UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM 10-K/A
AMENDMENT NO. 1
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Fiscal Year ended: December 31, 2003
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission File No. 0-17204
----------------------
INFINITY, INC.
(Exact Name of Small Business Issuer as Specified in its Charter)
Colorado 84-1070066
(State or of Incorporation) (I.R.S. Employer Identification Number)
211 West 14th Street, Chanute, Kansas 66720
(Address of Principal Executive Offices, Including Zip Code)
(620) 431-6200
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act: COMMON STOCK
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K, is not contained herein and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
Indicate by check mark whether the registrant is an accelerated
filer (as defined in Rule 12B-2 of the Act). Yes [ ] No [X]
As of April 27, 2004, 9,396,091 shares of the Registrant's $0.0001 Par
Value Common Stock were outstanding. The aggregate market value of voting and
non-voting common equity held by non-affiliates as of June 30, 2003 was
approximately $41,557,256 based upon a closing price of $6.05 per share as
reported on the NASDAQ National Market.
DOCUMENTS INCORPORATED BY REFERENCE
None.
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A to the Annual Report on Form 10-K (the
"Form 10-K") of Infinity, Inc. ("Infinity") filed on April 14, 2004 with the
Securities and Exchange Commission is filed for the purpose of including
information that was to be incorporated by reference from Infinity's definitive
proxy statement pursuant to Regulation 14A of the Securities and Exchange Act of
1934. Infinity will not file its proxy statement within 120 days of its fiscal
year ended December 31, 2003 and is therefore amending and restating in its
entirety Part III of the Form 10-K.
Further, this amendment corrects an error on the cover page of the
Form 10-K regarding the aggregate market value of common equity held by
non-affiliates. The correct market value of common equity held by non-affiliates
as of June 30, 2003 was $41,557,256.
As used herein, "Infinity," "we" and "our" refer collectively to Infinity,
Inc., its predecessors, subsidiaries and affiliates as to one or more of them as
the context may require.
PART III
ITEM 10: DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth the name and age of each director and
executive officer, indicating all positions and offices with Infinity presently
held, and the period during which each person has served as a director:
Positions and offices held and
Name Age term as a director
- --------------------- ------ ----------------------------------------
Stanton E. Ross 42 President, Treasurer and Director
since March 1992
Leroy C. Richie 62 Director since June 1999
O. Lee Tawes 56 Director since July 2001
Robert O. Lorenz (1) 57 Director since January 2004
Jon D. Klugh 41 Chief Financial Officer and Secretary
Stephen D. Stanfield 48 President of Consolidated Oil Well
Services, Inc.
James A. Tuell 44 President of Infinity Oil & Gas of
Wyoming, Inc.
James W. Dean 37 Vice President, Strategic and
Corporate Development
- ------------------
(1) Effective December 31, 2003, Mr. George R. Jones resigned as a director of
Infinity, Inc. The board of directors selected Robert O. Lorenz to fill the
vacancy on the board of directors until the next annual meeting of
stockholders.
There is no family relationship between any director or executive officer
of Infinity.
Set forth below are the names of all directors, nominees for director and
executive officers of Infinity, all positions and offices with Infinity held by
each such person, the period during which he has
served as such, and the principal occupations and employment of such persons
during at least the last five years:
STANTON E. ROSS. Mr. Ross has been President, Treasurer and a director of
Infinity since March 1992, and serves as an officer and director of each of
Infinity's subsidiaries. From 1991 until March 1992, he founded and served as
President of Midwest Financial, a financial services corporation involved in
mergers, acquisitions and financing for corporations in the Midwest. From 1990
to 1991, Mr. Ross was employed by Duggan Securities, Inc., an investment banking
firm in Overland Park, Kansas, where he primarily worked in corporate finance.
From 1989 to 1990, he was employed by Stifel, Nicolaus & Co., a member of the
New York Stock Exchange, where he was an investment executive. From 1987 to
1989, Mr. Ross was self-employed as a business consultant. From 1985 to 1987,
Mr. Ross was President and founder of Kansas Microwave, Inc. which developed a
radar detector product. From 1981 to 1985, he was employed by Birdview Satellite
Communications, Inc. which manufactured and marketed home satellite television
systems, initially as a salesman and later as National Sales Manager.
LEROY C. RICHIE. Mr. Richie has been a director of Infinity since June 1,
1999. Since September 2000 he has been Chairman and Chief executive officer of
Q Standards World Wide, Inc. From April 1999 to August 2000, he was President of
Capitol Coating Technologies, Inc. From September 1998 to April 1999 he was
President of Intrepid World Communications. From January 1998 to September 1998,
Mr. Richie reviewed business opportunities and served as Chairman of H.P. Devco
and Vice Chairman of Detroit Economic Growth Corp. and Detroit Medical Center.
Mr. Richie was formerly Vice President of Chrysler Corporation and General
Counsel for automotive legal affairs, where he directed all legal affairs for
that company's automotive operations from 1986 to 1997. He has been a member of
the board of directors of Kerr-McGee Corporation since 1998 and has served on
the compensation committee of the board of directors of that company since
January 1, 2003. He has also been a member of the board of directors of
J.W. Seligman & Co. since 2000. Before joining Chrysler, he served as director
of the New York office of the Federal Trade Commission. Mr. Richie received a
B.A. from City College of New York in 1970 and a J.D. from the New York
University School of Law in 1973.
