<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SECURFONE AMERICA, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 954453386
(State of Incorporation) (I.R.S. Employer Identification No.)
5850 OBERLIN DRIVE, SUITE 220, SAN DIEGO, CALIFORNIA 92121
(Address of Principal Executive Offices) (Zip Code)
SECURFONE AMERICA, INC. 1997 STOCK OPTION PLAN
SECURFONE AMERICA, INC. 1997 DIRECTORS' STOCK OPTION PLAN
EMPLOYMENT AGREEMENT WITH DEREK DAVIS
RETAINER AGREEMENTS WITH JENNIFER GRIFFITH, MICHAEL R. LEE,
GREGORY F. LEPORE, STEPHANIE MARUSIAK, AMY J. PIPOLY, AND STEVEN L. WASSERMAN
CONSULTING AGREEMENTS WITH ROBERT M. BERNSTEIN,
E.B. ADVISORY LIMITED, AL JUGO, AND TERRI A. WELLES
FEE AGREEMENTS WITH DILL, DILL, CARR,
STONBRAKER & HUTCHINGS, P.C., AND
KOHRMAN JACKSON & KRANTZ P.L.L.
(Full Title of the Plans)
Copy to:
WILLIAM P. STUEBER II, PRESIDENT STEVEN L. WASSERMAN, ESQ.
SECURFONE AMERICA, INC. KOHRMAN JACKSON & KRANTZ P.L.L.
5850 OBERLIN DRIVE, SUITE 220 20TH FLOOR ONE CLEVELAND CENTER
SAN DIEGO, CALIFORNIA 92121 CLEVELAND, OHIO 44114
619-677-5580 216-736-7220
(Name, Address and Telephone Number,
of Agent for Service)
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<TABLE>
<CAPTION>
Calculation of Registration Fee
==========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(1) per Share(2) Price(2) Registration Fee
==========================================================================================================================
<S> <C> <C> <C> <C>
Common Stock 100,000 Shares(3) $ 1.00 $ 100,000 $ 30.30
Common Stock 900,000 Shares(4) $ 6.00(5) $5,400,000 $1,636.20
Common Stock 200,000 Shares(6) $ 1.00 $ 200,000 $ 60.60
Common Stock 50,000 Shares(7) $ 6.00(5) $ 300,000 $ 90.90
Common Stock 20,000 Shares(8) $ 6.00(5) $ 120,000 $ 36.36
Common Stock 50,000 Shares(9) $ 6.00(5) $ 300,000 $ 90.90
Common Stock 515,000 Shares(10) $ 6.00(5) $3,090,000 $ 936.27
Common Stock 130,900 Shares(11) $ 2.50 $ 327,250 $ 99.16
Common Stock 10,000 Shares(12) $ 6.00(5) $ 60,000 $ 18.18
Common Stock 25,000 Shares(13) $ 2.50 $ 62,500 $ 18.94
TOTAL: 2,000,900 Shares $3,017.81
==========================================================================================================================
<FN>
1 Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement covers, in addition to the number of shares of Class A Common
Stock, par value $0.001 per share (the "Common Stock"), stated above, an
indeterminant number of shares of Common Stock that may be issued upon
exercise of options granted under the Registrant's 1997 Stock Option Plan
(the "1997 Plan") and 1997 Directors' Stock Option Plan (the "Directors'
Plan"), as a result of the adjustment provisions thereof.
2 Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933.
3 Shares issuable upon the exercise of outstanding options under the 1997
Plan.
4 Shares for which options have not yet been granted under to the 1997 Plan.
5 The average of the high and low price of the Common Stock on November 10,
1997 as reported on the Nasdaq OTC Bulletin Board.(R)
6 Shares issuable upon exercise of outstanding options under the Directors'
Plan.
7 Shares for which options have not yet been granted under to the 1997 Directors' Plan.
8 Shares issuable pursuant to an Employment Agreement between the Registrant
and Derek Davis.
9 Shares issuable pursuant to Retainer Agreements between the Registrant and
Jennifer Griffith, Michael R. Lee, Gregory F. Lepore, Stephanie Marusiak,
Amy J. Pipoly and Steven L. Wasserman.
10 Shares issuable pursuant to Consulting Agreements between the Registrant
and E.B. Advisory Limited, Al Jugo, and Terri A. Welles.
11 Shares issuable under options to be granted pursuant to a Consulting
Agreement between the Registrant and Robert M. Bernstein.
12 Shares issuable pursuant to a Fee Agreement between the Registrant and
Dill, Dill, Carr, Stonbraker & Hutchings, P.C.
13 Shares issuable pursuant to a Fee Agreement between the Registrant and
Kohrman Jackson & Krantz P.L.L.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by SecurFone America, Inc., a Delaware
corporation previously known as Material Technology, Inc. (the "Company"), with
the Securities and Exchange Commission (the "Commission") are hereby
incorporated by reference in this Registration Statement:
(a) (1) The Annual Report on Form 10-K of Material Technology, Inc. for
the fiscal year ended December 31, 1996 as amended by Amendments No. 1
and 2.
(2) The Quarterly Reports on Form 10-Q of Material Technology, Inc.
for the quarterly periods ended March 31, 1997 and June 30, 1997 and of
SecurFone America, Inc. for the quarterly period September 30, 1997.
(3) The Information Statement of Material Technology, Inc. filed June
11, 1997 (File No. 033-83526) with the Commission pursuant to Section
14(c) of the Exchange Act.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 as amended (the "Exchange Act"), since the
end of the latest fiscal year covered by the Annual Report referred to in
(a) (1) above; and
(c) The description of the Company's Class A Common Stock, par value $0.001
per share (the "Common Stock"), contained in the Registration Statement of
Material Technology, Inc. on Form S-1 filed March 19, 1997 (File No.
333-23617) with the Commission pursuant to Section 12(g) of the Exchange
Act (there being no further amendment or report filed for the purpose of
updating such description).
All documents hereafter filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment hereto which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The law firm of Kohrman Jackson & Krantz P.L.L., Cleveland, Ohio ("KJK"),
performs legal services for the Company and is providing the opinion attached to
this Registration Statement as Exhibit 5.1. The Company has agreed to issue
25,000 shares of Common Stock to KJK for the
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performance of legal services. Steven L. Wasserman, Secretary and a director of
the Company, is an attorney and a partner in KJK. The Company has agreed to
issue 10,000 shares of Common Stock to Mr. Wasserman for serving as Secretary of
the Company. In addition, Mr. Wasserman was granted an option to purchase 50,000
shares of Common Stock at an option price of $1.00 per share under the Company's
1997 Directors' Stock Option Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Certain statutes and Articles 6 and 7 of the Company's Amended and Restated
Certificate of Incorporation and Article VII of the Company's Bylaws, provide
that, in certain cases, the liability of each director shall be limited and each
officer and director and controlling person of the Company shall be indemnified
by the Company against certain costs, expenses and liabilities which he may
incur in his capacity as such. Accordingly, the liability of such persons may be
affected as a result.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 SecurFone America, Inc. 1997 Stock Option Plan
4.2 SecurFone America, Inc. 1997 Directors' Stock Option Plan
4.3 Employment Agreement dated October 24, 1997 between the Company and
Derek Davis
4.4 Retainer Agreement between the Company and Jennifer Griffith
4.5 Retainer Agreement between the Company and Michael R. Lee
4.6 Retainer Agreement between the Company and Gregory F. Lepore, Esq.
4.7 Retainer Agreement between the Company and Stephanie Marusiak
4.8 Retainer Agreement between the Company and Amy J. Pipoly
4.9 Retainer Agreement dated July 1, 1996 between the Company and Steven
L. Wasserman
4.10 Consulting Agreement dated February 18, 1997 between the Company and
Robert M. Bernstein
4.11 Consulting Agreement dated August 1, 1996 between the Company and E.B.
Advisory Limited
4.12 Consulting Agreement dated November 11, 1996 between the Company and
Al Jugo
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4.13 Consulting Agreement dated October 1, 1997 between the Company and
Terri A. Welles
4.14 Fee Arrangement dated July 11, 1997 between Dill, Dill, Carr,
Stonbraker & Hutchings, P.C. and the Company (the "Fee Agreement")
4.15 Addendum to the Fee Agreement dated October 13, 1997 between Dill,
Dill, Carr, Stonbraker & Hutchings, P.C. and the Company
4.16 Fee Agreement dated August 1, 1996 between Kohrman Jackson & Krantz
P.L.L. and the Company
5.1 Opinion of Kohrman Jackson & Krantz P.L.L.
23.1 Consent of Kohrman Jackson & Krantz P.L.L. (contained in its opinion
filed as Exhibit 5.1)
23.2 Consent of Conte Co., CPA, Inc.
23.3 Consent of Jonathon P. Reuben, CPA
24.1 Power of Attorney (included on signature page)
ITEM 9. UNDERTAKINGS
(a) The Company undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement; and
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission
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by the Company pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The Company hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or 14c-3 under the Securities Exchange Act of 1934;
and, where interim financial information required to be presented by Article 3
of Regulation S-X is not set forth in the prospectus, to deliver, or cause to
be delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on November 13, 1997.
SECURFONE AMERICA, INC.
/S/ WILLIAM P. STUEBER II
------------------------------------
By William P. Stueber II, President
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Steven L. Wasserman his true and lawful attorney-in-fact and agent,
with full power of substitution and revocation, to sign on his behalf,
individually and in each capacity stated below, all amendments and
post-effective amendments to this Registration Statement on Form S-8 and to file
the same, with all exhibits thereto and any other documents in connection
therewith, with the Securities and Exchange Commission under the Securities Act
of 1933, granting such attorney-in-fact full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming each act that such attorney-in-fact may lawfully
do or cause to be done by virtue thereof.
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 date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
<S> <C> <C>
/S/ WILLIAM P. STUEBER II Chief Executive Officer and Director November 13, 1997
- ------------------------------
William P. Stueber II
/S/ MICHAEL R. LEE Principal Financial and Accounting November 5, 1997
- ------------------------------ Officer and Director
Michael R. Lee
/S/ MICHAEL GRAND Director November 13, 1997
- ------------------------------
Michael Grand
/S/ DEREK DAVIS Vice President and Director November 13, 1997
- ------------------------------
Derek Davis
/S/ STEVEN L. WASSERMAN Director November 13, 1997
- ------------------------------
Steven L. Wasserman
</TABLE>
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EXHIBIT INDEX
4.1 SecurFone America, Inc. 1997 Stock Option Plan
4.2 SecurFone America, Inc. 1997 Directors' Stock Option Plan
4.3 Employment Agreement dated October 24, 1997 between the Company and
Derek Davis
4.4 Retainer Agreement between the Company and Jennifer Griffith
4.5 Retainer Agreement between the Company and Michael R. Lee
4.6 Retainer Agreement between the Company and Gregory F. Lepore, Esq.
4.7 Retainer Agreement between the Company and Stephanie Marusiak
4.8 Retainer Agreement between the Company and Amy J. Pipoly
4.9 Retainer Agreement dated July 1, 1996 between the Company and Steven L.
Wasserman
4.10 Consulting Agreement dated February 18, 1997 between the Company and
Robert M. Berstein
4.11 Consulting Agreement dated August 1, 1996 between the Company and E.B.
Advisory Limited
4.12 Consulting Agreement dated November 11, 1996 between the Company and
Al Jugo
4.13 Consulting Agreement dated October 1, 1997 between the Company and Terri
A. Welles
4.14 Fee Arrangement dated July 11, 1997 between Dill, Dill, Carr, Stonbraker &
Hutchings, P.C. and the Company (the "Fee Agreement")
4.15 Addendum to the Fee Agreement dated October 13, 1997 between Dill, Dill,
Carr, Stonbraker & Hutchings, P.C. and the Company
4.16 Fee Agreement dated August 1, 1996 between Kohrman Jackson & Krantz
P.L.L. and the Company
5.1 Opinion of Kohrman Jackson & Krantz P.L.L.
23.1 Consent of Kohrman Jackson & Krantz P.L.L. (contained in its opinion
filed as Exhibit 5.1)
23.2 Consent of Conte Co., CPA, Inc.
23.3 Consent of Jonathon P. Reuben, CPA
24.1 Power of Attorney (included on signature page)
<PAGE> 1
Exhibit 4.1
SECURFONE AMERICA, INC.
1997 STOCK OPTION PLAN
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<TABLE>
<CAPTION>
SECURFONE AMERICA, INC.
1997 STOCK OPTION PLAN
TABLE OF CONTENTS
-----------------
Page
----
<S> <C> <C>
1. Purpose.......................................................................................1
2. Definitions...................................................................................1
3. Shares Available under the Plan...............................................................3
4. Option Rights.................................................................................3
5. Transferability...............................................................................4
6. Adjustments...................................................................................5
7. Fractional Shares.............................................................................5
8. Withholding Taxes.............................................................................5
9. Participation by Employees or Consultants of a Less-Than-80-Percent Subsidiary................5
10. Certain Terminations of Employment or Other Services, Hardship and
Approved Leaves of Absence....................................................................6
11. Foreign Participants..........................................................................6
12. Administration of the Plan....................................................................6
13. Amendments and Other Matters..................................................................7
14. Termination of the Plan.......................................................................7
</TABLE>
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SECURFONE AMERICA, INC.
1997 STOCK OPTION PLAN
(August 27, 1997)
- --------------------------------------------------------------------------------
1. PURPOSE. The purpose of this Plan is to attract and retain key
employees of, and advisors and consultants providing valuable services to,
Securfone America, Inc., a Delaware corporation (the "Corporation"), and its
Subsidiaries and to provide such persons with incentives and rewards for
superior performance.
2. DEFINITIONS. As used in this Plan,
"BOARD" means the Board of Directors of the Corporation.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COMMITTEE" means the committee described in Section 12(a) of this
Plan.
"COMMON STOCK" means (i) shares of the common stock, par value $.001
per share, of the Corporation and (ii) any security into which shares of Common
Stock may be converted by reason of any transaction or event of the type
referred to in Section 6 of this Plan.
"DATE OF GRANT" means the date specified by the Board on which a grant
of Option Rights shall become effective, which shall not be earlier than the
date as of which the Board takes action with respect thereto.
"INCENTIVE STOCK OPTION" means an Option Right that is intended to
qualify as an "incentive stock option" under Section 422 of the Code or any
successor provision.
"LESS-THAN-80-PERCENT SUBSIDIARY" means a Subsidiary with respect to
which the Corporation directly or indirectly owns or controls less than 80
percent of the total combined voting or other decision-making power.
"MARKET VALUE PER SHARE" on any date of reference shall be the
"Closing Price" (as defined below) of the Common Stock on the business day
immediately preceding such date. For the purpose of determining Market Value per
Share, the "Closing Price" of the Common Stock on any business day shall be (i)
if the Common Stock is listed or admitted for trading on any United States
national securities exchange, or if actual transactions are otherwise reported
on a consolidated transaction reporting system, the last reported sale price of
Common Stock on such exchange or reporting system, as reported in any newspaper
of general circulation, (ii) if the Common Stock is quoted on the National
Association of Securities Dealers Automated Quotations ("NASDAQ") System, or any
similar system of automated dissemination of quotations of securities prices in
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common use, the mean between the closing high bid and low asked quotations for
such day of Common Stock on such system, or (iii) if neither clause (i) or (ii)
is applicable, the mean between the high bid and low asked quotations for the
Common Stock as reported by the National Quotation Bureau, Incorporated if at
least two securities dealers have inserted both bid and asked quotations for
Common Stock on at least five of the ten preceding days.
