<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 10-Q
Quarterly Report Pursuant To Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the quarterly period ended March 31, 1998
---------------
MALIBU ENTERTAINMENT WORLDWIDE, INC.
717 North Harwood, Suite 1650
Dallas, Texas 75201
(214) 210-8701
---------------
Incorporated in Georgia SEC File No.: 0-22458 IRS Employer Id.
No.: 58-1949379
---------------
The Company (1) has filed all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12
months and (2) has been subject to such filing requirements for the past 90
days.
At May 13, 1998, 48,376,773 shares of the Company's Common Stock were
outstanding.
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MALIBU ENTERTAINMENT WORLDWIDE, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
MARCH 31,
1998 DECEMBER 31,
(UNAUDITED) 1997
-------------- --------------
<S> <C> <C>
ASSETS
Current
Cash and cash equivalents $ 1,493,527 $ 5,270,843
Restricted cash 1,307,457 1,302,724
Inventories 1,844,242 1,976,524
Current portion of notes receivable 78,550 79,927
Assets held for sale 3,002,672 3,002,672
Other current assets 957,984 1,019,946
-------------- --------------
Total current assets 8,684,432 12,652,636
-------------- --------------
Property and equipment, less accumulated depreciation 115,465,153 116,125,918
-------------- --------------
Other noncurrent
Investments in and advances to limited partnerships 2,200,781 2,180,410
Notes receivable 38,816 41,823
Other assets 236,470 163,805
Debt issuance costs, less accumulated amortization 2,573,043 3,155,526
Intangible assets, less accumulated amortization 1,024,962 1,029,986
-------------- --------------
Total other noncurrent assets 6,074,072 6,571,550
-------------- --------------
$ 130,223,657 $ 135,350,104
============== ==============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Current portion of notes payable $ 22,384,141 $ 1,060,411
Current portion of notes payable to shareholder 8,000,000 --
Accounts payable 5,189,345 5,623,907
Accrued expenses 6,857,977 6,719,027
Accrued expenses related to assets held for sale 1,005,223 1,073,714
-------------- --------------
Total current liabilities 43,436,686 14,477,059
Line of credit 7,500,000 7,500,000
Term loan revolver 10,000,000 10,000,000
Notes payable to shareholder 42,805,350 48,301,668
Notes payable 7,273,997 28,836,505
Accrued interest due to shareholder 2,074,806 1,094,781
Other accrued expenses 4,136,639 4,403,856
-------------- --------------
Total liabilities 117,227,478 114,613,869
-------------- --------------
Shareholders' equity
Common stock, 100,000,000 shares authorized with no par
value; 48,376,776 shares issued and outstanding 141,212,037 141,212,037
Outstanding warrants 2,085,100 2,085,100
Notes receivable from employees (5,968,153) (5,864,523)
Accumulated deficit (124,332,805) (116,696,379)
-------------- --------------
Total shareholders' equity 12,996,179 20,736,235
-------------- --------------
$ 130,223,657 $ 135,350,104
============== ==============
</TABLE>
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MALIBU ENTERTAINMENT WORLDWIDE, INC.
