SCHEDULE 14C
(Rule 14c-101)
INFORMATION REQUIRED IN INFORMATION STATEMENT
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c)
Of the Securities Exchange Act of 1934
Check the appropriate box:
Preliminary information statement
Confidential, for use of the Commission Only (as permitted
by Rule 14c-5(d) (2)
x Definitive information statement
SK TECHNOLOGIES CORPORATION
(Name of Registrant as Specified in Charter)
Payment of Filing Fee (Check the appropriate box):
$125 per Exchange Act Rules 0-11(c) (1) (ii),
or14c-5(g).
Fee computed on table below per Exchange Act
Rules 14c-5(g)
(1) Title of each class of securities to which
transaction applies:
Common Stock, Preferred Stock
(2) Aggregate number of securities to which
transaction applies:
6,140,495 Shares of Common Stock
655,067 Shares of Preferred Stock
(3) Per unit price or other underlying value of
transaction computed pursuant to Exchange Act
Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was
determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
n/a
Fee paid previously with preliminary materials.
Check box if any part of the fee is offset as provided
by Exchange Act Rule 0-1(a) (2) and identify the filing for which
the offsetting fee was paid previously. Identify the previous
filing by registration statement number, or the Form or Schedule
and the date of its filing.
(1) Amount previously paid:
n/a
(2) Form, Schedule or Registration Statement No.:
n/a
(3) Filing party:
n/a
(4) Date filed:
n/a
<PAGE>
SK TECHNOLOGIES CORPORATION
1650 S. Dixie Highway
Boca Raton, Florida 33432
INFORMATION STATEMENT
WE ARE NOT ASKING YOU FOR A PROXY,
AND YOU ARE REQUESTED NOT TO SEND US A PROXY
GENERAL
This Information Statement is being furnished to the
stockholders of record of SK Technologies Corporation, a Delaware
corporation (the "Company"), in connection with the proposed
adoption of a Certificate of Amendment to the Company's
Certificate of Incorporation (the "Amendment"), and a 1995 Stock
Option Plan, by the written consent of the holders of a majority
in interest of the Company's voting capital stock ("Voting
Capital Stock") consisting of the Company's outstanding Common
Stock ("Common Stock") and Series B Preferred Stock ("Preferred
Stock"). On August 1, 1996, the Company's Board of Directors
approved and recommended that the Certificate of Incorporation be
amended in order to reduce the number of authorized shares of
Common and Preferred Stock as follows: (1) decrease the number of
authorized shares of Common Stock from 45,000,000 to 25,000,000,
and (2) decrease the number of authorized shares of Preferred
Stock from 50,000,000 to 5,000,000. The proposed amendment will
become effective upon (i) a written consent of the holders of not
less than a majority of the Company's outstanding Voting Capital
Stock approving the Amendment and (ii) the filing of the
Certificate of Amendment to the Certificate of Incorporation with
the Secretary of State of the State of Delaware. The Company
anticipates that the filing of the written consent with the
Company's Secretary, will occur on or about October 31, 1996 (the
"Effective Date"). If the Amendment were not adopted by written
consent, it would have been required to be considered by the
Company's stockholders at a special stockholders' meeting
convened for the specific purpose of approving the Amendment.
The Company's Board of Directors also approved and
recommended that the Company adopt a 1995 Stock Option Plan which
was previously approved by the Board of Directors on November 27,
1995.
The elimination of the need for a special meeting of
stockholders to approve the Amendment is made possible by Section
228 of the Delaware General Corporation Law (the "Delaware Law")
which provides that the written consent of the holders of
outstanding shares of Voting Capital Stock, having not less than
the minimum number of votes which would be necessary to authorize
or take such action at a meeting at which all shares entitled to
vote thereon were present and voted, may be substituted for such
a special meeting. Pursuant to Section 242 of the Delaware Law,
a majority of the outstanding shares of Voting Capital Stock
entitled to vote thereon is required in order to amend the
Company's Certificate of Incorporation. In order to eliminate
the costs and management time involved in holding a special
meeting and in order to effect the Amendment as early as possible
in order to accomplish the purposes of the Company as hereafter
described, the Board of Directors of the Company voted to utilize
the written consent of the holders of a majority in interest of
the Voting Capital Stock of the Company. As discussed hereafter,
the Board of Directors has recommended the Amendment in order to
permit a reduction in the number of Common and Preferred Shares
outstanding.
David Peipers and related entities beneficially own in the
aggregate approximately 3,069,435 shares of the Company's Voting
Capital Stock, representing approximately 45% (as of October 4,
1996) of the outstanding Voting Capital Stock of the Company
entitled to vote on this Amendment and the Stock Option Plan. C.