If none of clauses (i), (ii) or (iii) is applicable, the Market Value per
Share shall be the price at which one could reasonably expect a share of Common
Stock to be sold in an arm's length transaction, for cash, other than on an
installment basis, to a person not employed by, controlled by, in control of or
under common control with the Company. Such Market Value shall be that which has
currently or most recently been determined for this purpose by the Board, or at
the discretion of the Board by an independent appraiser or appraisers selected
by the Board, in either case giving due consideration to recent transactions
involving shares of Common Stock, if any, the issuer's net worth, prospective
earning power and dividend-paying capacity, the goodwill of the issuer's
business, the issuer's industry position and its management, that industry's
economic outlook, the values of securities of issuers whose stock is publicly
traded and which are engaged in similar businesses, the effect of transfer
restrictions to which the Common Stock may be subject under law and under the
applicable terms of any contract governing such stock, the absence of a public
market for the Common Stock and such other matters as the Board or its appraiser
or appraisers deem pertinent. The determination by the Board or its appraiser or
appraisers of the Market Value shall, if not unreasonable, be conclusive and
binding notwithstanding the possibility that other persons might make a
different, and also reasonable, determination. If the Market Value to be used
was thus fixed more than sixteen months prior to the day as of which Market
Value is being determined, it shall in any event be no less than the book value
of the Common Stock at the end of the most recent period for which financial
statements of the issuer are available.
"NONQUALIFIED OPTION" means an Option Right that is not intended to
qualify as a Tax-Qualified Option.
"OPTIONEE" means the person so designated in an agreement evidencing
an outstanding Option Right.
"OPTION PRICE" means the purchase price payable upon the exercise of
an Option Right.
"OPTION RIGHT" means the right to purchase shares of Common Stock from
the Corporation upon the exercise of a Nonqualified Option or a Tax-Qualified
Option granted pursuant to Section 4 of this Plan.
"PARTICIPANT" means a person who is selected by the Board to receive
benefits under this Plan and (i) is at that time a key employee (including,
without limitation, a key employee who is also a member of the Board), advisor
or consultant of the Corporation or any Subsidiary or (ii) has agreed to
commence serving in any such capacity.
"RULE 16b-3" means Rule 16b-3 under the Securities Exchange Act of
1934 or any successor rule to the same effect.
2
<PAGE> 5
"SUBSIDIARY" means a corporation, partnership, joint venture,
unincorporated association or other entity in which the Corporation has a direct
or indirect ownership or other equity interest; provided, however, for purposes
of determining whether any person may be a Participant for purposes of any grant
of Incentive Stock Options, "Subsidiary" means any corporation in which the
Corporation owns or controls directly or indirectly more than 50 percent of the
total combined voting power represented by all classes of stock issued by such
corporation at the time of the grant.
"TAX-QUALIFIED OPTION" means an Option Right that is intended to
qualify under particular provisions of the Code, including without limitation an
Incentive Stock Option.
3. SHARES AVAILABLE UNDER THE PLAN. Subject to adjustment as provided in
Section 6 of this Plan, the number of shares of Common Stock issued or
transferred and covered by outstanding Option Rights granted under this Plan
shall not in the aggregate exceed 1,000,000 shares of Common Stock, which may be
shares of Common Stock of original issuance or shares of Common Stock held in
treasury or a combination thereof. For the purposes of this Section 3, shares of
Common Stock covered by any Option Rights granted under this Plan shall be
deemed to have been issued or transferred, and shall cease to be available for
future issuance or transfer in respect of any other Option Rights granted
hereunder, at the earlier of the time when they are actually issued or
transferred or the time when dividend equivalents are paid thereon.
4. OPTION RIGHTS. The Committee may from time to time authorize grants to
Participants of options to purchase shares of Common Stock upon such terms and
conditions as the Committee may determine in accordance with the following
provisions:
(a) Each grant shall specify the number of shares of Common
Stock to which it pertains; provided, however, that no Participant shall be
granted Incentive Stock Options to purchase shares of Common Stock with an
aggregate market value in excess of $100,000 in any one fiscal year of the
Corporation.
(b) Each grant shall specify an Option Price per Common Share,
which, in the case of cash Incentive Stock Option, shall be equal to or greater
than the Market Value per Share on the Date of Grant.
(c) Each grant shall specify the form of consideration to be
paid in satisfaction of the Option Price and the manner of payment of such
consideration, which may include (i) cash in the form of currency or check or
other cash equivalent acceptable to the Corporation, (ii) nonforfeitable,
unrestricted shares of Common Stock, which are already owned by the Optionee and
have a value at the time of exercise that is equal to the Option Price, (iii)
any other legal consideration that the Committee may deem appropriate
(including, without limitation, any form of consideration authorized under
Section 4(d) below) on such basis as the Committee may determine in accordance
with this Plan and (iv) any combination of the foregoing.
(d) On or after the Date of Grant of any Nonqualified Option,
the Committee may determine that payment of the Option Price may also be made in
whole or in part in the form of shares of Common Stock that are subject to risk
of forfeiture or restrictions on transfer. Unless otherwise determined by the
Committee on or after the Date of Grant, whenever any Option Price
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<PAGE> 6
is paid in whole or in part by means of the form of consideration specified in
this Section 4(d), the shares of Common Stock received by the Optionee upon the
exercise of the Nonqualified Option shall be subject to the same risk of
forfeiture or restrictions on transfer as those that applied to the
consideration surrendered by the Optionee; provided, however, that any such risk
of forfeiture or restrictions on transfer shall apply only to the same number of
shares of Common Stock received by the Optionee as applied to the forfeitable or
restricted shares of Common Stock surrendered by the Optionee.
(e) Any grant may provide for deferred payment of the Option
Price from the proceeds of sale through a broker of some or all of the shares of
Common Stock to which the exercise relates.
(f) Successive grants may be made to the same Participant
regardless of whether any Option Rights previously granted to the Participant
remain unexercised.
(g) Each grant shall specify the period or periods of continuous
service as a key employee, officer or consultant by the Optionee to the
Corporation or any Subsidiary that are necessary before the Option Rights or
installments thereof shall become exercisable, and any grant may provide for the
earlier exercise of the Option Rights in the event of a change in control of the
Corporation or other similar transaction or event.
(h) Option Rights granted pursuant to this Section 4 may be
Nonqualified Options or Tax-Qualified Options or combinations thereof.
(i) Any grant of a Nonqualified Option may provide for the
payment to the Optionee of dividend equivalents thereon in cash or shares of
Common Stock on a current, deferred or contingent basis or may provide that any
dividend equivalents shall be credited against the Option Price.
(j) No Option Right granted pursuant to this Section 4 may be
exercised more than 10 years from the Date of Grant.
(k) Each grant shall be evidenced by an agreement, which shall
be executed on behalf of the Corporation by an officer thereof and delivered to
and accepted by the Optionee and shall contain such terms and provisions as the
Board may determine consistent with this Plan.
5. TRANSFERABILITY. (a) No Option Right or other "derivative security"
(as that term is used in Rule 16b-3) granted under this Plan may be transferred
by a Participant except by will or the laws of descent and distribution. Option
Rights may not be exercised during a Participant's lifetime except by the
Participant or, in the event of the Participant's legal incapacity, by his
guardian or legal representative acting in a fiduciary capacity on behalf of the
Participant under state law and court supervision.
(b) Any grant of Option Rights made under this Plan may provide
that all or any part of the shares of Common Stock that are to be issued or
transferred by the Corporation upon the exercise thereof shall be subject to
further restrictions upon transfer.
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6. ADJUSTMENTS. The Committee may make or provide for such adjustments in
the number of shares of Common Stock covered by outstanding Option Rights, the
Option Prices per Common Share applicable thereto, and the kind of shares
(including shares of another issuer) covered thereby, as the Committee may in
good faith determine to be equitably required in order to prevent dilution or
expansion of the rights of Participants that otherwise would result from (i) any
stock dividend, stock split, combination of shares, recapitalization or other
change in the capital structure of the Corporation or (ii) any merger,
consolidation, spin-off, spin-out, split-off, split-up, reorganization, partial
or complete liquidation or other distribution of assets, issuance of warrants or
other rights to purchase securities or (iii) any corporate transaction or event
having an effect similar to any of the foregoing. In the event of any such
transaction or event, the Committee may provide in substitution for any or all
outstanding Option Rights under this Plan such alternative consideration as it
may in good faith determine to be equitable under the circumstances and may
require in connection therewith the surrender of all Option Rights so replaced.
Moreover, the Committee may on or after the Date of Grant provide in the
agreement evidencing any grant of Option Rights under this Plan that the
Optionee may elect to receive an equivalent award in respect of securities of
the surviving entity of any merger, consolidation or other transaction or event
having a similar effect, or the Committee may provide that the Optionee will
automatically be entitled to receive such an equivalent award. The Committee may
also make or provide for such adjustments in the number of shares of Common
Stock specified in Section 3, and the number of shares of Common Stock specified
in Section 4(a), of this Plan as the Committee may in good faith determine to be
appropriate in order to reflect any transaction or event described in this
Section 6.
7. FRACTIONAL SHARES. The Corporation shall not be required to issue any
fractional shares of Common Stock pursuant to this Plan. The Committee may
provide for the elimination of fractions or for the settlement thereof in cash.
8. WITHHOLDING TAXES. To the extent that the Corporation is required to
withhold federal, state, local or foreign taxes in connection with any payment
made or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Corporation for the withholding are insufficient,
it shall be a condition to the receipt of any such payment or the realization of
any such benefit that the Participant or such other person make arrangements
satisfactory to the Corporation for payment of the balance of any taxes required
to be withheld. At the discretion of the Committee, any such arrangements may
include relinquishment of a portion of any such payment or benefit. The
Corporation and any Participant or such other person may also make similar
arrangements with respect to the payment of any taxes with respect to which
withholding is not required.
9. PARTICIPATION BY EMPLOYEES OR CONSULTANTS OF A LESS-THAN-80-PERCENT
SUBSIDIARY. As a condition to the effectiveness of any grant of Option Rights to
be made hereunder to a Participant who is an employee or consultant of a
Less-Than-80-Percent Subsidiary, regardless of whether the Participant is also
employed or engaged as a consultant by the Corporation or another Subsidiary,
the Committee may require the Less-Than-80-Percent Subsidiary to agree to
transfer to the Participant (as, if and when provided for under this Plan and
any applicable agreement entered into between the Participant and the
Less-Than-80-Percent Subsidiary pursuant to this Plan) the shares of Common
Stock that would otherwise be delivered by the Corporation upon receipt by the
Less-Than-80-Percent Subsidiary of any consideration then otherwise payable by
the Participant to the Corporation. Any such grant of Option Rights may be
evidenced by an agreement between the
5
<PAGE> 8
Participant and the Less-Than-80-Percent Subsidiary, in lieu of the Corporation,
on terms consistent with this Plan and approved by the Committee and so
delivered by or to a Less-Than-80-Percent Subsidiary will be treated as if they
had been delivered by or to the Corporation for purposes of Section 3 of this
Plan, and all references to the Corporation in this Plan shall be deemed to
refer to the Less-Than-80-Percent Subsidiary except with respect to the
definitions of the Board and the Committee and in other cases where the context
otherwise requires.
10. CERTAIN TERMINATIONS OF EMPLOYMENT OR OTHER SERVICES, HARDSHIP AND
APPROVED LEAVES OF ABSENCE. Notwithstanding any other provision of this Plan to
the contrary, in the event of termination of employment or service as an
employee, officer, advisor or consultant by reason of death, disability, normal
retirement, or early retirement with the consent of the Corporation, termination
of employment or service as an employee, officer, advisor or consultant to enter
public service with the consent of the Corporation or leave of absence approved
by the Corporation, or in the event of hardship or other special circumstances,
of a Participant who holds an Option Right that is not immediately and fully
exercisable or any shares of Common Share that are subject to any transfer
restriction pursuant to Section 5(b) of this Plan, the Committee may take any
action that it deems to be equitable under the circumstances or in the best
interests of the Corporation, including without limitation waiving or modifying
any limitation or requirement with respect to any grant of Option Rights under
this Plan.
11. FOREIGN PARTICIPANTS. In order to facilitate the making of any grant
of Option Rights under this Plan, the Committee may provide for such special
terms for grants of Option Rights to Participants who are foreign nationals, or
who are employed or engaged as consultants by the Corporation or any Subsidiary
outside of the United States of America, as the Committee may consider necessary
or appropriate to accommodate differences in local tax, tax policy or custom.
Moreover, the Committee may approve such supplements to, or amendments,
restatements or alternative versions of, this Plan as it may consider necessary
or appropriate for such purposes without thereby affecting the terms of this
Plan as in effect for any other purpose; provided, however, that in no such
supplements, amendments, restatements or alternative versions shall include any
provisions that are inconsistent with the terms of this Plan, as then in effect,
unless this Plan could have been amended to eliminate the inconsistency without
further approval by the stockholders of the Corporation.
12. ADMINISTRATION OF THE PLAN. (a) This Plan shall be administered by a
committee of not less than two members of the Board, each of whom shall be a
"disinterested person" within the meaning of Rule 16b-3. A majority of the
members of the Committee shall constitute a quorum, and the acts of the members
of the Committee who are present at any meeting thereof at which a quorum is
present, or acts unanimously approved in writing by the members of the
Committee, shall be the acts of the Committee.
(b) The interpretation and construction by the Committee of any
provision of this Plan or any agreement, notification or document evidencing a
grant of Option Rights, and any determination by the Committee pursuant to any
provision of this Plan or any such agreement, notification or document, shall be
final and conclusive. No member of the Committee shall be liable for any such
action taken or determination made in good faith.
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<PAGE> 9
13. AMENDMENTS AND OTHER MATTERS. (a) This Plan may be amended from time
to time by the Committee; provided, however, that except as expressly authorized
by this Plan, no such amendment shall increase the number of shares of Common
Stock specified in Section 3 of this Plan, increase the number of shares of
Common Stock specified in Section 4(a) of this Plan, or otherwise cause this
Plan to cease to satisfy any applicable condition of Rule 16b-3, without the
further approval of the stockholders of the Corporation.
(b) With the concurrence of the affected Optionee, the Committee
may cancel any agreement evidencing Option Rights granted under this Plan. In
the event of any such cancellation, the Committee may authorize the granting of
new Option Rights hereunder, which may or may not cover the same number of
shares of Common Stock as had been covered by the cancelled Option Rights, at
such Option Price, in such manner and subject to such other terms, conditions
and discretion as would have been permitted under this Plan had the cancelled
Option Rights not been granted.
(c) This Plan shall not confer upon any Participant any right
with respect to continuance of employment or other service with the Corporation
or any Subsidiary and shall not interfere in any way with any right that the
Corporation or any Subsidiary would otherwise have to terminate any
Participant's employment or other service at any time.
(d) (i) To the extent that any provision of this Plan would
prevent any Option Right that was intended to qualify as a Tax-Qualified
Option from so qualifying, any such provision shall be null and void with
respect to any such Option Right; provided, however, that any such
provision shall remain in effect with respect to other Option Rights, and
there shall be no further effect on any provision of this Plan.
(ii) Any award that may be made pursuant to an amendment
to this Plan that shall have been adopted without the approval of the
stockholders of the Corporation shall be null and void if it is
subsequently determined that such approval was required in order for this
Plan to continue to satisfy the applicable conditions of Rule 16b-3.
14. TERMINATION OF THE PLAN. No further awards shall be granted under
this Plan after the passage of 10 years from the date on which this Plan is
first approved by the stockholders of the Corporation.
