UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
eCom eCom.com, Inc.
(Exact name of Registrant as specified in its charter)
FLORIDA 65-0538051
(State or other jurisdiction of (I.R.S. Employer Identifi-
incorporation or organization) cation Number)
2700 PGA Blvd. Suite 103
Palm Beach Gardens, FL 33410
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices and place of business)
2003 STOCK INCENTIVE PLAN
(Full title of the plan)
David J. Panaia, CEO/Secretary
eCom eCom.com, Inc.
2700 PGA Blvd. Suite 103
Palm Beach Gardens, FL 33410
(561) 622-4395
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copy to:
James C. Volpi, Esq.
Attorney James Volpi, P.A.
101 East Blue Heron Blvd. Suite 201
Riviera Beach, FL 33404
(561) 844-5727
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE (1) PRICE FEE (2)
Common Stock, 10,000,000 $.012 $200,000 $9.71
$.000l par value Shares
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The price is estimated in accordance with Rule 457(h)(1)
under the Securities Act of 1993, as amended, solely for the purpose of
calculating the registration fee, based on the average of the high and low
prices of the common stock as reported on the OTC:BB Market on November 5,
2003.
(2) Registration fee based upon shares to be issued in the future from time
to time pursuant to the Registrant's 2003 Stock Incentive Plan, calculated
pursuant to Rule 457(h) under the Securities Act of 1933, as amended. The
fiscal 2003 rate is $80.90 per million.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below in paragraphs (a) through (c) of this Item
hereby are incorporated by reference in this Registration Statement. In
addition, all documents hereafter filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), prior to the filing of a post-effective amendment 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 a part hereof from the
date of filing of such documents.
(a) Registrant's Annual Report on Form 10-KSB for Registrant's fiscal
year ended May 31, 2003, filed pursuant to Section 13(a) or 15(d) of the
Exchange Act.
(b) All other reports filed by Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year ended May 31,
2003.
(c) Description of Registrant's Common Stock, $.0001 par value, as set
forth in Item 11 of Registrant's Registration Statement on Form SB-1 filed
with the Commission on September 6, 1995.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Florida Business Corporation Act generally provides that a
corporation may indemnify its directors, officers, employees and agents
against liabilities and reasonable expenses (including attorneys' fees)
incurred in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, and
whether formal or informal (a "Proceeding"), by reason of being or having
been a director, officer, employee, fiduciary or agent of the Corporation, if
such person acted in good faith and reasonably believed that his conduct in
his official capacity with the Corporation was in the best interests of the
Corporation (or, with respect to employee benefit plans, was in the best
interests of the participants in or beneficiaries of the plan), and in all
other cases his conduct was at least not opposed to the Corporation's best
interests. In the case of a criminal proceeding, the director, officer,
employee or agent must have had no reasonable cause to believe his conduct
was unlawful. The Corporation may not indemnify a director, officer,
employee or agent in connection with a proceeding by or in the right of the
Corporation if such person is adjudged liable to the Corporation, or in a
proceeding in which such person is adjudged liable for receipt of an improper
personal benefit. Unless limited by the Corporation's Articles of
Incorporation, the Corporation shall be required to indemnify a director or
officer of the Corporation who is wholly successful, on the merits or
otherwise, in defense of any proceeding to which he was a party, against
reasonable expenses incurred by him in connection with the proceeding. The
foregoing indemnification is not exclusive of any other rights to which those
indemnified may be entitled under applicable law, the Corporation's Articles
of Incorporation, Bylaws, agreement, vote of shareholders or disinterested
directors, or otherwise.
The Corporation's Articles of Incorporation and Bylaws generally provide
for indemnification of directors, officers, employees and agents to the
fullest extent allowed by law.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT
NUMBER DESCRIPTION LOCATION
4.1 Articles of Incorporation Incorporated by reference to
Exhibit 2.0 to the Registrant's
Form SB-1 Registration Statement
No. 33-96638-A
4.2 Bylaws Incorporated by reference to
Exhibit 2.1 to the Registrant's
Form SB-1 Registration Statement
No. 33-96638-A
5.1 Opinion of Attorney Filed electronically herewith
James Volpi, P.A.
10.1 eCom eCom.com Inc. 2003 Filed electronically herewith
23.1 Consent of Attorney Contained in Exhibit 5.1
James Volpi, P.A.
23.2 Consent of Independent Auditor Filed electronically herewith
Wieseneck, Andres & Co., P.A.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the 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 Riviera Beach, State of Florida on
November 7, 2003.
eCom eCom.com, inc.
By: /s/ David J. Panaia
David J. Panaia, Chairman/CEO
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
/s/ David J. Panaia CEO, Chairman, Secretary November 7, 2003
- --------------------------- and Director
David J. Panaia
/s/ Richard C. Turner CFO, Treasurer (Principal November 7, 2003
- --------------------------- Financial and Accounting
Richard C. Turner Officer) and Director
/s/ Peter Tamayo, Jr. President and CTO November 7, 2003
- ---------------------------
Peter Tamayo, Jr.
