Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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LS CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 84-1219819
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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Rivercourt
17-19 Sir John Rogersons Quay
Dublin 2
Ireland
(3531) 679-0222
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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LS CAPITAL CORPORATION
FISCAL 2000 NON-QUALIFIED
STOCK OPTION PLAN
(Full title of the Plan)
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Paul J. Montle
Chief Executive Officer
Rivercourt
17-19 Sir John Rogersons Quay
Dublin 2
Ireland
(3531) 679-0222
(Address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of each class maximum maximum Amount of
of securities Amount to be offering aggregate Registration
to be registered registered(1) price per share(2) offering price(2) fee
<S> <C> <C> <C> <C>
Common Stock, 5,000,000 $.022 $110,000 $30.58
par value $.01,
underlying options
</TABLE>
(1) Represents the maximum number of shares which may be distributed pursuant to
this Registration Statement. (2) Estimated solely for purposes of calculating
the registration fee based, pursuant to Rule 457(h)(1), on the average of the
bid and ask prices of the Registrant's common stock as reported on the OTC
Bulletin Board on September 23, 1999, or $.022 per share.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents filed by LS Capital Corporation (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
<TABLE>
<S> <C>
(a) The Company's Annual Report on Form 10-K for the year ended June 30, 1998 (file no. 0-21566), including
all amendments;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998 (file no. 0-21566),
including all amendments;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 1998 (file no. 0-21566),
including all amendments;
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended March 30, 1999 (file no. 0-21566), including
all amendments; and
(e) The description of the Company's common stock, $.01 per value (the
"Common Stock"), set forth under the caption "Description of Common Stock" in
the Company's Registration Statement on Form 8-A dated April 16, 1993 (which
incorporates such description in the Company's Registration Statement on Form
SB-2 (file no. 33-57998D), as filed with the Commission on March 29, 1993, as
amended) and all amendments and reports filed thereafter for the purpose of
updating such description.
</TABLE>
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 ("Exchange
Act"), prior to the filing of a post-effective amendment that indicates that all
securities offered hereby have been sold or which de-registers all securities
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such document.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify any person who was or is party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action.
In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of such
action, and the corporation may not indemnify for amounts paid in satisfaction
of a judgment or in settlement of the claim. In any such action, no
indemnification may be paid in respect of any claim, issue or matter as to which
such person shall have been adjudged liable to the corporation except as
otherwise approved by the Delaware Court of Chancery or the court in which the
claim was brought. In any other type of proceeding, the indemnification may
extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses.
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner the person reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
in the case of criminal actions or proceedings, the person had no reasonable
cause to believe his conduct was unlawful. The statute contains additional
limitations applicable to criminal actions and to actions brought by or in the
name of the corporation. The determination as to whether a person seeking
indemnification has met the required standard of conduct is to be made (1) by a
majority vote of a quorum of disinterested members of the board of directors,
(2) by independent legal counsel in a written opinion, if such a quorum does not
exist or if the disinterested directors so direct, or (3) by the stockholders.
The Company's Bylaws require the Company to indemnify the Company's
directors and officers to the fullest extent authorized by the Delaware General
Corporation Law or any other applicable law in effect. The Company's Certificate
of Incorporation limits the personal liability of a director to the corporation
or its stockholders to damages for breach of the director's fiduciary duty.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
<S> <C>
4.1 ---Specimen Stock Certificate for Registrant's Common Stock
(incorporated herein by reference to the Registrant's
Registration Statement on Form 8-A dated April 16, 1993
(Commission File No. 0-21566), Item 2, Exhibit 1.
4.2 ---LS Capital Corporation Fiscal 2000 Non-Qualified Stock Option Plan.
5.1 ---Opinion of Randall W. Heinrich, Of Counsel to Gillis & Slogar, L.L.P.
23.1 ---Consent of Malone & Bailey, PLLC.