O. LEE TAWES, III. Mr. Tawes has been a director of Infinity since
July 16, 2001. He joined C.E. Unterberg Towbin, an investment banking firm, in
November 1999 as a Managing director and director of Equity Research. He is also
a member of the Management and Commitment Committees of that firm, and is Head
of the Investment Policy Committee. From 1991 through 1999 he was director of
Equity Research and Chairman of the Stock Selection Committee at CIBC World
Markets (formerly Oppenheimer & Co. Inc.). From 1979 to 1990, he was a food
analyst and diversified company analyst at Oppenheimer & Co., and from 1972 to
1979 he was a food analyst at Goldman Sachs & Co. He was named to the
Institutional Investor All America Team five times. Mr. Tawes is a graduate of
Princeton University and received his MBA from the Darden School at the
University of Virginia. He currently also serves as a director of Baywood
International, Inc.
ROBERT O. LORENZ. Mr. Lorenz has been a director of Infinity since
January 1, 2004. Mr. Lorenz is a former partner of Arthur Andersen LLP. He
served as the managing partner of the Arthur Andersen Oklahoma City office
beginning in 1994 and as the managing partner of the Oklahoma practice beginning
in 2000. He retired from Arthur Andersen in 2002. Mr. Lorenz is a certified
public accountant and holds a bachelor's degree in business administration. He
currently also serves as a director of Panhandle Royalty Company.
Infinity's directors hold office until the next annual meeting of the
stockholders and until their successors have been elected and qualified.
2
JON D. KLUGH. Mr. Klugh has been Infinity's Chief Financial Officer since
September 1999, and its Secretary since October 1999. He also serves as an
officer of each of Infinity's subsidiaries. Prior to joining Infinity, Mr. Klugh
was the Manager of Regulatory Reporting and had supervisory responsibility for
operating processes and procedures with Continental Resources, Inc., a privately
held, independent oil and gas company located in Enid, Oklahoma from March 1996
until September 1999. From April 1994 until March 1996, Mr. Klugh worked for
Koch Exploration Company, an oil and gas exploration company in Wichita, Kansas.
Mr. Klugh began his career at Conoco, Inc., an integrated, international energy
company based in Houston, Texas in 1985, and worked in various accounting,
finance and regulatory positions until joining Koch Exploration Company in 1994.
Mr. Klugh received a B.A. Degree, with an emphasis in Accounting, from
Southwestern College, Winfield, Kansas, in 1985.
STEPHEN D. STANFIELD. Mr. Stanfield has been the Chief Operating Officer
of Consolidated Oil Well Services, Inc., a wholly-owned subsidiary of Infinity,
Inc., since October 2000 and in March 2004 was promoted to President of
Consolidated Oil Well Services, Inc. Prior to joining Infinity, Mr. Stanfield
was an Assistant Manager with Crude Marketing Inc. from February 2000 to October
2000. Crude Marketing Inc. buys, transports and sells crude oil in eastern
Kansas and northeastern Oklahoma. From 1990 to February 2000 Mr. Stanfield was
employed with EOTT Energy, which was based in Houston, Texas. Mr. Stanfield
served as Operations Coordinator for the Mid-Continent Region and was
responsible for coordinating crude oil transportation in a nine state area. Mr.
Stanfield began his career in the oil and gas industry in 1981 with American
Fracmaster Inc., which was headquartered in Oklahoma City, Oklahoma. He served
as a Service Supervisor, Operations Manager, and Sales Representative at the
company's Chanute, Kansas and Bartlesville, Oklahoma facilities. He was employed
with them until they sold the eastern Kansas operation to Eastern Frac Inc. and
remained with that company until 1988. Mr. Stanfield served with the United
States Air Force from 1976 to 1980.
JAMES A. TUELL. Mr. Tuell has been the President of Infinity Oil & Gas of
Wyoming, Inc., a wholly-owned subsidiary of Infinity, Inc., since February 1,
2004. Prior to joining the company, Mr. Tuell owned and operated an accounting
and finance consultancy which served Infinity and numerous other independent
energy companies from November 2001 to February 2004. Between July 2001 and
November 2001 Mr. Tuell was not employed. From 1996 through July 2001, Mr. Tuell
served as Controller and Chief Accounting Officer of Basin Exploration, Inc.
From 1994 through 1996, he served as Vice President and Controller of Gerrity
Oil & Gas Corporation. Mr. Tuell was employed by the independent accounting firm
of Price Waterhouse from 1981 through 1994, most recently as a Senior Audit
Manager. He earned a B.S. degree in Accounting, magna cum laude, from the
University of Denver and is a certified public accountant.
JAMES W. DEAN. Mr. Dean has been Infinity's Vice President, Strategic
and Corporate Development since March 2004. Prior to joining Infinity,
Mr. Dean was an investment banker with First Albany Capital, Inc. from September
2000 to March 2004, with clients and transactional experience focused in the
energy industry, primarily related to oil and gas exploration and production.
From January 2000 to September 2000 Mr. Dean worked as an independent consultant
in the high-tech industry. From 1996 to January 2000, Mr. Dean worked for Key
Energy Services, Inc., a publicly-traded oilfield service firm, most recently as
Vice President of Financial Planning and Analysis and, prior to that, Manager of
Financial Planning and Analysis. From 1991 to 1996, Mr. Dean worked in energy
corporate finance for Rauscher Pierce Refsnes, Inc., now RBC Capital Markets,
and worked for Petrie Parkman & Co. in its mergers & acquisitions group in 1996.