Shelton James and related entities beneficially own in the
aggregate approximately 1,195,080 shares of the Company's Voting
Stock, representing approximately 18% (as of October 4, 1996) of
the outstanding Voting Capital Stock of the Company entitled to
vote on this Amendment and the Stock Option Plan. The written
consent of such persons to the Amendment and their approval of
the Stock Option Plan will become effective upon the filing of
their written consents with the Secretary of the Company. The
Company anticipates that the filing of such written consents will
occur on or about October 31, 1996, following which the Company
will prepare and file a Certificate of Amendment to its
Certificate of Incorporation with the State of Delaware effecting
reducing the number of authorized shares of Common and Preferred
stock as follows: (1) decrease the number of authorized shares of
Common stock from 45,000,000 to 25,000,000, and (2) decrease the
number of authorized shares of Preferred stock from 50,000,000 to
5,000,000. A copy of the proposed Amendment to the Company's
Certificate of Incorporation is set forth as Exhibit A to this
Information Statement. The date on which this Information
Statement was first sent to the Stockholders is on or about
October 9, 1996. The record date established by the Company for
purposes of determining the number of outstanding shares of
Voting Capital Stock of the Company is October 4, 1996 (the
"Record Date").
Pursuant to Section 228 of the Delaware Law, the Company is
required to provide prompt notice of the taking of the corporate
action without a meeting to the stockholders of record who have
not consented in writing to such action. Inasmuch as the Company
will have provided to its stockholders of record this Information
Statement, the Company will disclose in its next Quarterly Report
on Form 10-QSB, the effective date of the Amendment. No
additional action will be undertaken pursuant to such written
consents, and no dissenters' rights under the Delaware Law are
afforded to the Company's stockholders as a result of the
adoption of the Amendment.
EXECUTIVE OFFICES
The Company's principal executive offices are located at
1650 S. Dixie Highway, Boca Raton, Florida 33432. The telephone
number is (561) 393-7540, fax number is (561) 395-2499, and the
home page is http://www.storekare.com.
OUTSTANDING VOTING STOCK OF THE COMPANY
As of the Record Date, there were 6,140,495 shares of Common
Stock outstanding and 655,067 shares of Preferred Stock
outstanding, which are convertible into an aggregate of 655,067
shares of Common Stock. The Common Stock and Series B Preferred
Stock constitute the sole classes of voting securities of the
Company. Each share of Common Stock and Preferred Stock entitles
the holder thereof to one vote on all matters submitted to
stockholders.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth Common and Preferred Stock
ownership information as of August 31, 1996, with respect to (i)
each person known to the Company to be the beneficial owner of
more than 5% of the Company's Common and Preferred Stock; (ii)
each director of the Company; (iii) each person intending to file
a written consent to the adoption of the Amendment described
herein; and (iv) all directors, executive officers and designated
stockholders of the Company as a group.
Amount of
Beneficial
Ownership of Percent
Name and Voting of Voting
Address Securities (1) Securities
Calvin S. Shoemaker 80,091 1.18%
1650 S. Dixie Highway
Boca Raton, FL 33432
Gary S. Spirer 106,300 1.56%
150 East 58th Street
New York, NY 10155
Capital Hill Group 3,945 .06%
Gary Spirer, President
150 E. 58th Street
New York, NY 10155
David H. Peipers 315,811 4.65%
610 Fifth Avenue
New York, NY 10020
Cornerhouse Ltd. Pship 837,294 12.32%
David Peipers, G.P.
610 Fifth Avenue
New York, NY 10020
Winsome Ltd. Pship 603,909 8.89%
David Peipers, G.P.
610 Fifth Avenue
New York, NY 10020
Segrets, Inc 1,312,421 19.31%
David Peipers, Chairman
66 Cherry Hill Drive
Beverly, MA 01915
C. Shelton James 4,973 .07%
4000 Hollywood Blvd.
Hollywood, FL 33021
Fundamental Management Corp. 93 .00001%
C. Shelton James, President
4000 Hollywood Blvd.
Hollywood, FL 33021
Fundamental Active 1,056,681 15.55%
Investors Ltd II
Fundamental Mgmt Corp, G.P.
4000 Hollywood Blvd.
Hollywood, FL 33021
Fundamental Growth 33,333 .49%
Partners Ltd
Fundamental Mgmt Corp, G.P.
4000 Hollywood Blvd.
Hollywood, FL 33021
Fundamental Associates 50,000 .74%
Fundamental Mgmt Corp, G.P.
4000 Hollywood Blvd.
Hollywood, FL 33021
Fundamental Resources 50,000 .74%
Fundamental Mgmt Corp, G.P.
4000 Hollywood Blvd.
Hollywood, FL 33021
Melvin Goldberger 20,033 .29%
1799 South Dixie Highway
Boca Raton, FL 33432
Seventh Investment 122,229 1.80%
Bancing Corp.
Melvin Goldberger, President
1700 South Dixie Highway
Boca Raton, FL 33432
All Directors and 4,668,629 68.70%
Executive Officers as
a Group (7 Persons)
(1)The amount of beneficial ownership of Voting Capital Stock
includes 344,367 shares of Preferred Stock owned by all directors
and executive officers. Such shares are convertible into 344,367
shares of Common Stock.
