UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C
INFORMATION STATEMENT PURSUANT TO SECTION 14(C)
OF THE SECURITIES EXCHANGE ACT OF 1934
FILED BY THE REGISTRANT [X]
FILED BY PARTY OTHER THAN THE REGISTRANT [ ]
CHECK THE APPROPRIATE BOX:
[X] Preliminary Information Statement
[_] Confidential, for Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
[_] Definitive Information Statement
INTERNATIONAL DEVELOPMENT CORP.
(Name of Registrant as specified in its charter)
PAYMENT OF FILING FEE (CHECK THE APPROPRIATE BOX):
[X] No fee required.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transactions applies:
(3) Per unit price or other underlying value of transaction computed pursuant
to exchange act rule 0-11:
(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:
INTERNATIONAL DEVELOPMENT CORP.
534 DELAWARE AVENUE, SUITE 412
BUFFALO, NEW YORK 14202
TELEPHONE (416) 490-0254
October 17, 2005
To Our Stockholders:
The purpose of this information statement is to inform the holders of
record of shares of our common stock as of the close of business on the record
date, September 30, 2005, that our board of directors has recommended, and that
the holder of the majority of the voting power of our outstanding capital stock
intends to vote on November 7, 2005 to approve the following:
1. A grant of discretionary authority to our board of directors to
implement a reverse split of the issued and outstanding shares of our common
stock on the basis of one post-consolidation share for up to each 1,000
pre-consolidation shares to occur at some time within 60 days of the date of
this information statement, with the exact time of the reverse split to be
determined by the board of directors; and
2. The International Development Corp. 2004 Stock Plan (the "Stock
Plan"), adopted by the directors on December 13, 2004, with 550,000,000 shares
in the aggregate authorized under the Stock Plan; and
3. The transaction, described in the attached information statement
(the "Transaction"), in which we will sell to Max Weissengruber, our president,
chief operating officer and director, and D. Brian Robertson, our chief
financial officer, one share of common stock, par value $0.001 per share,
constituting 100 percent of the issued and outstanding shares of the capital
stock of Freshwater Technologies, Inc., for a total purchase price of
$60,210.33.
As of the record date, 483,404,226 shares of our common stock were issued
and outstanding. Each share of the common stock outstanding entitles the holder
to one vote on all matters brought before the common stockholders. As of the
record date 65,000 shares of our Series A preferred stock were issued and
outstanding and 1,000,000 shares of our Series B preferred stock were issued and
outstanding. Pursuant to our Certificate of Designation establishing Series A
preferred stock, a holder of shares of the Series A preferred stock is entitled
to the number of votes equal to the number of shares of the Series A preferred
stock held by such holder multiplied by 200 on all matters submitted to a vote
of our stockholders. Pursuant to our Certificate of Designation establishing
Series B preferred stock, a holder of shares of the Series B preferred stock is
entitled to the number of votes equal to the number of shares of the Series B
preferred stock held by such holder multiplied by 500 on all matters submitted
to a vote of our stockholders.
We have a consenting stockholder, Betty-Ann Harland, our director and chief
executive officer, who holds zero shares of our common stock, 65,000 shares of
our Series A preferred stock and 1,000,000 shares of our Series B preferred
stock. Therefore, Ms. Harland will have the power to vote 513,000,000 shares of
our common stock, which number exceeds the majority of the issued and
outstanding shares of the common stock on the record date.
Ms. Harland will vote in favor of the grant of the discretionary authority
to our board of directors to effect a reverse stock split of our common stock
and for the approval of the Stock Plan and of the Transaction. Ms. Harland will
have the power to pass the proposed corporate actions without the concurrence of
any of our other stockholders.
WE ARE NOT ASKING FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
We appreciate your continued interest in International Development Corp.
Very truly yours,
/s/ Betty-Ann Harland
Betty-Ann Harland
Chief Executive Officer
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INTERNATIONAL DEVELOPMENT CORP.
534 DELAWARE AVENUE, SUITE 412
BUFFALO, NEW YORK 14202
TELEPHONE (416) 490-0254
INFORMATION STATEMENT
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND A
PROXY.
