SCHEDULE 14 C
INFORMATION STATEMENT PURSUANT TO SECTION 14 (C)
OF THE SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box:
[ ] Preliminary information statement
[X] Definitive information statement
Confidential, for use of the Commission only (as permitted by Rule 14c-5(d)(2))
IJOIN SYSTEMS, INC.
(formerly Tech-Creatins, Inc.)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
Not Applicable.
(2) Aggregate number of securities to which transaction applies:
Not Applicable.
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined): Not Applicable.
(4) Proposed maximum aggregate value of transaction: Not Applicable.
(5) Total fee paid: Not Applicable.
[ ] 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: Not Applicable.
(2) Form, Schedule or Registration Statement No. : Not Applicable.
(3) Filing Party: Not Applicable.
(4) Date Filed: Not Applicable.
IJOIN SYSTEMS, INC.
265 SUNRISE AVENUE, SUITE 204
PALM BEACH FLORIDA 33480
May 7, 2001
Dear Stockholder:
This Information Statement is being provided to inform you that the
holders of a majority of the outstanding common stock of iJoin Systems, Inc.
(f/k/a Tech-Creations, Inc., the "Corporation"), has delivered to the
Corporation written consent to the following actions:
Authorizing the 2001 Stock Option Plan;
Authorizing the Amended and Restated Certificate of Incorporation.
The actions taken by the holders of a majority of the outstanding
common stock will become effective on June 24, 2001.
This Information Statement is being provided to you for information
purposes only. Your vote is not required to approve the action. This Information
Statement does not relate to an annual meeting or special meeting in lieu of an
annual meeting. You are not being asked to send a proxy and you are requested
not to send one.
Very truly yours,
/s/William H. Ragsdale
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William H. Ragsdale, Secretary
INFORMATION STATEMENT
OF
IJOIN SYSTEMS, INC.
NOTICE TO STOCKHOLDERS PURSUANT TO
SECTION 14(c) OF THE SECURITIES EXCHANGE ACT OF 1934
This Information Statement is being furnished to the holders of common
stock, par value $.0001 per share (the "Corporation Common Stock"), of iJoin
Systems, Inc. (f/k/a Tech-Creations, Inc.), a Delaware corporation (the
"Corporation") to inform you that the Board of Directors of the Corporation and
the holders of a majority of the outstanding Corporation Common Stock have
authorized, by written consents dated April 24, 2001 and May 4, 2001, the 2001
Stock Option Plan and the Amended and Restated Certificate of Incorporation,
respectively.
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WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE
REQUESTED NOT TO SEND US A PROXY
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IJOIN SYSTEMS, Inc. 2001 Stock Option Plan
The Board of Directors and Majority Shareholders of iJoin Systems, Inc.
has approved and adopted by written consent, the iJoin Systems, Inc. 2001 Stock
Option Plan (the "Plan"). The purpose of the Plan is to maintain the ability of
the Corporation and its subsidiaries to attract and retain highly qualified and
experienced directors, employees and consultants and to give such directors,
employees and consultants a continued proprietary interest in the success of the
Corporation and its subsidiaries. In addition the Plan is intended to encourage
ownership of common stock, $.0001 par value ("Common Stock"), of the Corporation
by the directors, employees and consultants of the Corporation and its
Affiliates (as defined) and to provide increased incentive for such persons to
render services and to exert maximum effort for the success of the Corporation
business. The following description of the Plan is qualified by the Plan itself,
attached hereto as Exhibit "A."
General Provisions of the Plan
The purpose of the Plan is to promote the success and enhance the value
of the Corporation by linking the personal interests of Optionees to those of
the Corporation's stockholders by providing Optionees with an incentive for
outstanding performance. The Plan is further intended to assist the Corporation
in its ability to motivate, and retain the services of, Optionees upon whose
judgment, interest and special effort the successful conduct of its and its
subsidiaries' operations is largely dependent.
The Plan shall be administered by the Committee, which shall be
composed of the entire Board of Directors or of two or more Non-Employee
Directors, as defined in Rule 16b-3(b)(3) promulgated under the Exchange Act (to
the extent Section 16 of the Exchange Act is applicable to Options granted under
the Plan) and who also qualify as "Outside Directors" (but only with respect to
the period during which Options granted under the Pan are subject to the
deduction limitations of Section 162(m) of the Internal Revenue Code of 1986).
Subject to the express provisions of the Plan, the Committee shall have
authority, in its discretion, to determine the persons to whom Options shall be
granted, the times when such Options shall be granted, the number of Options,
the exercise price of each Option, the period(s) during which an Option shall be
exercisable (whether in whole or in part), the restrictions to be applicable to
Options and the other terms and provisions thereof (which need not be
identical).
Under the Plan, officers and key employees of the Corporation, or of
any Parent or Subsidiary, who are regularly employed on a salaried or hourly
basis as common law employees, and Consultants, and directors of the Corporation
or of any Parent or Subsidiary who are not employees, shall be eligible to
participate in the Plan.
Subject to the adjustments provided in Section VII of the Plan , the
aggregate number of shares of Common Stock which may be granted under the Plan
is three million (3,000,000) shares.
The Plan shall automatically terminate on the day immediately preceding
the tenth (10th) anniversary of the date the Plan was adopted by the Board of
Directors of the Corporation, unless sooner terminated by such Board of
Directors. No Options may be granted under the Plan subsequent to the
termination of the Plan.
Stock Options
The Committee shall have the authority, in its discretion, to
grant Incentive Stock Options or to grant Non-Qualified Stock Options or to
grant both types of Options. Notwithstanding anything contained herein to the
contrary, an Incentive Stock Option may be granted only to common law employees
of the Corporation or of any Parent or Subsidiary now existing or hereafter
formed or acquired, and not to any director or officer who is not also such a
common law employee. In order for an Option grant to satisfy the
"performance-based compensation" exemption to the deduction limitation under
Code Section 162(m), the maximum number of shares of Common Stock subject to
Options which may be granted to any single Executive during any one calendar
year, beginning with the year grants under the Plan first become subject to such
deduction limitations, is one million (1,000,000).
Exercise Price. The Committee shall establish the exercise price at the
time any Option is granted at such amount as the Committee shall determine;
provided, however, that the exercise price for each share of Common Stock
purchasable under any Option which is intended to satisfy the performance-based
compensation exemption to the deduction limitation under Section 162(m) of the
Code or any Incentive Stock Option granted hereunder shall be such amount as the
Committee shall, in its best judgment, determine to be not less than one hundred
percent (100%) of the Fair Market Value per share of Common Stock at the date
the Option is granted; and provided, further, that in the case of an Incentive
Stock Option granted to a person who, at the time such Incentive Stock Option is
granted, owns shares of stock of the Corporation or of any Parent or Subsidiary
which possess more than ten percent (10%) of the total combined voting power of
all classes of shares of stock of the Corporation or of any Parent or
Subsidiary, the exercise price for each share of Common Stock shall be such
amount as the Committee, in its best judgment, shall determine to be not less
than one hundred ten percent (110%) of the Fair Market Value per share of Common
Stock at the date the Option is granted. The exercise price will be subject to
adjustment in accordance with the provisions of Section VII of the Plan.
