As filed with the Securities and Exchange Commission on February 14, 2000
Registration No.
----------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Chadmoore Wireless Group, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Colorado 84-1058165
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2875 East Patrick Lane, Suite G, Las Vegas, Nevada 89120
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Chadmoore Wireless Group, Inc. 1998 Stock Option Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
The Corporation Company, 1675 Broadway, Denver, Colorado 80202
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(702) 740-5633
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share (1) price (1) registration fee (1)
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 Par Value (2) 3,000,000 $.72 $2,160,000 $570.24
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Totals 3,000,000 $2,160,000 $570.24
========================= ====================== ======================= ====================== ======================
</TABLE>
(1) Because neither the offering price of shares of Common Stock being
registered nor the exercise price of any options to be granted under the
Chadmoore Wireless Group, Inc. 1998 Stock Option Plan is known at this
time, the proposed maximum offering price per share, the proposed maximum
aggregate offering price and the registration fee with respect to these
shares have been calculated pursuant to Rule 457(h)(1) and Rule 457(c) of
Regulation C under the Securities Act of 1933, as amended, which require
that, solely for purposes of calculating the registration fee, these
figures are based upon the average of the bid and asked price per share of
the Registrant's common stock on a date within five (5) days prior to the
date of filing of this Registration Statement, as reported on the National
Association of Securities Dealers, Inc. OTC Bulletin Board.
(2) To be issued, at the sole discretion of the Registrant, directly or
pursuant to options under the Chadmoore Wireless Group, Inc. 1998 Stock
Option Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The document(s) containing the information concerning the Chadmoore
Wireless Group, Inc. 1998 Stock Option Plan, as amended February 11, 2000 (the
"Plan"), required by Item 1 of Form S-8, and the statement of availability of
registrant information and other information required by Item 2 of Form S-8 will
be sent or given to participants as specified by Rule 428. In accordance with
Rule 428 and the requirements of Part I of Form S-8, such documents are not
being filed with the Securities and Exchange Commission (the "Commission")
either as part of this registration statement on Form S-8 (the "Registration
Statement") or as prospectuses or prospectus supplements pursuant to Rule 424.
Chadmoore Wireless Group, Inc., a Colorado corporation (the "Company"), shall
maintain a file of such documents in accordance with the provisions of Rule 428.
Upon request, the Company shall furnish to the Commission or its staff a copy or
copies of all of the documents included in such file.
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Incorporated by reference into this Registration Statement are the
contents of the Company's Annual Report on Form 10-KSB for the year ended
December 31, 1998; Quarterly Reports on Form 10-QSB for the periods ended March
31, 1999, June 30, 1999 and September 30, 1999; and Current Reports on Form 8-K
filed March 3, 1999, March 10, 1999, March 16, 1999, August 2, 1999 and August
2, 1999. All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, after the date of this Registration Statement and prior to the
termination of the offering shall be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement. The Company will provide without charge to each person to whom a copy
of this Registration Statement is delivered, on the written or oral request of
such person, a copy of any or all of the documents referred to above which have
been or may be incorporated by reference into this Registration Statement, other
than certain exhibits to such documents. Requests for such copies shall be
directed to Shareholder Relations, Chadmoore Wireless Group, Inc., 2875 East
Patrick Lane, Suite G, Las Vegas, Nevada 89120 (telephone: 702-740-5633).
Item 4. Description of Securities.
Common Stock.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Article 109 of the Colorado Business Corporation Act, and Article X of
the Company's Articles of Incorporation, as amended, generally permit the
Company to indemnify any officer or director of the Company for claims and
liabilities, including legal expenses, which he may incur in his capacity as
such, provided that he acted in good faith and in a manner that he reasonably
believed to be in the best interests of the Company. However, he may not be
indemnified in connection with a proceeding in which he is found to be liable to
the Company or where he is found to have received an improper personal benefit
from the Company. To the extent that an officer or director is successful in
defending himself in any proceeding to which he was a party, he is to be
indemnified against his reasonable expenses incurred by him in connection with
the proceeding.
In addition, Article XIV of the Company's Articles of Incorporation
limits the liability of directors for monetary damages for certain breaches of
fiduciary duties, as permitted under the Colorado Business Corporation Act.
Item 7. Exemption From Registration Claimed.
Not applicable.