This information statement is furnished to the holders of record at the
close of business on the record date, September 30, 2005, to inform our
stockholders that our board of directors has recommended, and that the holder of
the majority of the voting power of our outstanding capital stock intends to
vote on November 7, 2005 to approve the following:
1. A grant of discretionary authority to our board of directors to
implement a reverse split of the issued and outstanding shares of our common
stock on the basis of one post-consolidation share for up to each 1,000
pre-consolidation shares to occur at some time within 60 days of the date of
this information statement, with the exact time of the reverse split to be
determined by the board of directors; and
2. The International Development Corp. 2004 Stock Plan (the "Stock
Plan"), adopted by the directors on December 13, 2004, with 550,000,000 shares
in the aggregate authorized under the Stock Plan; and
3. The transaction, described in the attached information statement
(the "Transaction"), in which we will sell to Max Weissengruber, our president,
chief operating officer and director, and D. Brian Robertson, our chief
financial officer, one share of common stock, par value $0.001 per share,
constituting 100 percent of the issued and outstanding shares of the capital
stock of Freshwater Technologies, Inc., for a total purchase price of
$60,210.33.
As of the record date, 483,404,226 shares of our common stock were issued
and outstanding. Each share of the common stock outstanding entitles the holder
to one vote on all matters brought before the common stockholders. As of the
record date 65,000 shares of our Series A preferred stock were issued and
outstanding and 1,000,000 shares of our Series B preferred stock were issued and
outstanding. Pursuant to our Certificate of Designation establishing Series A
preferred stock, a holder of shares of the Series A preferred stock is entitled
to the number of votes equal to the number of shares of the Series A preferred
stock held by such holder multiplied by 200 on all matters submitted to a vote
of our stockholders. Pursuant to our Certificate of Designation establishing
Series B preferred stock, a holder of shares of the Series B preferred stock is
entitled to the number of votes equal to the number of shares of the Series B
preferred stock held by such holder multiplied by 500 on all matters submitted
to a vote of our stockholders.
We have a consenting stockholder, Betty-Ann Harland, our director and chief
executive officer, who holds zero shares of our common stock, 65,000 shares of
our Series A preferred stock and 1,000,000 shares of our Series B preferred
stock. Therefore, Ms. Harland will have the power to vote 513,000,000 shares of
our common stock, which number exceeds the majority of the issued and
outstanding shares of the common stock on the record date.
Ms. Harland will vote in favor of the grant of the discretionary authority
to our board of directors to effect a reverse stock split of our common stock
and for the approval of the Stock Plan and of the Transaction. Ms. Harland will
have the power to pass the proposed corporate actions without the concurrence of
any of our other stockholders.
This information statement will be sent on or about October 17, 2005 to our
stockholders of record who do not sign the majority written consent described
herein.
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VOTING SECURITIES
In accordance with our bylaws, our board of directors has fixed the close
of business on September 30, 2005 as the record date for determining the
stockholders entitled to notice of the above noted actions. The grant of
discretionary authority to the directors with respect to the reverse split, the
Stock Plan and the Transaction will be approved if the number of votes cast in
favor of the proposed corporate actions exceeds the number of votes cast in
opposition to the proposed corporate actions. A majority of the voting power,
which includes the voting power that is present in person or by proxy,
constitutes a quorum for the transaction of business.
As of the record date, 483,404,226 shares of our common stock were issued
and outstanding. Each share of the common stock outstanding entitles the holder
to one vote on all matters brought before the common stockholders. As of the
record date 65,000 shares of our Series A preferred stock were issued and
outstanding and 1,000,000 shares of our Series B preferred stock were issued and
outstanding. Pursuant to our Certificate of Designation establishing Series A
preferred stock, a holder of shares of the Series A preferred stock is entitled
to the number of votes equal to the number of shares of the Series A preferred
stock held by such holder multiplied by 200 on all matters submitted to a vote
of our stockholders. Pursuant to our Certificate of Designation establishing
Series B preferred stock, a holder of shares of the Series B preferred stock is
entitled to the number of votes equal to the number of shares of the Series B
preferred stock held by such holder multiplied by 500 on all matters submitted
to a vote of our stockholders.