Mr. Dean began his career in 1990 at Price Waterhouse, LLP, now
PricewaterhouseCoopers, in its tax department. Mr. Dean received a B.A. degree
in Economics and Managerial Studies from Rice University in 1990.
3
Infinity's executive officers hold office until the next annual meeting of
the directors of Infinity which is currently scheduled for June 17, 2004. There
are no known arrangements or understandings between any director or executive
officer and any other person pursuant to which any of the above-named executive
officers or directors or nominees was selected as an officer or director or
nominee for director of Infinity.
AUDIT COMMITTEE FINANCIAL EXPERT
The board of directors has determined that Robert O. Lorenz qualifies as
an "Audit Committee Financial Expert" as defined by rules and regulations
promulgated by the Securities and Exchange Commission and meets the financial
sophistication requirements set forth in the Nasdaq listing standards. Mr.
Lorenz qualifies as an independent director as defined in the listing standards.
AUDIT COMMITTEE
Infinity has an Audit Committee, comprised of Messrs. Lorenz, Richie and
Tawes. The Audit Committee reviews Infinity's financial reporting process,
system of internal controls, audit process and process for monitoring compliance
with applicable law and our code of conduct. The Committee is also responsible
for the engagement of, and evaluates the performance of, our independent
auditor.
DIRECTOR NOMINEES RECOMMENDED BY SECURITY HOLDERS
The Corporate Governance and Nominating Committee has adopted written
procedures to be followed by stockholders in submitting recommendations for
director nominees. Candidates proposed by stockholders will be evaluated by the
Committee in the same manner as candidates which are not proposed by
stockholders. While stockholders may propose director nominees at any time, we
must receive the required notice (described below) on or before the date set
forth in the prior year's annual proxy statement under the heading "Stockholder
Proposals" in order to be considered by the Corporate Governance and Nominating
Committee in connection with Infinity's next annual meeting of stockholders.
Stockholders wishing to recommend a director candidate to serve on the
board may do so by providing advance written notice to the Chairman of the
Corporate Governance and Nominating Committee which identifies the candidate and
includes the information described below. The notice shall be sent to the
following address:
Infinity, Inc.
Attn: Chairman of the Corporate Governance and
Nominating Committee c/o Corporate Secretary
211 West 14th Street
Chanute, Kansas 66720
The notice shall contain the following information:
o The name of the nominating stockholders and the address, phone number
and e-mail address at which the nominating stockholders can be
contacted.
o Evidence of the number of Infinity's common stock held by the
nominating stockholders, a statement of how long the nominating
stockholders has held those shares, and a statement that the nominating
stockholders will continue to hold those shares at least through our
next annual meeting of stockholders.
4
o The candidate's full name, together with the address, phone number and
e-mail address at which the candidate can be contacted.
o A statement of the candidate's qualifications and experiences, and any
other qualities that the nominating stockholders believes that the
candidate would bring to the board.
o A description of all arrangements or understandings, if any, between
the stockholders and the candidate and any other person or persons with
respect to the candidate's proposed service on the board.
o The candidate's resume, which must include at a minimum a detailed
description of the candidate's business, professional or other
appropriate experience for a least the last ten (10) years, a list of
other boards of directors on which the candidate
currently serves or on which he or she served in the last ten (10)
years, and undergraduate and post-graduate educational information.
o A written statement, signed by the candidate, agreeing that if he or
she is selected by the Committee and the board, he or she will (i) be a
nominee for election to the board, (ii) provide all information
necessary for us to include in our proxy statement under applicable SEC
or Nasdaq rules, and (iii) serve as a director if he or she is elected
by stockholders.
o Any additional information that the nominating stockholders believes is
relevant to the Committee's consideration of the candidate.
A nominee for director should be a person of integrity and be committed to
devoting the time and attention necessary to fulfill his or her duties to
Infinity. The Corporate Governance and Nominating Committee will evaluate the
independence of directors and potential directors, as well as his or her
business experience, or specialized skills or experience. Diversity of
background and experience, including diversity of race, ethnicity, international
background, gender and age, are also important factors in evaluating candidates
for board membership. The Committee will also consider issues involving possible
conflicts of interest of directors or potential directors.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires Infinity's
directors, executive officers and persons who own more than ten percent of a
registered class of Infinity's equity securities to file with the Securities and
Exchange Commission initial reports of ownership and reports of changes in
ownership of common stock and other equity securities of Infinity. Directors,
executive officers and greater-than-ten-percent stockholders are required by
Commission regulations to furnish Infinity with copies of all Section 16(a)
forms that they file.
Based solely on the written and oral representations of its directors and
executive officers and a review of copies of the reports that were filed with
the Commission, Infinity believes that all filing requirements pursuant to
Section 16(a) were complied with during 2003.
CODE OF ETHICS
Infinity has adopted a code of ethics that applies to the directors,
senior executive and financial officers, and other executive officers. In
addition, Infinity has adopted a code of ethics and business conduct which
applies to all employees. The code of ethics for directors and officers and the
code of ethics
5
and business conduct for employees are available on Infinity's website at
http://www.infinity-res.com. To access our corporate governance materials, click
on "Investor Relations."
ITEM 11: EXECUTIVE COMPENSATION
The following tables set forth information regarding executive
compensation for Infinity's President and Chief Executive Officer and each other
executive officer who received compensation in excess of $100,000 during the
year ended December 31, 2003, the year ended December 31, 2002, the nine month
transition period ended December 31, 2001, and the fiscal year ended March 31,
2001.
