SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [ x ]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ x ] Preliminary Proxy Statement [ ] Confidential, for Use
of the Commission Only (as
permitted by Rule 14a6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
Atomic Giant.com, Inc.
(Name of registrant as Specified in its Charter)
Payment of Filing Fee (Check the appropriate box):
[ x ] No fee required
[ ] Fee computed on table below per Exchange Act rule 14a-
6(I)(4) and 0-11.
1) Title of each class of securities to which transaction
applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act rule 0-11 (Set forth the amount
of which the filing fee is calculated and state how it was
determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which
the offsetting fee was paid previously. Identify the previous
filing by registration statement number, or the Form or Schedule
and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
ATOMIC GIANT.COM, INC.
887 West Center Street
Orem, Utah 84058
ANNUAL MEETING OF STOCKHOLDERS
April ___, 2000
PROXY STATEMENT AND NOTICE
SOLICITATION OF PROXIES
The enclosed proxy is being solicited by the Board of
Directors of Atomic Giant.com, Inc., 887 West Center Street,
Orem, Utah 84058, a Utah corporation ("Atomic" or the "Company"),
for use at the Annual Meeting of the Stockholders of Atomic (the
"Annual Meeting") to be held at 3:00 p.m., on April ___, 2000, at
the principal office of the Company listed above, and at any
adjournment thereof. This Proxy Statement, together with the
Company's 1999 Annual Report, serves as notice of the Annual
Meeting, a description of the proposals to be addressed at the
Annual Meeting, and a source of information on the Company and
its management.
Stockholders may revoke their proxies by delivering a
written notice of revocation to the Secretary of the Company at
any time prior to the exercise thereof, by the execution of a
later-dated proxy by the same person who executed the prior proxy
with respect to the same shares or by attendance at the Annual
Meeting and voting in person by the person who executed the prior
proxy.
The solicitation will be primarily by mail but may also
include telephone, telegraph or oral communication by officers or
regular employees. Officers and employees will receive no
additional compensation in connection with the solicitation of
proxies. All costs of soliciting proxies will be borne by the
Company. The approximate mailing date of the proxy statement and
proxy to stockholders is March ___, 2000.
All proxies will be voted as specified. In the absence of
specific instructions, proxies will be voted FOR:
(1) the election of four Directors of Atomic to serve for a term
of one year and until their successors are duly elected and
qualified;
(2) approval of the change of the Company's corporate name to
"Datigen.com, Inc.";
(3) approval of the Company's Stock Incentive Plan; and
(4) approval of all other matters by the persons named in the
proxies in accordance with their judgment.
PLEASE SIGN YOUR NAME EXACTLY AS IT APPEARS ON THE PROXY.
STOCKHOLDERS RECEIVING MORE THAN ONE PROXY BECAUSE OF SHARES
REGISTERED IN DIFFERENT NAMES OR ADDRESSES MUST COMPLETE AND
RETURN EACH PROXY IN ORDER TO VOTE ALL SHARES TO WHICH ENTITLED.
OUTSTANDING SHARES AND VOTING RIGHTS
Record Date. Stockholders of record at the close of
business on March 15, 2000, are entitled to notice of and to vote
at the Annual Meeting or any adjournment thereof.
Shares Outstanding. As of February 25, 2000, a total of
825,000 shares of the Company's Common Stock (the "Common Stock")
were outstanding and entitled to vote.
Voting Rights and Procedures. Each outstanding share of
Common Stock is entitled to one vote on all matters submitted to
a vote of stockholders.
The Company's Bylaws and Utah law require the presence, in
person or by proxy, of a majority of the outstanding shares of
Common Stock entitled to vote to constitute a quorum to convene
the Annual Meeting. Shares represented by proxies that reflect
abstentions or "broker non-votes" (i.e., shares held by a broker
or nominee which are represented at the meeting, but with respect
to which such broker or nominee is not empowered to vote on a
particular proposal) will be counted as shares that are present
and entitled to vote for purposes of determining the presence of
a quorum.
Stockholder Proposals For the 2001 Annual Meeting.
Proposals from stockholders intended to be included in the
Company's proxy statement for the 2001 Annual Meeting must be
received by the Secretary of the Company on or before
_____________, 2000, and may be omitted unless the submitting
stockholder meets certain requirements. It is suggested that the
proposal be submitted by certified mail, return-receipt
requested.
ELECTION OF DIRECTORS
(PROPOSAL NO. 1)
The Company's Articles of Incorporation and Bylaws authorize
a Board comprised of not less than three members. Within the
limits specified above, the number of Directors is determined by
a resolution of the Board or by the stockholders at the Annual
Meeting. Pursuant to a resolution adopted by the Board of
Directors the authorized number of members of the Board of
Directors has been set at four.
Set forth below for each nominee for election as a Director,
based on information supplied by him, are his name, age as of the
date of the Annual Meeting, any presently held positions with the
Company, his principal occupation now and for the past five
years, other Directorships in public companies and his tenure of
service with the Company as a Director. Each shall hold office
until the annual meeting of stockholders in 2001.
Nominees For Election As Directors
Steven Lloyd (age 32) is President and Chief Operating
Officer of the Company. He joined Atomic in October, 1999. A
graduate of Brigham Young University with a Bachelor of Science
degree in Business Management, Mr. Lloyd served as a Quality
Assurance Engineer for Axent Technologies, Inc., from April to
October of 1999. From October 1998 to April 1999, Mr. Lloyd
served as Director of Network Services for the Legend Financial
Group. Mr. Lloyd was employed by Corel, Inc. from August 1995
until October 1998, first serving as an International Quality
Assurance Specialist and then as International Quality Assurance
Manager.
J. Tracy Livingston (age 38) joined Atomic in January 2000.
For over the past five years, Mr. Livingston has served as Senior
Vice President of JTech Medical where he is responsible for
supervising various aspects of product development for medical
products and equipment. Mr. Livingston holds a degree in
Mechanical Engineering from the University of Tennessee.
Joseph Ollivier (age 57) joined Atomic in February 1999.