2
<PAGE>
Item 8. Exhibits.
Exhibit Number Description
-------------- -----------
4.9 The Company's Articles of Incorporation, as
amended, which define the rights of holders
of the equity securities being registered.
(Incorporated by reference to Exhibits 3.2,
3.3, 3.4 and 3.5 to the Company's Form
10-KSB for the year ended December 31,
1995).
4.10 The Company's Bylaws, as amended, which
define the rights of holders of the equity
securities being registered. (Incorporated
by reference to Exhibit 3 to the Company's
Registration Statement on Form S-18 (file
no. 33-14841-D)).
5.5 Opinion of Counsel, Futro & Trauernicht LLC.
(Filed herewith.)
10.36 Chadmoore Wireless Group, Inc. 1998 Stock
Option Plan. (Filed herewith.)
23.6 Consent of Arthur Andersen LLP.
(Filed herewith.)
23.7 Consent of Counsel, Futro & Trauernicht LLC.
(Included in Exhibit 5.5.)
Item 9. Undertakings.
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit
3
<PAGE>
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling
persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other that the payment by the Company of expenses incurred or paid by
a director, officer, or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer, or controlling person of the Company in the
successful defense of that action suit, or proceeding) is asserted by
such director, officer, or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement or amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Las Vegas, State of Nevada, on the 14th day of
February, 2000.
CHADMOORE WIRELESS GROUP, INC.
By: /s/ Robert W. Moore
---------------------------------------------------
Robert W. Moore, President, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
By: /s/ Robert W. Moore
---------------------------------------------------
Robert W. Moore, President, Chief Executive Officer,
Director
Dated: February 14, 2000
By: /s/ Stephen K. Radusch
---------------------------------------------------
Stephen K. Radusch, Chief Financial Officer
Dated: February 14, 2000
By: /s/ Rick D. Rhodes
---------------------------------------------------
Rick D. Rhodes, Senior Vice President, Secretary,
Chief Regulatory Officer
Dated: February 14, 2000
By: /s/ Janice H. Pellar
---------------------------------------------------
Janice H. Pellar, Director
Dated: February 14, 2000
By: /s/ Mark F. Sullivan
---------------------------------------------------
Mark F. Sullivan, Director
Dated: February 14, 2000
5
<PAGE>
By: /s/ Jeff A. Lipkin
---------------------------------------------------
Jeff A. Lipkin, Director
Dated: February 14, 2000
By: /s/ Gary L. Stanford
---------------------------------------------------
Gary L. Stanford, Director
Dated: February 14, 2000
By: /s/ Joe J. Finn-Egan
---------------------------------------------------
Joe J. Finn-Egan, Director
Dated: February 14, 2000
6
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
4.9 The Company's Articles of Incorporation, as
amended, which define the rights of holders
of the equity securities being registered.
(Incorporated by reference to Exhibits 3.2,
3.3, 3.4 and 3.5 to the Company's Form
10-KSB for the year ended December 31,
1995).
4.10 The Company's Bylaws, as amended, which
define the rights of holders of the equity
securities being registered. (Incorporated
by reference to Exhibit 3 to the Company's
Registration Statement on Form S-18 (file
no. 33-14841-D)).
5.5 Opinion of Counsel, Futro & Trauernicht LLC.
(Filed herewith.)
10.36 Chadmoore Wireless Group, Inc. 1998 Stock
Option Plan. (Filed herewith.)
23.6 Consent of Arthur Andersen LLP.
(Filed herewith.)
23.7 Consent of Counsel, Futro & Trauernicht LLC.
(Included in Exhibit 5.5.)
Exhibit 5.5
FUTRO & TRAUERNICHT LLC
Attorneys and Counselors at Law
ALAMO PLAZA
1401 SEVENTEENTH STREET - 11TH FLOOR
DENVER, COLORADO 80202
TELEPHONE (303) 295-3360
FACSIMILE (303) 295-1563
WITH OFFICES IN
---------------
[email protected] LOS ANGELES, CALIFORNIA
February 11, 2000
U.S. Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington D.C. 20549
Re: Chadmoore Wireless Group, Inc.