We have a consenting stockholder, Betty-Ann Harland, our director and chief
executive officer, who holds zero shares of our common stock, 65,000 shares of
our Series A preferred stock and 1,000,000 shares of our Series B preferred
stock. Therefore, Ms. Harland will have the power to vote 513,000,000 shares of
our common stock, which number exceeds the majority of the issued and
outstanding shares of the common stock on the record date.
Ms. Harland will vote in favor of the grant of the discretionary authority
to our board of directors to effect a reverse stock split of our common stock
and for the approval of the Stock Plan and of the Transaction. Ms. Harland will
have the power to pass the proposed corporate actions without the concurrence of
any of our other stockholders.
DISTRIBUTION AND COSTS
We will pay all costs associated with the distribution of this information
statement, including the costs of printing and mailing. In addition, we will
only deliver one information statement to multiple security holders sharing an
address, unless we have received contrary instructions from one or more of the
security holders. Also, we will promptly deliver a separate copy of this
information statement and future stockholder communication documents to any
security holder at a shared address to which a single copy of this information
statement was delivered, or deliver a single copy of this information statement
and future stockholder communication documents to any security holder or holders
sharing an address to which multiple copies are now delivered, upon written
request to us at our address noted above.
Security holders may also address future requests regarding delivery of
information statements and/or annual reports by contacting us at the address
noted above.
DISSENTERS' RIGHT OF APPRAISAL
Nevada law provides for a right of a stockholder to dissent to the proposed
reverse stock split and obtain appraisal of or payment for such stockholder's
shares. See "Proposal 1 - Dissent Rights of Our Stockholders."
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GRANT OF DISCRETIONARY AUTHORITY TO THE BOARD OF DIRECTORS
TO IMPLEMENT A ONE FOR UP TO 1,000 REVERSE STOCK SPLIT
(PROPOSAL 1)
Our board of directors has adopted a resolution to seek stockholder
approval of discretionary authority to our board of directors to implement a
reverse split for the purpose of increasing the market price of our common
stock. The reverse split exchange ratio that the board of directors approved and
deemed advisable and for which it is seeking stockholder approval is up to 1,000
pre-consolidation shares for each one post-consolidation share, with the reverse
split to occur within 60 days of the date of this information statement, the
exact time of the reverse split to be determined by the directors in their
discretion. Approval of this proposal would give the board authority to
implement the reverse split the issued and outstanding shares of our common
stock on the basis of up to 1,000 pre-consolidation shares for each one
post-consolidation share at any time it determined within 60 days of the date of
this information statement. In addition, approval of this proposal would also
give the board authority to decline to implement a reverse split.
Our board of directors believes that stockholder approval of a range for
the exchange ratio of the reverse split (as contrasted with approval of a
specified ratio of the split) provides the board of directors with maximum
flexibility to achieve the purposes of a stock split, and, therefore, is in the
best interests of our stockholders. The actual ratio for implementation of the
reverse split would be determined by our board of directors based upon its
evaluation as to what ratio of pre-consolidation shares to post-consolidation
shares would be most advantageous to us and our stockholders.
Our board of directors also believes that stockholder approval of a 60-days
range for the effectuation of the reverse split (as contrasted with approval of
a specified time of the split) provides the board of directors with maximum
flexibility to achieve the purposes of a stock split, and, therefore, is in the
best interests of our stockholders. The actual timing for implementation of the
reverse split would be determined by our board of directors based upon its
evaluation as to when and whether such action would be most advantageous to us
and our stockholders.
If you approve the grant of discretionary authority to our board of
directors to implement a reverse split and the board of directors decides to
implement the reverse split, we will effect a reverse split of our then issued
and outstanding common stock on the basis of up to 1,000 pre-consolidation
shares for each one post-consolidation share.
The board of directors believes that the higher share price that might
initially result from the reverse stock split could help generate interest in
International Development Corp. among investors and thereby assist us in raising
future capital to fund our operations or make acquisitions.
