her inability or refusal to act, the vice-president (or in the event
there be more than one vice-president, the vice-presidents in the order
designated by the directors, or in the absence of any designation, then in the
order of their election) shall perform the duties of the president, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the president. The vice-presidents shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
4.9 Secretary. The secretary shall attend all meetings of the board
of directors and all meetings of the stockholders and record all the proceedings
of the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. The secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the board of directors, and
shall perform such other duties as may be prescribed by the board of directors
or president, under whose supervision he or she shall be. The secretary shall
<PAGE>
have custody of the corporate seal of the corporation and he or she, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his or her signature or
by the signature of such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the corporation and
to attest the affixing by his or her signature.
4.10 Salaries. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. Indemnification of Directors and Officers.
5.1 Right to Indemnification. Each person who was or is made a party
to or witness or other participant in or is threatened to be made a party to or
witness or other participant in or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or other
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans (hereinafter an "agent"), whether the basis of the
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the corporation to provide
broader indemnification rights than said law permitted the corporation to
provide prior to such amendment), against all expenses, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, ERISA excise
taxes or penalties, amounts paid or to be paid in settlement and all interest,
assessments and other charges paid or payable in connection with or in respect
of such expense, liability and loss) (hereinafter collectively "expenses," which
expenses shall also include without limitation any expenses of establishing a
right to indemnification or advancement under this section) reasonably incurred
or suffered by such agent in connection therewith and such indemnification shall
continue as to an agent who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in Section 5.3, the
corporation shall indemnify any such agent seeking indemnification in connection
with a proceeding (or part thereof) initiated by such agent only if such
proceeding (or part thereof) was authorized by the board of directors of the
corporation.
The corporation may, by action of the board of directors, provide
indemnification to employees and agents of the corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
5.2 Right of Advancement. Expenses incurred by or on behalf of any
person in defending any proceeding by reason of the fact that such person is or
<PAGE>
was an agent of the corporation shall be advanced by the corporation prior to
the final disposition of such proceeding; provided, however, that if the
Delaware General Corporation Law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding shall
be made only upon delivery to the corporation of an undertaking by or on behalf
of such director or officer to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this section or otherwise.
5.3 Right of Claimant to Bring Suit. If a claim under either Section
5.1 or Section 5.2 is not paid in full by the corporation within thirty (30)
days after a written claim has been received by the corporation, the claimant
may at any time thereafter bring suit against the corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the corporation. Neither the failure of the
corporation (including the board of directors, independent legal counsel, or the
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the corporation
(including the board of directors, independent legal counsel, or the
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
5.4 Non-Exclusivity of Rights. The indemnification and advancement
provided by this section shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in an official capacity and as to action in another capacity while holding such
office, to the extent such additional rights to indemnification are authorized
in the articles of incorporation. Persons seeking indemnification or advancement
may seek either or both at his or her discretion and the pursuit of one shall
neither be deemed a waiver of such person's rights to pursue the other, nor
shall it have any effect on the outcome of such person's pursuit of the other.
Nothing contained in this section shall affect any right to indemnification to
which persons other than agents may be entitled by contract or otherwise.
Nothing in this section shall restrict the power of the corporation to indemnify
its agents under any provision of the Delaware General Corporation Law, as
amended from time to time, or under any other provision of law from time to time
applicable to the corporation, nor shall anything in this section authorize the
corporation to indemnify its agents in situations prohibited by the Delaware
General Corporation Law or other applicable law.
5.5 Insurance. The corporation may maintain insurance, at its
expense, to protect itself and any person who is or was a director, officer,
employee, agent or fiduciary of the corporation or who is or was serving at the
<PAGE>
request of the corporation as a director, officer, employee, agent or fiduciary
of another corporation or of a partnership, joint venture, trust or other
enterprise against any expenses incurred in a proceeding, whether or not the
corporation would have the power to indemnify such person against such expenses
under the Delaware General Corporation Law.
Section 6. Capital Stock and Dividends.
6.1 Issuance of Stock. Unless otherwise voted by the stockholders and
subject to the provisions of the certificate of incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the board of directors in such manner, for such
consideration and on such terms as the board may determine.
The consideration for which shares will issue may consist of money
paid, labor performed, services actually rendered to the Corporation or for its
benefit or in its formation or reorganization, advances, debts or securities
canceled, and tangible and intangible property actually received by either the
issuing Corporation or by a wholly owned subsidiary, or any one or combination
of these. The full agreed upon price or consideration for shares must be paid
prior to or concurrently with the issuance of the shares unless the shares are
issued in accordance with a stock subscription or purchase agreement in which
case the terms of payment delineated in such stock subscription or purchase
agreement shall be controlling.
6.2 Certificates of Stock. Every holder of stock in the corporation
shall be entitled to have a certificate, signed by, or in the name of the
corporation by, the chairman or vice-chairman of the board of directors, or the
president or a vice-president and the Chief Financial Officer or an assistant
secretary of the corporation, certifying the number of shares owned by him or
her in the corporation.
If the corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in Section 202 of the Delaware General Corporation Law in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Certificates may be issued for partly paid shares and in such case
upon the face or back of the certificates issued to represent any such partly
paid shares, the total amount of the consideration to be paid therefor, and the
amount paid thereon shall be specified.
<PAGE>
6.3 Facsimile Signatures. Any or all of the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
6.4 Lost, Stolen or Destroyed Certificates. The board of directors
may direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
board of directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates or his or her legal representative, to advertise the
same in such manner as it shall require and/or to give the corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
6.5 Reserved.
6.6 Transfer. Once a shareholder wishing to transfer his or her
shares has complied with the restrictions set forth in Section 6.5, or if such
restrictions do not apply, upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
6.7 Fixing Record Date. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
6.8 Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of the State of Delaware.
6.9 Dividends. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting pursuant to
law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
<PAGE>
Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the board
of directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 7. Notices.
7.1 Matters Requiring Notice for Approval. Whenever, under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws notice is required to be given to any director or stockholder, it shall
not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given
orally or in writing, by telephone, including a voice messaging system or other
system or technology designed to record and communicate messages, facsimile,
telegraph or telex, or by electronic mail or other electronic means, or any
other means lawfully permitted under Delaware General Corporation Law, during
normal business hours, at least twenty-four (24) hours before the date and time
of the meeting.
7.2 Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the certificate of incorporation or
of these bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
Section 8. General Provisions.
8.1 Annual Statements. The board of directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
8.2 Checks. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
8.3 Fiscal Year. The fiscal year of this corporation shall commence
on January 1 each year and end on December 31 of that year.
8.4 Securities Owned by Corporation. Except as the board of directors
may otherwise designate, the president or any vice-president may waive notice
of, and act as, or appoint any person or persons to act as, proxy or
attorney-in-fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other corporation or
organization, the securities of which may be held by the corporation.
<PAGE>
8.5 Evidence of Authority. A certificate by the secretary, or an
assistant secretary, as to any action taken by the stockholders, directors, a
committee or any officer or representative of the corporation shall as to all
persons who rely on the certificate in good faith be conclusive evidence of such
action.
8.6 Severability. Any determination that any provision of these
bylaws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these bylaws.
<PAGE>
Section 9. Amendments.
9.1 Amendment of Bylaws. These bylaws may be altered, amended or
repealed or new bylaws may be adopted by the stockholders or by the board of
directors, when such power is conferred upon the board of directors by the
certificate of incorporation, at any regular meeting of the stockholders or of
the board of directors, or at any special meeting of the stockholders or of the
board of directors if notice of such alteration, amendment, repeal or adoption
of new bylaws be contained in the notice of such special meeting. If the power
to adopt, amend or repeal bylaws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal bylaws.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
<PAGE>
CERTIFICATE OF ADOPTION
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned does hereby certify that the undersigned is the
Secretary of COMC, Inc., a corporation duly organized and existing under and by
virtue of the laws of the State of Delaware (the "Corporation"); that the above
and foregoing bylaws of the Corporation were duly and regularly adopted as such
by the board of directors of the Corporation, and that the above and foregoing
bylaws are now in full force and effect.
