Exhibit 4
AMENDED AND RESTATED 2004 BENEFIT PLAN
OF
GFY Foods, Inc.
GFY Foods, Inc., a Nevada corporation ("GFY" and/or the "Company"),
hereby adopts the Amended and Restated 2004 Benefit Plan of GFY (the "Plan")
this 14th day of January 2004. Under the Plan, the Company may issue stock, or
grant options to acquire the Company's common stock, par value $0.001 (the
"Stock"), from time to time to employees of the Company or its subsidiaries, all
on the terms and conditions set forth herein ("Benefits"). In addition, at the
discretion of the Board of Directors, Benefits may from time to time be granted
under this Plan to other individuals, including consultants or advisors, who
contribute to the success of the Company or its subsidiaries but are not
employees of the Company or its subsidiaries, provided that bona fide services
shall be rendered by consultants and advisors and such services must not be in
connection with the offer or sale of securities in a capital-raising
transaction. No stock may be issued, or option granted under the benefit plan to
consultants, advisors, or other persons who directly or indirectly promote or
maintain a market for the Company's securities.
1. Purpose of the Plan. The Plan is intended to aid the Company in maintaining
and developing a management team, attracting qualified officers and employees
capable of assuring the future success of the Company, and rewarding those
individuals who have contributed to the success of the Company. The Company has
designed this Plan to aid it in retaining the services of executives and
employees and in attracting new personnel when needed for future operations and
growth and to provide such personnel with an incentive to remain employees of
the Company, to use their best efforts to promote the success of the Company's
business, and to provide them with an opportunity to obtain or increase a
proprietary interest in the Company. It is also designed to permit the Company
to reward those individuals who are not employees of the Company but who
management perceives to have contributed to the success of the Company or who
are important to the continued business and operations of the Company. The above
goals will be achieved through the granting of Benefits.
2. Administration of this Plan. Administration of this Plan shall be determined
by the Company's Board of Directors (the "Board"). Subject to compliance with
applicable provisions of the governing law, the Board may delegate
administration of this Plan or specific administrative duties with respect to
this Plan on such terms and to such committees of the Board as it deems proper
(hereinafter the Board or its authorized committee shall be referred to as "Plan
Administrators"). The interpretation and construction of the terms of this Plan
by the Plan Administrators thereof shall be final and binding on all
participants in this Plan absent a showing of demonstrable error. No member of
the Plan Administrators shall be liable for any action taken or determination
made in good faith with respect to this Plan. Any Benefit approved by a majority
vote of those Plan Administrators attending a duly and properly held meeting
shall be valid. Any Benefit approved by the Plan Administrators shall be
approved as specified by the Board at the time of delegation.
3. Shares of Stock Subject to this Plan. A total of One Billion Seven Hundred
Fifty Million Shares of Common Stock (1,750,000,000) shares of Stock may be
subject to, or issued pursuant to Benefits granted under this Plan. If any right
to acquire Stock granted under this Plan is exercised by the delivery of shares
of Stock or the relinquishment of rights to shares of Stock, only the net shares
of Stock issued (the shares of stock issued less the shares of Stock
surrendered) shall count against the total number of shares reserved for
issuance under the terms of this Plan.
4. Reservation of Stock on Granting of Option. At the time any Option is granted
under the terms of this Plan, the Company will reserve for issuance the number
of shares of Stock subject to such Option until it is exercised or expires. The
Company may reserve either authorized but unissued shares or issued shares
reacquired by the Company.
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5. Eligibility. The Plan Administrators may grant Benefits to employees,
officers, and directors of the Company and its subsidiaries, as may be existing
from time to time, and to other individuals who are not employees of the Company
or its subsidiaries, including consultants and advisors, provided that such
consultants and advisors render bona fide services to the Company or its
subsidiaries and such services are not rendered in connection with the offer or
sale of securities in a capital-raising transaction. In any case, the Plan
Administrators shall determine, based on the foregoing limitations and the
Company's best interests, which employees, officers, directors, consultants and
advisors are eligible to participate in this Plan. Benefits shall be in the
amounts, and shall have the rights and be subject to the restrictions, as may be
determined by the Plan Administrators, all as may be within the provisions of
this Plan.