Exhibit 5.1
LEGAL OPINION
Attorney James Volpi, P.A.
Attorney at Law
TELEPHONE 101 East Blue Heron Boulevard, Suite 201
(561) 844-5727 Riviera Beach, FL 33404
November 7, 2003
eCom eCom.com, Inc.
2700 PGA Blvd. Suite 103
Palm Beach Gardens, FL 33410
Re: SEC Registration Statement on Form S-8
Gentlemen:
We are counsel for eCom eCom.com, Inc., a Florida corporation (the
"Company") in connection with its registration under the Securities Act of
1933, as amended (the "Act"), of 10,000,000 shares of common stock which may
be issued upon the exercise of options granted under the Company's 2003 Stock
Incentive Plan through a Registration Statement on Form S-8 to which this
opinion is a part, to be filed with the Securities and Exchange Commission
(the "Commission").
In connection with rendering our opinion as set forth below, we have
reviewed and examined originals or copies identified to our satisfaction of
the following:
(1) Articles of Incorporation of the Company as filed with the
Secretary of State of the State of Florida, as amended;
(2) Minute book containing the written deliberations and resolutions
of the Board of Directors and Shareholders of the Company;
(3) The Registration Statement; and
(4) The exhibits to the Registration Statement to be filed with the
Commission.
We have examined such other documents and records, instruments and
certificates of public officials, officers and representatives of the
Company, and have made such other investigations as we have deemed necessary
or appropriate under the circumstances.
Based upon the foregoing and in reliance thereon, it is our opinion that
the 10,000,000 shares of the Company's $.0001 par value common stock which
may be issued under the 2003 Stock Incentive Plan will, upon the purchase,
receipt of full payment, issuance and delivery in accordance with the terms
of such options, be duly and validly authorized, legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
referenced Registration Statement on Form S-8.
Very truly yours,
Attorney James Volpi, P.A.
By /s/ James C. Volpi, Esq.
James C. Volpi, Esq.
Exhibit 10.1
ECOM ECOM.COM, INC.
2003 EQUITY INCENTIVE PLAN
SECTION 1.
PURPOSE.
The purposes of the eCom eCom.com, Inc., Inc. 2003 Equity Incentive Plan
(the "Plan") are to promote the interests of eCom eCom.com, Inc., Inc. (the
"Company") and its shareholders by (i) attracting and retaining key
employees, consultants and non-employee directors of the Company and its
Affiliates; (ii) motivating such individuals by means of performance-
related incentives to achieve long-range performance goals; (iii) enabling
such individuals to participate in the long-term growth and financial
success of the Company; and (iv) linking compensation to the long-term
interests of shareholders. With respect to any awards granted under the
Plan that are intended to comply with the requirements of "performance-
based compensation" under Section 162(m) of the Code (as defined below),
the Plan shall be interpreted in a manner consistent with such requirements.
SECTION 2.
DEFINITIONS.
As used in the Plan, the following terms shall have the meanings set forth
below:
"Affiliate" shall mean (i) any entity that, directly or indirectly, is
controlled by the Company, (ii) any entity in which the Company has a
significant equity interest and (iii) an affiliate of the Company, as defined
in Rule 12b-2 promulgated under Section 12 of the Exchange Act, in each case
as determined by the Committee.
"Award" shall mean any Stock, Unrestricted Stock, Stock Option,
Restricted Stock Award, Restricted Stock Unit, Other Stock-Based Award or
Performance Award.
"Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"Board" shall mean the Board of Directors of the Company.
"Cause" shall mean, unless otherwise defined in the applicable Award
Agreement, (i) the engaging by the Participant in willful misconduct that is
injurious to the Company or its Affiliates, (ii) the embezzlement or
misappropriation of funds or property of the Company or its Affiliates by the
Participant, or (iii) the willful failure or refusal by the Participant to
substantially perform his or her duties or responsibilities that continues
after being brought to the attention of the Participant (other than any such
failure resulting from the Participant's incapacity due to Disability). For
purposes of this paragraph, no act, or failure to act, on the Participant's
part shall be considered "willful" unless done, or omitted to be done, by him
or her not in good faith and without reasonable belief that his or her action
or omission was in the best interest of the Company. Any determination of
Cause shall be made by the Committee in its sole discretion. Any such
determination shall be final and binding on a Participant.