7
<PAGE> 1
Exhibit 4.2
SECURFONE AMERICA, INC.
1997 DIRECTORS' STOCK OPTION PLAN
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
1. Purpose.....................................................................1
2. Definitions.................................................................1
3. Shares and Options..........................................................3
4. Conditions for Grant of Options.............................................3
5. Option Grants...............................................................3
6. Exercise of Options.........................................................3
7. Exercisability of Options...................................................4
8. Termination of Option Period................................................4
9. Adjustment of Shares........................................................4
10. Transferability of Options..................................................5
11. Administration of the Plan..................................................5
12. Interpretation..............................................................5
13. Amendment and Discontinuation of the Plan...................................6
14. Effective Date and Termination Date.........................................6
</TABLE>
i
<PAGE> 3
- --------------------------------------------------------------------------------
SECURFONE AMERICA, INC.
1997 DIRECTORS' STOCK OPTION PLAN
(August 27, 1997)
- -------------------------------------------------------------------------------
1. PURPOSE. The purpose of this Plan is to advance the interests of
SECURFONE AMERICA, INC., a Delaware corporation (the "Company"), by providing
additional incentive to attract and retain qualified and competent Directors
upon whose efforts and judgment the success of the Company is largely dependent,
by encouraging such persons to own stock in the Company.
2. DEFINITIONS. As used herein, the following terms shall have the
meanings indicated:
(a) "BOARD" shall mean the Board of Directors of the Company.
(b) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "COMMITTEE" shall mean the stock option committee
described in Section 11 hereof.
(d) "COMMON STOCK" shall mean the Company's Common Stock, par
value $.001 per share.
(e) "DIRECTOR" shall mean a member of the Board.
(f) "DISINTERESTED PERSON" shall mean a Director who is not,
during the one year prior to his or her service as an administrator of this Plan
or any other stock option plan of the Company, or during such service, granted
or awarded equity securities pursuant to this Plan or any other plan of the
Company or any of its affiliates, except that:
(i) participation in a formula plan meeting the
conditions in paragraph (c)(2)(ii) of Rule 16b-3 promulgated under the
Securities Exchange Act shall not disqualify a Director from being a
Disinterested Person;
(ii) participation in an ongoing securities
acquisition plan meeting the conditions in paragraph (d)(2)(i) of Rule
16b-3 promulgated under the Securities Exchange Act shall not
disqualify a Director from being a Disinterested Person; and
(iii) an election to receive an annual retainer
fee in either cash or an equivalent amount of securities, or partly in
cash and partly in securities, shall not disqualify a Director from
being a Disinterested Person.
(g) "EFFECTIVE DATE" shall mean August 27, 1997.
1
<PAGE> 4
(h) "FAIR MARKET VALUE" of a Share on any date of reference
shall be the "Closing Price" (as defined below) of the Common Stock on the
business day immediately preceding such date. For the purpose of determining
Fair Market Value, the "Closing Price" of the Common Stock on any business day
shall be (i) if the Common Stock is listed or admitted for trading on any United
States national securities exchange, or if actual transactions are otherwise
reported on a consolidated transaction reporting system, the last reported sale
price of Common Stock on such exchange or reporting system, as reported in any
newspaper of general circulation, (ii) if the Common Stock is quoted on the
National Association of Securities Dealers Automated Quotations ("NASDAQ")
System, or any similar system of automated dissemination of quotations of
securities prices in common use, the mean between the closing high bid and low
asked quotations for such day of Common Stock on such system, or (iii) if
neither clause (i) or (ii) is applicable, the mean between the high bid and low
asked quotations for the Common Stock as reported by the National Quotation
Bureau, Incorporated if at least two securities dealers have inserted both bid
and asked quotations for Common Stock on at least five of the ten preceding
days.
If none of clauses (i), (ii) or (iii) is applicable, the Market Value
per Share shall be the price at which one could reasonably expect a share of
Common Stock to be sold in an arm's length transaction, for cash, other than on
an installment basis, to a person not employed by, controlled by, in control of
or under common control with the Company. Such Market Value shall be that which
has currently or most recently been determined for this purpose by the Board, or
at the discretion of the Board by an independent appraiser or appraisers
selected by the Board, in either case giving due consideration to recent
transactions involving shares of Common Stock, if any, the issuer's net worth,
prospective earning power and dividend-paying capacity, the goodwill of the
issuer's business, the issuer's industry position and its management, that
industry's economic outlook, the values of securities of issuers whose stock is
publicly traded and which are engaged in similar businesses, the effect of
transfer restrictions to which the Common Stock may be subject under law and
under the applicable terms of any contract governing such stock, the absence of
a public market for the Common Stock and such other matters as the Board or its
appraiser or appraisers deem pertinent. The determination by the Board or its
appraiser or appraisers of the Market Value shall, if not unreasonable, be
conclusive and binding notwithstanding the possibility that other persons might
make a different, and also reasonable, determination. If the Market Value to be
used was thus fixed more than sixteen months prior to the day as of which Market
Value is being determined, it shall in any event be no less than the book value
of the Common Stock at the end of the most recent period for which financial
statements of the issuer are available.
(i) "NON-STATUTORY STOCK OPTION" shall mean an Option which is
not an incentive stock option as defined in Section 422 of the Code.
(j) "OPTION" (when capitalized) shall mean any option granted
under this Plan.
(k) "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.
(l) "PLAN" shall mean this Directors' Stock Option Plan for the
Company.
2
<PAGE> 5
(m) "SECURITIES EXCHANGE ACT" shall mean the Securities Exchange
Act of 1934, as amended.
(n) "SHARE(S)" shall mean a share or shares of the Common Stock.
3. SHARES AND OPTIONS. Options may be granted under this Plan from time
to time to purchase an aggregate of up to 250,000 Shares from Shares held in the
Company's treasury or from authorized and unissued Shares. If any Option granted
under the Plan shall terminate, expire, or be canceled or surrendered as to any
Shares, new Options may thereafter be granted covering such Shares. Each Option
granted hereunder shall be a Non-Statutory Stock Option and shall clearly state
that it is a Non-Statutory Stock Option.
4. CONDITIONS FOR GRANT OF OPTIONS. Each Option shall be evidenced by a
written agreement with such terms as are not inconsistent with this Plan. Any
person who files with the Committee, in a form satisfactory to the Committee, a
written waiver of eligibility to receive any Option under this Plan shall not be
eligible to receive any Option under this Plan for the duration of such waiver.
5. OPTION GRANTS. On the Effective Date Nicholas R. Wilson, Michael R.
Lee, and Steven L. Wasserman will each receive an Option to purchase 50,000
shares of Common Stock, which Option will become exercisable in full on the
first anniversary of the Option's grant. Each Director who is not a director on
the Effective Date will receive, on the date of his or her initial election as a
Director, an Option to purchase 50,000 shares of Common Stock, which Option
will become exercisable in full on the first anniversary of the Option's grant;
provided he or she remains a Director on such anniversary. No person shall
receive an Option pursuant to this Section 5 more than once. The per share
exercise price of all Options granted pursuant to this Section 5 will be equal
to the Fair Market Value of the Shares underlying such Option on the date such
Option is granted.
6. EXERCISE OF OPTIONS. An Option shall be deemed exercised when (i) the
Company has received written notice of such exercise in accordance with the
terms of the Option, (ii) full payment of the aggregate option price of the
Shares as to which the Option is exercised has been made, and (iii) arrangements
that are satisfactory to the Committee in its sole discretion have been made for
the Optionee's payment to the Company of an amount that is sufficient to satisfy
all applicable Federal or state tax withholding requirements relating to
exercise of the Option. The option price of any Shares purchased shall be paid
in cash, by certified or official bank check, by money order, with Shares or by
a combination of the above; provided, however, that the Committee in its sole
discretion may accept a personal check in full or partial payment of any Shares.
If the exercise price is paid in whole or in part with Shares, the value of the
Shares surrendered shall be their Fair Market Value on the date the Option is
exercised. No Optionee shall be deemed to be a holder of any Shares subject to
an Option unless and until a stock certificate or certificates for such Shares
are issued to such person(s) under the terms of this Plan. No adjustment shall
be made for dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the date such stock certificate is issued, except as expressly provided
in Section 9 hereof.
3
<PAGE> 6
7. EXERCISABILITY OF OPTIONS. Each outstanding Option shall become
immediately fully exercisable if:
(a) there occurs any transaction (which shall include a series of
transactions occurring within 60 days or occurring pursuant to a plan), that has
the result that stockholders of the Company immediately before such transaction
cease to own 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;
(b) the stockholders of the Company approve a plan of merger,
consolidation, reorganization, liquidation or dissolution in which the Company
does not survive (unless the approved merger, consolidation, reorganization,
liquidation or dissolution is subsequently abandoned); or
(c) the stockholders of the Company approve a plan for the sale,
lease, exchange, transfer, assignment or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
8. TERMINATION OF OPTION PERIOD. The unexercised portion of any Option
shall automatically and without notice terminate and become null and void on the
earliest to occur of: (i) one year after the death of Optionee; (ii) six months
after the date on which the Optionee ceases to be a Director for any reason
other than death; or (iii) after the expiration of 10 years from the date of
grant of the Option.
9. ADJUSTMENT OF SHARES.
(a) If at any time while the Plan is in effect or unexercised
Options are outstanding, there shall be any increase or decrease in the number
of issued and outstanding Shares through the declaration of a stock dividend or
through any recapitalization resulting in a stock split-up, combination or
exchange of Shares, then and in such event:
(i) appropriate adjustment shall be made in the
maximum number of Shares available for grant under the Plan, so that the same
percentage of the Company's issued and outstanding Shares shall continue to be
subject to being so optioned; and
(ii) appropriate adjustment shall be made in the
number of Shares and the exercise price per Share thereof then subject to any
outstanding Option, so that the same percentage of the Company's issued and
outstanding Shares shall remain subject to purchase at the same aggregate
exercise price.
(b) Subject to the specific terms of any Option, the Committee
shall make appropriate adjustment in the terms of Options outstanding under this
Plan, with respect to the option price or the number of Shares subject to the
Options, or both, when such adjustments become appropriate by reason of a
corporate transaction described in Subsections 7(b) or (c) hereof.
4
<PAGE> 7
(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 no 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 issue by the Company of debt securities,
or preferred or preference stock that would rank above the Shares subject to
outstanding Options; (iv) the dissolution or liquidation of the Company; (v) any
sale, lease, exchange, transfer, assignment or other disposition 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.
10. TRANSFERABILITY OF OPTIONS. No Option shall be transferable by the
Optionee other than by will or the laws of descent and distribution and each
Option shall be exercisable during the Optionee's lifetime only by the Optionee.
11. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Committee, which shall
consist of not less than two Directors, each of whom shall be Disinterested
Persons, provided that the Committee shall not have any discretion with respect
to the grant of Options to pursuant to this Plan. The Committee shall have all
of the powers of the Board with respect to the Plan. The Board may change the
membership of the Committee at any time and fill any vacancy occurring in the
membership of the Committee by appointment.
(b) The Committee, from time to time, may adopt rules and
regulations for carrying out the purposes of the Plan. The Committee's
determinations and its interpretation and construction of any provision of the
Plan shall be final and conclusive.
(c) Any and all decisions or determinations of the Committee
shall be made either (i) by a majority vote of the members of the Committee at a
meeting or (ii) without a meeting by the unanimous written consent of the
members of the Committee.
12. INTERPRETATION.
(a) This Plan shall be governed by the internal substantive laws
of the State of Delaware.
(b) Headings contained in this Plan are for convenience only and
shall in no manner be construed as part of this Plan.
5
<PAGE> 8
(c) Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate.
13. AMENDMENT AND DISCONTINUATION OF THE PLAN. Either the Board or the
Committee may from time to time amend the Plan or any Option; provided, however,
that, except to the extent provided in Section 9, no such amendment may, without
approval by the stockholders of the Company, (i) materially increase the
benefits accruing to participants under the Plan, (ii) materially increase the
number of securities which may be issued under the Plan, or (iii) materially
modify the requirements as to eligibility for participation in the Plan; and
provided further, that, no amendment or suspension of the Plan or any Option
issued hereunder shall substantially impair any Option previously granted to any
Optionee without the consent of such Optionee. Notwithstanding anything herein
to the contrary, to the extent required by Rule 16b-3 promulgated under the
Securities Exchange Act, the provisions of this Plan which govern the number of
Options to be awarded, the exercise price per share under each Option, when and
under what circumstances Options will be granted and the period within which
each Option may be exercised, shall not be amended more than once every six
months (even with stockholder approval), other than to conform to changes to the
Code, or the rules promulgated thereunder, or with rules promulgated by the
Securities and Exchange Commission.
14. EFFECTIVE DATE AND TERMINATION DATE. Subject to approval of the Plan
by the holders of a majority of the shares of Common Stock present at a duly
called stockholders' meeting at which a quorum is present, the Plan shall be
effective upon the Effective Date and shall terminate on the tenth anniversary
of the Effective Date. If the Plan is not approved by the holders of a majority
of the outstanding shares of Common Stock, the Plan shall be null and void.
6
<PAGE> 1
Exhibit 4.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made this 24th day of
October 1997 by and between SecurFone America, Inc. (the "Corporation"), a
Delaware corporation, and Derek Davis (the "Employee").
EXPLANATORY STATEMENT
A. The Corporation is engaged in the business of telecommunications.
B. The Employee has specialized expertise in the operation of
telecommunications companies.
C. The Corporation desires to employ the Employee as Vice-President
and Chief Operating officer and to render such services as shall be assigned
reasonably, from time-to-time, to the Employee by the Board of Directors or by
the President of the Corporation, and the Employee is willing to accept such
employment, upon the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the Explanatory Statement, which
shall be deemed to be a substantive part of this Agreement, and the mutual
covenants, promises, agreements, representations and warranties set forth, the
parties hereto do hereby covenant, promise, agree, represent and warrant as
follows:
1. Employment. The Corporation hereby employs the Employee as the
Vice-President and Chief Operating Officer of the Corporation and to render
such services for and on behalf of the Corporation as may be assigned
reasonably, from time-to-time, to the Employee by the Board of Directors or by
the President of the Corporation (the "Services"). The Employee hereby accepts
such employment with the Corporation and agrees to render the Services for and
on behalf of the Corporation on the terms and conditions set forth in this
Agreement. The power to direct, control and supervise the Services to be
performed, the means and manner of performing the Services and the time for
performing the Services shall be exercised by the Board of Directors or the
President of the Corporation; provided, however, that the Board of Directors
or the President shall not impose employment duties or constraints of any kind
which would require the Employee to violate any law, statute, ordinance, rule
or regulation now or hereinafter in effect.
<PAGE> 2
2. Term. The term (the "Initial Term") of this Agreement shall
commence on the date hereof and, subject to the further provisions of this
Agreement, shall end on Oct 24, 1998; provided, however, this Agreement shall
be automatically renewed for successive one-year periods (a "Renewal Term")
unless, at least 60 days prior to the expiration of the Initial Term or any
Renewal Term, either party gives written notice to the other party
specifically electing to terminate this Agreement at the end of the Initial
Term or any such Renewal Term.
3. Performance of Services. The Employee shall devote all of his time
exclusively to the Corporation's business and shall render the Service to the
best of his ability for and on behalf of the Corporation. The Employee shall
comply with all laws, statutes, ordinances, rules and regulations relating to
the Services. Unless having first received the written consent of the
Corporation, during the term of this Agreement the Employee shall not, at any
time or place, directly or indirectly, engage or agree to engage in the
telecommunications business with or for any other person or entity to any
extent whatsoever, other than to the extent required by the terms and
conditions of this Agreement.