CONSOLIDATED STATEMENT OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE
THREE MONTHS ENDED
MARCH 31,
1998 1997
------------ ------------
<S> <C> <C>
OPERATING REVENUES
Entertainment revenue $ 9,130,367 $ 7,170,920
------------ ------------
OPERATING EXPENSES
Entertainment expenses 9,615,307 7,050,939
General and administrative expenses 1,759,330 1,793,199
Other expenses 131,828 158,082
Depreciation and amortization 2,453,845 1,367,654
------------ ------------
Total operating expenses 13,960,310 10,369,874
------------ ------------
Operating loss (4,829,943) (3,198,954)
OTHER (EXPENSE) INCOME
Interest expense (2,986,754) (792,968)
Interest income 134,220 149,993
Equity in net losses of limited partnerships, net of tax -- (24,691)
Other 46,051 (66,438)
------------ ------------
Net loss $ (7,636,426) $ (3,933,058)
============ ============
Basic and diluted loss per share of common stock $ (0.16) $ (0.14)
============ ============
Weighted average number of shares of
common stock used in calculating
net loss per share 48,376,773 28,896,467
============ ============
</TABLE>
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MALIBU ENTERTAINMENT WORLDWIDE, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED
MARCH 31,
1998 1997
------------- -------------
<S> <C> <C>
Operating activities:
Net loss $ (7,636,426) $ (3,933,058)
Adjustments to reconcile net loss to
net cash used by operating activities
Equity in net losses of limited partnerships,
net of tax -- 24,691
Depreciation and amortization 2,453,845 1,367,654
Amortization of loan costs 582,483 186,678
(Gain) loss on sale of property and equipment (36,868) 66,438
Changes in assets and liabilities
Decrease (increase) in accounts receivable (46,029) 31,380
Increase in interest on notes receivable from employees (103,630) (102,975)
Decrease (increase) in inventories 132,282 (230,134)
Decrease (increase) in other assets 35,326 (852,423)
Increase in debt issuance costs
and intangible assets (5,585) (100,000)
Decrease in accounts payable (434,562) (70,477)
Increase in accrued expenses 138,950 128,838
Increase in accrued interest due shareholder 980,025 --
Decrease in accrued expenses related to assets
held for sale and other (335,708) (97,912)
------------- -------------
Cash used by operating activities (4,275,897) (3,581,300)
------------- -------------
Investing activities:
Purchases of property and equipment (1,851,173) (5,753,624)
Proceeds from sale of property and equipment 105,570 20,950
Principal payments under notes receivable 4,384 122,794
Increase in notes receivable -- (68,750)
Decrease (increase) in investments in and advances to
limited partnerships (20,371) 23,824
Increase in restricted cash (4,733) (69,010)
------------- -------------
Cash used in investing activities (1,766,323) (5,723,816)
------------- -------------
Financing activities:
Proceeds from borrowings 2,503,682 227,500
Payments of borrowings (238,778) (257,902)
Decrease in stock subscription receivable -- 16,076,260
Payment of contingent liability for stock price guarantee -- (777,861)
------------- -------------
Cash provided by financing activities 2,264,904 15,267,997
------------- -------------
(Decrease) Increase in cash and cash equivalents (3,777,316) 5,962,881
Cash and cash equivalents, beginning of period 5,270,843 2,583,735
------------- -------------
Cash and cash equivalents, end of period $ 1,493,527 $ 8,546,616
============= =============
</TABLE>
4
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MALIBU ENTERTAINMENT WORLDWIDE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 1998 AND MARCH 31, 1997
(UNAUDITED)
BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Rule 10-01 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, the accompanying
consolidated financial statements include all adjustments necessary to present
fairly, in all materials respects, the consolidated financial position and
results of operations of the Company and its subsidiaries as of the dates and
for the periods presented. The Company's business is seasonal in nature and the
Company is engaged in the implementation of a new business plan. Operating
results for the three-month period ended March 31, 1998 are not necessarily
indicative of the results that may be expected for the year ending December 31,
1998.
For further information, refer to the consolidated financial statements
and footnotes thereto included in the Company's report on Form 10-K for the year
ended December 31, 1997.
NET LOSS PER SHARE OF COMMON STOCK
Net loss per share of common stock is computed by dividing net loss
applicable to common stock by the weighted average number of shares of common
stock outstanding during the periods presented.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Results of Operations
For the three months ended March 31, 1998, the Company had a net loss
of $7.6 million ($.16 per share), compared to a net loss of $3.9 million ($.14
per share) for the comparable period last year.
Operating revenue increased by $1.9 million (26%) for the three months
ended March 31, 1998 from $7.2 million for the three months ended March 31, 1997
to $9.1 million for the three months ended March 31, 1998. The increase in
operating revenue was primarily due to an increase in entertainment revenue from
the three family entertainment centers (FECs), which were converted to
SpeedZones ($2.6 million). The increase was offset by the decrease in
entertainment revenue from the FECs which were operated in both years ($0.2
million), the decrease in revenue from the FECs which were sold in May 1997
($0.4 million) and the FECs closed in 1997 pending final disposition ($ 0.1
million). The Company believes that weather
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conditions associated with El Nino caused revenues in the first quarter of 1998
to be lower than expected.