6. Term of Options issued as Benefits and Certain Limitations on Right to
Exercise.
a. Each Option issued, as a benefit hereunder ("Option"), shall have its term
established by the Plan Administrators at the time the Option is granted.
b. The term of the Option, once it is granted, may be reduced only as provided
for in this Plan and under the express written provisions of the Option.
c. Unless otherwise specifically provided by the written provisions of the
Option or required by applicable disclosure or other legal requirements
promulgated by the Securities and Exchange Commission ("SEC"), no participant of
this Plan or his or her legal representative, legatee, or distributee will be,
or shall be deemed to be, a holder of any shares subject to an Option unless and
until such participant exercises his or her right to acquire all or a portion of
the Stock subject to the Option and delivers the required consideration to the
Company in accordance with the terms of this Plan and then only as to the number
of shares of Stock acquired. Except as specifically provided in this Plan or as
otherwise specifically provided by the written provisions of the Option, no
adjustment to the exercise price or the number of shares of Stock subject to the
Option shall be made for dividends or other rights for which the record date is
prior to the date on which the Stock subject to the Option is acquired by the
holder.
d. Options shall vest and become exercisable at such time or times and on such
terms as the Plan Administrators may determine at the time of the grant of the
Option.
e. Options may contain such other provisions, including further lawful
restrictions on the vesting and exercise of the Options, as the Plan
Administrators may deem advisable.
f. In no event may an Option be exercised after the expiration of its term.
g. Options shall be non-transferable, except by the laws of descent and
distribution.
7. Exercise Price. The Plan Administrators shall establish the exercise price
payable to the Company for shares to be obtained pursuant to Options, which
exercise price may be amended from time to time, as the Plan Administrators
shall determine.
8. Payment of Exercise Price. The exercise of any Option shall be contingent on
receipt by the Company of the exercise price paid in either cash, certified or
personal check payable to the Company.
9. Withholding. If the grant of a Benefit hereunder, or exercise of an Option
given as a Benefit is subject to withholding or other trust fund payment
requirements of the Internal Revenue Code of 1986, as amended (the "Code"), or
applicable state or local laws, the Company will initially pay the Optionee's
liability and will be reimbursed by Optionee no later than six months after such
liability arises and Optionee hereby agrees to such reimbursement terms.
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10. Dilution or Other Adjustment. The shares of Stock subject to this Plan and
the exercise price of outstanding Options are subject to proportionate
adjustment in the event of a stock dividend on the Stock or a change in the
number of issued and outstanding shares of Stock as a result of a stock split,
consolidation, or other recapitalization. The Company, at its option, may adjust
the Options, issue replacements, or declare Options void.
11. Benefits to Foreign Nationals. The Plan Administrators may, in order to
fulfill the purpose of this Plan and without amending this Plan, grant Benefits
to foreign nationals or individuals residing in foreign countries that contain
provisions, restrictions, and limitations different from those set forth in this
Plan and the Benefits made to United States residents in order to recognize
differences among the countries in law, tax policy, and custom. Such grants
shall be made in an attempt to give such individuals essentially the same
benefits as contemplated by a grant to United States residents under the terms
of this Plan.
12. Listing and Registration of Shares. Each Option shall be subject to the
requirement that if at any time the Plan Administrators shall determine, in
their sole discretion, that it is necessary or desirable to list, register, or
qualify the shares covered thereby on any securities exchange or under any state
or federal law, or obtain the consent or approval of any governmental agency or
regulatory body as a condition of, or in connection with, the granting of such
Option or the issuance or purchase of shares thereunder, such Option may not be
exercised in whole or in part unless and until such listing, registration,
consent, or approval shall have been effected or obtained free of any conditions
not acceptable to the Plan Administrators.
13. Expiration and Termination of this Plan. This Plan may be abandoned or
terminated at any time by the Plan Administrators except with respect to any
Options then outstanding under this Plan. This Plan shall otherwise terminate on
the earlier of the date that is five years from the date first appearing in this
Plan or the date on which the seven hundred fifty millionth share is issued
hereunder.
14. Amendment of this Plan. This Plan may not be amended more than once during
any six month period, other than to comport with changes in the Code or the
Employee Retirement Income Security Act or the rules and regulations promulgated
thereunder. The Plan Administrators may modify and amend this Plan in any
respect.
ATTEST:
/s/ Ed Schwalb
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Ed Schwalb, President
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LANCE C. MARTIN
ATTORNEY AT LAW
24370 W. OLD OAK DR.
MUNDELEIN, IL 60060
(847)487-2283
April 21, 2004
Re: LEGALITY AND AUTHORIZATION OF SHARES ISSUED UNDER FORM S-8
REGISTRATION STATEMENT
Gentlemen:
I have acted as special counsel for GFY Foods, Inc., a Nevada
corporation (the "Company"), in the limited capacity of rendering an opinion
regarding the legality and authorization of the shares proposed to be registered
under a registration statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
("the Act"). The Company is amending the previously registered Benefit Plan now
entitled "The Amended and Restated 2004 Benefit Plan of GFY Foods, Inc."
("Benefit Plan") pursuant to which the Company has authorized the issuance of
one billion seven hundred fifty million (1,750,000,000) shares of the Company's
common stock, par value $0.001 (the "Shares").
