SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
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:
___ Preliminary proxy statement ___ Confidential, For Use of the
X Definitive proxy statement Commission Only (as
___ Definitive additional materials permitted by Rule 14a-6(e)(2))
___ Soliciting material pursuant to
Rule 14a-12
CYBER MARK INTERNATIONAL CORP.
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
X No fee required.
---
___ Fee computed on table below per Exchange Act Rules 14a-6(i)(1) 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 Rules 14-a-6(I)(1) and 0-11 (set forth the
amount on 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:
-------------------------------------------------------------------
CYBER MARK INTERNATIONAL CORP.
359 Enford Road, Unit 1
Richmond Hill, Ontario Canada L4C 3G2
-------------------------------------------
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD JULY 2, 2001
NOTICE IS HEREBY GIVEN that the Annual Meeting of Shareholders of Cyber
Mark International Corp. ("Company") will be held at 359 Enford Road, Unit 1,
Richmond Hill, Ontario, Canada on July 2, 2001 at 10:00 a.m. local time, for the
following purposes:
1. To elect one director to hold office until the Annual Meeting
of Shareholders in 2002 and until his successor has been duly
elected and qualified;
2. To consider and vote upon a proposal to amend the Company's
Articles of Incorporation to increase the number of authorized
shares of Common Stock;
3. To approve the 2001 Performance Equity Plan; and
4. To transact such other business as may properly come before
the meeting, and any adjournment(s) thereof.
The transfer books will not be closed for the Annual Meeting. Only
shareholders of record at the close of business on June 13, 2001 will be
entitled to notice of, and to vote at, the meeting and any adjournments thereof.
You are urged to read the attached proxy statement, which contains
information relevant to the actions to be taken at the meeting. In order to
assure the presence of a quorum, whether or not you expect to attend the meeting
in person, please sign and date the accompanying proxy card and mail it promptly
in the enclosed addressed, postage prepaid envelope. You may revoke your proxy
if you so desire at any time before it is voted.
By Order of the Board of Directors
Samuel Singal
President
Richmond Hill, Ontario
June 19, 2001
CYBER MARK INTERNATIONAL CORP.
----------
PROXY STATEMENT
----------
GENERAL INFORMATION
This Proxy Statement and the enclosed form of proxy are furnished in
connection with the solicitation of proxies by the Board of Directors of Cyber
Mark International Corp. ("Company") to be used at the Annual Meeting of
Shareholders of the Company to be held at 10:00 a.m. Monday, July 2, 2001 and
any adjournment or adjournments thereof ("Annual Meeting"). The Annual Meeting
will be held at 359 Enford Road, Unit 1, Richmond Hill, Ontario, Canada. The
matters to be considered at the meeting are set forth in the attached Notice of
Meeting.
The Company's executive offices are located at 359 Enford Road, Unit 1,
Richmond Hill, Ontario, Canada L4C 3G2. This Proxy Statement and the enclosed
form of proxy are first being sent to shareholders on or about June 19, 2001.
Record Date; Voting Securities
The Board of Directors has fixed the close of business on June 13, 2001
as the record date for determination of shareholders entitled to notice of, and
to vote at, the Annual Meeting or any and all adjournments thereof. As of June
13, 2001, the Company had issued and outstanding 30,561,038 shares of Common
Stock, par value $.0001 per share ("Common Stock"), the Company's only class of
voting securities outstanding. Each shareholder of the Company will be entitled
to one vote for each share of Common Stock registered in his or her name on the
record date.
Solicitation, Voting and Revocation of Proxies
Proxies in the form enclosed are solicited by and on behalf of the
Board of Directors. The person named in the proxy has been designated as proxy
by the Board of Directors. Any proxy given pursuant to such solicitation and
received in time for the meeting will be voted as specified in such proxy. If no
instructions are given, proxies will be voted "FOR" the election of the nominee
as the director of the Company listed below under the caption Proposal I, "FOR"
the proposal to amend to Company's Articles of Incorporation to increase the
number of authorized shares of capital stock as described below under Proposal
II, "FOR" the proposal to approve the 2001 Performance Equity Plan ("2001 Plan")
and, in the discretion of the proxies named in the proxy with respect to any
other matters properly brought before the meeting and any adjournments of the
meeting. Any proxy may be revoked by written notice received by the President of
the Company at any time prior to the voting thereof, by submitting a subsequent
proxy or by attending the Annual Meeting and voting in person. Attendance by a
shareholder at the Annual Meeting does not alone serve to revoke his or her
proxy.
The presence, in person or by proxy, of a majority of the votes
entitled to be cast at the meeting will constitute a quorum at the meeting. A
proxy submitted by a shareholder may indicate that all or a portion of the
shares represented by such proxy are not being voted ("shareholder withholding")
with respect to a particular matter. Similarly, a broker may not be permitted to
vote stock ("broker non-vote") held in street name on a particular matter in the
absence of instructions from the beneficial owner of such stock. The shares
subject to a proxy which are not being voted on a particular matter (because of
either shareholder withholding or broker non-vote) will not be considered shares
present and entitled to vote on such matter. These shares, however, may be
considered present and entitled to vote on other matters and will count for
purposes of determining the presence of a quorum, unless the proxy indicates
that such shares are not being voted on any matter at the meeting, in which case
such shares will not be counted for purposes of determining the presence of a
quorum.
Directors are elected by a plurality of the votes cast at the meeting.
"Plurality" means that the nominees who receive the highest number of votes will
be elected as the directors of the Company. Consequently, any shares not voted
"FOR" a particular nominee (because of either shareholder withholding or broker
non-vote), will not be counted in such nominee's favor.
The approval of the amendment to the Articles of Incorporation requires
the affirmative vote of a majority of the shares of Common Stock outstanding and
entitled to vote. Because this proposal requires the affirmative vote of a
majority of the outstanding shares of Common Stock, abstentions on this matter
(which are considered present and entitled to vote on the matters) and shares of
Common Stock considered present, but not entitled to vote on this matter
(because of a broker non-vote), will have the same effect as a vote against the
proposal.
The 2001 Plan must be approved by the affirmative vote of a majority of
the shares of Common Stock present or represented at the annual meeting and
entitled to vote. Abstentions from voting with respect to the approval of the
2001 Plan are deemed entitled to vote with respect to such proposal and,
therefore, have the same effect as a vote against the proposal. Shares deemed
present at the meeting but not entitled to vote on the 2001 Plan (because of a
broker non-vote) are not deemed entitled to vote with respect to such proposal
and therefore will have no effect on such vote.
All other matters that may be brought before the shareholders must be
approved by the affirmative vote of a majority of the votes cast at the meeting.
Abstentions from voting are counted as "votes cast" with respect to such
proposal and, therefore, have the same effect as a vote against the proposal.
Shares deemed present at the meeting but not entitled to vote (because of either
shareholder withholding or broker non-vote) are not deemed "votes cast" with
respect to such proposal and therefore will have no effect on such vote.
Annual Report
The Company's Annual Report on Form 10-KSB to Shareholders for the
fiscal year ended December 31, 2000, as amended, which contains audited
financial statements, is being mailed with this Proxy.
Incorporation by Reference of Certain Financial Information
The Company hereby incorporates by reference its consolidated financial
statements as at December 31, 2001, and the management's discussion and analysis
contained in the Annual Report on Form 10-KSB for the fiscal year ended December
31, 2001.
Recent Developments
The Board of Directors recently approved a series of agreements to
restructure the Company. The Company, pursuant to a Stock Purchase Agreement
between the Company and Samuel Singal, the Chairman of the Board and Chief
Operating Officer of the Company, sold 100 shares of common stock of CM300
Corporation ("CM300"), its wholly owned subsidiary, to Mr. Singal in exchange
for all of the right, title and interest in and to all of the intellectual
property owned by Mr. Singal and used in the conduct of the business of CM300.
The shares are all the outstanding shares of CM300. Further, in exchange for an
assignment by CM300 to the Company of all of its right, title and interest in
and to all of the intellectual property owned by CM300 and used in the conduct
of the business of CM300, the Company assumed all responsibility and obligation
for repayment of a shareholder loan in the amount of $76,051 made to CM300 by
Mr. Singal ("Indebtedness"). Upon assumption of the Indebtedness, the Company
converted the Indebtedness into 661,313 shares of Common Stock based upon the
value of the Indebtedness and the closing price of the Common Stock on May 17,
2001 ($.115).
2
CM300 has not had any operations for approximately 18 months that have
generated any revenues. The fixed assets of CM300 are not considered to have any
substantial value and some are pledged to secure prior obligations of CM300.
Some of the obligations are guaranteed by Mr. Singal. None of the obligations
of CM300 are those of the Company or guaranteed by the Company, other than as
specifically assumed. By acquiring all the intellectual property used in the
business of virtual reality games, the Company believes it is retaining the
substantial assets of the consolidated entity. In addition, the Company believes
the intellectual property and the reorganization to eliminate the loss
generating CM300 subsidiary may make it more attractive as a public corporation.
Additionally, the Board of Directors approved a stock dividend of ten
shares of Common Stock for every one share of Common Stock outstanding (the
"Dividend"), to be payable on the fourteenth day after all required corporate
actions have been taken to increase the Common Stock capitalization of the
Company.