AMENDMENTS TO THE CERTIFICATE OF INCORPORATION
Reduction of the Number of Authorized Shares of the Company's
Common and Preferred Stock
The Board of Directors proposes to reduce the number of
authorized shares of the Company's Common and Preferred Stock as
follows: (1) decrease the number of authorized shares of Common
Stock from 45,000,000 to 25,000,000, and (2) decrease the number
of authorized shares of Preferred Stock from 50,000,000 to
5,000,000. The Board of Directors believes that reduction of the
number of authorized shares will not impair the conduct or
operations of the Company. Additionally, the Company is
obligated to pay franchise taxes to the State of Delaware on an
annual basis which is computed in part on the number of
authorized shares of the Company's securities. A reduction in
the number of authorized shares of the Company's securities will
enable the Company to reduce the amount of payments that will be
required in order to satisfy its franchise tax obligations to the
State of Delaware.
The Company does not propose to modify the number of shares
of Common Stock and Preferred Stock issued and outstanding. The
Amendment will not change the proportionate equity interests of
the Company's stockholders. Voting rights and other rights of
the stockholders will not be altered by the Amendment.
No Dissenter's Rights
Under Delaware law, stockholders are not entitled to
dissenter's rights of appraisal with respect to the Company's
Amendment to the Company's Certificate of Incorporation to effect
the reduction of the number of authorized shares of the Company's
Common and Preferred Stock.
No Exchange of Stock Certificates
The stockholders will not need to exchange their stock
certificates for new stock certificates.
ADOPTION OF THE 1995 STOCK OPTION PLAN
On November 27, 1995, the Board of Directors approved and
recommended to adopt a stock option plan called the "1995 Stock
Option Plan". A copy of the 1995 Stock Option Plan (the "Plan")
is attached hereto as Exhibit B.
The Board of Directors has determined that the Plan will
work to increase the employees', consultants' and non-employee
directors' proprietary interest in the Company and to align more
closely their interests with the interests of the Company's
shareholders. The Plan will also maintain the Company's ability
to attract and retain the services of experienced and highly
qualified employees and non-employee directors. The Board of
Directors believes that the Plan is in the Company's best
interests and therefore recommends adoption of the Plan on
essentially the terms and conditions as are set forth below.
Under the Plan, the Company has reserved an aggregate of
1,400,000 shares of Common Stock for issuance pursuant to options
granted under the Plan ("Plan Options"). The Board of Directors
or Compensation Committee of the Board of Directors (the
"Committee") of the Company administers the Plan including,
without limitation, the selection of the persons who will be
granted Plan Options under the Plan, the type of Plan Options to
be granted, the number of shares subject to each Plan Option and
the Plan Option price.
Plan Options granted under the Plan may either be options
qualifying as incentive stock options ("Incentive Options") under
Section 422 of the Internal Revenue Code of 1986, as amended, or
options that do not so qualify ("Non-Qualified Options"). In
addition, the Plan also allows for the inclusion of a reload
option provision ("Reload Option"), which permits an eligible
person to pay the exercise price of the Plan Option with shares
of Common Stock owned by the eligible person and receive a new
Plan Option to purchase shares of Common Stock equal in number to
the tendered shares. Any Incentive Option granted under the Plan
must provide for an exercise price of not less than 100% of the
fair market value of the underlying shares on the date of such
grant, but the exercise price of any Incentive Option granted to
an eligible employee owning more than 10% of the Company's Common
Stock must be at least 110% of such fair market value as
determined on the date of the grant. The term of each Plan
Option and the manner in which it may be exercised is determined
by the Board of Directors or the Committee, provided that no Plan
Option may be exercisable more than 10 years after the date of
its grant and, in the case of an Incentive Option granted to an
eligible employee owning more than 10% of the Company's Common
Stock, nor more than five years after the date of the grant.
The exercise price of Non-Qualified Options shall be
determined by the Board of Directors or the Committee.
The per share purchase price of shares subject to Plan
Options granted under the Plan may be adjusted in the event of
certain changes in the Company's capitalization, but any such
adjustment shall not change the total purchase price payable upon
the exercise in full of Plan Options granted under the Plan.
Officers, directors, key employees and consultants of the
Company and its subsidiaries are eligible to receive Non-
Qualified Options under the Plan. Only officers, directors and
employees of the Company who are employed by the Company or by
any subsidiary thereof are eligible to receive Incentive Options.
All Plan Options are nonassignable and nontransferable,
except by will or by the laws of descent and distribution, and
during the lifetime of the optionee, may be exercised only by
such optionee. If an optionee's employment is terminated for any
reason, other than his death or disability or termination for
cause, or if an optionee is not an employee of the Company but is
a member of the Company's Board of Directors and his service as a
director is terminated for any reason, other than death or
disability, the Plan Option granted to him shall lapse to the
extent unexercised on the earlier of the expiration date or 3
months following the date of termination. If the optionee dies
during the term of his employment, the Plan Option granted to him
shall lapse to the extent unexercised on the earlier of the
expiration date of the Plan Option or the date one year following
the date of the optionee's death. If the optionee is permanently
and totally disabled within the meaning of Section 22(c)(3) of
the Internal Revenue Code of 1986, the Plan Option granted to him
lapses to the extent unexercised on the earlier of the expiration
date of the option or one year following the date of such
disability.
