<PAGE> 1
SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES EXCHANGE ACT OF 1934
Filed by the registrant [X]
Filed by a party other than the registrant [ ]
Check the appropriate box:
[ ] Preliminary proxy statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[X] Definitive proxy statement
[ ] Definitive additional materials
[ ] Soliciting material pursuant to Rule 14a-11(c) or Rule 14a-12
@POS.COM, INC.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified in Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of filing fee (Check the appropriate box):
[X] No fee required.
[ ] $125 per Exchange Act Rule 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-6(j)(2).
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and
0-11.
(1) Title of each class of securities to which transaction applies:
--------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
--------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
--------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
--------------------------------------------------------------------
(5) Total fee paid:
--------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the form or schedule and the date of its filing.
(1) Amount previously paid: __________________________________________
(2) Form, Schedule or Registration Statement no.: ____________________
(3) Filing party: ____________________________________________________
(4) Date filed: ______________________________________________________
<PAGE> 2
@POS.COM, INC.
-------------------------
Notice of Annual Meeting of Stockholders
To Be Held on December 10, 1999
at 9:30 a.m.
TO THE STOCKHOLDERS:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders (the
"Annual Meeting") of @POS.com, Inc., a Delaware corporation (the "Company"),
will be held on December 10, 1999 at 9:30 a.m., local time, at the Company's
Headquarters, located at 3051 North First Street, San Jose, California for the
following purposes:
1. To elect three directors to serve until the next Annual Meeting and
until their successors are duly elected and qualified.
2. To ratify the appointment by the Board of Directors of Arthur
Andersen LLP as independent accountants of the Company for the fiscal
year ending June 30, 2000.
3. To transact such other business as may properly come before the
Annual Meeting or any adjournment therefore.
The foregoing items of business are more fully described in the Proxy
Statement accompanying this Notice.
Only stockholders of record at the close of business on October 21, 1999
are entitled to notice of and to vote at the Annual Meeting and any adjournment
thereof.
All stockholders are cordially invited to attend the Annual Meeting in
person. However, to ensure your representation at the meeting, you are urged to
mark, sign date and return the enclosed proxy card as promptly as possible in
the postage-prepaid envelope enclosed for that purpose. Any stockholder
attending the Annual Meeting may vote in person even if such stockholder has
returned a proxy.
BY ORDER OF THE BOARD OF DIRECTORS
Aziz Valliani
President and Chief Executive Officer
San Jose, California
November 5, 1999
WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING, PLEASE COMPLETE, SIGN,
DATE AND RETURN THE ENCLOSED PROXY AS PROMPTLY AS POSSIBLE IN THE ENCLOSED
ENVELOPE.
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<PAGE> 3
@POS.COM, INC.
----------
PROXY STATEMENT
INFORMATION CONCERNING SOLICITATION AND VOTING
GENERAL
The enclosed Proxy is solicited on behalf of the Board of Directors of
@POS.com, Inc., a Delaware corporation (the "Company"), for use at the Annual
Meeting of Stockholders (the "Annual Meeting") to be held Friday, December 10,
1999 at 9:30 a.m., local time, or at any adjournment or postponement thereof,
for the purposes set forth herein and in the accompanying Notice of Annual
Meeting of Stockholders. The Annual Meeting will be held at the Company's
Headquarters, located at 3051 North First Street, San Jose, California 95134.
The principal executive offices of the Company are located at 3051 North
First Street, San Jose, California 94806.
These proxy solicitation materials and the Company's Annual Report to
Stockholders for the year ended June 30, 1999, including financial statements,
were mailed on or about November 5, 1999 to all stockholders entitled to vote at
the Annual Meeting.
REVOCABILITY OF PROXIES
Any proxy given pursuant to this solicitation may be revoked by the
person giving it at any time before its use by delivering to the Company
(Attention: David M. Licurse, Sr., acting Chief Financial Officer and Vice
President of Operations) a written notice of revocation or a duly executed proxy
bearing a later date or by attending the Annual Meeting and voting in person.
QUORUM; REQUIRED VOTE
A majority of the shares entitled to vote, present in person or
represented by proxy, shall constitute a quorum at the Annual Meeting. If a
quorum is present, in all matters other than the election of directors, the
affirmative vote on the subject matter shall be required to approve any matter
presented at the Annual Meeting. One director (the "Series D Preferred
Director") shall be elected by the holder of the Series D Preferred Stock (the
"Series D Preferred"). The remaining two directors (the "Common/Preferred
Directors") shall be elected by a plurality of the votes of the outstanding
shares of Common and Preferred Stock present in person or represented by proxy.