4. Compensation.
4.1 During the term of this Agreement, the Employee will earn
an annual salary of $100,000 ("Salary") of which $75,000 will be payable in
equal consecutive weekly installments. The parties agree that the balance of
such annual Salary shall be accrued and deferred without interest and shall be
payable upon the earlier of (i) a determination by the Board of Directors or
the President of the Corporation that the Corporation has sufficient revenues
or capital for payment of the accrued and deferred Salary, or (ii) October 1,
1998, and upon the occurrence of either (i) or (ii) above, Employee's annual
Salary of $100,000 shall be payable in equal consecutive weekly installments.
4.2 Prior to the date of this Agreement, Employee provided
significant services to the Corporation on a consulting basis. As full
compensation for such consulting services, the Corporation shall issue to
Employee 20,000 shares of the Corporation's common stock. Such shares shall be
validly issued, fully paid and non-assessable.
2
<PAGE> 3
5. Vacations and Benefits.
5.l. During each 12-month period during the Initial Term and any
Renewal Term of this Agreement, the Employee shall be entitled to vacation time
of not less than three (3) weeks, during which time the Employee's Salary shall
be paid in full. The Employee shall take his vacation at such time or times as
shall be approved by the Corporation, which approval shall not be unreasonably
withheld.
5.2. The Employee shall be entitled to such benefits as the
Board of Directors shall lawfully adopt and approve.
6. Disability.
6.1. As used herein, the Employee shall be "disabled" or have a
"disability" for purposes of this Agreement if the Employee shall have an
illness, injury, or other physical or mental condition which results in the
Employee's inability to perform substantially the duties he performed in his
employment capacity under this Agreement to the extent he was performing such
duties immediately prior to the commencement of such condition.
6.2. In the event that the Employee shall be disabled for not
more than ninety (90) days during any 12-month period, then the Employee, during
the continuance of such disability, shall remain employed by the Corporation
hereunder and shall continue to receive his Salary pursuant to Section 4 of this
Agreement and otherwise have all of the rights and be subject to all of the
Employee's obligations and duties under this Agreement, other than the
obligation and duty to render the Services otherwise in accordance with this
Agreement.
6.3. In the event that the Employee shall be disabled for more
than ninety (90) days during any 12-month period, but not more than one hundred
eighty (180) days during any 12-month period, then from and after the expiration
of the 90th day and during the continuance of such disability up to and
including the day immediately preceding the 181st day, the Employee shall be
deemed to have taken a leave of absence from the Corporation commencing on the
91st day of such disability and, during the continuance of such disability, the
following provisions shall apply:
6.3.1. The Employee's Salary shall be apportioned up to and
including the 90th day of such disability and from and after the 90th day of
3
<PAGE> 4
such disability and up to and including the day immediately preceding the 181st
day, the Corporation shall pay Salary to the Employee at the rate of one half
(1/2) the Salary specified in Section 4 of this Agreement.
6.3.2. The Corporation, in the sole discretion of its Board
of Directors, shall have the right and power to remove the Employee from the
position of Vice-President and Chief Operating Officer of the Corporation or to
delegate all or any portion of the Employee's duties as Vice-President and Chief
Operating Officer of the Corporation to one or more other employees of the
Corporation.
6.3.3. The Employee shall otherwise have all of the rights
and be subject to all of the Employee's obligations and duties under this
Agreement, except that the Employee shall have no obligation or duty to render
the Services otherwise in accordance with this Agreement; provided, however,
that the Corporation shall be excused from providing any insurance coverages or
benefits which, by reason of the Employee's disability, the Corporation shall
not be able to obtain, continue or maintain at substantially the same cost and
expense or on substantially the same terms and conditions that the Corporation
was able to obtain, continue or maintain immediately prior to the commencement
of the Employee's disability.
6.4. In the event that the Employee shall be disabled for
more than one hundred eighty (180) days in any 12-month period, the employment
of the Employee hereunder shall cease and terminate pursuant to Section 10
hereof.
6.5. If the Corporation and the Employee are unable to agree
whether the Employee is disabled within the meaning of this Section 6, then
this limited issue shall be submitted to and settled by binding arbitration
under and pursuant to the Delaware Uniform Arbitration Act and the rules and
regulations of the American Arbitration Association, and the decision in such
arbitration shall be final, conclusive and binding upon each of the parties
and judgment may be entered thereon in any court of competent jurisdiction. No
other issue shall be submitted to or settled by binding arbitration under this
Agreement.
7. Confidential Information.
7.1. The Employee acknowledges that in the Employee's
employment hereunder, the Employee will be making use of, acquiring and adding
to the Corporation's trade secrets and its confidential and proprietary
4
<PAGE> 5
information of a special and unique nature and value relating to such matters
as, but not limited to, the Corporation's business operations, internal
structure, financial affairs, procedures, manuals, confidential reports, lists
of clients and prospective clients and sales and marketing methods, as well as
the amount, nature and type of services equipment and methods used and
preferred by the Corporation's clients and business partners, all of which
shall be deemed to be confidential information. The Employee acknowledges that
such confidential information has been and will continue to be of central
importance to the business of the Corporation and that disclosure of it to or
its use by others could cause substantial loss to the Corporation. In
consideration of employment by the Corporation, the Employee agrees that
during the Initial Term and any Renewal Term of this Agreement and upon and
after leaving the employ of the Corporation for any reason whatsoever, the
Employee shall not, for any purpose whatsoever, directly or indirectly,
divulge or disclose to any person or entity any of such confidential
information which was obtained by the Employee as a result of the Employee's
employment with the Corporation or any trade secrets of the Corporation, but
shall hold all of the same confidential and inviolate.
7.2. All contracts, agreements, financial books, records,
instruments and documents; client lists; memoranda; data; reports; programs;
software; tapes; rolodexes; telephone and address books; letters; research;
card decks; listings; programming; and any other instruments, records or
documents relating or pertaining to clients serviced by and business partners
of the Corporation or the Employee, the Services rendered by the Employee, or
the business of the Corporation (collectively, the "Records") shall at all
times be and remain the property of the Corporation. Upon termination of this
Agreement and the Employee's employment under this Agreement for any reason
whatsoever, the Employee shall return to the Corporation all Records (whether
furnished by the Corporation or prepared by the Employee), and the Employee
shall neither make nor retain any copies of any of such Records after such
termination.
7.3. All inventions and other creations, whether or not
patentable or copyrightable, and all ideas, reports and other creative works,
including, without limitation, computer programs, manuals and related
materials, made or conceived in whole or in part by the Employee while
employed by the Corporation which relate in any manner whatsoever to the
business, existing or proposed, of the Corporation or any other business or
research or development effort in which the Corporation or any of its
subsidiaries or affiliates engages during Employee's employment by the
Corporation will be disclosed promptly by the Employee to the Corporation and
shall be the sole and exclusive property of the Corporation. All copyrightable
works created by the Employee and
5
<PAGE> 6
covered by this Section 7.3 shall be deemed to be works for hire. The Employee
shall cooperate with the Corporation in patenting or copyrighting all such
inventions, ideas, reports and other creative works, shall execute,
acknowledge, seal and deliver all documents tendered by the Corporation to
evidence its ownership thereof throughout the world, and shall cooperate with
the Corporation in obtaining, defending, and enforcing its rights therein.
8. Indemnity. The Employee shall indemnify the Corporation, its
officers, directors and stockholders (other than the Employee), and hold the
Corporation, its officers, directors and stockholders (other than the
Employee) harmless, from and against any and all actions, suits, proceedings,
liabilities, damages, losses, costs and expenses (including attorneys' and
experts' fees) arising out of or in connection with any breach or threatened
breach by the Employee of any one or more provisions of this Agreement.
9. Restrictive Covenants.
9.1. The Corporation and the Employee acknowledge and agree
that the Employee's Services are of a special and unusual character which have
a unique value to the Corporation, the loss of which cannot be adequately
compensated by damages in an action at law and if used in competition with the
Corporation could cause serious harm to the Corporation. Accordingly, the
Employee covenants that for a period of one year after the Employee ceases to
be employed by the Corporation for any reason whatsoever, the Employee shall
not, without the prior written consent of the Corporation, directly or
indirectly:
9.1.1. Offer to render any services or solicit the
rendition of any services which were rendered by the Corporation during the
two year period immediately preceding such cessation of the Employee's
employment with the Corporation to any clients, business partners, customers
or accounts of the Corporation who were such at any time during such two year
period to or for the benefit or account of the Employee or to or for the
benefit or account of any other person or entity.
9.1.2. Render or attempt to render any services which were
rendered by the Corporation during the two year period immediately preceding
such cessation of the Employee's employment with the Corporation to any
clients, business partners, customers or accounts of the Corporation who were
such at any time during such two year period to or for the benefit or account
of the Employee or to or for the benefit or account of any other person or
entity.
6
<PAGE> 7
9.1.3. Solicit for employment or employ to or for
the benefit or account of the Employee or to or for the benefit or account of
any other person or entity any employee of the Corporation, nor shall the
Employee urge, directly or indirectly, any client, business partners or
referrer of clients, business partners, customers, or accounts of the
Corporation to discontinue, in whole or in part, business with the Corporation
or not to do business with the Corporation. For purposes of this Section 9.1.3
of this Agreement, the term "referrer of clients" shall mean any person or
entity who or which referred a client, business partners, customer or account
to the Corporation at any time prior to such cessation of the Employee's
employment with the Corporation.
9.1.4. Engage, either as a consultant, independent
contractor, proprietor, stockholder, partner, officer, director, employee or
otherwise, in any telecommunications business or otherwise compete with the
Corporation in any state of the United States or in any foreign country, in
each such case where the Corporation sold, licensed or otherwise engaged in
the telecommunications business at any time during the two year period
immediately preceding such cessation of the Employee's employment with the
Corporation.
9.2. The parties hereto agree that to the extent that any
provision or portion of Section 9.1 of this Agreement shall be held, found or
deemed to be unreasonable, unlawful or unenforceable by a court of competent
jurisdiction, then any such provision or portion thereof shall be deemed to be
modified to the extent necessary in order that any such provision or portion
thereof shall be legally enforceable to the fullest extent permitted by
applicable law; and the parties hereto do further agree that any court of
competent jurisdiction shall, and the parties hereto do hereby expressly
authorize, request and empower any court of competent jurisdiction to, enforce
any such provision or portion thereof or to modify any such provision or
portion thereof in order that any such provision or portion thereof shall be
enforced by such court to the fullest extent permitted by applicable law.
9.3. As the violation by the Employee of the provisions of
Sections 7 and 9 of this Agreement would cause irreparable injury to the
Corporation, and there is no adequate remedy at law for such violation, the
Corporation shall have the right, in addition to any other remedies available
at law or in equity, to enjoin the Employee in a court of equity from
violating such provisions.
9.4. The provisions of Sections 9.1.1, 9.1.2, 9.1.3 and
9.1.4 of this Agreement are cumulative. Compliance with Sections 9.1.1, 9.1.2,
9.1.3 and 9.1.4 of this Agreement is a condition precedent to the
Corporation's
7
<PAGE> 8
obligation to make any payments of any nature to the Employee, whether under
this Agreement or otherwise. Nothing in this Agreement shall be construed as
prohibiting the Corporation from pursuing any other remedies available to it
for a breach or threatened breach of Sections 7 and 9 of this Agreement.
9.5 As used in this Section 9, "clients," "business
partners," "customers" and "accounts" shall include any person or entity that,
directly or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, any such "clients," "business
partners," "customers" or "accounts".
10. Termination of Employment.
10.1. Subject to Section 10.2 of this Agreement, the
Corporation shall have the right to terminate the Employee's employment
hereunder at any time and without prior written notice to the Employee upon
the occurrence of any one or more of the following events: (i) the breach by
the Employee of any covenant, promise or agreement of this Agreement; (ii) the
voluntary or involuntary dissolution of the Corporation; (iii) the voluntary
or involuntary liquidation or winding up of the Corporation; (iv) the
disability of the Employee for more than one hundred eighty (180) days in any
12-month period pursuant to Section 6.4 of this Agreement; and (v) for cause,
other than permitted in Section 10.1(i). Upon termination of the Employee's
employment under this Agreement pursuant to this Section 10, neither party
shall thereafter have any further rights, duties or obligations under this
Agreement, except for the Employee's obligations and duties under Sections 7,
8 and 9 hereof, but each party shall remain liable and responsible to the
other for all prior obligations and duties hereunder and for all acts and
omissions of such party, its agents, servants and employees, prior to such
termination.
10.2. Anything contained in Section 10.1 to the contrary
notwithstanding, the Corporation shall not terminate this Agreement and the
Employee's employment under this Agreement pursuant to Section 10.1(i) or (v)
unless the Corporation shall have first given to the Employee 15 days' prior
written notice of such termination which sets forth the grounds of such
termination, and the Employee shall have failed to cure such grounds for
termination within said 15-day period; provided, however, that the foregoing
opportunity to cure shall be limited to no more than two opportunities during
each 12-month period hereunder, commencing upon the effective date of this
Agreement.
8
<PAGE> 9
11. Notices. All notices and other communications required or
permitted to be given by this Agreement shall be in writing and shall be given
and shall be deemed received if and when either hand-delivered and a signed
receipt is given therefor or mailed by registered or certified U.S. mail,
return receipt requested, postage prepaid, and if to the Corporation to:
SecurFone America, Inc.
William Stueber, President
5850 Oberlin Street
San Diego, CA 92121
Fax 619-587-2914
and if to the Employee to:
Derek Davis
5850 Oberlin Street, Suite 220
San Diego, CA 92121
Fax 619-587-2914
or at such other address as either party hereto shall notify the other of in
writing.
12. Miscellaneous.
12.1. This Agreement shall be binding upon and inure to the
benefit of the Corporation, its successors and assigns. This Agreement shall
be binding upon the Employee and his heirs, personal and legal
representatives, and guardians, and shall inure to the benefit of the
Employee. Neither this Agreement nor any part hereof or interest herein shall
be assigned by the Employee.
12.2. The terms and provisions of this Agreement may not be
modified except by written instrument duly executed by each party hereto.
12.3. The use of any gender herein shall be deemed to be or
include the other genders and the neuter and the use of the singular herein
shall be deemed to be and include the plural (and vice versa), wherever
appropriate.
12.4. This Agreement shall be governed by and enforced and
construed in accordance with the laws of the State of Delaware.
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<PAGE> 10
12.5. This Agreement sets forth the entire, integrated
understanding and agreement of the parties hereto with respect to the subject
matter hereof.
12.6. The headings in this Agreement are included for the
convenience of reference and shall be given no effect in the construction of
this Agreement.
12.7. In the event of a breach of this Agreement, the
non-breaching party hereto may maintain an action for specific performance
against the party hereto who is alleged to have breached any of the terms,
conditions, representations, warranties or agreements, herein contained.
Anything contained herein to the contrary notwithstanding, this Section shall
not be construed to limit in any manner whatsoever any other rights or
remedies an aggrieved party may have by virtue of any breach of this
Agreement. Each of the parties hereto shall have the right to waive compliance
with or the fulfillment, satisfaction or enforcement of any warranty,
representation, covenant, promise, agreement or condition herein set forth,
but the waiver by any party of such right shall not be deemed a waiver of
compliance with or fulfillment, satisfaction or enforcement of any other
warranty, representation, covenant, promise, agreement or condition herein set
forth or to seek redress for any breach thereof on any subsequent occasion,
nor shall any such waiver be deemed effective unless in writing and signed by
the party so waiving.