23.2 ---Consent of Randall W. Heinrich, Of Counsel to Gillis & Slogar, L.L.P. (included in Exhibit 5.1 to
this Registration Statement).
24.1 ---Power of Attorney (included on the signature page hereto).
</TABLE>
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which the 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 (the "Act");
(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 Act, 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; and
(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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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.
(c) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
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 than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the questions 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.
SIGNATURES
The Registrant
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 requirement for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dublin, Ireland on September 24, 1999.
LS CAPITAL CORPORATION
By \S\ Paul J. Montle
Paul J. Montle,
Chief Executive Officer
(Principal Executive Officer
& Principal Financial Officer)
POWER OF ATTORNEY
The undersigned directors and officers of LS Capital Corporation hereby
appoint Paul J. Montle as attorney-in-fact for the undersigned, with full power
of substitution, for and in the name, place and stead of the undersigned, to
sign and file with the Securities and Exchange Commission under the Securities
Act of 1933 any and all amendments (including post-effective amendments) and
exhibits to this registration statement and any and all applications and other
documents to be filed with the Securities and Exchange Commission pertaining to
the registration of the securities covered hereby, with full power and authority
to do and perform any and all acts and things whatsoever requisite and necessary
or desirable, hereby ratifying and confirming all that said attorney-in-fact, or
his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C>
/S/ Paul J. Montle Director, President September 24, 1999
Paul J. Montle and Chief Executive
Officer (Principal
Executive Officer and
Principal Financial Officer)
/S/ Roger W. Cope Director September 24, 1999
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Roger W. Cope
/S/ C. Thomas Cutter Director September 24, 1999
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C. Thomas Cutter
</TABLE>
<PAGE>
EXHIBITS INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
<S> <C> <C>
4.1 Specimen Stock Certificate for Registrant's Common Stock
(incorporated herein by reference to the Registrant's Registration
Statement on Form 8-A dated April 16, 1993 (Commission File No.
0-21566), Item 2, Exhibit 1.
4.2 LS Capital Corporation Fiscal 2000 Non-Qualified Stock Option Plan.
5.1 Opinion of Randall W. Heinrich, Of Counsel to Gillis & Slogar, L.L.P.
23.1 Consent of Malone & Bailey, PLLC.
23.2 Consent of Randall W. Heinrich, Of Counsel to Gillis & Slogar, L.L.P.
(included in Exhibit 5.1 to this Registration Statement)
24.1 Power of Attorney (included on the signature page hereto).
</TABLE>
EXHIBIT 4.2
LS CAPITAL CORPORATION
FISCAL 2000 NON-QUALIFIED STOCK OPTION PLAN
1. NAME AND PURPOSES OF THE PLAN
(a) The plan set forth herein shall be known as "LS Capital
Corporation Fiscal 2000 Non-Qualified Stock Option Plan"
(the "Plan").
(b) The purposes of the Plan are to:
(i) Encourage selected employees, directors and consultants to
improve operations and increase profits of LS Capital
Corporation, a Delaware corporation (the "Company");
(ii) Encourage selected employees, directors and consultants
to accept or continue employment or association with the
Company or its Affiliates (as defined below); and
(iii) Increase the interest of selected employees, directors
and consultants in the Company's welfare through participation
in the growth in value of the common stock of the Company (the
"Common Stock").
(c) The options granted pursuant to this Plan are not intended to
qualify as "incentive stock options" under Section 422(b) of the Internal
Revenue Code of 1986, as amended (the "Code"), and the provisions of this Plan
need not be construed in a manner consistent with the requirements of that Code
section.
2. ELIGIBLE PERSONS AND CERTAIN DEFINITIONS
Any consultant, non-employee director, or full-time employee of the
Company or of any Affiliate selected by the Administrator (as defined herein) in
its sole discretion is eligible to receive a grant of an option pursuant to this
Plan (an "Option"). The term "Affiliate" as used in the Plan means a parent or
subsidiary corporation as defined in the applicable provisions (currently
Sections 424(e) and (f), respectively) of the Code. The term "employee" includes
an officer or director who is an employee of the Company. The term "consultant"
includes persons employed by, or otherwise affiliated with, a consultant. The
term "Optionee" shall refer to a person in whose favor an Option is granted
pursuant to this Plan.
