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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities and Exchange Act
February 1, 2000
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Date of Report
(Date of earliest event reported)
MicroAccel, Inc.
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(Exact name of registrant as specified in its charter)
Utah 33-9782-LA 87-04444506
- ---- ---------- -----------
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
Suite 210, 580 Hornby Street
Vancouver, British Columbia, Canada V6C 3B6
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(Address of Principal Executive Offices)
(604) 687-6991
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(Registrant's Telephone Number)
Hortitech, Inc.
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(Former Name or Former Address if changed Since Last Report)
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Item 1. Changes in Control of Registrant.
---------------------------------
None, not applicable.
Item 2. Acquisition or Disposition of Assets.
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None, not applicable.
Item 3. Bankruptcy or Receivership.
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None, not applicable.
Item 4. Changes in Registrant's Certifying Accountant.
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Jones, Jensen & Company, LLC, Certified Public Accountants, of Salt
Lake City, Utah, audited the financial statements of the Registrant for the
calendar years ended December 31, 1998, 1997, 1996, and 1995; these financial
statements accompanied the Registrant's Annual Reports on Form 10-KSB for the
calendar years ended December 31, 1998, 1997, and 1996, which were previously
filed with the Securities and Exchange Commission and which are incorporated
herein by reference.
On January 18, 2000, the Board of Directors of the Registrant
unanimously resolved to engage Telford, Sadovnick P.L.L.C., Certified Public
Accountants, of Bellingham, Washington, to audit the Registrant's financial
statements for the calendar year ended December 31, 1999. At a Special Meeting
of Stockholders held on February 1, 2000, the holders of 11,155,900 shares,
representing 59.2% of the Registrant's issued and outstanding shares, voted to
approve and ratify the Board of Director's selection of Telford, Sadovnick
P.L.L.C.
There were no disagreements between the Registrant and Jones,
Jensen & Company, whether resolved or not resolved, on any matter of accounting
principles or practices, financial statement disclosure or auditing scope or
procedure which, if not resolved, would have caused it to make reference to the
subject matter of the disagreement in connection with its reports.
The reports of Jones, Jensen & Company did not contain any adverse
opinion or disclaimer of opinion, and with the exception of a standard "going
concern" qualification because of the limited operating capital and lack of
operations of the Registrant on the dates of the above-referenced Annual
Reports on Form 10-KSB, were not qualified or modified as to uncertainty, audit
scope or accounting principles.
During the Registrant's three most recent calendar years, and since
then, neither Jones, Jensen & Company nor Telford, Sadovnick, P.L.L.C., has
advised the Registrant that any of the following exists or is applicable:
(1) That the internal controls necessary for the Registrant to
develop reliable financial statements do not exist, that
information has come to their attention that has led them
to no longer be able to rely on management's
representations, or that has made them unwilling to be
associated with the financial statements prepared by
management;
(2) That the Registrant needs to expand significantly the scope
of its audit, or that information has come to their
attention that if further investigated may materially impact
the fairness or reliability of a previously issued audit
report or the underlying financial statements or any other
financial presentation, or cause them to be unwilling to
rely on management's representations or be associated with
the Registrant's financial statements for the foregoing
reasons or any other reason; or
(3) That they have advised the Registrant that information has
come to their attention that they have concluded materially
impacts the fairness or reliability of either a previously
issued audit report or the underlying financial statements
for the foregoing reasons or any other reason.
During the Registrant's three most recent calendar years and since
then, the Registrant has not consulted Telford, Sadovnick, P.L.L.C. regarding
the application of accounting principles to a specified transaction, either
completed or proposed; or the type of audit opinion that might be rendered on
the Registrant's financial statements or any other financial presentation
whatsoever.
The Registrant has provided Jones, Jensen & Company with a copy of
the disclosure provided under this caption of this Report, and has advised it
to provide the Registrant with a letter addressed to the Securities and
Exchange Commission as to whether it agrees or disagrees with the disclosures
made herein. A copy of its response is attached hereto and incorporated herein
by this reference. See Item 7 of this Report.
Item 5. Other Events.
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At the Special Meeting of Stockholders held on February 1, 2000, the
holders of 11,155,900 shares, representing 59.2% of the Registrant's issued and
outstanding shares of common stock, also voted to: (i) approve the change of
the Registrant's name to "MicroAccel, Inc."; (ii) elect Suzanne L. Wood; Barry
D. Russell; Donald O. Stern; and Robert Stern to serve on the Registrant's
Board of Directors for a term of one year or until his or her successor is
elected and qualified; (iii) adopt the Registrant's 2000 Stock Option Plan for
the grant of incentive and non-qualified options to purchase up to 950,000
shares of the Registrant's common stock to employees and such other persons as
the Plan Administrator (which is currently the Board of Directors) may select;
and (iv) permit the Registrant to take actions without a meeting of
stockholders if one or more consents in writing, setting forth the action so
taken, is signed by the holders of outstanding shares having not less than the
minimum number of votes that would be necessary to authorize or take the action
at a meeting at which all shares entitled to vote were present and voted.
Articles of Amendment with respect to the Registrant's name change
were filed with the Division of Corporations and Commercial Code of the Utah
Department of Commerce on February 2, 2000, and the Registrant's name change to
"MicroAccel, Inc." became effective on that date. The purpose of the name
change was to better reflect the nature of the Company's anticipated business
following its proposed acquisition of a corporation that is developing a
nonvolatile computer memory chip. The parties have not yet entered into any
definitive agreement with respect to this acquisition, and there can be no
assurance that such an acquisition will be completed or that, if it is
completed, it will be beneficial to the Company and its stockholders. Upon the
completion of any such transaction, it will be timely reported in a Current
Report on Form 8-K.
As of the date of this Report, the Registrant has not granted any
options pursuant to the 2000 Stock Option Plan. A copy of the 2000 Stock
Option Plan, with exhibits, is attached hereto and incorporated herein by this
reference. See Item 7 of this Report.