"Change in Control" shall mean, unless otherwise defined in the
applicable Award Agreement, a change in control of the Company, which will
be deemed to have occurred if:
(i) any "Person," as such term is used in Sections 13(d) and 14 (d) of
the Exchange Act (other than (A) the Company, (B) any trustee or other
fiduciary holding securities under an employee benefit plan of the Company,
and (C) any corporation owned, directly or indirectly, by the shareholders of
the Company in substantially the same proportions as their ownership of
Shares), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company (not
including any securities acquired directly from the Company or its Affiliates)
representing 25% or more of the combined voting power of the Company's then
outstanding voting securities;
(ii) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, on the
effective date (as defined in Section 16(a) of the Plan), constitute the
Board and any new director (other than a director whose initial assumption
of office is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by the
Board or nomination for election by the Company's shareholders was approved
or recommended by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors on the effective date of the Plan
or whose appointment, election or nomination for election was previously so
approved or recommended;
(iii) there is consummated a merger or consolidation of the Company or
any direct or indirect subsidiary of the Company with any other corporation,
other than (A) a merger or consolidation that would result in the voting
securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving or parent entity) more than 60% of the combined
voting power of the voting securities of the Company or such surviving or
parent entity outstanding immediately after such merger or consolidation or
(B) a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no "person" (as defined above),
directly or indirectly, acquired 40% or more of the combined voting power of
the Company's then outstanding securities (not including any securities
acquired directly from the Company or its Affiliates); or
(iv) the shareholders of the Company approve a plan of complete
liquidation of the Company or there is consummated an agreement for the
sale or disposition by the Company of all or substantially all of the
Company's assets (or any transaction having a similar effect), other than
a sale or disposition by the Company of all or substantially all of the
Company's assets to an entity, at least 60% of the combined voting power
of the voting securities of which are owned by shareholders of the Company
in substantially the same proportions as their ownership of the Company
immediately prior to such sale.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Committee" shall mean a committee of the Board (which may include the
entire Board) designated by the Board to administer the Plan. The Committee
shall be the Compensation Committee or a sub-committee thereof, unless the
Board shall appoint another committee to administer the Plan. Notwithstanding
the foregoing, for purposes of discretionary awards granted to Non-Employee
Directors pursuant to Section 10 of the Plan, references to the Committee
shall be deemed to be references to the Board.
"Covered Officer" shall mean at any date (i) any individual who, with
respect to the previous taxable year of the Company, was a "covered employee"
of the Company within the meaning of Section 162(m); provided, however, that
the term "Covered Officer" shall not include any such individual who is
designated by the Committee, in its discretion, at the time of any Award or at
any subsequent time, as reasonably expected not to be such a "covered
employee" with respect to the current taxable year of the Company and (ii) any
individual who is designated by the Committee, in its discretion, at the time
of any Award or at any subsequent time, as reasonably expected to be such a
"covered employee" with respect to the current taxable year of the Company or
with respect to the taxable year of the Company in which any applicable Award
will be paid.
"Disability" shall mean, unless otherwise defined in the applicable
Award Agreement, a disability that would qualify as such under the Company's
then current long-term disability plan.
"Employee" shall mean an employee of the Company or of any Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" with respect to the Shares, as of any date, shall
mean (i) the closing sales price of the Shares on NASDAQ, or any other such
exchange on which the shares are traded, on such date, or in the absence of
reported sales on such date, the closing sales price on the immediately
preceding date on which sales were reported or (ii) in the event there is no
public market for the Shares, the fair market value as determined, in good
faith, by the Committee in its sole discretion.
"Incentive Stock Option" shall mean an option to purchase Shares from
the Company that is granted under Section 8 of the Plan and that is intended
to meet the requirements of Section 422 of the Code or any successor provision
thereto.
"Issue Date" shall mean the date established by the Committee on which
certificates representing shares of Restricted Stock shall be issued by the
Company.
"Non-Qualified Stock Option" shall mean an option to purchase Shares
from the Company that is granted under Section 8 of the Plan and that is not
intended to be an Incentive Stock Option.
"Non-Employee Director" shall mean a member of the Board who is not an
employee of the Company or any of its Affiliates.
"Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
"Other Stock-Based Award" shall mean any award granted under Section
11 of the Plan.
"Participant" shall mean any Employee, Non-Employee Director or
consultant who receives an Award under the Plan, and upon his or her death,
their successor, heirs, executors and administrators, as the case may be.
"Performance Award" shall mean any right granted under Section 10 of
the Plan.
"Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization,
government or political subdivision thereof or other entity.
"Restricted Stock" shall mean any Share granted under Section 9 of
the Plan.
"Restricted Stock Unit" shall mean any unit granted under Section 9 of
the Plan.
"Retirement" shall mean, unless otherwise defined in the applicable
Award Agreement, retirement of a Participant from the employ or service of the
Company and any of its Affiliates in accordance with the terms of the
applicable Company retirement plan or, if a Participant is not covered by any
such plan, retirement on or after such Participant's 65th birthday.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto and shall include the staff thereof.
"Section 16" shall mean Section 16 of the Exchange Act and the rules
promulgated thereunder and any successor provision thereto as in effect from
time to time.
"Section 162(m) shall mean Section 162(m) of the Code and the rules
promulgated thereunder or any successor provision thereto as in effect from
time to time.
"Shares" shall mean shares of the Common Stock, $0.0001 par value, of
the Company, or such other securities of the Company as may be designated by
the Committee from time to time.
"Substitute Awards" shall mean Awards granted solely in assumption of,
or in substitution for, outstanding awards previously granted by a company
acquired by the Company or with which the Company combines.
SECTION 3.
ADMINISTRATION.