The Board of Directors or Committee may amend, suspend or
terminate the Plan at any time, except that no amendment shall be
made which (i) increases the total number of shares subject to
the Plan or changes the minimum purchase price therefore (except
in either case in the event of adjustments due to changes in the
Company's capitalization), (ii) affects outstanding Plan Options
or any exercise right thereunder, (iii) extends the term of any
Plan Option beyond ten years, or (iv) extends the termination
date of the Plan. Unless the Plan shall theretofore have been
suspend or terminated by the Board of Directors, the Plan shall
terminate on November 27, 2005. Any such termination of the Plan
shall not affect the validity of any Plan Options previously
granted thereunder.
The following discussion is based on federal income tax laws
and regulations in effect as of the date hereto. It does not
purport to be a complete description of the federal income tax
consequences of the Plan, nor does it describe the consequences
of state, local or foreign tax laws which may be applicable.
Accordingly, any person receiving a grant under the Plan should
consult with his own tax advisor.
An employee granted an Incentive Stock Option does not
recognize taxable income either at the date of grant or at the
date of its timely exercise. However, the excess of the fair
market value of Common Stock received upon exercise of the
Incentive Stock Option over the Option exercise price is an item
of tax preference under Section 57(a)(3) of the Code and may be
subject to the alternative minimum tax imposed by Section 55 of
the Code. Upon disposition of stock acquired on exercise of an
Incentive Stock Option, long-term capital gain or loss is
recognized in an amount equal to the difference between the sales
price and the Incentive Stock Option exercise price, provided
that the option holder has not disposed of the stock within two
years from the date of grant and within one year from the date of
exercise. If the Incentive Stock Option holder disposes of the
acquired stock (including the transfer of acquired stock in
payment of the exercise price of an Incentive Stock Option)
without complying with both of these holding period requirements
("Disqualifying Disposition"), the option holder will recognize
ordinary income at the time of such Disqualifying Disposition to
the extent of the difference between the exercise price and the
lesser of the fair market value of the stock on the date the
Incentive Stock Option is exercised (the value six months after
the date of exercise may govern in the case of an employee whose
sale of stock at a profit could subject him to suit under Section
16(b) of the Securities Exchange Act of 1934) or the amount
realized on such Disqualifying Disposition. Any remaining gain
or loss is treated as a short-term or long-term capital gain or
loss, depending on how long the shares are held. In the event of
a Disqualifying Disposition, the Incentive Stock Option tax
preference described above may not apply (although, where the
Disqualifying Disposition occurs subsequent to the years the
Incentive Stock Option is exercised, it may be necessary for the
employee to amend his return to eliminate the tax preference item
previously reported). The Company and its subsidiaries are not
entitled to a tax deduction upon either exercise of an Incentive
Stock Option or disposition of stock acquired pursuant to such an
exercise, except to the extent that the Option holder recognized
ordinary income in a Disqualifying Disposition.
In respect to the holder of Non-Qualified Options, the
option holder does not recognize taxable income on the date of
the grant of the Non-Qualified Option, but recognizes ordinary
income generally at the date of exercise in the amount of the
difference between the option exercise price and the fair market
value of the Common Stock on the date of exercise. However, if
the holder of Non-Qualified Options is subject to the
restrictions on resale of Common Stock under Section 16 of the
Securities Exchange Act of 1944, such person generally recognizes
ordinary income at the end of the six-month period following the
date of exercise in the amount of the difference between the
option exercise price and the fair market value of the Common
Stock at the end of the six-month period. Nevertheless, such
holder may elect within 30 days after the date of exercise to
recognize ordinary income as of the date of exercise. The amount
of ordinary income recognized by the option holder is deductible
by the Company in the year that income is recognized. As of the
date hereof, the Company has granted 914,750 Plan Options subject
to stockholder approval of the Plan.
The complete text of the Amendment to the Certificate of
Incorporation is set forth as Exhibit A to this Information
Statement.
BY ORDER OF THE BOARD OF DIRECTORS
/s/ Calvin S. Shoemaker
Calvin S. Shoemaker, President
EXHIBIT A
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
SK TECHNOLOGIES CORPORATION
SK Technologies Corporation (hereinafter referred to as the
"Company"), a corporation organized and existing under the
General Corporation Law of the State of Delaware, does hereby
certify:
First: That, pursuant to authority conferred upon the Board
of Directors by the Certificate of Incorporation, as amended, of
the Company, a majority of the Board of Directors, at a meeting
on August 1, 1996, approved and recommended amendments to the
Certificate of Incorporation of the Company, and
Second: That shareholders owning 4,264,515 of the 6,795,562
shares of the Company's Common and Preferred Stock issued and
outstanding as of October 4, 1996, representing a majority in
interest of all the issued and outstanding shares of the
Corporation, approved by written consent, the adoption of the
proposed amendment to the Certificate of Incorporation.
Third: That the following amendments to Article IV of the
Certificate of Incorporation were duly adopted in accordance with
Section 242 of Title 8 of the General Corporation Law of the
State of Delaware:
Capital Stock Classes
The total number of shares of all classes of capital
stock which the Company has the authority to issue is
30,000,000 shares which is divided into two classes as
follows:
25,000,000 shares of Common Stock with $.001 par value
per share, and
5,000,000 shares of Preferred Stock with $.001 par
value per share.