Payment of Exercise Price. The exercise price per share of Common Stock
with respect to each Option shall be payable at the time the Option is
exercised. Such price shall be payable in cash or pursuant to any of the other
methods set forth in Sections V(a) or (b) hereof, as determined by the
Committee. Shares of Common Stock delivered to the Corporation in payment of the
exercise price shall be valued at the Fair Market Value of the Common Stock on
the date preceding the date of the exercise of the Option.
Exercisability of Options. Except as provided in Section VI(e) hereof,
each Option shall be exercisable in whole or in installments, and at such
time(s), and subject to the fulfillment of any conditions on, and to any
limitations on, exercisability as may be determined by the Committee at the time
of the grant of such Options. The right to purchase shares of Common Stock shall
be cumulative so that when the right to purchase any shares of Common Stock has
accrued such shares of Common Stock or any part thereof may be purchased at any
time thereafter until the expiration or termination of the Option.
Expiration of Options. No Incentive Stock Option by its terms shall be
exercisable after the expiration of ten (10) years from the date of grant of the
Option; provided, however, in the case of an Incentive Stock Option granted to a
person who, at the time such Option is granted, owns shares of stock of the
Corporation or of any Parent or Subsidiary possessing more than ten percent
(10%) of the total combined voting power of all classes of shares of stock of
the Corporation or of any Parent or Subsidiary, such Option shall not be
exercisable after the expiration of five (5) years from the date such Option is
granted.
Exercise Upon Optionee's Termination of Employment or Termination of
Consulting Relationship. If the employment of an Optionee by the Corporation or
by any Parent or Subsidiary is terminated for any reason, any Incentive Stock
Option granted to such Optionee may not be exercised later than three (3) months
(one (1) year in the case of termination due to death or Disability) after the
date of such termination of employment; and, if an Optionee's employment (or
Consulting Relationship) is terminated (i) by the Corporation other than for
Good Cause or (ii) by the Optionee with the written consent of the Committee or
for Good Reason or due to the Optionee's death or Disability, then any
Non-Qualified Option granted to such Optionee may not be exercised later than
three (3) months (one (1) year in the case of termination due to death or
Disability) after the date of such termination of employment (or Consulting
Relationship). For purposes of determining whether any Optionee has incurred a
termination of employment (or a Termination of Consulting Relationship), an
Optionee who is both an employee (or a Consultant) and a director of the
Corporation and/or any Parent or Subsidiary shall (with respect to any
Non-Qualified Option that may have been granted to him) be considered to have
incurred a termination of employment (or a Termination of Consulting
Relationship) only upon his termination of service both as an employee (or as a
Consultant) and as a director. Furthermore, except to the extent otherwise
provided in the option agreement evidencing the subject Option(s), (A) if an
Optionee's employment (or Consulting Relationship) is terminated by the
Corporation or by any Parent or Subsidiary for Good Cause or (B) if an Optionee
voluntarily terminates his employment (or Consulting Relationship) other than
(x) with the written consent of the Committee or (y) for Good Reason, Disability
or death, regardless of whether such Optionee continues to serve as a director
of the Corporation or of any Parent or Subsidiary, then the Optionee shall, at
the time of such termination of employment (or Termination of Consulting
Relationship), forfeit his rights to exercise any and all of the outstanding
Option(s) theretofore granted to him.
Maximum Amount of Incentive Stock Options. Each Option under which
Incentive Stock Options are granted shall provide that to the extent the sum of
(i) the Fair Market Value of the shares of Common Stock (determined as of the
time of the grant of the Option) subject to such Incentive Stock Option plus
(ii) the fair market values (determined as of the date(s) of grant of the
option(s)) of all other shares of Common Stock subject to incentive stock
options granted to an Optionee by the Corporation or any Parent or Subsidiary,
which are exercisable for the first time by any person during any calendar year,
exceed(s) One Hundred Thousand Dollars ($100,000), such excess shares of Common
Stock shall not be deemed to be purchasable pursuant to Incentive Stock Options,
but shall be deemed to be purchasable pursuant to Non-Qualified Options (with
such Non-Qualified Options being the last-issued of the subject Options). The
terms of the immediately preceding sentence shall be applied by taking all
options, whether or not granted under the Plan, into account in the order in
which they are granted.
Dividend Equivalents for Outstanding Options. The Committee may, in its
sole discretion, provide that amounts equivalent to dividends shall be payable
with respect to one or more shares of Common Stock subject to vested but
unexercised Option(s) granted to an Optionee. Subject to the terms contained in
the appropriate Option, dividend equivalents related to an Optionee's Options(s)
shall be credited to a suspense account (and remain the property of the
Corporation) at such times (and in such amounts) as are dividends payable to the
then shareholders of record of the Corporation's Common Stock. Dividend
equivalents shall be payable to the Optionee in cash or in Common Stock, as set
forth under the terms of the Option, if and at such time as the related
Option(s) are exercised.
Tax Information
(a) The Corporation may make such provisions as it may deem appropriate
for the withholding of any taxes which it determines is required in connection
with any options granted under this Plan.
(b) Any Participant may pay all or any portion of the taxes required to
be withheld by the Corporation or paid by him or her in connection with the
exercise of a nonqualified option by electing to have the Corporation withhold
shares of Common Stock, or by delivering previously owned shares of Common
Stock, having a fair market value equal to the amount required to be withheld or
paid. A Participant must make the foregoing election on or before the date that
the amount of tax to be withheld is determined ("Tax Date"). All such elections
are irrevocable and subject to disapproval by the Committee. Elections by
Covered Participants are subject to the following additional restrictions: (i)
such election may not be made within six months of the grant of an option,
provided that this limitation shall not apply in the event of death or
disability, and (ii) such election must be made either six months or more prior
to the Tax Date or in a Window Period. Where the Tax Date in respect of an
option is deferred until six months after exercise and the Covered Participant
elects share withholding, the full amount of shares of Common Stock will be
issued or transferred to him upon exercise of the option, but he or she shall be
unconditionally obligated to tender back to the Corporation the number of shares
necessary to discharge the Corporation's withholding obligation or his estimated
tax obligation on the Tax Date.
View of the Board of Directors
The Board of Directors views adoption of the Plan as essential to
attract and retain qualified persons as employees, officers and directors of the
Corporation and to motivate such employees, officers and directors to exert
their best efforts on behalf of the Corporation. Each of the directors of the
Corporation will be eligible to receive awards under the Plan and may
participate in the granting of such awards.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
The Board of Directors and Majority Shareholders of iJoin Systems, Inc.
has approved and adopted by written consent the Amended and Restated Certificate
of Incorporation (the "Restated Certificate") in the form attached hereto as
Exhibit "B." The Restated Certificate expands upon the Corporation's original
Certificate of Incorporation (the "Original Certificate") in such a way that the
Corporation now is in a better position to generate capital to fund its
operations, to engage in complex corporate transactions and to attract
highly-qualified individuals to serve in management positions.