(a) Authority of Committee. The Plan shall be administered by the
Committee. Subject to the terms of the Plan and applicable law, and in
addition to other express powers and authorizations conferred on the Committee
by the Plan, the Committee shall have full power and authority to: (i)
designate Participants; (ii) determine the type or types of Awards to be
granted to a Participant; (iii) determine the number of Shares to be covered
by, or with respect to which payments, rights, or other matters are to be
calculated in connection with, Awards; (iv) determine the terms and conditions
of any Award; (v) determine whether, to what extent, and under what
circumstances Awards may be settled, or exercised in cash, Shares, other
securities, other Awards or other property, or canceled, forfeited, or
suspended and the method or methods by which Awards may be settled, exercised,
canceled, forfeited, or suspended; (vi) determine whether, to what extent, and
under what circumstances cash, Shares, other securities, other Awards, other
property, and other amounts payable with respect to an Award shall be deferred
either automatically or at the election of the holder thereof or of the
Committee; (vii) interpret and administer the Plan and any instrument or
agreement relating to, or Award made under, the Plan; (viii) establish, amend,
suspend, or waive such rules and regulations and appoint such agents as it
shall deem appropriate for the proper administration of the Plan; and (ix)
make any other determination and take any other action that the Committee
deems necessary or desirable for the administration of the Plan.
(b) Committee Discretion Binding. Unless otherwise expressly provided in
the Plan, all designations, determinations, interpretations, and other
decisions under or with respect to the Plan or any Award shall be within the
sole discretion of the Committee, may be made at any time and shall be final,
conclusive, and binding upon all Persons, including the Company, any
Affiliate, any Participant, any holder or beneficiary of any Award, any
Employee, any Non-Employee Director and any consultant.
(c) Delegation. Subject to the terms of the Plan and applicable law, the
Committee may delegate to one or more officers or managers of the Company or
any Affiliate, or to a committee of such officers or managers, the authority,
subject to such terms and limitations as the Committee shall determine, to
grant Awards to, or to cancel, modify or waive rights with respect to, or to
alter, discontinue, suspend, or terminate Awards held by, Participants who are
not officers or directors of the Company for purposes of Section 16 or who are
otherwise not subject to such Section.
(d) No Liability. No member of the Committee shall be liable for any
action, omission, or determination relating to the Plan, and the company shall
indemnify and hold harmless each member of the Committee and each other
director or employee of the Company to whom any duty or power relating to the
administration or interpretation of the Plan has been delegated against any
cost or expense (including counsel fees) or liability (including any sum paid
in settlement of a claim with the approval of the Committee) arising out of
any action, omission or determination relating to the Plan, unless, in either
case, such action, omission or determination was taken or made by such member,
director or employee in bad faith and without reasonable belief that it was
in the best interests of the Company.
SECTION 4.
SHARES AVAILABLE FOR AWARDS.
(a) Shares Available. Subject to adjustment as provided in Section 4(b),
the number of Shares with respect to which Awards may be granted under the
Plan shall be ten million (10,000,000). If, after the effective date of the
Plan, any Shares covered by an Award granted under the Plan, or to which such
an Award relates, are forfeited, or if such an Award is settled for cash or
otherwise terminates or is canceled without the delivery of Shares, then the
Shares covered by such Award, or to which such Award relates, or the number of
Shares otherwise counted against the aggregate number of Shares with respect
to which Awards may be granted, to the extent of any such settlement,
forfeiture, termination or cancellation, shall again become Shares with
respect to which Awards may be granted. In the event that any Option or other
Award granted hereunder is exercised through the delivery of Shares or in the
event that withholding tax liabilities arising from such Award are satisfied
by the withholding of Shares by the Company, the number of Shares available
for Awards under the Plan shall be increased by the number of Shares so
surrendered or withheld.
(b) Adjustments. In the event that the Committee determines that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, exchange of Shares or other securities of the Company, issuance
of warrants or other rights to purchase Shares or other securities of the
Company, or other similar corporate transaction or event affects the Shares
such that an adjustment is determined by the Committee to be appropriate in
order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall, in
such manner as it may deem equitable: (i) adjust any or all of (1) the number
of Shares or other securities of the Company (or number and kind of other
securities or property) with respect to which Awards may be granted, (2) the
maximum number of Shares subject to Awards granted to a Participant pursuant
to Sections 4(a) and 11(b) of the Plan, (3) the number of Shares or other
securities of the Company (or number and kind of other securities or property)
subject to outstanding Awards and (4) the grant or exercise price with respect
to any Award; (ii) if deemed appropriate, provide for 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 (iii) if deemed
appropriate, make provision for a cash payment to the holder of an outstanding
Award; provided, in each case, that (A) with respect to Awards of Incentive
Stock Options no such adjustment shall be authorized to the extent that such
authority would cause the Plan to violate Section 422(b)(1) of the Code, as
from time to time amended and (B) with respect to any Award no such adjustment
shall be authorized to the extent that such authority would be inconsistent
with the Plan's meeting the requirements of Section 162(m), unless otherwise
determined by the Committee.