1,000,000 shares of the Preferred Stock is
hereby given the distinctive designation of
"Series B Convertible Redeemable Preferred
Stock" of which the preferences and relative
participating, optional or other special
rights, and the qualifications, limitations
or restrictions thereof shall not be changed
under or by reason of said amendment.
IN WITNESS WHEREOF, the undersigned have caused its
corporate seal to be affixed and this Certificate to be executed
by its President and Secretary as of the day of
.
Attest: SK Technologies Corporation
By:
Susan Fedderman Calvin S. Shoemaker
Secretary President
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The Foregoing instrument was acknowledged before me this
day of , 1996, by Calvin S. Shoemaker,
President and Susan Fedderman, Secretary of SK Technologies
Corporation, a Delaware corporation, on behalf of the Company.
Notary Public
State of Florida
My Commission Expires:
EXHIBIT B
SK TECHNOLOGIES CORPORATION
1995 STOCK OPTION PLAN
1. Grant of Options: Generally. In accordance with the
provisions hereinafter set forth in this stock option plan, the
name of which is the SK TECHNOLOGIES CORPORATION 1995 STOCK
OPTION PLAN (the "Plan"), the Stock Option Committee of SK
Technologies Corporation (the "Corporation") is hereby authorized
to issue from time to time on the Corporation's behalf to any one
or more Eligible Persons, as hereinafter defined, options to
acquire shares of the Corporation's $.001 par value common stock
(the "Stock").
2. Type of Options. The Stock Option Committee is
authorized to issue options which meet the requirements of
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), which options are hereinafter referred to collectively
as ISOs, or singularly as an ISO. The Stock Option Committee is
also, in its discretion, authorized to issue options which are
not ISOs, which options are hereinafter referred to collectively
as NSOs, or singularly as an NSO. The Stock Option Committee is
also authorized to issue "Reload Options" in accordance with
Paragraph 8 herein, which options are hereinafter referred to
collectively as Reload Options, or singularly as a Reload Option.
Except where the context indicates to the contrary, the term
"Option" or "Options" means ISOs, NSOs and Reload Options.
3. Amount of Stock. The aggregate number of shares of
Stock which may be purchased pursuant to the exercise of Options
shall be 1,400,000 shares. Of this amount, the Stock Option
Committee shall have the power and authority to designate whether
any Options so issued shall be ISOs or NSOs, subject to the
restrictions on ISOs contained elsewhere herein. If an Option
ceases to be exercisable, in whole or in part, the shares of
Stock underlying such Option shall continue to be available under
this Plan. Further, if shares of Stock are delivered to the
Corporation as payment for shares of Stock purchased by the
exercise of an Option granted under this Plan, such shares of
Stock shall also be available under this Plan. If there is any
change in the number of shares of Stock on account of the
declaration of stock dividends, recapitalization resulting in
stock split-ups, or combinations or exchanges of shares of Stock,
or otherwise, the number of shares of Stock available for
purchase upon the exercise of Options, the shares of Stock
subject to any Option and the exercise price of any outstanding
Option shall be appropriately adjusted by the Stock Option
Committee. The Stock Option Committee shall give notice of any
adjustments to each Eligible Person granted an Option under this
Plan, and such adjustments shall be effective and binding on all
Eligible Persons. If because of one or more recapitalizations,
reorganizations or other corporate events, the holders of
outstanding Stock receive something other than shares of Stock
then, upon exercise of an Option, the Eligible Person will
receive what the holder would have owned if the holder had
exercised the Option immediately before the first such corporate
event and not disposed of anything the holder received as a
result of the corporate event.
4. Eligible Persons.
(a) With respect to ISOs, an Eligible Person means any
individual who is employed by the Corporation or by any
subsidiary of the Corporation.
(b) With respect to NSOs, an Eligible Person means (1)
any individual who is employed by the Corporation or by any
subsidiary of the Corporation, or (2) any director of the
Corporation or by any subsidiary of the Corporation.
5. Grant of Options. The Corporation grants to the Stock
Option Committee the right to issue the Options established by
this Plan to Eligible Persons. The Stock Option Committee shall
follow the procedures prescribed for it elsewhere in this Plan.
A grant of Options shall be set forth in a writing signed by the
chairman of the Stock Option Committee or the President/CEO of
the Corporation. The writing shall identify whether the Option
being granted is an ISO or an NSO and shall set forth the terms
which govern the Option. The terms shall be determined by the
Stock Option Committee, and may include, among other terms, the
number of shares of Stock that may be acquired pursuant to the
exercise of the Options, when the Options may be exercised, the
period for which the Option is granted and including the
expiration date, the effect on the Options if the Eligible Person
terminates employment and whether the Eligible Person may deliver
shares of Stock to pay for the shares of Stock to be purchased by
the exercise of the Option. However, no term shall be set forth
in the writing which is inconsistent with any of the terms of
this Plan. The terms of an Option granted to an Eligible Person
may differ from the terms of an Option granted to another
Eligible Person, and may differ from the terms of an earlier
Option granted to the same Eligible Person.