Dated: November ___, 2000
-------------------------------------------
, Secretary
-------------
<PAGE>
BYLAWS
OF
COMC, INC.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 1. Offices..................................................................................................1
1.1 Registered Office........................................................................................1
1.2 Other Offices............................................................................................1
Section 2. Meetings of Stockholders.................................................................................1
2.1 Place and Time of Meetings...............................................................................1
2.2 Annual Meeting...........................................................................................1
2.3 Notice of Annual Meeting.................................................................................1
2.4 Special Meetings.........................................................................................1
2.5 Notice of Special Meetings...............................................................................1
2.6 Conduct of Business......................................................................................2
2.7 Stockholders List........................................................................................2
2.8 Quorum...................................................................................................2
2.9 Adjournments.............................................................................................2
2.10 Voting and Proxies.......................................................................................2
2.11 Action at Meeting........................................................................................2
2.12 Action Without a Meeting.................................................................................2
Section 3. Directors................................................................................................3
3.1 General Powers...........................................................................................3
3.2 Number; Election and Term of Office......................................................................3
3.3 Vacancies................................................................................................3
3.4 Resignation..............................................................................................3
3.5 Removal..................................................................................................3
3.6 Place of Meetings........................................................................................4
3.7 First Meeting of Board of Directors......................................................................4
3.8 Regular Meetings.........................................................................................4
3.9 Special Meetings.........................................................................................4
3.10 Notice of Special Meetings...............................................................................4
3.11 Meetings by Telephone Conference Call....................................................................4
3.12 Quorum and Adjournments..................................................................................4
3.13 Action at a Meeting......................................................................................4
3.14 Action Without a Meeting.................................................................................5
3.15 Committees...............................................................................................5
3.16 Compensation.............................................................................................5
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 4. Officers.................................................................................................5
4.1 Number and Appointment...................................................................................5
4.2 Election and Qualification...............................................................................5
4.3 Term of Office...........................................................................................5
4.4 Resignation and Removal..................................................................................6
4.5 Vacancies................................................................................................6
4.6 Chairman of the Board and Vice-Chairman of the Board.....................................................6
4.7 President................................................................................................6
4.8 Vice-President...........................................................................................6
4.9 Secretary................................................................................................6
4.10 Salaries.................................................................................................7
Section 5. Indemnification of Directors and Officers................................................................7
5.1 Right to Indemnification.................................................................................7
5.2 Right of Advancement.....................................................................................7
5.3 Right of Claimant to Bring Suit..........................................................................8
5.4 Non-Exclusivity of Rights................................................................................8
5.5 Insurance................................................................................................8
Section 6. Capital Stock and Dividends..............................................................................9
6.1 Issuance of Stock........................................................................................9
6.2 Certificates of Stock....................................................................................9
6.3 Facsimile Signatures....................................................................................10
6.4 Lost, Stolen or Destroyed Certificates..................................................................10
6.5 Restrictions on Transfers of Shares.....................................................................10
6.6 Transfer................................................................................................10
6.7 Fixing Record Date......................................................................................10
6.8 Registered Stockholders.................................................................................10
6.9 Dividends...............................................................................................10
Section 7. Notices.................................................................................................11
7.1 Matters Requiring Notice for Approval...................................................................11
7.2 Waiver of Notice........................................................................................11
Section 8. General Provisions......................................................................................11
8.1 Annual Statements.......................................................................................11
8.2 Checks..................................................................................................11
8.3 Fiscal Year.............................................................................................11
8.4 Securities Owned by Corporation.........................................................................11
8.5 Evidence of Authority...................................................................................12
8.6 Severability............................................................................................12
Section 9. Amendments..............................................................................................13
9.1 Amendment of Bylaws.....................................................................................13
</TABLE>
<PAGE>
Attachment D
------------
Election to Dissent
Attn: Secretary
COMC, Inc.
2840 HOWE ROAD, SUITE D
MARTINEZ, CALIFORNIA 94553-4000
I am the holder of record of ________ shares (the "Shares") of common
stock of COMC, Inc., an Illinois corporation (the "Corporation"). I hereby elect
to dissent from the Reincorporation of the Corporation into Delaware and the
merger of the Corporation into COMC, Inc., a Delaware corporation. Thus, I
demand to be paid in cash the fair value of my Shares.
Executed on ______________, 2000 at _________________________
[signature]
---------------------------------
---------------------------------
[typed name]
[typed name and signature should be exactly
as appearing on stock certificate]
<PAGE>
Attachment E
------------
ILLINOIS RIGHT TO DISSENT
(805 ILCS 5/11.65)
Sec. 11.65. Right to dissent.
(a) A shareholder of a corporation is entitled to dissent from, and
obtain payment for his or her shares in the event of any of the following
corporate actions:
(1) consummation of a plan of merger or consolidation or a
plan of share exchange to which the corporation is a party if (i)
shareholder authorization is required for the merger or consolidation
or the share exchange by Section 11.20 or the articles of
incorporation or (ii) the corporation is a subsidiary that is merged
with its parent or another subsidiary under Section 11.30;
(2) consummation of a sale, lease or exchange of all, or
substantially all, of the property and assets of the corporation
other than in the usual and regular course of business;
(3) an amendment of the articles of incorporation that
materially and adversely affects rights in respect of a dissenter's
shares because it:
(i) alters or abolishes a preferential
right of such shares;
(ii) alters or abolishes a right in respect of
redemption, including a provision respecting a sinking fund
for the redemption or repurchase, of such shares;
(iii) in the case of a corporation incorporated
prior to January 1, 1982, limits or eliminates cumulative
voting rights with respect to such shares; or
(4) any other corporate action taken pursuant to a
shareholder vote if the articles of incorporation, Bylaws, or a
resolution of the board of directors provide that shareholders are
entitled to dissent and obtain payment for their shares in accordance
with the procedures set forth in Section 11.70 or as may be otherwise
provided in the articles, Bylaws or resolution.
(b) A shareholder entitled to dissent and obtain payment for his or
her shares under this Section may not challenge the corporate action creating
his or her entitlement unless the action is fraudulent with respect to the
shareholder or the corporation or constitutes a breach of a fiduciary duty owed
to the shareholder.
<PAGE>
(c) A record owner of shares may assert dissenters' rights as to
fewer than all the shares recorded in such person's name only if such person
dissents with respect to all shares beneficially owned by any one person and
notifies the corporation in writing of the name and address of each person on
whose behalf the record owner asserts dissenters' rights. The rights of a
partial dissenter are determined as if the shares as to which dissent is made
and the other shares were recorded in the names of different shareholders. A
beneficial owner of shares who is not the record owner may assert dissenters'
rights as to shares held on such person's behalf only if the beneficial owner
submits to the corporation the record owner's written consent to the dissent
before or at the same time the beneficial owner asserts dissenters' rights.
(Source: P.A. 85-1269.) (805 ILCS 5/11.70)
Sec. 11.70. Procedure to Dissent.
(a) If the corporate action giving rise to the right to dissent is to
be approved at a meeting of shareholders, the notice of meeting shall inform the
shareholders of their right to dissent and the procedure to dissent. If, prior
to the meeting, the corporation furnishes to the shareholders material
information with respect to the transaction that will objectively enable a
shareholder to vote on the transaction and to determine whether or not to
exercise dissenters' rights, a shareholder may assert dissenters' rights only if
the shareholder delivers to the corporation before the vote is taken a written
demand for payment for his or her shares if the proposed action is consummated,
and the shareholder does not vote in favor of the proposed action.