(c) Substitute Awards. Any Shares underlying Substitute Awards shall not,
unless required by Section 16, be counted against the Shares available for
Awards under the Plan.
(d) Sources of Shares Deliverable Under Awards. Any Shares delivered
pursuant to an Award may consist, in whole or in part, of newly issued shares,
authorized and unissued Shares or of treasury Shares, and the Company hereby
reserves ten million (10,000,000) shares of Common Stock for issuance pursuant
to the Plan.
SECTION 5.
ELIGIBILITY.
Any Employee (including any officer or employee-director of the Company or any
Affiliate who is not a member of the Committee), Non-Employee Director or
consultant shall be eligible to be designated a Participant; provided that
Non-Employee Directors shall only be eligible to receive Awards granted
pursuant to Section 10.
SECTION 6.
CASH BONUSES.
The Committee may, in its absolute discretion, grant, in connection with any
grant of Restricted Stock or Stock Bonus or at any time thereafter, a cash
bonus, payable promptly after the date on which the Participant is required to
recognize income for federal income tax purposes in connection with such
Restricted Stock or Stock Bonus, in such amounts as the Committee shall
determine from time to time; provided however, that in no event shall the
amount of a Cash Bonus exceed the Fair Market Value of the related shares of
Restricted Stock or Stock Bonus on such date. A Cash Bonus shall be subject
to such conditions as the Committee shall determine at the time of the grant
of such Cash Bonus.
SECTION 7.
STOCK BONUSES.
The Committee shall grant Stock Bonuses in such amounts as it shall determine
from time to time. A Stock Bonus shall be paid at such time and subject to
such conditions as the Committee shall determine at the time of the grant of
such Stock Bonus. Certificates for shares of Common Stock granted as a Stock
Bonus shall be issued in the name of the Participant to whom such grant was
made and delivered to such Participant as soon as practicable after the date
on which such Stock Bonus is required to be paid.
SECTION 8.
STOCK OPTIONS.
The Committee may grant Options pursuant to the Plan, which Options shall be
evidenced by agreements in such form as the Committee shall from time to time
approve. Options shall comply with and be subject to the following terms and
conditions:
(a) Grant. Subject to the provisions of the Plan, the Committee shall
have sole and complete authority to determine the Participants to whom Options
shall be granted, the number of Shares to be covered by each Option, the
option price and the conditions and limitations applicable to the exercise of
the Option. The Committee shall have the authority to grant Incentive Stock
Options, or to grant Non-Qualified Stock Options, or to grant both types of
options. In the case of Incentive Stock Options, the terms and conditions of
such grants shall be subject to and comply with such rules as may be
prescribed by Section 422 of the Code, as from time to time amended, and any
regulations implementing such statute.
(b) Exercise Price. The Committee in its sole discretion shall establish
the exercise price at the time each Option is granted. Except in the case of
Substitute Awards, the exercise price of an Option may not be less than the
Fair Market Value on the date of grant of such Option.
(c) Exercise. Each Option shall be exercisable at such times and subject
to such terms and conditions as the Committee may, in its sole discretion,
specify in the applicable Award Agreement or thereafter. The Committee may
impose such conditions with respect to the exercise of options, including
without limitation, any relating to the application of federal, state or
foreign securities laws or the Code, as it may deem necessary or advisable.
Each Option shall be exercisable in whole or in part; provided, that no
partial exercise of an Option shall be for an aggregate exercise price of less
than $1,000. The partial exercise of an Option shall not cause the
expiration, termination or cancellation of the remaining portion of such
Option. Notwithstanding the foregoing, an Option shall not be exercisable
after the expiration of ten years from the date such Option was granted.
(d) Payment. No Shares shall be delivered pursuant to any exercise of an
Option until payment in full of the option price is received by the Company.
Such payment may be made in cash, or its equivalent, or by exchanging Shares
owned by the Participant for at least six months (which are not the subject of
any pledge or other security interest), or by a combination of the foregoing,
provided that the combined value of all cash and cash equivalents and the Fair
Market Value of any such Shares so tendered to the Company as of the date of
such tender is at least equal to such option price. A Participant may elect to
pay all or any portion of the aggregate exercise price by having Shares with a
Fair Market Value on the date of exercise equal to the aggregate exercise
price withheld by the Company or sold by a broker-dealer.
SECTION 9.
RESTRICTED STOCK AND RESTRICTED STOCK UNITS.
The Committee may grant shares of Restricted Stock and Restricted Stock Units
pursuant to the Plan. Each grant of shares of Restricted Stock shall be
evidenced by an agreement in such form as the Committee shall from time to
time approve. Each grant of shares of Restricted Stock shall comply with and
be subject to the following terms and conditions:
(a) Grant. Subject to the provisions of the Plan, the Committee shall
have sole and complete authority to determine the Participants to whom Shares
of Restricted Stock and Restricted Stock Units shall be granted, the number of
Shares of Restricted Stock and/or the number of Restricted Stock Units to be
granted to each Participant, the duration of the period during which, and the
conditions under which, the Restricted Stock and Restricted Stock Units may be
forfeited to the Company, and the other terms and conditions of such Awards.