OPINION OF COUNSEL NO. 00-042.2
Form S-8 Registration Statement for the "Chadmoore Wireless
Group, Inc. 1998 Stock Option Plan"
Ladies and Gentlemen:
OPINION OF COUNSEL
------------------
We have acted as counsel to Chadmoore Wireless Group, Inc. (the
"Company") in connection with the preparation and filing of a Registration
Statement on Form S-8 (the "Registration Statement") covering registration under
the Securities Act of 1933, as amended, of 3,000,000 shares of the Company's
common stock, $.001 par value per share (the "Shares"), pursuant to the employee
benefit plan of the Company entitled the "Chadmoore Wireless Group, Inc. 1998
Stock Option Plan" as amended February 11, 2000 (the "Plan"). As such, we have
examined the Registration Statement, the Plan, the Company's Articles of
Incorporation and Bylaws, as amended, and minutes of meetings of its Board of
Directors.
Based upon the foregoing, and assuming that the Shares will be issued
as set forth in the Plan and Registration Statement, at a time when effective,
and that the Company will fully comply with all applicable securities laws
involved under the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated pursuant to
said Acts, and in those states or foreign jurisdictions in which the Shares may
be sold, we are of the opinion that, upon proper and legal issuance of the
Shares and receipt of the consideration to be paid for the Shares, the Shares
will be validly issued, fully paid and nonassessable shares of common stock of
the Company. This opinion does not cover any matters related to any re-offer or
re-sale of the Shares by any Plan participants, once properly and legally issued
pursuant to the Plan as described in the Registration Statement.
This opinion is not to be used, circulated, quoted or otherwise
referred to for any other purpose without our prior written consent. This
opinion is based on our knowledge of the law and facts as of the
<PAGE>
U.S. Securities and Exchange Commission
OPINION OF COUNSEL NO. 00-42.2
February 11, 2000
Page 2
date hereof. This opinion does not address or relate to any specific state
securities laws. We assume no duty to communicate with the Company in respect to
any matter which comes to our attention hereafter.
CONSENT
-------
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the reference to our firm in any prospectus which is
incorporated by reference into and made a part of the Registration Statement.
/s/ Futro & Trauernicht LLC
FUTRO & TRAUERNICHT LLC
Exhibit 10.36
CHADMOORE WIRELESS GROUP, INC.
1998 STOCK OPTION PLAN
(As Amended February 11, 2000)
1. Purposes of the Plan. The purposes of this Stock Option Plan are to
attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentives to
Employees, Non-Employee Directors and Consultants of the Company and
its Subsidiaries, and to promote the success of the Company's business.
Options granted hereunder may be either Incentive Stock Options or
Nonstatutory Stock Options at the discretion of the Committee.
2. Definitions. As used herein, and in any Option granted hereunder, the
following definitions shall apply:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Common Stock" shall mean the Common Stock of the Company.
(d) "Company" shall mean Chadmoore Wireless Group, Inc., a
Colorado corporation.
(e) "Committee" shall mean the Committee appointed by the Board in
accordance with paragraph (a) of Section 4 of the Plan. If the
Board does not appoint or ceases to maintain a Committee, the
term "Committee" shall refer to the Board.
(f) "Consultant" shall mean any independent contractor retained to
perform services for the Company or any Subsidiary.
(g) "Continuous Employment" shall mean the absence of any
interruption or termination of service as an Employee or
Non-Employee Director by the Company or any Subsidiary.
Continuous Employment shall not be considered interrupted
during any period of sick leave, military leave or any other
leave of absence approved by the Board or in the case of
transfers between locations of the Company or between the
Company and any Parent, Subsidiary or successor of the
Company.
(h) "Covered Employee" shall mean any individual whose
compensation is subject to the limitations on tax
deductibility provided by Section 162(m) of the Code and any
Treasury Regulations promulgated thereunder in effect at the
close of the taxable year of the Company in which an Option
has been granted to such individual.
(i) "Employee" shall mean any person, including officers (whether
or not they are directors), employed by the Company or any
Subsidiary.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
<PAGE>
(k) "Incentive Stock Option" shall mean any option granted under
this Plan and any other option granted to an Employee in
accordance with the provisions of Section 422 of the Code, and
the regulations promulgated thereunder.