3. STOCK SUBJECT TO THIS PLAN
The total number of shares of Common Stock that may be issued under
Options granted pursuant to this Plan shall not exceed 5.0 million. Shares
covered by any Option that expires unexercised shall become available again for
grants under the Plan..
4. ADMINISTRATION
(a) This Plan shall be administered by the Board of Directors of the
Company (the "Board") or by a committee of at least two Board members to which
administration of the Plan, or of part of the Plan, is delegated (in either
case, the "Administrator").
(b) Subject to the other provisions of this Plan, the Administrator
shall have the authority, in its discretion: (i) to grant Options; (ii) to
determine the Fair Market Value of the Common Stock subject to Options in
accordance with Section 6.10 hereof; (iii) to determine the exercise price of
Options granted; (iv) to determine the persons to whom, and the time or times at
which, Options shall be granted, and the number of shares subject to each
Option; (v) to interpret this Plan; (vi) to prescribe, amend, and rescind rules
and regulations relating to this Plan; (vii) to determine the terms and
provisions of each Option granted (which need not be identical), including but
not limited to, the time or times at which Options shall be exercisable; (viii)
with the consent of the Optionee, to modify or amend any Option; (ix) to defer
(with the consent of the Optionee) the exercise date of any Option; (x) to
authorize any person to execute on behalf of the Company any instrument
evidencing the grant of an Option; and (xi) to make all other determinations
deemed necessary or advisable for the administration of this Plan. The
Administrator may delegate nondiscretionary administrative duties to such
employees of the Company as it deems proper.
(c) All questions of interpretation, implementation, and application of
this Plan shall be determined by the Administrator. Such determinations shall be
final and binding on all persons.
(d) With respect to persons subject to Section 16 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), if any, transactions
under this Plan are intended to comply with the applicable conditions of Rule
16b-3, or any successor rule thereto. To the extent any provision of this Plan
or action by the Administrator fails to so comply, it shall be deemed null and
void, to the extent permitted by law and deemed advisable by the Administrator.
Notwithstanding the above, it shall be the responsibility of such persons, not
of the Company or the Administrator, to comply with the requirements of Section
16 of the Exchange Act; and neither the Company nor the Administrator shall be
liable if this Plan or any transaction under this Plan fails to comply with the
applicable conditions of Rule 16b-3 or any successor rule thereto, or if any
such person incurs any liability under Section 16 of the Exchange Act.
5. GRANTING OF OPTIONS; OPTION AGREEMENT
(a) No Options shall be granted under this Plan after ten years from
the date of adoption of this Plan by the Board.
(b) Each Option shall be evidenced by a written stock option agreement
(an "Option Agreement"), in form satisfactory to the Company, executed by the
Company and the person to whom such Option is granted; provided, however, that
the failure by the Company, the Optionee, or both to execute such an agreement
shall not invalidate the granting of an Option, although the exercise of each
Option shall be subject to Section 6.3.
(c) The Administrator may approve the grant of Options under this Plan
to persons who are expected to become employees, directors or consultants of the
Company, but are not employees, directors or consultants at the date of
approval.
6. TERMS AND CONDITIONS OF OPTIONS
Each Option granted under this Plan shall be subject to the following
terms and conditions:
6.1 Changes in Capital Structure. Subject to Section 6.2, if the Common
Stock is changed by reason of a stock split, reverse stock split, stock
dividend, or recapitalization, combination or reclassification, appropriate
adjustments shall be made by the Administrator in (a) the number and class of
shares of Common Stock subject to this Plan and each Option outstanding under
this Plan, and (b) the exercise price of each outstanding Option; provided,
however, that the Company shall not be required to issue fractional shares as a
result of any such adjustments. Each such adjustment shall be subject to
approval by the Administrator in its sole discretion.