Stockholders should note that the effect of the reverse split upon the
market price for our common stock cannot be accurately predicted. In
particular, if we elect to implement a reverse stock split, there is no
assurance that prices for shares of our common stock after a reverse split will
be up to 1,000 times greater than the price for shares of our common stock
immediately prior to the reverse split, depending on the ratio of the split.
Furthermore, there can be no assurance that the market price of our common stock
immediately after a reverse split will be maintained for any period of time.
Moreover, because some investors may view the reverse split negatively, there
can be no assurance that the reverse split will not adversely impact the market
price of our common stock or, alternatively, that the market price following the
reverse split will either exceed or remain in excess of the current market
price.
EFFECT OF THE REVERSE SPLIT
The reverse split would not affect the registration of our common stock
under the Securities Exchange Act of 1934, as amended, nor will it change our
periodic reporting and other obligations thereunder.
The voting and other rights of the holders of our common stock would not be
affected by the reverse split (other than as described below). For example, a
holder of 0.5 percent of the voting power of the outstanding shares
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of our common stock immediately prior to the effective time of the reverse split
would continue to hold 0.5 percent of the voting power of the outstanding shares
of our common stock after the reverse split. The number of stockholders of
record would not be affected by the reverse split (except as described below).
The authorized number of shares of our common stock and the par value of
our common stock under our articles of incorporation would remain the same
following the effective time of the reverse split.
The number of shares of our common stock issued and outstanding would be
reduced following the effective time of the reverse split in accordance with the
following formula: if our directors decide to implement a one for 1,000 reverse
split, every 1,000 shares of our common stock owned by a stockholder will
automatically be changed into and become one new share of our common stock, with
1,000 being equal to the exchange ratio of the reverse split, as determined by
the directors in their discretion.
Stockholders should recognize that if a reverse split is effected, they
will own a fewer number of shares than they presently own (a number equal to the
number of shares owned immediately prior to the effective time divided by the
one for 1,000 exchange ratio, or such lesser exchange ratio as may be determined
by our directors, subject to adjustment for fractional shares, as described
below).
CASH PAYMENT IN LIEU OF FRACTIONAL SHARES
In lieu of any fractional shares to which a holder of our common stock
would otherwise be entitled as a result of the reverse split, we shall pay cash
equal to such fraction multiplied by the average of the high and low trading
prices of the our common stock on the OTCBB during regular trading hours for the
five trading days immediately preceding the effectiveness of the reverse split.
The reverse split may reduce the number of holders of post-reverse split
shares as compared to the number of holders of pre-reverse split shares to the
extent that there are stockholders presently holding fewer than 1,000 shares (or
such lesser number as may be determined by our directors). However, the
intention of the reverse split is not to reduce the number of our stockholders.
In fact, we do not expect that the reverse split will result in any material
reduction in the number of our stockholders.
We currently have no intention of going private, and this proposed reverse
stock split is not intended to be a first step in a going private transaction
and will not have the effect of a going private transaction covered by Rule
13e-3 of the Exchange Act. Moreover, the proposed reverse stock split does not
increase the risk of us becoming a private company in the future.
Issuance of Additional Shares. The number of authorized but unissued
shares of our common stock effectively will be increased significantly by the
reverse split of our common stock.
If we elect to implement a one for 500 reverse split, based on 483,404,226
shares of our common stock outstanding on the record date, and the 800,000,000
shares of our common stock that are currently authorized under our articles of
incorporation, 316,595,774 shares of our common stock remain available for
issuance prior to the reverse split taking effect. A one for 500 reverse split
would have the effect of decreasing the number of our outstanding shares of our
common stock from 483,404,226 to 966,808 shares.
Based on the 800,000,000 shares of our common stock that are currently
authorized under our articles of incorporation, if we elect to implement a one
for 500 reverse stock split, the reverse split, when implemented, would have the
effect of increasing the number of authorized but unissued shares of our common
stock from 316,595,774 to 799,033,192 shares.
If we elect to implement a one for 1,000 reverse split, based on the
483,404,226 shares of our common stock outstanding on the record date, and the
800,000,000 shares of our common stock that are currently authorized under our
articles of incorporation, 316,595,774 shares of our common stock remain
available for issuance prior to the reverse split taking effect. A one for 1,000
reverse split would have the effect of decreasing the number of our outstanding
shares of our common stock from 483,404,226 to 483,404 shares.