IN WITNESS WHEREOF, the parties have executed, acknowledged, sealed
and delivered this Agreement the day and year first hereinabove set forth.
SECURFONE AMERICA,INC.
ATTEST:
By: /s/ William Stueber II
- --------------------------- ----------------------------------
William Stueber, President
WITNESS:
/s/ Derek Davis
- --------------------------- ----------------------------------
Derek Davis, Employee
10
<PAGE> 1
Exhibit 4.4
RETAINER AGREEMENT
------------------
The parties hereto, SECURFONE AMERICA INCORPORATED (hereinafter SFI) and
Jennifer Griffith, in consideration of the mutual covenants herein contained.
The parties agree herein as follows:
1. Between November 1, 1996 and December 31, 1997, Griffith will
provide, on demand as reasonably required by SFI, consulting services to SFI
concerning matters within Griffith's expertise and germane to SFI business
activities.
2. SFI agrees that it shall compensate Griffith by provision of 2,500
shares of SFI or its option equivalent at such time as SFI release such shares
for the compensation of those individuals likewise providing consulting and
professional services to SFI, but in no event later than February 28, 1998.
3. Griffith agrees that SFI's liability shall be limited to stock or
options as aforesaid, and that SFI makes no representation or warranty as to
there market value or marketability.
4. The services to be provided by Griffith shall be provided at such
time and locations as are convenient to SFI or its officers.
/s/ Jennifer Griffith
--------------------------------------
Jennifer Griffith
/s/ William P. Stueber II
--------------------------------------
William P. Stueber II
Chief Executive Officer for
SECURFONE AMERICA INCORPORATED
<PAGE> 1
Exhibit 4.5
RETAINER AGREEMENT
The parties hereto, SECURFONE AMERICA INCORPORATED (hereinafter SFI) and
MICHAEL R. LEE, in consideration of the mutual covenants herein contained, the
parties agree herein as follows:
1. Between May 22, 1997, and September 30, 1997, LEE will provide, on
demand as reasonably required by SFI, consulting services to SFI concerning
matters within LEE'S expertise and germane to SFI business activities.
2. SFI agrees that it shall compensate LEE by the provision of 24,000
shares of SFI or its option equivalent at such time as SFI release such shares
for the compensation of those individuals likewise providing consulting and
professional services to SFI, but in no event later than February 28, 1998.
3. LEE agrees that SFI's liability shall be limited to stock or options
as aforesaid, and that SFI makes no representation or warranty as to there
market value or marketability.
4. The services to be provided by LEE shall be provided at such times
and locations as are convenient to SFI or its officers.
/s/ Michael R. Lee
----------------------------------
Michael R. Lee
/s/ Steven Wasserman
----------------------------------
Steven Wasserman
Secretary for
SECURFONE AMERICA INCORPORATED
<PAGE> 1
Exhibit 4.6
RETAINER AGREEMENT
------------------
The parties hereto, SECURFONE AMERICA INCORPORATED (hereinafter SFI) and
GREGORY F. LEPORE, ESQ., in consideration of the mutual covenants herein
contained. The parties agree herein as follows:
1. Between February 1, 1997 and April 30, 1997, LEPORE will provide, on
demand as reasonably required by SFI, consulting services to SFI concerning
matters within LEPORE'S expertise and germane to SFI business activities.
2. SFI agrees that it shall compensate LEPORE by the provision of 10,000
shares of SFI or its option equivalent at such time as SFI releases such shares
for the compensation of those individuals likewise providing consulting and
professional services to SFI but in no event later than February 28, 1998.
3. LEPORE agrees that SFI's liability shall be limited to stock or
options as aforesaid, and that SFI makes no representation or warranty as to
there market value or marketability.
4. The services to be provided by LEPORE shall be provided at such times
and locations as are convenient to SFI or its officers.
/s/Gregory F. Lepore, Esquire
-----------------------------
Gregory F. Lepore, Esquire
/s/ William P. Stueber, II
-----------------------------
William P. Stueber, II
Chief Executive Officer for
SECURFONE AMERICA INCORPORATED
<PAGE> 1
Exhibit 4.7
RETAINER AGREEMENT
------------------
The parties hereto, SECURFONE AMERICA INCORPORATED (hereinafter SFI)
and STEFANIE MARUSIAK, in consideration of the mutual covenants herein
contained, the parties agree herein as follows:
1. Between May 22, 1996, and September 30, 1997, MARUSIAK will provide,
on demand as reasonably required by SFI, administrative services to SFI
concerning matters within MARUSIAK'S expertise and germane to SFI business
activities.
2. SFI agrees that it shall compensate MARUSIAK by the provision of
1,000 shares of SFI or its option equivalent at such time as SFI releases such
shares for the compensation of those individuals likewise providing
administrative and professional services to SFI, but in no event later than
February 28, 1998.
3. MARUSIAK agrees that SFI's liability shall be limited to stock or
options as aforesaid, and that SFI makes no representation or warranty as to
there market value or marketability.
4. The services to be provided by MARUSIAK shall be provided at such
times and locations as are convenient to SFI or its officers.
/s/ Stephanie Marusiak
-----------------------------
Stephanie Marusiak
/s/ Michael R. Lee
-----------------------------
Michael R. Lee
Chief Financial Officer for
SECURFONE AMERICA INCORPORATED
<PAGE> 1
Exhibit 4.8
RETAINER AGREEMENT
------------------
The parties hereto, SECURFONE AMERICA INCORPORATED (hereafter SFI) and
AMY J. PIPOLY, in consideration of the mutual covenants herein contained, the
parties agree herein as follows:
1. Between May 22, 1996 and September 30, 1997, PIPOLY will provide, on
demand as reasonable required by SFI, consulting services to SFI concerning
matters within PIPOLY'S expertise and germane to SFI business activities.
2. SFI agrees that is shall compensate PIPOLY by the provision of 2,500
shares of SFI or its option equivalent at such time as SFI releases such shares
for compensation of those individuals likewise providing consulting and
professional services to SFI, but in no event later than February 28, 1998.
3. PIPOLY agrees SFI's liability shall be limited to stock or options
aforesaid, and that SFI makes no representation or warranty as to their market
value or marketability.
4. The services to be provided by PIPOLY shall be provided at such times
and locations as are convenient to SFI or it's officers.
/s/ Amy J. Pipoly
------------------------------
AMY J. PIPOLY
/s/ Michael R. Lee
------------------------------
MICHAEL R. LEE
<PAGE> 1
Exhibit 4.9
AGREEMENT
---------
This Agreement is made and entered into as of July 1, 1996, by and
between SecurFone America, Inc. ("SecurFone") and Steven L. Wasserman
("Wasserman").
In consideration of the mutual promises herein contained the parties
hereby agree as follows:
1. SecurFone engages the services of Wasserman to serve as Secretary
of SecurFone through December 1997. Wasserman will be responsible for
maintaining the corporate records of SecurFone including preparation of
minutes for Board and Executive Committee meetings.
2. SecurFone agrees to compensate Wasserman for his services as
Secretary by issuing 10,000 shares of common stock of SecurFone at such time as
SecurFone is a publicly-traded corporation. SecurFone shall pay all expenses
associated with the registration and issuance of such shares. SecurFone makes
no representation as to the market value or marketability of the common stock
issued as compensation hereunder.
3. SecurFone agrees to pay or reimburse Wasserman for reasonable
travel and entertainment expenses required during the term hereof and in
fulfillment of the secretarial responsibilities described herein.
4. This Agreement shall be governed by the laws of the State of
Delaware.
SECURFONE, AMERICA, INC.
By: /s/ Michael R. Lee
----------------------------------
Its: Treasurer
---------------------------------
/s/ Steven L. Wasserman
----------------------------------
STEVEN L. WASSERMAN
<PAGE> 1
Exhibit 4.10
CONSULTING AGREEMENT
--------------------
As of the last date written below, Material Technology, Inc.,
("Matech") and Robert M. Bernstein ("Consultant") agree that Consultant shall
act as a consultant to Matech on the following terms and conditions:
WHEREAS, the willingness of Matech to enter into the Stock Purchase
Agreement among Montpilier Holdings, Inc., SecurFone America, Inc., Matech, and
Robert M. Bernstein was conditioned on the willingness of Consultant to act as
consultant on the terms in this Agreement; and
WHEREAS, Consultant is willing to act as a consultant as described
below and on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
1. AGREEMENT TO ACT AS CONSULTANT. Effective on the Closing Date of
the Stock Purchase Agreement, Consultant hereby agrees to act as a consultant to
Matech for eighteen months following the Closing (as defined in the Stock
Purchase Agreement). Upon request of Matech's officers or directors, Consultant
shall make himself available for up to fifty (50) hours per calendar quarter to
consult with Matech's officers and directors on matters involving Matech's
business and affairs. Consultant shall be entitled to reasonable notice to
prepare to perform the services requested and to render such services at times
reasonable convenient to Consultant. Moreover, Consultant shall be reimbursed
for all reasonable travel expenses in connection with such services, provided
such expenses are adequately documented.
2. COMPENSATION. On the Closing Date under the Stock Purchase
Agreement, RMB shall be paid $5,000 out of the escrow referred to in such Stock
Purchase Agreement. In addition, for a period of five years from Closing,
Consultant shall be entitled to receive stock options entitling him to purchase
Class A Common Stock of Matech. The number of shares of Matech Class A Common
Stock subject to such options shall be equal to seven per cent (7%) of the sum
of (A) the total number of shares of any class of equity security of Matech
that, during the five years following the Closing, Matech registers with the
Securities Exchange Commission on Form S-8 plus (B) the total number of shares
of any class of equity security of Matech that, during the five years following
Closing, Matech sells under Regulation S of the Securities Act of 1933. The
shares issuable upon exercise of all such options granted to Consultant shall be
registered on Form S-8 within 180 days following the date of grant. In addition,
(i) Consultant's options based on shares registered on Form S-8 shall be granted
to him on the date each such registration statement becomes effective, shall not
be exercisable until one year following the date of grant, and shall be
exercisable for a period of five years following the expiration of such one-year
period and (ii) Consultant's options
<PAGE> 2
PAGE 2
CONSULTING AGREEMENT
based on shares sold under Regulation S shall be granted within twenty (20) days
of any sales under Regulation S and shall grant Consultant the right to purchase
shares on the same terms and conditions as the purchasers under Regulation S,
except that (i) such option shall not be exercisable for a period of one year
following the date of grant; (ii) any restrictions on resale of the Regulation S
shares shall not apply to the shares Consultant receives upon exercising his
options after such one-year period; and (iii) the shares shall be registered on
Form S-8 within 180 days following the date of grant of options to Consultant;
provided that Matech shall not be obligated to file more than two Form S-8
registration statements in any calendar year. Consultant shall pay for shares
purchased upon exercise of such options in full at the time of exercise.
3. NO SET-OFF OR REDUCTION. Matech agrees that the right of Consultant
to receive the compensation set forth in Paragraph 2 above shall not be subject
to reduction or set-off for any reason whatever, including, but not limited to,
any alleged breach of warranties or other obligations under this Agreement or
the Stock Purchase Agreement.
4. REMEDIES OF CONSULTANT. In the event of any breach by Matech of its
obligations to compensate consultant, in addition to any remedies Consultant may
have at law, any and all options previously granted to Consultant shall become
immediately exercisable. In the event that Consultant incurs costs, expenses,
and/or attorneys fees to enforce his rights under this Agreement, Matech shall
reimburse Consultant for any and all such costs, expenses, and/or reasonable
attorneys fees.
5. AUTHORIZATION. This Agreement has been authorized by Matech's
directors prior to Closing and by Matech's replacement directors after the
Closing.
6. CONFIDENTIAL INFORMATION. Consultant will acquire information of a
confidential nature relating to the operation, finances, business relationships,
intellectual property, and trade secrets of Matech. During the term of this
Agreement and for two years following termination of the 18-month term of his
consulting obligation, Consultant will not, without Matech's prior written
consent, use, publish, or disclose or authorize anyone else to use, publish, or
disclose, any confidential information pertaining to Matech or its affiliated
entities, including, without limitation, any information relating to existing or
potential business, customers, trade or industrial practices, plans, costs,
processes, technical or engineering data, or trade secrets; provided, however,
that Consultant shall be prohibited from ever using, publishing, or disclosing
or authorizing anyone else to use, publish, or disclose any confidential
information which constitutes a trade secret under applicable law. The foregoing
notwithstanding, Consultant has no obligation to refrain from using,
<PAGE> 3
PAGE 3
CONSULTING AGREEMENT
publishing, or disclosing any such confidential information which is or
hereafter shall become available to the public otherwise than by Consultant's
use, publication, or disclosure. This prohibition also does not prohibit
Consultant from disclosing confidential information in response to lawful
process compelling disclosure. On the other hand, Consultant shall provide
reasonable notice to Matech of any such process to allow Matech to timely object
to such disclosure.
7. RETURN OF DOCUMENTS. Within five days of termination of the 18-month
consulting period under this Agreement, Consultant shall return to Matech or
destroy all of Matech's papers, documents, and things, including information
stored for use in or with computers and software applicable to Matech's business
and all copies of such papers, documents, and things, which are in Consultant's
possession, custody, or control and Consultant shall certify in writing that he
has complied with this provision.
8. AGREEMENT ON FAIRNESS. Consultant acknowledges that: (i) this
Agreement has been specifically bargained between the parties and reviewed by
Consultant and his counsel and (ii) the covenants made by and the duties imposed
upon Consultant hereby are fair, reasonable, and minimally necessary to protect
the legitimate business interests of Matech, and such covenants and duties will
not place an undue burden upon Consultant's livelihood.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
last date written below.
Date: CONSULTANT
/s/ Robert M. Bernstein 2/18/97
------------------------------------
Robert M. Bernstein
Date: MATERIAL TECHNOLOGY, INC.
By: /s/ Robert M. Bernstein 2/18/97
------------------------------------
Print Name and Title
Robert M. Bernstein, President
<PAGE> 1
Exhibit 4.11
CONSULTING AGREEMENT
BETWEEN
E.B. ADVISORY LIMITED
AND
SECURFONE AMERICA, INC.
This Consulting Agreement (the "Agreement") is made and is effective as
of the 1st day of August, 1996, by and between E.B. Advisory Limited, a Jersey
corporation ("E.B.A."), and SecurFone America, INC., a Delaware corporation
("S.A.I."), with reference to the following facts:
RECITALS:
A. S.A.I. is engaged in the business of providing prepaid cellular
and landline telephone services.
B. E.B.A. has been organized to engage in the business of providing
consulting and technical advice to businesses with respect to
operations throughout the world and, in particular, the United
Kingdom, the European Community, and the Caribbean.
C. S.A.I. wishes to obtain the consulting and advisory services of
E.B.A. to provide advice and assistance in connection with the
location and negotiation of opportunities by which S.A.I. can sell
and install its products and equipment throughout the world.
AGREEMENTS:
Now, therefore, in consideration of the foregoing recitals and of
the mutual covenants and conditions hereinafter set forth, the
parties hereto agree as follow:
1. INDEPENDENT CONTRACTOR RELATIONSHIP
1.1 ENGAGEMENT. S.A.I. hereby engages E.B.A. and E.B.A.
hereby accepts engagement by S.A.I., subject to all of
the terms and conditions set forth in this consulting
agreement, during the term specified in Section 3, below,
of this
<PAGE> 2
Consulting Agreement.