On January 25, 2000, the Registrant's Board of Directors unanimously
voted to undertake a private placement of up to 1,000,000 "unregistered" and
"restricted" shares of the Registrant's common stock at a price of $4.00 per
share, pursuant to Rule 506 of Regulation D of the Securities and Exchange
Commission and/or Regulation S thereof. The offering was closed on January 28,
2000, with all 1,000,000 shares being sold to non-"U.S. Persons," as defined in
Rule 902(k) of Regulation S.
Item 6. Resignations of Directors and Executive Officers.
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None, not applicable.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Businesses Acquired.
None, not applicable.
(b) Pro Forma Financial Information.
None, not applicable.
(c) Exhibits.
Description of Exhibit Exhibit Number
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2000 Stock Option Plan 10
Letter on change in certifying 16
accountants
Item 8. Change in Fiscal Year.
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None, not applicable.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this Report to be signed on its behalf by
the undersigned hereunto duly authorized.
MICROACCEL, INC.
Dated: 2/15/00 By: /s/ Suzanne L. Wood
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Suzanne L. Wood
President and Director
Dated: 2/15/00 By: /s/ Barry D. Russell
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Barry. D. Russell
Secretary/Treasurer and Director
Hortitech, Inc.
2000 STOCK INCENTIVE PLAN
1. Purpose. The purpose of this 2000 Stock Incentive Plan (the "Plan")
is to enable Hortitech, Inc., a Utah corporation (the "Company"), to attract
and retain the services of (a) selected employees, officers and directors of
the Company or of any parent or subsidiary corporation of the Company, and (b)
selected nonemployee agents, consultants, advisers and independent contractors
of the Company or any parent or subsidiary of the Company.
2. Shares Subject to the Plan. Subject to adjustment as provided below
and in paragraph 8, up to 950,000 (nine-hundred-fifty-thousand) shares of
common stock of the Company (the "Shares") shall be offered and issued under
the Plan. If an option granted under the Plan expires, terminates or is
canceled, the unissued Shares subject to such option shall again be available
under the Plan. If Shares sold or awarded as a bonus under the Plan are
forfeited to the Company or repurchased by the Company, the number of Shares
forfeited or repurchased shall again be available under the Plan.
3. Effective Date and Duration of Plan.
(a) Effective Date. The Plan shall become effective when adopted
by the Board of Directors of the Company (the "Board"), unless a later date is
specified by the Board. However, no option granted under the Plan shall become
exercisable until the Plan is approved by the affirmative vote of the holders
of a majority of the outstanding voting capital shares of the Company
represented at a shareholder meeting at which a quorum is present, and any such
grants of options under the Plan prior to such approval shall be conditioned on
and subject to such approval. Subject to this limitation, options to purchase
Shares may be granted and Shares may be awarded as bonuses or sold under the
Plan at any time after the effective date and before termination of the Plan.
(b) Duration. No options may be granted pursuant to paragraph 6
of the Plan on or after January 15, 2010. However, the Plan shall continue in
effect until all Shares available for issuance under the Plan have been issued
and all restrictions on such Shares have lapsed. The Board may suspend or
terminate the Plan at any time, except with respect to options and Shares
subject to restrictions then outstanding under the Plan. The Administrator may
amend or terminate this Plan or modify or amend options granted under this
Plan, including, without limitation, such modifications or amendments as are
necessary to maintain compliance with applicable statutes, rules or
regulations. Termination of the Plan shall not affect any outstanding options,
any right of the Company or its shareholders to repurchase Shares or the
forfeitability of options granted or Shares issued under the Plan.
4. Administration.
(a) The Plan shall be administered by a plan administrator (the
"Administrator") that shall be the Board or a committee appointed by the Board
(the "Committee"). The Administrator shall determine and designate from time
to time the individuals to whom grants of options shall be made, the amount of
the grants, and the other terms and conditions of the grants; and may amend or
terminate this Plan or modify or amend options granted under this Plan,
including, without limitation, such modifications or amendments as are
necessary to maintain compliance with applicable statutes, rules or regulations
as provided in paragraphs 3 and 11, subject to regulatory approval, if
required. At any time when the officers and directors of the Company are
subject to Section 16(b) of the United States Securities Exchange Act of 1934
(the "Exchange Act"), the Committee shall consist solely of "Non-employee"
directors as such term is defined from time to time in Rule 16b-3 under the
Exchange Act. In addition, at any time when the officers and directors of the
Company are subject to Section 16(b) of the Exchange Act, no member of the
Committee shall be eligible to receive any grant under the Plan while such
person serves as a Committee member.
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(b) Subject to the provisions of the Plan, and to regulatory
approval, if required, the Administrator may from time to time adopt and amend
rules and regulations relating to administration of the Plan, accelerate any
exercise date, waive or modify any restriction applicable to Shares (except
those restrictions imposed by law) and make all other determinations in the
judgment of the Administrator necessary or desirable for the administration of
the Plan. The interpretation and construction of the provisions of the Plan
and related agreements by the Administrator shall be final and conclusive. The
Administrator may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any related agreement in the manner and to the
extent it shall deem expedient to carry the Plan into effect, and it shall be
the sole and final judge of such expediency.
5. Types of Grants - Eligibility. The Administrator may, from time to
time, take the following actions under the Plan: (i) grant Incentive Stock
Options, as defined in Section 422 of the United States Internal Revenue Code
of 1986, as amended (the "Code"), as provided in paragraph 6 (b); and, (ii)
grant options other than Incentive Stock Options ("Nonqualified Stock Options")
as provided in paragraph 6(c). Any such grants may be made to directors or
employees (including employees who are officers or directors) of the Company or
of any parent or subsidiary corporation of the Company, and to other
individuals described in paragraph 1 who the Administrator, in its sole
discretion, believes have made or will make an important contribution to the
Company or its parent or subsidiaries; provided, however, that only employees
of the Company or a parent or subsidiary shall be eligible to receive Incentive
Stock Options under the Plan. The Administrator shall select the individuals
to whom grants shall be made and shall specify the action taken with respect to
each individual to whom a grant is made under the Plan. At the discretion of
the Administrator, an individual may be given an election to surrender a grant
in exchange for a new grant under the Plan.