6. Option Price. The Option price per share shall be
determined by the Committee on the date any option is granted,
and shall be not less than (i) the fair market value, or (ii) in
the case of an incentive stock option granted to a Ten Percent
Stockholder, 110 percent of the fair market value (but in no
event less than the par value) of one share of stock on the date,
the option is granted, as determined by the Committee. Fair
market value as used herein shall be:
(a) If shares of Stock shall be traded on an exchange
or over-the-counter market, the closing bid price of the stock on
such exchange or over-the-counter market on which such shares
shall be traded on that date, or if such exchange is closed or if
no shares shall have traded on such date, on the last preceding
date on which such shares shall have traded.
(b) If shares of Stock shall not be traded on an
exchange or over-the-counter market, the value as determined by a
recognized appraiser as selected by the Committee.
7. Purchase of Shares. An Option shall be exercised by
the tender to the Corporation of the full purchase price of the
shares with respect to which the Option is exercised and written
notice of the exercise. The purchase price of the shares shall
be in United States dollars, payable in cash or by check, or in
property or Corporation stock, if so permitted by the Stock
Option Committee in accordance with the discretion granted to the
Stock Option Committee in Paragraph 5 hereof, having a value
equal to such purchase price. The Corporation shall not be
required to issue or deliver any certificates for shares of
common stock purchased upon the exercise of an Option prior to
(i) if requested by the Corporation, the filing with the
Corporation by the Eligible Person of a representation in writing
that it is the Eligible Person's then present intention to
acquire the shares being purchased for investment and not for
resale, and/or (ii) the completion of any registration or other
qualification of such shares under any government regulatory
body, which the Corporation shall determine to be necessary or
advisable.
8. Grant of Reload Options. In granting an Option under
this Plan, the Stock Option Committee may include a Reload Option
provision therein, subject to the provisions set forth in
Paragraphs 20 and 21 herein. A Reload Option provision provides
that if the Eligible Person pays the exercise price of shares of
Stock to be purchased by the exercise of an ISO, NSO or another
Reload Option (the "Original Option") by delivering to the
Corporation shares of Stock already owned by the Eligible Person
(the "Tendered Shares"), the Eligible Person shall receive a
Reload Option which shall be a new Option to purchase shares of
Stock equal in number to the Tendered Shares. The terms of any
Reload Option shall be determined by the Stock Option Committee
consistent with the provisions of this Plan.
9. Stock Option Committee. The Stock Option Committee
shall be appointed from time to time by, and from, the
Corporation's Board of Directors. The Board may from time to
time remove members from or add members to the Stock Option
Committee. The Stock Option Committee shall be constituted so as
to permit the Plan to comply in all respects with the provisions
set forth in Paragraph 16 herein. The members of the Stock
Option Committee shall elect one of its members as its chairman.
The Stock Option Committee shall hold its meetings at such times
and places as its chairman shall determine. A majority of the
Stock Option Committee's members present in person shall
constitute a quorum for the transaction of business. All
determinations of the Stock Option Committee will be made by the
majority vote of the members constituting the quorum. The
members may participate in a meeting of the Stock Option
Committee by conference telephone or similar communications
equipment by means of which all members participating in that
meeting can hear each other. Participation in a meeting in the
manner will constitute presence in person at the meeting. Any
decision or determination reduced to writing and signed by all
members of the Stock Option Committee will be effective as if it
had been made by a majority vote of all members of the Stock
Option Committee at a meeting which is duly called and held.
10. Administration of Plan. In addition to granting
Options and to exercising the authority granted to it elsewhere
in this Plan, the Stock Option Committee is granted the full
right and authority to interpret and construe the provisions of
this Plan, promulgate, amend and rescind rules and procedures
relating to the implementation of the Plan and to make all other
determinations necessary or advisable for the administration of
the Plan, consistent, however, with the intent of the Corporation
that Options granted or awarded pursuant to the Plan comply with
the provisions of Paragraph 20 and 21 herein. All determinations
made by the Stock Option Committee shall be final, binding and
conclusive on all persons including the Eligible Persons, the
Corporation and its shareholders, employees, officers and
directors. No member of the Stock Option Committee will be
liable for any act or omission in connection with the
administration of this plan unless it is attributable to that
member's willful misconduct.
11. Provisions Applicable to ISOs. The following
provisions shall apply to all ISOs granted by the Stock Option
Committee and are incorporated by reference into any writing
granting an ISO:
(a) An ISO may only be granted within ten (10) years
from November 27, 1995, the date that this Plan was originally
adopted by the Corporation's Board of Directors.
(b) An ISO may not be exercised after the expiration
of five (5) years from the date the ISO is granted.
(c) The option price may not be less than the fair
market value of the Stock at the time the ISO is granted.
(d) An ISO is not transferrable by the Eligible Person
to whom it is granted except by will, or the laws of descent and
distribution, and is exercisable during his or her lifetime only
by the Eligible Person.