6.2 Corporate Transactions.
(a) In the event of (i) a dissolution or liquidation of the Company,
(ii) a merger or consolidation in which the Company is not the surviving
corporation (other than a merger or consolidation with a wholly-owned
subsidiary, a reincorporation of the Company in a different jurisdiction, or
other transaction in which there is no substantial change in the shareholders of
the Company or their relative stock holdings and the Options granted under this
Plan are assumed, converted or replaced by the successor or acquiring
corporation, which assumption, conversion or replacement will be binding on all
Optionees), (iii) a merger in which the Company is the surviving corporation but
after which the shareholders of the Company immediately prior to such merger
(other than any shareholder which merges with the Company in such merger, or
which owns or controls another corporation which merges, with the Company in
such merger) cease to own their shares or other equity interests in the Company,
or (iv) the sale of all or substantially all of the assets of the Company, any
or all outstanding Options may be assumed, converted or replaced by the
successor or acquiring corporation (if any), which assumption, conversion or
replacement will be binding on all Optionees. In the alternative, the successor
or acquiring corporation may substitute equivalent options or provide
substantially similar consideration to Optionees as was provided to shareholders
(after taking into account the existing provisions of the Options). In the event
such successor or acquiring corporation (if any) does not assume or substitute
Options, as provided above, pursuant to a transaction described in this Section
6.2(a), then notwithstanding any other provision in this Plan to the contrary,
the vesting of such Options will accelerate and the Options will become
exercisable in full prior to the consummation of such event at such times and on
such conditions as the Administrator determines, and if such Options are not
exercised prior to the consummation of the corporate transaction, they shall
terminate upon the consummation of such corporate transaction.
(b) Subject to any greater rights granted to Optionees under the
foregoing provisions of this Section 6.2, in the event of the occurrence of any
transaction described in Section 6.2(a) hereof, any outstanding Options will be
treated as provided in the applicable agreement or plan of merger,
consolidation, dissolution, liquidation or sale of assets.
6.3 Time of Option Exercise. Subject to Section 5, Options granted
under this Plan shall be exercisable (a) immediately as of the effective date of
the Option Agreement granting the Option, or (b) in accordance with a vesting
schedule attached to the Option Agreement and signed by Optionee; provided,
however, that the right to exercise an Option must vest at the rate of at least
20% per year over five years from the date the Option was granted. In any case,
no Option shall be exercisable until an Option Agreement in form satisfactory to
the Company is executed by the Company and the Optionee.
6.4 Option Grant Date. Except in the case of advance approvals
described in Section 5(c), the date of grant of an Option under this Plan shall
be the date as of which the Administrator approves the grant.
6.5 Nonassignability of Option Rights. No Option granted under this
Plan shall be assignable or otherwise transferable by the Optionee except by
will or by the laws of descent and distribution. During the life of the
Optionee, an Option shall be exercisable only by the Optionee.
6.6 Payment. Except as provided below, payment in full, in cash, shall
be made for all Common Stock purchased at the time written notice of exercise of
an Option is given to the Company, and proceeds of any payment shall constitute
general funds of the Company. At the time an Option is granted or exercised, the
Administrator, in the exercise of its absolute discretion after considering any
tax or accounting consequences, may authorize the delivery by the Optionee of
Common Stock already owned by the Optionee for all or part of the exercise
price, provided the Fair Market Value (determined as set forth in Section 6.10)
of such Common Stock is equal on the date of exercise to the exercise price, or
such portion thereof as the Optionee is authorized to pay by delivery of such
stock; provided, however, that if an Optionee has exercised any portion of any
Option granted by the Company by delivery of Common Stock, the Optionee may not,
within six months following such exercise, exercise any Option granted under
this Plan by delivery of Common Stock without the consent of the Administrator.