Increases in the Number of Shares of Common and Preferred Stock
The Restated Certificate amends the Original Certificate to provide the
Corporation with the authority to issue 40,000,000 shares of Common Stock, par
value $0.0001 per share (the "Common Stock"), and 10,000,000 shares of "blank
check" Preferred Stock, par value $0.0001 per share (the "Preferred Stock"). The
Original Certificate only provided the Corporation with the authority to issue
10,000,000 shares of Common Stock and 1,000,000 shares of Preferred Stock. Prior
to the approval of the Restated Certificate, the Corporation had 8,538,243
shares of Common Stock issued and outstanding on a fully diluted basis. The
Common Stock and the Preferred Stock can be issued for any proper corporate
purpose by the Board of Directors at any time without further stockholder
approval. Although it has no present plans or commitments to issue any shares of
Common Stock or Preferred Stock, management believes that the availability of
such securities may prove useful in connection with financing the capital needs
of the Corporation, possible future acquisitions and mergers, employee incentive
or compensation plans, or other purposes. Their availability will also enable
the Corporation to act promptly if appropriate circumstances arise which require
the issuance of such shares.
Under the terms of the Restated Certificate, the Board of Directors is
authorized to provide for the issuance, from time to time, of the Preferred
Stock in one or more series and to fix the terms of each series. In establishing
the terms of a series of Preferred Stock, the Board of Directors is authorized
to set, among other things, the number of shares, the dividend rate and
preferences, the cumulative or non-cumulative nature of dividends, the
redemption provisions, the conversion rights, the amounts payable, and
preferences, in the event of the voluntary or involuntary liquidation of the
Corporation, and the voting rights in addition to those required by law.
Limitation of Liability and Indemnification
Article Ninth of the Restated Certificate limits the personal liability
of the directors of the Corporation to the Corporation and its stockholders for
monetary damages for most breaches of fiduciary duty as a director, as is
typical of public corporations and consistent with Delaware corporate law.
However, this limitation does not apply to breaches of the director's duty of
loyalty to the Corporation or its stockholders, to acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law, and
to transactions from which the director derived an improper personal benefit.
Article Tenth of the Restated Certificate gives the Corporation the authority to
indemnify directors, officers, employees and agents of the Corporation against
expenses, judgments, fines and amounts paid in settlement for any and all legal
proceedings arising out of their conduct as directors, officers, employees or
agents of the Corporation, to the fullest extent permitted by Section 145 of the
Delaware General Corporation Law.
View of the Board of Directors
By increasing the number of shares of Common Stock and Preferred Stock
that it is authorized to issue, the Corporation has strategically placed itself
in a better position to raise capital, pursue business opportunities and fund
its 2001 Stock Option Plan. Further, through the amendments limiting the
liability of directors and giving the Corporation the authority to indemnify
certain of its employees, the Corporation has augmented its ability to retain
and attract talented and experienced individuals to serve as directors, officers
and agents of the Corporation, and to encourage such individuals to take the
business risks necessary for the success of the Corporation. The Board of
Directors believes that the failure to provide such limited liability and
indemnification to management could result in great harm to the Corporation and
the Corporation's stockholders.
A COPY OF THE CORPORATION'S ANNUAL REPORT ON FORM 10-KSB FOR THE
FISCAL YEAR ENDED SEPTEMBER 30, 2000 AND QUARTERLY REPORTS FOR THE QUARTERS
ENDED DECEMBER 31, 2000 AND MARCH 31, 2001 MAY BE OBTAINED BY WRITTEN REQUEST
FROM Mr. DONALD F. MINTMIRE, ESQ., 265 Sunrise Avenue, Suite 204, Palm Beach,
FL 33480.
EXHIBIT A
IJOIN SYSTEMS, INC.
2001 Stock Option Plan
INTRODUCTION
iJoin Systems, Inc., a Delaware corporation (hereinafter
referred to as the "Corporation"), hereby establishes an incentive
compensation plan to be known as the "iJoin Systems, Inc. 2001 Stock
Option Plan" (hereinafter referred to as the "Plan"), as set forth in this
document. The Plan permits the grant of Non-Qualified Stock Options and
Incentive Stock Options.
The Plan shall become effective on April 24, 2001. However, it
shall be rendered null and void and have no effect, and any and all Options
granted hereunder shall be canceled, if the Plan is not approved by a majority
vote of the Corporation's stockholders within twelve (12) months of the date the
Plan is adopted by the Corporation's Board of Directors.
The purpose of the Plan is to promote the success and enhance
the value of the Corporation by linking the personal interests of Optionees to
those of the Corporation's stockholders by providing Optionees with an incentive
for outstanding performance. The Plan is further intended to assist the
Corporation in its ability to motivate, and retain the services of, Optionees
upon whose judgment, interest and special effort the successful conduct of its
and its subsidiaries' operations is largely dependent.
I
DEFINITIONS
For purposes of the Plan, the following terms shall be defined
as follows unless the context clearly indicates otherwise:
"Award Agreement" shall mean the written agreement, executed by an appropriate
officer of the Corporation, pursuant to which an Option is granted.
"Board of Directors" shall mean the Board of Directors of the Corporation.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and the rules
and regulations thereunder.
"Committee" shall mean the Board of Directors or any committee of two or more
persons designated by the Board of Directors to perform the functions of the
Committee hereunder established in this manner set forth in Article II hereof.
"Common Stock" shall mean the common stock of the Corporation as authorized from
time to time.
"Consultant" shall mean an individual who is in a Consulting Relationship with
the Corporation or any Parent or Subsidiary.
"Consulting Relationship" shall mean the relationship that exists between an
individual and the Corporation (or any Parent or Subsidiary) if (i) such
individual or (ii) any entity of which such individual is an executive officer
or owns a substantial equity interest has entered into a written consulting
contract with the Corporation or any Parent or Subsidiary.
"Corporation" shall mean iJoin Systems, Inc., a Delaware corporation.
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"Disability" shall have the same meaning as the term "permanent and total
disability" under Section 22(e)(3) of the Code.
"Employee" shall mean a common law employee of the Corporation or of any Parent
or Subsidiary.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Executive" means an employee of the Corporation or of any Parent or Subsidiary
whose compensation is subject to the deduction limitations set forth under Code
Section 162(m).