(l) "Non Employee Director" shall mean any director of the Company
or any Subsidiary who (i) is not employed by the Company or
such Subsidiary; (ii) does not receive compensation either
directly or indirectly, from the Company or a parent or
Subsidiary for services rendered as a consultant or in any
capacity other than as a director, except for an amount that
does not exceed the dollar amount for which disclosure would
be required pursuant to Item 404(a) of Regulation S-K; (iii)
does not possess an interest in any other transaction for
which disclosure would be required pursuant to Item 404(a) of
Regulation S-K; and (iv) is not engaged in a business
relationship for which disclosure would be required pursuant
to Item 404(b) of Regulation S-K.
(m) "Nonstatutory Stock Option" shall mean an Option granted under
the Plan that is subject to the provisions of Section 1.83-7
of the Treasury Regulations promulgated under Section 83 of
the Code.
(n) "Option" shall mean a stock option granted pursuant to the
Plan.
(o) "Option Agreement" shall mean a written agreement between the
Company and the Optionee regarding the grant and exercise of
Options to purchase Shares and the terms and conditions
thereof as determined by the Committee pursuant to the Plan.
(p) "Optioned Shares" shall mean the Common Stock subject to an
Option.
(q) "Optionee" shall mean an Employee, Non-Employee Director or
Consultant who receives an Option.
(r) "Outside Director" shall mean a director of the Company who
qualifies as an outside director as such term is used in
Section 162(m) of the Code and defined in any applicable
Treasury Regulations promulgated thereunder.
(s) "Parent" shall remain a "parent corporation," whether now or
hereafter existing, as defined by Section 424(e) of the Code.
(t) "Plan" shall mean this 1998 Stock Option Plan.
(u) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(v) "Share" shall mean a share of Common Stock of the Company
subject to an Option, as adjusted in accordance with Section
11 of the Plan.
(w) "Subsidiary" shall mean a "subsidiary corporation," whether
now or hereafter existing, as defined in Section 424(f) of the
Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11 of
the Plan, the maximum aggregate number of Shares which may be optioned
and sold under the Plan is 3,000,000 Shares. The Shares may be
authorized but unissued or reacquired shares of Common Stock. If an
Option expires or becomes
<PAGE>
unexercisable for any reason without having been exercised in full, the
Shares which were subject to the Option but as to which the Option was
not exercised shall become available for other Option grants under the
Plan unless the Plan shall have been terminated.
4. Administration of the Plan.
(a) Procedure. The Plan and all Option grants shall be
administered and approved by a Committee comprised solely of
two or more Outside Directors.
(b) Powers of the Committee. Subject to the provisions of the
Plan, the Committee shall have the authority: (i) to
determine, upon review of relevant information, the fair
market value of the Common Stock; (ii) to determine the
exercise price of Options to be granted, the Employees,
Non-Employee Directors or Consultants to whom and the time or
times at which Options shall be granted, and the number of
Shares to be represented by each Option; (iii) to interpret
the Plan; (iv) to prescribe, amend and rescind rules and
regulations relating to the Plan; (iv) to prescribe, amend and
rescind rules and regulations relating to the Plan; (v) to
determine the terms and provisions of each Option granted
under the Plan (which need not be identical) and, with the
consent of the holder thereof, to modify or amend any Option;
(vi) to authorize any person to execute on behalf of the
Company any instrument required to effectuate the grant of an
Option previously granted by the Committee; (vii) defer an
exercise date of any Option (with the consent of the
Optionee), subject to the provisions of Section 9(a) of the
Plan; (viii) to determine whether Options granted under the
Plan will be Incentive Stock Options or Nonstatutory Stock
Options; and (ix) to make all other determinations deemed
necessary or advisable for the administration of the Plan.
(c) Acceleration of Vesting. In addition to its other powers, the
Committee, in its discretion, has the right to accelerate
unvested options in connection with (i) any tender offer for a
majority of the outstanding shares of Common Stock by any
person or entity; (ii) any proposed sale or conveyance of all
or substantially all of the property and assets of the
Company; or (iii) any proposed consolidation or merger of the
Company with or into any other corporation, unless the Company
is the surviving corporation. In the case of such accelerated
vesting, the Company shall give written notice to the holder
of any option that such option may be exercised even though
the option or portion thereof would not otherwise have been
exercisable had the foregoing event not occurred. In such
event, the Company shall permit the holder of any option to
exercise during the time period specified in the Company's
notice, which period shall not be less than ten days following
the date of notice. Upon consummation of a tender offer or
proposed sale, conveyance, consolidation or merger to which
such notice shall relate, all rights under said option which
shall not have been so exercised shall terminate unless the
agreement governing the transaction shall provide otherwise.