(b) If the corporate action giving rise to the right to dissent is
not to be approved at a meeting of shareholders, the notice to shareholders
describing the action taken under Section 11.30 or Section 7.10 shall inform the
shareholders of their right to dissent and the procedure to dissent. If, prior
to or concurrently with the notice, the corporation furnishes to the
shareholders material information with respect to the transaction that will
objectively enable a shareholder to determine whether or not to exercise
dissenters' rights, a shareholder may assert dissenter's rights only if he or
she delivers to the corporation within 30 days from the date of mailing the
notice a written demand for payment for his or her shares.
(c) Within 10 days after the date on which the corporate action
giving rise to the right to dissent is effective or 30 days after the
shareholder delivers to the corporation the written demand for payment,
whichever is later, the corporation shall send each shareholder who has
delivered a written demand for payment a statement setting forth the opinion of
the corporation as to the estimated fair value of the shares, the corporation's
latest balance sheet as of the end of a fiscal year ending not earlier than 16
months before the delivery of the statement, together with the statement of
income for that year and the latest available interim financial statements, and
either a commitment to pay for the shares of the dissenting shareholder at the
estimated fair value thereof upon transmittal to the corporation of the
certificate or certificates, or other evidence of ownership, with respect to the
shares, or instructions to the dissenting shareholder to sell his or her shares
within 10 days after delivery of the corporation's statement to the shareholder.
The corporation may instruct the shareholder to sell only if there is a public
market for the shares at which the shares may be readily sold. If the
<PAGE>
shareholder does not sell within that 10 day period after being so instructed by
the corporation, for purposes of this Section the shareholder shall be deemed to
have sold his or her shares at the average closing price of the shares, if
listed on a national exchange, or the average of the bid and asked price with
respect to the shares quoted by a principal market maker, if not listed on a
national exchange, during that 10 day period.
(d) A shareholder who makes written demand for payment under this
Section retains all other rights of a shareholder until those rights are
cancelled or modified by the consummation of the proposed corporate action. Upon
consummation of that action, the corporation shall pay to each dissenter who
transmits to the corporation the certificate or other evidence of ownership of
the shares the amount the corporation estimates to be the fair value of the
shares, plus accrued interest, accompanied by a written explanation of how the
interest was calculated.
(e) If the shareholder does not agree with the opinion of the
corporation as to the estimated fair value of the shares or the amount of
interest due, the shareholder, within 30 days from the delivery of the
corporation's statement of value, shall notify the corporation in writing of the
shareholder's estimated fair value and amount of interest due and demand payment
for the difference between the shareholder's estimate of fair value and interest
due and the amount of the payment by the corporation or the proceeds of sale by
the shareholder, whichever is applicable because of the procedure for which the
corporation opted pursuant to subsection (c).
(f) If, within 60 days from delivery to the corporation of the
shareholder notification of estimate of fair value of the shares and interest
due, the corporation and the dissenting shareholder have not agreed in writing
upon the fair value of the shares and interest due, the corporation shall either
pay the difference in value demanded by the shareholder, with interest, or file
a petition in the circuit court of the county in which either the registered
office or the principal office of the corporation is located, requesting the
court to determine the fair value of the shares and interest due. The
corporation shall make all dissenters, whether or not residents of this State,
whose demands remain unsettled parties to the proceeding as an action against
their shares and all parties shall be served with a copy of the petition.
Nonresidents may be served by registered or certified mail or by publication as
provided by law. Failure of the corporation to commence an action pursuant to
this Section shall not limit or affect the right of the dissenting shareholders
to otherwise commence an action as permitted by law.
(g) The jurisdiction of the court in which the proceeding is
commenced under subsection (f) by a corporation is plenary and exclusive. The
court may appoint one or more persons as appraisers to receive evidence and
recommend decision on the question of fair value. The appraisers have the power
described in the order appointing them, or in any amendment to it.
(h) Each dissenter made a party to the proceeding is entitled to
judgment for the amount, if any, by which the court finds that the fair value of
his or her shares, plus interest, exceeds the amount paid by the corporation or
the proceeds of sale by the shareholder, whichever amount is applicable.
<PAGE>
(i) The court, in a proceeding commenced under subsection (f), shall
determine all costs of the proceeding, including the reasonable compensation and
expenses of the appraisers, if any, appointed by the court under subsection (g),
but shall exclude the fees and expenses of counsel and experts for the
respective parties. If the fair value of the shares as determined by the court
materially exceeds the amount which the corporation estimated to be the fair
value of the shares or if no estimate was made in accordance with subsection
(c), then all or any part of the costs may be assessed against the corporation.
If the amount which any dissenter estimated to be the fair value of the shares
materially exceeds the fair value of the shares as determined by the court, then
all or any part of the costs may be assessed against that dissenter. The court
may also assess the fees and expenses of counsel and experts for the respective
parties, in amounts the court finds equitable, as follows:
(1) Against the corporation and in favor of any or all
dissenters if the court finds that the corporation did not
substantially comply with the requirements of subsections (a), (b),
(c), (d), or (f).
(2) Against either the corporation or a dissenter and in
favor of any other party if the court finds that the party against
whom the fees and expenses are assessed acted arbitrarily,
vexatiously, or not in good faith with respect to the rights provided
by this Section.
If the court finds that the services of counsel for any dissenter were of
substantial benefit to other dissenters similarly situated and that the fees for
those services should not be assessed against the corporation, the court may
award to that counsel reasonable fees to be paid out of the amounts awarded to
the dissenters who are benefited. Except as otherwise provided in this Section,
the practice, procedure, judgment and costs shall be governed by the Code of
Civil Procedure.
(j) As used in this Section:
(1) "Fair value", with respect to a dissenter's shares,
means the value of the shares immediately before the consummation of
the corporate action to which the dissenter objects excluding any
appreciation or depreciation in anticipation of the corporate action,
unless exclusion would be inequitable.
(2) "Interest" means interest from the effective date of
the corporate action until the date of payment, at the average rate
currently paid by the corporation on its principal bank loans or, if
none, at a rate that is fair and equitable under all the
circumstances.
(Source: P.A. 86-1156.)
<PAGE>
Attachment F
------------
COMC, INC.
1999 STOCK OPTION PLAN
1. Purpose. This COMC, Inc. 1999 Stock Option Plan (the "Plan") is
established to create additional incentives for certain valued employees,
directors, consultants and advisors of COMC, Inc. (the "Company") and to promote
the financial success and progress of the Company. It is intended that (i)
options which qualify as incentive stock options ("Incentive Options") under
Section 422 of the Internal Revenue Code of 1986 as amended or superseded, and
(ii) options which are nonincentive stock options ("Nonincentive Options") may
be granted under this Plan.
2. Effective Date and Term of the Plan.
-----------------------------------
a. This Plan shall become effective on the date of its adoption by
the Board of Directors of the Company (the "Board"), provided the Plan is
approved by the shareholders of the Company within twelve months before or after
that date. If the Plan is not so approved by the shareholders of the Company,
all options granted under this Plan shall be rescinded and shall be void.
b. This Plan shall terminate upon the earlier of (i) ten (10) years
from the date the Plan is adopted by the Board or approved by the shareholders,
whichever is earlier, or (ii) the date on which all shares available for
issuance under this Plan shall have been issued pursuant to the exercise of
options granted hereunder, or (iii) by action of the Board pursuant to Section
16 hereof. All options outstanding on the date of termination of this Plan shall
continue in force and effect in accordance with the provisions of the agreements
evidencing such options, and shall continue to include by reference all of the
relevant provisions of this Plan notwithstanding such termination.
3. Certain Definitions. Unless the context otherwise requires, the
following defined terms (and all other capitalized terms defined in this Plan)
shall govern the construction of this Plan, and any stock option agreements
entered into pursuant to this Plan:
a. "Code" means the Internal Revenue Code of 1986 as amended or
superseded.
b. "Common stock" shall mean the Common Stock of the Company, no par
value.
c. "Corporate Group" means the Company and any successor thereof, any
and all parent corporations of the Company, and any and all subsidiary
corporations of the Company as of the relevant date of determination. For these
purposes "parent corporation" and "subsidiary corporation" shall be as defined
in Sections 424(e) and 424(f) of the Code.