From January 1995 to the present, Mr. Ollivier has been the
President and principal owner of First Capital Development of
Provo, Utah, which is engaged in the business of originating
loans and managing loan assets. He holds a Bachelor of Science
degree in Statistics from Brigham Young University and a Masters
of Business Administration from Stanford.
Josh James (age 26) joined Atomic January 2000. Mr. James
is a graduate of Brigham Young University with a degree in
Business Management. He is co-founder and currently CEO of
MyComputer.com, Inc./Superstats.com., Inc. From October 1996 to
April 1999, Mr. James held the position of President for JP
Interative, LC, a web page development company. Mr. James is
also co-founder and was CEO from September 97 to April 99 of
ScriptSearch, LLC, a company that established the largest CGI
scripts on the Web. From 1995 to 1997, Mr. James was President
and Vice-President of Brigham Young University's Association of
Collegiate Entrepreneurs, a club that teaches students the
intricacies of starting and growing a business.
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Board Meetings and Committees/ Compensation
The Board of Directors met two times during the past fiscal
year. All the directors attended all meetings of the Board of
Directors. Directors who are not employees of the Company are
paid $100 for attendance at each Board meeting, and are
reimbursed for travel expenses incurred to attend each meeting.
Vote and Recommendation
Each Director is elected by vote of a plurality of the
shares of voting stock present and entitled to vote, in person or
by proxy, at the Annual Meeting. Abstentions or broker non-votes
as to the election of directors will not affect the election of
the candidates receiving the plurality of votes. Unless
instructed to the contrary, the shares represented by the proxies
will be voted FOR the election of the nominees named above as
directors. Although it is anticipated that each nominee will be
able to serve as a director, should any nominee become
unavailable to serve, the proxies will be voted for such other
person or persons as may be designated by the Company's Board of
Directors.
The Board Recommends a Vote "FOR" The Nominees
CHANGE IN CORPORATE NAME
(PROPOSAL NO. 2)
Due to the evolving nature of the Company's business, the
Board of Directors has determined that it is the best interests
of the Company to change its corporate name to more closely
identify the Company with its computer software product line sold
under the name "Datigen". The Board of Directors has approved a
change in the Company's corporate name to Datigen.com, Inc.
Subject to stockholder approval, Datigen.com, Inc. will be the
name of the Company. The name change will be effected by an
amendment to the Company's Articles of Incorporation.
Vote and Recommendation
Approval of the change in corporate name will require the
affirmative vote of the holders of a majority of the issued and
outstanding shares of Common Stock. Abstentions as to this
Proposal 2 will be treated as votes against Proposal 2. Broker
non-votes, however, will be treated as unvoted for purposes of
determining approval of Proposal 2 and will not be counted as
votes for or against Proposal 2. Properly executed, unrevoked
Proxies will be voted FOR Proposal 2 unless a vote against
Proposal 2 or abstention is specifically indicated in the Proxy.
The Board of Directors Recommends a Vote "For" the Corporate Name
Change.
APPROVAL OF THE COMPANY'S
INCENTIVE STOCK PLAN
(PROPOSAL NO. 3)
At the Annual Meeting, stockholders will be asked to approve
the Company's Long-Term Stock Incentive Plan (the "Plan"). The
Plan is being submitted to stockholders in order to satisfy the
stockholder approval requirements of Section 422 and Section
162(m) of the Internal Revenue Code of 1986, as amended (the
"Code"). A copy of the Plan is presented in Appendix A to this
proxy statement for your review and approval.
Purpose of the Plan
The purposes of the Plan are to enhance the growth and
profitability of the Company by providing the incentive of long-
term rewards to employees and consultants, to attract and retain
employees and consultants of outstanding competence and ability,
to encourage long-term stock ownership by employees and
consultants, and to further align the interests of such employees
with those of the stockholders by providing them with the
incentive of long-term rewards through and an opportunity for
capital accumulation in the form of a proprietary interest in the
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Company. The Plan is not a pension, profit-sharing, or stock
bonus plan designed to qualify under Section 401(a) of the Code
or employee benefit plan subject to any of the provisions of the
Employee Retirement Income Security Act of 1974.
Additional purposes of the Plan are to satisfy the
stockholder approval requirements of Section 422 and 162(m) of
the Code. Section 422 provides for incentive stock option awards
that have beneficial tax consequences for employees, and thereby
facilitates the broader purposes of the Plan.
Section 162(m) of the Code disallows a public company's
deductions for employee remuneration exceeding $1,000,000 per
year for its Chief Executive Officer and other four most highly
compensated officers, but contains an exception for "performance-
based compensation" that meets certain requirements. In order
for the Plan to meet these requirements, the material terms of
the Plan must be approved by the Company's stockholders, as set
forth herein. Although the Company does not expect compensation
to approach the $1,000,000 limit in the foreseeable future, the
Plan is intended to qualify grants of stock options, stock
awards, and cash awards made under the Plan as "performance-based
compensation" pursuant to section 162(m) of the Code should that
circumstance ever arise. The Plan limits the number of shares
subject to options and stock awards granted to any individual in
any calendar year to no more than 50,000 shares.
Any award intended to be "performance-based compensation"
shall be conditioned on the achievement of one or more
performance measures and shall be made during the period required
under Section 162(m). The Plan specifies one performance
measure, which is positive income from continuing operations.
This means that for any fiscal year in which the Company has
positive income from continuing operations the Executive
Compensation Committee may grant awards intended to be
performance-based compensation within the meaning of Section
162(m). Other "performance measures" that may be used by the
Executive Compensation Committee for such awards shall be based
on one or more of the following:
(i) operating profits (including earnings before interest
expense, taxes, depreciation, and amortization), net profits,
earnings per share, profit returns and margins, revenues,
shareholder return and/or value, stock price, working capital,
shareholder equity, and economic profit, which may be measured on
a Company, subsidiary, or business unit basis; or
(ii) any one or more of the performance criteria set forth
in the next preceding subparagraph (i) measured on the basis of a
relative comparison of Company, subsidiary, or business unit
performance to the performance of a peer group of entities or
other external measure of the selected performance criteria;
provided, that profit, earnings, and revenues used for any
performance measure shall exclude: gains or losses on operating
asset sales or dispositions; litigation or claim judgments or
settlements; accruals for historic environmental obligations;
effect of changes in tax law or rate on deferred tax liabilities;
accruals for reorganization and restructuring programs; uninsured
catastrophic property losses; the cumulative effect of changes in
accounting principles; and any extraordinary non-recurring items
described in applicable accounting principles.