Under the General Corporation Law of the State of Delaware, an
abstaining vote and a broker "non-vote" are counted as present and entitled to
vote and are, therefore, included for purposes of determining whether a quorum
of shares is present at a meeting. However, broker "non-votes" are not deemed to
be "votes cast." As a result, broker "non-votes" are not included in the
tabulation of the voting results on the election of directors or issues
requiring approval of a majority of the votes cast and, therefore, do not have
the effect of votes in opposition in such tabulations. A broker "non-vote"
occurs when a nominee holding shares for a beneficial owner does not vote on a
particular proposal because the nominee does not have discretionary voting power
with respect to that item and has not received instructions from the beneficial
owner.
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<PAGE> 4
PROXIES
All shares entitled to vote and represented by properly executed,
unrevoked proxies received prior to the Annual Meeting will be voted at the
Annual Meeting in accordance with the instructions indicated on those proxies.
If no instructions are indicated on a properly executed proxy, the shares
represented by that proxy will be voted as recommended by the Board of
Directors. If any other matters are properly presented for consideration at the
Annual Meeting, including, among other things, consideration of a motion to
adjourn the Annual Meeting to another time or place (including, without
limitation, for the purpose of soliciting additional proxies), the persons named
in the enclosed proxy and acting thereunder will have discretion to vote on
those matters in accordance with their best judgment. The Company does not
currently anticipate that any other matters will be raised at the Annual
Meeting.
VOTING AND SOLICITATION
The stockholder holding Series D Preferred may elect the Series D
Preferred Director. For the Common/Preferred Directors, each stockholder voting
for the election of directors may cumulate such stockholder's votes and give one
candidate a number of votes equal to the number of Common/Preferred directors to
be elected multiplied by the number of shares held by such stockholder, or may
distribute such stockholder's votes on the same principle among as many
candidates as the stockholder may select, provided that votes cannot be cast for
more than three directors. However, no stockholder will be entitled to cumulate
votes unless the candidate's name has been placed in nomination prior to the
voting, and the stockholder, or any other stockholder, has given notice at the
meeting prior to the voting of the intention to cumulate votes. If any
stockholder gives such notice, all stockholders may cumulate their votes for the
candidates in nomination. In the event that cumulative voting is invoked, the
proxy holders will have the discretionary authority to vote all proxies received
by them in such a manner as to ensure the election of as many of the Board of
Directors' nominees as possible. See "Proposal 1--Election of Directors." On all
other matters, each share has one vote.
The Company will bear the cost of soliciting proxies. In addition, the
Company may reimburse brokerage firms and other persons representing beneficial
owners of shares for their expenses in forwarding solicitation material to such
beneficial owners. Solicitation of proxies by mail may be supplemented by one or
more of telephone, telegram, facsimile or personal solicitation by directors,
officers or regular employees of the Company. No additional compensation will be
paid to such persons for such services.
DEADLINE FOR RECEIPT OF STOCKHOLDER PROPOSALS
Proposals of stockholders of the Company which are intended to be
presented by such stockholders at the Company's 2000 Annual Meeting must be
received by the Company no later than June 30, 2000 in order that they may be
included in the proxy statement and form of proxy relating to that meeting.
RECORD DATE AND VOTING SECURITIES
Only stockholders of record at the close of business on October 21, 1999
(the "Record Date") are entitled to notice of and to vote at the meeting. As of
the Record Date, 2,242,654 shares of the Company's Common Stock were issued and
outstanding, no shares of the Company's Series A Preferred Stock were issued and
outstanding, 571,794 shares of the Company's Series B Preferred Stock were
issued and outstanding, 28,125 shares of the Company's Series C Preferred Stock
were issued and outstanding and 1,273,149 shares of the Company's Series D
Preferred Stock were issued and outstanding. Based on the average of the bid and
ask price on the OTC Bulletin Board on October 21, 1999, the market value of one
share of the Company's Common Stock was $1.9375. For the election of the Series
D Preferred Director, the holder of the Series D Preferred Stock is entitled to
one vote. For all matters except for the election of the Series D Preferred
Director, each share of Common Stock is entitled to one vote, each share of
Series B Preferred Stock is entitled to approximately 2.03 votes, each share of
Series C Preferred Stock is entitled to
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<PAGE> 5
approximately 40.90 votes and each share of Series D Preferred Stock is entitled
to one vote. Fractional votes shall be rounded to the nearest whole number (with
one-half being rounded upward).
PROPOSAL 1 -- ELECTION OF DIRECTORS
NOMINEES
The Company's Bylaws currently provide for a board of five directors.
Unless otherwise instructed, the proxy holders will vote the proxies received by
them for the Company's three nominees named below, all of whom are currently
directors of the Company. In the event that any Common/Preferred Director
nominee of the Company is unable or declines to serve as a director at the time
of the Annual Meeting, the proxies will be voted for any substitute nominee who
shall be designated by the current Board of Directors to fill the vacancy. In
the event that the Series D Preferred Director nominee, Kevin Jost, is unable or
declines to serve as a director at the time of the Annual Meeting, the proxy of
the holder of the Series D Preferred will be voted for a substitute nominee who
shall be designated by the holder of the Series D Preferred to fill the vacancy.