1.2 RELATIONSHIP CREATED. For purposes of this Consulting
Agreement, the
1.3 relationship created between E.B.A. and S.A.I. shall be
that of independent contractor, and not that of
employer/employee, principal/agent, partner, joint
venturers, vendor/vender, or otherwise. It is understood
that each party to this Consulting Agreement is placing
its trust and confidence in each other's best interests
and thus create a reciprocal confidential relationship.
2. Duties of E.B.A.
2.1 GENERAL DUTIES. E.B.A. shall do and perform all services,
acts or things necessary or advisable to advise counsel
and assist S.A.I. in locating business opportunities
throughout the world for the sale of the products and
services of S.A. I., subject always to the policy set by
the Board of Directors of S.A.I. Notwithstanding any
other provision of this Consulting Agreement, E.B.A.
shall not have the authority to sign or to enter into any
contracts on behalf of S.A.I. without the prior written
approval of the board of directors of S.A.I. Specifically
E.B.A. shall:
l. Provide feasibility analysis to SecurFone America
regarding potential of licensing technology and potential
licensees.
2. Create specific license program and platform for
SecurFone America to benefit from technology it has
developed.
3. Assist in determination of licensee valuations and
payment options.
2.2 DEVOTION OF TIME. E.B.A. shall devote such productive
time, ability, and attention to the business of S.A.I. as
E.B.A. shall determine in its sole discretion.
<PAGE> 3
During the term hereof, E.B.A. may devote time to other
business interests, including without limitation, other
consulting clients, provided however, that E.B.A. shall
not act on behalf of any other person firm or company
which is engaged, directly or indirectly in a business
which competes with the business of S.A.I.
2.3 LIMITATION ON PLACE OF SERVICES. It is expressly
understood and agreed that E.B.S., shall not render any
services pursuant to this Consulting Agreement within the
United States of America or within any possessions or
territories thereof.
3. TERMS AND TERMINATION
3.1 TERM. The initial term of this Consulting Agreement shall
be for a period of two (2) years, commencing as of the
effective date of this Consulting Agreement and ending on
August 31, 1998, unless sooner terminated pursuant to the
provisions of this Section 3. Unless otherwise
terminated, this Consulting Agreement may be extended
from year to year by agreement of the parties.
3.2 TERMINATION BY E.B.A. E.B.A. may terminate this
Consulting Agreement with or without cause at any time
upon ten (10) days written notice to S.A.I.
4. COMPENSATION OF E.B.A.
As compensation for services to be rendered by E.B.A.
hereunder, E.B.A. shall receive a consulting fee (the "Fee")
during the term of this Consulting Agreement in the amount of SEE
ATTACHED SCHEDULE, plus reimbursement of any out-of-pocket
expenses reasonably incurred by E.B.A. in carrying out its
services hereunder which are approved in advance by the board of
directors of S.A.I. Any sales or value added taxes payable with
respect to such compensation shall be borne entirely by E.B.A. Any
exchange control or other permits or approvals necessary to carry
out the payment terms of this Consulting Agreement shall be
obtained by E.B.A. at its
<PAGE> 4
own expense.
5. RELATIONSHIP OF PARTIES
5.1 E.B.A.'S EXPENSES. During the term of this Consulting
Agreement, E.B.A. shall be an independent contractor with
respect to S.A.I. Accordingly, except as provided herein,
E.B.A. shall hear all of its own expenses in performing
its services within British Virgin Islands pursuant to
this Consulting Agreement, including, without limitation,
automobile, telephone, travel within Europe and the
United Kingdom, office telephone business promotion
within Europe and the United Kingdom, entertainment
within Europe and the United Kingdom, taxes, insurance,
and legal and accounting expenses.
5.2. REIMBURSED EXPENSES. Notwithstanding the provisions of
Paragraph 5.1, immediately above, S.A.I. shall reimburse
E.B.A. for all reasonable travel, business promotion and
entertainment expenses incurred by E. B.A. outside of
Europe and the United Kingdom if and to the extent that
such expenses are reasonably calculated to further the
business interests of S.A.I. and are approved in advance
by the board of directors of S.A.I.
5.3. INDEPENDENCE OF PARTIES. No agency, employment,
partnership or joint venture is intended to be created by
this Consulting Agreement. Each party hereto shall
refrain from making any representation tending to create
an apparent agency, employment, partnership or joint
venture relationship between the parties.
6. GENERAL PROVISIONS
6.1 SEVERABILITY. The invalidity of any provision of this
Consulting Agreement, as determined by a court of
competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
6.2 WAIVERS AND CONSENT. No waiver of any provision hereof
shall be deemed a waiver of any other provision hereof,
or of any subsequent breach of the same or any other
provision. Consent to or approval by either party of any
action shall not be deemed to render
<PAGE> 5
unnecessary the obtaining of such party's consent to or
approval of any subsequent acts.
6.3 ENTIRE AGREEMENT; AMENDMENT. This Consulting Agreement
constitutes the entire agreement between the parties
pertaining to the subject matter contained herein and
supersedes all prior negotiation, agreements, statements
of understanding, presentation, and proposals of the
parties. No supplement, modification, or amendment to
this consulting Agreement shall be binding unless
executed in writing by E.B.A. and S.A.I.
6.4 NOTICES. Any written notice, demand, request or other
communication required or permitted to be given hereunder
shall be in writing and may be served personally, by
telecopier, or by registered mail, postage repaid, and
return receipt request, addressed as follow:
If to E.B.A.: E.B. Advisory Limited
P.O. Box 544
Britannia Place
Bath Street
St. Helier, Jersey
Channel Island
If to S.A.I.: SecurFone America, Inc.
5850 Oberlin Drive, Suite 220
San Diego, CA 92121
United States of America
6.5 GOVERNING LAW. This Consulting Agreement shall be
governed by, and construed in accordance with, the laws
of the Jersey.
6.6 ARBITRATION; ATTORNEY'S FEES. Any dispute or conflict
arising out of or related to this Consulting Agreement
shall be submitted to binding arbitration before a single
retired judge of the Jersey Royal Court appointed by the
Clerk of the Royal Court or an ex parts motion by either
party. Said arbitration shall be conducted in St. Helier,
Jersey, and the parties shall be bound by the results of
such arbitration. Further, the prevailing party in such
arbitration or in any other legal proceeding arising out
of or resulting from this Consulting Agreement
<PAGE> 6
shall be entitled to recover its costs and fees,
including reasonable attorney's fees, from the other
party.
6.7 SURVIVAL OF PROVISIONS. Each of the covenants,
agreements, representations and warranties contained
herein shall, to the extent applicable, survive the
termination of this Consulting Agreement.
6.8 AUTHORIZED AGENT. The persons executing this Consulting
Agreement on behalf of E.B.S. and S.A.I. hereby represent
and warrant to each other that they are the duly
authorized representatives of their respective entities
and that each has taken all necessary corporate action to
ratify and approve the execution of this Consulting
Agreement in accordance with its terms.
6.9 ADDITIONAL DOCUMENTS. Each of the parties to this
Consulting Agreement agrees to provide such additional
duly executed agreements, documents and instruments as
may be reasonably requested by the other party in order
to carry out the purposes and intent of this consulting
Agreement. Without limiting the generality of the
foregoing, E.B.A. shall at the request of S.A.I., provide
to S.A.I. such documents as S.A.I. withholding taxes upon
any payments from S.A.I. to E.B.A. pursuant to this
Consulting Agreement.
In Witness Whereof, the parties hereto have executed this Consulting Agreement,
consisting of 5 pages, including this page, as of the date set forth above.
E.B.A. E.B. Advisory Limited, a Jersey Corporation
By: /s/ Paul A. Jackson Director
-----------------------------------------
S.A.I. SecurFone America, INC., a Delaware corporation
By: /s/ Michael Lee
-----------------------------------------
Michael Lee, CFO
<PAGE> 7
SCHEDULE "A"
Compensation as expressed in % of SecurFone America Inc. issued stock.
<TABLE>
<CAPTION>
SecurFone America Inc. license income E.B.A. compensation
------------------------------------- -------------------
<S> <C>
$250,000 2.5%
$500,000 5.0%
$1,000,000 10.0%
</TABLE>
<PAGE> 1
Exhibit 4.12
CONSULTING AGREEMENT
--------------------
THIS CONSULTING AGREEMENT (the "Agreement") entered into this 11th day
of November, 1996, by and between SECURFONE AMERICA, INC., a Delaware
corporation (hereinafter referred to as the "Company"), and AL JUGO, an
individual ("Consultant").
RECITALS:
WHEREAS, the Company is engaged in the wireless communications industry
and in the debit or prepaid cellular business industry (the "Company Business");
WHEREAS, Consultant has experience, knowledge and expertise related to
one or more facets of the Company Business;
WHEREAS, the Company desires to engage Consultant to perform various
consulting services as an independent contractor;
WHEREAS, Consultant has indicated to the Company a desire and
willingness to undertake an engagement as a consultant for the Company, upon the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants, promises and representations contained herein, the parties
hereby agree as follows:
1. ENGAGEMENT. The Company does hereby engage Consultant, and
Consultant does hereby accept the engagement, to use Consultant's best efforts
in the furtherance of the following assignments: (i) to oversee network design
and implementation, (ii) to oversee indirect and direct sales, and (iii) to
serve as a liaison between the Company and carriers.
2. DUTIES. Consultant's duties hereunder shall be to engage in such
activities as will most efficiently accomplish the engagement described in
paragraph 1 above.
3. TERM. The term of this Agreement shall extend from October 15, 1996
through December 31, 1996.
4. COMPENSATION. The Company agrees to pay, as full compensation for
Consultant's labors, efforts, services, covenants and agreements provided for
herein, including any covenants of confidentiality and noncompetition,
consulting fees at the rate of Eight Thousand Five Hundred Dollars ($8,500) per
month during the term.
5. INDEPENDENT CONTRACTOR.
(a) The parties mutually acknowledge that Consultant is not an
employee of the Company for any purpose whatsoever, but is and shall be at all
times an independent
<PAGE> 2
contractor. The Company shall not have control over Consultant as to the
location of Consultant's place of business, the employment of its personnel, or
the manner or means of its performance of its duties and responsibilities
hereunder (except as specifically provided in this Agreement).
(b) As an independent contractor, all overhead expenses for
the operation of Consultant's activities, including, without limitation,
insurance, employees (including the withholding and payment of all applicable
taxes with respect to employees), office rent, supplies, lights, stenographic
and clerical assistance, telephone, facsimile and telegrams, agency licenses and
taxes, etc. shall be borne by Consultant. The Company will provide the
Consultant with a cellular phone and will also reimburse the Consultant for any
other expenses incurred by the Consultant when conducting business on behalf of
the Company.
(c) Consultant is not authorized to enter into any agreements
in the name of the Company.
6. COVENANTS OF CONSULTANT. Consultant covenants and agrees as follows:
(a) Employee agrees to retain in strictest confidence, and not
use for the benefit of himself or others (except in connection with the business
and affairs of the Company) any and all information learned by Consultant in
connection with his employment at the Company, including without limitation,
information which is proprietary to the Company, is retained in confidence by
the Company, is treated as confidential information by the Company, constitutes
a trade secret of the Company, and/or which, by its nature, is sufficiently
sensitive that it should be deemed to be confidential.
(b) Consultant agrees that for a period of two (2) years
following the termination of his engagement hereunder, he will not, directly or
indirectly, contact or solicit any person or entity which was a customer of the
Company with which he worked during his engagement, or which Consultant
solicited on behalf of the Company, for the purpose of inducing such person or
entity to become a customer of a cellular/wireless or paging provider which
competes with the Company. Further, Consultant agrees that he will not provide
information to third parties which will enable them to accomplish indirectly
what the terms of this Agreement prohibit Consultant from doing directly.
(c) Consultant further agrees that, to the extent the Company
has, in the ordinary course of its business, entered into contracts with other
entities which subject the Company to non-disclosure requirements and covenants
not to compete which provide, by their terms, an intent to bind employees of the
Company, Consultant shall honor such provisions to the extent that they are
applicable to employees of the Company, so long as and to the extent that he has
knowledge of their existence.
(d) It is understood that the Company is a part of a group of
"affiliated" companies and that from time to time Consultant may perform
services for these affiliated companies and be compensated therefor. To the
extent Consultant performs such sevices for
-2-
<PAGE> 3
affiliated companies, the rights of Consultant and the affiliated company shall
be subject to the terms and provisions of this Agreement, unless a separate
written agreement exists between the affiliated company and Consultant with
respect to such work.
7. TERMINATION.
(a) TERMINATION BY EITHER PARTY. Either party shall have the
right to terminate this Agreement if the other party is in breach or in default
in the performance of any of the terms, obligations, covenants, representations
or warranties under this Agreement which breach or default has not been waived
in writing by the non-defaulting party.
(b) EFFECT of TERMINATION. Upon the expiration of this
Agreement, or its termination for any reason: (i) Consultant shall immediately
thereupon cease and desist from acting on behalf of the Company in any manner
whatsoever; (ii) Consultant shall return to the Company any documents, forms,
written information, or other data provided by the Company to Consultant during
the course and operation of this Agreement, including both Confidential
Information and information which is not confidential; and (iii) the termination
shall not affect any financial obligations of either party to the other with
respect to obligations incurred prior to the date of termination.
8. NON-ASSIGNMENT. This Agreement is a personal services
contract and it is expressly agreed that the rights and interests of
Consultant and the Company hereunder may not be sold, transferred, assigned,
pledged or hypothecated; provided, however that the Company may assign its
rights and obligation hereunder to its parent company, wholly-owned subsidiary
or affiliate of the Company, whether presently existing or formed after the
date hereof.
9. BINDING EFFECT. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, their heirs, agents and successors.
10. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement, but this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision had never been contained herein.
11. REMEDIES CUMULATIVE; NO WAIVER. All remedies specified
herein or otherwise available shall be cumulative and in addition to any and
every other remedy provided hereunder or now or hereafter available. No waiver
or failure (intentional or unintentional) to act with respect to any breach or
default hereunder shall be deemed to be a waiver with respect to any subsequent
breach or default, whether of a similar or different nature.
12. NOTICES. Whenever written notice is required herein, such
notice shall be given by registered or certified mail, return receipt
requested, as follows:
-3-
<PAGE> 4
(a) As to the Company: SecurFone America, Inc.
Attn: President
14 East Main Street
Somerville, NJ 08876
(b) As to Consultant: Mr. Al Jugo
428 Sevilla Avenue
Coral Gables, FL 33134
(c) Nothing herein shall preclude or prevent the parties from
designating any additional or other persons or entities to whom notice is to be
given, provided written notification of such designation is first given to the
other party in the manner described in this paragraph.
13. GOVERNING LAW. This Agreement and all provisions hereunder
shall be governed by and construed in accordance with the substantive law of
the State of Delaware and shall, for all purposes, be deemed to have been
entered into in the State of Delaware.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
15. AMENDMENT. This Agreement may not be changed orally, but may
be amended, superseded, canceled or modified, and the terms hereof may be
waived, only by an instrument in writing signed by each of the parties, or, in
the case of a waiver, signed by the party against whom enforcement of such
waiver is being sought.
16. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the Company and Consultant with respect
to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, with respect thereof.
IN WITNESS WHEREOF, the parties have hereunto executed this Agreement
in duplicate original on the date and year first set forth above.
SECURFONE AMERICA, INC.