Description of the Plan
The purpose of the Plan is to provide directors, officers,
employees, and consultants with additional incentives by
increasing their ownership interests in the Company. Directors,
officers, and other employees of the Company and its subsidiaries
are eligible to participate in the Plan. In addition, awards may
be granted to consultants providing valuable services to the
Company. As of February 17, 2000, the Company employed five
individuals and retained one consultant who are eligible to
participate in the Plan. Awards under the Plan may include
incentive stock options ("ISOs"), non-qualified stock options
("NQSOs"), stock appreciation rights, stock units, restricted
stock, restricted stock units, performance shares, performance
units, or cash awards.
The Plan provides for administration by an Executive
Compensation Committee of the Board, and in the absence of such a
committee, the Board of Directors. It is expected that an
Executive Compensation Committee will be formed in 2000 following
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the Annual Meeting. The Executive Compensation Committee
generally has discretion to determine the terms of a Plan Award,
including the type of award, number of shares or units covered by
the award, option price, term, vesting schedule, and post-
termination exercise period or payment. Notwithstanding this
discretion: (i) the number of shares subject to an award granted
to any individual in any calendar year may not exceed 50,000
shares; (ii) the option price per share of Common Stock may not
be less than 100% of the fair market value of such share at the
time of grant or 110% of the fair market value of such shares if
the option is granted to a stockholder owning more than 10% of
the combined voting power of all classes of the stock of the
Company or a parent or subsidiary on the date of the grant of the
option (a "10% stockholder"); and (iii) the term of any ISO may
not exceed 10 years, or five years if the option is granted to a
10% stockholder. No outstanding stock option or other award
under the Plan has been granted subject to the receipt of
stockholder approval of the Plan.
A maximum of 250,000 shares of Common Stock that may be
subject to outstanding awards, determined immediately after the
grant of any award under the Plan. Shares of Common Stock which
are attributable to awards which have expired, terminated, or
been canceled or forfeited during any calendar year are available
for issuance or use in connection with future awards.
The Plan will remain in effect indefinitely, unless earlier
terminated by the Board of Directors. No ISO may be granted more
than 10 years after the original adoption of the Plan by the
Board. The Plan may be amended by the Board of Directors without
the consent of the stockholders of the Company, except that
stockholder approval is required for any amendment that
materially increases the aggregate number of shares of stock that
may be issued under the Plan or materially modifies the
requirements as to eligibility for participation in the Plan.
Tax Treatment of Awards
Incentive Stock Options. An employee will not recognize
federal taxable income, upon either the grant or exercise of the
ISO. However, for purposes of the alternative minimum tax
imposed under the Code, in the year in which an ISO is exercised,
the amount by which the fair market value of the shares acquired
upon exercise exceeds the exercise price will be treated as an
item of adjustment and included in the computation of the
recipient's alternative minimum taxable income. An employee who
disposes of the shares acquired upon exercise of an ISO after two
years from the date the ISO was granted and after one year from
the date such shares were issued upon exercise of the ISO will
recognize long-term capital gain or loss in the amount of the
difference between the amount realized on the sale and the
exercise price, and the Company will not be entitled to any tax
deduction by reason of the grant or exercise of the ISO. As a
general rule, if an employee disposes of the shares acquired upon
exercise of an ISO before satisfying both holding period
requirements (a "disqualifying disposition"), his or her gain
recognized on such a disposition will be taxed as ordinary income
to the extent of the difference between the fair market value of
such shares on the date of exercise and the exercise price, and
the Company will be entitled to a deduction in that amount. The
gain, if any, in excess of the amount recognized as ordinary
income on such a disqualifying disposition will be long-term or
short-term capital gain, depending upon the length of time the
shares were held prior to disposition.
Non-Qualified Stock Options. There are no federal income
tax consequences to an individual or to the Company upon the
grant of an NQSO under the Plan. Upon the exercise of an NQSO,
an individual will recognize ordinary compensation income in an
amount equal to the excess of the fair market value of the shares
at the time of exercise over the exercise price of the NQSO, and
the Company generally will be entitled to a corresponding federal
income tax deduction. Upon the sale of shares acquired by the
exercise of an NQSO, an individual will have a capital gain or
loss (long-term or short-term depending upon the length of time
the shares were held) in an amount equal to the difference
between the amount realized upon the sale and the individual's
adjusted tax basis in the shares (the exercise price plus the
amount of ordinary income recognized by the individual at the
time of exercise of the NQSO).
Stock Appreciation Rights. There are no federal income tax
consequences to an individual or to the Company upon the grant of
a SAR under the Plan. Upon the exercise of a SAR, an individual
will recognize ordinary compensation income in an amount equal to
the consideration received, and the Company generally will be
entitled to a corresponding federal income tax deduction. If the
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SAR is paid by the Company in shares of stock, sale of the shares
will result in a long-term or short-term capital gain or loss in
an amount equal to the difference between the amount realized
upon the sale and the individual's adjusted tax basis in the
shares (the amount of ordinary income recognized by the
individual at the time of exercise of the SAR).
Other Stock or Unit Awards. Generally, stock units,
restricted stock, restricted stock units, performance shares, and
performance units have no federal income tax consequences at the
time of grant, because the awards are subject to a vesting
schedule or other conditions rendering the awards subject to a
risk of forfeiture. The recipient of the award may make an
election under Section 83 of the Code to realize ordinary
compensation income at the time of grant equal to the fair market
value of the award at that time, in which case the Company is
entitled to a corresponding federal income tax deduction. If no
Section 83 election is made, then ordinary compensation income is
not recognized until the risk of forfeiture lapses, and the
Company is entitled to a federal income tax deduction at that
time. Subsequent sale of the shares will result in a long-term
or short-term capital gain or loss in an amount equal to the
difference between the amount realized upon the sale and the
recipient's adjusted tax basis in the shares (the amount of
ordinary income recognized through the Section 83 election or, if
no such election is made, at the time the risk of forfeiture
lapses).