(e) If the Eligible Person receiving the ISO owns at
the time of the grant stock possessing more than ten (10%)
percent of the total combined voting power of all classes of
stock of the employer Corporation or of its parent of subsidiary
corporation (as those terms are defined in the Code), then the
option price shall be at least 110% of the fair market value of
the Stock, and the ISO shall not be exercisable after the
expiration of five (5) years from the date the ISO is granted.
(f) The aggregate fair market value (determined at the
time the ISO is granted) of the Stock with respect to which the
ISO is first exercisable by the Eligible Person during any
calendar year (under this Plan and any other incentive stock
option plan of the Corporation) shall not exceed $100,000.
(g) Even if the shares of Stock which are issued upon
exercise of an ISO are sold within one year following the
exercise of such ISO such that the sale constitutes a
disqualifying disposition for ISO treatment under the Code, no
provision of this Plan shall be construed as prohibiting such a
sale.
(h) This Plan was adopted by the Corporation on
November 27, 1995 by virtue of its approval by the Corporation's
Board of Directors and subject to approval by the shareholders of
the Corporation.
12. Determination of Fair Market Value. In granting ISOs
under this Plan, the Stock Option Committee shall make a good
faith determination as to the fair market value of the Stock at
the time of granting the ISO.
13. Restrictions on Issuance of Stock. The Corporation
shall not be obligated to sell or issue any shares of Stock
pursuant to the exercise of an Option unless the Stock with
respect to which the Option is being exercised is at that time
effectively registered or exempt from registration under the
Securities Act of 1933, as amended, and any other applicable
laws, rules and regulations. The Corporation may condition the
exercise of an Option granted in accordance herewith upon receipt
from the Eligible Person, or any other purchaser thereof, of a
written representation that at the time of such exercise it is
his or her then present intention to acquire the shares of stock
for investment and not with a view to, or for sale in connection
with, any distribution thereof; except that, in the case of a
legal representative of an Eligible Person, "distribution" shall
be defined to exclude distribution by will or under the laws of
descent and distribution. Prior to issuing any shares of Stock
pursuant to the exercise of an Option, the Corporation shall take
such steps as it deems necessary to satisfy any withholding tax
obligations imposed upon it by any level of government.
14. Exercise in the Event of Death or Termination of
Employment.
(a) If an optionee shall die (i) while an employee of
the Company or a Subsidiary or (ii) within three months after
termination of his employment with the Company or a Subsidiary
because of his disability, or retirement or otherwise his options
may be exercised, to the extent that the optionee shall have been
entitled to do so on the date of his death or such termination of
employment, by the person or persons to whom the optionee's right
under the option pass by will or applicable law, or if no such
person has such right, by his executors or administrators, at any
time, or from time to time, but not later than the expiration
date specified in Paragraph 5 or one year after the optionee's
death, whichever date is earlier.
(b) If an optionee's employment by the Company or a
Subsidiary shall terminate because of his disability and such
optionee has not died within the following three months, he may
exercise his options, to the extent that he shall have been
entitled to do so at the date of the termination of his
employment, at any time, or from time to time, but not later than
the expiration date specified in Paragraph 5 hereof or one year
after termination of employment, unless otherwise resolved by the
Stock Option Committee and set forth in writing to the optionee.
(c) If an optionee's employment shall terminate by
reason of his retirement in accordance with the terms of the
Company's tax-qualified retirement plans or with the consent of
the Committee or involuntarily or voluntarily, other than by
termination for cause, and such optionee has not died within the
following three months, he may exercise his option to the extent
he shall have been entitled to do so at the date of the
termination of his employment, at any time and from to time, but
not later than the expiration date specified in Paragraph 5
hereof or three months, unless otherwise resolved by the Stock
Option Committee, and set forth in writing to the optionee, after
termination of employment, whichever date is earlier. For
Purposes of this Paragraph 14, termination for cause shall mean
termination of employment by reason of the optionee's commission
of a felony, fraud or willful misconduct which has resulted, or
is likely to result, in substantial and material damage to the
Company or a Subsidiary, all as the Committee in its sole
discretion may determine.
(d) If an optionee's employment shall terminate for
cause, all right to exercise his option shall terminate at the
date of such termination of employment unless otherwise resolved
by the Stock Option Committee and set forth in writing to the
optionee.
15. Corporate Events. In the event of the proposed
dissolution or liquidation of the Corporation, or in the event of
a proposed sale of all or substantially all of the assets of the
Corporation, the Board of Directors may declare that each Option
granted under this Plan shall terminate as of a date to be fixed
by the Board of Directors; provided that not less than thirty
(30) days written notice of the date so fixed shall be given to
each Eligible Person holding an Option, and each such Eligible
Person shall have the right, during the period of thirty (30)
days preceding such termination to exercise his Option as to all
or any part of the shares of Stock covered thereby, including
shares of Stock as to which such Option would not otherwise be
exercisable. Nothing set forth herein shall extend the term set
for purchasing the shares of Stock set forth in the Option.
16. No Guarantee of Employment. Nothing in this Plan or in
any writing granting an Option will confer upon any Eligible
Person the right to continue in the employ of the Eligible
Person's employer, or will interfere with or restrict in any way
the right of the Eligible Person's employer to discharge such
Eligible Person at any time for any reason whatsoever, with or
without cause.