SUMMARY COMPENSATION TABLE
Annual Long-Term
Compensation Compensation
----------------------------------- -------------------------
Other Restricted
Annual Security Securities All Other
Salary Bonus Compensation Awards Underlying Compensation
Name and Principal Position Year ($) ($) ($) ($) Options (#) ($)(1)
- ---------------------------- ---- --- --- --- --- ----------- ------
Stanton E. Ross, 2003 $110,000 $0 $16,965 0 0 $1,005
President and Chief 2002 $110,000 $41,234 $91,186(2) 0 50,000 $1,005
Executive Officer 2001(3) $75,384 $30,000 $0 0 50,000 $1,005
2001 $80,000 $40,000 $0 0 50,000 $1,083
Jon D. Klugh, 2003 $76,300 $0 $9,600(4) 0 0 $915
Chief Financial Officer 2002 $70,123 $21,000 $9,962(4) 0 13,500 $915
Phillip S. Winner 2003 $107,760 $0 $0 0 10,000 $0
Executive Vice
President-Corporate
Development
- -----------------
(1) Represents premium paid on life insurance policy for Mr. Ross' benefit and
for Mr. Klugh's benefit.
(2) Includes $72,662 paid for reimbursement of taxes paid on exercise of
non-qualified stock options.
(3) Transition period ended December 31, 2001.
(4) Represents an automobile allowance.
OPTION GRANTS IN LAST FISCAL YEAR
Number of Individual Grants
Securities Percent of ---------------------------- Potential Realizable Value
Underlying Total Options At Assumed Annual Rates of
Options Granted to Exercise or Share Price Appreciation
Granted Employees in Base Price Expiration for Option Term
Name (#) Fiscal Year ($/Sh) Date 5%($) 10%($)
- ------------------------ -------------- --------------- ------------- ------------- ------------- -------------
Stanton E. Ross 0 0 0 -- 0 0
Jon D. Klugh 0 - 0 -- 0 0
Phillip S. Winner 10,000 100% 8.75 5/21/2008 0 $13,500
6
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTION VALUES
Number of Securities
Underlying Unexercised Value of Unexercised
Options At Fiscal Year-end In-the-money Options At
Shares (#) Fiscal Year-end ($)
Acquired On Value ------------------------------ -----------------------------
Name Exercise (#) Realized ($) Exercisable Unexercisable Exercisable Unexercisable
- ----------------------- ------------- ------------- ----------- ------------- ----------- -------------
Stanton E. Ross 0 0 230,000 0 $182,480 0
Jon D. Klugh 0 0 73,500 0 $22,800 0
Phillip S. Winner 0 0 5,000 5,000 $0 0
Infinity has no employment agreements with any of its executive officers.
Mr. Ross has pledged 675,000 shares of Infinity common stock owned by him
to support margin loans from brokerage firms in the current amount of
approximately $850,000. This arrangement was in place during all of 2003. Under
this arrangement, Infinity common stock owned by Mr. Ross could be sold by the
brokers to meet margin calls or under certain other conditions.
Members of the board of directors who are not employees of Infinity
receive a fee of $5,000 per quarter. They are also entitled to reimbursement of
reasonable travel expenses incurred by them in attending Board meetings.
Infinity has no retirement, pension, profit sharing or other plans
covering its officers and directors except as disclosed below and except for a
401(k) Plan to which Infinity made no contributions prior to December 31, 2003.
On January 1, 2004, Infinity began matching employee contributions on a dollar
for dollar basis up to 4% of the employee's gross salary. All employees of
Infinity and its subsidiaries who have been employed for a minimum of six months
are eligible to participate in the 401(k) Plan.
1992 Stock Option Plan
In February 1992, the board of directors adopted a Stock Option Plan (the
"1992 Plan") which was approved by Infinity's stockholders in March 1992. The
1992 Plan allows the board to grant stock options from time to time to
employees, officers and directors of Infinity and consultants to Infinity.
The board has the power to determine at the time the option is granted whether
the option will be an Incentive Stock Option (an option which qualifies under
Section 422 of the Internal Revenue Code of 1986) or an option which is not an
Incentive Stock Option. However, Incentive Stock Options will only be granted to
persons who are employees or officers of Infinity. Vesting provisions are
determined by the board at the time options are granted. The total number of
shares of common stock subject to options under the 1992 Plan may not exceed
416,666 subject to adjustment in the event of certain recapitalizations,
reorganizations and so forth. The option price must be satisfied by the payment
of cash. The board of directors may amend the 1992 Plan at any time, provided
that the board may not amend the 1992 Plan to materially increase the benefits
accruing to participants under the 1992 Plan, or materially change the eligible
classes of participants without stockholder approval.
As of December 31, 2003, options to purchase 2,000 shares of common stock
were outstanding under the 1992 Plan with an exercise price of $3.00 per share.
