SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 30, 2000
ULTRADATA SYSTEMS, INCORPORATED
(Exact name of Registrant as Specified in its Charter)
Delaware 0-25380 43-1401158
(State of Incorporation) (Commission File (IRS Employer
Number) Identification No.)
9375 Dielmann Industrial Drive, St. Louis, MO 63132
(Address of principal executive offices)
(314) 997-2250
Registrant's Telephone Number
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Item 5. Agreement Regarding Influence Data, L.L.C.
In May of 1999 Ultradata formed a joint venture with Influence Incubator,
L.L.C. (previously known as "Influence Content, L.L.C.). Influence Incubator
became the Manager of Influence Data, L.L.C. (The "Joint Venture"), which
operates the Website "DriveThere.com." Influence Incubator owns two-thirds
of the equity in the Joint Venture, and Ultradata owns one-third of the
equity in the Joint Venture.
At that time, Ultradata granted to Influence Incubator an option to
purchase 160,000 shares of Ultradata common stock at a blended price of $3.00
per share. Recently, a dispute arose concerning Influence Incubator's rights
under that option. The dispute was resolved by an agreement made on May 30,
2000 (the "May 30 Agreement), in which each party released the other from
claims and reaffirmed their commitment to work together in the Joint Venture.
In addition to general releases, the May 30 Agreement provided that:
- Ultradata will pay $10,000 to Influence Incubator.
- Ultradata will make a capital contribution of $190,000 to the Joint
Venture. The contribution will not, however, increase Ultradata's
capital account in the Joint Venture.
- The option for 160,000 shares has been cancelled.
- A new option for 300,000 shares has been issued to Influence Incubator.
The option issued to Influence Incubator on May 30 contains the following
provisions:
- The option terminates on June 1, 2005.
- Influence Incubator may purchase 150,000 shares for $5.00 per share and
150,000 shares for $4.00 per share. However, if the Effective Date
(defined below) is later than September 15, 2000, the prices will be
reduced to $4.00 and $3.00.
- Ultradata will file a registration statement with the Securities and
Exchange Commission to permit Influence Incubator to resell the shares
it acquires when it exercises the option. The "Effective Date" will be
the date on which the SEC declares the registration statement effective.
- If the Effective Date is later than September 15, 2000 (or October 15,
2000, if Ultradata is acting in good faith and extends the date), then
Influence Incubator can assign the option back to Ultradata in exchange
for the entirety of Ultradata's interest in the Joint Venture.
EXHIBITS
1. Option Agreement dated May 30, 2000 between Ultradata Systems, Incorporated
and Influence Incubator, L.L.C.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ULTRADATA SYSTEMS, INCORPORATED
Dated: June 6, 2000 By: /s/ Monte Ross
Monte Ross
Chief Executive Officer
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
EXHIBIT 1.
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") is made and entered into this 30th day
of May, 2000, by and between ULTRADATA SYSTEMS, INCORPORATED, a Delaware
corporation ("Grantor") and INFLUENCE INCUBATOR, L.L.C., a Missouri limited
liability company ("Grantee").
RECITALS
Grantor and Grantee desire to enter into this Option Agreement, granting to
the Grantee the option to purchase certain shares of the common stock of the
Grantor.
AGREEMENT
In consideration of the foregoing, the mutual covenants contained herein,
and Ten Dollars ($10.00) and other good and valuable consideration, the
parties agree as follows:
1. Grant of Option.
(a) Grantor hereby grants to Grantee an option (the "Option") for Grantee
to purchase from Grantor up to Three Hundred Thousand (300,000) common shares
of Grantor ("Shares"). Grantee must exercise the Option on or before June 1,
2005 (the "Termination Date") or the Option will lapse.