Security Ownership of Certain Beneficial Owners
The following table sets forth certain information as of June 13, 2001,
with respect to the stock ownership of (i) those persons or groups who
beneficially own more than 5% of the Company's Common Stock, (ii) each director
of the Company, (iii) each executive officer whose compensation exceeded
$100,000 in 2000, and (iv) all directors and executive officers of the Company
as a group (based upon information furnished by such persons).
Amount and Nature
of Beneficial Percent
Name of Beneficial Owner Ownership of Class
- ------------------------ --------- --------
Samuel Singal(1) 7,666,000 25%
All directors and executive
officers as a group 7,666,000 25%
(1 person)
(1) The person's address is 359 Enford Road, Unit 1, Richmond Hill,
Ontario, Canada L4C 3G2.
PROPOSAL I: ELECTION OF DIRECTOR
The person listed below has been designated by the Board of Directors
as the candidate for election as director to serve until the next annual meeting
of shareholders or until his respective successor has been elected and
qualified. Unless otherwise specified in the form of proxy, the proxies
solicited by management will be voted "FOR" the election of this candidate. In
case this nominee becomes unavailable for election to the Board of Directors, an
event which is not anticipated, the person named as proxy, or his substitute,
shall have full discretion and authority to vote or refrain from voting for any
other nominee in accordance with their judgment.
Name Age Director Since Position
- ---- --- -------------- ---------
Samuel Singal 52 1998 Chairman of the Board and Chief
Operating Officer and Director
Samuel Singal founded the Company's principal subsidiary, CM300 in 1996
and the Company in 1998 as a holding company. Mr. Singal has been the Chairman
and Chief Operating Officer of the Company since 1998 and the President of CM300
since 1996. From 1994 until 1996, Mr. Singal was employed at Cybermind Systems,
where he held the position of President.
3
Board Meetings and Committees
During the fiscal year ended December 31, 2000, the Board of Directors
acted by unanimous consent three times. Members of the Board of Directors
generally are elected annually by the shareholders of the Company and may be
removed as provided in the General Corporation Law of the State of Delaware and
the Company's Articles of Incorporation.
Compensation of Outside Directors
Directors who are employees of the Company receive no cash compensation
for serving on the board of directors other than reimbursement of reasonable
expenses incurred in attending meetings. There are no outside directors of the
Company, and the Company does not have any policy on compensation of outside
directors at this time.
Executive Compensation
The Company currently does not pay any salary to Mr. Singal. Mr. Singal
is not employed under a written contract of employment.
The Company cannot determine, without unreasonable effort or expense,
the specific amount of certain personal benefits afforded to its employees, or
the extent to which benefits are personal rather than for business. The Company
has concluded that the aggregate amounts of such personal benefits which cannot
be specifically or precisely ascertained do not in any event exceed, as to each
individual named above, the lesser of $50,000 or 10% of the compensation
reported above for such individual, or, in the case of a group, the lesser of
$50,000 for each individual in the group, or 10% of the compensation reported
above for the group, and that such information set forth above is not rendered
materially misleading by virtue of the omission of the value of such personal
benefits.
1998 Performance Equity Plan
We have a Performance Equity Plan which was adopted in 1998 and
provides for the issuance of stock-based awards for up to 520,000 shares of
Common Stock. The awards under this plan may be granted separately or together
with other awards. The awards include non-incentive stock options, stock bonuses
and cash payment awards. Awards may be granted to consultants, directors,
employees and officers of the Company. No incentive awards may be granted under
this plan. We currently have not granted any awards under this plan to date.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires the Company's officers, directors and persons who beneficially own more
than ten percent of a registered class of the Company's equity securities ("ten
percent shareholders") to file reports of ownership and changes in ownership
with the Securities and Exchange Commission ("SEC") and the National Association
of Securities Dealers, Inc. Officers, directors and ten percent shareholders are
charged by SEC regulation to furnish the Company with copies of all Section
16(a) forms they file. Based solely upon its review of the copies of such forms
received by it, or written representations from certain reporting persons that
no Forms 5 were required for those persons, the Company believes that, during
the fiscal year ended December 31, 2000, the filing requirements applicable to
its executive officers, directors and ten percent shareholders were not
fulfilled or not fulfilled on a timely basis.
4
PROPOSAL II: TO APPROVE THE AMENDMENT
TO THE ARTICLES OF INCORPORATION TO CHANGE THE CAPITAL
The Company is currently authorized by its Articles of Incorporation to
issue 75,000,000 shares of Common Stock and 3,000,000 shares of Preferred Stock.
As of the record date, 30,561,038 shares of Common Stock were outstanding and no
shares of Preferred Stock were outstanding. In addition, the Company is
obligated to reserve 520,000 shares of Common Stock for issuance under the 1998
Performance Equity Plan and 1,750,000 shares of Common Stock for issuance under
the 2001 Plan. Further, the Board requires additional shares to effect the
Dividend. For the Dividend, the Company will need to have available
approximately 305,600,000 shares of Common Stock. The Common Stock does not and
will not have any pre-emptive rights. The issuance of the shares for the
Dividend will not have a dilutive effect on the current stockholders because the
Dividend will represent only a proportionate increase in their holdings. The
rights of the holders of Common Stock will not be altered as a result of the
Dividend.
Based on the number of shares of Common Stock outstanding as of the
record date, the need to reserve shares of Common Stock as set forth above and
the current Articles of Incorporation limit of 75,000,000 shares of Common
Stock, the Board of Directors has determined that there is an inadequate number
of authorized shares of Common Stock under the Articles of Incorporation for
management to be able to meet current obligations of the Company and to plan for
the future growth and development of the Company. Accordingly, the Board of
Directors proposes to amend the Articles of Incorporation to increase the
authorized number of shares of Common Stock by an additional 425,000,000 shares
of Common Stock to 500,000,000 shares of Common Stock.
The Board of Directors believes approval of the amendment to the
Articles of Incorporation to increase the capital is in the best interest of the
Company and its stockholders. The authorization of additional shares of Common
Stock will enable the Company to meet its obligations under the various employee
benefit plans, and issue securities convertible, exercisable or exchangeable for
Common Stock in the future. Further, the authorization of additional shares will
enable the Board of Directors to implement the Dividend. The proposed amendment
will also give the Board of Directors flexibility to authorize the issuance of
shares of Common Stock in the future for financing the Company's business, for
acquiring other businesses, for forming strategic partnerships and alliances and
for stock dividends and stock splits. Currently, the Company has no agreements
or plans to issue any shares of Common Stock in connection with any acquisition
of other business, including by way of an asset purchase or merger, combination
or consolidation or for forming any partnerships or alliances.
Approval of the proposal will permit the Board of Directors to issue
additional shares of Common Stock without further approval of the stockholders
of the Company; and the Board of Directors does not intend to seek stockholder
approval prior to any issuance of the authorized capital stock unless
stockholder approval is required by applicable law or stock market or exchange
requirements. Although the Company from time to time reviews various
transactions that could result in the issuance of Common Stock, the Company is
not a party to any agreement to issue additional shares of its capital stock,
except as may be required in connection with the exercise of existing
outstanding options or warrants, or in connection with options and other stock
based awards which may be issued under the Company's 1998 Performance Equity
Plan, the 2001 Plan or under any other plan or arrangement the Board of
Directors may hereafter approve.
Other than limited provisions in the Company's by-laws, the Company
does not have in place provisions which may have an anti-takeover effect. At
this Annual Meeting, the shareholders are being asked to consider and approve a
proposal to increase the number of authorized shares of Common Stock. This
proposal has not resulted from the Company's knowledge of any specific effort to
accumulate the Company's securities or to obtain control of the Company by means
of a merger, tender offer, proxy solicitation in opposition to management or
otherwise. The Company is not submitting this proposal to enable it to frustrate
any efforts by another party to acquire a controlling interest or to seek Board
representation.
5
In certain instances, the issuance of additional shares of Common Stock
will have a dilutive effect on earnings per share and on the equity and voting
power of existing security holders of the Company's capital stock. It may also
adversely affect the market price of the Common Stock. However, if additional
shares are issued in transactions whereby favorable business opportunities are
provided and allow the Company to pursue its business plans, the market price
may increase.
The holders of Common Stock of the Company are entitled to one vote for
each share held of record on all matters to be voted on by the stockholders of
the Company. There is no cumulative voting with respect to the election of
directors, with the result that the holders of more than 50% of the shares of
Common Stock of the Company voted in an election of directors can elect the
directors of the Company. The holders of Common Stock are entitled to receive
dividends when, as, and if declared by the Board of Directors out of funds
legally available therefor. The Company never has paid cash dividends on its
shares of Common Stock. In the event of liquidation, dissolution or winding up
of the Company, the holders of the shares of Common Stock are entitled to share
ratably in all assets remaining available for distribution to them after payment
of liabilities and after provision has been made for each class of stock, if
any, having preference over the Common Stock. Holders of shares of Common Stock
have no conversion, preemptive or other subscription rights, and there are no
redemption provisions applicable to the Common Stock.