By: /s/ William P. Steuber II
------------------------------
Its: CEO / President
------------------------------
/s/ Alfonso Jugo
AL JUGO
-4-
<PAGE> 1
Exhibit 4.13
CONSULTING AGREEMENT
BETWEEN
SECURFONE AMERICA, INC.
AND
TERRI A. WELLES
THIS CONSULTING AGREEMENT (the "Agreement") is made and is effective as
of October 1, 1997, by and between SECURFONE AMERICA, INC., a Delaware
corporation (the "Corporation") and TERRI A. WELLES, an individual (the
"Consultant") with reference to the following facts:
R E C I T A L S
A. The Corporation is engaged in the business of providing prepaid
cellular and landline telephone services.
B. The Consultant has developed significant skill, expertise and
goodwill in the field of media relations and marketing through the internet.
C. The Corporation desires to retain the Consultant in the capacity of
independent consultant on behalf of the Corporation to provide advisory and
consulting services to the Corporation.
D. The Consultant desires to accept such arrangement with the
Corporation in such capacity and is willing to render such services to the
Corporation, subject to the terms and conditions set forth herein.
E. The Consultant has represented and warranted to the Corporation that
the Consultant is free to enter into this Agreement and to perform all of the
duties and obligations of the Consultant pursuant hereto.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual covenants and conditions hereinafter set forth, the parties hereto agree
as follows:
1. INDEPENDENT CONTRACTOR RELATIONSHIP
1.1 ENGAGEMENT. The Corporation hereby engages the Consultant, and the
Consultant hereby accepts engagement with the
-- 1 --
<PAGE> 2
Corporation, subject to all of the terms and conditions set forth in this
Agreement, during the term specified in Section 3, below, of this Agreement.
1.2 RELATIONSHIP CREATED. For purposes of this Agreement, the
relationship created between the Corporation and the Consultant shall be that of
independent contractor, and not that of employer/employee, principal/agent,
partner, joint venturers, vendor/vender, or otherwise. It is understood that
each party to this Agreement is placing its trust and confidence in the other to
perform all duties contained herein and to act in each other's best interests
and thus create a reciprocal confidential relationship.
2. DUTIES OF THE CONSULTANT
2.1 GENERAL DUTIES. The Consultant shall do and perform all services,
acts or things necessary or advisable to assist the media relations and internet
advertising activities of the Corporation, subject always to the policy set by
the Board of Directors and the President of the Corporation. In particular, the
duties of the Consultant shall include the following:
(a) The Consultant shall advise the Corporation with respect
to its relations with the media, for advertising, marketing and public
relations purposes;
(b) The Consultant shall, at such times and in such manner as
shall be determined by the Corporation, appear on behalf of the
Corporation and shall act on behalf of the Corporation as a media
representative and spokesperson of the Corporation, and, in such
capacity, the Consultant shall permit the Corporation to use the name
and likeness of the Consultant for public relations purposes (provided
however, that the Corporation shall not be entitled to use the name or
likeness of the Consultant for advertising or marketing purposes
without the consent of the Consultant);
(c) The Consultant shall assist the Corporation in
establishing, maintaining and exploiting a web site on the internet;
(d) The Consultant shall utilize her best efforts to develop
new business for the Corporation;
(e) The Consultant shall advise the management of the
Corporation of any breakdown or potential breakdown in relations with
the media and shall attempt to ensure that corrective action is taken
by the Corporation; and
-- 2 --
<PAGE> 3
(f) The Consultant shall NOT enter into any contracts on
behalf of the Corporation pursuant to which the Corporation shall be
obligated to pay any money to any third party without the prior written
approval of the Corporation.
2.2 DEVOTION OF TIME. The Consultant shall devote such productive time,
ability, and attention to the business of the Corporation as the Consultant
shall determine in her sole discretion. During the term hereof, the Consultant
may devote time to other business interests, provided however, that the
Consultant shall not cause or permit any customer or account of the Corporation
to be solicited for or on behalf of any other person engaged in competition with
the Corporation.
2.3 ADHERENCE TO RULES. The Consultant at all times during the term of
this Agreement and in the performance her duties pursuant to this Agreement
shall strictly adhere to and obey all of the rules and regulations of the
Corporation now in effect or subsequently modified governing the conduct of
representatives of the Corporation. Without limiting the generality of the
foregoing, the Consultant expressly represents and warrants to the Corporation
that the Consultant shall not engage in any activity, arrangement or transaction
which violates any provision of Federal, State or local law.
2.4 LOYAL PERFORMANCE. The Consultant agrees that, to the best of her
ability and experience, she will at all times loyally and conscientiously
perform all the duties and obligations either expressly or implicitly required
of her by the terms of this Agreement.
3. TERM AND TERMINATION
3.1 TERM. The term of this Agreement shall be for a period of one (1)
year, provided that this Agreement may be terminated at any time by the
Corporation or by the Consultant on written notice to the other, with or without
cause.
3.2 DUTIES UPON TERMINATION OF THIS AGREEMENT. Upon termination of this
Agreement by either party:
(a) Neither party shall be released or discharged from any
obligation, debt or liability which has previously accrued and remains
to be performed as of the date of such termination;
(b) All compensation (as defined in Paragraph 4.1, below, of
this Agreement), paid to the Consultant shall remain the property of
the Consultant without any refund, proration or set-off; and
-- 3 --
<PAGE> 4
(c) The Consultant shall return to the Corporation any and all
physical embodiments of the trade secrets of the Corporation,
including, but not limited to, any and all Information (as defined in
Paragraph 6.1 below), which is in the possession of the Consultant or
any third party to whom the Consultant have delivered such physical
embodiment.
4. COMPENSATION OF THE CONSULTANT
4.1 IN GENERAL. As compensation for the services to be
rendered by the Consultant hereunder, the Corporation shall issue and deliver
to the Consultant TEN THOUSAND (10,000) fully paid and non-assessable shares of
common capital stock (the "Shares") of the Corporation.
4.2 RESTRICTIONS ON THE SHARES. The Consultant
acknowledges and agrees that: (i) the Shares, when issued by the
Corporation, shall be subject to restrictions and limitations on
transferability of the Shares pursuant to Federal and State securities laws;
and (ii) the Consultant shall not sell, assign, transfer, hypothecate or convey
the Shares without first complying with all applicable Federal and State
securities laws.
4.3 VALUATION OF THE SHARES. The Consultant
acknowledges and agrees that the Corporation has made no representations
or warranties to the Consultant with respect to the current value of the Shares
or with respect to any possible future value of the Shares. The Consultant
further acknowledges and agrees that the Shares represent a speculative
investment and that, in the event that the Shares decline in value, the
Corporation (including, without limitation, its officers, directors, employees,
shareholders, agents and representatives) shall have no obligation to pay any
further or additional compensation to the Consultant pursuant to this
Agreement.
5. RELATIONSHIP OF PARTIES
5.1 CONTRACTOR'S EXPENSES. During the term of this
Agreement, the Consultant shall be an independent contractor with respect to
the Corporation and shall not be an employee of the Corporation. Accordingly,
the Consultant shall bear all of her own expenses in performing her services
pursuant to this Agreement, including, without limitation, automobile,
telephone, travel, office, telephone, business promotion, entertainment, taxes,
insurance, and legal and accounting expenses. The Consultant shall not be
entitled to any of the benefits provided by the Corporation to its employees,
and the Consultant specifically waives, and agrees to indemnify and hold
harmless the Corporation against, any claim including, without limitation,
health or life insurance, vacation pay, sick pay, retirement or pension
benefits, Social Security contributions, workers'
-- 4 --
<PAGE> 5
compensation insurance, state disability insurance, F.I.C.A. or F.U.T.A. tax
payments, reimbursement of business related expenses, welfare and pension
benefits and obligations of the Corporation under the Employee Retirement Income
Security Act of 1974, or other benefits of any kind customarily afforded to an
employee. The Consultant acknowledges that she is aware of her obligations to
pay payroll, self-employment, income, license, franchise and other taxes, and
the Consultant agrees to pay all such taxes as required by law and to indemnify
and hold harmless the Corporation from and against any claim, expense, loss,
liability or damage relating thereto.
5.2 INDEPENDENCE OF PARTIES. No agency, employment,
partnership or joint venture is intended to be created by this Agreement. Each
party hereto shall refrain from making any representation tending to create an
apparent agency, employment, partnership or joint venture relationship between
the parties. Neither the Consultant nor any of her employees, agents or
subcontractors shall have any claim against the Corporation for any
compensation or remuneration except as otherwise provided in paragraph 4.1,
above of this Agreement.
6. PROPRIETARY INTERESTS AND RIGHTS OF THE CORPORATION
6.1 TRADE SECRETS AND CONFIDENTIAL INFORMATION. Upon
termination of his Agreement by either party for any reason whatsoever (or for
no reason), the Consultant shall immediately surrender and deliver to the
Corporation all property belonging to the Corporation (excluding the Shares,
which shall constitute the property of the Consultant), including, without
limitation, policies, procedures, operating manuals, business practices, forms,
contracts, customer lists, pricing schedules and other information which will
be used in operating the Corporation's business and which are a trade secret
nature or confidential information (collectively, the "Information"), it being
understood by the Consultant that the Information and any documents or
instruments evidencing the Information are and have always been the exclusive
property of the Corporation and that the Consultant shall not make or use any
copies thereof.
6.2 REMEDIES FOR BREACH. The Consultant agrees that the
remedy at law for any breach of the foregoing Paragraph 6.1 will be inadequate,
and that the Corporation shall be entitled, in addition to any other remedies
it may have under this Agreement or at law, to injunctive and other equitable
relief against the Consultant for any such breach.
-- 5 --
<PAGE> 6
7. REPRESENTATIONS OF CONTRACTOR
7.1 REPRESENTATIONS AND WARRANTIES OF CONTRACTOR. The Consultant
represents and warrants to the Corporation as follows:
(a) The Consultant has all right, power and authority to enter
into this Agreement and to perform all of her obligations pursuant
hereto without the consent or approval of any other person.
(b) The Consultant is not subject to or a party to any
covenant or agreement not to compete with any third party in connection
with the business of the Corporation or to refrain from soliciting or
servicing any business in connection with such business.
(c) In performing her obligations pursuant to this Agreement,
the Consultant will not be violating the terms of any agreement,
understanding, covenant, obligation, law, rule or undertaking, whether
oral or written, express or implied, to which the Consultant is
subject.
(d) In performing her obligations pursuant to this Agreement,
the Consultant shall not knowingly utilize or exploit in any way any
policies, procedures, operating manuals, business practices, forms,
contracts, customer lists, pricing schedules or similar property
belonging to any other person, firm or entity without the express
written consent of such other person, firm or entity.
7.2 REPRESENTATIONS TO SURVIVE. The representations and warranties set
forth in this Section 7 shall be true and correct as of the date of this
Agreement and throughout the entire term of this Agreement and shall survive
termination of this Agreement. All of the representations and warranties set
forth in this Section 7 have been made by the Consultant after conferring with
legal counsel of her choice.
8. GENERAL PROVISIONS
8.1 SEVERABILITY. The invalidity of any provision of this Agreement, as
determined by a Court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
8.2 WAIVERS AND CONSENT. No waiver of any provision hereof shall be
deemed a waiver of any other provision hereof, or of any subsequent breach of
the same or any other provision. Consent to or approval by either party of any
action shall not be deemed to
-- 6 --
<PAGE> 7
render unnecessary the obtaining of such party's consent to or approval of any
subsequent acts.
8.3 HEADINGS. The headings of Sections, paragraphs and subparagraphs in
this Agreement are for convenience and reference only, and they in no way
define, limit, or describe the scope or intent of this Agreement or of the
provisions of such Sections, paragraphs or subparagraphs.
8.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter contained herein
and supersedes all prior negotiations, agreements, statements of understanding,
presentations, and proposals of the parties. No supplement, modification, or
amendment to this Agreement shall be binding unless executed in writing by the
Corporation and the Consultant. The Consultant acknowledges that she has been
advised by independent counsel of her choice prior to entering into this
Agreement.
8.5 NOTICES. Any written notice, demand, request or other communication
required or permitted to be given hereunder shall be in writing and may be
served personally or by registered mail, postage prepaid, and return receipt
request, addressed as follows:
IF TO THE CORPORATION: William Stueber, President
Securfone America, Inc.
5850 Oberlin Drive, Suite 220
San Diego, CA 92121
IF TO THE CONSULTANT: Ms. Terri A. Welles
12992 Carmel Creek Road #163
San Diego, CA 92130-2132
or to such other address as such party may have advised the other parties to
this Agreement in writing. Any such notice shall be deemed to have been given as
of the date so delivered, if delivered personally, or as of the third (3RD)
business day following the date of deposit in the United States mail.
8.6 ASSIGNABILITY; BINDING EFFECT. The Consultant shall not be entitled
to delegate any of her duties hereunder without the prior written consent of the
Corporation, and any attempted delegation in violation hereof shall be void and
ineffectual. This Agreement shall bind and inure to the parties, their personal
representatives, successors and permitted assigns.
8.7 ARBITRATION. The parties hereby agree to use their best efforts to
resolve any differences that may arise pursuant to the performance of their
obligations under this Agreement. In the event that any such differences cannot
be resolved, the
--7--
<PAGE> 8
subject matter of such dispute between the parties shall be submitted to final
and binding arbitration by the American Arbitration Association in San Diego
County, State of California, in accordance with the commercial rules then
existing of the American Arbitration Association. In any such arbitration
proceeding, the parties shall have the same rights of discovery as they would
have pursuant to the California Civil Discovery Act as if an action were filed
in the California Superior Court. Notwithstanding any provision to the contrary
set forth herein, the Corporation shall be entitled to seek injunctive relief
against the Consultant from a court of competent jurisdiction if the Consultant
violates or attempts to violate any of the covenants, conditions, terms and
provisions of this Agreement.
8.8 ATTORNEYS' FEES. If either party brings an arbitration proceeding
or an action for judicial review or enforcement of the arbitration proceedings,
award or decision, or of this Agreement, the prevailing party in any such
arbitration or action, on trial and/or appeal, shall be entitled to its
reasonable attorneys' fees to be paid by the non-prevailing party as fixed by
the arbitrator or the court, as the case may be.
8.8 FURTHER ASSURANCES. Each of the parties agrees to execute,
acknowledge and deliver such further instruments and documents and to do all
such further acts as may be necessary and proper to carry out and effectuate the
terms of this Agreement.
8.9 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original but all of which taken together shall
constitute but one and the same instrument which may be sufficiently evidenced
by one counterpart signed by the party who is to be charged with it.
8.10 PRONOUNS, PLURALITY. All pronouns and any variation thereof shall
be deemed to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the person or persons, entity or entities, may require. As used
herein, the singular shall constitute the plural and the plural shall constitute
the singular where appropriate.
8.11 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California.
8.12 AUTHORIZED SIGNATORY. The person executing this Agreement on
behalf of the Corporation hereby represents and warrants to the Consultant that
he is the duly authorized representative of the Corporation and that the
Corporation has taken all necessary corporate action to ratify and approve the
execution of this Agreement in accordance with its terms.
-- 8 --
<PAGE> 9
8.13 SURVIVAL OF PROVISIONS. Each of the covenants, agreements,
representations and warranties contained herein shall, to the extent applicable,
survive the termination of this Agreement.
8.14 INTERPRETATION OF AGREEMENT. This Agreement shall be interpreted
as if it were prepared by both of the parties hereto and no rule of construction
shall be applied with respect to either party as the preparer of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
consisting of 9 pages, including this page, as of the date set forth at the
beginning of this Agreement.