7
1999 Stock Option Plan
On September 9, 1999, the board of directors adopted the 1999 Stock Option
Plan (the "1999 Plan") which was approved by Infinity's stockholders in
October 1999. The 1999 Plan allows the board to grant stock options from time to
time to employees, officers and directors of Infinity and consultants to
Infinity. The board has the power to determine at the time the option is granted
whether the option will be an Incentive Stock Option (an option which qualifies
under Section 422 of the Internal Revenue Code of 1986) or an option which is
not an Incentive Stock Option. However, Incentive Stock Options will only be
granted to persons who are employees or officers of Infinity. Vesting provisions
are determined by the board at the time options are granted. The total number of
shares of common stock subject to options under the 1999 Plan may not exceed
280,000, subject to the adjustment in the event of certain recapitalizations,
reorganizations and so forth. The option price may be paid in cash, or, at the
sole discretion of the board of directors, by other means such as the
cancellation of indebtedness and the surrender of securities of Infinity. The
board of directors may amend the 1999 Plan at any time, provided that the board
may not amend the 1999 Plan to materially increase the benefits accruing to
participants under the Plan, or materially change the eligible class of
participants without stockholder approval.
As of December 31, 2003, options to purchase 62,000 shares of common stock
were outstanding under the 1999 Plan with an exercise price of $1.50 per share.
2000 Stock Option Plan
On September 22, 1999, the board of directors adopted a Stock Option Plan
(the "2000 Plan") which was approved by Infinity's stockholders in July 2000.
The 2000 Plan allows the board to grant stock options from time to time to
employees, officers and directors of Infinity and consultants to Infinity.
The board has the power to determine at the time the option is granted whether
the option will be an Incentive Stock Option (an option which qualifies under
Section 422 of the Internal Revenue Code of 1986) or an option which is not an
Incentive Stock Option. However, Incentive Stock Options will only be granted to
persons who are employees or officers of Infinity. Vesting provisions are
determined by the board at the time options are granted. The total number of
shares of common stock subject to options under the 2000 Plan may not exceed
280,000 subject to adjustment in the event of certain recapitalizations,
reorganizations and so forth. The option price must be satisfied by the payment
of cash. The board of directors may amend the 2000 Plan at any time, provided
that the board may not amend the 2000 Plan to materially increase the benefits
accruing to participants under the 2000 Plan, or materially change the eligible
classes of participants without stockholder approval.
As of December 31, 2003, options to purchase 120,500 shares of common
stock were outstanding under the 2000 Plan with exercise prices ranging from
$1.50 to $3.00 per share.
2001 Stock Option Plan
On July 20, 2000, the board of directors adopted a Stock Option Plan (the
"2001 Plan") which was approved by Infinity's stockholders in July 2001. The
2001 Plan allows the board to grant stock options from time to time to
employees, officers and directors of Infinity and consultants to Infinity.
The board has the power to determine at the time the option is granted whether
the option will be an Incentive Stock Option (an option which qualifies under
Section 422 of the Internal Revenue Code of 1986) or an option which is not an
Incentive Stock Option. However, Incentive Stock Options will only be granted to
persons who are employees or officers of Infinity. Vesting provisions are
determined by the board at the time options are granted. The total number of
shares of common stock subject to options under the 2001 Plan may not exceed
320,000 subject to adjustment in the event of certain recapitalizations,
reorganizations and so forth. The option price must be satisfied by the payment
of cash. The board of directors may amend the
8
2001 Plan at any time, provided that the board may not amend the 2001 Plan to
materially increase the benefits accruing to participants under the 2001 Plan,
or materially change the eligible classes of participants without stockholder
approval.
As of December 31, 2003, options to purchase 224,800 shares of common
stock were outstanding under the 2001 Plan with exercise prices ranging from
$3.815 to $5.00 per share.
2002 Stock Option Plan
On August 16, 2001, the board of directors adopted a Stock Option Plan
(the "2002 Plan") which was approved by Infinity's stockholders on June 6,
2002. The 2002 Plan allows the board to grant stock options from time to time to
employees, officers and directors of Infinity and consultants to Infinity.
The board has the power to determine at the time the option is granted whether
the option will be an Incentive Stock Option (an option which qualifies under
Section 422 of the Internal Revenue Code of 1986) or an option which is not an
Incentive Stock Option. However, Incentive Stock Options will only be granted to
persons who are employees or officers of Infinity. Vesting provisions are
determined by the board at the time options are granted. The total number of
shares of common stock subject to options under the 2002 Plan may not exceed
320,000 subject to adjustment in the event of certain recapitalizations,
reorganizations and so forth. The option price must be satisfied by the payment
of cash. The board of directors may amend the 2002 Plan at any time, provided
that the board may not amend the 2002 Plan to materially increase the benefits
accruing to participants under the 2002 Plan, or materially change the eligible
classes of participants without stockholder approval.
As of December 31, 2003, options to purchase 304,000 shares of common
stock were outstanding under the 2002 Plan with an exercise price of $5.00 per
share.
2003 Stock Option Plan
On June 6, 2002, the board of directors adopted a Stock Option Plan (the
"2003 Plan") which was approved by Infinity's stockholders on June 5, 2003.
The 2003 Plan allows the board to grant stock options from time to time to
employees, officers and directors of Infinity and consultants to Infinity. The
board has the power to determine at the time the option is granted whether the
option will be an Incentive Stock Option (an option which qualifies under
Section 422 of the Internal Revenue Code of 1986) or an option which is not an
Incentive Stock Option. However, Incentive Stock Options will only be granted to
persons who are employees or officers of Infinity. Vesting provisions are
determined by the board at the time options are granted. The total number of
shares of common stock subject to options under the 2003 Plan may not exceed
375,000 subject to adjustment in the event of certain recapitalizations,
reorganizations and so forth. The option price must be satisfied by the payment
of cash. The board of directors may amend the 2003 Plan at any time, provided
that the board may not amend the 2003 Plan to materially increase the benefits
accruing to participants under the 2003 Plan, or materially change the eligible
classes of participants without stockholder approval.