"Fair Market Value" of the Corporation's Common Stock on a Trading Day shall
mean the last reported sale price for Common Stock or, in case no such reported
sale takes place on such Trading Day, the average of the closing bid and asked
prices for the Common Stock for such Trading Day, in either case on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading, or if the Common Stock is not listed or admitted to trading
on any national securities exchange, but is traded in the over-the-counter
market, the closing sale price of the Common Stock or, if no sale is publicly
reported, the average of the closing bid and asked quotations for the Common
Stock, as reported by the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or any comparable system or, if the Common Stock is
not listed on NASDAQ or a comparable system, the closing sale price of the
Common Stock or, if no sale is publicly reported, the average of the closing bid
and asked prices, as furnished by two members of the National Association of
Securities Dealers, Inc. who make a market in the Common Stock selected from
time to time by the Corporation for that purpose. In addition, for purposes of
this definition, a "Trading Day" shall mean, if the Common Stock is listed on
any national securities exchange, a business day during which such exchange was
open for trading and at least one trade of Common Stock was effected on such
exchange on such business day, or, if the Common Stock is not listed on any
national securities exchange but is traded in the over-the-counter market, a
business day during which the over-the-counter market was open for trading and
at least one "eligible dealer" quoted both a bid and asked price for the Common
Stock. An "eligible dealer" for any day shall include any broker-dealer who
quoted both a bid and asked price for such day, but shall not include any
broker-dealer who quoted only a bid or only an asked price for such day. In the
event the Corporation's Common Stock is not publicly traded, the Fair Market
Value of such Common Stock shall be determined by the Committee in good faith.
"Good Cause" shall, with respect to any Optionee, have the equivalent meaning
(or the same meaning as "cause" or "for cause") set forth in any employment
agreement between the Optionee and the Corporation or Parent or Subsidiary or,
in the absence of any such agreement, such term shall mean (i) the Optionee's
willful or gross misconduct or willful or gross negligence in the performance of
his duties for the Corporation or for any Parent or Subsidiary after prior
written notice of such misconduct or negligence and the continuance thereof for
a period of 30 days after receipt by such Optionee of such notice, (ii) the
Optionee's intentional or habitual neglect of his duties for the Corporation or
for any Parent or Subsidiary after prior written notice of such neglect, (iii)
the Optionee's theft or misappropriation of funds or other property of the
Corporation or of any Parent or Subsidiary, fraud, criminal misconduct, breach
of fiduciary duty or dishonesty in the performance of his duties on behalf of
the Corporation or any Parent or Subsidiary or commission of a felony, or crime
of moral turpitude or any other conduct reflecting adversely upon the
Corporation or any Parent or Subsidiary, (iv) the Optionee's violation of any
covenant not to compete or not to disclose confidential information with respect
to the Corporation or any Parent or Subsidiary or (v) the direct or indirect
breach by the Optionee of the terms of a consulting contract with the
Corporation or any Parent or Subsidiary.
"Good Reason" shall, with respect to any Optionee, have the equivalent meaning
set forth in any employment agreement between the Optionee and the Corporation
or any Parent or Subsidiary or, in the absence of any such agreement, the
meaning, if any, that may be set forth in the applicable Option granted to such
Optionee.
"Incentive Stock Option" shall mean a stock option satisfying the requirements
for tax-favored treatment under Section 422 of the Code.
"Non-Qualified Option" shall mean a stock option which does not satisfy the
requirements for, or which is not intended to be eligible for, tax-favored
treatment under Section 422 of the Code.
"Option" shall mean an Incentive Stock Option or a Non-Qualified Stock Option
granted pursuant to the provisions of Section VI hereof.
"Optionee" shall mean an individual who is granted an Option under the terms of
the Plan.
"Outside Directors" shall mean members of the Board of Directors of the
Corporation who are classified as "outside directors" under Section 162(m) of
the Code.
"Parent" shall mean a parent corporation of the Corporation within the meaning
of Section 424(e) of the Code.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Subsidiary" shall mean a subsidiary corporation of the Corporation within the
meaning of Section 424(f) of the Code.
"Termination of Consulting Relationship" shall mean the cessation, abridgment or
termination of a Consultant's Consulting Relationship with the Corporation or
any Parent or Subsidiary as a result of (i) the Consultant's death or
Disability, (ii) the cancellation, annulment, expiration, termination or breach
of the written consulting contract between the Corporation (or any Parent or
Subsidiary) and the Consultant (or any other entity) giving rise to the
Consulting Relationship or (iii) if the written consulting contract is not
directly between the Corporation (or any Parent or Subsidiary) and the
Consultant, the Consultant's termination of service with, or sale of all or
substantially all of his equity interest in, the entity which has entered into
the written consulting contract with the Corporation, Parent or Subsidiary.
II
ADMINISTRATION
The Plan shall be administered by the Committee, which shall
be composed of the entire Board of Directors or of two or more Non-Employee
Directors, as defined in Rule 16b-3(b)(3) promulgated under the Exchange Act (to
the extent Section 16 of the Exchange Act is applicable to Options granted
hereunder) and who also qualify as "Outside Directors" (but only with respect to
the period during which Options granted hereunder are subject to the deduction
limitations of Section 162(m) of the Code). Subject to the provisions of the
Plan, the Committee may establish from time to time such regulations,
provisions, proceedings and conditions of awards which, in its sole opinion, may
be advisable in the administration of the Plan. A majority of the Committee
shall constitute a quorum, and, subject to the provisions of Section V of the
Plan, the acts of a majority of the members present at any meeting at which a
quorum is present, or acts approved in writing by all of the members of the
Committee, shall be the acts of the Committee as a whole.
III
SHARES AVAILABLE
Subject to the adjustments provided in Section VII of the
Plan, the aggregate number of shares of the Common Stock which may be granted
for all purposes under the Plan shall be three million (3,000,000) shares.
Shares of Common Stock underlying awards of securities (derivative or not) shall
be counted against the limitation set forth in the immediately preceding
sentence and may be reused to the extent that the related Option to any
individual is settled in cash, expires, is terminated unexercised, or is
forfeited. Common Stock granted to satisfy Options under the Plan may be
authorized and unissued shares of the Common Stock, issued shares of such Common
Stock held in the Corporation's treasury.
IV
ELIGIBILITY
Officers and key employees of the Corporation, or of any
Parent or Subsidiary, who are regularly employed on a salaried or hourly basis
as common law employees, and Consultants, and directors of the Corporation or of
any Parent or Subsidiary who are not Employees, shall be eligible to participate
in the Plan. Where appropriate under the Plan, directors who are not Employees
shall be referred to as "employees" and their service as directors as
"employment".
V
AUTHORITY OF COMMITTEE
The Plan shall be administered by, or under the direction of,
the Committee, which shall administer the Plan so as to comply at all times with
Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder, to the extent such compliance is required, and shall otherwise have
plenary authority to interpret the Plan and to make all determinations specified
in or permitted by the Plan or deemed necessary or desirable for its
administration or for the conduct of the Committee's business. All
interpretations and determinations of the Committee may be made on an individual
or group basis and shall be final, conclusive and binding on all interested
parties. Subject to the express provisions of the Plan, the Committee shall have
authority, in its discretion, to determine the persons to whom Options shall be
granted, the times when such Options shall be granted, the number of Options,
the exercise price of each Option, the period(s) during which an Option shall be
exercisable (whether in whole or in part), the restrictions to be applicable to
Options and the other terms and provisions thereof (which need not be
identical). In addition, the authority of the Committee shall include, without
limitation, the following:
Financing. The arrangement of temporary financing for an Optionee by registered
broker-dealers, under the rules and regulations of the Federal Reserve Board,
for the purpose of assisting an Optionee in the exercise of an Option, such
authority to include the payment by the Corporation of the commissions of the
broker-dealer.