(b) The number and kind of securities purchasable upon the exercise of the
Option and the Exercise Price shall be subject to adjustment from time to
time upon the happening of any of the following. In case the Company shall
(i) pay a dividend in shares of Common Stock or make a distribution in shares
of Common Stock to holders of its outstanding Common Stock, (ii) subdivide
its outstanding shares of Common Stock into a greater number of shares of
Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock, (iv) issue any shares of its capital
stock in a reclassification of the Common Stock, or (v) such transaction that
is like or similar to the transactions described in (i) through (iv) above,
then the number of Shares purchasable upon exercise of this Option
immediately prior thereto shall be adjusted so that Grantee shall be entitled
to receive the kind and number of Option Shares or other securities of the
Company which it would have owned or have been entitled to receive had such
Option been exercised in advance thereof. Upon each such adjustment of the
kind and number of Shares or other securities of the Company which are
purchasable hereunder, Grantee shall thereafter be entitled to purchase the
number of Option Shares or other securities resulting from such adjustment at
an Exercise Price per Share or other security obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number
of Shares purchasable pursuant hereto immediately prior to such adjustment
and dividing by the number of Shares or other securities of the Company
resulting from such adjustment. An adjustment made pursuant to this paragraph
shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
2. Manner of Exercising Options. At any time or from time to time on or
before the Termination Date, Grantee may exercise all or a portion of the
Option to purchase Shares in groups or tranches of Shares which are evenly
divisible by Ten Thousand (10,000). Grantee shall exercise the Option by
delivering to Grantor written notice of the exercise thereof, stating the
number of Shares for which the Option is exercised.
3. Exercise Price. Grantee may purchase One Hundred Fifty Thousand (150,000)
Shares subject to the Option for an Exercise Price of Four Dollars ($4.00) per
Share if the Effective Date is on or before September 15, 2000, and Three
Dollars ($3.00) per Share if the Effective Date is after September 15, 2000.
Grantee may purchase the other One Hundred Fifty Thousand (150,000) Shares
subject to the Option for an Exercise Price of Five Dollars ($5.00) per Share
if the Effective Date is on or before September 15, 2000, and Four Dollars
($4.00) per Share if the Effective Date is after September 15, 2000. The
Exercise Price is payable at the Closing (as hereinafter defined) by Grantee
to Grantor in immediately available funds by cashier's check or wire transfer
as instructed by Grantor.
4. Purchased Shares. Grantor covenants, represents and warrants that any and
all Shares purchased by Grantee under this Agreement shall be, when issued,
(i) duly authorized and validly issued, (ii) fully paid and non-assessable,
(iii) not issued in violation of any preemptive rights, (iv) not subject to
any contractual restrictions on resale or transfer, and (v) free and clear of
all liens, charges, encumbrances, or adverse claims.
5. Registration Rights.
(a) Grantor covenants that it shall cause, at its sole cost and expense,
one or more registration statements (the "Registration Statement"), in such
form as Grantor is permitted to use, to be filed with the Securities and
Exchange Commission on or prior to June 15, 2000 and to become effective on
or before the Effective Date, as hereinafter defined, enabling the Shares to
be sold by the Grantee at any time or from time to time, and shall take all
actions required to cause the Registration Statement to remain accurate and
effective for so long as (i) Grantee retains the right to exercise the Option
or (ii) Grantee holds any unsold Shares, but not beyond the Termination Date.
"Effective Date" shall mean the date upon which the Registration Statement
shall first be declared effective by the Securities and Exchange Commission,
which date shall be on or before September 15, 2000 provided that, if (i)
Grantor timely and properly files the Registration Statement with the
Securities and Exchange Commission on or prior to June 15, 2000, (ii) Grantor
is using its best efforts diligently, continuously and in good faith to make
the Registration effective prior to September 15, 2000, (iii) Grantor notifies
Grantee in writing prior to September 1, 2000 that the Registration Statement
will not be effective on or before September 15, 2000 through no fault or
failure of Grantor and (iv) Grantor provides Grantee in writing prior to
September 1, 2000 an action plan which states in reasonable detail the
information to be provided, if any, and steps necessary to reasonably assure
that the Registration Statement will be effective on or before October 15,
2000, then, in such event the Grantor, in its discretion, may, by written
notice to Grantee on or prior to September 1, 2000 extend the Effective Date
to October 15, 2000. The Effective Date shall, in addition, be extended one
day for each day in which an "Event of Force Majeure," as hereafter defined,
occurs prior to the Effective Date. "Event of Force Majeure" shall mean and
be limited to the following items only: fire, earthquake, floods, explosions,
war, riots, mob violence and civil insurrection.