Entertainment expenses increased by $2.5 million for the three months
ended March 31, 1998 compared to the same period in the prior year primarily as
a result of greater operating costs associated with the increase in
entertainment revenue generated by the SpeedZone product ($2.6 million). The
increase in entertainment expenses was partially offset by the ($0.8 million)
decrease in expenses from the FECs which were sold in May 1997 or closed during
1997 pending final disposition.
Depreciation and amortization increased due to an increase in
depreciation for the SpeedZones ($0.4 million) and on games purchased in the
latter part of 1997 ($0.7 million).
Interest expense increased by $2.2 million for the three months ended
March 31, 1998 as compared to the same period in the prior year primarily due to
the increase in the outstanding balance of third party debt.
The business of the Company is highly seasonal. Approximately
two-thirds of the Company's revenues have historically been generated during the
six-month period of April through September. As a result, the Company's
operating income can be expected to be substantially lower in the first and last
quarters of the year than the second and third quarters. As a result of this
seasonality and the fact that the Company's business plan is in the early stages
of implementation, the Company believes that the results of operations for the
three months ended March 31, 1998 are not necessarily indicative of the
Company's future results of operations.
Liquidity and Capital Resources
During the first quarter of 1998, the Company financed its operations
primarily through financing from the Company's largest shareholder, MEI Holdings
($2.3 million). The Company's principal uses of cash during the first quarter of
1998 were to finance operations ($4.2 million) and capital improvements ($1.7
million). The Company's capital expenditures totaled $1.7 million for the three
months ended March 31, 1998 compared to $5.7 million for the comparable 1997
period.
The Company presently expects that the conversion of certain other FECs
to the SpeedZone concept and the development of new SpeedZone parks will require
the Company to secure additional capital resources, which could involve the
issuance of debt or equity securities, securitization of assets or other capital
transactions. The cost of conversion of existing FECs to the SpeedZone concept,
or the development of new SpeedZone parks, will be dependent upon various
factors, including land acquisition, construction and other costs, but is
expected to be substantial ($10-$20 million per facility). The Company also
intends to consider other transactions, including acquisition of other
businesses, and other business combinations, that could create long-term
shareholder value. The pursuit of any acquisition opportunities which may become
available and the implementation of the Company's business plan is expected to
require the Company to issue additional debt or equity securities or to consider
possible changes in its capitalization or structure. Accordingly, there can be
no assurances that the Company will
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be able fully to implement its business plan or to pursue those or other
opportunities that otherwise might be available to the Company or as to the
timing or terms thereof.
In addition, the Company expects to seek to refinance its existing
indebtedness, including indebtedness held by its largest shareholder. Any
refinancing could involve the issuance of additional debt or equity securities,
or rights in respect thereof, the terms of which cannot be predicted but could
involve, among other possible transactions, additional asset sales, spin-offs or
other transactions. There can be no assurance that such refinancing will be
available to the Company or as to the amount and terms thereof.
Impact of Year 2000 issue
The Company is currently studying what, if any, measures are necessary
to resolve any potential impact of the year 2000 problem on the processing of
date-sensitive information by its computer systems. The year 2000 problem is the
result of computer programs being written using two digits (rather than four) to
define the applicable year. Any of the Company's programs that have
time-sensitive information may recognize a date using "00" as the year 1900
rather than the year 2000. This could result in a system failure or
miscalculations causing disruptions of operations. Based on preliminary
information, costs of addressing potential problems are not expected to be
material, nor is the year 2000 issue expected to have a material adverse effect
on the Company. The inability of third parties with whom the Company transacts
business to adequately address their year 2000 issues is outside the Company's
control. There can be no assurance, however, that the failure of the Company or
such third parties to adequately address their respective year 2000 issues will
not have a material adverse effect on the Company.