6. Option Grants.
(a) Grant. Each option granted under the Plan shall be evidenced
by a stock option agreement, in substantially the same form as attached hereto
as Exhibit A. With respect to each option grant, the Administrator shall
determine the number of Shares subject to the option, the option price, the
period of the option, and the time or times at which the option may be
exercised and whether the option is an Incentive Stock Option or a Nonqualified
Stock Option.
(b) Incentive Stock Options. Incentive Stock Options granted under
the Plan shall be subject to the following terms and conditions:
(i) No employee may be granted Incentive Stock Options under
the Plan such that the aggregate fair market value, on the date of grant,
of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by that employee during any calendar year
under the Plan and under any other Incentive Stock Option plan (within
the meaning of Section 422 of the Code) of the Company or of any parent
or subsidiary corporation of the Company exceeds $100,000. Any portion
of an option which exceeds the annual limit shall not be void but rather
shall be a Nonqualified Stock Option.
(ii) An Incentive Stock Option may be granted under the Plan
to an employee possessing more than 10 percent of the total combined
voting power of all classes of shares of the Company or of any parent or
subsidiary corporation of the Company only if the option price is at
least 110 percent of the fair market value, as described in paragraph 6
(b) (iv), of the Shares subject to the option on the date it is granted,
and the option by its terms is not exercisable more than five years from
the date of grant.
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(iii) Subject to paragraphs 6(b) (ii) and 6(e), Incentive
Stock Options granted under the Plan shall continue in effect for the
period fixed by the Administrator, except that no Incentive Stock Option
shall be exercisable more than 10 years from the date of grant.
(iv) The option price per Share shall be determined by the
Administrator at the time of grant. Subject to paragraph 6(b) (ii), the
option price shall not be less than 100 percent of the fair market value
of the Shares covered by the Incentive Stock Option at the date the
option is granted. For purposes of the Plan, the fair market value of
the Shares shall be determined by the Plan Administrator in good faith.
(v) The Administrator may at any time without the consent of
the optionee convert an Incentive Stock Option into a Nonqualified Stock
Option.
(c) Nonqualified Stock Options. Nonqualified Stock Options shall
be subject to the following additional terms and conditions:
(i) The option price for Nonqualified Stock Options shall be
determined by the Administrator at the time of grant and may be any
amount that the Administrator shall specify. The option price may not be
less than 75 percent of the fair market value of the Shares covered by
the Nonqualified Stock Option on the date of grant. The fair market
value of the Shares covered by a Nonqualified Stock Option shall be
determined pursuant to paragraph 6(b)(iv).
(ii) Nonqualified Stock Options granted under the Plan shall
continue in effect for the period fixed by the Administrator.
(d) Exercise of Options. Except as provided in paragraph 6(f) or
as determined by the Administrator, no option granted under the Plan may
be exercised unless at the time of such exercise the optionee is employed
by or in the service of the Company or any parent or subsidiary corporation of
the Company and shall have been so employed or have provided such service
continuously since the date such option was granted. With respect to
Nonqualified Stock Options, absence on leave or on account of illness or
disability under rules established by the Administrator shall not, however, be
deemed an interruption of employment for purposes of the Plan. Unless
otherwise determined by the Administrator, vesting of options shall not
continue during an absence on leave (including an extended illness) or on
account of disability. At such time as the officers and directors of the
Company become subject to Section 16(b) of the Exchange Act, no option may be
exercised by an officer or director of the Company within six months of the
date of grant. Except as provided in paragraphs 6(f), 8 and 9, options granted
under the Plan may be exercised from time to time over the period stated in
each option in such amounts and at such times as shall be prescribed
by the Administrator, provided that options shall not be exercised for
fractional shares.
(e) Nontransferability. Options granted under this Plan and the
rights and privileges conferred by this Plan may not be transferred, assigned,
pledged or hypothecated in any manner (whether by operation of law or
otherwise) other than by will, by applicable laws of descent and distribution
or (except in the case of an Incentive Stock Option) pursuant to a qualified
domestic relations order, and shall not be subject to execution, attachment or
similar process; provided however, that any stock option agreement may provide
or be amended to provide that a Nonqualified Stock Option to which it relates
is transferable without payment of consideration to immediate family members of
the optionee or to trusts or partnerships established exclusively for the
benefit of the optionee and the optionee's immediate family members. Upon any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of any
option or of any right or privilege conferred by this Plan contrary to the
provisions hereof, or upon the sale, levy or any attachment or similar process
upon the rights and privileges conferred by this Plan, such option shall
hereupon terminate and become null and void.
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(f) Termination of Employment or Service. Unless otherwise set
forth in the optionee's stock option agreement:
(i) In the event the employment or service of the optionee
by the Company or a parent or subsidiary corporation of the Company
terminates for any reason other than because of death, physical
disability, cause or voluntary termination not related to normal
retirement, the option may be exercised at any time prior to the
expiration date of the option or the expiration of three months after the
date of such termination, whichever is the shorter period, but only if
and to the extent the optionee was entitled to exercise the option at the
date of such termination.
(ii) In the event of the termination of the optionee's
employment or service with the Company or a parent or subsidiary
corporation of the Company because the optionee becomes disabled (within
the meaning of Section 22(e)(3) of the Code), the option may be
exercised at any time prior to the expiration date of the option or the
expiration of one year after the date of such termination, whichever is
the shorter period, but only if and to the extent the optionee was
entitled to exercise the option at the date of such termination.
(iii) In the event of the death of an optionee while employed
by or providing services to the Company or a parent or subsidiary
corporation of the Company, the option may be exercised at any time prior
to the expiration date of the option or the expiration of one year after
the date of such death, whichever is the shorter period, but only if and
to the extent the optionee was entitled to exercise the option on the
date of death, and only by the person or persons to whom such optionee's
rights under the option shall pass by the optionee's will or by the laws
of descent and distribution of the optionee's state of domicile at the
time of death.