The affirmative vote of a majority of the outstanding Common Stock is
required to approve the amendment to the Articles of Incorporation.
If the proposal to amend the Articles of Incorporation is approved, the
fourth article of the Articles of Incorporation will be amended promptly after
the meeting to increase the number of shares of Common Stock the Company is
authorized to issue to 500,000,000.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE "FOR" THE APPROVAL
OF THE PROPOSAL TO AMEND THE COMPANY'S ARTICLES OF INCORPORATION TO INCREASE
THE CAPITAL
PROPOSAL III: TO APPROVE THE
2001 PERFORMANCE EQUITY PLAN
On May 10, 2001, our board of directors adopted the 2001 Performance
Equity Plan subject to shareholder approval at the annual meeting. Our board of
directors believes that in order to continue to attract and retain directors,
officers, employees and consultants of the highest caliber, provide increased
incentive and to continue to promote the well-being of our company, it is in the
best interest of our company and its stockholders to provide our directors,
officers, employees and consultants an opportunity to acquire a proprietary
interest in us.
Summary of the 2001 Plan
The following summary of the 2001 Plan does not purport to be complete,
and is subject to and qualified in its entirety by reference to the 2001 Plan, a
copy of which is annexed to this proxy statement as Appendix A.
Administration
The 2001 Plan is administered by the Board or, at its discretion, by
the Company's Stock Option Committee or such other committee as may be
designated by the Board (the "Committee"). All references herein to the
"Committee" shall mean the Committee or the Board. The Committee has full
6
authority, subject to the provisions of the 2001 Plan, to award any of the
following, either alone or in tandem with each other:
o stock options;
o stock appreciation rights;
o restricted stock;
o deferred stock;
o stock reload options; and
o other stock-based awards.
Subject to the provisions of the 2001 Plan, the Committee determines,
among other things, the persons to whom from time to time awards may be granted,
the specific type of award to be granted, the number of shares subject to each
award, share prices, any restrictions or limitations on such awards, and any
vesting, exchange, deferral, surrender, cancellation, acceleration, termination,
exercise or forfeiture provisions related to such awards. The interpretation and
construction by the Committee of any provisions of, and the determination by the
Committee of any questions arising under, the 2001 Plan or any rule or
regulation established by the Committee pursuant to the 2001 Plan shall be final
and binding on all persons interested in the 2001 Plan. Awards under the 2001
Plan are evidenced by agreements.
Stock Subject to the 2001 Plan
The 2001 Plan authorizes the granting of awards, whose exercise would
allow up to an aggregate of 10,000,000 shares of Common Stock, to be acquired by
the holders of such awards. The Company has issued restricted stock under the
2001 Plan for approximately 8,250,000 shares of Common Stock. There are
approximately 1,750,000 shares of Common Stock remaining to be granted. In order
to prevent the dilution or enlargement of the rights of holders under the 2001
Plan, the number of shares of Common Stock authorized by the 2001 Plan is
subject to equitable adjustment in terms of any award (both of shares and price)
by the board of directors in the event of any increase or decrease in the number
of shares of outstanding Common Stock resulting from a merger, reorganization,
consolidation, dividend (other than a cash dividend) payable on shares of Common
Stock, stock split, reverse stock split, combination or exchange of shares, or
other extraordinary or unusual event occurring after the grant of an award which
results in a change in the shares of our common stock. The shares of Common
Stock acquirable pursuant to the awards will be made available, in whole or in
part, from authorized and unissued shares of Common Stock or treasury shares of
Common Stock. If any award granted under the 2001 Plan is forfeited or
terminated, the shares of Common Stock that were available pursuant to such
award shall again be available for distribution in connection with awards
subsequently granted under the 2001 Plan.
Eligibility
Subject to the provisions of the 2001 Plan, awards may be granted to
directors, officers, employees and consultants who are deemed to have rendered
or to be able to render significant services to us and who are deemed to have
contributed or to have the potential to contribute to our success. Incentive
stock options may be awarded only to persons who are our employees at the time
of grant of such awards. Notwithstanding the foregoing, an award may be made or
granted to a person in connection with his hiring or retention, or at any time
on or after the date he reaches an agreement (oral or written) with the Company
with respect to such hiring or retention, even though it may be prior to the
7
date the person first performs services for the Company; provided, however, that
no portion of any such award shall become vested prior to the date the person
first performs such services.
Types of awards
Options. The 2001 Plan provides both for "Incentive" stock options as
defined in Section 422 of the Internal Revenue Code of 1986, as amended, and for
options not qualifying as Incentive stock options, both of which may be granted
with any other stock-based award under the 2001 Plan. For Incentive stock
options to result in the tax benefits to the holders, the 2001 Plan must be
adopted by the stockholders before May 10, 2002. If the 2001 Plan is not adopted
by stockholders, any Incentive stock options will be treated like Non-Incentive
stock options.
The Committee determines the exercise price per share of Common Stock
purchasable under an Incentive or Non-Incentive stock option. The exercise price
of Non-Incentive stock options may be less than 100% of the fair market value of
our Common Stock on the date of the grant. The exercise price of Incentive stock
options may not be less than 100% of the fair market value on the day of the
grant or, in the case of an Incentive stock option granted to a person
possessing more than 10% of the total combined voting power of all classes of
our stock, not less than 110% of such fair market value ("10% stockholder"). In
the case of an Incentive stock option, the aggregate fair market value on the
date of grant of the stock option with respect to which Incentive stock options
become exercisable for the first time by a holder during any calendar year shall
not exceed $100,000. An Incentive stock option may only be granted within a
ten-year period from the date the 2001 Plan is adopted and approved and may only
be exercised within ten years from the date of the grant or, within five years
in the case of an Incentive stock option granted to a 10% stockholder. Subject
to any limitations or conditions the Committee may impose, stock options may be
exercised, in whole or in part, at any time during the term of the stock option
by providing us with written notice of exercise specifying the number of shares
of Common Stock to be purchased. Such notice must be accompanied by payment in
full of the purchase price, either in cash or, if provided in the agreement, in
our securities, or in a combination of the two.
Except as set forth below, stock options granted under the 2001 Plan
may not be transferred other than by will or by the laws of descent and
distribution and are exercisable only by the holder or, to the extent of legal
incapacity or incompetency, the holder's guardian or legal representative,
during his or her lifetime. Notwithstanding the foregoing, a holder, with the
approval of the Committee, may transfer a Non-Incentive stock option (i) (A) by
gift, for no consideration, or (B) pursuant to a domestic relations order, in
either case, to or for the benefit of the holder's "Immediate Family" (as
defined below), or (ii) to an entity in which the holder and/or members of
holder's Immediate Family own more than fifty percent of the voting interest, in
exchange for an interest in that entity, subject to such limits as the Committee
may establish, and the transferee shall remain subject to all the terms and
conditions applicable to the stock option prior to such transfer. The term
"Immediate Family" shall mean any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or
sister-in-law, including adoptive relationships, any person sharing the holder's
household (other than a tenant or employee), a trust in which these persons have
more than fifty percent beneficial interest, and a foundation in which these
persons (or the Holder) control the management of the assets.
Generally, if the holder is an employee, no stock options granted under
the 2001 Plan may be exercised by the holder unless he or she is employed by us
or a subsidiary of ours at the time of the exercise and has been so employed
continuously from the date the stock options were granted. However, in the event
the holder's employment is terminated due to the holder's death or disability,
the holder (or, in the case of the holder's death, his or her legal
representative or legatee under his or her will) may still exercise his or her
stock options for a period of one year from the date of such termination, or
8
such other greater or lesser period as the Committee may specify at the time of
grant, or until the expiration of the stated term of the stock option, whichever
period is shorter. If the holder's employment is terminated for any reason other
than death or disability, the stock option shall automatically terminate.
Notwithstanding the foregoing, if the holder's employment is terminated by us
without cause or due to normal retirement upon the holder attaining the age of
65, then the portion of any stock option that has vested on the date of
termination may be exercised for the lesser of three months after termination or
the balance of the stock option's term, or such other greater or lesser or
period as the Committee may specify at the time of grant.
Stock appreciation rights. The Committee may grant stock appreciation
rights to participants who have been, or are being, granted stock options under
the 2001 Plan as a means of allowing them to exercise their stock options
without the need to pay the exercise price in cash. In conjunction with
Non-Incentive stock options, SARs may be granted either at or after the time of
the grant of such Non-Incentive stock options. In conjunction with Incentive
stock options, SARs may be granted only at the time of the grant of such
Incentive stock options. A SAR entitles the holder to surrender to us all or a
portion of a stock option in exchange for a number of shares of Common Stock
determined by dividing the excess of the fair market price per share of Common
Stock on the exercise date over the exercise price per share (as specified by
the related stock option) by the fair market value of the stock option on the
date the SAR is exercised.
Restricted stock. The Committee may award shares of restricted stock
either alone or in addition to other awards granted under the 2001 Plan. The
Committee determines the persons to whom grants of restricted stock are made,
the number of shares to be awarded, the price, if any, to be paid for the
restricted stock by the person receiving such stock, the restriction period
within which awards of restricted stock may be subject to forfeiture, the
vesting schedule and rights to acceleration thereof, and all other terms and
conditions of the restricted stock awards.