6.7 Termination.
(a) Subject to earlier termination pursuant to Section 6.2 hereof and
notwithstanding the exercise periods set forth in the related Option Agreement,
exercise of an Option will always be subject to the following:
(i) If an Optionee is Terminated for any reason except death,
Disability or Cause, then an Optionee may exercise such Optionee's
Options, only to the extent that such Options are exercisable on the
Termination Date and such Options must be exercised by an Optionee, if
at all, within three (3) months after the Termination Date (or within
such shorter time period, not less than thirty (30) days after the
Termination Date, or such longer time period not exceeding five (5)
years after the Termination Date as may be determined by the
Administrator), but in any event, no later than the expiration date of
the Options.
(ii) If an Optionee is Terminated because of Optionee's death
or Disability (or an Optionee dies within three (3) months after
Optionee's Termination other than for Cause), then Optionee's Options
may be exercised, only to the extent that such Options are exercisable
by Optionee on the Termination Date and must be exercised by Optionee
(or Optionee's legal representative or authorized assignee), if at all,
within twelve (12) months after the Termination Date (or within such
shorter time period, not less than six (6) months after the Termination
Date, or such longer time period not exceeding five (5) years after the
Termination Date as may be determined by the Administrator), but in any
event no later than the expiration date of the Options.
(iii) If an Optionee is terminated for Cause, then Optionee's
Options shall expire on such Optionee's Termination Date, or at such
later time and on such conditions as are determined by the
Administrator.
(b) "Termination" or "Terminated" means, for purposes of this Plan with
respect to an Optionee, that the Optionee has for any reason ceased to provide
services as an employee, officer, director or consultant to the Company or an
Affiliate. An Optionee will not be deemed to have ceased to provide services in
the case of (i) sick leave, (ii) military leave, or (iii) any other leave of
absence approved by the Administrator, provided that such leave is for a period
of not more than ninety (90) days, unless reinstatement upon the expiration of
such leave is guaranteed by contract or statute or unless provided otherwise
pursuant to formal policy adopted from time to time by the Company and issued
and promulgated in writing. In the case of any Optionee on (i) sick leave, (ii)
military leave or (iii) an approved leave of absence, the Administrator may make
such provisions respecting suspension of vesting of the Option while the
Optionee is on leave from the Company or an Affiliate as the Administrator may
deem appropriate, except that in no event may an Option be exercised after the
expiration of the term set forth in the related Option Agreement. The
Administrator will have sole discretion to determine whether an Optionee has
ceased to provide services and the effective date on which the Optionee ceased
to provide services (the "Termination Date").
(c) "Disability" means a disability, whether temporary or permanent,
partial or total, as determined by the Administrator.
(d) "Cause" means Termination because of (i) any willful material
violation by the Optionee of any law or regulation applicable to the business of
the Company or an Affiliate, the Optionee's conviction for or guilty plea to, a
felony or a crime involving moral turpitude or any willful perpetration by the
Optionee of a common law fraud, (ii) the Optionee's commission of an act of
personal dishonesty which involves a personal profit in connection with the
Company or any other entity having a business relationship with the Company,
(iii) any material breach by the Optionee of any material provision of any
agreement or understanding between the Company or an Affiliate and the Optionee
regarding the terms of the Optionee's service as an employee, director or
consultant to the Company or an Affiliate, including without limitation, the
willful and continued failure or refusal of the Optionee to perform the material
duties required of such Optionee as an employee, director or consultant of the
Company or an Affiliate, other than as a result of having a Disability, or a
breach of any applicable invention assignment and confidentiality agreement or
similar agreement between the Company or an Affiliate and the Optionee, (iv)
Optionee's intentional disregard of the policies of the Company or an Affiliate
so as to cause loss, damage or injury to the property, reputation or employees
of the Company or an Affiliate, or (v) any other misconduct by the Optionee
which is materially injurious to the financial condition or business reputation
of, or is otherwise materially injurious to, the Company or an Affiliate.