(b) Transfer Restrictions. Shares of Restricted Stock and Restricted
Stock Units may not be sold, assigned, transferred, pledged or otherwise
encumbered, except, in the case of Restricted Stock, as provided in the Plan
or the applicable Award Agreements. Certificates issued in respect of Shares
of Restricted Stock shall be registered in the name of the Participant and
deposited by such Participant, together with a stock power endorsed in blank,
with the Company. Upon the lapse of the restrictions applicable to such Shares
of Restricted Stock, the Company shall deliver such certificates to the
Participant or the Participant's legal representative.
(c) Payment. Each Restricted Stock Unit shall have a value equal to the
Fair Market Value of a Share. Restricted Stock Units shall be paid in cash,
Shares, other securities or other property, as determined in the sole
discretion of the Committee, upon the lapse of the restrictions applicable
thereto, or otherwise in accordance with the applicable Award Agreement.
(d) Dividends and Distributions. Dividends and other distributions paid
on or in respect of Restricted Stock or Restricted Stock Units may be paid
directly to the Participant, or may be reinvested in additional Shares of
Restricted Stock or in additional Restricted Stock Units, as determined by the
Committee in its sole discretion.
SECTION 10.
PERFORMANCE AWARDS.
(a) Grant. The Committee shall have sole and complete authority to
determine the Participants who shall receive a "Performance Award," which
shall consist of a right that is (i) denominated in cash or Shares, (ii)
valued, as determined by the Committee, in accordance with the achievement of
such performance goals during such performance periods as the Committee shall
establish, and (iii) payable at such time and in such form as the Committee
shall determine.
(b) Terms and Conditions. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine the performance
goals to be achieved during any performance period, the length of any
performance period, the amount of any Performance Award and the amount and
kind of any payment or transfer to be made pursuant to any Performance Award.
(c) Payment of Performance Awards. Performance Awards may be paid in a
lump sum or in installments following the close of the performance period or,
in accordance with procedures established by the Committee, on a deferred
basis.
SECTION 11.
OTHER STOCK-BASED AWARDS.
The Committee shall have authority to grant to Participants an "Other Stock-
Based Award," which shall consist of any right that is (i) not an Award
described in Sections 6 through 8 above and (ii) an Award of Shares or an
Award denominated or payable in, valued in whole or in part by reference to,
or otherwise based on or related to, Shares (including, without limitation,
securities convertible into Shares), as deemed by the Committee to be
consistent with the purposes of the Plan. Subject to the terms of the Plan and
any applicable Award Agreement, the Committee shall determine the terms and
conditions of any such Other Stock-Based Award.
SECTION 12.
NON-EMPLOYEE DIRECTOR AWARDS.
The Committee may provide that all or a portion of a Non-Employee Director's
annual retainer and/or meeting fees be payable (either automatically or at the
election of a Non-Employee Director) in the form of Nonqualified Stock
Options, Restricted Stock and/or Other Stock-Based Awards, including
unrestricted Shares. Subject to the terms of the Plan and any applicable Award
Agreement, the Committee shall determine the terms and conditions of any such
Awards. In addition, the Committee may, in its sole discretion, grant awards
of Restricted Stock to Non-Employee Directors pursuant to such terms and
conditions, as it may deem advisable, so long as such terms and conditions are
not inconsistent with any other terms of the Plan.
SECTION 13.
PROVISIONS APPLICABLE TO COVERED OFFICERS AND
PERFORMANCE-BASED AWARDS.
Notwithstanding anything in the Plan to the contrary, unless the
Committee determines otherwise, all performance-based Restricted Stock Awards,
Restricted Stock Units, Performance Awards, or other Stock-Based Awards shall
be subject to the terms and provisions of this Section 13.
(a) The Committee may grant Restricted Stock Awards, Restricted Stock
Units, Performance Awards and Other Stock-Based Awards to Covered Officers
that vest or become exercisable upon the attainment of performance targets
related to one or more performance goals selected by the Committee from among
the goals specified below. For the purposes of this Section 13, performance
goals shall be limited to one or more of the following Company, subsidiary,
operating unit or division financial performance measures:
(i) earnings before interest, taxes,
depreciation and/or amortization
(ii) operating income or profit
(iii) return on equity, assets, capital,
capital employed, or investment
(iv) after tax operating income
(v) net income
(vi) earnings or book value per share
(vii) cash flow(s)
(viii) Total sales or revenues or sales or
revenues per employee
(ix) production (separative work units or
SWUs)
(x) stock price or total shareholder
return
(xi) dividends
(xii) strategic business objectives,
consisting of one or more objectives
based on meeting specified cost
targets, business expansion goals,
and goals relating to acquisitions
or divestitures
(xiii) except in the case of Section 162(m)
awards to Covered Officers, any other
performance criteria established by the
Committee or any combination thereof.
Each goal may be expressed on an
absolute and/or relative basis, may be
based on or otherwise employ comparisons
based on internal targets, the past
performance of the Company and/or the
past or current performance of other
Companies.