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Based on the 800,000,000 shares of our common stock that are currently
authorized under our articles of incorporation, if we elect to implement a one
for 1,000 reverse stock split, the reverse split, when implemented, would have
the effect of increasing the number of authorized but unissued shares of our
common stock from 316,595,774 to 799,516,596 shares
The issuance in the future of such additional authorized shares may have
the effect of diluting the earnings per share and book value per share, as well
as the stock ownership and voting rights, of the currently outstanding shares of
our common stock.
The effective increase in the number of authorized but unissued shares of
our common stock may be construed as having an anti-takeover effect by
permitting the issuance of shares to purchasers who might oppose a hostile
takeover bid or oppose any efforts to amend or repeal certain provisions of our
articles of incorporation or bylaws. Such a use of these additional authorized
shares could render more difficult, or discourage, an attempt to acquire control
of us through a transaction opposed by our board of directors. At this time,
our board does not have plans to issue any common shares resulting from the
effective increase in our authorized but unissued shares generated by the
reverse split.
FEDERAL INCOME TAX CONSEQUENCES
We will not recognize any gain or loss as a result of the reverse split.
The following description of the material federal income tax consequences
of the reverse split to our stockholders is based on the Internal Revenue Code
of 1986, as amended, applicable Treasury Regulations promulgated thereunder,
judicial authority and current administrative rulings and practices as in effect
on the date of this information statement. Changes to the laws could alter the
tax consequences described below, possibly with retroactive effect. We have not
sought and will not seek an opinion of counsel or a ruling from the Internal
Revenue Service regarding the federal income tax consequences of the reverse
split. This discussion is for general information only and does not discuss the
tax consequences that may apply to special classes of taxpayers (e.g.,
non-residents of the United States, broker/dealers or insurance companies). The
state and local tax consequences of the reverse split may vary significantly as
to each stockholder, depending upon the jurisdiction in which such stockholder
resides. You are urged to consult your own tax advisors to determine the
particular consequences to you.
We believe that the likely federal income tax effects of the reverse split
will be that a stockholder who receives solely a reduced number of shares of our
common stock will not recognize gain or loss. With respect to a reverse split,
such a stockholder's basis in the reduced number of shares of our common stock
will equal the stockholder's basis in his old shares of our common stock.
EFFECTIVE DATE
If the proposed reverse split is approved and the board of directors elects
to proceed with a reverse split, the split would become effective as of 5:00
p.m. Nevada time on the date the split is approved by our board of directors
which in any event shall not be later than 60 days from the date of this
information statement. Except as explained herein with respect to fractional
shares and stockholders who currently hold fewer than 1,000 shares, or such
lesser amount as we may determine, on such date, all shares of our common stock
that were issued and outstanding immediately prior thereto will be,
automatically and without any action on the part of the stockholders, converted
into new shares of our common stock in accordance with the one for 1,000
exchange ratio or such other exchange ratio as we determine.
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RISKS ASSOCIATED WITH THE REVERSE SPLIT
This information statement includes forward-looking statements including
statements regarding our intent to solicit approval of a reverse split, the
timing of the proposed reverse split and the potential benefits of a reverse
split, including, but not limited to, increased investor interest and the
potential for a higher stock price. The words "believe," "expect," "will,"
"may" and similar phrases are intended to identify such forward-looking
statements. Such statements reflect our current views and assumptions, and are
subject to various risks and uncertainties that could cause actual results to
differ materially from expectations. The risks include that we may not have
sufficient resources to continue as a going concern; any significant downturn in
our industry or in general business conditions would likely result in a
reduction of demand for our products or services and would be detrimental to our
business; we will be unable to achieve profitable operations unless we increase
quarterly revenues or make further cost reductions; a loss of or decrease in
purchases by one of our significant customers could materially and adversely
affect our revenues and profitability; the loss of key personnel could have a
material adverse effect on our business; the large number of shares available
for future sale could adversely affect the price of our common stock; and the
volatility of our stock price. For a discussion of these and other risk
factors, see our annual report on Form 10-KSB for the year ended August 31,
2004, as amended, and other filings with the Securities and Exchange Commission.