17. Nontransferability. No option granted under the Plan
shall be transferable other than by will or by the laws of
descent and distribution. During the lifetime of the optionee,
an option shall be exercisable only by him.
18. No Rights as Shareholder. No optionee shall have any
rights as a shareholder with respect to any shares subject to his
option prior to the date of issuance to him of a certificate or
certificates for such shares.
19. Amendment and Discontinuance of Plan. The
Corporation's Board of Directors may amend, suspend or
discontinue this Plan at any time. However, no such action may
prejudice the rights of any Eligible Person who has prior thereto
been granted Options under this Plan. Further, no amendment to
this Plan which has the effect of (a) increasing the aggregate
number of shares of Stock subject to this Plan (except for
adjustments pursuant to Paragraph 3 herein), or (b) changing the
definition of Eligible Person under this Plan, may be effective
unless and until approval of the stockholders of the Corporation
is obtained in the same manner as approval of this Plan is
required. The Corporation's Board of Directors is authorized to
seek the approval of the Corporation's stockholders for any other
changes it proposes to make to this Plan which require such
approval, however, the Board of Directors may modify the Plan, as
necessary, to effectuate the intent of the Plan as a result of
any changes in the tax, accounting or securities laws treatment
of Eligible Persons and the Plan, subject to the provisions set
forth in this Paragraph 19, and Paragraphs 20 and 21.
20. Compliance with Rule 16b-3. This Plan is intended to
comply in all respects with Rule 16b-3 ("Rule 16b-3") promulgated
by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), with
respect to participants who are subject to Section 16 of the
Exchange Act, and any provision(s) herein that is/are contrary to
Rule 16b-3 shall be deemed null and void to the extent
appropriate by either the Stock Option Committee or the
Corporation's Board of Directors.
21. Compliance with Code. The aspects of this Plan on ISOs
is intended to comply in every respect with Section 422 of the
Code and the regulations promulgated thereunder. In the event
any future statute or regulation shall modify the existing
statute, the aspects of this Plan on ISOs shall be deemed to
incorporate by reference such modification. Any stock option
agreement relating to any Option granted pursuant to this Plan
outstanding and unexercised at the time any modifying statute or
regulation becomes effective shall also be deemed to incorporate
by reference such modification and no notice of such modification
need by given to optionee.
If any provision of the aspects of this Plan on ISOs is
determined to disqualify the shares purchasable pursuant to the
Options granted under this Plan from the special tax treatment
provided by Code Section 422, such provision shall be deemed null
and void and to incorporate by reference the modification
required to qualify the shares for said tax treatment.
22. Compliance With Other Laws and Regulations. The Plan,
the grant and exercise of options thereunder, and the obligation
of the Company to sell and deliver shares under such options,
shall be subject to all applicable federal and state laws, rules,
and regulations and to such approvals by any government or
regulatory agency as may be required. The Company shall not be
required to issue or deliver any certificates for shares of Stock
prior to (a) the listing of such shares on any stock exchange or
over-the-counter market on which the Stock may then be listed and
(b) the completion of any registration or qualification of such
shares under any federal or state law, or any ruling or
regulation of any government body which the Company shall, in its
sole discretion, determine to be necessary or advisable.
Moreover, no option may be exercised if its exercise or the
receipt of Stock Pursuant thereto would be contrary to applicable
laws.
23. Disposition of Shares. In the event any share of Stock
acquired by an exercise of an option granted under the Plan shall
be transferable other than by will or by the laws of descent and
distribution within two years of the date such option was granted
or within one year after the transfer of such share pursuant to
such exercise, the optionee shall give prompt written notice
thereof to the Company and the Committee.
24. Name. The Plan shall be known as the "SK Technologies
Corporation 1995 Stock Option Plan."
25. Notices. Any notice hereunder shall be in writing and
sent by certified mail, return receipt requested or by facsimile
transmission (with electronic or written confirmation of receipt)
and when addressed to the Company shall be sent to it at its
office, 1650 South Dixie Highway, Boca Raton, Florida 33432,
facsimile number 407-395-2499, Attention: Calvin S. Shoemaker,
and when addressed to the Committee shall be sent to it at 1650
South Dixie Highway, Boca Raton, Florida 33432, subject to the
right of either party to designate at any time hereafter in
writing some other address, facsimile number or person to whose
attention such notice shall be sent.
26. Headings. The headings preceding the text of Sections
and subparagraphs hereof are inserted solely for convenience of
reference, and shall not constitute a part of this Plan nor shall
they affect its meaning, construction or effect.
27. Effective Date. This Plan, the SK Technologies
Corporation 1995 Stock Option Plan was adopted by the Board of
Directors of the Company on November 27, 1995 and is subject to
approval by a majority of the stockholders of the Company.
Notwithstanding the foregoing, if the Plan shall have been
approved by the Board prior to such stockholder approval, options
may be granted by the Stock Option Committee as provided herein
subject to such subsequent stockholder approval.
Dated as of November 30, 1995 SK TECHNOLOGIES CORPORATION
By:/s/ Calvin S. Shoemaker
Calvin S. Shoemaker
President and CEO