In connection with the preparation of this Opinion, I have examined or
discussed the following:
1. The Company's Articles of Incorporation, and Certificates of Amendment of
Articles and Bylaws as submitted to me by the Company pursuant to my request for
same;
2. The Registration Statement herein referenced;
3. The Board of Directors Resolution dated January 15, 2004, authorizing and
approving the Company's 2004 Benefit Plan and the preparation of the
Registration Statement;
4. The Board of Directors Resolution dated April 21, 2004, authorizing and
approving the amendment to the Company's 2004 Benefit Plan.
5. The Company's Form 8-K Dated January 7, 2004.
6. The Company's Form 10-KSB for the fiscal year ended March 31, 2003 and the
Company's Form 10-QSB for the quarterly periods ended September 30, 2003 and
December 31, 2003;
7. Such other documents as I have deemed necessary for the purposes of this
Opinion.
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Additionally, I have made such investigations of federal law, as I have
considered necessary and appropriate to form a basis for this opinion. My
opinion is qualified by the scope of the review specified herein and I make no
representations as to the sufficiency of my investigation for this opinion. I
further expressly exempt from this opinion any representations as to the
completeness, adequacy, accuracy or any other aspect of the financial statements
incorporated in the Registration Statement.
The documentation and representations provided to me for this opinion
by the Company and its duly authorized representatives indicate that the Company
is validly organized under the laws of the State of Nevada; the Company is
current in its filings with the Commission; the Company's Board of Directors has
authorized the Benefit Plan; the Company's Board of Directors has authorized the
filing of the Registration Statement; and that the one billion seven hundred
fifty (1,750,000,000) shares to be included in the Registration Statement are
available for issuance based upon corporate documentation and on the number of
shares actually issued and outstanding. As such, I am of the opinion that the
Shares herein referenced have been duly and validly authorized and that subject
to compliance with all provisions of the Plan, the Shares will be validly issued
as fully paid and non-assessable shares of common stock in the Company.
This opinion is based upon and subject to the qualifications and
limitations specified below:
(A) Certain of the remedial provisions of the 2004 Benefit Plan may be further
limited or rendered unenforceable by other applicable laws and interpretations.
(B) In rendering the opinion that the shares of the Common Stock to be
registered pursuant to the Registration Statement and issued under the Benefit
Plan will be validly issued, fully paid and non-assessable, I assumed that: (1)
the Company's Board of Directors has exercised good faith in establishing the
value paid for the Shares; (2) all issuances and cancellations of the capital
stock of the Company will be fully and accurately reflected in the Company's
Stock Records as provided by the Company's transfer agent; and (3) the
consideration, as determined by the Company's Board of Directors, to be received
in exchange for each issuance of common stock of the Company, has been paid in
full and actually received by the Company.
(C) I have been advised by a Director of GFY Foods that the October 16, 2003
temporary Restraining Order and asset freeze will have no bearing on this
transaction.
(D) I have made no independent verification of the facts asserted to be true and
accurate by authorized representatives of the Company and have assumed that no
person or entity has engaged in fraud or misrepresentation regarding the
inducement relating to, or the execution or delivery of, the documents reviewed.
(E) In rendering this opinion I have assumed that all signatures are genuine,
that all documents submitted to me as copies conform substantially to the
originals, that all documents have been duly executed on or as of the date
represented on the documents, that execution and delivery of the documents was
duly authorized on the part of the parties, that all documents are legal, valid
and binding on the parties and that all corporate records are complete.
(F) I have assumed that the Company is satisfying the substantive requirements
of Form S-8 and I expressly disclaim any opinion regarding the Company's
compliance with such requirements, whether they are of federal or state origin,
or any opinion as to the subsequent tradability of any Shares issued pursuant to
the Benefit Plan.
(G) I am admitted to practice law in the State of Illinois. This opinion is with
respect to federal law only and I have not consulted legal counsel from any
other jurisdiction for the purpose of the opinion contained herein. I expressly
except from this opinion any opinion as to whether or to what extent a Nevada
court or any other court would apply Nevada law, or the law of any other state
or jurisdiction, to any particular aspect of the facts, circumstances and
transactions that are the subject of this opinion.
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(H) This opinion is strictly limited to the parameters contained and referenced
herein and is valid only as of the signature date with respect to the same. I
assume no responsibility to advise you of any subsequent changes or developments
which might affect any aspect of this opinion.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement. This opinion may not be used, relied upon, circulated,
quoted or otherwise referenced in whole or in part for any purpose without my
prior written consent.
Sincerely,
/s/ Lance C. Martin
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Lance C. Martin
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