Procedures for Exercise of Option. The establishment of procedures for an
Optionee (i) to exercise an Option by payment of cash, (ii) to exercise all or a
portion of an Option by delivering that number of shares of Common Stock already
owned by him having a Fair Market Value which shall equal the Option exercise
price for the portion exercised and, in cases where an Option is not exercised
in its entirety, and subject to the requirements of the Code, to permit the
Optionee to deliver the shares of Common Stock thus acquired by him in payment
of shares of Common Stock to be received pursuant to the exercise of additional
portions of such Option, the effect of which shall be that an Optionee can in
sequence utilize such newly acquired shares of Common Stock in payment of the
exercise price of the entire Option, together with such cash as shall be paid in
respect of fractional shares, (iii) to exercise all or a portion of an Option
with the permission of the Committee, which shall be at its sole discretion, by
a concurrent sale of a portion of the shares of Common Stock to be acquired upon
the exercise of an Option to the extent permitted upon delivery by the Optionee
of a properly executed notice, together with a copy of the Optionee's
irrevocable instructions to a broker acceptable to the Committee to sell all or
a portion of such shares of Common Stock and deliver promptly to the Corporation
the amount of sale or loan proceeds sufficient to pay such exercise price;
provided, that, in connection therewith, the Corporation may enter into
agreements for coordinated procedures with one or more brokerage firms, or (iv)
some combination thereof; provided, however, that in no case may shares be
tendered if such tender would require the Corporation to incur a charge against
its earnings for financial accounting purposes. The Corporation shall not be
required to issue any shares of Common Stock pursuant to the exercise of any
Option until all required payments with respect thereto, including payments for
any required withholding amounts, have been made. The Committee may, in its sole
discretion, require that an exercise described under any one or more of the
methods described under clause (ii) of the immediately preceding sentence (to
the extent such exercise is, or is deemed to constitute, an exercise effected by
the tendering of Common Stock) be consummated with Common Stock (A) held by the
Optionee for at least six (6) months or (B) acquired by the Optionee other than
under the Plan or a similar program.
Withholding. The establishment of a procedure whereby a number of shares of
Common Stock may be withheld from the total number of shares of Common Stock to
be issued upon exercise of an Option or for the tender of shares of Common Stock
owned by any Optionee to meet any obligation of withholding for taxes incurred
by the Optionee upon such exercise. The Committee may, in its sole discretion,
require that if any such withholding is effected by the tendering of Common
Stock, such withholding shall be consummated with Common Stock (i) held by the
Optionee for at least six (6) months or (ii) acquired by the Optionee other than
under the Plan or a similar program.
VI
STOCK OPTIONS
The Committee shall have the authority, in its discretion, to
grant Incentive Stock Options or to grant Non-Qualified Stock Options or to
grant both types of Options. Notwithstanding anything contained herein to the
contrary, an Incentive Stock Option may be granted only to common law employees
of the Corporation or of any Parent or Subsidiary now existing or hereafter
formed or acquired, and not to any director or officer who is not also such a
common law employee. In order for an Option grant to satisfy the
"performance-based compensation" exemption to the deduction limitation under
Code Section 162(m), the maximum number of shares of Common Stock subject to
Options which may be granted to any single Executive during any one calendar
year, beginning with the year grants under the Plan first become subject to such
deduction limitations, is one million (1,000,000). The terms and conditions of
the Options shall be determined from time to time by the Committee; provided,
however, that the Options granted under the Plan shall be subject to the
following:
Exercise Price. The Committee shall establish the exercise price at the time any
Option is granted at such amount as the Committee shall determine; provided,
however, that the exercise price for each share of Common Stock purchasable
under any Option which is intended to satisfy the performance-based compensation
exemption to the deduction limitation under Section 162(m) of the Code or any
Incentive Stock Option granted hereunder shall be such amount as the Committee
shall, in its best judgment, determine to be not less than one hundred percent
(100%) of the Fair Market Value per share of Common Stock at the date the Option
is granted; and provided, further, that in the case of an Incentive Stock Option
granted to a person who, at the time such Incentive Stock Option is granted,
owns shares of stock of the Corporation or of any Parent or Subsidiary which
possess more than ten percent (10%) of the total combined voting power of all
classes of shares of stock of the Corporation or of any Parent or Subsidiary,
the exercise price for each share of Common Stock shall be such amount as the
Committee, in its best judgment, shall determine to be not less than one hundred
ten percent (110%) of the Fair Market Value per share of Common Stock at the
date the Option is granted. The exercise price will be subject to adjustment in
accordance with the provisions of Section VII of the Plan.
Payment of Exercise Price. The exercise price per share of Common Stock with
respect to each Option shall be payable at the time the Option is exercised.
Such price shall be payable in cash or pursuant to any of the other methods set
forth in Sections V(a) or (b) hereof, as determined by the Committee. Shares of
Common Stock delivered to the Corporation in payment of the exercise price shall
be valued at the Fair Market Value of the Common Stock on the date preceding the
date of the exercise of the Option.
Exercisability of Options. Except as provided in Section VI(e) hereof, each
Option shall be exercisable in whole or in installments, and at such time(s),
and subject to the fulfillment of any conditions on, and to any limitations on,
exercisability as may be determined by the Committee at the time of the grant of
such Options. The right to purchase shares of Common Stock shall be cumulative
so that when the right to purchase any shares of Common Stock has accrued such
shares of Common Stock or any part thereof may be purchased at any time
thereafter until the expiration or termination of the Option.
Expiration of Options. No Incentive Stock Option by its terms shall be
exercisable after the expiration of ten (10) years from the date of grant of the
Option; provided, however, in the case of an Incentive Stock Option granted to a
person who, at the time such Option is granted, owns shares of stock of the
Corporation or of any Parent or Subsidiary possessing more than ten percent
(10%) of the total combined voting power of all classes of shares of stock of
the Corporation or of any Parent or Subsidiary, such Option shall not be
exercisable after the expiration of five (5) years from the date such Option is
granted.