Vote Required
The proposal to approve the Incentive Stock Plan must be
approved by the affirmative vote of a majority of the shares of
voting stock present and voted on the proposal, in person or by
proxy, at the Annual Meeting. Abstentions will have the effect
of a negative vote on the proposal. If no direction is indicated
on the proxy, the shares represented by the proxy will be voted
FOR the proposal. "Broker Non-votes" as to the proposal will not
affect the outcome of the vote on the proposal.
The Board of Directors Recommends a Vote "For" the approval of
the Company Incentive Stock Plan.
SECURITY OWNERSHIP OF MANAGEMENT AND PRINCIPAL STOCKHOLDERS
The table on the following page sets forth as of February
25, 2000, the number and percentage of the outstanding shares of
Common Stock which, according to the information supplied to the
Company, were beneficially owned by (i) each person who is
currently a director of the Company, (ii) each Named Executive
Officer (as defined below), (iii) all current directors and
executive officers of the Company as a group and (iv) each person
who, to the knowledge of the Company, is the beneficial owner of
more than 5% of the outstanding Common Stock. Except as
otherwise indicated, the persons named in the table have sole
voting and dispositive power with respect to all shares
beneficially owned, subject to community property laws where
applicable.
Common Options/ Percent
Shares Warrants of Class
(1) (2)
Steven Lloyd (3) 200,000 25,000 26.47%
1454 N. 530 West
Pleasant Grove, UT 84062
Joseph Ollivier (3) 45,000 75,000 13.33%
3191 N. Canyon Road
Provo, UT 84604
Tracy Livingston (3) -0- 25,000 2.94%
288 South 500 East
Heber City, UT 84032
Josh James (3) -0- 25,000 2.94%
4264 N. Mile High Dr.
Provo, UT 84604
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Seastone Companies, L.C.(4) 50,000 -0- 6.06%
4290 N. Vintage Circle
Provo, UT 84604
Officers and Directors as 245,000 150,000 40.51%
a Group (Four persons)
(1) These figures represent options and warrants that are vested
or will vest within 60 days from the date as of which information
is presented in the table.
(2) These figures represent the percentage of ownership of the
named individuals assuming each of them alone has exercised his
or her options, warrants, or conversion rights, and percentage
ownership of all officers and directors of a group assuming all
such purchase or conversion rights held by such individuals are
exercised.
(3) Officer and/or director of the Company.
(4) Seastone Companies, L.C., is owned by Sunbrook Holdings Ltd.
("Sunbrook"). The general partners of Sunbrook are Warren R.
Osbourne and Tricia R. Osbourne. Therefore, Sunbrook, Warren R.
Osbourne, and Tricia R. Osbourne may be deemed to have shared
voting and investment control with respect to 50,000 shares held
of record by Seastone Companies, L.C.
EXECUTIVE OFFICERS
Information regarding Steven Lloyd (President and Secretary)
and Joseph Ollivier (Treasurer and Chief Financial Officer) is
presented under the caption "Election Of Directors", above.
All executive officers are elected by the Board and hold
office until the next Annual Meeting of stockholders and until
their successors are elected and qualify.
EXECUTIVE COMPENSATION
Annual Compensation
The following table sets forth certain information regarding
the annual and long-term compensation for services in all
capacities to the Company for the prior fiscal year ended
December 31, 1999 of those persons who were either (i) the chief
executive officer of the Company during the last completed fiscal
year or (ii) one of the other four most highly compensated
executive officers of the Company as of the end of the last
completed fiscal year whose annual salary and bonuses exceeded
$100,000 (collectively, the "Named Executive Officers").
Name and Principal Long Term All Other
Position Annual Compensation Compensation Compensation
(1)
Other Annual Options/
Year Salary($) Bonus($) Compensation SARs (#)
Steven Lloyd 1999 $3,000 -0- -0- -0- -0-
President,
Secretary
Miles Pitcher (1) 1999 $5,000 -0- -0- -0- -0-
President
(1) Mr. Pitcher resigned his position in October 1999.
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Employment and Other Arrangements
The Company has no agreement or understanding, express or
implied, with any officer, director, or principal stockholder, or
their affiliates or associates, regarding employment with the
Company or compensation for services. There are no other plans,
understandings, or arrangements whereby any of the Company's
officers, directors, or principal stockholders, or any of their
affiliates or associates, would receive funds, stock, or other
assets in connection with operating the Company.
Stock Options and Warrants
No stock options were issued to any of the Named Executive
Officers during fiscal year 1999.
In January 2000, the Company granted to each of the
directors a non-qualified option to purchase 25,000 shares of the
Company's common stock on or before December 31, 2002, at an
exercise price of $2.25 per share, which was the fair market
value of the Company's common stock based on the trading price
for the Company's securities on the date of grant.
Joseph Ollivier, a founder of the Company, was issued a
warrant to purchase 50,000 shares of the Company's common stock
at an exercise price of $1.00 per share, which expires on January
1, 2001, for his consulting services in connection with the
formation of the Company and future services to be rendered in
connection with implementing its internet business. There is no
written agreement between the Company and Mr. Ollivier regarding
these services, and the Company is relying solely on his equity
interest in the Company to induce him to commit his time and
efforts to the Company. As a result of issuing the warrant, the
Company recognized an expense of $20,500, for issuance of the
below market warrant to an affiliate.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The following discussion includes certain relationships and
related transactions which occurred during the Company's fiscal
year ended December 31, 1999.
The Company rented office space from Joseph Ollivier, a
founder and principal stockholder of the Company, for $300 per
month from inception until October 1999.
OTHER INFORMATION
Section 16(a) of the Securities Exchange Act of 1934
requires officers and Directors of the Company and persons who
own more than ten percent of a registered class of the Company's
equity securities to file reports of ownership and changes in
their ownership with the Securities and Exchange Commission, and
forward copies of such filings to the Company. Based on the
copies of filings received by the Company, during the most recent
fiscal year, the directors, officers, and beneficial owners of
more than ten percent of the equity securities of the Company
registered pursuant to Section 12 of the Exchange Act, have
filled on a timely basis, all required Forms 3, 4, and 5 and any
amendments thereto.