Restricted stock awarded under the 2001 Plan may not be sold,
exchanged, assigned, transferred, pledged, encumbered or otherwise disposed of
other than to us during the applicable restriction period. Other than regular
cash dividends and other cash equivalent distributions as the Committee may
designate, pay or distribute, we will retain custody of all distributions made
or declared with respect to the restricted stock during the restriction period.
A breach of any restriction regarding the restricted stock will cause a
forfeiture of such restricted stock and any retained distributions with respect
thereto. Except for the foregoing restrictions, the holder shall, even during
the restriction period, have all of the rights of a stockholder, including the
right to receive and retain all regular cash dividends and other cash equivalent
distributions as the Committee may designate, pay or distribute on such
restricted stock and the right to vote such shares.
In order to enforce the foregoing restrictions, the 2001 Plan requires
that all shares of restricted stock awarded to the holder remain in our physical
custody until the restrictions on such shares have terminated and all vesting
requirements with respect to the restricted stock have been fulfilled.
Deferred stock. The Committee may award shares of deferred stock either
alone or in addition to other awards granted under the 2001 Plan. The Committee
determines the eligible persons to whom, and the time or times at which,
deferred stock will be awarded, the number of shares of deferred stock to be
awarded, the duration of the period during which, and the conditions under
which, receipt of the stock will be deferred, and all the other terms and
conditions of such deferred stock awards.
Deferred stock awards granted under the 2001 Plan may not be sold,
exchanged, assigned, transferred, pledged, encumbered or otherwise disposed of
other than to us during the applicable deferral period. The holder shall not
have any rights of a stockholder until the expiration of the applicable deferral
period and the issuance and delivery of the certificates representing such
Common Stock. The holder may request to defer the receipt of a deferred stock
9
award for an additional specified period or until a specified event. Such
request must generally be made at least one year prior to the expiration of the
deferral period for such deferred stock award.
Stock reload options. The Committee may grant stock reload options to a
holder who tenders shares of Common Stock to pay the exercise price of a stock
option, and arranges to have a portion of the shares otherwise issuable upon
exercise withheld to pay the applicable withholding taxes. A stock reload option
permits a holder to exercise a stock option by delivering stock owned by him for
a minimum of six months and receive a new stock option in exchange at the
current market price for the same number of shares delivered to exercise the
option. The Committee determines the terms, conditions, restrictions and
limitations of the stock reload options. The exercise price of stock reload
options shall be the fair market value as of the date of exercise of the
exchanged option. Unless the Committee determines otherwise, a stock reload
option may be exercised commencing one year after it is granted and expires on
the expiration date of the exchanged option.
Other stock-based awards. The Committee may grant other stock-based
awards, subject to limitations under applicable law, that are denominated or
payable in, valued in whole or in part by reference to, or otherwise based on or
related to, shares of Common Stock, as deemed by the Committee to be consistent
with the purposes of the 2001 Plan, including purchase rights, shares of Common
Stock awarded which are not subject to any restrictions or conditions,
convertible or exchangeable debentures or other rights convertible into shares
of Common Stock and awards valued by reference to the value of securities of or
the performance of specified subsidiaries. Subject to the terms of the 2001
Plan, the Committee has complete discretion to determine the terms and
conditions of other stock-based awards. Other stock-based awards may be awarded
either alone, in addition to, or in tandem with any other awards under the 2001
Plan or any other plan in effect.
Competition
If a holder's employment is terminated for any reason whatsoever, and
within 18 months after the date of termination such holder either (i) accepts
employment with any of our competitors or otherwise engages in competition with
us, or (ii) discloses to anyone outside the Company or uses any of our
confidential information or material in violation of our policies or any
agreement between us and the holder, the Committee, in its sole discretion, may
require the holder to return to us the economic value of any award that was
realized or obtained by the holder at any time during the period beginning on
that date that is six months prior to the date the holder's employment was
terminated.
Withholding taxes
Upon the exercise of any award granted under the 2001 Plan, the holder
may be required to remit to us an amount sufficient to satisfy all federal,
state and local withholding tax requirements prior to delivery of any
certificate or certificates for shares of Common Stock. Subject to certain
stringent limitations under the 2001 Plan, and at our discretion, the holder may
satisfy these requirements by electing to have us withhold a portion of the
shares to be received upon the exercise of the award having a value equal to the
amount of the withholding tax due under applicable federal, state and local
laws.
Agreements; Transferability
Stock options, SARs, restricted stock, deferred stock, stock reload
options and other stock-based awards granted under the 2001 Plan will be
evidenced by agreements consistent with the 2001 Plan in such form as the
Committee may prescribe. Neither the 2001 Plan nor agreements thereunder confer
any right to continued employment upon any holder of a stock option, SAR,
restricted stock, deferred stock, stock reload option or other stock-based
10
award. Further, all agreements will provide that the right to exercise stock
options, receive restricted stock after the expiration of the restriction period
or deferred stock after the expiration of the deferral period, receive payment
under other stock-based awards, or exercise an SAR cannot be transferred except
by will or the laws of descent and distribution.
Term and amendments
Unless terminated by the Board, the 2001 Plan shall continue to remain
effective until such time as no further awards may be granted and all awards
granted under the 2001 Plan are no longer outstanding. Notwithstanding the
foregoing, grants of Incentive stock options may only be made during the ten
year period following the date the 2001 Plan becomes effective, if the 2001 Plan
is adopted by the stockholders prior to May 10, 2002. The Board may at any time,
and from time to time, amend the 2001 Plan, provided that no amendment shall be
made which would impair the rights of a holder under any agreement entered into
pursuant to the 2001 Plan without the holder's consent.
OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A
VOTE "FOR" THE APPROVAL OF THE PROPOSAL TO APPROVE THE 2001 PLAN
INDEPENDENT ACCOUNTANTS
The independent accounting firm for the Company is Citrin Cooperman &
Company LLP. A representative of Citrin Cooperman & Company LLP is expected to
be present at the meeting with an opportunity to make a statement if he desires
to do so and is expected to be available to respond to appropriate questions.
Audit Fees
During fiscal year ended December 31, 2000, the Company was billed
$17,649 in accounting and audit fees for the review and audit of its annual and
quarterly financial statements. The independent accountants did not render any
services for information systems design or implementation or any other services.
SOLICITATION OF PROXIES
The cost of proxy solicitations will be borne by the Company. In
addition to solicitations of proxies by use of the mails, some officers or
employees of the Company, without additional remuneration, may solicit proxies
personally or by telephone. The Company may also request brokers, dealers, banks
and their nominees to solicit proxies from their clients where appropriate, and
may reimburse them for reasonable expenses related thereto.
SHAREHOLDER PROPOSALS
Shareholder Proposals and Nominations
Proposals of shareholders intended to be presented at the annual
meeting to be held in 2002 must be received at the Company's offices by April
19, 2002 for inclusion in the proxy materials relating to that meeting.
The Company has provisions in its certificate of incorporation intended
to promote the efficient functioning of its shareholder meetings. Some of the
provisions describe the Company's right to determine the time, place and conduct
11
of shareholder meetings and to require advance notice by mail or delivery to the
Company of shareholder proposals or director nominations for shareholder
meetings.
Under the certificate of incorporation, shareholders must provide the
Company with at least 70 days notice of business the shareholder proposes for
consideration at the meeting and persons the shareholder intends to nominate for
election as directors at the meeting. This notice must be received for the
annual meeting in the year 2002 on April 19, 2002. Shareholder proposals must
include the exact language of the proposal, a brief description of the matter
and the reasons for the proposal, the name and address of the shareholder making
the proposal and disclosure of that shareholder's number of shares of Common
Stock owned, length of ownership of the shares, representation that the
shareholder will continue to own the shares through the shareholder meeting,
intention to appear in person or proxy at the shareholder meeting and material
interest, if any, in the matter being proposed. Shareholder nominations for
persons to be elected as directors must include the name and address of the
shareholder making the nomination, a representation that the shareholder owns
shares of Common Stock entitled to vote at the shareholder meeting, a
description of all arrangements between the shareholder and each nominee and any
other persons relating to the nomination, the information about the nominees
required by the Exchange Act of 1934 and a consent to nomination of the person
nominated.
Shareholder proposals or nominations should be addressed to The
Secretary, Cyber Mark International Corp., 359 Enford Road, Unit 1, Richmond
Hill, Ontario, Canada L4C 3G2.
Discretionary Voting of Proxies on Other Matters
The Company does not now intend to bring before the Annual Meeting any
matters other than those specified in the notice of the Annual Meeting, and it
does not know of any business which persons other than the Board of Directors
intend to present at the Annual Meeting. Should any business requiring a vote of
the shareholders, which is not specified in the notice, properly come before the
Annual Meeting, the persons named in the accompanying proxy intend to vote the
shares represented by them in accordance with their best judgment.
By Order of the Board of Directors
Samuel Singal
President
Richmond Hill, Ontario
June 19, 2001
12
Appendix A
Approved by Board of Directors on May 10, 2001
Approved by Stockholders on July___, 2001
CYBER MARK INTERNATIONAL CORP.