<PAGE>
(d) Effect of Committee's Decision. All decisions, determinations
and interpretations of the Committee shall be final and
binding on all potential or actual Optionees, any other holder
of an Option or other equity security of the Company and all
other persons.
5. Eligibility.
(a) Persons Eligible for Options. Options under the Plan may be
granted only to Employees, Non-Employee Directors or
Consultants whom the Committee, in its sole discretion, may
designate from time to time. Incentive Stock Options may be
granted only to Employees. An Employee who has been granted an
Option, if he or she is otherwise eligible, may be granted an
additional Option or Options. However, the aggregate fair
market value (determined in accordance with the provisions of
Section 8(a) of the Plan) of the shares subject to one or more
Incentive Stock Options grants that are exercisable for the
first time by an Optionee during any calendar year (under all
stock option plans of the Company and its Parents and
Subsidiaries) shall not exceed $100,000 (determined as of the
grant date). Options under the Plan shall be granted to
Covered Employees upon satisfaction of the conditions to such
grants provided pursuant to Section 162(m) and any Treasury
Regulations promulgated thereunder.
(b) No Right to Continuing Employment. Neither the establishment
nor the operation of the Plan shall confer upon any Optionee
or any other person any right with respect to continuation of
employment or other service with the Company or any
Subsidiary, nor shall the Plan interfere in any way with the
right of the Optionee or the right of the Company (or any
Parent or Subsidiary) to terminate such employment or service
at any time.
6. Term of Plan. The Plan shall become effective upon its adoption by the
Board or its approval by vote of the holders of the outstanding shares
of the Company entitled to vote on the adoption of the Plan, whichever
is earlier. It shall continue in effect for a term of ten (10) years
unless sooner terminated under Section 13 of the Plan.
7. Term of Option. Unless the Committee determines otherwise, the term of
each Option granted under the Plan shall be eight (8) years from the
date of grant. The term of the Option shall be set forth in the Option
Agreement. No Incentive Stock Option shall be exercisable after the
expiration of eight (8) years from the date such Option is granted,
provided that no Incentive Stock Option granted to any Employee who, at
the date such Option is granted, owns (within the meaning of Section
215(d) of the Code) more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or any Parent or
Subsidiary shall be exercisable after the expiration of five (5) years
from the date such Option is granted.
<PAGE>
8. Exercise Price and Consideration.
(a) Exercise Price. Except as provided in subsections (b) and (c)
below, the exercise price for the Shares to be issued pursuant
to any Option shall be such price as is determined by the
Committee, which shall in no event be less than (i) in the
case of Incentive Stock Options, the fair market value of such
Shares on the date the Option is granted; or (ii) in the case
of Nonstatutory Stock Options, 85% of such fair market value.
Fair market value of the Common Stock shall be determined by
the Committee, using such criteria as it deems relevant;
provided, however, that if there is a public market for the
Common Stock, the fair market value per Share shall be the
average of the last reported bid and asked prices of the
Common Stock on the date of grant, as reported in The Wall
Street Journal (or, if not so reported, as otherwise reported
by the National Association of Securities Dealers Automated
Quotation (NASDAQ) System) or, in the event the Common Stock
is listed on a national securities exchange (within the
meaning of Section 6 of the Exchange Act) or on the NASDAQ
National Market System (or any successor national market
system), the fair market value per Share shall be the closing
price on such exchange on the date of grant of the Option, as
reported in The Wall Street Journal.
(b) Ten Percent Shareholders. No option that is an Incentive Stock
Option or exempt pursuant to Section 25102(o) of the
California General Corporation Law or shall be granted to any
Employee who, at the date such Option is granted, owns (within
the meaning of Section 424(d) of the Code) more than ten
percent (10%) of the total combined voting power of all
classes of stock of the Company or any Parent or Subsidiary,
unless the exercise price for the Shares to be issued pursuant
to such Option is a least equal to 110 percent (110%) of the
fair market value of such Shares on the grant date determined
by the Committee in the manner set forth in subsection (a)
above.