It is not expected that any nominee listed below will be unable or will decline
to serve as a director. In the event that additional persons are nominated for
election as directors, the proxy holders intend to vote all proxies received by
them in such a manner in accordance with cumulative voting as will ensure the
election of as many of the nominees listed below as possible, and, in such
event, the specific nominees to be voted for will be determined by proxy
holders. In any event, the proxy holders cannot vote for more than four persons.
The term of office each person elected as a director will continue until the
next Annual Meeting or until his or her successor has been duly elected and
qualified.
The names of the nominees, and certain information about them, are set
forth below.
<TABLE>
<CAPTION>
NAME OF NOMINEE AGE PRINCIPAL OCCUPATION DIRECTOR SINCE
- -------------------------- --------- ------------------------------ --------------
<S> <C> <C> <C>
Aziz Valliani 45 President and CEO, of the 1996
Company
Kevin Jost 45 Vice-President and General 1998
Manager of the Data
Collection Division of Welch
Allyn, Inc.
Vivian M. Stephenson 62 Executive Vice President and 1997
CIO of Dayton Hudson
Corporation
- -------------------------- --------- ------------------------------ --------------
</TABLE>
There are no family relationships among the Company's directors and
executive officers.
AZIZ VALLIANI has been the President, CEO and a director of the Company
since January 1996. Mr. Valliani, a 22 year veteran in the industry, served as
President and CEO of Inforite Corporation from April 1995 to December 1995. Mr.
Valliani was COO and executive vice president at Wyse Technology from March 1993
to February 1995. From April 1983 to April 1993, Mr. Valliani served as Vice
President and General Manager for the Altos Computer Systems, a business unit of
Acer America Corporation. From April 1973 to April 1978, Mr. Valliani was an
engineering manager at Intel Corporation. Mr. Valliani earned his BSEE from
Pratt Institute, Brooklyn, NY.
KEVIN JOST, director of the Company, joined Welch Allyn, Inc., a data
collection device manufacturer, in 1972, and has held the position of Vice
President of the Data Collection Division since 1985. In addition to his
operational responsibilities for the Data Collection Division, he is also
actively involved in the company's quality improvement initiatives. Mr. Jost
obtained a B.S. degrees in operations management from Syracuse University. Mr.
Jost has been a director of the Company since June 1998.
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<PAGE> 6
VIVIAN STEPHENSON, director of the Company, has served as Executive Vice
President and Chief Information Officer at the Dayton Hudson Corporation, a
general merchandise retailer, since March 1995. Previously, Ms. Stephenson held
the positions of Vice President and Senior Vice President of Information
Services for Mervyn's Department Stores. Prior to joining Mervyn's Department
Stores in 1989, she was Director of Systems Development and Maintenance for
Tenneco Gas Corporation. Ms. Stephenson currently serves on the Board of
Directors for the National Retail Federation Information Systems and the
California Chamber of Commerce. She has a B.S. in Mathematics from New York
University and an MBA from the University of Havana. Ms. Stephenson has been a
director of the Company since January 1997.
VOTE REQUIRED AND RECOMMENDATION OF BOARD OF DIRECTORS
The holder of the Series D Preferred may elect the Series D Preferred
Director, provided that such person is reasonably acceptable to the Company's
Board of Directors. The holder of the Series D Preferred has nominated Kevin
Jost for the position.
Aside from Mr. Jost, the two nominees receiving the highest number of
affirmative votes of the shares entitled to be voted shall be elected as the
Common/Preferred Directors. Votes withheld will be counted for purposes of
determining the presence or absence of a quorum for the transaction of business
at the meeting, but have no other legal effect upon election of directors.
THE COMPANY'S BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS VOTING "FOR" THE
NOMINEES SET FORTH HEREIN.
PROPOSAL TWO -- RATIFICATION OF APPOINTMENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors has appointed Arthur Andersen LLP, independent
accountants, to audit the financial statements of the Company for the year
ending June 30, 2000, and recommends that the stockholders vote for ratification
of such appointment. In the event of a negative vote on such ratification, the
Board of Directors will reconsider its selection. Arthur Andersen LLP has
audited the Company's financial statements since the fiscal year ended June 30,
1994. Representatives of Arthur Andersen LLP are expected to be present at the
Annual Meeting of Stockholders and will have the opportunity to make a statement
if they so desire. The representatives also are expected to be available to
respond to appropriate questions from stockholders.