(iv) In the event of termination of the optionee's employment
or service with the Company or a parent or subsidiary corporation of the
Company for cause (as determined in the sole discretion of the
Administrator and defined in the optionee's stock option agreement) or
because of voluntary termination not related to normal retirement, the
option expires on the date of such termination.
(v) The Administrator, at the time of grant or at any time
thereafter, may extend the three-month and one-year expiration periods
any length of time not later than the original expiration date of the
option, and may increase the portion of an option that is exercisable,
subject to such terms and conditions as the Administrator may determine.
(vi) To the extent that the option of any deceased optionee
or of any optionee whose employment or service terminates is not
exercised within the applicable period, all further rights to purchase
Shares pursuant to such option shall cease and terminate.
(g) Purchase of Shares. Unless the Administrator determines
otherwise, Shares may be acquired pursuant to an option only upon receipt by
the Company of notice in writing from the optionee of the optionee's intention
to exercise, specifying the number of Shares as to which the optionee desires
to exercise the option, and, if required to comply with the United States
Securities Act of 1933, as amended, or state securities laws, the notice shall
include a representation that it is the optionee's present intention to acquire
the Shares for investment and not with a view to distribution. The
certificates representing the Shares shall bear any legends required by the
Administrator. Unless the Administrator determines otherwise, on or before the
date specified for completion of the purchase of Shares pursuant to an option,
the optionee must have paid the Company the full purchase price of such Shares
in cash. Unless the Administrator determines otherwise, all
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payments made to the Company in connection with the exercise of an option must
be made by a certified or cashier's bank check or by the transfer of
immediately available funds. No Shares shall be issued until full payment
therefor has been made. Each optionee who has exercised an option shall
immediately upon notification of the amount due, if any, pay to the Company in
cash amounts necessary to satisfy any applicable federal, state and local tax
withholding requirements. If additional withholding is or becomes required
beyond any amount deposited before delivery of the certificates, the optionee
shall pay such amount to the Company on demand. If the optionee fails to pay
the amount demanded, the Company or any parent or subsidiary corporation of the
Company may withhold that amount from other amounts payable to the optionee by
the Company or the parent or subsidiary corporation, including salary, subject
to applicable law.
7. Additional Provisions.
(a) The Administrator may include in a stock option agreement
relating to benefits under the Plan such additional terms and provisions as the
Administrator shall, in its discretion, see fit to include, including, without
limitation, restriction on transfer of the Shares or conditions under which the
Company shall or may repurchase the Shares.
(b) Lock-Up Agreement. If a Qualified Public Offering (as defined
below) of the common stock of the Company shall be proposed, each recipient of
options or Shares, at the request of a managing underwriter of such Qualified
Public Offering, enter into any agreement (a "Lock-Up Agreement") proposed by
such managing underwriter not to transfer such holder's Shares, any right to
acquire any Shares of the Company or any securities exercisable for or
convertible into Shares for a period not exceeding six months after the closing
date of such Qualified Public Offering. Whether or not a Qualified Public
Offering shall have been proposed, the Company may delay, and may instruct its
transfer agent to delay, the delivery of any certificate or certificates for
Shares until the Company shall have received a written undertaking from the
recipient that such recipient will enter into any Lock-Up Agreement as may be
requested by a managing underwriter of a proposed Qualified Public Offering.
A "Qualified Public Offering" is defined as an underwritten public
offering of the Company's common stock pursuant to an effective registration
statement under the United States Securities Act of 1933, as amended, covering
the offer and sale of common stock for cash for the account of the Company to
the public.
8. Changes in Capital Structure. If the shares outstanding common stock
of the Company are hereafter increased or decreased or changed into or
exchanged for a different number or kind of shares or other securities of the
Company or of another corporation by reason of any recapitalization,
reclassification, share split, combination of shares or dividend payable in
shares, the Administrator shall make appropriate adjustments in the number and
kind of Shares as to which outstanding options or portions thereof then
unexercised, shall be exercisable, so that the participant's proportionate
interest before and after the occurrence of the event is maintained, provided
that this paragraph 8 shall not apply with respect to transactions referred to
in paragraph 9. The Administrator may also require that any securities issued
in respect of or exchanged for Shares issued hereunder that are subject to
restrictions be subject to similar restrictions. Notwithstanding the
foregoing, the Administrator shall have no obligation to effect any adjustment
that would or might result in the issuance of fractional shares, and any
fractional shares resulting from any adjustment may be disregarded or provided
for in any manner determined by the Administrator. Any such adjustment made by
the Administrator shall be conclusive, and shall bind holders of outstanding
options and Shares under the Plan.
9. Effect of Reorganization or Liquidation.
(a) Cash, Shares or Other Property for Shares. Except as provided
in paragraph 9(b), upon a merger, consolidation, reorganization, plan of
exchange or liquidation involving the Company, as a result of which the
shareholders of the Company receive cash, shares or other property in exchange
<PAGE>
for or in connection with their common stock (any such transaction to be
referred to in this paragraph 9 as an "Event"), any option granted hereunder
shall terminate. At such time as the officers and directors of the Company
become subject to Section 16(b) of the Exchange Act, with respect to an option
granted to an officer or director less than six months prior to any Event, such
officer or director shall have the right to require the Company to purchase
such vested option at a purchase price computed pursuant to paragraph 9(c)
during the 30-day period following the expiration of six months following the
date of such grant, and this right shall apply even if the option has otherwise
terminated pursuant to paragraph 6(f) following such Event.
(b) Shares for Shares. If the shareholders of the Company receive
capital shares of another corporation ("Exchange Shares") in exchange for their
shares of common stock in any transaction involving a merger, consolidation,
reorganization, or plan of exchange, all options granted hereunder shall be
converted into options to purchase Exchange Shares, unless the Administrator,
in its sole discretion, determines that any or all such options granted
hereunder shall not be converted, but instead shall terminate in accordance
with the provisions of paragraph 9(a). The amount and price of converted
options shall be determined by adjusting the amount and price of the options
granted hereunder to take into account the relative values of the Exchange
Shares and the shares of common stock in the transaction.