2001 Performance Equity Plan
Section 1. Purpose; Definitions.
1.1 Purpose. The purpose of the Cyber Mark International Corp. 2001
Performance Equity Plan is to enable the Company to offer to its employees,
officers, directors and consultants whose past, present and/or potential
contributions to the Company and its Subsidiaries have been, are or will be
important to the success of the Company, an opportunity to acquire a proprietary
interest in the Company. The various types of long-term incentive awards that
may be provided under the Plan will enable the Company to respond to changes in
compensation practices, tax laws, accounting regulations and the size and
diversity of its businesses.
1.2 Definitions. For purposes of the Plan, the following terms shall be
defined as set forth below:
(a) "Agreement" means the agreement between the Company and the
Holder setting forth the terms and conditions of an award under the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
(d) "Committee" means the Stock Option Committee of the Board or
any other committee of the Board that the Board may designate to administer the
Plan or any portion thereof. If no Committee is so designated, then all
references in this Plan to "Committee" shall mean the Board.
(e) "Common Stock" means the Common Stock of the Company, $.0001
par value per share.
(f) "Company" means Cyber Mark International Corp, a corporation
organized under the laws of the State of Delaware.
(g) "Deferred Stock" means Common Stock to be received, under an
award made pursuant to Section 8, below, at the end of a specified deferral
period.
(h) "Disability" means physical or mental impairment as determined
under procedures established by the Committee for purposes of the Plan.
(i) "Effective Date" means the date set forth in Section 11.1,
below.
(j) "Fair Market Value", unless otherwise required by any
applicable provision of the Code or any regulations issued thereunder, means, as
of any given date: (i) if the Common Stock is listed on a national securities
exchange or quoted on the Nasdaq National Market or Nasdaq SmallCap Market, the
last sale price of the Common Stock in the principal trading market for the
Common Stock on the last trading day preceding the date of grant of an award
hereunder, as reported by the exchange or Nasdaq, as the case may be; (ii) if
the Common Stock is not listed on a national securities exchange or quoted on
the Nasdaq National Market or Nasdaq SmallCap Market, but is traded in the
over-the-counter market, the closing bid price for the Common Stock on the last
trading day preceding the date of grant of an award hereunder for which such
quotations are reported by the OTC Bulletin Board or the National Quotation
Bureau, Incorporated or similar publisher of such quotations; and (iii) if the
fair market value of the Common Stock cannot be determined pursuant to clause
(i) or (ii) above, such price as the Committee shall determine, in good faith.
(k) "Holder" means a person who has received an award under the
Plan.
(l) "Incentive Stock Option" means any Stock Option intended to be
and designated as an "incentive stock option" within the meaning of Section 422
of the Code.
(m) "Nonqualified Stock Option" means any Stock Option that is not
an Incentive Stock Option.
(n) "Normal Retirement" means retirement from active employment
with the Company or any Subsidiary on or after age 65.
(o) "Other Stock-Based Award" means an award under Section 9,
below, that is valued in whole or in part by reference to, or is otherwise based
upon, Common Stock.
(p) "Parent" means any present or future "parent corporation" of
the Company, as such term is defined in Section 424(e) of the Code.
(q) "Plan" means the Cyber Mark International Corp. 2001
Performance Equity Plan, as hereinafter amended from time to time.
(r) "Restricted Stock" means Common Stock, received under an award
made pursuant to Section 7, below, that is subject to restrictions under said
Section 7.
(s) "SAR Value" means the excess of the Fair Market Value (on the
exercise date) over the exercise price that the participant would have otherwise
had to pay to exercise the related Stock Option, multiplied by the number of
shares for which the Stock Appreciation Right is exercised.
(t) "Stock Appreciation Right" means the right to receive from the
Company, on surrender of all or part of the related Stock Option, without a cash
payment to the Company, a number of shares of Common Stock equal to the SAR
Value divided by the Fair Market Value (on the exercise date).
(u) "Stock Option" or "Option" means any option to purchase shares
of Common Stock which is granted pursuant to the Plan.
(v) "Stock Reload Option" means any option granted under Section
5.3 of the Plan.
(w) "Subsidiary" means any present or future "subsidiary
corporation" of the Company, as such term is defined in Section 424(f) of the
Code.
2
Section 2. Administration.
2.1 Committee Membership. The Plan shall be administered by the Board
or a Committee. Committee members shall serve for such term as the Board may in
each case determine, and shall be subject to removal at any time by the Board.
The Committee members, to the extent possible and deemed to be appropriate by
the Board, shall be "non-employee directors" as defined in Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), and "outside directors" within the meaning of Section 162(m) of the Code.
2.2 Powers of Committee. The Committee shall have full authority to
award, pursuant to the terms of the Plan: (i) Stock Options, (ii) Stock
Appreciation Rights, (iii) Restricted Stock, (iv) Deferred Stock, (v) Stock
Reload Options and/or (vi) Other Stock-Based Awards. For purposes of
illustration and not of limitation, the Committee shall have the authority
(subject to the express provisions of this Plan):
(a) to select the officers, employees, directors and
consultants of the Company or any Subsidiary to whom Stock Options, Stock
Appreciation Rights, Restricted Stock, Deferred Stock, Reload Stock Options
and/or Other Stock-Based Awards may from time to time be awarded hereunder.
(b) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder (including, but not
limited to, number of shares, share exercise price or types of consideration
paid upon exercise of such options, such as other securities of the Company or
other property, any restrictions or limitations, and any vesting, exchange,
surrender, cancellation, acceleration, termination, exercise or forfeiture
provisions, as the Committee shall determine);
(c) to determine any specified performance goals or such other
factors or criteria which need to be attained for the vesting of an award
granted hereunder;
(d) to determine the terms and conditions under which awards
granted hereunder are to operate on a tandem basis and/or in conjunction with or
apart from other equity awarded under this Plan and cash awards made by the
Company or any Subsidiary outside of this Plan;
(e) to permit a Holder to elect to defer a payment under the
Plan under such rules and procedures as the Committee may establish, including
the payment or crediting of interest on deferred amounts denominated in cash and
of dividend equivalents on deferred amounts denominated in Common Stock;
(f) to determine the extent and circumstances under which
Common Stock and other amounts payable with respect to an award hereunder shall
be deferred that may be either automatic or at the election of the Holder; and
(g) to substitute (i) new Stock Options for previously granted
Stock Options, which previously granted Stock Options have higher option
exercise prices and/or contain other less favorable terms, and (ii) new awards
of any other type for previously granted awards of the same type, which
previously granted awards are upon less favorable terms.
Notwithstanding anything contained herein to the contrary, the
Committee shall not grant to any one Holder in any one calendar year awards for
more than 3,000,000 shares in the aggregate.
3
2.3 Interpretation of Plan.
(a) Committee Authority. Subject to Section 11, below, the
Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable, to interpret the terms and provisions of the
Plan and any award issued under the Plan (and to determine the form and
substance of all Agreements relating thereto), and to otherwise supervise the
administration of the Plan. Subject to Section 11, below, all decisions made by
the Committee pursuant to the provisions of the Plan shall be made in the
Committee's sole discretion and shall be final and binding upon all persons,
including the Company, its Subsidiaries and Holders.
(b) Incentive Stock Options. Anything in the Plan to the
contrary notwithstanding, no term or provision of the Plan relating to Incentive
Stock Options (including but limited to Stock Reload Options or Stock
Appreciation rights granted in conjunction with an Incentive Stock Option) or
any Agreement providing for Incentive Stock Options shall be interpreted,
amended or altered, nor shall any discretion or authority granted under the Plan
be so exercised, so as to disqualify the Plan under Section 422 of the Code, or,
without the consent of the Holder(s) affected, to disqualify any Incentive Stock
Option under such Section 422.
Section 3. Stock Subject to Plan.
3.1 Number of Shares. The total number of shares of Common Stock
reserved and available for issuance under the Plan shall be 10,000,000 shares.
Shares of Common Stock under the Plan may consist, in whole or in part, of
authorized and unissued shares or treasury shares. If any shares of Common Stock
that have been granted pursuant to a Stock Option cease to be subject to a Stock
Option, or if any shares of Common Stock that are subject to any Stock
Appreciation Right, Restricted Stock, Deferred Stock award, Reload Stock Option
or Other Stock-Based Award granted hereunder are forfeited or any such award
otherwise terminates without a payment being made to the Holder in the form of
Common Stock, such shares shall again be available for distribution in
connection with future grants and awards under the Plan. If a Holder pays the
exercise price of a Stock Option by surrendering any previously owned shares
and/or arranges to have the appropriate number of shares otherwise issuable upon
exercise withheld to cover the withholding tax liability associated with the
Stock Option exercise, then the number of shares available under the Plan shall
be increased by the lesser of (i) the number of such surrendered shares and
shares used to pay taxes; and (ii) the number of shares purchased under such
Stock Option.
3.2 Adjustment Upon Changes in Capitalization, Etc. In the event of any
dividend payable on shares of Common Stock, stock split of Common Stock, reverse
stock split of Common Stock, combination or exchange of Common Stock, or other
similar event which results in a change in the shares of Common Stock of the
Company as a whole, the Committee shall make such equitable adjustments in the
terms of any award (both of shares and price) and the aggregate number of shares
reserved for issuance under the Plan. Any such adjustments will be made by the
Committee, whose determination will be final, binding and conclusive.