VOTE REQUIRED AND RECOMMENDATION OF BOARD OF DIRECTORS
Although stockholder approval is not required for the appointment of
Arthur Andersen LLP (as the Board of Directors has the responsibility for
selecting auditors), the Board of Directors has conditioned its appointment of
the Company's independent auditors upon the receipt of the affirmative vote of a
majority of the votes duly cast at the Annual Meeting. In the event that the
stockholders do not approve the selection of Arthur Andersen LLP, the Board of
Directors will reconsider its selection.
THE COMPANY'S BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS VOTING "FOR"
THIS PROPOSAL.
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<PAGE> 7
OTHER INFORMATION
REGARDING SECURITY OWNERSHIP,
DIRECTORS AND OFFICERS
EXECUTIVE OFFICERS
The following table lists the Company's executive officers (the "Named
Officers") as of the date of this Proxy Statement and certain information
concerning them.
<TABLE>
<CAPTION>
NAME AGE POSITION
- ------------------------------ ------- ----------------------------------------------
<S> <C> <C>
Aziz Valliani 45 President, Chief Executive Officer and
Director
David M. Licurse, Sr. 61 Chief Business Officer, Acting Chief
Financial Officer and Vice President of
Operations
Llavan Fernando 47 Vice President, Chief Technology Officer
- ------------------------------ - ------- ----------------------------------------------
</TABLE>
EXECUTIVE PROFILES
AZIZ VALLIANI has been the President, CEO and a director of the Company
since January 1996. Mr. Valliani, a 22 year veteran in the industry, served as
President and CEO of Inforite Corporation from April 1995 to December 1995. Mr.
Valliani was COO and executive vice president at Wyse Technology from March 1993
to February 1995. From April 1983 to April 1993, Mr. Valliani served as Vice
President and General Manager for the Altos Computer Systems, a business unit of
Acer America Corporation. From April 1978 to April 1973, Mr. Valliani was an
engineering manager at Intel Corporation. Mr. Valliani earned his BSEE from
Pratt Institute, Brooklyn, NY.
DAVID M. LICURSE, SR. has been the Chief Business Officer since August
1999 and acting CFO since September 1999. Mr. Licurse had been the CFO and Vice
President of Operations from December 1995 to August 1999. From May 1995 to
December 1995, he served as CFO and Vice President of Operations at Inforite
Corporation. From May 1972 to December 1994, Mr. Licurse held various senior
level managerial positions with Xerox Corporation including Financial Planning
and Analysis Manager for Xerox's manufacturing division, Controller for its
computer strategic business unit and Manager of Finance and Operations for a
high technology software division in Palo Alto. Mr. Licurse earned an MBA from
Simon Business School at the University of Rochester.
LLAVANYA FERNANDO has been promoted to Chief Technology Officer in
August 1998. Mr. Fernando has been the Vice President of Hardware Development
since November 1996. From May 1995 to November 1995, Mr. Fernando served as vice
president of research and development at Inforite Corporation. Mr. Fernando has
over 21 years of direct research and development, mobile computing and
management experience. From March 1993 until May 1995, he held the position of
strategic business development manager at Wyse Technology. From September 1982
until September 1993, Mr. Fernando was the General Manager at a business unit of
TeleSensory Systems, Inc. in Mountain View, California. He has also worked at
Data Products, Graviner Ltd. and H. Tinsley & Co. Qualified in England, he
obtained M.S. and B.S. degrees in the field of electronics and systems
engineering.
None of the directors or officers of the Company have been involved in
any proceedings described in Item 401(d) of Regulation S-B promulgated under the
Exchange Act of 1934, as amended.
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<PAGE> 8
SECURITY OWNERSHIP
The following table sets forth certain information known to the Company
regarding the beneficial ownership of each class of the Company's voting
securities as of October 21, 1999, by (a) each beneficial owner of more than 5%
of the Company's Common Stock or Preferred Stock, (b) the Named Officers, (c)
each director of the Company and (d) all directors and executive officers of the
Company as a group. Except as otherwise indicated, each person has sole voting
and investment power with respect to all shares shown as beneficially owned,
subject to community property laws where applicable.
<TABLE>
<CAPTION>
Amount and
Nature of
Beneficial Percent
Title of Class Name and Address of Beneficial Owner Ownership(1)(2) of Class
- --------------- ---------------------------------------- --------------- --------
<S> <C> <C> <C>
Common Stock Aziz Valliani (3) 446,536 18.3%
c/o @POS.com, Inc.
3051 North First Street,
San Jose, CA 95134
Common Stock Llavan Fernando (4) 221,135 9.6%
c/o @POS.com, Inc.
3051 North First Street,
San Jose, CA 95134
Common Stock David M. Licurse, Sr. (5) 228,363 9.9%
c/o @POS.com, Inc.