6.8 Withholding and Employment Taxes.
(a) Whenever shares of Common Stock are to be issued in satisfaction of
Options granted under this Plan, the Company may require the Optionee to remit
to the Company an amount sufficient to satisfy federal, state and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such shares. Whenever, under this Plan, payments in
satisfaction of Options are to be made in cash, such payment will be net of an
amount sufficient to satisfy federal, state, and local withholding tax
requirements.
(b) When, under applicable tax laws, an Optionee incurs tax liability
in connection with the exercise or vesting of any Option that is subject to tax
withholding and the Optionee is obligated to pay the Company the amount required
to be withheld, the Administrator may in its sole discretion allow the Optionee
to satisfy the minimum withholding tax obligation by electing to have the
Company withhold from the shares to be issued that number of shares having a
Fair Market Value (determined in accordance with Section 6.10 hereof) equal to
the minimum amount required to be withheld, determined on the date that the
amount of tax to be withheld is to be determined. All elections by an Optionee
to have shares withheld for this purpose will be made in accordance with the
requirements established by the Administrator and be in writing in a form
acceptable to the Administrator.
6.9 Other Provisions. Each Option granted under this Plan may contain
such other terms, provisions, and conditions not inconsistent with this Plan as
may be determined by the Administrator.
6.10 Determination of Value. For purposes of the Plan, the Fair Market
Value of Common Stock or other securities of the Company shall be determined as
follows:
(a) If the Common Stock is listed on or included in any established
stock exchange, national market system (including without limitation the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotation System), or other recognized trading market (including
without limitation the OTC Bulletin Board or the National Quotation Bureau, Inc.
pink sheets), its Fair Market Value shall be the closing sales price for such
stock or the closing bid if no sales were reported, as quoted on such exchange,
system or market (or the most prominent thereof) for the date the Fair Market
Value is to be determined (or if there are no sales for such date, then for the
last preceding business day on which there were sales).
(b) If the Common Stock is regularly quoted by a recognized securities
dealer but selling prices are not reported, its Fair Market Value shall be the
means between the high bid and low asked prices for the Common Stock on the date
the Fair Market Value is to be determined (or if there are no quoted prices for
the date of grant, then for the last preceding business day on which there were
quoted prices).
(c) In the absence of an established market for the Common Stock, the
Fair Market Value thereof shall be determined in good faith by the
Administrator, with reference to the Company's net worth, prospective earning
power, dividend-paying capacity, and other relevant factors, including the
goodwill of the Company, the economic outlook in the Company's industry, the
Company's position in the industry and its management, and the values of stock
of other corporations in the same or a similar line of business.
6.11 Option Term. No Option shall be exercisable more than ten years
after the date of grant, or such lesser period of time as is set forth in the
Option Agreement.
6.12 Exercise Price. Except as otherwise provided in this Section 6.12,
the exercise price of an Option shall equal the Fair Market Value (determined in
accordance with Section 6.10) of the Common Stock subject to the Option on the
date of grant. Notwithstanding the preceding, the exercise price of any Option
granted to any person who owns, directly or by attribution under the Code
currently Section 424(d), Common Stock possessing more than ten percent of the
total combined voting power of all classes of stock of the Company or of any
Affiliate shall in no event be less than 110% of the Fair Market Value
(determined in accordance with Section 6.10) of the Common Stock covered by the
Option at the time the Option is granted.
7. MANNER OF EXERCISE
(a) An Optionee wishing to exercise an Option shall give written notice
to the Company at its principal executive office, to the attention of the
officer of the Company designated by the Administrator, accompanied by payment
of the exercise price as provided in Section 6.6. The date the Company receives
written notice of an exercise hereunder accompanied by payment of the exercise
price will be considered as the date such Option was exercised.