(b) It shall be a condition precedent to the obligations of Grantor to
complete the registration pursuant to this Agreement that Grantee shall
furnish to Grantor such information regarding itself, the securities of
Grantor held by it and the intended method of disposition of the shares as
shall be reasonably required to effect the registration and shall execute such
documents in connection with such registration as the Grantor may reasonably
request.
(c) At any time after the registration statement has been declared effective,
Grantor may delay the disclosure of material, non-public information
concerning Grantor, the disclosure of which at the time is not, in the good
faith opinion of the Board of Directors of Grantor and its counsel, in the
best interest of Grantor and, in the opinion of counsel to Grantor, otherwise
required (a "Grace Period"); provided that Grantor shall promptly (i) notify
Grantee in writing of the existence of material, non-public information giving
rise to a Grace Period, and (ii) notify Grantee in writing as promptly as
practicable of the date on which the Grace Period ends, and provided further
that, during any consecutive 365 day period, the aggregate of all Grace Periods
shall not exceed 20 days . Grantee agrees that, upon receipt of any notice
from Grantor of a Grace Period, Grantee will immediately discontinue
disposition of Shares pursuant to any registration statement covering such
Shares until Grantee's receipt of notice of end of the Grace Period or the
end of the annually permitted twenty (20) day period, whichever is shorter.
(d) To the fullest extent permitted by law, Grantor will, and hereby does,
indemnify, hold harmless and defend Grantee, each director, officer, and each
person in control of Grantee against any losses, claims, damages, liabilities,
judgments, fines, penalties, charges, costs, attorneys' fees, amounts paid in
settlement or expenses, joint or several, (collectively, "Claims") incurred
in investigating, preparing or defending any action, claim, suit, inquiry,
proceeding, investigation or appeal taken from the foregoing by or before any
court or governmental, administrative or other regulatory agency or body or
the SEC, whether pending or threatened, whether or not an indemnified party
is or may be a party thereto ("Indemnified Damages"), to which it may become
subject insofar as such Claims (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact in a Registration
Statement or any post-effective amendment thereto or the omission or alleged
omission to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Grantor shall reimburse
Grantee or its controlling person promptly as such expenses are incurred and
are due and payable, for any legal fees or other reasonable expenses incurred
by them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 5(d): (i) shall not apply to a Claim
arising out of or based upon information furnished in writing to Grantor by
Grantee expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or supplement thereto;
(ii) shall not be available to the extent such Claim is based on a failure of
the Grantee to deliver or to cause to be delivered the most current prospectus
made available by Grantor; and (iii) shall not apply to amounts paidin
settlement of any Claim if such settlement is effected without the prior
written consent of Grantor, which consent shall not be unreasonably withheld.
(e) Grantee agrees to indemnify, hold harmless and defend, to the same extent
and in the same manner as is set forth in Section 5(d), Grantor, each of its
directors, each of its officers who signs the Registration Statement, each
Person, if any, who controls Grantor within the meaning of the 1933 Act or the
1934 Act, against any Claim or Indemnified Damages to which any of them may
become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such
Claim or Indemnified Damages arise out of or are based upon written information
furnished to Grantor by Grantee expressly for use in connection with such
Registration Statement; and, subject to Section 5(d), Grantee will reimburse
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the
indemnity agreement contained in this Section 5(e) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the
prior written consent of Grantee, which consent shall not be unreasonably
withheld.
6. Closing. Within each notice of exercise of the Option, Grantee shall
designate one of the following methods of closing:
- Closing Method A: The closing(s) of the purchase of Shares shall take
place not later than five (5) New York Stock Exchange trading days after
the delivery of Grantee's notice of exercise to Grantor. The closing
shall take place at 9375 Dielman Industrial Drive, St. Louis, Missouri
63132 or such other St. Louis, Missouri metropolitan area address as
Grantor may specify by notice to Grantee. At the Closing, Grantee shall
deliver the purchase price to Grantor in accordance with Section 3 above,
and Grantor shall deliver to Grantee one or more stock certificates, as
specified by Grantee, evidencing Grantee's ownership of the purchased
Shares.