Exercise Upon Optionee's Termination of Employment or Termination of Consulting
Relationship. If the employment of an Optionee by the Corporation or by any
Parent or Subsidiary is terminated for any reason, any Incentive Stock Option
granted to such Optionee may not be exercised later than three (3) months (one
(1) year in the case of termination due to death or Disability) after the date
of such termination of employment; and, if an Optionee's employment (or
Consulting Relationship) is terminated (i) by the Corporation other than for
Good Cause or (ii) by the Optionee with the written consent of the Committee or
for Good Reason or due to the Optionee's death or Disability, then any
Non-Qualified Option granted to such Optionee may not be exercised later than
three (3) months (one (1) year in the case of termination due to death or
Disability) after the date of such termination of employment (or Consulting
Relationship). For purposes of determining whether any Optionee has incurred a
termination of employment (or a Termination of Consulting Relationship), an
Optionee who is both an employee (or a Consultant) and a director of the
Corporation and/or any Parent or Subsidiary shall (with respect to any
Non-Qualified Option that may have been granted to him) be considered to have
incurred a termination of employment (or a Termination of Consulting
Relationship) only upon his termination of service both as an employee (or as a
Consultant) and as a director. Furthermore, except to the extent otherwise
provided in the option agreement evidencing the subject Option(s), (A) if an
Optionee's employment (or Consulting Relationship) is terminated by the
Corporation or by any Parent or Subsidiary for Good Cause or (B) if an Optionee
voluntarily terminates his employment (or Consulting Relationship) other than
(x) with the written consent of the Committee or (y) for Good Reason, Disability
or death, regardless of whether such Optionee continues to serve as a director
of the Corporation or of any Parent or Subsidiary, then the Optionee shall, at
the time of such termination of employment (or Termination of Consulting
Relationship), forfeit his rights to exercise any and all of the outstanding
Option(s) theretofore granted to him.
Maximum Amount of Incentive Stock Options. Each Option under which Incentive
Stock Options are granted shall provide that to the extent the sum of (i) the
Fair Market Value of the shares of Common Stock (determined as of the time of
the grant of the Option) subject to such Incentive Stock Option plus (ii) the
fair market values (determined as of the date(s) of grant of the option(s)) of
all other shares of Common Stock subject to incentive stock options granted to
an Optionee by the Corporation or any Parent or Subsidiary, which are
exercisable for the first time by any person during any calendar year, exceed(s)
One Hundred Thousand Dollars ($100,000), such excess shares of Common Stock
shall not be deemed to be purchasable pursuant to Incentive Stock Options, but
shall be deemed to be purchasable pursuant to Non-Qualified Options (with such
Non-Qualified Options being the last-issued of the subject Options). The terms
of the immediately preceding sentence shall be applied by taking all options,
whether or not granted under the Plan, into account in the order in which they
are granted.
Dividend Equivalents for Outstanding Options. The Committee may, in its sole
discretion, provide that amounts equivalent to dividends shall be payable with
respect to one or more shares of Common Stock subject to vested but unexercised
Option(s) granted to an Optionee. Subject to the terms contained in the
appropriate Option, dividend equivalents related to an Optionee's Options(s)
shall be credited to a suspense account (and remain the property of the
Corporation) at such times (and in such amounts) as are dividends payable to the
then shareholders of record of the Corporation's Common Stock. Dividend
equivalents shall be payable to the Optionee in cash or in Common Stock, as set
forth under the terms of the Option, if and at such time as the related
Option(s) are exercised.
VII
ADJUSTMENT OF SHARES; MERGER OR
CONSOLIDATION, ETC. OF THE CORPORATION
Recapitalization, Etc. In the event there is any change in the outstanding
Common Stock of the Corporation by reason of any reorganization,
recapitalization, stock split, stock dividend, combination of shares or
otherwise, there shall be substituted for or added to each share of Common Stock
theretofore appropriated or thereafter subject, or which may become subject, to
any Option, the number and kind of shares of stock or other securities into
which each outstanding share of Common Stock shall be so changed or for which
each such share shall be exchanged, or to which each such share shall be
entitled, as the case may be, and the per share price thereof also shall be
appropriately adjusted. Notwithstanding the foregoing, (i) each such adjustment
with respect to an Incentive Stock Option shall comply with the rules of Section
424(a) of the Code and (ii) in no event shall any adjustment be made which would
render any Incentive Stock Option granted hereunder to be other than an
incentive stock option for purposes of Section 422 of the Code.
Merger, Consolidation or Change in Control of Corporation. Upon (i) the merger
or consolidation of the Corporation with or into another corporation (pursuant
to which the stockholders of the Corporation immediately prior to such merger or
consolidation will not, as of the date of such merger or consolidation, own a
beneficial interest in shares of voting securities of the corporation surviving
such merger or consolidation having at least a majority of the combined voting
power of such corporation's then outstanding securities), if the agreement of
merger or consolidation does not provide for (1) the continuance of the Options
granted hereunder or (2) the substitution of new options for Options granted
hereunder, or for the assumption of such Options by the surviving corporation,
(ii) the dissolution, liquidation, or sale of all or substantially all the
assets of the Corporation to a person unrelated to the Corporation or to a
direct or indirect owner of a majority of the voting power of the Corporation's
then outstanding voting securities (such sale of assets being referred to as an
"Asset Sale") or (iii) the Change in Control of the Corporation, then the holder
of any such Option theretofore granted and still outstanding (and not otherwise
expired) shall have the right immediately prior to the effective date of such
merger, consolidation, dissolution, liquidation, Asset Sale or Change in Control
of the Corporation to exercise such Option(s) in whole or in part without regard
to any installment provision that may have been made part of the terms and
conditions of such Option(s); provided that all conditions precedent to the
exercise of such Option(s), other than the passage of time, have occurred. The
Corporation, to the extent practicable, shall give advance notice to affected
Optionees of such merger, consolidation, dissolution, liquidation, Asset Sale or
Change in Control of the Corporation. Unless otherwise provided in the subject
Award Agreement or merger, consolidation or Asset Sale agreement, all such
Options which are not so exercised shall be forfeited as of the effective time
of such merger, consolidation, dissolution, liquidation or Asset Sale (but not
in the case of a Change in Control of the Corporation). In the event the
Corporation becomes a subsidiary of another corporation (the "New Parent
Corporation") with respect to which the stockholders of the Corporation (as
determined immediately before such transaction) own, immediately after such
transaction, a beneficial interest in shares of voting securities of the New
Parent Corporation having at least a majority of the combined voting power of
such New Parent Corporation's then outstanding securities, there shall be
substituted for Options granted hereunder, options to purchase common stock of
the New Parent Corporation. The substitution described in the immediately
preceding sentence shall be effected in a manner such that any option granted by
the New Parent Corporation to replace an Incentive Stock Option granted
hereunder shall satisfy the requirements of Section 422 of the Code.