3051 North First Street,
San Jose, CA 95134
Common Stock Wilmot Living Trust (6) 190,000 8.4%
13333 La Cresta Drive,
Los Altos, CA 94022
Common Stock Vivian Stephenson (7) 24,500 1.1%
c/o @POS.com, Inc.
3051 North First Street,
San Jose, CA 95134
Common Stock All Directors and Officers as a group 920,534 41%
(four persons)(8)
Series B Life Investors Insurance 352,942 20%
Preferred Company of America
Stock 4333 Edgewood Rd NE,
Cedar Rapids, IA 52499
Series C Nazem & Company 28,125 32.1%
Preferred 3000 Sand Hill Road,
Stock Building 2, Suite 205
Menlo Park, CA 94025
Series D Welch Allyn, Inc. (9) 1,273,149 35.5%
Preferred 4619 Jordan Road
Stock Skaneateles Falls, NY 13153
Preferred All Directors and Officers as a group 1,273,149 35.5%
Stock (one person)(10)
- --------------- ---------------------------------------- --------------- -----------
</TABLE>
(1) The Company effected a reverse stock split in October 1996, converting each
share of Series B Preferred into one-half share and increasing the
conversion ratio of Series B Preferred into Common Stock from 1:1 to
1:2.0286 and converting each share of Series C Preferred into one-fourth
share and increasing the conversion ratio of Series C Preferred into Common
Stock from 1:10 to 1:40.8998
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(2) The number and percentage of shares beneficially owned is determined in
accordance with Rule 13d-3 of the Exchange Act, and the information is not
necessarily indicative of beneficial ownership for any other purpose. Under
such rule, beneficial ownership includes any shares as to which the
individual or entity has voting power or investment power and any shares
that the individual has the right to acquired within 60 days of October 21,
1999 through the exercise of any stock option or other right. Unless
otherwise indicated in the footnotes, each person or entity has sole voting
and investment power (or shares such powers with his or her spouse) with
respect to the shares shown as beneficially owned.
(3) Includes 192,603 shares subject to currently exercisable options or options
exercisable within 60 days of October 21, 1999.
(4) Includes 167,938 shares held by the Llavanya X. Fernando Trust as to which
Mr. Fernando claims voting and investment control and 53,197 shares subject
to currently exercisable options or options exercisable within 60 days of
October 21, 1999.
(5) Includes 162,428 shares held by the D. and P. Licurse Trust, for the
benefit of Mr. Licurse's wife, 65,935 shares subject to currently
exercisable options or options exercisable within 60 days of October 21,
1999 granted to Mr. Licurse.
(6) Includes 15,000 shares subject to currently exercisable options or options
exercisable within 60 days of October 21, 1999 granted to Rob Wilmot. Mr.
Wilmot is a trustee of the Wilmot Living Trust and a former consultant of
the Company.
(7) Includes 24,500 shares subject to currently exercisable options or options
exercisable within 60 days of October 21, 1999.
(8) Includes all shares described in notes (3)-(5) and notes (7) above.
(9) Kevin Jost, Vice President of the Data Collection Division of Welch Allyn,
Inc., and a director of the Company, disclaims beneficial ownership of
these shares.
(10) Includes all shares described in note (9) above.
BOARD MEETINGS AND COMMITTEES
The Board of Directors of the Company held a total of eleven meetings
(including regularly scheduled and special meetings) during the fiscal year
ended June 30, 1999. No director attended fewer than 75% of the meetings of the
Board of Directors and its committees upon which such director served. Certain
matters approved by the Board of Directors were approved by unanimous written
consent.
The Board of Directors of the Company has a Compensation Committee, the
membership of which is formed by Vivian Stephenson and Kevin Jost. The
Compensation Committee determines annual cash compensation of officers, and
deals with issues relating to stock options and other incentive compensation.
The Compensation Committee held two meetings during the last fiscal year.
The Board of Directors of the Company also has an Audit Committee, the
membership of which is formed by Vivian Stephenson and Kevin Jost. The Audit
Committee reviews and monitors the corporate financial reporting and the
internal and external audits of the Company. The Audit Committee held one
meeting during the last fiscal year.
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<PAGE> 10
DIRECTOR COMPENSATION
On January 1, 1999, the Company granted a nonstatutory stock option to
purchase 25,000 shares of the Company's common stock to Paul Dali, as
compensation for his services as Chairman of the Board of Directors in fiscal
1999. The option vests over four years and has an exercise price of $4.00.
On February 1, 1999, the Company granted a nonstatutory stock option to
purchase 12,500 shares of the Company's common stock to William Powar, as
compensation for his services as Director in fiscal 1999. The option vests over
one year and has an exercise price of $4.00.