(c) Section 162(m) Limitations. The Option Price of any Option
granted to a Covered Employee shall be at least equal to the
fair market value of the Shares as of the date of grant as
determined in the manner set forth in subsection (a) above.
(d) Consideration. The consideration to be paid for the Optioned
Shares shall be payment in cash or by check unless payment in
some other manner, including by promissory note, other shares
of the Company's Common Stock or such other consideration and
method of payment for the issuance of Optioned Shares as may
otherwise be permitted by law, is authorized by the Committee
at the time of the grant of the Option. Any cash or other
property received by the Company from the sale of Shares
pursuant to the Plan shall constitute part of the general
assets of the Company.
<PAGE>
9. Exercise of Option.
(a) Vesting Period. Any Option granted hereunder shall be
exercisable at such times and under such conditions as
determined by the Committee and as shall be permissible under
the terms of the Plan, which shall be specified in the Option
Agreement evidencing the Option. Options granted under the
Plan shall vest at a rate of at least twenty five percent
(25%) per year.
(b) Exercise Procedures. An Option shall be deemed to be exercised
when written notice of such exercise has been given to the
Company in accordance with the terms of the option agreement
evidencing the Option, and full payment for the Shares with
respect to which the Option is exercised has been received by
the Company. In lieu of delivery of a cash payment for the
purchase price of the Shares with respect to which the Option
is exercised, the Optionee may deliver to the Company a sell
order to a broker for the Shares being purchased and an
agreement to pay (or have the broker remit payment for) the
purchase price for the Shares being purchased on or before the
settlement date for the sale of such shares to the broker.
Pursuant to the terms of the Option Agreement, the Committee
may require that any Option may be exercised only upon the
execution of a Restricted Stock Transfer Agreement which gives
the Company a right of first refusal in the Option Shares at
the per share price at which the Option Shares are proposed to
be transferred. The right of first refusal shall terminate at
such time as the Company closes a firm commitment public
offering pursuant to the Securities Act of 1933, as amended,
covering the offer and sale of the Company's Common Stock for
the account of the Company. The Restricted Stock Transfer
Agreement shall contain such provisions as the Committee may
approve in its sole discretion.
An Option may not be exercised for fractional shares. As soon
as practicable following the exercise of an Option in the
manner set forth above, the Company shall issue or cause its
transfer agent to issue stock certificates representing the
Shares purchased. Until the issuance of such stock
certificates (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of
the Company), no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect to the
Optioned Shares notwithstanding the exercise of the Option. No
adjustment will be made for a dividend or other rights for
which the record date is prior to the date of the transfer by
the Optionee of the consideration for the purchase of the
Shares, except as provided in Section 11 of the Plan. After
the Registration Date, the exercise of an Option by any person
subject to short-swing trading liability under Section 16(b)
of the Exchange Act shall be subject to compliance with all
applicable requirements of Rule 16(b-3) promulgated under the
Exchange Act.
<PAGE>
(c) Death of Optionee. In the event of the death during the Option
period of an Optionee who is at the time of his death, or was
within the ninety (90) day period immediately prior thereto,
an Employee or Non-Employee Director, and who was in
Continuous Employment as such from the date of the grant of
the Option until the date of death or termination, the Option
may be exercised, at any time prior to the expiration of the
Option period, by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or
inheritance, but only to the extent of the accrued right to
exercise at the time of the termination or death, whichever
comes first.
(d) Disability of Optionee. In the event of the disability (as
defined in Section 22(e)(3) of the Code) during the Option
period of an Optionee who is at the time of such disability,
or was within the ninety (90)-day period prior thereto, an
Employee or Non-Employee Director, and who was in Continuous
Employment as such from the date of the grant of the Option
until the date of such disability or termination, any
Incentive Stock Option may be exercised at any time within one
(1) year following the date of such disability and any
Nonstatutory Stock Option may be exercised, at any time prior
to the expiration of the Option period, but in each case only
to the extent of the accrued right to exercise at the time of
the termination or disability, whichever comes first, and in
the case of an Incentive Stock Option subject to the condition
that no option shall be exercised after the expiration of the
Option period.