Definition of Change in Control of the Corporation. As used herein, a "Change in
Control of the Corporation" shall be deemed to have occurred if any person
(including any individual, firm, partnership or other entity) together with all
Affiliates and Associates (as defined under Rule 12b-2 of the General Rules and
Regulations promulgated under the Exchange Act) of such person (but excluding
(i) a trustee or other fiduciary holding securities under an employee benefit
plan of the Corporation or any subsidiary of the Corporation, (ii) a corporation
owned, directly or indirectly, by the stockholders of the Corporation in
substantially the same proportions as their ownership of the Corporation, (iii)
the Corporation or any subsidiary of the Corporation or (iv) only as provided in
the immediately following sentence, an Optionee together with all Affiliates and
Associates of the Optionee) who is not a stockholder or an Affiliate or
Associate of a stockholder of the Corporation on the date of stockholder
approval of the Plan is or becomes the Beneficial Owner (as defined in Rule
13d-3 promulgated under the Exchange Act), directly or indirectly, of securities
of the Corporation representing Fifty Percent (50%) or more of the combined
voting power of the Corporation's then outstanding securities. The provisions of
clause (iv) of the immediately preceding sentence shall apply only with respect
to the Option(s) held by the Optionee who, together with his Affiliates or
Associates, if any, is or becomes the direct or indirect Beneficial Owner of the
percentage of securities set forth in such clause.
VIII
MISCELLANEOUS PROVISIONS
Administrative Procedures. The Committee may establish any procedures
determined by it to be appropriate in discharging its responsibilities under
the Plan. All actions and decisions of the Committee shall be final.
Assignment or Transfer. No grant or award of any Option (other than a
Non-Qualified Option) or any rights or interests therein shall be assignable or
transferable by an Optionee except by will or the laws of descent and
distribution or pursuant to a domestic relations order. During the lifetime of
an Optionee, Incentive Stock Options granted hereunder shall be exercisable only
by the Optionee.
Investment Representation. With respect to shares of Common Stock received
pursuant to the exercise of an Option, the Committee may require, as a condition
of receiving such securities, that the Optionee furnish to the Corporation such
written representations and information as the Committee deems appropriate to
permit the Corporation, in light of the existence or nonexistence of an
effective registration statement under the Securities Act, to deliver such
securities in compliance with the provisions of the Securities Act.
Withholding Taxes. In the case of the issuance or distribution of Common Stock
or other securities hereunder upon the exercise of any Option, the Corporation,
as a condition of such issuance or distribution, may require the payment
(through withholding from the Optionee's salary, reduction of the number of
shares of Common Stock or other securities to be issued, or otherwise) of any
federal, state, local or foreign taxes required to be withheld. Each Optionee
may satisfy the withholding obligations by paying to the Corporation (or the
appropriate Parent or Subsidiary) a cash amount equal to the amount required to
be withheld or, subject to the Committee's consent thereto, by tendering to the
Corporation (or to the appropriate Parent or Subsidiary) a number of shares of
Common Stock having a value equivalent to such cash amount, or by use of any
available procedure approved by the Committee as described under Section V(c)
hereof.
Costs and Expenses. The costs and expenses of administering the Plan shall be
borne by the Corporation and shall not be charged against any award nor to any
individual receiving an Option.
Funding of Plan. The Plan shall be unfunded. The Corporation shall not be
required to segregate any of its assets to assure the payment of any Option
under the Plan. Neither the Optionees nor any other persons shall have any
interest in any fund or in any specific asset or assets of the Corporation or
any other entity by reason of any Option, except to the extent expressly
provided hereunder.
Other Incentive Plans. The adoption of the Plan does not preclude the
adoption by appropriate means of any other incentive plan for employees.
Plurals and Gender. Where appearing in the Plan, the masculine gender shall
include the feminine and neuter genders, and the singular shall include the
plural, and vice versa, unless the context clearly indicates a different
meaning.
Headings. The headings and sub-headings in the Plan are inserted for the
convenience of reference only and are to be ignored in any construction of the
provisions hereof.
Severability. In case any provision of the Plan shall be held illegal or void,
such illegality or invalidity shall not affect the remaining provisions of the
Plan, but shall be fully severable, and the Plan shall be construed and enforced
as if said illegal or invalid provisions had never been inserted herein.
Liability and Indemnification. (i) Neither the Corporation nor any Parent or
Subsidiary shall be responsible in any way for any action or omission of the
Committee, or any other fiduciaries in the performance of their duties and
obligations as set forth in the Plan. Furthermore, neither the Corporation nor
any Parent or Subsidiary shall be responsible for any act or omission of any of
their agents, or with respect to reliance upon advice of their counsel, provided
that the Corporation and/or the appropriate Parent or Subsidiary relied in good
faith upon the action of such agent or the advice of such counsel.
(ii) Neither the Corporation, any Parent or
Subsidiary, the Committee, nor any agents, employees, officers, directors or
shareholders of any of them, nor any other person shall have any liability or
responsibility with respect to the Plan, except as expressly provided herein.
Incapacity. If the Committee shall receive evidence satisfactory to it that a
person entitled to exercise any Option is, at the time when such Option becomes
exercisable, a minor, or is physically or mentally incompetent to receive such
Option and to give a valid release thereof, and that another person or an
institution is then maintaining or has custody of such person and that no
guardian, committee or other representative of the estate of such person shall
have been duly appointed, the Committee may permit such Option to be exercised
by such other person or institution, including a custodian under a Uniform Gifts
to Minors Act or corresponding legislation (who shall be an adult, a guardian of
the minor or a trust company), and the release by such other person or
institution shall be a valid and complete discharge for the exercise of such
Option.
Cooperation of Parties. All parties to the Plan and any person claiming any
interest hereunder agree to perform any and all acts and execute any and all
documents and papers which are necessary or desirable for carrying out the Plan
or any of its provisions.
Governing Law. All questions pertaining to the validity, construction and
administration of the Plan shall be determined in accordance with the laws of
the State of Delaware.
Nonguarantee of Employment or Consulting Relationship. Nothing contained in the
Plan shall be construed as a contract of employment (or as a consulting
contract) between the Corporation (or any Parent or Subsidiary), and any
employee or Optionee, as a right of any employee or Optionee to be continued in
the employment of (or in a Consulting Relationship with) the Corporation (or any
Parent or Subsidiary), or as a limitation on the right of the Corporation or any
Parent or Subsidiary to discharge any of its employees (or Consultants), at any
time, with or without cause (but subject to the terms of any applicable
employment or consulting agreement).
Notices. Each notice relating to the Plan shall be in writing and delivered in
person, by recognized overnight courier or by certified mail to the proper
address. Except as otherwise provided in any Award Agreement with respect to the
exercise thereunder, all notices to the Corporation or the Committee shall be
addressed to it at iJoin Systems, Inc., 1506 Briarhill Lane NE, Atlanta, Georgia
30324, Attn: President, or to such other address as may be designated for such
purpose by the Corporation from time to time by notice given in the manner
herein provided. All notices to Optionees, beneficiaries or other persons acting
for or on behalf of such persons shall be addressed to such person at the last
address for such person maintained in the Committee's records.
Written Agreements. Each Option shall be evidenced by a signed written
agreement between the Corporation and the Optionee containing the terms and
conditions of the award.