Legal Proceedings
Due to the nature of the attractions at the Company's parks, the
Company has been, and will likely continue to be, subject to a significant
number of personal injury lawsuits, certain of which may involve claims for
substantial damages. The Company also is from time to time a party to other
claims and legal proceedings, and is subject to environmental, zoning and other
legal requirements. As of the date of this Report, the Company does not believe
that any such matter is reasonably likely to have a material adverse effect on
the Company's financial position or the results of operations. However, there
necessarily can be no assurance in this regard or that the Company will not be
subject to material claims or legal proceedings or requirements in the future.
Forward-Looking Statements
This report (including the documents incorporated by reference herein)
contains certain forward-looking statements (as such term is defined in the
Private Securities Litigation Reform Act of 1995) and information relating to
the Company that is based on the beliefs of the Company's management, as well as
assumptions made by and information currently available to the management of the
Company. When used herein, words such as "anticipate," "believe,"
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"estimate," "expect," "intend" and similar expressions, as they relate to the
Company or the Company's management, identify forward-looking statements. Such
statements reflect the current views of the Company with respect to future
events and are subject to certain risks, uncertainties and assumptions relating
to the operations and results of operations of the Company and cost of capital
resources; competitive factors and pricing pressures; general economic
conditions; the failure of market demand for the types of entertainment
opportunities the Company provides or plans to provide in the future and for
family entertainment in general to be commensurate with management's
expectations or past experience; impact of present and future laws; ongoing need
for capital; changes in operating expenses; adverse changes in governmental
rules or policies; changes in demographics and other factors. Should one or more
of these assumptions prove incorrect, actual results or outcomes may vary
materially from those described herein as anticipated, believed, estimated,
expected or intended. Accordingly, shareholders are cautioned not to place undue
reliance on such forward-looking statements.
PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS.
During 1997, the Company issued 200,000 shares of Common Stock under
the Company's Management Incentive Plan to an employee of the Company.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
10.1 1993 Company Nonemployee Director Stock Option Plan as amended
effective January 10, 1995 (filed herewith)
27 Financial Data Schedule (for Sec purposes only)
</TABLE>
(b) No reports of Form 8-K were filed during the period covered by this report.
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SIGNATURES
In accordance with the requirements of the Exchange Act, the Company
caused this report to be signed on behalf by the undersigned, thereunto duly
authorized.
MALIBU ENTERTAINMENT WORLDWIDE, INC.
By: /s/ Richard M. FitzPatrick
-------------------------------------
Richard M. FitzPatrick
Chief Financial Officer
May 14, 1998
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
10.1 1993 Company Nonemployee Director Stock Option Plan as amended
effective January 10, 1995 (filed herewith)
27 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.1
1993 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
FOR
MOUNTASIA ENTERTAINMENT INTERNATIONAL, INC.
(AS AMENDED EFFECTIVE JANUARY 10, 1995)
1. PURPOSE
This 1993 Nonemployee Director Stock Option Plan of Mountasia
Entertainment International, Inc. is intended as an incentive to retain as
independent directors on the Board of Directors of Mountasia Entertainment
International, Inc. (the "Company"), persons of training, experience and
ability, to encourage the sense of proprietorship of such persons, and to
stimulate the active interest of such persons in the development and financial
success of the Company.
2. DEFINITIONS
As used herein, the following terms shall have the meaning indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Common Stock" shall mean the Common Stock, no par value per
share, of the Company.
(c) "Date of Grant" shall mean the date on which an Option is
granted to an Eligible Person pursuant to Section 6(c) hereof.
(d) "Director" shall mean a member of the Board.
(e) "Eligible Person(s)" shall mean those persons who are
Directors of the Company and are not Employees or officers of the Company.
(f) "Employee(s)" shall mean those persons who are employees of
the Company or who are employees of any Subsidiary.