FORM 10-K
THE COMPANY WILL PROVIDE WITHOUT CHARGE A COPY OF THE
COMPANY'S MOST RECENT REPORT ON FORM 10-KSB, AS FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION, UPON WRITTEN REQUEST TO THE
COMPANY'S SECRETARY AT ATOMIC GIANT.COM, INC., 887 WEST CENTER
STREET, OREM, UTAH 84058.
OTHER MATTERS
As of the date of this Proxy Statement, the Board of
Directors of the Company knows of no other matters which may come
before the Annual Meeting. However, if any matters other than
8
those referred to herein should be presented properly for
consideration and action at the Annual Meeting, or any
adjournment or postponement thereof, the proxies will be voted
with respect thereto in accordance with the best judgment and in
the discretion of the proxy holders.
Please sign the enclosed proxy and return it in the enclosed
return envelope.
Dated: ___________________, 2000
9
Appendix A
DATIGEN.COM, INC.
LONG-TERM STOCK INCENTIVE PLAN
SECTION 1
GENERAL
1.1.Purpose. The Datigen.com, Inc., Long-Term Stock
Incentive Plan (the "Plan") has been established by Datigen.com,
Inc. (the "Company") to (i) attract and retain persons eligible
to participate in the Plan; (ii) motivate Participants, by means
of appropriate incentives, to achieve long-range goals; (iii)
provide incentive compensation opportunities that are competitive
with those of other similar companies; and (iv) further identify
Participants' interests with those of the Company's other
shareholders through compensation that is based on the Company's
common stock; and thereby promote the long-term financial
interest of the Company and the Subsidiaries, including the
growth in value of the Company's equity and enhancement of long-
term shareholder return.
1.2.Participation. Subject to the terms and conditions of
the Plan, the Committee shall determine and designate, from time
to time, from among the Eligible Persons (including transferees
of Eligible Persons to the extent the transfer is permitted by
the Plan and the applicable Award Agreement), those persons who
will be granted one or more Awards under the Plan, and thereby
become "Participants" in the Plan. In the discretion of the
Committee, a Participant may be granted any Award permitted under
the provisions of the Plan, and more than one Award may be
granted to a Participant. Awards may be granted as alternatives
to or replacement of awards outstanding under the Plan, or any
other plan or arrangement of the Company or a Subsidiary
(including a plan or arrangement of a business or entity, all or
a portion of which is acquired by the Company or a Subsidiary).
1.3.Operation, Administration, and Definitions. The
operation and administration of the Plan, including the Awards
made under the Plan, shall be subject to the provisions of
Section 4 (relating to operation and administration).
Capitalized terms in the Plan shall be defined as set forth in
the Plan (including the definition provisions of Section 6 of the
Plan).
SECTION 2
OPTIONS AND SARS
2. 1. Definitions.
(a) The grant of an "Option" entitles the Participant to
purchase shares of Stock at an Exercise Price established by
the Committee. Options granted under this Section 2 may be
either Incentive Stock Options ("ISOs") or Non-Qualified
Options ("NQOs"), as determined in the discretion of the
Committee. An "ISO" is an Option that is intended to
satisfy the requirements applicable to an "incentive stock
option" described in section 422(b) of the Code. An "NQO"
is an Option that is not intended to be an "incentive stock
option" as that term is described in section 422(b) of the
Code.
(b) A stock appreciation right (an "SAR") entities the
Participant to receive, in cash or Stock (as determined in
accordance with subsection 2.5), value equal to (or
otherwise based on) the excess of: (a) the Fair Market Value
of a specified number of shares of Stock at the time of
exercise; over (b) an Exercise Price established by the
Committee.
2.2. Exercise Price. The "Exercise Price" of each Option
and SAR granted under this Section 2 shall be established by the
Committee or shall be determined by a method established by the
Committee at the time the Option or SAR is granted; except that
the Exercise Price shall not be less than 100% of the Fair Market
Value of a share of Stock on the date of grant.
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2.3. Exercise. An Option and an SAR shall be exercisable in
accordance with such terms and conditions and during such periods
as may be established by the Committee.
2.4. Payment of Option Exercise Price. The payment of the
Exercise Price of an Option granted under this Section 2 shall be
subject to the following:
(a) Subject to the following provisions of this subsection 2.4,
the full Exercise Price for shares of Stock purchased upon
the exercise of any Option shall be paid at the time of such
exercise (except that, in the case of an exercise
arrangement approved by the Committee and described in
paragraph 2.4(c), payment may be made as soon as practicable
after the exercise).
(b) The Exercise Price shall be payable in cash or by tendering,
by either actual delivery of shares or by attestation,
shares of Stock acceptable to the Committee (including
Shares deemed issued for purposes of exercising a conversion
right under an Award), and valued at Fair Market Value as of
the day of exercise, or in any combination thereof, as
determined by the Committee.
(c) The Committee may permit a Participant to elect to pay the
Exercise Price upon the exercise of an Option by irrevocably
authorizing a third party to sell shares of Stock (or a
sufficient portion of the shares) acquired upon exercise of
the Option and remit to the Company a sufficient portion of
the sale proceeds to pay the entire Exercise Price and any
tax withholding resulting from such exercise.
2.5. Settlement of Award. Shares of Stock delivered
pursuant to the exercise of an option or SAR shall be subject to
such conditions, restrictions and contingencies as the Committee
may establish in the applicable Award Agreement. Settlement of
SARs may be made in shares of Stock (valued at their Fair Market
Value at the time of exercise), in cash, or in a combination
thereof, as determined in the discretion of the Committee. The
Committee, in its discretion, may impose such conditions,
restrictions and contingencies with respect to shares of Stock
acquired pursuant to the exercise of an Option or an SAR as the
Committee determines to be desirable.
SECTION 3
OTHER STOCK AWARDS
3.1. Definitions.
(a) A "Stock Unit" Award is the grant of a right to receive
shares of Stock in the future.
(b) A "Performance Share" Award is a grant of a right to receive
shares of Stock or Stock Units which is contingent on the
achievement of performance or other objectives during a
specified period.