(b) Promptly after receipt of written notice of exercise of an Option,
the Company shall, without stock issue or transfer taxes to the Optionee or
other person entitled to exercise the Option, deliver to the Optionee or such
other person, one or more certificates for the requisite number of shares of
Common Stock. An Optionee or permitted transferee of an Optionee shall not have
any privileges as a shareholder with respect to any shares of Common Stock
covered by the Option until the date of issuance (as evidenced by the
appropriate entry on the books of the Company or a duly authorized transfer
agent) of such shares.
8. EMPLOYMENT, DIRECTOR OR CONSULTING RELATIONSHIP
Nothing in this Plan or any Option granted thereunder shall interfere
with or limit in any way the right of the Company or of any of its Affiliates to
terminate any Optionee's employment, director or consulting arrangement at any
time, nor confer upon any Optionee any right to continue in the employ of, on
the Board of, or consult with, the Company or any of its Affiliates.
9. CONDITIONS UPON ISSUANCE OF SHARES.
Shares of Common Stock shall not be issued pursuant to the exercise of
an Option 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 of 1933, as amended.
10. NONEXCLUSIVITY OF THE PLAN.
The adoption of the Plan shall not be construed as creating any
limitations on the power of the Company to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options other than under the Plan.
11. AMENDMENT OR TERMINATION OF PLAN
The Board may (without the approval of any Optionee or the Company's
shareholders) modify or amend this Plan in any respect; provided, however, that
no modification or amendment of this Plan shall adversely affect any previously
granted Options without the consent of the related Optionee. The Board may, at
any time or from time to time, suspend or terminate this Plan; provided,
however, that no such action shall adversely affect any previously granted
Options without the consent of the related Optionee.
12. EFFECTIVE DATE OF PLAN
This Plan is effective as of September 24, 1999; provided, however,
that Options may be granted and exercised under this Plan only after there has
been compliance with all applicable federal and state securities laws. This Plan
shall remain in effect until terminated by the Board.
EXHIBIT 5.1
Opinion of Counsel
September 24, 1999
United States Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
RE: Registration Statement on Form S-8
Under the Securities Act of 1933
Gentlemen:
I have acted as counsel for LS Capital Corporation, a Delaware
corporation (the "Company"), in connection with the registration with the United
States Securities and Exchange Commission (the "Commission") on a Registration
Statement on Form S-8 under the Securities Act of 1933 of up to 5,000,000 shares
of the common stock, par value $.01 per share (the "Common Stock"), which may be
issued pursuant to the terms, provisions and conditions of the LS Capital
Corporation Fiscal 2000 Non-Qualified Stock Option Plan (the "Plan").
In such capacity, I have examined originals, or copies certified or
otherwise identified to my satisfaction, of the following documents:
1. Certificate of Incorporation of the Company, as amended to
date;
2. Bylaws of the Company, as amended to date;
3. The Plan;
4. The records of corporate proceedings relating to the
authorization of the Plan; and
5. Such other instruments and documents as I have deemed
necessary for the purpose of rendering the following opinion.
In such examination, I have assumed the authenticity and completeness
of all documents, certificates and records submitted to me as originals, the
conformity to the original instruments of all documents, certificates and
records submitted to me as copies, and the authenticity and completeness of the
originals of such instruments. As to certain matters of fact relating to this
opinion, I have relied on the accuracy and truthfulness of certificates of
officers of the Company and on certificates of public officials, and have made
such investigations of law as I have deemed necessary and relevant.
Based on the foregoing, and having due regard for such legal
considerations as I believe relevant, I am of the opinion that the Common Stock
has been duly and validly authorized by the Company and, when issued pursuant to
valid exercises of stock options duly granted in accordance with the Plan, will
be duly and validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement pursuant to which the Common Stock
will be registered with the Commission.
Very truly yours,
/S/ Randall W. Heinrich
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
LS Capital Corporation
We consent to the incorporation by reference in this Registration Statement of
LS Capital Corporation on Form S-8 of our report dated August 26, 1998,
appearing in Form 10-KSB of LS Capital Corporation for the year ended June 30,
1998.
MALONE & BAILEY, PLLC
Houston, Texas
September 24, 1999