<PAGE>
d. "Permanent and total disability" shall have the same meaning as
defined in Section 22(e)(3) of the Code.
e. Except as otherwise expressly provided herein, "fair market value"
means:
(i) If the common stock of the Company is not then traded
on a Public Market (as hereinafter defined), then the "fair market
value" of the shares of such common stock of the Company shall be as
determined by the Board in good faith based upon the then current
value of the stock in terms of present earnings and future prospects
of the Company as of the relevant date, or pursuant to such other or
additional standards as required by applicable law; or
(ii) If the common stock of the Company is then traded
on a Public Market, then the "fair market value" of the shares of
such common stock of the Company shall be the closing price of such
stock on the principal exchange or securities market on which such
stock is then listed or admitted to trading on the last trading day
immediately prior to the relevant date, as reported by the Wall
Street Journal or such other source as the Board deems reliable. If
there are no reported sales of such stock of the Company on such
principal exchange or securities market on said date, then the
closing price for such stock on such exchange or market on the next
preceding trading day for which quotations do exist shall be
determinative of fair market value, as reported by the Wall Street
Journal or such other source as the Board deems reliable.
(iii) If the common stock of the Company is quoted on
the NASDAQ System (but not on the National Market System or Small Cap
System thereof), then the "fair market value" of the shares of such
common stock of the Company shall be either the selling price for
such stock or the mean of the closing bid and asked prices for such
stock on the last trading day immediately prior to the relevant date,
as reported by the Wall Street Journal or such other source as the
Board deems reliable and as determined by the Board; provided however
that the Board may use other good faith methods to determine "fair
market value" of the common stock in the event that the Board
determines that such selling price or such bid and asked prices are
not a reliable indicator of fair market value due to low or sporadic
volume trading or other relevant factors.
f. "For cause" means (i) conviction of a crime involving moral
turpitude or any felony; (ii) the repeated failure to perform or material
neglect or incompetence in the performance of the regular duties of the Optionee
as an employee of the Company or other member of the Corporate Group; (iii)
knowing participation in any fraud or other material act of malfeasance related
to the business of the Company or other member of the Corporate Group; or (iv)
the imparting, disclosure or use of any confidential information in material
violation of any then applicable employment agreement or nondisclosure agreement
to which the Company or other member of the Corporate Group is a party; except
as otherwise provided by the terms of the relevant Option Agreement. Nothing in
this Plan is intended to change the nature of the at-will employment of an
Optionee with the Company or other member of the Corporate Group.
<PAGE>
g. "Option" collectively means an Incentive Option or a Nonincentive
Option granted to an Optionee hereunder pursuant to an Option Agreement.
h. "Option Agreement" means the written agreement between the Company
and an Optionee granting an Option hereunder. i. "Option Price" with respect to
any particular Option means the exercise price at which the Optionee may acquire
each share of the Option Shares under such Option.
j. "Option Shares" mean the shares of the common stock of the Company
issued or issuable by the Company pursuant to the exercise of an Option granted
hereunder; all stock or securities received in replacement of the Option Shares
in connection with a recapitalization, reorganization, merger or other
transaction subject to Section 5(b) hereof; all stock or other securities
received as stock dividends or as a result of any stock splits; and all new,
substituted or additional stock or other securities to which an Optionee may be
entitled by reason of the exercise of an Option or the ownership of the Option
Shares.
k. "Optionee" means the eligible person to whom an Option is granted
hereunder, and any permissible transferee thereof pursuant to Section 6(e) of
this Plan. Any permissible transferee shall be bound by all of the terms and
conditions and obligations of this Plan and the relevant Option Agreement.
l. "Public Market" means a market where the common stock of the
Company (i) is listed on a national securities exchange (as that term is used in
the Securities Exchange Act of 1934) or (ii) is traded on the over-the-counter
market and prices are published daily on business days in a recognized national
financial journal.
m. "Ten Percent Shareholder" means a person who owns, either directly
or indirectly by virtue of the ownership attribution provisions set forth in
Section 424(d) of the Code, at the time such person is granted an Option, stock
possessing more than ten percent (10%) of the total combined voting power or
value of all classes of stock of the Company or of its parent or subsidiary
corporation or corporations.
4. Eligibility. The persons who shall be eligible to be granted
Options pursuant to this Plan shall be the employees, officers, directors,
consultants and/or advisors of the Company or any parent or subsidiary
corporation of the Company, as the Board shall select from time to time in its
sole discretion.
5. Shares Subject to Plan.
----------------------
a. The stock issuable under this Plan shall be shares of the
authorized but unissued or reacquired common stock of the Company. The aggregate
number of shares of common stock which may be issued under this Plan shall be
One Million (1,000,000) shares, subject to adjustment as provided in Section
5(b) hereof. In the event that any outstanding Option for any reason expires or
is terminated or cancelled in whole or in part, the Option Shares allocable to
any unexercised portion of such Option shall be available for subsequent grants
hereunder.
<PAGE>
b. In the event the Company shall change the outstanding shares of
its common stock into a different number or class of shares by means of any
merger, consolidation, recapitalization, reorganization, reclassification, stock
split, reverse stock split, stock dividend, combination, exchange, or other
comparable change in the corporate structure of the Company effected without
receipt of consideration, then the Board shall make appropriate adjustments to
the number and/or class of Option Shares and the Option Price per share of the
stock subject to each outstanding and unexercised Option and with regard to the
maximum number and/or class of shares of common stock of the Company issuable
under this Plan, in order to prevent the dilution of benefits provided under
such Options and this Plan. For these purposes (i) changes occurring on account
of the issuance of shares of stock by the Company at any time upon the exercise
of any stock options, rights or warrants or upon the conversion of any
convertible securities or debt or other issuance of stock by the Company in a
private or public offering for consideration shall not require any adjustment in
the number or class of shares or the Option Price, and (ii) in the case of
Incentive Options, any and all adjustments provided for hereunder shall fully
comply with Sections 422 and 424 of the Code.
c. Neither the grant of an Option nor any other provision hereof
shall in any way affect the right of the Company to adjust, reclassify,
restructure, reorganize or otherwise change its capital or business structure or
to merge, consolidate, dissolve, liquidate or sell or transfer or otherwise
dispose of all or any part of its stock, business or assets at any time.
6. Grant of Options; Option Agreements. Each Option granted pursuant
to this Plan shall be authorized by the action of the Board and shall be
evidenced by an Option Agreement between the Company and the person to whom such
Option is granted, in the form and substance satisfactory to the Board from time
to time and consistent with and pursuant to this Plan. Without limiting the
foregoing, each Option Agreement shall be deemed to include and incorporate by
reference each and all of the following terms and conditions:
a. Grant Date. The date stated in the Option Agreement as the grant
date of the Option shall be the "Grant Date" of the Option for all purposes
hereof. Notwithstanding the foregoing, an Option shall not be effective and
legally enforceable hereunder until the completed execution and delivery of the
written Option Agreement by the Optionee and a duly authorized officer of the
Company.
b. Term of Option. The Board shall have the power to set the time or
times within which each Option shall be exercisable or the event or events upon
the occurrence of which all or a portion of each Option shall be exercisable and
the term of each Option; provided however that no Option shall be exercisable
after the expiration of ten (10) years from the date such Option is granted; or
in the case of a Ten Percent Shareholder, after the expiration of five (5) years
from the date such Option is granted.
c. Right to Exercise; Vesting. The right to exercise an Option shall
vest at the rate of at least twenty percent (20%) per year over five (5) years
from the Grant Date of the Option in all events, subject to reasonable
conditions such as the continued employment of the Optionee and specifically
subject to Section 6(h) of this Plan. Except as otherwise expressly provided in
the relevant Option Agreement and subject to the expiration or earlier
termination of the Option, the vesting period of the Option shall be for a
period of four (4) years as follows:
<PAGE>
(i) The Optionee shall have no right to exercise
any part of the Option at any time prior to the expiration of the one
(1) year from the Grant Date of the Option;
(ii) The Option shall become exercisable with respect
to Twenty-Five Percent (25%) of the Option Shares upon the expiration
of one (1) year from the Grant Date of the Option; and
(iii) The Option thereafter shall become exercisable
with respect to an additional One Forty-Eighth (1/48) of the Option
Shares for each month following the expiration of one (1) year from
the Grant Date of the Option.