On February 1, 1999, the Company granted a nonstatutory stock option to
purchase 7,500 shares of the Company's common stock to Vivian Stephenson, as
compensation for his services as Director in fiscal 1999. The option vests over
one year and has an exercise price of $4.00.
Other then the above-mentioned option grants, the Company has not paid
any annual retainer, per-meeting fee, or any other compensation to any director,
aside from fees payable to such directors for their services as officers or
employees of the Company.
RELATED PARTY TRANSACTIONS
Except for the certain employment agreements described in "Employment
Agreements" below, since July 1, 1998, there have been no other transactions
between the Company and any executive officer, director, beneficial owner of 5%
of more of the Company's Common Stock or Preferred Stock, or member of the
immediate family of the foregoing persons in which one of the foregoing
individuals or entities had an interest of more than $60,000.
EMPLOYMENT AGREEMENTS
On May 31, 1999, the Company entered into a Consulting Agreement (the
"Consulting Agreement") with Abbas Rafii, the former vice president of software
engineering of the Company. Mr. Rafii terminated employment with the Company in
May 1999. Under the terms of the Consulting Agreement, Mr. Rafii will provide
consulting services to the Company and the Company will pay Mr. Rafii $13,900
per month for such services until October 31, 1999. Mr. Rafii's stock options
will vest until he ceases providing consulting services to the Company.
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires the Company's executive officers and directors, and persons who own
more than ten percent of a registered class of the Company's equity securities
("10% Stockholders"), to file reports of ownership on Form 3 and changes in
ownership on Form 4 or Form 5 with the Securities and Exchange Commission (the
"Commission"). Such executive officers, directors and 10% Stockholders are also
required by the Commission rules to furnish the Company with copies of all
Section 16(a) forms they file.
Based solely upon its review of copies of such forms received by it, or
written representations from certain reporting persons that no Form 5 was
required for such persons, the Company believes that during the year ended June
30, 1999, its executive officers, directors, and 10% Stockholders complied with
all applicable Section 16(a) filing requirements.
EXECUTIVE COMPENSATION
The following table sets forth all compensation received for services
rendered to the Company in all capacities, for the last three fiscal years ended
June 30, 1999, by the Named Officers, as named below:
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<PAGE> 11
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Long Term
Compensation
Annual Compensation Awards
-------------------------- --------------
Securities
Salary Bonus Underlying
Name and Principal Position Year ($) ($) Options (#)(1)
- ---------------------------- ---- ------- ------ ----------------
<S> <C> <C> <C> <C>
Aziz Valliani 1999 287,500 95,000 30,000
President and Chief 1998 260,000 40,000 20,000
Executive Officer 1997 250,000 -- 175,000
David M. Licurse, Sr, 1999 160,125 40,000 20,000
Chief Business Officer, 1998 145,125 22,500 24,000
Acting Chief Financial 1997 135,000 -- 51,500
Officer and Vice President
of Operations
Llavan Fernando 1999 173,400 35,000 17.500
Vice President 1998 158,400 21,500 12,000
Chief Technology Officer 1997 144,000 -- 50,000
</TABLE>
(1) All figures in this column reflect options to purchase common stock.
The Company has not entered into any employment contracts with any Named
Officer except for the consulting agreement with Abbas Rafii executed on May 31,
1999. See "Employment Agreements"
The Company did not issue any other annual compensation, or any other
long-term compensation awards or payouts, such as restricted stock awards,
long-term incentive plan compensation, or other compensation to its Named
Officers during the last three fiscal years ended June 30, 1999.
OPTION GRANTS IN LAST FISCAL YEAR
The Option Grant Table sets forth hypothetical gains or "option spreads"
for the options at the end of their respective four-year terms, as calculated in
accordance with the rules of the Securities and Exchange Commission for each of
the Named Officers, for the year ended June 30, 1999. Each gain is based on an
assumed annualized rate of compound appreciation of the market price at the date
of grant of five percent (5%) and ten percent (10%) from the date the option was
granted to the end of the option term. Actual gains, if any, on option exercises
are dependent on the future performance of the Company's Common Stock and
overall market conditions.
<TABLE>
<CAPTION>
Individual Grants
--------------------------------------------
Potential
Percent realizable Value at
of Total Assumed Annual
Options Rates of Stock
Granted to Price Appreciation
Employees Exercise for Option Term
Option in Fiscal Price Expiration ---------------------
Granted(1) Year ($/Share) Date 5% 10%
----------- ----------- ---------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Aziz Valliani 30,000 6.1% $3.75 07/17/08 $70,751 $179,296
Llavan Fernando 17,500 3.6% 3.75 07/17/08 41,271 104,589
David M. Licurse, Sr. 20,000 4.1% 3.75 07/17/08 47,167 119,531
----------- ----------- ---------- --------- ---------- ----------
</TABLE>
10
<PAGE> 12
(1) Represents number of shares granted under stock options. The Company did
not grant stock appreciation rights or restricted stock awards in the
fiscal year ended June 30, 1999.