THE CORPORATION: SECURFONE AMERICA, INC.,
a Delaware corporation
By: /S/ WILLIAM STUEBER
----------------------------
William Stueber, President
THE CONSULTANT:
/S/ TERRI WELLES
-------------------------------
TERRI A. WELLES
-- 9 --
<PAGE> 1
Exhibit 4.14
DILL DILL CARR STONBRAKER & HUTCHINGS
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
- -------------------------------------------------------------------------------
Daniel W. Carr Leslie Block Kaye*
John J. Coates Fay M. Matsukage**
H. Alan Dill Casey Paison
Robert A. Dill Jon Stonbraker
Thomas M. Dunn Craig A. Stoner
John A. Hutchings Patrick D. Tooley
-------
Lori Ann Y. Fujioka
of Counsel
July 11, 1997 * Also licensed in Arizona and New York
**Also licensed in Nevada
SecurFone America, Inc.
William P. Stueber II
14 East Main Street
Somerville, NJ 08876
Dear Bill:
This letter will serve, with your consent, as a memorandum of our agreement
with respect to the fee arrangement for our representation of SecurFone
America, Inc. (the "Client") and Dill, Dill, Carr, Stonbraker & Hutchings,
P.C. relative to corporate and general business matter of the Client.
My hourly rate is $250 per hour, with respect to the time that I spend on such
matters. Time expended by other partners of the Firm will also be billed at
the rate of $225 per hour. In addition, any time expended by associates of the
Firm will be billed to you at the rate of $175 per hour. Any time expended by
law clerks and paralegals will be billed to you at the rate of $75 per hour.
All such fees are subject to increase should Dill, Dill, Carr, Stonbraker &
Hutchings adopt a general increase in its fees. However, such increase shall
be subject to your prior written approval.
In the event that any travel time is required in connection with our
representation, such travel time will also be billed accordingly. In addition,
any out-of-pocket costs associated with this matter, including such items as
filing fees, investigation fees, petitioning fees, fax charges, expedited
mailing or messenger service, or computer research time billed to the Firm,
will also be charged to you.
The costs and time mentioned above will be billed on a monthly basis. All
billings will be paid within twenty (20) days of receipt. Failure to timely
pay any billing shall result in our stopping all work in progress.
- --------------------------------------------------------------------------------
455 SHERMAN STREET, SUITE 300 / DENVER, COLORADO 80203 / FAX (303)777-3823 /
(303) 777-3737 E-mail: [email protected]
<PAGE> 2
We agree that the Firm may withdraw as your attorneys and terminate this
agreement for any just reason by notice in writing. We agree that reasons for
such termination include the Client's failure to pay the Firm's fees or
expenses within twenty (20) days of the transmission of any bill, the Client's
failure to cooperate with the Firm, as well as any action or request by the
Client which would require the Firm to act in an unethical manner.
The Firm shall not accept service of any nature whatsoever without the written
consent of the party sought to be served.
If you accept this agreement, please be so kind as to sign the enclosed copy
of this letter, and return it to me in the envelope which is also enclosed for
your convenience.
In the event that you have any questions or problems concerning the fee
arrangement or there is any other matter associated with the case which I have
failed to cover to date, please do not hesitate to contact outside counsel or
myself at your convenience.
Very truly yours,
DILL, DILL, CARR, STONBRAKER & HUTCHINGS
A Professional Corporation
By: /S/ JOHN A. HUTCHINGS
John A. Hutchings
JAH:np
enc.
APPROVED AND AGREED UPON THE FOREGOING TERMS AND CONDITIONS:
Client: SECURFONE AMERICA, INC.
By:/s/ WILLIAM P. STUEBER, II Date: 10/15/97
-------------------------------- -----------------------------
William P. Stueber, II
President
<PAGE> 1
Exhibit 4.15
DILL DILL CARR STONBRAKER & HUTCHINGS
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
- ------------------------------------------------------------------------------
Daniel W. Carr Leslie Block Kaye*
John J. Coates Fay M. Matsukage**
H. Alan Dill Casey Paison
Robert A. Dill Jon Stonbraker
Thomas M. Dunn Craig A. Stoner
John A. Hutchings Patrick D. Tooley
-------
Lori Ann Y. Fujioka
of Counsel
October 13, 1997 * Also licensed in Arizona and New York
**Also licensed in Nevada
William P. Stueber II
President
SecurFone America, Inc.
14 East Main Street
Somerville, NJ 08876
RE: ADDENDUM TO FEE AGREEMENT
Dear Bill:
This letter will serve, with your consent, as an addendum to the fee
arrangement contained in our letter dated July 11, 1997. SecurFone America,
Inc. (the "Client") agrees to issue to Dill Dill Carr Stonbraker & Hutchings,
P.C. (the "Firm") 10,000 shares of common stock of SecurFone America, Inc.,
and the Firm agrees to accept 10,000 shares of common stock of the Client in
exchange for legal services provided by the Firm to the Client.
All other terms of the fee arrangement contained in the July 11, 1997
agreement shall remain unchanged.
Very truly yours,
DILL DILL CARR STONBRAKER & HUTCHINGS,
a Professional Corporation
By: /s/ JOHN A. HUTCHINGS
---------------------------------
John A. Hutchings
JAH:vkd
Enclosures
- -------------------------------------------------------------------------------
455 SHERMAN STREET, SUITE 300 / DENVER, COLORADO 80203 / FAX (303) 777-3823 /
(303) 777-3737 E-mail: [email protected]
<PAGE> 2
William P. Stueber II
October 16, 1997
Page 2
APPROVED AND AGREED UPON THE FOREGOING TERMS AND CONDITIONS
CLIENT:
SECURFONE AMERICA, INC.
By:/s/ WILLIAM P. STUEBER, II
------------------------------------
William P. Stueber, II
President
<PAGE> 1
Exhibit 4.16
KOHRMAN JACKSON & KRANTZ P.L.L.
ATTORNEYS AT LAW
20th FLOOR, ONE CLEVELAND CENTER
CLEVELAND, OHIO 44114
-------
Steven L. Wasserman 216-696-8700 Sheila J. Pecek, Assistant
Direct Dial: 216-736-7220 TELECOPIER Direct Dial: 216-736-7267
E-mail: [email protected] 216-621-6536 E-mail: [email protected]
August 1, 1996
Nicholas R. Wilson, President
SecurFone America, Inc.
2016 Catalina Marie
Las Vegas, NV 89014
Re: FEE AGREEMENT FOR PROFESSIONAL SERVICES
Dear Nick:
This letter will confirm our agreement concerning on-going
representation of SecurFone America, Inc. It has been our experience that the
attorney-client relationship works best when there is a mutual understanding
about fees, terms and billing procedures. Thus, in order to avoid any
misunderstanding, it is the policy of our firm to require a written agreement.
LEGAL FEES
- ----------
Our fees for legal services shall be charged on an hourly basis and are
based generally on the time requirements of the assignment. Our hourly billing
rates range from $55.00 to $250.00 per hour. Paralegals' time is billed from
$55.00 to $75.00 per hour, associates' time is billed from $85.00 to $160.00 per
hour, and partners' time is billed from $170.00 to $250.00 per hour. We shall
determine which of our attorneys shall be assigned to a particular matter from
time to time, based upon considerations of allocations of attorneys' time and
the degree of expertise of our attorneys in any given situation. Rate changes
may occur from time to time during the course of our representation, but such
changes ordinarily would not occur more frequently than annually. In special
situations, other arrangements as to the method of calculating fees may be made
by mutual agreement confirmed in writing.
COSTS AND DISBURSEMENTS
- -----------------------
Certain costs incurred in rendering legal services on your behalf, such
as filing fees, long distance telephone calls, telecopier, messenger/courier
services, computerized research (including LEXIS and Westlaw), copying and
delivery charges, travel expenses, court reporter charges and the like, are
payable by you. Invoices for such items will either be sent directly to you for
payment, or, if advanced by the firm, will be billed to you by the firm. Large
disbursement billings will ordinarily be forwarded to you for payment directly
to the supplier.
<PAGE> 2
KOHRMAN JACKSON & KRANTZ P.L.L.
Nicholas R. Wilson, President
August 1, 1996
Page 2
- -------------------------------
BILLING
- -------
Statements for services rendered and costs advanced by the firm are
rendered to clients at regular intervals, usually monthly. The monthly statement
of account contains an itemization of services rendered and amounts outstanding,
if any, as of the date the statement is prepared. Due to the manner in which
certain costs and expenses are received and compiled, some expense items may
actually be billed 30 to 60 days after they are incurred.
PAYMENT; ISSUANCE OF COMMON STOCK
- ---------------------------------
All bills are payable immediately upon receipt. It is the policy of
Kohrman Jackson & Krantz P.L.L. not to perform any work for any client who is
more than thirty (30) days in arrears on any outstanding bill. Despite this
policy, you have indicated that due to the nature of SecurFone's business there
may be delays in payment while the company's network is being developed. We have
agreed to accept payment in cash for 50% of our regular monthly billings
together with full reimbursement of all costs and disbursements, with the
balance of our fees will be payable in common stock of SecurFone at an agreed
value of $2.50 per share. SecurFone agrees to issue such shares to the firm at
such time as SecurFone becomes publicly traded, and SecurFone will register such
shares at its sole expense. Our firm will advise you in writing of the total
amount outstanding at the time such shares are to be issued. Thereafter, all
billings shall be payable immediately upon receipt.
ATTORNEYS FEES
- --------------
Our firm or our assignees shall be entitled to recover the reasonable
attorneys' fees incurred by or on behalf of our firm, or by or on behalf of our
assignees, in any litigation, including appeals, instituted to collect our fees.
ESTIMATES
- ---------
Any estimates of anticipated fees that we provide at the request of a
client, whether for budgeting purposes or otherwise, are, due to the
uncertainties involved, necessarily only an approximation of potential fees.
Under no circumstances are such estimates a maximum or minimum fee quotation.
Our actual fees will be determined in accordance with the policies described
above.
QUESTIONS ABOUT BILLING
- -----------------------
You are encouraged to discuss any questions you have about statements
rendered to you with me, the attorney primarily responsible for your account, or
with our Accounting Department.
<PAGE> 3
KOHRMAN JACKSON & KRANTZ P.L.L.
Nicholas R. Wilson, President
August 1, 1996
Page 3
- -----------------------------
CONFIRMATION
- ------------
Please confirm your understanding and acceptance of the above terms by
signing the acknowledgment on the enclosed copy of this letter and returning it
to me.
Throughout our representation we will remain prompt and accessible, and
we will, of course, apprise you of all significant developments in this matter.
If at any time you have any questions or concerns, please do not hesitate to
contact me.
Please call me if you should have any questions. I look forward to
working with you.
Very truly yours.
/s/ Steven L. Wasserman
Steven L. Wasserman
SLW/sjp
I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD THIS LETTER, AND THAT I
AGREE TO ITS TERMS.
SECURFONE AMERICA, INC.
/s/ Nicholas R. Wilson
---------------------------------------
NICHOLAS R. WILSON, PRESIDENT
8/2/96 CHAIRMAN
--------------------------------------
DATE
<PAGE> 1
Exhibit 5.1
KOHRMAN JACKSON & KRANTZ P.L.L.
ATTORNEYS AT LAW
20th FLOOR, ONE CLEVELAND CENTER
CLEVELAND, OHIO 44114
-------
216-696-8700
TELECOPIER
216-621-6536
November 13, 1997
SecurFone America, Inc.
5850 Oberlin Drive, Suite 220
San Diego, California 92121
Re: Registration Statement on Form S-8 of SecurFone America, Inc.
Ladies and Gentlemen:
SecurFone America, Inc., a Delaware corporation (the "Company"), is
filing with the Securities and Exchange Commission a registration statement on
Form S-8 (the "Registration Statement"), under the Securities Act of 1933, as
amended (the "Act"). The Registration Statement relates to the offering and
sale by the Company of up to 2,000,900 shares (the "Shares") of the Company's
Class A Common Stock, par value $0.001 per share (the "Common Stock"), pursuant
to stock options ("Options") granted or to be granted under the SecurFone
America, Inc. 1997 Stock Option Plan and the SecurFone America, Inc. 1997
Directors' Stock Option Plan (collectively, the "Option Plans"), and stock
grants pursuant to an Employment Agreement between the Company and Derek Davis,
Retainer Agreements between the Company and Jennifer Griffith, Michael R. Lee,
Gregory F. Lepore, Stephanie Marusiak, Amy J. Pipoly, and Steven L. Wasserman,
Consulting Agreements between the Company and Robert M. Bernstein, E.B.
Advisory Limited, Al Jugo and Terri Welles, and Fee Agreements between the
Company and Dill, Dill, Carr, Stonbraker & Hutchings, P.C. and Kohrman Jackson
& Krantz P.L.L. (collectively the "Grant Agreements"). We have acted as counsel
to the Company in connection with the preparation and filing of the
Registration Statement.
In connection with this opinion letter, we have examined and relied
upon the original or a copy, certified to our satisfaction, of (i) the Amended
and Restated Certificate of Incorporation and the Bylaws of the Company; (ii)
resolutions of the Board of Directors of the Company; (iii) the Option Plans;
(iv) the Grant Agreements; and (v) such other documents and instruments as we
have deemed necessary for providing this opinion letter.
We have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as certified or photostatic copies.
We have made such investigations of law as we deem appropriate as a basis for
rendering the opinions expressed below, and as to various questions of fact
material to the opinions, we have relied, to the extent we deem appropriate,
upon representations or
<PAGE> 2
KOHRMAN JACKSON & KRANTZ P.L.L.
SecurFone America, Inc.
Page 2
November 13, 1997
certificates of officers or directors of the Company and upon documents,
records and instruments furnished to us by the Company, without independently
verifying the accuracy of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that
assuming (i) the Company maintains an adequate number of authorized but
unissued Shares and treasury Shares available for issuance to those persons who
exercise Options granted in accordance with the Option Plans and (ii) the
Shares are duly delivered against payment therefor in accordance with the terms
of the Option Plans and the Grant Agreements, the Shares issued pursuant to the
exercise of Options granted in accordance with the Option Plans and pursuant to
the Grant Agreements will be validly issued, fully paid and non-assessable.
We express no opinion other than as to the Federal law of the United
States and the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the
Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
KOHRMAN JACKSON & KRANTZ P.L.L.
/S/ KOHRMAN JACKSON & KRANTZ P.L.L.
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
As independent auditors to SecurFone America, Inc., we hereby consent to the
incorporation by reference in this Registration Statement of our Independent
Auditors' Report for the Balance Sheet as of March 31, 1997 and the related
Statements of Operations, Changes in Stockholder's Equity, and Cash Flows for
the four months then ended for SecurFone America, Inc. dated June 16, 1997
included in Material Technology, Inc.'s Information Statement filed June 11,
1997 with the Securities and Exchange Commission, and all references to our
Firm included in this Registration Statement.
/S/ CONTE CO., CPA, INC.
- ------------------------------
Conte Co., CPA, Inc.
Norton, Ohio
November 12, 1997
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
As independent auditors, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 10, 1997
included in Material Technology, Inc.'s (the "Company") Form 10-K for the year
ended December 31, 1996, our report dated June 12, 1997 included in the
Company's amended 10-K for the year ended December 31, 1996 and the Company's
Information Statement filed June 11, 1997 with the Securities and Exchange
Commission, and all references to our Firm included in this Registration
Statement.
/S/ JONATHON P. REUBEN
- ----------------------
Jonathon P. Reuben,
Certified Public Accountant
Torrence, California
November 10, 1997