Exercisable installments may be exercised by the Optionee in whole or in part
and to the extent not exercised shall accumulate and be exercisable as provided.
The Company shall not be required to issue fractional shares at any time; and
any fractional shares remaining in an Option following any exercise thereof
shall be rounded down to the next nearest whole number of Shares.
d. Option Price. The Option Price for each Option shall be as
determined in the sole discretion of the Board from time to time; provided
however that:
(i) The Option Price for Incentive Options shall be
not less than 100 percent of the fair market value of the Option
Shares on the Grant Date of the Option; except that the Option Price
for Incentive Options of a Ten Percent Shareholder shall not be less
than 110 percent of the fair market value of the Option Shares on the
Grant Date of the Option.
(ii) The Option Price for Nonincentive Options shall be
not less than 85 percent of the fair market value of the Option
Shares on the Grant Date of the Option; except that the Option Price
for Nonincentive Options of a Ten Percent Shareholder shall not be
less than 110 percent of the fair market value of the Option Shares
on the Grant Date of the Option.
e. Non-Transferability. No Option shall be transferable or assignable
by the Optionee other than by will or the laws of descent and distribution, and
an Option may be exercised during the lifetime of the Optionee solely by the
Optionee. Subject to the foregoing, all transfers or assignments or attempted
transfers or assignments of any Option or Option Agreement shall be void ab
initio.
f. Exercise of the Option. Except as otherwise provided in the
relevant Option Agreement, in order to exercise an Option with respect to all or
any part of the Option Shares for which an Option is then exercisable, Optionee
(or the executor, administrator, heir or devisee of Optionee after the death of
Optionee) must do the following:
(i) Provide the Secretary of the Company with written
notice of such exercise, specifying the number of Option Shares for
which the Option is being exercised;
<PAGE>
(ii) Pay the Option Price for the Option Shares being
purchased in one or more of the following forms: (1) full payment in
cash or check of the Option Price in United States Dollars for the
Option Shares being purchased; (2) in the event the common stock of
the Company is then traded on a Public Market, full payment in shares
of common stock of the Company having a fair market value on the
Exercise Date equal to the Option Price for the Option Shares being
purchased, and held for such period required for purposes of Section
16(b) of the Securities Exchange Act of 1934 to the extent
applicable; or (3) in the event the common stock of the Company is
then traded on a Public Market, full payment by a combination of such
shares of common stock of the Company valued at fair market value on
the Exercise Date and cash or check payable to the order of the
Company, equal in the aggregate to the Option Price for the Option
Shares being purchased; and
(iii) Furnish to the Company appropriate documentation
that the person or persons exercising the Option, if other than
Optionee, have the right to exercise such Option. For these purposes,
the "Exercise Date" of the Option shall be the date on which the
Secretary of the Company receives written notice of the exercise of
such Option, together with full payment of the Option Price for the
Option Shares being purchased. In the event the Board determines in
its sole discretion for any reason that shares of common stock of the
Company cannot be reasonably valued at fair market value as of the
Exercise Date notwithstanding their trading on a Public Market as
herein defined, then full payment of the Option Price for the Option
Shares shall be made only in cash or check payable to the order of
the Company. The certificate or certificates for the Option Shares
shall be registered in the name of Optionee, or if applicable, in the
name of the estate, heirs or devisees of Optionee.
g. Tax Withholding. At the time an Option is exercised in whole or in
part, or at any time thereafter as requested by the Company, the Optionee shall
authorize payroll withholding and otherwise shall agree to make adequate
payments to the Company for all federal, state and other jurisdiction tax
withholding obligations of the Company or any parent or subsidiary thereof which
may arise in connection with the Option, if any, including without limitation
obligations arising upon (i) the grant of such Option, (ii) the exercise of such
Option in whole or in part, (iii) the transfer of any Option Shares or other
property or consideration of any kind in connection with the exercise of such
Option, (iv) the operation of any law or regulations providing for the
imputation of interest or any other income or payment, or (v) the lapsing of any
restriction with respect to any Option Shares.
h. Earlier Termination of Option Term. An Option shall terminate
prior to the expiration date of the Option as follows:
(i) Termination For Cause. If the Company terminates
the employment of an Optionee for cause, then the Option shall
terminate and cease to be exercisable upon the earlier of (1) the
termination of the employment of the Optionee or (2) the expiration
date of the Option. No additional right to exercise the Option with
respect to any Option Shares shall vest from and after the date the
employment of the Optionee is terminated.
<PAGE>
(ii) Voluntary Termination. If the Optionee
voluntarily terminates his or her employment with the Company, then
the Option shall terminate and cease to be exercisable upon the
earlier of (1) the expiration of thirty (30) days from the date the
employment of the Optionee is terminated or (2) the expiration date
of the Option. No additional right to exercise the Option with
respect to any Option Shares shall vest from and after the date the
employment of the Optionee is terminated.
(iii) Termination Without Cause. If the Company
terminates the employment of the Optionee without cause (other than
in the case of death or permanent and total disability), then the
Option shall terminate and cease to be exercisable upon the earlier
of (1) the expiration of sixty (60) days from the date the employment
of the Optionee is terminated or (2) the expiration date of the
Option. No additional right to exercise the Option with respect to
any Option Shares shall vest from and after the date the employment
of the Optionee is terminated.
(iv) Removal of Director For Cause. If an Optionee is
removed as a director for cause as defined by applicable law, then
any Option granted to the Optionee in his or her capacity as a
director shall terminate and cease to be exercisable upon the earlier
of (1) the termination of the directorship of the Optionee or (2) the
expiration date of such Option. No additional right to exercise such
Option with respect to any Option Shares shall vest from and after
the date the directorship of the Optionee is terminated.
(v) Death of Optionee. In the event of the death of
Optionee during the term of the Option, then the executors or
administrators of the estate of the Optionee or the heirs or devisees
of the Optionee (as the case may be) shall have the right to exercise
the Option to the extent the Optionee was entitled to do so at the
time of his or her death; provided however that the Option shall
terminate and cease to be exercisable upon the earlier of (1) the
expiration of one (1) year from the date of the death of the Optionee
or (2) the expiration date of the Option. No additional right to
exercise the Option with respect to any Option Shares shall vest from
and after the date of the death of the Optionee.
(vi) Disability of Optionee. In the event of the
permanent and total disability of Optionee during the term of the
Option, then Optionee shall have the right to exercise the Option to
the extent Optionee was entitled to do so at the time of the
termination of his or her employment or directorship or engagement
with the Company by reason of such disability; provided however that
the Option shall terminate and cease to be exercisable upon the
earlier of (1) the expiration of one (1) year from the date of such
termination of employment or directorship or engagement or (2) the
expiration date of the Option. No additional right to exercise the
Option with respect to any Option Shares shall vest from and after
the date of the termination of the employment or directorship or
engagement of the Optionee.
(vii) Employment by Corporate Group. For purposes of
this Section, if during the term of the Option the Optionee transfers
as an employee from the Company to another member of the Corporate
<PAGE>
Group, the employment of the Optionee shall not be deemed to have
terminated or ceased hereunder and all references to the Company
herein shall be deemed to include such member of the Corporate Group.