(c) A "Restricted Stock" Award is an grant of shares of Stock,
and a "Restricted Stock Unit" Award is the grant of a right
to receive shares of Stock in the future, with such shares
of Stock or right to future delivery of such shares of Stock
subject to a risk of forfeiture or other restrictions that
will lapse upon the achievement of one or more goals
relating to completion of service by the Participant, or
achievement of performance or other objectives, as
determined by the Committee.
3.2. Restrictions on Stock Awards. Each Stock Unit Award,
Restricted Stock Award, Restricted Stock Unit Award and
Performance Share Award shall be subject to the following:
(a) Any such Award shall be subject to such conditions,
restrictions and contingencies as the Committee shall
determine. The Committee may designate whether any such
Award being granted to any Participant are intended to be "
performance-based compensation" as that term is used in
section 162(m) of the Code. Any such Awards designated as
intended to be "performance-based compensation" shall be
conditioned on the achievement of one or more Performance
Measures. For Awards intended to be "performance-based
compensation," the grant of the Awards and the establishment
of the Performance Measures shall be made during the period
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required under Code section 162(m). The "performance
measures" that may be used by the Committee for such Awards
shall be based on one or more of the following, as selected
by the Committee:
(i) operating profits (including EBITDA), net
profits, earnings per share, profit returns and margins,
revenues, shareholder return and/or value, stock price, or
working capital, which may be measured on a Company,
Subsidiary, or business unit basis; or
(ii) any one or more of the performance criteria
set forth in the next preceding paragraph (i) measured on
the basis of a relative comparison of entity performance to
the performance of a peer group of entities or other
external measure of the selected performance criteria;
provided, that profit, earnings, and revenues used for any
performance measure shall exclude: gains or losses on
operating asset sales or dispositions; litigation or claim
judgments or settlements; accruals for historic
environmental obligations; effect of changes in tax law or
rate on deferred tax liabilities; accruals for
reorganization and restructuring programs; uninsured
catastrophic property losses; the cumulative effect of
changes in accounting principles; and any extraordinary non-
recurring items as described in Accounting Principles Board
Opinion No. 30.
SECTION 4
OPERATION AND ADMINISTRATION
4.1. Effective Date. Subject to the approval of the
shareholders of the Company in the manner required by the laws of
the state of Utah, the Plan shall be effective as of
____________, 2000 (the "Effective Date"); provided, however,
that to the extent that Awards are granted under the Plan prior
to its approval by shareholders, the Awards shall be contingent
on approval of the Plan by the shareholders of the Company. The
Plan shall be unlimited in duration and, in the event of Plan
termination, shall remain in effect as long as any Awards under
it are outstanding; provided, however, that, to the extent
required by the Code, no ISO may be granted under the Plan on a
date that is more than ten years from the date the Plan is
adopted or, if earlier, the date the Plan is approved by
shareholders.
4.2. Shares Subject to Plan. The shares of Stock for which
Awards may be granted under the Plan shall be subject to the
following:
(a) Subject to the following provisions of this subsection 4.2,
the maximum number of shares of Stock that may be delivered to
Participants and their beneficiaries under the Plan shall be
250,000.
(b) To the extent that any shares of Stock covered by an Award
are not delivered to a Participant or beneficiary because the
Award is forfeited or canceled, or the shares of Stock are not
delivered because the Award is settled in cash or used to satisfy
the applicable tax withholding obligation, such shares shall not
be deemed to have been delivered for purposes of determining the
maximum number of shares of Stock available for delivery under
the Plan.
(c) If the exercise price of any stock option granted under the
Plan or any Prior Plan is satisfied by tendering shares of Stock
to the Company (by either actual delivery or by attestation),
only the number of shares of Stock issued net of the shares of
Stock tendered shall be deemed delivered for purposes of
determining the maximum number of shares of Stock available for
delivery under the Plan.
(d) Subject to paragraph 4.2(e), the following additional
maximums are imposed under the Plan.
(i) The maximum number of shares of stock that may be
issued by Options intended to be ISOs shall be 250,000
shares.
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(ii) The maximum number of shares of Stock that may be
issued in conjunction with Awards granted pursuant to
Section 3 (relating to Stock Awards) shall be 250,000
shares.
(iii) The maximum number of shares that may be covered
by Awards granted to any one individual pursuant to Section
2 (relating to Options and SARs) shall be 50,000 shares
during any one-calendar year period.
(iv) No more than 50,000 shares of Stock may be subject to
Stock Unit awards, Restricted Stock Awards, Restricted Stock
Unit Awards and Performance Share Awards that are intended
to be "performance-based compensation" (as that term is used
for purposes of Code section 162(m)) granted to any one
individual during any one-calendar-year period (regardless
of when such shares are deliverable).
(e) In the event of a corporate transaction involving the
Company (including, without limitation, any stock dividend,
stock split, extraordinary cash dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off,
combination or exchange of shares), the Committee may adjust
Awards to preserve the benefits or potential benefits of the
Awards. Action by the Committee may include: (i) adjustment
of the number and kind of shares which may be delivered
under the Plan; (ii) adjustment of the number and kind of
shares subject to outstanding Awards; (iii) adjustment of
the Exercise Price of outstanding Options and SARs; and (iv)
any other adjustments that the Committee determines to be
equitable.
4.3. General Restrictions. Delivery of shares of Stock or
other amounts under the Plan shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, the Company
shall have no liability to deliver any shares of Stock under
the Plan or make any other distribution of benefits under
the Plan unless such delivery or distribution would comply
with all applicable laws (including, without limitation, the
requirements of the Securities Act of 1933), and the
applicable requirements of any securities exchange or
similar entity.
(b) To the extent that the Plan provides for issuance of stock
certificates to reflect the issuance of shares of Stock, the
issuance may be effected on a non-certificated basis, to the
extent not prohibited by applicable law or the applicable
rules of any stock exchange.