(c) Purchase Price. With respect to an option granted to an
officer or director who is subject to the provisions of Section 16(b) of the
Exchange Act less than six months prior to an Event, the purchase price payable
pursuant to paragraph 9(a) shall be computed as follows:
(i) With respect to a Nonqualified Stock Option, the
purchase price shall be the product of (A) the excess, if any, of the
higher of (1) the purchase price paid for each Share in the Event, or (2)
the highest fair market value of a Share (determined pursuant to
paragraph 6(b) (iv)) during the 30-day period ending on the day the Event
occurs, over the option price, and (B) the number of Shares covered by
the option.
(ii) With respect to an Incentive Stock Option, the purchase
price shall be the product of (A) the excess, if any, of the fair market
value of each Share (determined pursuant to paragraph 6(b)(iv)) on the
date of exercise over the option price, and (B) the number of Shares
covered by the option.
(iii) No option may be exercised in connection with an Event
if the purchase price determined under this paragraph 9(c) is negative.
(d) The rights set forth in this paragraph 9 shall be transferable
only to the extent the related option is transferable.
10. Corporate Mergers, Acquisitions, Etc. The Administrator may also
grant options under the Plan having terms, conditions and provisions that vary
from those specified in the Plan; provided that any such grants are granted in
substitution for, or in connection with the assumption of, existing options and
rights to acquire or purchase shares by another corporation and assumed or
otherwise agreed to be provided for by the Company pursuant to or by reason of
a transaction involving a corporate merger, consolidation, acquisition of
property or shares, separation, reorganization or liquidation to which the
Company or a parent or subsidiary corporation of the Company is a party.
11. Amendment of Plan. The Administrator may at any time, and from time
to time, modify or amend the Plan in such respects as it shall deem advisable
because of changes in the law while the Plan is in effect or for any other
reason. Except as provided in paragraphs 6 (b) (v), 8 and 9, however, no
change in an option already granted shall be made without the written consent
of the holder of such option.
<PAGE>
12. Approvals. The obligations of the Company under the Plan are subject
to the approval of regulatory agencies, state and federal authorities or
agencies with jurisdiction in the matter. The Company shall not be obligated
to issue or deliver Shares under the Plan if such issuance or delivery would
violate applicable state or federal securities laws, or if compliance with such
laws would, in the opinion of the Administrator, be unduly burdensome or
require the disclosure of information which would not be in the Company's best
interests.
13. Employment and Service Rights. Nothing in the Plan or any award
pursuant to the Plan shall (i) confer upon any employee any right to be
continued in the employment of the Company or any parent or subsidiary
corporation of the Company or shall interfere in any way with the right of the
Company or any parent or subsidiary corporation of the Company by whom such
employee is employed to terminate such employee's employment at any time, for
any reason, with or without cause, or to increase or decrease such employee's
compensation or benefits; or (ii) confer upon any person engaged by the Company
or any parent or subsidiary corporation of the Company any right to be retained
or employed by the Company or the parent or subsidiary or to the continuation,
extension, renewal, or modification of any compensation, contract, or
arrangement with or by the Company or the parent or subsidiary.
14. Rights as a Shareholder. The recipient of any award under the Plan
shall have no rights as a shareholder with respect to any Shares until the date
of issue to the recipient of a share certificate for such Shares. Except as
otherwise expressly provided in the Plan, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
share certificate is issued.
Approved by the Board of Directors of the Company on January 18, 2000.
<PAGE>
EXHIBIT A
HORTITECH, INC.
2000 STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into this ____ day of ____________2000,
("Date of Grant") between Hortitech, Inc., a Utah corporation (the "Company"),
and __________________________ (the "Optionee")
WHEREAS, the Board of Directors of the Company (the "Board") has
approved and adopted the 2000 Stock Incentive Plan, as amended (the "Plan"),
pursuant to which the Board or a committee thereof is authorized to grant to
employees and other selected persons stock options to purchase shares of common
stock of the Company issuable upon the exercise of such stock options (the
"Shares");
WHEREAS, the Plan provides for the granting of stock options that
either (i) are intended to qualify as "Incentive Stock Options" within the
meaning of Section 422 of the United States Internal Revenue Code of 1986, as
amended (the "Code"), or (ii) do not qualify under Section 422 of the Code
("Nonqualified Stock Options");
WHEREAS, the Board has authorized the grant to Optionee of options
to purchase a total of ____________________ Shares (the "Options"), which
Options are intended to be (select one):
_____ Incentive Stock Options
_____ Nonqualified Stock Options;
WHEREAS, the Company and the Company's subsidiaries, desire to
attract and maintain qualified individuals as employees and believe that the
ability to grant employees options to purchase common stock in the Company
under certain circumstances enhances the value of the option for the employee
and more closely aligns the employee's interest with the Company and its
subsidiaries;
NOW, THEREFORE, the Company agrees to offer to the Optionee the
option to purchase, upon the terms and conditions set forth herein and in the
Plan, Shares. Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Plan.
1. Exercise Price. The exercise price of the options shall be
$______ per Share on the date of grant.
2. Limitation on the Number of Shares. If the Options granted
hereby are Incentive Stock Options, the number of shares which may be acquired
upon exercise thereof is subject to the limitations set forth in Section 6(b)
of the Plan.
3. Vesting and Exercise Schedule. The Vesting and Exercise
Schedule shall be determined on an individual basis for each Optionee.
4. Options not Transferable. This Option may not be
transferred, assigned, pledged or hypothecated in any manner (whether by
operation of law or otherwise) other than by will, by applicable laws of
descent and distribution or (except in the case of an Incentive Stock Option)
pursuant to a qualified domestic relations order, and shall not be subject to
execution, attachment or similar process; provided, however, that if this
Option represents a Nonqualified Stock Option, such Option is transferable
without payment of consideration to immediate family members of the Optionee or
to trusts or partnerships established exclusively for the benefit of the
Optionee and the Optionee's immediate family members. Upon any attempt to
transfer, pledge, hypothecate or otherwise dispose of any Option or of
<PAGE>
any right or privilege conferred by the Plan contrary to the provisions
thereof, or upon the sale, levy or attachment or similar process upon the
rights and privileges conferred by the Plan, such Option shall thereupon
terminate and become null and void.