As of December 31, 2003, options to purchase 313,000 shares of common
stock were outstanding under the 2003 Plan with an exercise price of $8.70 to
$8.75 per share.
2004 Stock Option Plan
On April 16, 2004, the board of directors adopted, subject to stockholder
approval, a Stock Option Plan (the "2004 Plan"). The board intends to submit the
2004 Plan to the stockholders for approval at the 2004 annual meeting of
stockholders currently scheduled for June 17, 2004. The 2004 Plan allows the
board to grant stock options from time to time to employees, officers and
directors of Infinity and
9
consultants to Infinity. The board has the power to determine at the time the
option is granted whether the option will be an Incentive Stock Option (an
option which qualifies under Section 422 of the Internal Revenue Code of 1986)
or an option which is not an Incentive Stock Option. However, Incentive Stock
Options will only be granted to persons who are employees or officers of
Infinity. Vesting provisions are determined by the board at the time options are
granted. The total number of shares of common stock subject to options under the
2004 Plan may not exceed 410,000 subject to adjustment in the event of certain
recapitalizations, reorganizations and so forth. The board of directors may
amend the 2004 Plan at any time, provided that the board may not amend the 2004
Plan to materially increase the benefits accruing to participants under the 2004
Plan, or materially change the eligible classes of participants without
stockholder approval.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
None of the members of the Compensation Committee in 2003, George R.
Jones, Leroy C. Richie and O. Lee Tawes, have ever been an officer or employee
of Infinity or its subsidiaries. All relationships between these directors and
Infinity required to be disclosed have been disclosed elsewhere in this annual
report on Form 10-K.
ITEM 12: SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
EQUITY COMPENSATION PLAN INFORMATION
The following table provides information as of December 31, 2003, with
respect to shares of Infinity's Common Stock that may be issued under equity
compensation plans:
Number of securities
remaining available for
Number of securities to Weighted-average exercise future issuance under
be issued upon exercise price of outstanding equity compensation plans
of outstanding options, options, warrants and (excluding securities
warrants and rights rights reflected in column (a))
Plan Category (a) (b) (c)
- --------------------------------- --------------------------- ---------------------------- ---------------------------
Equity compensation plans 1,026,300 $5.25 95,720
approved by security holders
Equity compensation plans not - - -
approved by security holders
--------------------------- ---------------------------- ---------------------------
Total 1,026,300 $5.25 95,720
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth the number and percentage of shares of
Infinity's $.0001 par value common stock owned beneficially, as of April 27,
2004, by any person who is known to Infinity to be the beneficial owner of 5%
or more of such common stock, and, in addition, by each director, nominee for
director and executive officer of Infinity, and by all directors, nominees for
director and executive officers of Infinity as a group. Information as to
beneficial ownership is based upon statements furnished to Infinity by such
persons. As of April 26, 2004, 9,396,091 shares of our common stock were issued
and outstanding.
10
Name and Address of Amount and Nature of Percent
Beneficial Owner (1) Beneficial Ownership of Class
- ------------------------- ------------------------- -----------
Wellington Management 1,010,000 10.8%
Company LLP (2)
Robert O. Lorenz 5,000 *
Leroy C. Richie (3) 151,000 1.6%
Stanton E. Ross (4) 1,040,338 10.9%
O. Lee Tawes (5) 425,400 4.5%
James W. Dean 2,700 *
Jon D. Klugh (6) 73,500 *
Stephen D. Stanfield (7) 58,700 *
James A. Tuell 10,000 *
All directors, nominees 1,766,638
for director, and
executive officers
as a group (8 persons) (8)
- --------------------
* The percentage of shares beneficially owned is less than 1%.
(1) The address of these persons, unless otherwise noted, is Infinity, Inc., 211
West 14th Street, Chanute, Kansas 66720.
(2) The address of Wellington Management Company ("WMC"), LLP is 75 State St.,
Boston, MA 02109. WMC is a registered investment advisor and may be deemed
to be the beneficial owner of 1,010,000 of our shares. These shares are
owned of record by clients of WMC. One such client, Spindrift Investors
(Bermuda) L.P. ("Spindrift"), may be deemed to be the beneficial owner of
550,000 of our shares. Spindrift is a limited partnership and the shares it
holds may also be deemed to be beneficially owned by its general partners,
Wellington Global Holdings, Ltd and Wellington Global Administrator, Ltd.
(3) Includes 111,000 shares which may be purchased within 60 days under stock
options held by Mr. Richie.
(4) Includes 190,000 shares which may be purchased within 60 days under stock
options held by Mr. Ross.
(5) Includes 323,400 shares held directly by Mr. Tawes, 35,000 shares held by
his wife, and 67,000 shares which may be purchased within 60 days under
stock options held by Mr. Tawes.
(6) Includes 73,500 shares which may be purchased within 60 days under stock
options held by Mr. Klugh.
(7) Includes 58,700 shares which may be purchased within 60 days under stock
options held by Mr. Stanfield.
(8) Includes options to purchase 500,200 shares exercisable within 60 days.
There are no known agreements, the operation of which may at a subsequent
date result in a change in control of Infinity.