Section 4. Eligibility.
Awards may be made or granted to employees, officers, directors and
consultants who are deemed to have rendered or to be able to render significant
services to the Company or its Subsidiaries and who are deemed to have
contributed or to have the potential to contribute to the success of the
Company. No Incentive Stock Option shall be granted to any person who is not an
employee of the Company or a Subsidiary at the time of grant. Notwithstanding
the foregoing, an award may be made or granted to a person in connection with
his hiring or retention, or at any time on or after the date he reaches an
4
agreement (oral or written) with the Company with respect to such hiring or
retention, even though it may be prior to the date the person first performs
services for the Company or its Subsidiaries; provided, however, that no portion
of any such award shall become vested prior to the date the person first
performs such services.
Section 5. Stock Options.
5.1 Grant and Exercise. Stock Options granted under the Plan may be of
two types: (i) Incentive Stock Options and (ii) Nonqualified Stock Options. Any
Stock Option granted under the Plan shall contain such terms, not inconsistent
with this Plan, or with respect to Incentive Stock Options, not inconsistent
with the Plan and the Code, as the Committee may from time to time approve. The
Committee shall have the authority to grant Incentive Stock Options or
Non-Qualified Stock Options, or both types of Stock Options which may be granted
alone or in addition to other awards granted under the Plan. To the extent that
any Stock Option intended to qualify as an Incentive Stock Option does not so
qualify, it shall constitute a separate Nonqualified Stock Option.
5.2 Terms and Conditions. Stock Options granted under the Plan shall be
subject to the following terms and conditions:
(a) Option Term. The term of each Stock Option shall be fixed
by the Committee; provided, however, that an Incentive Stock Option may be
granted only within the ten-year period commencing from the Effective Date and
may only be exercised within ten years of the date of grant (or five years in
the case of an Incentive Stock Option granted to an optionee who, at the time of
grant, owns Common Stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company ("10% Shareholder").
(b) Exercise Price. The exercise price per share of Common
Stock purchasable under a Stock Option shall be determined by the Committee at
the time of grant and may not be less than 100% of the Fair Market Value on the
day of grant; provided, however, that (i) the exercise price of an Incentive
Stock Option granted to a 10% Shareholder shall not be less than 110% of the
Fair Market Value on the date of grant; and (ii) if the Stock Option is granted
in connection with the recipient's hiring, retention, reaching an agreement
(oral or written) with the Company with respect to such hiring or retention,
promotion or similar event, the option exercise price may be not less than the
Fair Market Value of the Common Stock on the trading day immediately preceding
the date on which the recipient is hired or retained, reached such agreement
with respect to such hiring or retention, or is promoted (or similar event), if
the grant of the Stock Option occurs not more than 120 days after the date of
such hiring, retention, agreement, promotion or other event.
(c) Exercisability. Stock Options shall be exercisable at such
time or times and subject to such terms and conditions as shall be determined by
the Committee and as set forth in Section 10, below. If the Committee provides,
in its discretion, that any Stock Option is exercisable only in installments,
i.e., that it vests over time, the Committee may waive such installment exercise
provisions at any time at or after the time of grant in whole or in part, based
upon such factors as the Committee shall determine.
(d) Method of Exercise. Subject to whatever installment,
exercise and waiting period provisions are applicable in a particular case,
Stock Options may be exercised in whole or in part at any time during the term
of the Option, by giving written notice of exercise to the Company specifying
the number of shares of Common Stock to be purchased. Such notice shall be
accompanied by payment in full of the purchase price, which shall be in cash or,
if provided in the Agreement, either in shares of Common Stock (including
5
Restricted Stock and other contingent awards under this Plan) or partly in cash
and partly in such Common Stock, or such other means which the Committee
determines are consistent with the Plan's purpose and applicable law. Cash
payments shall be made by wire transfer, certified or bank check or personal
check, in each case payable to the order of the Company; provided, however, that
the Company shall not be required to deliver certificates for shares of Common
Stock with respect to which an Option is exercised until the Company has
confirmed the receipt of good and available funds in payment of the purchase
price thereof. Payments in the form of Common Stock shall be valued at the Fair
Market Value on the date prior to the date of exercise. Such payments shall be
made by delivery of stock certificates in negotiable form that are effective to
transfer good and valid title thereto to the Company, free of any liens or
encumbrances. Subject to the terms of the Agreement, the Committee may, in its
sole discretion, at the request of the Holder, deliver upon the exercise of a
Nonqualified Stock Option a combination of shares of Deferred Stock and Common
Stock; provided that, notwithstanding the provisions of Section 8 of the Plan,
such Deferred Stock shall be fully vested and not subject to forfeiture. A
Holder shall have none of the rights of a Shareholder with respect to the shares
subject to the Option until such shares shall be transferred to the Holder upon
the exercise of the Option.
(e) Transferability. Except as may be set forth in the next
sentence of this section or in the Agreement, no Stock Option shall be
transferable by the Holder other than by will or by the laws of descent and
distribution, and all Stock Options shall be exercisable, during the Holder's
lifetime, only by the Holder (or, to the extent of legal incapacity or
incompetency, the Holder's guardian or legal representative). Notwithstanding
the foregoing, a Holder, with the approval of the Committee, may transfer a
Nonqualified Stock Option (i) (A) by gift, for no consideration, or (B) pursuant
to a domestic relations order, in either case, to or for the benefit of the
Holder's "Immediate Family" (as defined below), or (ii) to an entity in which
the Holder and/or members of Holder's Immediate Family own more than fifty
percent of the voting interest, in exchange for an interest in that entity,
subject to such limits as the Committee may establish, and the transferee shall
remain subject to all the terms and conditions applicable to the Stock Option
prior to such transfer. The term "Immediate Family" shall mean any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law or sister-in-law, including adoptive
relationships, any person sharing the Holder's household (other than a tenant or
employee), a trust in which these persons have more than fifty percent
beneficial interest, and a foundation in which these persons (or the Holder)
control the management of the assets.
(f) Termination by Reason of Death. If a Holder's employment
by the Company or a Subsidiary terminates by reason of death, any Stock Option
held by such Holder, unless otherwise determined by the Committee at the time of
grant and set forth in the Agreement, shall thereupon automatically terminate,
except that the portion of such Stock Option that has vested on the date of
death may thereafter be exercised by the legal representative of the estate or
by the legatee of the Holder under the will of the Holder, for a period of one
year (or such other greater or lesser period as the Committee may specify at
grant) from the date of such death or until the expiration of the stated term of
such Stock Option, whichever period is the shorter.
(g) Termination by Reason of Disability. If a Holder's
employment by the Company or any Subsidiary terminates by reason of Disability,
any Stock Option held by such Holder, unless otherwise determined by the
Committee at the time of grant and set forth in the Agreement, shall thereupon
automatically terminate, except that the portion of such Stock Option that has
vested on the date of termination may thereafter be exercised by the Holder for
a period of one year (or such other greater or lesser period as the Committee
may specify at the time of grant) from the date of such termination of
employment or until the expiration of the stated term of such Stock Option,
whichever period is the shorter.
6
(h) Other Termination. Subject to the provisions of Section
13.3, below, and unless otherwise determined by the Committee at the time of
grant and set forth in the Agreement, if a Holder is an employee of the Company
or a Subsidiary at the time of grant and if such Holder's employment by the
Company or any Subsidiary terminates for any reason other than death or
Disability, the Stock Option shall thereupon automatically terminate, except
that if the Holder's employment is terminated by the Company or a Subsidiary
without cause or due to Normal Retirement, then the portion of such Stock Option
that has vested on the date of termination of employment may be exercised for
the lesser of three months after termination of employment or the balance of
such Stock Option's term.
(i) Additional Incentive Stock Option Limitation. In the case
of an Incentive Stock Option, the aggregate Fair Market Value (on the date of
grant of the Option) with respect to which Incentive Stock Options become
exercisable for the first time by a Holder during any calendar year (under all
such plans of the Company and its Parent and Subsidiary) shall not exceed
$100,000.
(j) Buyout and Settlement Provisions. The Committee may at any
time, in its sole discretion, offer to repurchase a Stock Option previously
granted, based upon such terms and conditions as the Committee shall establish
and communicate to the Holder at the time that such offer is made.
5.3 Stock Reload Option. If a Holder tenders shares of Common Stock to
pay the exercise price of a Stock Option ("Underlying Option"), and/or arranges
to have a portion of the shares otherwise issuable upon exercise withheld to pay
the applicable withholding taxes, the Holder may receive, at the discretion of
the Committee, a new Stock Reload Option to purchase that number of shares of
Common Stock equal to the number of shares tendered to pay the exercise price
and the withholding taxes ( but only if such shares were held by the Holder for
at least six months). Stock Reload Options may be any type of option permitted
under the Code and will be granted subject to such terms, conditions,
restrictions and limitations as may be determined by the Committee, from time to
time. Such Stock Reload Option shall have an exercise price equal to the Fair
Market Value as of the date of exercise of the Underlying Option. Unless the
Committee determines otherwise, a Stock Reload Option may be exercised
commencing one year after it is granted and shall expire on the date of
expiration of the Underlying Option to which the Reload Option is related.