For purposes hereof the employment of the Optionee shall be deemed to
have terminated either upon actual termination of employment or upon
the employer of Optionee ceasing to be a member of the Corporate
Group, unless said employer or its successor assumes the Option
pursuant to the terms hereof.
i. Common Stock Voting Rights. This Plan and any Option Agreement
hereunder shall be in full compliance with Section 260.140.1 of the Rules of the
California Commissioner of Corporations (as amended or superseded) regarding the
voting rights of common stock.
j. Other Provisions. An Option Agreement may contain such other
terms, provisions and conditions, including but not limited to provisions
accelerating the right to exercise an Option, special forfeiture conditions,
other rights of repurchase, other rights of first refusal, and restrictions on
transfer of Option Shares issued hereunder, not inconsistent with the provisions
of this Plan or applicable law, as may be determined by the Board in its sole
discretion.
7. Repurchase Rights of Company.
----------------------------
a. Repurchase Event. Except as otherwise provided by the relevant
Option Agreement, the term "Repurchase Event" for purposes of this Plan and the
relevant Option Agreement shall be defined as the termination of the Optionee as
an employee or director or consultant or advisor of the Company at any time for
any reason, with respect the Option Shares acquired pursuant to exercise of any
Option granted to the Optionee in connection with such employment or
directorship or engagement.
b. Repurchase Right. Except as otherwise provided by the relevant
Option Agreement, upon the occurrence of any Repurchase Event the Company shall
have the irrevocable right and option but not the obligation ("Repurchase
Right") to purchase all or any part of the Option Shares for the Repurchase
Price as hereinafter defined, on the following terms and conditions:
(i) The Company shall have a period of ninety
(90) days after (1) the date of termination of the employment or
directorship or engagement of Optionee, or (2) the last date on which
the Optionee or his or her successor or representative exercises the
Option in whole or in part, whichever is later, to exercise the
Repurchase Right. The Repurchase Right shall be exercised by the
delivery of written notice by the Company to the Optionee or his or
her successor or representative ("Repurchase Notice"), setting forth
the number of Option Shares being repurchased and the amount of the
Repurchase Price. The Repurchase Right shall lapse at the end of the
relevant 90-day period if not exercised by the Company. Any lapse of
the Repurchase Right with respect to any Option Shares shall not
affect any other rights of the Company under this Plan or the
relevant Option Agreement.
<PAGE>
(ii) The Repurchase Price for the Option Shares being
repurchased by the Company shall equal the fair market value of the
Option Shares being repurchased determined as of the date of the
Repurchase Event by the written opinion of a qualified independent
appraisal firm designated in writing by the Company; and the
cancellation of any indebtedness of Optionee to the Company or any
other member of the Corporate Group shall be deemed payment to the
Optionee in cash to the extent of the unpaid principal and any
accrued interest cancelled; provided however that if the employment
of Optionee is terminated for cause, the Repurchase Price for the
Option Shares shall be equal to the Option Price unless otherwise
provided by the relevant Option Agreement.
(iii) Within ten (10) days of delivery of the Repurchase
Notice, the Optionee or his or her successor or representative shall
be required to tender all of such Option Shares to the Company for
repurchase. The Repurchase Price shall be paid in full upon the
tendering of such Option Shares. The failure to tender the Option
Shares to the Company shall be a material breach for which the
Company shall be entitled to immediate legal and equitable relief.
Without limiting the generality of the foregoing, in the event of the
failure to tender such Option Shares (1) the Optionee or his or her
successor or representative shall have no rights as a shareholder of
the Option Shares (including without limitation any right to vote or
to dividends or liquidation proceeds), and (2) the Company thereupon
shall have the right to unilaterally transfer the Option Shares to
the Company on the books of the Company and to tender and hold the
amount of the Repurchase Price for the benefit of the Optionee. Upon
execution of the relevant Option Agreement, each Optionee shall be
deemed to irrevocably appoint and designate the Secretary or
Assistant Secretary of the Company, and their respective successors
in office, as his or her attorney-in-fact for and on his or her
behalf and on behalf of his or her successors and representatives for
such purposes.
c. Termination on Public Offering. Notwithstanding any other
provision of this Section, the Repurchase Right of the Company shall terminate
and thereafter be of no force or effect upon the initial public offering of the
common stock of the Company for sale in a Public Market.
d. Assignment of Repurchase Right. The Company shall have the right
to assign the Repurchase Right at any time.
8. Right of First Refusal. In addition to any Repurchase Right of the
Company, if the Optionee receives a bona fide offer ("Offer") from any third
person or entity ("Third Party") to purchase all or any part of the Option
Shares of said Optionee and the Optionee intends to sell or otherwise transfer
the Offered Shares to the Third Party, then the following provisions shall be
applicable:
a. Notice. The Optionee shall give prompt written notice of the Offer
("Offer Notice") to the Company which shall set forth all material terms of the
Offer and the identity of the Third Party and shall include a copy of a written
Offer.
<PAGE>
b. Right of First Refusal. The Company shall have the irrevocable
right and option ("Right of First Refusal"), but not the obligation, to purchase
all of such Option Shares pursuant to the terms of the Offer. Such Option shall
be exercisable by the Company within thirty (30) days from the receipt of the
Offer Notice, by delivery of written notice of exercise to the Optionee. In the
event the Option is exercised by the Company, the purchase price for such Option
Shares shall be the amount specified in the Offer and except as otherwise
provided herein shall be payable on the terms and at the times specified in the
Offer. The exercise or failure to exercise by the Company of such Right of First
Refusal shall not affect the rights of the Company with respect to any other
Offer Notice. In the event the Offer Notice provides for payment other than in
cash, the Company shall have the option of paying for such Option Shares by the
discounted cash equivalent of the consideration described in the Offer Notice as
reasonably determined by the Company.
c. Sale Period. If the Company does not exercise its Right of First
Refusal for such Option Shares, then the Optionee shall have the right to sell
or otherwise transfer such Shares to the Third Party in accordance with all
material terms of the Offer within six (6) months after the expiration of the
relevant exercise period of the Company. Upon the expiration of such transfer
period any of the Option Shares not transferred by the Optionee to the Third
Party hereunder shall again become subject to the rights and restrictions of
this Section. The Company shall have the right to demand further assurances from
the Optionee and the Third Party, in a form satisfactory to the Company, that
the transfer of such Option Shares was bona fide and consummated in fact on the
terms and conditions set forth in the Offer Notice.
d. Termination on Public Offering. Notwithstanding any other
provision of this Section, the Right of First Refusal of the Company shall
terminate and thereafter be of no force or effect upon the initial public
offering of the common stock of the Company for sale in a Public Market.
e. Assignment of Right of First Refusal. The Company shall have the
right to assign the Right of First Refusal at any time.
9. Restrictions on Grant or Stock Issuance.
----------------------------------------
a. The grant of Options and the issuance of Option Shares shall be
conditioned upon and subject to compliance with all of the applicable
requirements of federal and state laws with respect to such securities on the
relevant dates of determination; and to the entering into of such covenants,
representations and warranties by the Optionee as required under applicable laws
in the judgment of the Company or its counsel in its sole discretion with
respect to the grant of the Option and the issuance of the Option Shares
thereunder. Without limiting the foregoing, the Company has no obligation to
file a registration statement under the Securities Act of 1933 or under any
similar act or law for the registration or qualification of any Option or any of
the Option Shares or to otherwise assist any Optionee in complying with any
exemption from registration.
b. The certificate or certificates representing the Option Shares
acquired by exercise of the Option shall bear such legends as determined by the
Company in its sole and absolute discretion, including without limitation any
<PAGE>
applicable federal or state securities law or corporate law restrictions and
legends setting forth the Repurchase Right and Right of First Refusal of the
Company. In order to ensure compliance with the restrictions set forth in this
Plan and the Option Agreement, the Company also may issue appropriate
stop-transfer instructions to its transfer agent, if any, and if the Company
transfers its own securities, the Company may make appropriate notations to the
same effect in its own records.