(e) Termination of Status as Employee, Non-Employee Director or
Consultant. If an Optionee shall cease to be an Employee or
Non-Employee Director for any reason, the Optionee may, but
only within ninety (90) days (or such other period of time as
is determined by the Committee) after the date he or she
ceases to be an Employee or Non-Employee Director, exercise
his or her Option to the extent that he or she was entitled to
exercise it at the date of such termination, subject to the
condition that no option shall be exercisable after the
expiration of the Option period. Upon such exercise and if so
provided in the Restricted Stock Transfer Agreement, the
Company may, but only within ninety (90) days (or such other
period of time as is determined by the Committee) after the
date of such exercise, repurchase from the Optionee the
Optionee's Option Shares at the higher of the original
purchase price for the Option Shares or fair market value (as
determined by the Company's Board) of the Option Shares on the
date of termination of employment. The right to repurchase
shall be exercisable for cash or cancellation of purchase
money indebtedness.
(f) Net Exercise. The Committee may permit an Optionee to exercise
an Option by delivering shares of the Company's Common Stock.
If the Optionee is so permitted, the option agreement covering
such Option may include provisions authorizing the Optionee to
exercise the Option, in whole or in part, by: (i) delivering
whole shares of the Company's
<PAGE>
Common Stock previously owned by such Optionee (whether or not
acquired through the prior exercise of a stock option) having
a fair market value equal to the aggregate exercise price for
the Optioned Shares issuable on exercise of the Option; and/or
(ii) directing the Company to withhold from the Shares that
would otherwise be issued upon exercise of the Option that
number of whole Shares having a fair market value equal to the
aggregate exercise price of the Optioned Shares issuable on
exercise of the Option. Shares of the Company's Common Stock
so delivered or withheld shall be valued at their fair market
value at the close of the last business day immediately
preceding the date of exercise of the Option, as determined by
the Committee, in accordance with the provisions of Section
8(a) of the Plan. Any balance of the exercise price shall be
paid in cash. Any shares delivered or withheld in accordance
with this provision shall not again become available for
purposes of the Plan and for Options subsequently granted
thereunder.
(g) Tax Withholding. When an Optionee is required to pay to the
Company an amount with respect to tax withholding obligations
in connection with the exercise of an Option granted under the
Plan, the Optionee may elect prior to the date the amount of
such withholding tax is determined (the "Tax Date") to make
such payment, or such increased payment as the Optionee elects
to make up to the maximum federal, state and local marginal
tax rates, including any related FICA obligation, applicable
to the Optionee and the particular transaction, by: (i)
delivering cash; (ii) delivering part or all of the payment in
previously owned shares of Common Stock (whether or not
acquired through the prior exercise of an Option); and/or
(iii) irrevocably directing the Company to withhold from the
Shares that would otherwise be issued upon exercise of the
Option that number of whole Shares having a fair market value
equal to the amount of tax required or elected to be withheld
(a "Withholding Election"). If an Optionee's Tax Date is
deferred beyond the date of exercise and the Optionee makes a
Withholding Election, the Optionee will initially receive the
full amount of Optioned Shares otherwise issuable upon
exercise of the Option, but will be unconditionally obligated
to surrender to the Company on the Tax Date the number of
Shares necessary to satisfy his or her minimum withholding
requirements, or such higher payment as he or she may have
elected to make, with adjustments to be made in cash after the
Tax Date.
Any withholding of Optioned Shares with respect to taxes
arising in connection with the exercise of an Option by any
person subject to short-swing trading liability under Section
16(b) of the Exchange Act shall satisfy the requirements of
Section 16b-3(e).
Any adverse consequences incurred by an Optionee with respect
to the use of shares of Common Stock to pay any part of the
exercise price or of any tax in connection with the exercise
of an Option, including without limitation any adverse tax
consequences arising as a result of a
<PAGE>
disqualifying disposition within the meaning of Section 422 of
the Code shall be the sole responsibility of the Optionee.
Shares withheld in accordance with this provision shall not
again become available for purposes of the Plan and for
Options subsequently granted thereunder.
10. Non-Transferability of Options. An Option may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner other
than by will or by the laws of descent and distribution and may be
exercised, during the lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization. Subject to any required
action by the shareholders of the Company, the number of Optioned
Shares covered by each outstanding Option, and the per share exercise
price of each such Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock
resulting from a stock split, reverse stock split, recapitalization,
combination, reclassification, the payment of a stock dividend on the
Common Stock or any other increase or decrease in the number of such
shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible
securities of the Company shall not be deemed to have been "effected
without receipt of consideration". Such adjustment shall be made by the
Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issue by the
Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of Common
Stock subject to an Option.