Section 6. Stock Appreciation Rights.
6.1 Grant and Exercise. The Committee may grant Stock Appreciation
Rights to participants who have been, or are being granted, Stock Options under
the Plan as a means of allowing such participants to exercise their Stock
Options without the need to pay the exercise price in cash. In the case of a
Nonqualified Stock Option, a Stock Appreciation Right may be granted either at
or after the time of the grant of such Nonqualified Stock Option. In the case of
an Incentive Stock Option, a Stock Appreciation Right may be granted only at the
time of the grant of such Incentive Stock Option.
6.2 Terms and Conditions. Stock Appreciation Rights shall be subject to
the following terms and conditions:
(a) Exercisability. Stock Appreciation Rights shall be
exercisable as shall be determined by the Committee and set forth in the
Agreement, subject to the limitations, if any, imposed by the Code, with respect
to related Incentive Stock Options.
(b) Termination. A Stock Appreciation Right shall terminate
and shall no longer be exercisable upon the termination or exercise of the
related Stock Option.
7
(c) Method of Exercise. Stock Appreciation Rights shall be
exercisable upon such terms and conditions as shall be determined by the
Committee and set forth in the Agreement and by surrendering the applicable
portion of the related Stock Option. Upon such exercise and surrender, the
Holder shall be entitled to receive a number of shares of Common Stock equal to
the SAR Value divided by the Fair Market Value on the date the Stock
Appreciation Right is exercised.
(d) Shares Affected Upon Plan. The granting of a Stock
Appreciation Right shall not affect the number of shares of Common Stock
available for awards under the Plan. The number of shares available for awards
under the Plan will, however, be reduced by the number of shares of Common Stock
acquirable upon exercise of the Stock Option to which such Stock Appreciation
Right relates.
Section 7. Restricted Stock.
7.1 Grant. Shares of Restricted Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the eligible persons to whom, and the time or times at which, grants of
Restricted Stock will be awarded, the number of shares to be awarded, the price
(if any) to be paid by the Holder, the time or times within which such awards
may be subject to forfeiture ("Restriction Period"), the vesting schedule and
rights to acceleration thereof, and all other terms and conditions of the
awards.
7.2 Terms and Conditions. Each Restricted Stock award shall be subject
to the following terms and conditions:
(a) Certificates. Restricted Stock, when issued, will be
represented by a stock certificate or certificates registered in the name of the
Holder to whom such Restricted Stock shall have been awarded. During the
Restriction Period, certificates representing the Restricted Stock and any
securities constituting Retained Distributions (as defined below) shall bear a
legend to the effect that ownership of the Restricted Stock (and such Retained
Distributions), and the enjoyment of all rights appurtenant thereto, are subject
to the restrictions, terms and conditions provided in the Plan and the
Agreement. Such certificates shall be deposited by the Holder with the Company,
together with stock powers or other instruments of assignment, each endorsed in
blank, which will permit transfer to the Company of all or any portion of the
Restricted Stock and any securities constituting Retained Distributions that
shall be forfeited or that shall not become vested in accordance with the Plan
and the Agreement.
(b) Rights of Holder. Restricted Stock shall constitute issued
and outstanding shares of Common Stock for all corporate purposes. The Holder
will have the right to vote such Restricted Stock, to receive and retain all
regular cash dividends and other cash equivalent distributions as the Board may
in its sole discretion designate, pay or distribute on such Restricted Stock and
to exercise all other rights, powers and privileges of a holder of Common Stock
with respect to such Restricted Stock, with the exceptions that (i) the Holder
will not be entitled to delivery of the stock certificate or certificates
representing such Restricted Stock until the Restriction Period shall have
expired and unless all other vesting requirements with respect thereto shall
have been fulfilled; (ii) the Company will retain custody of the stock
certificate or certificates representing the Restricted Stock during the
Restriction Period; (iii) other than regular cash dividends and other cash
equivalent distributions as the Board may in its sole discretion designate, pay
or distribute, the Company will retain custody of all distributions ("Retained
Distributions") made or declared with respect to the Restricted Stock (and such
Retained Distributions will be subject to the same restrictions, terms and
conditions as are applicable to the Restricted Stock) until such time, if ever,
as the Restricted Stock with respect to which such Retained Distributions shall
have been made, paid or declared shall have become vested and with respect to
8
which the Restriction Period shall have expired; (iv) a breach of any of the
restrictions, terms or conditions contained in this Plan or the Agreement or
otherwise established by the Committee with respect to any Restricted Stock or
Retained Distributions will cause a forfeiture of such Restricted Stock and any
Retained Distributions with respect thereto.
(c) Vesting; Forfeiture. Upon the expiration of the
Restriction Period with respect to each award of Restricted Stock and the
satisfaction of any other applicable restrictions, terms and conditions (i) all
or part of such Restricted Stock shall become vested in accordance with the
terms of the Agreement, subject to Section 10, below, and (ii) any Retained
Distributions with respect to such Restricted Stock shall become vested to the
extent that the Restricted Stock related thereto shall have become vested,
subject to Section 10, below. Any such Restricted Stock and Retained
Distributions that do not vest shall be forfeited to the Company and the Holder
shall not thereafter have any rights with respect to such Restricted Stock and
Retained Distributions that shall have been so forfeited.
Section 8. Deferred Stock.
8.1 Grant. Shares of Deferred Stock may be awarded either alone or in
addition to other awards granted under the Plan. The Committee shall determine
the eligible persons to whom and the time or times at which grants of Deferred
Stock will be awarded, the number of shares of Deferred Stock to be awarded to
any person, the duration of the period ("Deferral Period") during which, and the
conditions under which, receipt of the shares will be deferred, and all the
other terms and conditions of the awards.
8.2 Terms and Conditions. Each Deferred Stock award shall be subject to
the following terms and conditions:
(a) Certificates. At the expiration of the Deferral Period (or
the Additional Deferral Period referred to in Section 8.2 (d) below, where
applicable), share certificates shall be issued and delivered to the Holder, or
his legal representative, representing the number equal to the shares covered by
the Deferred Stock award.
(b) Rights of Holder. A person entitled to receive Deferred
Stock shall not have any rights of a Shareholder by virtue of such award until
the expiration of the applicable Deferral Period and the issuance and delivery
of the certificates representing such Common Stock. The shares of Common Stock
issuable upon expiration of the Deferral Period shall not be deemed outstanding
by the Company until the expiration of such Deferral Period and the issuance and
delivery of such Common Stock to the Holder.
(c) Vesting; Forfeiture. Upon the expiration of the Deferral
Period with respect to each award of Deferred Stock and the satisfaction of any
other applicable restrictions, terms and conditions all or part of such Deferred
Stock shall become vested in accordance with the terms of the Agreement, subject
to Section 10, below. Any such Deferred Stock that does not vest shall be
forfeited to the Company and the Holder shall not thereafter have any rights
with respect to such Deferred Stock.
(d) Additional Deferral Period. A Holder may request to, and
the Committee may at any time, defer the receipt of an award (or an installment
of an award) for an additional specified period or until a specified event
("Additional Deferral Period"). Subject to any exceptions adopted by the
Committee, such request must generally be made at least one year prior to
expiration of the Deferral Period for such Deferred Stock award (or such
installment).
9
Section 9. Other Stock-Based Awards.
Other Stock-Based Awards may be awarded, subject to limitations under
applicable law, that are denominated or payable in, valued in whole or in part
by reference to, or otherwise based on, or related to, shares of Common Stock,
as deemed by the Committee to be consistent with the purposes of the Plan,
including, without limitation, purchase rights, shares of Common Stock awarded
which are not subject to any restrictions or conditions, convertible or
exchangeable debentures, or other rights convertible into shares of Common Stock
and awards valued by reference to the value of securities of or the performance
of specified Subsidiaries. Other Stock-Based Awards may be awarded either alone
or in addition to or in tandem with any other awards under this Plan or any
other plan of the Company. Each other Stock-Based Award shall be subject to such
terms and conditions as may be determined by the Committee.
Section 10. Accelerated Vesting and Exercisability.
10.1 Non-Approved Transactions. If any "person" (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act of 1934, as amended ("Exchange
Act")), is or becomes the "beneficial owner" (as referred in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 35% or more of the combined voting power of the Company's then
outstanding securities in one or more transactions, and the Board does not
authorize or otherwise approve such acquisition, then the vesting periods of any
and all Stock Options and other awards granted and outstanding under the Plan
shall be accelerated and all such Stock Options and awards will immediately and
entirely vest, and the respective holders thereof will have the immediate right
to purchase and/or receive any and all Common Stock subject to such Stock
Options and awards on the terms set forth in this Plan and the respective
agreements respecting such Stock Options and awards.