IX
AMENDMENT OR TERMINATION OF PLAN
The Board of Directors of the Corporation shall have the right
to amend, suspend or terminate the Plan at any time, provided that no amendment
shall be made which shall increase the total number of shares of the Common
Stock of the Corporation which may be issued and sold pursuant to Incentive
Stock Options, reduce the minimum exercise price in the case of an Incentive
Stock Option or modify the provisions of the Plan relating to eligibility with
respect to Incentive Stock Options unless such amendment is made by or with the
approval of the stockholders of the Corporation within 12 months of the
effective date of such amendment, but only if such approval is required by any
applicable provision of law. Furthermore, no amendment to the Plan may change
(i) the maximum amount of Options that may be granted on an annual basis or (ii)
the exercise price of any options granted hereunder without the prior approval
of the Corporation's stockholders in the manner required under Section 162(m) of
the Code; provided, however, that such stockholder consent is required only
during such period that the deduction limitations under Code Section 162(m)
apply to Options granted under the Plan. The Board of Directors of the
Corporation shall also be authorized to amend the Plan and the Options granted
thereunder to maintain qualification as "incentive stock options" within the
meaning of Section 422 of the Code, if applicable or to comply with the
provisions of Rule 166-3 of the Exchange Act or Section 162(m) of the Code, if
applicable. Except as otherwise provided herein, no amendment, suspension or
termination of the Plan shall alter or impair any vested Option previously
granted under the Plan without the consent of the holder thereof.
X
TERM OF PLAN
The Plan shall automatically terminate on the day immediately
preceding the tenth (10th) anniversary of the date the Plan was adopted by the
Board of Directors of the Corporation, unless sooner terminated by such Board of
Directors. No Options may be granted under the Plan subsequent to the
termination of the Plan.
EXHIBIT B
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IJOIN SYSTEMS, INC.
This Amended and Restated Certificate of Incorporation amends and
restates that certain certificate of incorporation of iJoin Systems, Inc. (the
"Corporation") originally filed with the Secretary of State of Delaware on
October 8, 1998. The Corporation was originally incorporated under the name
Tech-Creations, Inc. The undersigned, a natural person, for the purposes of
amending and restating the certificate of incorporation of the Corporation,
pursuant to the provisions of Section 245 of the General Corporation Law of the
state of Delaware, hereby certifies that:
FIRST: The name of the corporation (hereinafter referred to as the
"Corporation") is IJOIN SYSTEMS, INC.
SECOND: The name and address of the Corporation's Registered Agent is:
Corporate Creations Enterprises, Inc.
686 North Dupont Boulevard #302
Milford, DE 19963
Kent County
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation
may be organized under the Delaware General Corporation Law (the "DGCL").
FOURTH: The Corporation shall have the authority to issue 40,000,000
shares of Common Stock, par value $0.0001 per share, and 10,000,000 shares of
"blank check" Preferred Stock par value $0.0001 per share.
FIFTH: The shares of Preferred Stock may be issued from time to time in
one or more series as may from time to time be determined by the Board of
Directors, each of said series to be distinctly designated. The designations,
number, voting powers, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations or restrictions
thereof, if any, of each such series may differ from those of any and all other
series of Preferred Stock at any time outstanding, and the Board of Directors is
hereby expressly granted authority to fix or alter, by resolution or
resolutions, and to file a certificate pursuant to the applicable law of the
State of Delaware (hereinafter referred to as a "Certificate of Designation"),
the designation, number, voting powers, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions thereof, of each such series, including, but without limiting the
generality of the foregoing, the following:
(i) The distinctive designation of, and the number of shares of
Preferred Stock that shall constitute, such series, which number
(except where otherwise provided by the Board of Directors in the
resolution establishing such series) may be increased or decreased
(but not below the number of shares of such series then
outstanding) from time to time by like action of the Board of
Directors;
(ii) The rights in respect of dividends, if any, of such series of
Preferred Stock, the extent of the preference or relation, if any,
of such dividends to the dividends payable on any other class or
classes or on any other series of the same or other class or
classes of capital stock of the Corporation and whether such
dividends shall be cumulative or noncumulative;
(iii) The right, if any, of the holders of such series of
Preferred Stock to convert the same into, or exchange the same
for, shares of any other class or classes or of any other series
of the same or any other class or classes of capital stock of the
Corporation, and the terms and conditions of such conversion or
exchange;
(iv) Whether or not shares of such series of Preferred Stock shall
be subject to redemption, and the redemption price or prices and
the time or time at which, and the terms and conditions on which,
shares of such series of Preferred Stock may be redeemed;
(v) The rights, if any, of the holders of such series of Preferred
Stock upon the voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation or in the event of any merger or
consolidation of or sale of assets by the Corporation;
(vi) The voting powers, if any, of the holders of any series of
Preferred Stock generally or with respect to any particular
matter, which may be less than, equal to or greater than one vote
per share; and
(vii) Such other powers, preferences and relative, participating,
optional and other special rights, and the qualifications,
limitations and restrictions thereof, as the Board of Directors
shall determine."
SIXTH: The Corporation is to have perpetual existence.
-----
SEVENTH: Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders, of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders, of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
EIGHTH:
(a) The governing board of the Corporation shall be known as the Board
of Directors, and the number of directors may from time to time be increased or
decreased in such manner as shall be provided by the bylaws of the Corporation.
(b) In furtherance of and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the bylaws of the Corporation.
(c) Elections of directors need not be by written ballot unless
the bylaws of the Corporation shall so provide.
NINTH:
(a) No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
(b) Neither any amendment nor repeal of the foregoing provisions of
this Article Ninth, nor adoption of any provision of this certificate of
incorporation, the bylaws of the Corporation or any statute that is inconsistent
with this Article Ninth, shall eliminate or reduce the effect of this Article
Ninth in respect of any acts or omissions occurring prior to such amendment,
repeal or adoption.
(c) If the DGCL is hereafter amended or supplemented to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of directors of the Corporation shall be
eliminated or limited to the fullest extent permitted by such amended or
supplemented DGCL.
(d) In the event that any of the provisions of this Article Ninth
(including any provision within a single sentence) is held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, the
remaining provisions are severable and shall remain enforceable to the fullest
extent permitted by law.
TENTH: Except as may otherwise be specifically provided in this
certificate of incorporation, no provision of this certificate of incorporation
in intended by the Corporation to be construed as limiting, prohibiting, denying
or abrogating any of the general or specific powers or rights conferred under
the DGCL upon the Corporation, upon its stockholders, bondholders and security
holders, and upon its directors, officers and other corporate personnel,
including, in particular, the power of the Corporation to furnish
indemnification to directors and officers in the capacities defined and
prescribed by the DGCL and the defined and prescribed rights of said persons to
indemnification as the same are conferred under the DGCL. The Corporation shall,
to the fullest extent permitted by Section 145 of the DGCL, as the same may be
amended and supplemented, indemnify any and all persons whom it shall have power
to indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ELEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
Dated: May ___, 2001
Bob Bagga, Chairman of the Board
and Chief Executive Officer