4.4. Tax Withholding. All distributions under the Plan are
subject to withholding of all applicable taxes, and the Committee
may condition the delivery of any shares or other benefits under
the Plan on satisfaction of the applicable withholding
obligations. The Committee, in its discretion, and subject to
such requirements as the Committee may impose prior to the
occurrence of such withholding, may permit such withholding
obligations to be satisfied through cash payment by the
Participant, through the surrender of shares of Stock which the
Participant already owns, or through the surrender of shares of
Stock to which the Participant is otherwise entitled under the
Plan.
4.5. Use of Shares. Subject to the overall limitation on
the number of shares of Stock that may be delivered under the
Plan, the Committee may use available shares of Stock as the form
of payment for compensation, grants or rights earned or due under
any other compensation plans or arrangements of the Company or a
Subsidiary, including the plans and arrangements of the Company
or a Subsidiary assumed in business combinations.
4.6. Dividends and Dividend Equivalents. An Award
(including without limitation an Option or SAR Award) may provide
the Participant with the right to receive dividend payments or
dividend equivalent payments with respect to Stock subject to the
Award (both before and after the Stock subject to the Award is
earned, vested, or acquired), which payments may be either made
currently or credited to an account for the Participant, and may
be settled in cash or Stock as determined by the Committee. Any
such settlements, and any such crediting of dividends or dividend
equivalents or reinvestment in shares of Stock, may be subject to
such conditions, restrictions and contingencies as the Committee
shall establish, including the reinvestment of such credited
amounts in Stock equivalents.
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4.7. Payments. Awards may be settled through cash payments,
the delivery of shares of Stock, the granting of replacement
Awards or combination thereof as the Committee shall determine.
Any Award settlement, including payment deferrals, may be subject
to such conditions, restrictions and contingencies, as the
Committee shall determine. The Committee may permit or require
the deferral of any Award payment, subject to such rules and
procedures as it may establish, which may include provisions for
the payment or crediting of interest, or dividend equivalents,
including converting such credits into deferred Stock
equivalents. Each Subsidiary shall be liable for payment of cash
due under the Plan with respect to any Participant to the extent
that such benefits are attributable to the services rendered for
that Subsidiary by the Participant. Any disputes relating to
liability of a Subsidiary for cash payments shall be resolved by
the Committee.
4.8 Transferability. Except as otherwise provided by the
Committee, Awards under the Plan are not transferable except as
designated by the Participant by will or by the laws of descent
and distribution.
4.9 Form and Time of Elections. Unless otherwise specified
herein, each election required or permitted to be made by any
Participant or other person entitled to benefits under the Plan,
and any permitted modification, or revocation thereof, shall be
in writing filed with the Committee at such times, in such form,
and subject to such restrictions and limitations, not
inconsistent with the terms of the Plan, as the Committee shall
require.
4.10 Agreement With Company. An Award under the Plan shall
be subject to such terms and conditions, not inconsistent with
the Plan, as the Committee shall, in its sole discretion,
prescribe. The terms and conditions of any Award to any
Participant shall be reflected in such form of written document
as is determined by the Committee. A copy of such document shall
be provided to the Participant, and the Committee may, but need
not require that the Participant shall sign a copy of such
document. Such document is referred to in the Plan as an "Award
Agreement" regardless of whether any Participant signature is
required.
4.11 Action by Company or Subsidiary. Any action required
or permitted to be taken by the Company or any Subsidiary shall
be by resolution of its board of directors, or by action of one
or more members of the board (including a committee of the board)
who are duly authorized to act for the board, or (except to the
extent prohibited by applicable law or applicable rules of any
stock exchange) by a duly authorized officer of such company.
4.12.Gender and Number. Where the context admits, words in
any gender shall include any other gender, words in the singular
shall include the plural and the plural shall include the
singular.
4.13.Limitation of Implied Rights.
(a) Neither a Participant nor any other person shall, by reason
of participation in the Plan, acquire any right in or title
to any assets, funds or property of the Company or any
Subsidiary whatsoever, including, without limitation, any
specific funds, assets, or other property which the Company
or any Subsidiary, in their sole discretion, may set aside
in anticipation of a liability under the Plan. A
Participant shall have only a contractual right to the Stock
or amounts, if any, payable under the Plan, unsecured by any
assets of the Company or any Subsidiary, and nothing
contained in the Plan shall constitute a guarantee that the
assets of the Company or any Subsidiary shall be sufficient
to pay any benefits to any person.
(b) The Plan does not constitute a contract of employment, and
selection as a Participant will not give any participating
person the right to be retained in the employ of the Company
or any Subsidiary, nor any right or claim to any benefit
under the Plan, unless such right or claim has specifically
accrued under the terms of the Plan. Except as otherwise
provided in the Plan, no Award under the Plan shall confer
upon the holder thereof any rights as a shareholder of the
Company prior to the date on which the individual fulfills
all conditions for receipt of such rights.
4.14.Evidence. Evidence required of anyone under the Plan
may be by certificate, affidavit, document or other information,
which the person acting on it considers pertinent and reliable,
and signed, made or presented by the proper party or parties.
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SECTION 5
COMMITTEE
5.1. Administration. The authority to control and manage
the operation and administration of the Plan shall be vested in a
committee (the "Committee") in accordance with this Section 5.
The Committee shall be selected by the Board, and shall consist
solely of one or more members of the Board who are not employees.
If the Committee does not exist, or for any other reason
determined by the Board, the Board may take any action under the
Plan that would otherwise be the responsibility of the Committee.
5.2. Powers of Committee. The Committee's administration of
the Plan shall be subject to the following:
(a) Subject to the provisions of the Plan, the Committee will
have the authority and discretion to select from among the
Eligible Persons those persons who shall receive Awards, to
determine the time or times of receipt, to determine the
types of Awards and the number of shares covered by the
Awards, to establish the terms, conditions, performance
criteria, restrictions, and other provisions of such Awards,
and (subject to the restrictions imposed by Section 6) to
cancel or suspend Awards.
(b) To the extent that the Committee determines that the
restrictions imposed by the Plan preclude the achievement of
the material purposes of the Awards in jurisdictions outside
the United States, the Committee will have the authority and
discretion to modify those restrictions as the Committee
determines to be necessary or appropriate to conform to
applicable requirements or practices of jurisdictions
outside of the United States.