5. Investment Intent. By accepting the Option, the Optionee
represents and agrees that none of the Shares purchased upon exercise of the
Option will be distributed in violation of applicable federal and state laws
and regulations. In addition, the Company may require, as a condition of
exercising the Options, that the Optionee execute an undertaking, in such a
form as the Company shall reasonably specify, that the Shares are being
purchased only for investment and without any then-present intention to sell or
distribute such shares.
6. Termination of Options. Vested Options shall terminate, to
the extent not previously exercised, in the amounts and at the times set forth
below:
(i) Expiration: Upon the tenth anniversary of the Date of
Grant, the entire Option shall terminate.
(ii) Termination: Upon the termination of the employment
or service of the Optionee by the Company or a parent or
subsidiary corporation of the Company for any reason other
than because of death, physical disability, cause or
voluntary termination not related to normal retirement, the
entire Option shall terminate, provided that, the Option
may be exercised at any time prior to the expiration date of
the Option or the expiration of three months [one year for
an option granted to an officer, two years for an option
granted to a non-employee director] after the date of such
termination, whichever is the shorter period, but only if
and to the extent the Optionee was entitled to exercise the
Option at the date of such termination.
(iii) Termination as a Result of Disability: Upon the
termination of the Optionee's employment or service with the
Company or a parent or subsidiary corporation of the Company
because the Optionee becomes disabled (within the meaning of
Section 22(e)(3) of the Code), the entire Option shall
terminate, provided that, the Option may be exercised at any
time prior to the expiration date of the Option or the
expiration of one year after the date of such termination,
whichever is the shorter period, but only if and to the
extent the Optionee was entitled to exercise the Option at
the date of such termination.
(iv) Death of Optionee: Upon the death of an Optionee while
employed by or providing services to the Company or a parent
or subsidiary corporation of the Company, the entire Option
shall terminate, provided that, the Option may be exercised
at any time prior to the expiration date of the Option or
the expiration of one year after the date of such death,
whichever is the shorter period, but only if and to the
extent the Optionee was entitled to exercise the Option on
the date of death, and only by the person or persons to whom
such Optionee's rights under the Option shall pass by the
Optionee's will or by the laws of descent and distribution
of the Optionee's state of domicile at the time of death.
(v) Termination for Cause: Upon the termination of the
Optionee's employment or service with the Company or a
parent or subsidiary corporation of the Company for cause
(as determined in the sole discretion of the Administrator)
or because of voluntary termination not related to normal
retirement, the entire Option shall terminate.
The Administrator, at the time of grant or at any time thereafter, may extend
the three-month and one-year expiration periods any length of time not later
than the original expiration date of the Option, and may increase the portion
of an Option that is exercisable, subject to such terms and conditions as the
Administrator may determine.
7. Lock-Up Agreement. If a Qualified Public Offering (as
<PAGE>
defined below) of common stock of the Company shall be proposed, each Optionee
hereby agrees, at the request of a managing underwriter of such Qualified
Public Offering, to enter into any agreement (a "Lock-Up Agreement") proposed
by such managing underwriter not to transfer such Optionee's Shares for a
period not exceeding six months after the closing date of such Qualified Public
Offering. Whether or not a Qualified Public Offering shall have been proposed,
the Company may delay, and may instruct its transfer agent to delay, the
delivery of any certificate or certificates for Shares until the Company shall
have received a written undertaking from the recipient that the Optionee will
enter into any Lock-Up Agreement as may be requested by a managing underwriter
of a proposed Qualified Public Offering.
A "Qualified Public Offering" is defined as an underwritten
public offering of the Company's common stock pursuant to an effective
registration statement under the United States Securities Act of 1933, as
amended, covering the offer and sale of common stock for cash for the account
of the Company to the public.
8. Changes in Capital Structure. In the case of any share
split, share dividend or like change in the nature of Shares covered by this
Agreement, the number of Shares and exercise price shall be proportionately
adjusted as set forth in paragraph 10 of the Plan.
9. Exercise of Option. Except as provided in paragraph 6(f) of
the Plan and Section 6 of this Agreement, or as determined by the
Administrator, no Option may be exercised unless at the time of such exercise
the Optionee is employed by or in the service of the Company or any parent or
subsidiary corporation of the Company and shall have been so employed or have
provided such service continuously since the date such Option was granted.
With respect to Nonqualified Stock Options, absence on leave or on account of
illness or disability under rules established by the Administrator shall not,
however, be deemed an interruption of employment for purposes of this
Agreement. Unless otherwise determined by the Administrator, vesting of
Options shall not continue during an absence on leave (including an extended
illness) or on account of disability. At such time as the officers and
directors of the Company become subject to Section 16(b) of the Exchange Act,
no Option may be exercised by an officer or director of the Company within six
months of the date of grant. Except as provided in Section 6 of this Agreement
and paragraphs 6(e), 8 and 9 of the Plan, Options may be exercised from time to
time over the period stated herein in such amounts and at such times as shall
be prescribed by the Administrator, provided that Options shall not be
exercised for fractional shares.