10. No Rights as a Shareholder. No person shall have any rights as a
shareholder with respect to any of the Option Shares subject to an Option until
the date of the issuance of a stock certificate(s) for the Option Shares for
which the Option has been exercised. No adjustments shall be made for dividends
or distributions or other rights for which the record date is prior to the date
such stock certificate(s) are issued, except as provided in Section 5(b) of this
Plan.
11. No Rights in Other Capacities. Nothing in this Plan or in any
Option Agreement shall confer upon any Optionee any right to continue as an
employee or director or consultant or advisor of the Company (or any other
member of the Corporate Group) or interfere in any manner with any right of the
Company (or any other member of the Corporate Group or other relevant entity) to
terminate the employment or directorship or engagement of an Optionee at any
time. No Optionee shall have any authority to act on behalf of the Company in
any capacity with respect to his or her own participation in this Plan or with
respect to his or her own Option Agreement or Option granted hereunder.
12. Use of Proceeds. The proceeds received by the Company from the
payment of the Option Price pursuant to exercise of an Option shall be used for
such corporate purposes as determined by the Board in its discretion.
13. Lock-Up Restrictions. In connection with any underwritten public
offering of stock or other securities of the Company, including without
limitation an initial public offering by the Company of its common stock, made
by the Company pursuant to an effective registration statement filed under
applicable federal securities acts, the Optionee shall fully comply with and
cooperate with the Company and any managing underwriter in connection with any
stock "lock-up" or "standstill" agreements or similar restrictions on the offer
or sale or contract to sell or other transfer or assignment or pledge or loan or
other encumbrance of the shares of the common stock of the Company (including
without limitation any of the Option Shares) generally applicable to similarly
situated shareholders or optionholders of the Company.
14. Mandatory Notice of Disposition. The Optionee shall transfer or
dispose of any of the Option Shares only in compliance with the provisions of
this Plan and the Option Agreement. Without limiting the other provisions of
this Plan or the Option Agreement, in the event the Optionee disposes of any of
the Option Shares within two (2) years of the Grant Date of the Option or within
one (1) year after the transfer of the Option Shares to the Optionee in
connection with an exercise of the Option, whether such disposition is made by
sale, exchange, gift or otherwise, then the Optionee shall notify the Chief
Financial Officer of the Company of such disposition in writing within thirty
(30) days from the date of such disposition. Said written notice shall state the
date of such disposition, and the type and amount of the consideration received
for such Option Share or Option Shares by the Optionee in connection therewith.
In the event of any such disposition, the Company shall have the right to
<PAGE>
withhold from the Optionee or to require the Optionee to immediately pay to the
Company the aggregate amount of taxes, if any, which the Company is required to
withhold under federal or state or other applicable law as a result of the
granting or exercise of the subject Option or the disposition of the subject
Option Shares.
15. Modification, Extension and Renewal of Options. Subject to the
terms and conditions and within the limitations of this Plan, the Board may
modify, extend or renew outstanding Options granted under this Plan, or accept
the surrender of outstanding Options (to the extent not theretofore exercised)
and authorize the granting of new Options in substitution therefor (to the
extent not theretofore exercised). Notwithstanding the foregoing, no
modification of any Option shall, without the consent of the Optionee, alter or
impair any rights or obligations under any Option theretofore granted under this
Plan.
16. Termination or Amendment of Plan.
--------------------------------
a. The Board may at any time terminate or amend this Plan prior to
the expiration of this Plan, provided however that without the approval of the
shareholders of the Company there shall be: (i) no increase in the total number
of shares of stock which may be issued under this Plan (except by operation of
the provisions of Section 5(b) hereof), and (ii) no change in the classes of
persons eligible to be granted Options.
b. No amendment of this Plan may adversely affect any then
outstanding Option or any unexercised portion thereof without the consent of the
Optionee; provided however that subject to Section 16(a) hereof the Board
expressly reserves the right to amend the terms and provisions of this Plan and
of any outstanding Options under this Plan to the extent necessary to qualify
such Options for such favorable federal income tax treatment (including deferral
of taxation upon exercise) as may be afforded employee stock options under
amendments to the Code or other statutes or regulations which become effective
after the effective date of this Plan.
17. Financial Statements. Subsequent to the Effective Date of the
Plan, the Optionees shall receive financial statements from the Company on at
least an annual basis to the extent required by the then applicable Rules of the
Commissioner of Corporations for the State of California or as otherwise
required by law.
18. Notices. All notices, requests, demands and other communications
required or permitted to be given pursuant to this Plan or any Option Agreement
(collectively "notices") shall be in writing and shall be delivered (i) by
personal delivery, (ii) by nationally recognized overnight air courier service
or (iii) by deposit in the United States Mail, postage prepaid, registered or
certified mail, return receipt requested. A notice shall be deemed to have been
given on the date delivered, if delivered personally or by overnight air courier
service; or five (5) days after mailing if mailed. All notices shall be
addressed if to the Company at its principal place of business in the State of
California, United States of America, to the attention of the Secretary or Chief
Financial Officer of the Company; and if to Optionee or his or her
representative at the last address of Optionee shown on the records of the
Company. Either party may by written notice to the other party specify a
<PAGE>
different address to which notices shall be given, by sending notice thereof to
the other party in the foregoing manner.
19. Administration. This Plan shall be administered by the Board or
by a duly appointed committee of the Board having such powers as shall be
specified by the Board. Any references in this Plan to the Board shall also be
deemed to refer to such committee of the Board if appointed for such purposes
with the relevant powers. The Board may also at any time terminate the functions
of such committee and reassume all powers and authority previously delegated to
the committee. The Board is authorized to establish such rules and regulations
as it may deem appropriate for the proper administration of this Plan and to
make such determinations under, and issue such interpretations of, this Plan and
any Option Agreement or Option granted hereunder as it may deem necessary or
advisable. All questions of interpretation of this Plan or any Option Agreement
or Option granted hereunder shall be determined by the Board and shall be final
and binding upon all persons having an interest in this Plan or any Option
Agreement or Option granted hereunder. No member of the Board shall vote on any
matter concerning his or her own participation in this Plan. No member of the
Board shall be liable for any action or interpretation made in good faith
hereunder.
20. General Provisions.
------------------
a. This Plan constitutes the entire COMC, Inc. 1999 Stock Option
Plan, subject to termination or amendment as herein provided. In the event of
any conflict between the terms or provisions of this Plan and any Option
Agreement for any Option granted hereunder, the terms and provisions of this
Plan shall control.
b. This Plan shall be construed in accordance with and governed by
the laws of the State of California without reference to the principles of
conflicts of law.
c. Whenever possible, each provision of this Plan shall be
interpreted in such manner as to be effective and valid under applicable law. In
the event that any provision of this Plan shall be held by the final judgment of
a court of competent jurisdiction to be invalid or unlawful or unenforceable,
then the remaining provisions of this Plan shall remain in full force and effect
and shall be construed to give the fullest effect to the purpose of this Plan
and the intended qualification of this Plan pursuant to Section 422 of the Code
and pursuant to Section 25102(o) of the California Corporations Code and the
respective regulations and rules thereunder (as amended or superseded).
d. When the context requires, the plural shall include the singular
and the singular the plural and any gender shall include any other gender.
Section headings are for convenience only and are not part of this Plan.
21. Copies of Plan. A complete copy of this Plan as then in effect
shall be delivered to each Optionee at or before the time such person executes
and delivers the relevant Option Agreement.