(c) The Committee will have the authority and discretion to
interpret the Plan, to establish, amend, and rescind any
rules and regulations relating to the Plan, to determine the
terms and provisions of any Award Agreement made pursuant to
the Plan, and to make all other determinations that may be
necessary or advisable for the administration of the Plan.
(d) Any interpretation of the Plan by the Committee and any
decision made by it under the Plan is final and binding on
all persons.
(e) In controlling and managing the operation and administration
of the Plan, the Committee shall take action in a manner
that conforms to the articles and by-laws of the Company,
and applicable state corporate law.
5.3. Delegation by Committee. Except to the extent
prohibited by applicable law or the applicable rules of a stock
exchange, the Committee may allocate all or any portion of its
responsibilities and powers to any one or more of its members and
may delegate all or any part of its responsibilities and powers
to any person or persons selected by it. Any such allocation or
delegation may be revoked by the Committee at any time.
5.4. Information to be Furnished to Committee. The Company
and Subsidiaries shall furnish the Committee with such data and
information as it determines may be required for it to discharge
its duties. The records of the Company and Subsidiaries as to a
Participant's employment, termination of employment, leave of
absence, reemployment and compensation shall be conclusive on all
persons unless determined to be incorrect. Participants and
other persons entitled to benefits under the Plan must furnish
the Committee such evidence, data or information as the Committee
considers desirable to carry out the terms of the Plan.
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SECTION 6
AMENDMENT AND TERMINATION
The Board may, at any time, amend or terminate the Plan,
provided that no amendment or termination may, in the absence of
written consent to the change by the affected Participant (or, if
the Participant is not then living, the affected beneficiary),
adversely affect the rights of any Participant or beneficiary
under any Award granted under the Plan prior to the date such
amendment is adopted by the Board; provided that adjustments
pursuant to subject to subsection 4.2(e) shall not be subject to
the foregoing limitations of this Section 6.
SECTION 7
DEFINED TERMS
In addition to the other definitions contained herein, the
following definitions shall apply:
(a) Award. The term "Award" shall mean any award or benefit
granted under the Plan, including, without limitation, the
grant of Options, SARs, Stock Unit Awards, Restricted Stock
Awards, Restricted Stock Unit Awards and Performance Share
Awards.
(b) Board. The term "Board" shall mean the Board of Directors
of the Company.
(c) Code. The term "Code" means the Internal Revenue Code of
1986, as amended. A reference to any provision of the Code
shall include reference to any successor provision of the
Code.
(d) Eligible Person. The term "Eligible Person" shall mean any
director, officer, employee or consultant of the Company or
a Subsidiary. An Award may be granted to a person in
connection with hiring, retention or otherwise prior to the
date the person first performs services for the Company or
the Subsidiaries, provided that such Award shall not become
vested prior to the date the person first performs such
services.
(e) Fair Market Value. For purposes of determining the "Fair
Market Value" of a share of Stock as of any date, the
following rules shall apply:
(i) If the principal market for the Stock is a national
securities exchange or the Nasdaq stock market, then the
"Fair Market Value" as of that date shall be the mean
between the lowest and highest reported sale prices of the
Stock on that date on the principal exchange which the Stock
is then listed or admitted to trading.
(ii) If sale prices are not available or if the principal
market for the Stock is not a national securities exchange
and the Stock is not quoted on the Nasdaq stock market, the
average between the highest bid and lowest asked prices for
the Stock on such day as reported on the NASDAQ OTC Bulletin
Board Service or by the National Quotation Bureau,
Incorporated or a comparable service.
(iii) If the day is not a business day, and as a result,
paragraphs (i) and (ii) next above are inapplicable, the
Fair Market Value of the Stock shall be determined as of the
last preceding business day. If paragraphs (i) and (ii)
next above are otherwise inapplicable, then the Fair Market
Value of the Stock shall be determined in good faith by the
Committee.
(f) Subsidiaries. The term "Subsidiary" means any company
during any period in which it is a "subsidiary corporation"
(as that term is defined in Code section 424(f)) with
respect to the Company.
(g) Stock. The term "Stock" shall mean shares of common stock
of the Company.
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[Proxy Form Appendix]
ATOMIC GIANT.COM, INC.
887 West Center Street
Orem, Utah 84058
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Steven Lloyd and Joseph
Ollivier as Proxies, each with the power to appoint his
substitute, and hereby authorizes each of them to represent and
to vote, as designated below, all the shares of Common Stock of
Atomic Giant.com, Inc., Inc. (the "Company") held of record by
the undersigned on March 15, 2000, at the Annual Meeting of
Stockholders to be held on April ___, 2000, and at any
adjournment or postponement thereof.
Proposal No.1 The election of each of the following persons as
directors of the Company
(1) Steven Lloyd (2) J.Tracy Livingston (3) Joseph Ollivier (4) Josh James
[] For all nominees
[] Withhold all nominees
[] Withhold authority to vote for any individual nominee.
Write number(s) of nominee(s) ____
Proposal No. 2 Approve change of the Company's corporate name to
"Datigen.com, Inc." by amending Articles of
Incorporation
[] For [] Against [] Abstain
Proposal No. 3 Approve Long-Term Stock Incentive Plan
[] For [] Against [] Abstain
Note The proxies are authorized to vote in accordance with their
judgment on any matters other than those referred to herein
that are properly presented for consideration and action at
the Annual Meeting.
This proxy, when properly executed, will be voted in the manner
directed herein by the undersigned stockholder. If no direction
is given, this proxy will be voted for Proposal No.'s 1, 2 and 3.
All other proxies heretofore given by the undersigned to vote
shares of stock of the Company, which the undersigned would be
entitled to vote if personally present at the Annual Meeting or
any adjournment or postponement thereof, are hereby expressly
revoked.
Dated:________________________________, 2000
__________________________________________
__________________________________________
Please sign it exactly as name appears hereon. When shares are
held by joint tenants, both should sign. When signing as
attorney, executor, administrator, trustee or guardian, please
give full title as such. If a corporation or partnership, please
sign in full corporate or partnership name by an authorized
officer or person.
Please mark, sign, date and promptly return the proxy card. If
your address is incorrectly shown, please print changes.
17