(g) "ERISA" shall mean the Employee Retirement Income Security
Act, as amended.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(i) "Fair Market Value" of a Share on any date of reference shall
be the average Closing Price for the twenty (20) consecutive trading days
immediately preceding such date of reference. For this purpose, the Closing
Price of the Shares on any business day shall be: (i) if the Shares are listed
or admitted for trading on any United States national securities exchange, the
last reported sale price of Shares on such exchange, as reported in any
newspaper of general circulation; (ii) if Shares are quoted on NASDAQ, or any
similar system of automated
<PAGE> 2
dissemination of quotations of securities prices in common use, the mean
between the closing high bid and low asked quotations for such day of Shares on
such system; (iii) if neither clause (i) nor (ii) is applicable, the mean
between the high bid and low asked quotations for Shares as reported by the
National Quotation Bureau, Incorporated if at least two securities dealers have
inserted both bid and asked quotations for Shares on at least five of the ten
preceding days; or, (iv) in lieu of the above, if actual transactions in the
Shares are reported on a consolidated transaction reporting system, the last
sale price of the Shares for such day and on such system. With respect to the
first grants of options pursuant to this Plan, the fair market value of a share
shall be the Price to Public as reflected in the Company's Registration
Statement on Form SB-2, less the pro rata portion of the underwriting discount
and offering expenses of each share offered thereby:
(j) "Internal Revenue Code" or "Code" shall mean the Internal
Revenue Code of 1986, as it now exists or may be amended from time to time.
(k) "Nonqualified Stock Option" shall mean a stock option that is
not an incentive stock option, as defined in Section 422 of the Internal
Revenue Code.
(l) "Option" (when capitalized) shall mean any option granted
under this Plan.
(m) "Optionee" shall mean a person to whom an Option is granted
under this Plan or any person who succeeds to the rights of such person under
this Plan by reason of the death of such person.
(n) "Plan" shall mean this 1993 Nonemployee Director Stock Option
Plan of Mountasia Entertainment International, Inc.
(o) "Share(s)" shall mean a share or shares of the Common Stock.
(p) "Subsidiary" shall mean any corporation (other than the
Company) in any unbroken chain of corporations beginning with the Company if,
at the time of the granting of the Option, each of the corporations other than
the last corporation in the unbroken chain owns stock possession 50% or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chains.
3. TOTAL AGGREGATE SHARES
Subject to adjustments provided in Section 13 hereof, a total of Two
Hundred Fifty Thousand (250,000) Shares shall be subject to the Plan. The
Shares subject to the Plan shall consist of unissued Shares or previously
issued Shares reacquired and held by the Company, or any Subsidiary, and such
number of Shares shall be and hereby is reserved for sale for such purpose. Any
of such Shares that may remain unsold and that are not subject to outstanding
Options at the termination of the Plan shall cease to be reserved for the
purpose of the Plan, but until termination of the Plan, the Company shall at
all times reserve a sufficient number of Shares to meet the requirements of the
Plan. Should any Option expire or be canceled prior to its
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exercise in full, the Shares theretofore subject to such Option may again be
the subject of any Option under the Plan.
4. RULE 16B-3 PLAN AND SHAREHOLDER APPROVAL
The Company intends for this Plan to comply with the requirements of
Rule 16b-3 promulgated by the Securities and Exchange Commission pursuant to
the Exchange Act. Accordingly, this Plan has been approved by shareholders of
the Company owning a majority of the issued and outstanding shares of Common
Stock.
5. TYPE OF OPTIONS
An Option granted hereunder shall be a Nonqualified Stock Option.
6. AUTOMATIC GRANT OF OPTION
(a) Options shall be granted only to Eligible Persons.
Each Option shall be evidenced by an Option agreement, which shall contain
terms that are not inconsistent with this Plan or applicable laws.
(b) The Options granted to Directors under this Plan
shall be in addition to regular director's fees or other benefits with respect
to the Director's position with the Company or its Subsidiaries. Neither the
Plan nor any Options granted under the Plan shall confer upon any person any
right to continue to serve as a Director.