(b) With respect to any Participant, the maximum annual number of shares
in respect of which Restricted Stock Awards, Performance Awards and Other
Stock-Based Awards may be granted under the Plan is 2,000,000 and the maximum
annual amount of any Award settled in cash is $200,000.
(c) To the extent necessary to comply with Section 162(m), with respect
to Restricted Stock Awards, Restricted Stock Units, Performance Awards and
Other Stock-Based Awards, no later than 90 days following the commencement of
each performance period (or such other time as may be required or permitted by
Section 162(m) of the Code), the Committee shall, in writing, (A) select the
performance goal or goals applicable to the performance period, (B) establish
the various targets and bonus amounts which may be earned for such performance
period and (C) specify the relationship between performance goals and targets
and the amounts to be earned by each Covered Officer for such performance
period. Following the completion of each performance period, the Committee
shall certify in writing whether the applicable performance targets have been
achieved and the amounts, if any, payable to Covered Officers for such
performance period. In determining the amount earned by a Covered Officer for
a given performance period, subject to any applicable Award Agreement, the
Committee shall have the right to reduce (but not increase) the amount payable
at a given level of performance to take into account additional factors that
the Committee may deem relevant to the assessment of individual or corporate
performance for the performance period.
SECTION 14.
TERMINATION OF EMPLOYMENT/SERVICE.
The Committee shall have the full power and authority to determine the terms
and conditions that shall apply to any Award upon a termination of employment/
service, including a termination by the Company without Cause, by a
Participant voluntarily, or by reason of death, Disability or Retirement.
SECTION 15.
CHANGE IN CONTROL.
Upon a Change in Control, all outstanding Awards shall vest, become
immediately exercisable or payable or have all restrictions lifted.
SECTION 16.
AMENDMENT AND TERMINATION.
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time;
provided that no such amendment, alteration, suspension, discontinuation or
termination shall be made without shareholder approval if such approval is
necessary to comply with any tax or regulatory requirement for which or with
which the Board deems it necessary or desirable to comply.
(b) Amendments to Awards. The Committee may waive any conditions or
rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Award theretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would adversely affect the
rights of any Participant or any holder or beneficiary of any Award
theretofore granted shall not to that extent be effective without the consent
of the affected Participant, holder, or beneficiary; and provided further that
the Committee shall not have the power to amend the terms of previously
granted Awards to reduce, or cancel such Awards and grant substitute Awards
which would have the effect of reducing the exercise price except pursuant to
paragraph (c) below.
(c) Adjustment of Awards Upon the Occurrence of Certain Unusual or
Nonrecurring Events. The Committee is hereby authorized to make adjustments in
the terms and conditions of, and the criteria included in, Awards in
recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4(b) hereof) affecting the Company, any
Affiliate, or the financial statements of the Company or any Affiliate, or of
changes in applicable laws, regulations, or accounting principles, whenever
the Committee determines that such adjustments are appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan; provided that no such adjustment shall be
authorized to the extent that such authority would be inconsistent with the
Plan's meeting the requirements of Section 162(m), unless otherwise determined
by the Committee.
SECTION 17.
GENERAL PROVISIONS.
(a) Dividend Equivalents. In the sole and complete discretion of the
Committee, an Award may provide the Participant with dividends or dividend
equivalents, payable in cash, Shares, other securities or other property on a
current or deferred basis.
(b) Transferability. Except as provided below, no Award shall be
assigned, alienated, pledged, attached, sold or otherwise transferred or
encumbered by a Participant, except by will or the laws of descent and
distribution. Notwithstanding the foregoing, a Participant may transfer any
vested Award, other than an Incentive Stock Option, to members of his or her
immediate family (defined as his or her spouse, children or grandchildren) or
to one or more trusts for the exclusive benefit of such immediate family
members or partnerships in which such immediate family members are the only
partners if the Award Agreement so provides, the transfer is approved by the
Committee and the Participant does not receive any consideration for the
transfer. Any such transferred Award shall continue to be subject to the same
terms and conditions that were applicable to such Award immediately prior to
its transfer (except that such transferred Award shall not be further
transferable by the transferee).
(c) No Rights to Awards. No Person shall have any claim to be granted any
Award, and there is no obligation for uniformity of treatment of Employees,
Non-Employee Directors, consultants, Participants, or holders or beneficiaries
of Awards. The terms and conditions of Awards need not be the same with
respect to each recipient.
(d) Share Certificates. All certificates for Shares or other securities
of the Company or any Affiliate delivered under the Plan pursuant to any Award
or the exercise thereof shall be subject to such stop transfer orders and
other restrictions as the Committee may deem advisable under the Plan or the
rules, regulations, and other requirements of the SEC, any stock exchange upon
which such Shares or other securities are then listed, and any applicable
Federal or state laws, and the Committee may cause a legend or legends to be
put on any such certificates to make appropriate reference to such
restrictions.