ITEM 13: CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Infinity's wholly-owned subsidiary, Consolidated Oil Well Services, Inc.,
has a credit facility with an outstanding balance at December 31, 2003 of
approximately $1.4 million. This facility is secured in part by a personal
guarantee of Infinity's president, Stanton E. Ross, in the amount of $1,000,000.
11
Mr. Tawes, one of our directors, is currently a shareholder and in
2003 was a partner in the investment banking firm C.E. Unterberg Towbin.
During 2003, C.E. Unterberg assisted Infinity in placing $1 million in 12%
unsecured notes due April 16, 2004. For these services Infinity issued to
C.E. Unterberg on April 17, 2003 five year warrants to purchase 52,500 shares of
Infinity common stock at an exercise price of $8.75 per share. The 12% notes
were repaid in July 2003.
ITEM 14: PRINCIPAL ACCOUNTANT FEES AND SERVICES
Ehrhardt Keefe Steiner & Hottman, P.C. billed Infinity, Inc. the
following fees for services provided during the years ended December 31, 2003
and 2002:
Fees Paid During Year Ended
------------------------------
December 31, December 31,
2003 2002
-------------- --------------
Audit fees (1) $ 92,185 $ 76,538
Audit-related fees (2) 4,955 2,000
Tax fees (3) 9,100 9,550
All other fees (4) 34,835 12,181
-------------- --------------
TOTAL FEES $141,075 $ 100,269
============== ==============
(1) Audit fees include fees for services rendered for the audit of our annual
financial statements and reviews of quarterly financial statements.
(2) Audit-related fees include reviews of earnings releases and services
performed in connection with the filing of various registration statements
with the Securities and Exchange Commission.
(3) Tax fees include fees for services rendered in connection with the
preparation of our tax returns in the United States.
(4) All other fees include consultation on general corporate matters. For 2003,
this category also includes consultations performed in connection with
certain proposed transactions and Infinity's financial restructuring.
The Audit Committee charter includes certain policies and procedures
regarding the pre-approval of audit and non-audit services performed by an
outside accountant. The Committee is required to pre-approve all engagement
letters and fees for all auditing services (including providing comfort letters
in connection with securities underwritings) and non-audit services performed by
the outside auditors, subject to any exception under Section 10A of the
Securities Exchange Act of 1934 and any rules promulgated thereunder.
Pre-approval authority may be delegated to a Committee member or a subcommittee,
and any such member or subcommittee shall report any decisions to the full
Committee at its next scheduled meeting. One-hundred percent of the services
provided under the caption "Audit-Related Fees," "Tax Fees" and "All Other Fees"
were approved by the Audit Committee pursuant to its pre-approval policy as
provided in the Audit Committee charter.
In connection with the audit of the consolidated financial statements for
the year ended December 31, 2003, approximately 65% of the hours expended by the
principal accountant on the audit engagement were performed by persons other
than the principal accountant's full-time permanent employees.
12
PART IV
ITEM 15: EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) Documents filed as part of this report on Form 10-K or incorporated by
reference.
(1) Our consolidated financial statements are listed on the "index to
Financial Statements" on Page F-1 to this report.
(2) Financial Statement Schedules (omitted because not applicable or
not required. Information is disclosed in the notes to the
financial statements).
(3) The following exhibits are filed herewith or incorporated by
reference.
Exhibit
Number Description of Exhibits
- ------------- -----------------------------------------------------------------------------------------------------
3.1 Articles of Incorporation and Bylaws (1)
3.2 Articles and Amendment to Articles of Incorporation (1)
4.1 Form of 8% Convertible Subordinated Note (1)
4.2 Form of Trust Indenture for 8% Convertible Subordinated Notes with the Wilmington Trust Company (3)
4.3 Form of Placement Agent Warrant in connection with 8% Convertible Subordinated Notes (1)
4.4 Trust Indenture for 7% Convertible Subordinated Notes with Wilmington Trust Company (1)
4.5 Form of Placement Agent Warrants in connection with 7% Convertible Subordinated Notes (4)
4.6 Form of Warrant Agreement for 12% Bridge Note Financing (1)
10.1 Stock Option Plan (1)
10.2 1999 Stock Option Plan (2)
10.3 Assignment of Participation Agreement, Assignment of Participation Agreement, Conveyance, and Bill
of Sale between Infinity Oil and Gas, Inc. and Infinity Oil and Gas of Wyoming, Inc. (2)
10.4 Participation Agreement between Wold Oil Properties, Inc. and Infinity Oil and Gas, Inc. (2)
10.5 Assignment of Oil and Gas Leases, Operating Rights and Record Title, Conveyance and Bill of Sale
between Infinity Oil and Gas, Inc. and Infinity Oil and Gas of Wyoming, Inc. (2)
10.6 Joint Operating Agreement, Manson Lease, between Verde Oil Company and Infinity Oil and Gas of
Kansas, Inc. (2)
10.7 2000 Stock Option Plan (1)
10.8 2001 Stock Option Plan (6)
10.9 Purchase and Sale Agreement dated November 3, 2000 between Antelope Energy Company, LLC, Coyote
Exploration Company and Melange Associates, Inc. and Infinity Oil and Gas of Wyoming, Inc. (6)
10.10 Loan and Security Agreement between LaSalle Bank N.A. and Consolidated Oil Well Services, Inc. and
related guaranties (1)
10.11 2002 Stock Option Plan (7)
10.12 2003 Stock Option Plan (8)
10.13 Form of Assignment of Overriding Royalty Interest for 12% Bridge Note Financing (5)
10.14 Credit agreement dated as of September 4, 2003 between Infinity Oil and Gas of Wyoming, Inc. and
U.S. Bank National Association (5)
10.15 Joint Value Enhancement Agreement dated December 3, 2003 among Infinity Oil and Gas of Wyoming,
Inc., Schlumberger Technology Corporation and Red Oak Capital Management LP* (9)
21 Subsidiaries of the Registrant (9)
23.1 Consent of Ehrhardt, Keefe, Steiner & Hottman, P.C. (9)
23.2 Consent of Netherland Sewell and Associates, Inc. (9)
31.1 Certification of Chief Executive Officer of Periodic Report Pursuant to Rule 13a_14(a) and Rule 15d-14(a)
(Section 302 of the Sarbanes-Oxley act of 2002).