OPTION EXERCISES AND HOLDINGS
The following table sets forth for each of the Named Officers certain
information concerning the number of shares subject to both exercisable and
unexercisable stock options as of June 30,1999. Also reported are values for
"in-the-money" options that represent the positive spread between the respective
exercise prices of outstanding stock options and the fair market value of the
Company's Common Stock as of June 30, 1999, as determined by the average of the
ask and bid price on the OTC market. There were no option exercises by the Named
Officers during the fiscal year ended June 30, 1999.
AGGREGATED OPTION EXERCISES IN FISCAL 1999 AND FISCAL 1999 YEAR-END VALUES
<TABLE>
<CAPTION>
Number of Unexercised Value of Unexercised
Options at 6/30/99 In-the-Money Option at
6/30/99 (1)
---------------------------- ---------------------------
Exercisable Unexercisable Exercisable Unexercisable
------------- -------------- ------------- -------------
<S> <C> <C> <C> <C>
Aziz Valliani 157,603 67,397 $ 867,431 284,444
Llavan Fernando 41,593 37,907 222,508 157,618
David M. Licurse, Sr. 50,586 44,914 236,470 158,468
------------- -------------- ------------- -------------
</TABLE>
(1) Calculated by determining the difference between the fair market value of
the securities underlying the option at 6/30/99 ($7.00 per share as
determined by the average of the ask and bid price on the OTC market on
6/30/99) and the exercise price of the options.
OTHER MATTERS
The Company knows of no other matters to be submitted to the meeting. If
any other matters properly come before the meeting or any adjournment or
postponement thereof, it is the intention of the persons named in the enclosed
form of Proxy to vote the shares they represent as the Board of Directors may
recommend.
FORM 10-K
STOCKHOLDERS ENTITLED TO VOTE AT THE ANNUAL MEETING MAY OBTAIN, WITHOUT
CHARGE, A COPY OF THE COMPANY'S ANNUAL REPORT ON FORM 10-KSB FOR THE FISCAL YEAR
ENDED JUNE 30, 1999 UPON WRITTEN REQUEST TO DAVID M. LICURSE, SR., ACTING CHIEF
FINANCIAL OFFICER AND VICE PRESIDENT OF OPERATIONS, @POS.COM, INC., 3051 NORTH
FIRST STREET, SAN JOSE, CALIFORNIA 95134.
BY ORDER OF THE BOARD OF DIRECTORS
Dated: November 5, 1999
11
<PAGE> 13
@POS.COM, INC.
PROXY FOR 1999 ANNUAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
FOR HOLDERS OF THE COMPANY'S COMMON STOCK,
SERIES B PREFERRED STOCK
AND SERIES C PREFERRED STOCK
The undersigned stockholder of @POS.com, Inc., a Delaware corporation
(the "Company"), hereby acknowledges receipt of the Notice of Annual Meeting and
accompanying Proxy Statements, each dated November 5, 1999 and hereby appoints
Aziz Valliani and David M. Licurse, Sr., and each of them, proxies and
attorneys-in-fact, each with full power of substitution to represent the
undersigned and to vote all the shares of the Company which the undersigned is
entitled to vote, at the Annual Meeting of Stockholders of the Company to be
held on December 10, 1999, at 9:30 a.m., local time, at the Company's
Headquarters, located at 3051 North First Street, San Jose, California, or any
adjournment thereof (1) as hereinafter specified upon the proposals listed on
the reverse side and as more particularly described in Company's Proxy
Statement, and (2) in their discretion upon such other matters as may properly
come before the meeting.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF @POS.COM, INC.
FOR THE ANNUAL MEETING OF STOCKHOLDERS ON DECEMBER 10, 1999. IN ORDER TO ASSURE
YOUR REPRESENTATION AT THE ANNUAL MEETING OF STOCKHOLDERS, PLEASE COMPLETE,
SIGN, DATE, AND RETURN THIS PROXY CARD PROMPTLY IN THE ENCLOSED ENVELOPE. THIS
PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN. IF NO
SPECIFICATION IS MADE, THIS PROXY WILL BE VOTED "FOR" THE PROPOSALS BELOW AND AS
SAID PROXIES DEEM ADVISABLE ON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE
THE ANNUAL MEETING. THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE "FOR"
THESE PROPOSALS.
(Continued, and to be signed, on reverse side).
12
<PAGE> 14
(Continued from other side)
[X] Please mark votes as in this example
1. Election Of Directors:
COMMON /PREFERRED DIRECTOR NOMINEES: Aziz Valliani, Vivian M. Stephenson.