10.2 Approved Transactions. The Committee may, in the event of an
acquisition of substantially all of the Company's assets or at least 65% of the
combined voting power of the Company's then outstanding securities in one or
more transactions (including by way of merger or reorganization) which has been
approved by the Company's Board of Directors, (i) accelerate the vesting of any
and all Stock Options and other awards granted and outstanding under the Plan,
and (ii) require a Holder of any award granted under this Plan to relinquish
such award to the Company upon the tender by the Company to Holder of cash in an
amount equal to the Repurchase Value of such award.
Section 11. Amendment and Termination.
The Board may at any time, and from time to time, amend alter, suspend
or discontinue any of the provisions of the Plan, but no amendment, alteration,
suspension or discontinuance shall be made that would impair the rights of a
Holder under any Agreement theretofore entered into hereunder, without the
Holder's consent.
Section 12. Term of Plan.
12.1 Effective Date. The Plan shall be effective as of _______, 2001,
subject to the approval of the Plan by the Company's shareholders within one
year after the Effective Date. Any awards granted under the Plan prior to such
approval shall be effective when made (unless otherwise specified by the
Committee at the time of grant), but shall be conditioned upon, and subject to,
such approval of the Plan by the Company's shareholders and no awards shall vest
or otherwise become free of restrictions prior to such approval.
10
12.2 Termination Date. Unless terminated by the Board, this Plan shall
continue to remain effective until such time as no further awards may be granted
and all awards granted under the Plan are no longer outstanding. Notwithstanding
the foregoing, grants of Incentive Stock Options may be made only during the ten
year period following the Effective Date.
Section 13. General Provisions.
13.1 Written Agreements. Each award granted under the Plan shall be
confirmed by, and shall be subject to the terms, of the Agreement executed by
the Company and the Holder. The Committee may terminate any award made under the
Plan if the Agreement relating thereto is not executed and returned to the
Company within 10 days after the Agreement has been delivered to the Holder for
his or her execution.
13.2 Unfunded Status of Plan. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Holder by the Company, nothing contained herein shall
give any such Holder any rights that are greater than those of a general
creditor of the Company.
13.3 Employees.
(a) Engaging in Competition With the Company; Disclosure of
Confidential Information. If a Holder's employment with the Company or a
Subsidiary is terminated for any reason whatsoever, and within 18 months after
the date thereof such Holder either (i) accepts employment with any competitor
of, or otherwise engages in competition with, the Company, (ii) solicits any
customers or employees of the Company to do business with or render services to
the Holder or any business with which the Holder becomes affiliated or to which
the Holder renders services, or (iii) discloses to anyone outside the Company or
uses any confidential information or material of the Company in violation of the
Company's policies or any agreement between the Holder and the Company, the
Committee, in its sole discretion, may require such Holder to return to the
Company the economic value of any award that was realized or obtained by such
Holder at any time during the period beginning on that date that is six months
prior to the date such Holder's employment with the Company is terminated.
(b) Termination for Cause. The Committee may, if a Holder's
employment with the Company or a Subsidiary is terminated for cause, annul any
award granted under this Plan to such employee and, in such event, the
Committee, in its sole discretion, may require such Holder to return to the
Company the economic value of any award that was realized or obtained by such
Holder at any time during the period beginning on that date that is six months
prior to the date such Holder's employment with the Company is terminated.
(c) No Right of Employment. Nothing contained in the Plan or
in any award hereunder shall be deemed to confer upon any Holder who is an
employee of the Company or any Subsidiary any right to continued employment with
the Company or any Subsidiary, nor shall it interfere in any way with the right
of the Company or any Subsidiary to terminate the employment of any Holder who
is an employee at any time.
13.4 Investment Representations; Company Policy. The Committee may
require each person acquiring shares of Common Stock pursuant to a Stock Option
or other award under the Plan to represent to and agree with the Company in
writing that the Holder is acquiring the shares for investment without a view to
distribution thereof. Each person acquiring shares of Common Stock pursuant to a
Stock Option or other award under the Plan shall be required to abide by all
11
policies of the Company in effect at the time of such acquisition and thereafter
with respect to the ownership and trading of the Company's securities.
13.5 Additional Incentive Arrangements. Nothing contained in the Plan
shall prevent the Board from adopting such other or additional incentive
arrangements as it may deem desirable, including, but not limited to, the
granting of Stock Options and the awarding of Common Stock and cash otherwise
than under the Plan; and such arrangements may be either generally applicable or
applicable only in specific cases.
13.6 Withholding Taxes. Not later than the date as of which an amount
must first be included in the gross income of the Holder for Federal income tax
purposes with respect to any option or other award under the Plan, the Holder
shall pay to the Company, or make arrangements satisfactory to the Committee
regarding the payment of, any Federal, state and local taxes of any kind
required by law to be withheld or paid with respect to such amount. If permitted
by the Committee, tax withholding or payment obligations may be settled with
Common Stock, including Common Stock that is part of the award that gives rise
to the withholding requirement. The obligations of the Company under the Plan
shall be conditioned upon such payment or arrangements and the Company or the
Holder's employer (if not the Company) shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind otherwise
due to the Holder from the Company or any Subsidiary.
13.7 Governing Law. The Plan and all awards made and actions taken
thereunder shall be governed by and construed in accordance with the laws of the
State of Delaware (without regard to choice of law provisions); provided,
however, that all matters relating to or involving corporate law shall be
governed by the laws of the State of Delaware.
13.8 Other Benefit Plans. Any award granted under the Plan shall not be
deemed compensation for purposes of computing benefits under any retirement plan
of the Company or any Subsidiary and shall not affect any benefits under any
other benefit plan now or subsequently in effect under which the availability or
amount of benefits is related to the level of compensation (unless required by
specific reference in any such other plan to awards under this Plan).
13.9 Non-Transferability. Except as otherwise expressly provided in the
Plan or the Agreement, no right or benefit under the Plan may be alienated,
sold, assigned, hypothecated, pledged, exchanged, transferred, encumbranced or
charged, and any attempt to alienate, sell, assign, hypothecate, pledge,
exchange, transfer, encumber or charge the same shall be void.
13.10 Applicable Laws. The obligations of the Company with respect to
all Stock Options and awards under the Plan shall be subject to (i) all
applicable laws, rules and regulations and such approvals by any governmental
agencies as may be required, including, without limitation, the Securities Act
of 1933, as amended, and (ii) the rules and regulations of any securities
exchange on which the Common Stock may be listed.
13.11 Conflicts. If any of the terms or provisions of the Plan or an
Agreement conflict with the requirements of Section 422 of the Code, then such
terms or provisions shall be deemed inoperative to the extent they so conflict
with such requirements. Additionally, if this Plan or any Agreement does not
contain any provision required to be included herein under Section 422 of the
Code, such provision shall be deemed to be incorporated herein and therein with
the same force and effect as if such provision had been set out at length herein
and therein. If any of the terms or provisions of any Agreement conflict with
any terms or provisions of the Plan, then such terms or provisions shall be
deemed inoperative to the extent they so conflict with the requirements of the
Plan. Additionally, if any Agreement does not contain any provision required to
12
be included therein under the Plan, such provision shall be deemed to be
incorporated therein with the same force and effect as if such provision had
been set out at length therein.
13.12 Non-Registered Stock. The shares of Common Stock to be
distributed under this Plan have not been, as of the Effective Date, registered
under the Securities Act of 1933, as amended, or any applicable state or foreign
securities laws and the Company has no obligation to any Holder to register the
Common Stock or to assist the Holder in obtaining an exemption from the various
registration requirements, or to list the Common Stock on a national securities
exchange or any other trading or quotation system, including the Nasdaq National
Market and Nasdaq SmallCap Market.
13
CYBER MARK INTERNATIONAL CORP. - PROXY
Solicited By The Board Of Directors
for Annual Meeting To Be Held on July 2, 2001
The undersigned Shareholder(s) of Cyber Mark International
Corp., a Delaware corporation ("Company"), hereby appoint Samuel Singal
with full power of substitution, as the agent, attorney and proxy of the
P undersigned, to vote the shares standing in the name of the undersigned
at the Annual Meeting of Shareholders of the Company to be held
on July 2, 2001 and at all adjournments thereof. This proxy will be
voted in accordance with the instructions given below. If no
instructions are given, this proxy will be voted FOR all of the
following proposals.
R 1. Election of the following Directors:
FOR all nominees listed below except WITHHOLD AUTHORITY to vote for all
O as marked to the contrary below |_| nominees listed below |_|
Samuel Singal
X INSTRUCTIONS: To withhold authority to vote for any individual nominee,
write that nominee's name in the space below.
Y _____________________________________________________
2. Approve the Amendment to the Certificate of Incorporation to
increase the number of authorized shares of capital stock of
the Company.
FOR |_| AGAINST |_| ABSTAIN |_|
3. Approve the 2001 Performance Equity Plan.
FOR |_| AGAINST |_| ABSTAIN |_|
4. In his discretion, the proxy is authorized to vote upon such
other business as may come before the meeting or any
adjournment thereof.
FOR |_| AGAINST |_| ABSTAIN |_|
|_| I plan on attending the Annual Meeting.
Date: ___________________, 2001
------------------------------
Signature
------------------------------
Signature if held jointly
Please sign exactly as name appears above.
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, please sign in full corporate
name by President or other authorized
officer. If a partnership, please sign in
partnership name by authorized person.