(c) Options shall automatically be granted to each
Eligible Person as follows:
(i) each Eligible Person serving as a Director on
the effective date of the Plan, as amended,
shall be granted an Option to purchase 3,000
Shares;
(ii) each Eligible Person first elected or
appointed to the Board during the calendar
year 1995 shall be granted an option to
purchase 5,000 Shares upon the date of his
election or appointment to the Board, and, to
the extent that the difference between the
Fair Market Value of such shares as of the
date of such appointment or election, as the
case may be, and the Fair Market Value of
such shares as of that date one year after
the date of such election or appointment (the
"First Anniversary Date"), is less than
Twenty-Five Thousand and No/100 Dollars
($25,000.00), such difference shall be paid
by the Corporation to such Eligible Person in
cash within thirty (30) days after the First
Anniversary Date;
(iii) on the day immediately following the day of
each Annual Meeting of Shareholders of the
Company occurring subsequent to the
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effective date of the Plan, as amended, such
Eligible Person shall be granted an option to
purchase an additional 5,000 Shares; and
(iv) each Eligible Person serving as a Director on
January 17, 1995 shall be granted an option
to purchase 25,000 Shares.
(d) Except for the automatic grants of Options under
subsection (c) of this Section 6, no Options shall otherwise be granted
hereunder, and the Board shall not have any discretion with respect to the
grant of Options within the meaning of Rule 16b-3 promulgated under the
Exchange Act, or any successor rule.
7. EXERCISE PRICE
The exercise price of each Share placed under an Option pursuant to
this Plan shall be the Fair Market Value of such Share on the Date of Grant.
8. VESTING SCHEDULE
(a) Shares subject to an Option shall vest in accordance
with Section 8(b) and (c) hereof.
(b) Option Shares subject to an Option under Sections
6(c)(i), (ii) and (iii) shall vest on the Date of Grant. Option Shares subject
to an Option under Section 6(c)(iv) shall vest on January 16, 1996, if and only
if, the Fair Market Value of a Share on January 16, 1996 equals or exceeds 200%
of the Fair Market Value of a Share on January 17, 1995. In the event that the
Fair Market Value of a Share on January 16, 1996 does not equal or exceed 200%
of the Fair Market Value of a Share on January 17, 1995, then such Option under
Section 6(c)(iv) may vest on January 17, 1997 in the event the Fair Market
Value of a Share on January 16, 1997 equals or exceeds 300% of the Fair Market
Value of a Share on January 17, 1995. In the event neither of the foregoing
vesting conditions is satisfied, then such option under Section 6(c)(iv) shall
not vest and shall be null and void in all respects.
(c) Notwithstanding the foregoing, Shares subject to an
Option shall vest as to all Shares then subject to the Option upon the
occurrence of any of the following events:
(i) a transaction (or series of transactions
occurring within a 60-day period or pursuant to a
plan approved by the Board or shareholders of the
Company) occurs that has the result that stockholders
of the Company immediately before such transaction
cease to own directly or indirectly at least 51% of
the voting stock of the Company or of any entity that
results from the participation of the Company in a
reorganization, consolidation, merger, liquidation or
any other form of corporate transaction;
(ii) all or substantially all of the assets of the
Company shall be sold or otherwise disposed of,
except that an Option shall not vest as to all Shares
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<PAGE> 5
then subject to such Option if, after such sale or
disposition: (i) the shareholders of the Company
immediately prior to such transaction continue to own
at least 51% of the voting stock of the entities that
acquired 50% or more in value of the assets of the
Company so sold or conveyed; and (ii) the acquiring
entity agrees to assume the obligations of the
Company under this Agreement; or
(iii) the occurrence of a merger, consolidation or
other reorganization of the Company under the terms
of which the surviving entity does not assume the
obligations of the Company under this Agreement.
9. EXERCISE OF OPTION
(a) An Option shall not be exercisable prior to the
vesting of such Option. After the six-month anniversary of the Date of Grant of
an Option, such Option may be exercised at any time and from time to time
during the term of such Option, in whole or in part, with respect to Shares
that have vested in accordance with Section 8 hereof.