Unless the Administrator determines otherwise, Shares may be
acquired pursuant to an Option only upon receipt by the Company of notice in
writing from the Optionee of the Optionee's intention to exercise,
substantially in the form attached hereto as Exhibit A, specifying the number
of Shares as to which the Optionee desires to exercise the Option, and, if
required, to comply with the United States Securities Act of 1933, as amended,
or state securities laws, the notice shall include a representation that it is
the Optionee's present intention to acquire the Shares for investment and not
with a view to distribution. The certificates representing the Shares shall
bear any legends required by the Administrator and this Agreement. Unless the
Administrator determines otherwise, on or before the date specified for
completion of the purchase of Shares pursuant to an Option, the Optionee must
have paid the Company the full purchase price of such Shares in cash
(including, with the consent of the Administrator, cash that may be the
proceeds of a loan from the Company evidenced by a promissory note which may or
may not, at the discretion of the Administrator, bear interest and have such
other terms as the Administrator shall specify), or, with the consent of the
Administrator, in whole or in part, in Shares valued at fair market value, as
determined pursuant to paragraph 6 (b) (iv) of the Plan. Unless the
Administrator determines otherwise, all payments made to the Company in
connection with the exercise of an Option must be made by a certified or
cashier's bank check or by the transfer of immediately available funds. No
Shares shall be issued until full payment therefor has been made. With the
consent of the Administrator, an Optionee may request the Company to apply the
fair market value (determined pursuant to paragraph 6(b)(iv) of the Plan) of
previously outstanding Shares surrendered by the Optionee or the Shares to be
received upon the exercise of a portion of a Option (even though share
certificates have not yet been issued) to satisfy the purchase price for Shares
issuable upon exercise of the Option. Each Optionee who has exercised an
Option shall immediately upon notification of the amount due, if any, pay to
the Company in cash (including, with the consent of the Administrator, cash
that may be the proceeds of a bonus or of a loan by the Company evidenced by a
promissory note which may or may not bear interest and have such other terms as
the Administrator shall specify) amounts necessary to satisfy any applicable
federal, state and local tax withholding requirements. If additional
withholding is or becomes required beyond any amount deposited
<PAGE>
before delivery of the certificates, the Optionee shall pay such amount to the
Company on demand. If the Optionee fails to pay the amount demanded, the
Company or any parent or subsidiary corporation of the Company may withhold
that amount from other amounts payable to the Optionee by the Company or the
parent or subsidiary corporation, including salary, subject to applicable law.
With the consent of the Administrator, an Optionee may deliver Shares to the
Company to satisfy the withholding obligation.
10. Holding Period for Incentive Stock Options. In order to
obtain the tax treatment provided for Incentive Stock Options by Section 422 of
the Code, the Shares received upon exercising any Incentive Stock Options
received pursuant to this Agreement must be sold, if at all, after a date which
is the later of two (2) years from the date this Agreement is entered into or
one (1) year from the date upon which the Options are exercised. If the Shares
are sold sooner than such date, an amount equal to the lesser of (i) the
difference between the exercise price and the fair value of the Shares on the
date of exercise or (ii) the difference between the exercise price and the sale
price of the Shares, will be treated as ordinary income under the
Code. The Optionee agrees to report sales of such Shares prior to the above
determined date to the Company within one (1) business day after such sale is
concluded. The Optionee also agrees to pay to the Company, on the date such
sale is concluded, the amount necessary for the Company to satisfy its
withholding requirement required by the Code in the manner specified in Section
6(f) of the Plan. Nothing in this Section 10 is intended as a representation
that Shares may be sold without registration under state and federal securities
laws or an exemption therefrom, or that such registration or exemption will be
available at any specified time.
11. Restrictions on Transferability of Shares. Upon exercise of
the Option by Optionee and delivery by the Company of the Shares, the following
restrictions shall apply:
(i) General Restriction on Voluntary Transfer of Shares.
(a) Except as expressly provided in subsection (ii) below, no
Optionee shall sell, assign, transfer, pledge, encumber,
give, devise or in any other way dispose of all or any part
of the Shares, or any interest therein, nor shall the
Shares, or any interest therein, be transferable on the books
of the Company, without the prior written consent of the
Company. Any attempt to dispose of the Shares, or any
interest therein, in violation of this Agreement shall be
null and void and shall not entitle the purported transferee
to register the Shares in such transferees name. The term
"dispose of" includes but is not limited to any act of
selling, assigning, conveying, pledging, hypothecating,
encumbering, giving, or in any other manner transferring,
whether directly or indirectly, voluntarily or involuntarily,
whether by inter vivos act, will or intestacy, all or any
portion of any interest in the Shares, or any rights or
obligations related thereto, or any interest in any entity
which directly or indirectly owns all or any portion of any
interest in the Shares.
(b) If the consent required by this Section 11 is
granted, it shall in no manner relieve the Optionee of any of
the Optionee's obligations under this Agreement, and the
transferee(s) shall take the Shares subject to all of the
restrictions, terms and conditions contained in this
Agreement as if the transferee(s) were a party hereto.
(c) Notwithstanding anything contained in this
Agreement to the contrary, no disposition pursuant to this
subsection (i) shall be valid unless simultaneous with the
disposition the transferee undertakes to be bound by the
terms and conditions of this Agreement and deposits with the
Secretary of the Company any other document requested by
Company to confirm such transferee's agreement to be bound by
all terms of this Agreement.
(ii) Transfers to Family Members.
(a) Notwithstanding anything contained in this
Agreement to the contrary, an Optionee may dispose of any
Shares, or interest therein, to a "Family Member" (as defined
below) without restriction. The term "Family Member" shall
<PAGE>
mean: (1) the spouse of the Optionee; (2) any lawful lineal
descendant (by natural birth or lawful adoption) of the
Optionee; or (3) any entity in which the beneficial owners
and managers consist entirely of the Optionee and/or one or
more of the foregoing individuals. The Shares received by a
Family Member pursuant to this subsection may not be
transferred by that transferee-Family Member pursuant to this
subsection.
(b) If the Shares are transferred to one or more
"Family Members," it shall in no manner relieve the Optionee
of Optionee's obligations under this Agreement, and the
Family Members shall take such Shares subject to all of the
restrictions, terms and conditions contained in this
Agreement as if they were a party hereto.
(c) Notwithstanding anything contained in this
Agreement to the contrary, no disposition pursuant to this
subsection (ii) shall be valid unless simultaneous with the
disposition the transferee undertakes to be bound by the
provisions of this Agreement and deposits with the Secretary
of the Company any other document requested by Company to
confirm such transferee's agreement to be bound by all terms
of this Agreement.