31.2 Certification of Chief Financial Officer of Periodic Report Pursuant to Rule 13a_14(a) and Rule 15d-14(a)
(Section 302 of the Sarbanes-Oxley act of 2002).
13
32.1 Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350 (Section 906 of the
Sarbanes-Oxley Act of 2002)
32.2 Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350 (Section 906 of the
Sarbanes-Oxley Act of 2002)
- --------------------
(1) Incorporated by reference to our Registration Statement (No. 33-17416-D) (2)
Incorporated by reference to our Annual Report on Form 10-KSB for the fiscal
year ended March 31, 2000.
(3) Incorporated by reference to our Registration Statement on Form S-3 (File
No. 333-69292). (4) Incorporated by reference to our Registration Statement
on Form S-3 (File No. 333-96671).
(5) Incorporated by reference to our Quarterly Report on Form 10-QSB for the
quarter ended September 30, 2003. (6) Incorporated by reference to our
Annual Report on Form 10-KSB for the fiscal year ended March 31, 2001.
(7) Incorporated by reference to our Annual Report on Form 10-KSB for the
transition period ended December 31, 2001.
(8) Incorporated by reference to our Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2002.
(9) Previously filed with the Commission as an exhibit to Infinity's 2003 Annual
Report on Form 10-K filed on April 14, 2004.
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment.
(b) Reports on form 8-K.
Infinity filed a report on Form 8-K dated December 10, 2003 in which
Infinity reported under item 5 an agreement with Schlumberger Technology
Corporation and Red Oak Capital Management LP to develop Infinity's
LaBarge Property.
Infinity filed a report on Form 8-K dated November 14, 2003 in which
Infinity reported under Item 7 and Item 12 the financial results for the
third quarter of 2003.
14
SIGNATURES
In accordance with the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, Infinity has duly caused this Report to be
signed on its behalf by the undersigned thereunto duly authorized.
INFINITY, INC.
Dated: April 29, 2004 By: /s/ STANTON E. ROSS
------------------------------------
Stanton E. Ross, President
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of Infinity
and in the capacities and on the dates indicated:
Signature Capacity Date
--------- -------- ----
/s/ STANTON E. ROSS President, Treasurer April 29, 2004
- ------------------------ (Principal Executive
Stanton E. Ross Officer) and Director
/s/ JON D. KLUGH Chief Financial April 29, 2004
- ------------------------ Officer and Secretary
Jon D. Klugh (Principal Financial and
Accounting Officer)
/s/ ROBERT O. LORENZ Director April 29, 2004
- ------------------------
Robert O. Lorenz
/s/ LEROY C. RICHIE Director April 29, 2004
- ------------------------
Leroy C. Richie
/s/ O. LEE TAWES Director April 29, 2004
- ------------------------
O. Lee Tawes
15
Certification
I, Stanton E. Ross, certify that:
1. I have reviewed this amendment to the annual report on Form 10-K of
Infinity, Inc.;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period
covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all
material respects the financial condition, results of operations and
cash flows of the registrant as of, and for, the periods presented in
this annual report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e) for the
registrant and have:
a. Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during
the period in which this annual report is being prepared;
b. Evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this annual report our
conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
annual report based on such evaluation; and
c. Disclosed in this annual report any change in the registrant's
internal control over financial reporting that occurred during
the registrant's most recent fiscal quarter that has materially
affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors:
a. All significant deficiencies and material weaknesses in the
design or operation of internal controls over financial reporting
which are reasonably likely to adversely affect the registrant's
ability to record, process, summarize and report financial
information; and
b. Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
Date: April 29, 2004
/s/ STANTON E. ROSS
----------------------------------
Stanton E. Ross
Chief Executive Officer
Certification
I, Jon D. Klugh, certify that:
1. I have reviewed this amendment to the annual report on Form 10-K of
Infinity, Inc.;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period
covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all
material respects the financial condition, results of operations and
cash flows of the registrant as of, and for, the periods presented in
this annual report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e) for the
registrant and have:
a. Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during
the period in which this annual report is being prepared;
b. Evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this annual report our
conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
annual report based on such evaluation; and
c. Disclosed in this annual report any change in the registrant's
internal control over financial reporting that occurred during
the registrant's most recent fiscal quarter that has materially
affected, or is reasonably likely to materially affect, the
registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors:
a. All significant deficiencies and material weaknesses in the
design or operation of internal controls over financial reporting
which are reasonably likely to adversely affect the registrant's
ability to record, process, summarize and report financial
information; and
b. Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
Date: April 29, 2004
/s/ JON D. KLUGH
----------------------------------
Jon D. Klugh
Chief Financial Officer