(b) Options may be exercised: (i) during the Optionee's
lifetime, solely by the Optionee or, (ii) after Optionee's death, by the
personal representative of the Optionee's estate or the person or persons
entitled thereto under his will or under the laws of descent and distribution.
(c) An Option shall be deemed exercised when: (i) the
Company has received written notice of such exercise delivered to the Company
in accordance with the notice provisions of the applicable Options agreement;
(ii) full payment of the aggregate exercise price of the Shares as to which the
Option is exercised has been tendered to the Company; and, (iii) arrangements
that are satisfactory to the Board in its sole discretion have been made for
the Optionee's payment to the Company of the amount, if any, that the Company
determines to be necessary for the Company to withhold in accordance with the
applicable federal or state income tax withholding requirements.
(d) The exercise price of any Shares purchased shall be
paid (i) solely in cash, by certified or cashier's check, by money order, by
personal check (if approved by the Board) or, (ii) at the option of the
Optionee in Common Stock theretofore owned by such Optionee (or by a
combination of the above); provided; however, that if the Optionee acquired
such stock to be surrendered directly or indirectly from the Company, he shall
have owned such stock for six months prior to using such stock to exercise an
Option, or (iii) at the option of the Optionee, by delivery to the Company of
an exercise notice together with such other documentation as the broker and the
Company shall require to effect the exercise of such Option, For purposes of
determining the amount, if any, of the exercise price satisfied by payment in
Common Stock, such Common Stock shall be valued at its Fair Market Value on the
date of exercise. Any Common Stock delivered in satisfaction of all or a
portion of the exercise price shall be approximately endorsed for transfer and
assignment to the Company.
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(e) The Optionee shall not be, nor have any of the rights
or privileges of, a shareholder of the Company with respect to any Shares
purchasable upon the exercise of any part of an Option unless and until
certificates representing such Shares shall have been issued by the Company to
the Optionee.
10. TERMINATION OF OPTION PERIOD
(a) The unexercised portion of an Option shall
automatically and without notice terminate and become null and void and be
forfeited upon the earliest to occur of the following:
(i) if the Optionee's position as a Director of
the Company terminates, other than by reason of such
Optionee's death or disability, one (1) year after
the date that the Optionee's position as a Director
of the Company terminates;
(ii) eighteen (18) months after the death of
Optionee;
(iii) eighteen (18) months after the date on which
the Optionee's position as Director is terminated by
reason of a mental or physical disability determined
by a medical doctor satisfactory to the Company; or
(iv) Ten (10) years after the Date of Grant of
such Option.
(b) The Board of Directors of the Company in its sole
discretion may, by giving written notice to an Optionee ("Cancellation
Notice"), cancel, effective upon the date of the consummation of any corporate
transaction described in Section 8(c) hereof, any portion of an Option that
remains unexercised on such date. Such cancellation notice shall be given to
Optionee at least ten (10) days prior to the date of cancellation.
11. TERMS OF OPTION
Subject to Section 10 above, each Option granted under this Plan shall
have a term of ten (10) years from the Date of Grant of such Option.
12. ASSIGNABILITY OF OPTIONS
No Option shall be assignable or otherwise transferable, except to
members of the Optionee's immediate family (if and to the extent permitted by
Section 16 of the Exchange Act and the rules thereunder) or by will, or the
laws of descent and distribution.
13. ADJUSTMENTS
(a) If at any time there shall be an increase or decrease
in the number of issued and outstanding Shares, through the declaration of a
stock dividend or through any
6
<PAGE> 7
recapitalization resulting in a stock split-up, combination or exchange of
Shares, then appropriate proportional adjustment shall be made in the number of
Shares (and, with respect to Options, the exercise price per Share): (i)
subject to outstanding Options; (ii) reserved under the Plan; and (iii) granted
as subsequent Options.