12. Restrictive Legend on Stock Certificates. All certificates
representing the Shares shall bear the following legend or such other legend as
may be required by the Company:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE'S SECURITIES LAWS, AS
AMENDED, AND THEY MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION OR AN OPINION OF COUNSEL FOR THE ISSUER AS TO THE
AVAILABILITY OF AN EXEMPTION FROM REGISTRATION, UNDER SUCH LAWS.
13. Custody of Stock Certificates. The Company shall retain
possession of all stock certificates now,heretofore or hereafter issued for all
Shares. The Optionee shall at all times turn over to the Secretary any stock
certificates representing the Shares issued or standing in Optionee's name or
which Optionee may own or possess. The Optionee hereby constitutes and
appoints the President or Secretary of the Company as his or her
attorney-in-fact to hold, accept and deliver his or her stock certificates as
required by the terms of this Agreement.
14. Subject to 2000 Stock Incentive Plan. The terms of the
Options are subject to the provisions of the Plan, as the same may from time to
time be amended, and any inconsistencies between this Agreement and the Plan,
as the same may be from time to time amended, shall be governed by the
provisions of the Plan, a copy of which has been delivered to the Optionee, and
which is available for inspection at the principal offices of the Company
15. Professional Advice. The acceptance of the Options and the
sale of Shares issued pursuant to the exercise of Options may have consequences
under federal and state tax and securities laws which may vary depending upon
the individual circumstances of the Optionee. Accordingly, the Optionee
acknowledges that he or she has been advised to consult his or her personal
legal and tax advisor in connection with this Agreement and his or her dealings
with respect to Options for the Shares. Without limiting other matters to be
considered, the Optionee should consider whether upon the exercise of Options,
the Optionee will file an election with the Internal Revenue Service pursuant
to Section 83(b) of the Code.
16. No Employment Relationship. Nothing in the Plan or this
Agreement shall (i) confer upon any employee any right to be continued in the
employment of the Company or any parent or subsidiary corporation of the
Company or shall interfere in any way with the right of the Company or any
parent or subsidiary corporation of the Company by whom such employee is
employed to terminate such employee's employment at any time, for any reason,
with or without cause, or to increase or decrease such employee's compensation
<PAGE>
or benefits; or (ii) confer upon any person engaged by the Company or any
parent or subsidiary corporation of the Company any right to be retained or
employed by the Company or the parent or subsidiary or to the continuation,
extension, renewal, or modification of any compensation, contract, or
arrangement with or by the Company or the parent or subsidiary.
17. Entire Agreement. This Agreement is the only agreement
between the Optionee and the Company with respect to the Options, and this
Agreement and the Plan supersede all prior and contemporaneous oral and written
statements and representations and contain the entire agreement between the
parties with respect to the Options.
18. Notices. Any notice required or permitted to be made or given
hereunder shall be mailed or delivered personally to the addresses set forth
below, or as changed from time to time by written notice to the other:
The Company: Hortitech, Inc.
9594 First Avenue NE, #545
Seattle, WA 98115-2012
The Optionee: ____________________________
____________________________
____________________________
HORTITECH, INC. OPTIONEE:
/s/ /s/
By: --------------------------- ----------------------------
Its: /s/ Signature
---------------------------
THERE MAY NOT BE PRESENTLY AVAILABLE EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF APPLICABLE FEDERAL AND STATE SECURITIES LAWS FOR
THE ISSUANCE OF SHARES UPON EXERCISE OF THESE OPTIONS. ACCORDINGLY, THESE
OPTIONS CANNOT BE EXERCISED UNLESS THESE OPTIONS AND THE SHARES TO BE ISSUED
UPON EXERCISE OF THESE OPTIONS ARE REGISTERED OR AN EXEMPTION FROM SUCH
REGISTRATION REQUIREMENTS IS AVAILABLE.
THE SHARES ISSUED PURSUANT TO THE EXERCISE OF OPTIONS WILL BE
"RESTRICTED SECURITIES" AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1933
AND WILL BEAR A LEGEND RESTRICTING RESALE UNLESS THEY ARE REGISTERED UNDER
STATE AND FEDERAL SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE. THE COMPANY IS NOT OBLIGATED TO REGISTER THE SHARES OR TO MAKE
AVAILABLE ANY EXEMPTION FROM REGISTRATION.
<PAGE>
EXHIBIT A
Notice of Election to Exercise
This Notice of Election to Exercise shall constitute proper notice
pursuant to Section 6(g) of the Hortitech, Inc. 2000 Stock Incentive Plan (the
"Plan") and Section 9 of that certain Stock Option Agreement (the "Agreement")
dated as of the ____ day of _____________, ________ between Hortitech, Inc.
(the "Company") and the undersigned.
The undersigned hereby elects to exercise Optionee's option to
purchase _______________ shares of the common stock of the Company (the
"Shares") at a purchase price of $_______ per share, for aggregate
consideration of $________________, on the terms and conditions set forth in
the Agreement and the Plan. Such aggregate consideration, in the form
specified in Section 9 of the Agreement, accompanies this notice.
The undersigned hereby represents that the undersigned is purchasing
the shares only for investment purposes and not with a present intent to sell
or distribute the shares.
The undersigned has executed this Notice this ____ day of
____________, ________.
/S/
---------------------------------
Signature
__________________________________
Name (typed or printed)
February 16, 2000
Securities and Exchange commission
450 Fifth Street, NW
Washington, DC 20549
Re: MicroAccel, Inc., a Utah corporation formerly known as "Hortitech, Inc."
(the "Company) Commission File No. 33-9782-LA
Ladies and Gentlemen:
We were previously the independent accountants for the Company and on February
6, 1999 we reported on the financial statements of the Company for the fiscal
year ended December 31, 1998.
We have read the Company's statements included under Item 4 of its current
report of Form 8-K dated February 1, 2000 and have no disagreements with the
disclosure made therein as it relates to Jones, Jensen & Company.
Very truly yours,
/s/ Jones, Jensen & Company
Jones, Jensen & Company