- Closing Method B: The notice of exercise of the Option shall include
complete DWAC instructions and shall be accompanied by payment of the
Exercise Price in accordance with Section 3 above. Grantor shall cause
the Shares to be delivered electronically to the account designated in
the notice of exercise not later than three (3) New York Stock Exchange
trading days after the delivery of Grantee's notice of exercise to
Grantor.
7. Termination of Option: The option granted hereunder shall terminate and be
held for naught under the following conditions:
(a) At the election of Influence, in the event the Registration Statement
does not become effective on or before the Effective Date, or
(b) In the event the term of the option granted herein expires and all or
some of the option rights granted hereunder have not been exercised.
Should Influence declare the option terminated under the provisions of
Section 7(a) above, then, in such event, Ultradata shall and hereby does,
without further consideration or documentation, transfer to Grantee its
interest in Influence Data, L.L.C.
8. Notices. All notices, consents, requests, demands and other communications
hereunder are to be in writing, and are deemed to have been duly given and
made: (a) when delivered in person; or (b) in the case of overnight courier
services, one business day after delivery to the overnight courier service
with payment provided for in each case addressed as follows:
(i) If to Grantee:
Craig M. Kaminer
Influence Incubator, L.L.C.
9666 Olive Street Road
St. Louis, Missouri 63132
With a copy (delivered or by fax) to:
Alan B. Bornstein
Sonnenschein Nath & Rosenthal
One Metropolitan Square, Suite 3000
St. Louis, Missouri 63102
Fax No.: (314) 259-5959
(ii) If to Grantor:
Monte Ross
Ultradata Systems, Inc
9375 Dielman Industrial Drive
St. Louis, Missouri 63132
With a copy (delivered or by fax) to:
Robert Brantl
322 Fourth Street
Brooklyn, NY 11215
Fax No.: (718) 965-4042
Warren W. Davis
Sandberg, Phoenix & von Gontard
One City Centre, 15th Floor
St. Louis, MO 63101
Fax No.: (314) 241-7604
or to such other address as any party may designate by notice to the other
parties in accordance with the terms of this Section.
9. Further Assurances. The parties will execute and deliver such further
instruments and do such further acts and things as may be required to carry
out the intent and purpose of this Agreement.
10. Governing Law. This Agreement and the rights and obligations of the
parties hereunder are to be governed by and construed and interpreted in
accordance with the laws of the State of Missouri applicable to contracts made
and to be performed wholly within Missouri, without regard to choice or
conflict of laws rules.
11. Legal Fees; Costs. In the event any party brings suit to construe or
enforce the terms hereof, or raises this Agreement as a defense in a suit
brought by another party, the prevailing party is entitled to recover its
attorneys' fees and expenses.
12. Assignment: This Agreement and the rights granted hereunder are not
assignable without the express written consent of the other party, unless:
(a) the assignment is made in connection with a sale of all or substantially
all of the assets of Influence to a third, unrelated or unaffiliated party
in an arms length transaction, or
(b) the assignment occurs as part of a statutory merger of Influence in an
arms length transaction with an unrelated or unaffiliated party, or
(c) the assignment occurs as part of a reorganization, recapitalization,
restructuring or like or similar transaction of Influence.
13. Counterparts and Execution by Facsimile: This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, and
it shall not be necessary in making proof of this Agreement to account for
more than one such counterpart or a copy thereof. Any party to this Agreement
or any amendment thereto may execute such counterparts or same and transmit
the pages bearing that signature via facsimile to any other party, and such
party shall be bound to the same extent had the same, in fact been delivered.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
"Grantee"
INFLUENCE INCUBATOR, L.L.C.
By: /s/ Craig Kaminer
Name: Craig Kaminer
Title: Manager
"Grantor"
ULTRADATA SYSTEMS, INC.
By: /s/ Monte Ross
Name: Monte Ross
Title: President & CEO