(b) In the event of a merger, consolidation or other
reorganization of the Company under the terms of which the Company is not the
surviving corporation, but the surviving corporation elects to assume an
Option, each Optionee shall be entitled to receive, upon the exercise of such
Option, with respect to each Share: (i) the number of shares of stock of the
surviving corporation (or equity interest in any other entity); and (ii) any
other notes, evidences of indebtedness or other property, that the Optionee
would have received in connection with such merger, consolidation or other
reorganization had he exercised the Option with respect to such Shares
immediately prior to such merger, consolidation or other reorganization.
(c) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any class or
securities convertible into shares of capital stock of any class, either in
connection with direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect and not
adjustment by reason thereof shall be made with respect to, the number of or
exercise price of Shares then subject to outstanding Options granted under the
Plan.
(d) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate: (i)
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issuance by the Company of debt
securities or preferred stock that would rank above the Shares subject to
outstanding Options; (iv) the dissolution or liquidation of the Company; (v)
any sale, transfer or assignment of all or any part of the assets or business
of the Company; or (vi) any other corporate act or proceeding, whether of a
similar character or otherwise.
14. PURCHASE FOR INVESTMENT.
As a condition of any issuance of a stock certificate for Shares, the
Board may obtain such agreements or undertakings, if any, as it may deem
necessary or advisable to assure compliance with any provision of this Plan or
any law or regulation, including, but not limited to, the following;
(a) a representation and warranty by the Optionee to the
Company, at the time his Option is exercised, that he is acquiring the Shares
to be issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(b) a representation, warranty or agreement to be bound
by any legends that are, in the opinion of the Board, necessary or appropriate
to comply with the provisions of any
7
<PAGE> 8
securities law deemed by the Board to be applicable to the issuance of the
Shares and are endorsed upon the certificates representing the Shares.
15. AMENDMENTS, MODIFICATIONS, SUSPENSION OR DISCONTINUANCE OF THIS PLAN.
For the purpose of complying with changes in the Code or ERISA, the
Board may amend, modify, suspend or terminate the Plan at any time. For the
purpose of meeting or addressing any other changes in legal requirements or any
other purpose, the Board may amend, modify, suspend or terminate the Plan only
once every six months. Subject to changes in law or other legal requirements,
including any change in the provisions of Rule 16b-3 that would permit
otherwise, the Plan may not be amended without the consent of the holders of a
majority of the shares of Common Stock then outstanding, to (i) increase
materially the aggregate number of shares of Common Stock that may be issued
under the Plan (except for adjustments pursuant to Section 13 of the Plan);
(ii) increase materially the benefits accruing to Optionees under the Plan; or
(iii) modify materially the requirements as to eligibility for participation in
the Plan.
16. GOVERNMENTAL REGULATION.
This Plan and the granting of Options and the exercise of Options
hereunder, and the obligation of the Company to sell and deliver shares under
such Options, shall be subject to all applicable laws, rules, and regulations
and to such approvals by any governmental agencies or national securities
exchanges as may be required.
17. MISCELLANEOUS.
(a) If any provision of this Plan is held invalid for any
reason, such holding shall not affect the remaining provisions hereof, but
instead this Plan shall be construed and enforced as if such provision had
never been included in this Plan.
(b) This Plan shall be governed by the laws of the State
of Georgia.
(c) Headings contained in this Plan are for convenience
only and shall in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine or neuter
gender shall be a reference to such other gender as is appropriate.
8
<PAGE> 9
18. EFFECTIVE DATE AND TERMINATION DATE.
The effective date of this Plan is January 10, 1995, the date on which
the Board adopted this Plan, but is subject to the approval of the Plan by at
least a majority of the votes east by the shareholders of the Company at the
next meeting of shareholders. All grants made under the Plan prior to such
approval shall be effective when made, but shall be conditioned upon and
subject to such approval of the Plan. This Plan shall terminate on the tenth
anniversary of the effective date.
MOUNTASIA ENTERTAINMENT INTERNATIONAL, INC.
By:
-------------------------------------------
Printed: L. SCOTT DEMERAU
--------------------------------------
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
----------------------------------------
9
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