<PAGE>
DATE OF ADOPTION OF THIS PLAN BY THE BOARD OF DIRECTORS OF THE COMPANY: NOVEMBER
30, 1999
DATE OF APPROVAL OF THIS PLAN BY THE SHAREHOLDERS OF THE COMPANY:
___________________, 2000
<PAGE>
ATTACHMENT G
FIRST AMENDMENT TO COMC, INC.
1999 STOCK OPTION PLAN
This First Amendment to COMC, INC. 1999 STOCK OPTION PLAN (this
"First Amendment") is adopted by the Board of Directors (the "Board") of COMC,
Inc., an Illinois corporation (the "Corporation") as of October 10, 2000, and
shall be effective upon obtaining the necessary shareholder approval, as set
forth below.
WHEREAS, on November 30, 1999, the Board adopted the COMC, INC., 1999
Stock Option Plan (the "Plan");
WHEREAS, pursuant to Section 5(a) of the Plan, a total of One Million
shares of the Corporation's common stock, subject to adjustment as provided in
Section 5(b) of the Plan, were reserved for issuance under the Plan;
WHEREAS, the Board has determined that it is in the best interest of
the Corporation to increase the number of shares of the Corporation's common
stock reserved for issuance under the Plan from One Million to Two Million;
WHEREAS, pursuant to Section 16(a) of the Plan, any increase in the
number of shares of common stock reserved for issuance under the Plan shall
require the approval of the Corporation's shareholders.
NOW, THEREFORE, subject to the receipt of the required shareholder
approval as mandated by Section 16(a) of the Plan, the Plan is hereby amended as
follows:
Section 1. Amendments to Section 5(a) of the Plan
Effective on the date this First Amendment is approved by a majority
of the Corporation's shareholders, Section 5(a) is amended by deleting the
reference to "One Million (1,000,000) shares" and replacing the language deleted
with "Two Million (2,000,000) shares," thereby increasing the shares reserved
for issuance under the Plan from One Million (1,000,000) to Two Million
(2,000,000):
Section 2. Shareholder Approval
In accordance with Section 16(a) of the Plan, this First Amendment
shall only become effective upon obtaining the approval or written consent of at
least a majority of the Corporation's shareholders.
Section 3. Miscellaneous
3.1 Internal References. On and after the effective date hereof, each
reference in the Plan to "this Plan," "the Plan," "hereunder," "hereof,"
"herein," or words of like import, shall mean and be a reference to the Plan, as
amended hereby.
1
<PAGE>
3.2 Governing Law. This First Amendment shall be governed by, and
construed and interpreted in accordance with the internal laws (as opposed to
the conflict of laws provisions) of, the State of California.
3.3 Section Headings. Section headings in this First Amendment are
included herein for convenience of reference only and shall not constitute a
part of this First Amendment or be given any substantive effect.
IN WITNESS WHEREOF, the Board has approved and adopted this First
Amendment to the COMC, INC. 1999 STOCK OPTION PLAN as of the date first above
written.
COMC, INC., an Illinois corporation
By: /s/
---------------------------------------
John J. Ackerman, Chairman of the Board
Date of approval of this First Amendment by the shareholders of COMC, Inc.:
___________
<PAGE>
THIS PROXY IS SOLICITED ON BEHALF OF
THE BOARD OF DIRECTORS OF COMC, INC.
2000 ANNUAL MEETING OF STOCKHOLDERS
--------------
The undersigned Stockholder of COMC, Inc., an Illinois corporation,
hereby acknowledges receipt of the Notice of Annual Meeting of Stockholders and
Proxy Statement, each dated October 24, 2000, and hereby appoints Christopher R.
Smith and John J. Ackerman, or either of them, as proxies and attorneys-in-fact,
with full power to each of substitution, on behalf and in the name of the
undersigned, to represent the undersigned at the 2000 Annual Meeting of
Stockholders of COMC, Inc., to be held on November 28, 2000 at 9:00 a.m. Pacific
Time at the offices of COMC, Inc., 2840 Howe Road, Suite C, 94553-4000 Telephone
No.(925) 335-4060, and at any adjournment(s) thereof and to vote all shares of
Common Stock of COMC, Inc., which the undersigned would be entitled to vote if
then and there personally present, on the matters set forth below:
1. ELECTION OF DIRECTORS (Proposal 1):
NOMINEES:
---------
JOHN J. ACKERMAN
PAUL M. BAKKER
WILLIAM M. BURNS
PATRICK J. GUARINO
CHRISTOPHER R. SMITH
FOR ALL WITHHELD FROM ALL FOR ALL NOMINEES
NOMINEES: NOMINEES: EXCEPT:
-------------- -------------- ------------------
INSTRUCTIONS: To withhold authority to vote for any individual nominee, mark
"For All Except" and write such nominee's name in the space provided above.
2. APPROVAL OF REINCORPORATION (PROPOSAL 2):
FOR: AGAINST: ABSTAIN:
-------------- -------------- ------------------
<PAGE>
3. APPROVAL OF COMC, INC. 1999 STOCK OPTION PLAN AS AMENDED BY THE
FIRST AMENDMENT TO THE COMC, INC. 1999 STOCK OPTION PLAN (PROPOSAL 3):
FOR: AGAINST: ABSTAIN:
-------------- -------------- ------------------
4. RATIFICATION OF THE GRANT OF STOCK OPTIONS IN THE TOTAL AMOUNT OF 286,000
SHARES OF COMMON STOCK TO CERTAIN KEY EMPLOYEES (PROPOSAL 4):
FOR: AGAINST: ABSTAIN:
-------------- -------------- ------------------
5. RATIFICATION OF THE APPOINTMENT OF BDO SEIDMAN, LLP AS OUR INDEPENDENT PUBLIC
ACCOUNTANTS FOR THE YEAR ENDING DECEMBER 31, 2000 (PROPOSAL 5):
FOR: AGAINST: ABSTAIN:
-------------- -------------- ------------------
and, in their discretion, upon such other matter or matters which may properly
come before the Annual Meeting and any adjournment(s) thereof. Detach above
card, mark, sign, date and mail in postage paid envelope provided.
COMC, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS.
THIS PROXY WILL BE VOTED AS DIRECTED OR, IF NO CONTRARY DIRECTION IS
INDICATED, WILL BE VOTED: (1) FOR THE ELECTION OF THE NOMINATED DIRECTORS, (2)
FOR APPROVAL OF REINCORPORATION, (3) FOR APPROVAL OF THE COMC, INC. 1999 STOCK
OPTION PLAN, AS AMENDED (4) FOR THE RATIFICATION OF THE GRANT OF STOCK OPTIONS
IN THE TOTAL AMOUNT OF 286,000 SHARES OF COMMON STOCK TO CERTAIN KEY EMPLOYEES,
AND (5) FOR THE RATIFICATION OF THE APPOINTMENT OF BDO SEIDMAN, LLP AS OUR
INDEPENDENT PUBLIC ACCOUNTANTS FOR THE YEAR ENDING DECEMBER 31, 2000, AND AS
SAID PROXIES DEEM ADVISABLE ON SUCH OTHER MATTERS AS MAY COME BEFORE THE MEETING
AND ANY ADJOURNMENT(S) THEREOF.
STOCKHOLDERS WHO ATTEND THE ANNUAL MEETING OF STOCKHOLDERS MAY VOTE
IN PERSON EVEN THOUGH THEY PREVIOUSLY MAILED THIS PROXY.
Please be sure to sign and date this Proxy below.
Dated: , 2000
--------------------------
--------------------------------------
Stockholder sign above
-------------------------------------
Co-holder (if any) sign above
(This Proxy should be marked, dated, signed by
the stockholder(s) exactly as his or her or its
name appears hereon, and returned promptly in
the enclosed envelope. Persons signing in a
fiduciary capacity should so indicate. If
shares are held by joint tenants or as
community property, both should sign.)
PLEASE ACT PROMPTLY
MARK, SIGN, DATE AND MAIL YOUR PROXY CARD TODAY