The Committee may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the number or class of
securities covered by any Option, as well as the price to be paid
therefor, in the event that the Company effects one or more
reorganizations, recapitalizations, rights offerings, or other
increases or reductions of shares of its outstanding Common Stock, and
in the event of the Company being consolidated with or merged into any
other corporation.
Unless otherwise determined by the Board, upon the dissolution or
liquidation of the Company the Options granted under the Plan shall
terminate and thereupon become null and void. The Optionee shall be
given not less than ten (10) days notice of such event and the
opportunity to exercise each outstanding option before such event is
effected.
Upon any merger or consolidation, if the Company is not the surviving
corporation, the Options granted under the Plan shall either be assumed
by the new entity or shall terminate in accordance with the provisions
of the preceding paragraph.
12. Time of Granting Options. Unless otherwise specified by the Committee,
the date of grant of an Option under the Plan shall be the date on
which the Committee makes the determination granting such Option.
Notice of the determination shall
<PAGE>
be given to each Optionee to whom an Option is so granted within a
reasonable time after the date of such grant.
13. Amendment and Termination of the Plan. The Board may amend or terminate
the Plan from time to time in such respects as the Board may deem
advisable, except that, without approval of the holders of a majority
of the outstanding capital stock no such revision or amendment shall
change the number of shares subject to the Plan, change the designation
of the class of employees eligible to receive Options or add any
material benefit to Optionees under the Plan. Any such amendment or
termination of the Plan shall not affect Options already granted, and
such Options shall remain in full force and effect as if the Plan had
not been amended or terminated. The modification or addition of a
material term of the Plan (as determined under Section 162(m) and any
applicable Treasury Regulations promulgated thereunder) shall be
approved by the shareholders.
14. Conditions Upon Issuance of Shares. Shares shall not be issued with
respect to an Option granted under the Plan unless the exercise of such
Option and the issuance and delivery of such Shares pursuant thereto
shall comply with all relevant provisions of law, including, without
limitation, the Securities Act, the Exchange Act, the rules and
regulations promulgated thereunder, and the requirements of any stock
exchange upon which the Shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance. As a condition to the exercise of an Option, the Company
may require the person exercising such Option to represent and warrant
at the time of any such exercise that the Shares are being purchased
only for investment and without any present intention to sell or
distribute such Shares if, in the opinion of counsel for the Company,
such a representation is required by any of the aforementioned relevant
provisions of law.
15. Reservation of Shares. During the term of this Plan the Company will at
all times reserve and keep available the number of Shares as shall be
sufficient to satisfy the requirements of the Plan. Inability of the
Company to obtain from any regulatory body having jurisdiction and
authority deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder shall relieve the Company of
any liability in respect of the non-issuance or sale of such Shares as
to which such requisite authority shall not have been obtained.
16. Information to Optionee. During the term of any Option granted under
the Plan, the Company shall provide or otherwise make available to each
Optionee a copy of its financial statements at least annually.
17. Option Agreement. Options granted under the Plan shall be evidenced by
Option Agreements.
18. Indemnification of Board (or Committee, if applicable). In addition to
such other rights of indemnification as they may have a directors or as
members of the Committee, the members of the Board and the Committee
shall be indemnified by the Company against the reasonable expenses,
including attorneys' fees, actually and necessarily incurred in
connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of
<PAGE>
them may be a party by reason of any action taken or failure to act
under or in connection with the Plan or any option granted thereunder,
and against all amounts paid by them in settlement thereof (provided
such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in any such
action, suit or proceeding except in relation to matters as of which it
shall be adjudged in such action, suit or proceeding that such Board or
Committee member is liable for negligence or misconduct in the
performance of his or her duties; provided that within sixty days after
institution of any such action, suit or proceeding a Board or Committee
member shall in writing offer the Company the opportunity, at its own
expense, to handle and defend the same.
Exhibit 23.6
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 31, 1999
included in Chadmoore Wireless Group, Inc.'s Form 10-KSB for the year ended
December, 31 1998 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Las Vegas, Nevada
February 14, 2000