[ ] FOR [ ] WITHHELD
[ ]
-----------------------------------------------------------------
FOR all nominees except vote withheld from nominee(s) noted above
2. Proposal to confirm the appointment of Arthur Andersen, LLP as the Company's
independent accountants for the fiscal year ending June 30, 2000.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
3. In their discretion, upon such other business as may properly come before the
meeting or any adjournment thereof.
This Proxy will be voted as directed or, if no contrary direction is
indicated, will be voted FOR the election of the nominees indicated above, FOR
ratification of the appointment of Arthur Andersen, LLP, and in the discretion
of the proxy holders, on such other business as may properly come before the
meeting or any adjournment thereof.
This Proxy should be marked, dated and signed by the stockholder(s)
exactly as his or her name appears hereon, and returned promptly in the enclosed
envelope. Persons signing as officers or in a fiduciary capacity should so
indicate. If shares are held by joint tenants or as community property, both
should sign.
Signature _______________________ Date __________
Signature ________________________ Date __________
[ ] CHECK HERE FOR ADDRESS CHANGE AND NOTE AT RIGHT: __________________________
__________________________
__________________________
[ ] CHECK HERE IF YOU PLAN TO ATTEND THE ANNUAL MEETING
13
<PAGE> 15
@POS.COM, INC.
PROXY FOR 1999 ANNUAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
FOR HOLDERS OF THE COMPANY'S SERIES D PREFERRED STOCK
The undersigned stockholder of @POS.com, Inc., a Delaware corporation
(the "Company"), hereby acknowledges receipt of the Notice of Annual Meeting and
accompanying Proxy Statements, each dated November 5, 1999 and hereby appoints
Aziz Valliani and David M. Licurse, Sr., and each of them, proxies and
attorneys-in-fact, each with full power of substitution to represent the
undersigned and to vote all the shares of the Company which the undersigned is
entitled to vote, at the Annual Meeting of Stockholders of the Company to be
held on December 10, 1999, at 9:30 a.m., local time, at the Company's
Headquarters, located at 3051 North First Street, San Jose, California, or any
adjournment thereof (1) as hereinafter specified upon the proposals listed on
the reverse side and as more particularly described in Company's Proxy
Statement, and (2) in their discretion upon such other matters as may properly
come before the meeting.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS OF @POS.COM, INC.
FOR THE ANNUAL MEETING OF STOCKHOLDERS ON DECEMBER 10, 1999. IN ORDER TO ASSURE
YOUR REPRESENTATION AT THE ANNUAL MEETING OF STOCKHOLDERS, PLEASE COMPLETE,
SIGN, DATE, AND RETURN THIS PROXY CARD PROMPTLY IN THE ENCLOSED ENVELOPE. THIS
PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN. IF NO
SPECIFICATION IS MADE, THIS PROXY WILL BE VOTED "FOR" THE PROPOSALS BELOW AND AS
SAID PROXIES DEEM ADVISABLE ON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE
THE ANNUAL MEETING. THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE "FOR"
THESE PROPOSALS.
(Continued, and to be signed, on reverse side).
14
<PAGE> 16
(Continued from other side)
[X] Please mark votes as in this example
1. Election Of Directors:
SERIES D PREFERRED DIRECTOR NOMINEES: Kevin Jost.
[ ] FOR [ ] WITHHELD
[ ]
-------------------------------------------------------------------
FOR all nominees except vote withheld from nominee(s) noted above
COMMON /PREFERRED DIRECTOR NOMINEES: Aziz Valliani, Vivian M. Stephenson.
[ ] FOR [ ] WITHHELD
[ ]
-------------------------------------------------------------------
FOR all nominees except vote withheld from nominee(s) noted above
2. Proposal to confirm the appointment of Arthur Andersen, LLP as the Company's
independent accountants for the fiscal year ending June 30, 2000.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
3. In their discretion, upon such other business as may properly come before the
meeting or any adjournment thereof.
This Proxy will be voted as directed or, if no contrary direction is
indicated, will be voted FOR the election of the nominees indicated above, FOR
ratification of the appointment of Arthur Andersen, LLP, and in the discretion
of the proxy holders, on such other business as may properly come before the
meeting or any adjournment thereof.
This Proxy should be marked, dated and signed by the stockholder(s)
exactly as his or her name appears hereon, and returned promptly in the enclosed
envelope. Persons signing as officers or in a fiduciary capacity should so
indicate. If shares are held by joint tenants or as community property, both
should sign.
Signature _______________________ Date __________
Signature ________________________ Date __________
[ ] CHECK HERE FOR ADDRESS CHANGE AND NOTE AT RIGHT: __________________________
__________________________
__________________________
[ ] CHECK HERE IF YOU PLAN TO ATTEND THE ANNUAL MEETING
15