(e) Withholding. A participant may be required to pay to the Company or
any Affiliate and the Company or any Affiliate shall have the right and is
hereby authorized to withhold from any Award, from any payment due or transfer
made under any Award or under the Plan or from any compensation or other
amount owing
to a Participant the amount (in cash, Shares, other securities, other Awards
or other property) of any applicable withholding or other taxes in respect of
an Award, its exercise, or any payment or transfer under an Award or under the
Plan and to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for the payment of such taxes. The
Committee may provide for additional cash payments to holders of Awards to
defray or offset any tax arising from the grant, vesting, exercise, or
payments of any Award.
(f) Award Agreements. Each Award hereunder shall be evidenced by an Award
Agreement that shall be delivered to the Participant and shall specify the
terms and conditions of the Award and any rules applicable thereto. In the
event of a conflict between the terms of the Plan and any Award Agreement, the
terms of the Award Agreement shall prevail.
(g) No Limit on Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or continuing in
effect other compensation arrangements, which may, but need not, provide for
the grant of options, restricted stock, Shares and other types of Awards
provided for hereunder (subject to shareholder approval if such approval is
required), and such arrangements may be either generally applicable or
applicable only in specific cases.
(h) No Right to Employment. The grant of an Award shall not be construed
as giving a Participant the right to be retained in the employ of the Company
or any Affiliate. Further, the Company or an Affiliate may at any time dismiss
a Participant from employment, free from any liability or any claim under the
Plan, unless otherwise expressly provided in the Plan or in any Award
Agreement.
(i) No Rights as Shareholder. Subject to the provisions of the applicable
Award, no Participant or holder or beneficiary of any Award shall have any
rights as a shareholder with respect to any Shares to be distributed under the
Plan until he or she has become the holder of such Shares. Notwithstanding the
foregoing, in connection with each grant of Restricted Stock hereunder, the
applicable Award shall specify if and to what extent the Participant shall not
be entitled to the rights of a shareholder in respect of such Restricted
Stock.
(j) Governing Law. The validity, construction, and effect of the Plan and
any rules and regulations relating to the Plan and any Award Agreement shall
be determined in accordance with the laws of the State of Florida without
giving effect to the conflict of law principles thereof.
(k) Severability. If any provision of the Plan or any Award is or becomes
or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or
as to any Person or Award, or would disqualify the Plan or any Award under any
law deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform to the applicable laws, or if it cannot be construed
or deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Award, such provision shall be stricken
as to such jurisdiction, Person or Award and the remainder of the Plan and any
such Award shall remain in full force and effect.
(l) Other Laws. The Committee may refuse to issue or transfer any Shares
or other consideration under an Award if, acting in its sole discretion, it
determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation (including
applicable non-U.S. laws or regulations) or entitle the Company to recover the
same under Section 16(b), and any payment tendered to the Company by a
Participant, other holder or beneficiary in connection with the exercise of
such Award shall be promptly refunded to the relevant Participant, holder, or
beneficiary. Without limiting the generality of the foregoing, no Award
granted hereunder shall be construed as an offer to sell securities of the
Company, and no such offer shall be outstanding, unless and until the
Committee in its sole discretion has determined that any such offer, if made,
would be in compliance with all applicable requirements of the U.S. federal or
non-U.S. securities laws and any other laws to which such offer, if made,
would be subject.
(m) No Trust or Fund Created. Neither the Plan nor any Award shall create
or be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant or any
other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
(n) No Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash, other securities, or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any
rights thereto shall be canceled, terminated or otherwise eliminated.
(o) Headings. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not
be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
SECTION 18.
TERM OF THE PLAN.
(a) Effective Date. The Plan shall be effective as of November 1, 2003,
provided it has been approved by the Company's shareholders.
(b) Expiration Date. No new Awards shall be granted under the Plan after
the tenth anniversary of the Effective Date. Unless otherwise expressly
provided in the Plan or in an applicable Award Agreement, any Award granted
hereunder may, and the authority of the Board or the Committee to amend,
alter, adjust, suspend, discontinue, or terminate any such Award or to waive
any conditions or rights under any such Award shall, continue after the
authority for grant of new Awards hereunder has been exhausted.
Exhibit 23.2
Consent of Wieseneck, Andres & Co., P.A.
Wieseneck, Andres & Company, P.A.
Certified Public Accountants
772 U. S. Highway 1, Suite 100
North Palm Beach, Florida 33408
(561) 626-0400
Thomas B. Andres, C.P.A.*, C.V.A. FAX (561) 626-3453
Paul M. Wieseneck, C.P.A.
*Regulated by the State of Florida
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors
eCom eCom.com, Inc.
We consent to the incorporation by reference in the registration
statement on Form S-8 of eCom eCom.com, Inc. to our report dated September
26, 2003 relating to the consolidated balance sheet of eCom eCom.com, Inc. as
of May 31, 2003 and 2002, and the related statements of operations,
stockholder's equity, and cash flows for the years then ended which report
appears in the May 31, 2003 Annual Report on Form 10-KSB of eCom eCom.com,
Inc.
/s/ Wieseneck, Andres & Company, P.A.
Wieseneck, Andres & Company, P.A.
November 7, 2003