If approved and implemented, the reverse stock split will result in some
stockholders owning "odd-lots" of less than 100 common shares of our stock on a
post-consolidation basis. Odd lots may be more difficult to sell, or require
greater transaction costs per share to sell than shares in "even lots" of even
multiples of 100 shares.
DISSENT RIGHTS OF OUR STOCKHOLDERS
Under Nevada law, our stockholders are entitled, after complying with
certain requirements of Nevada law, to dissent from the approval of the
authority with respect to the reverse stock split, pursuant to Sections 92A.300
to 92A.500, inclusive, of the NRS and to be paid the "fair value" of their
shares of International Development Corp. common stock in cash by complying with
the procedures set forth in Sections 92A. 380 to 92A. 450 of the NRS. Set forth
below is a summary of the procedures relating to the exercise of dissenters'
rights by our stockholders. This summary does not purport to be a complete
statement of the provisions of Sections 92A. 380 to 92A. 450 of the NRS and is
qualified in its entirety by reference to such provisions, which are contained
in Attachment B to this information statement.
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Any stockholder who wants to exercise dissenters' rights must deliver
written notice to us, before the date the authority with respect to the reverse
stock split is voted upon, stating that the stockholder intends to demand
payment for his shares of our common stock if the authority to directors with
respect to the reverse stock split is approved (Section 92A.420.1(a) of the
NRS). In addition, the stockholder must not vote his shares in favor of the
authority with respect to the reverse stock split (Section 92A.420.1(b) of the
NRS).
Notices transmitted before the vote should be addressed to International
Development Corp., 534 Delaware Avenue, Suite 412, Buffalo, New York 14202.
Stockholders who vote in favor of the authority with respect to the reverse
stock split will be deemed to have waived their dissenter's rights.
A stockholder whose shares of our common stock are held in "street name" or
in the name of anyone other than the stockholder must obtain written consent
from the person or firm in whose name the shares are registered, allowing the
stockholder to file the notice demanding payment for the shares in question, and
must deliver the consent to us no later than the time that dissenter's rights
are asserted (Section 92A.400.2(a) of the NRS). Also, the dissent must be
asserted as to all shares of our common stock that the stockholder beneficially
owns or has power to vote on the record date (Section 92A.400.2(b) of the NRS).
Any stockholder who does not complete the requirements of Sections 92A.400
and 92A.420.1(a) and (b) of the NRS as described above is not entitled to
payment for his shares of International Development Corp.'s common stock
(Section 92A.420.2 of the NRS).
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VOTE REQUIRED
Once a quorum is present and voting, the grant of discretionary authority
to our directors to implement a reverse stock split will be approved if the
number of votes cast in favor of the grant of authority exceeds the number of
votes cast in opposition to the grant of authority.
The board of directors recommends a vote FOR approval of the grant of
discretionary authority to our directors to implement a reverse stock split, as
described in Attachment A hereto.
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APPROVAL OF STOCK PLAN
(PROPOSAL 2)
Our majority stockholder intends to approve the 2004 Stock Plan of
International Development Corp. (the "Stock Plan").
As of the record date 550,000,000 shares of our common stock have been
issued under the Stock Plan.
The following is a summary of the principal features of the Stock Plan. A
copy of the Stock Plan is attached to this information statement as Attachment
----------
C. Any stockholder who wishes to obtain copies of the Stock Plan may also do so
- -
upon written request to our corporate secretary at our principal executive
offices in Buffalo, New York.
- -
- - PURPOSE OF THE STOCK PLAN
The purpose of the Stock Plan is to provide incentives to attract, retain
and motivate eligible persons whose present and potential contributions are
important to the success of International Development Corp. and our
subsidiaries, by offering them an opportunity to participate in our future
performance through awards of options, restricted stock and stock bonuses.
The Stock Plan was administered by the compensation committee of the board
of directors.
Number of Shares Available. Subject to certain provisions of the Stock
Plan, the total aggregate number of shares of our common stock reserved and
available for grant and issuance pursuant to the Stock Plan is 550,000,000 plus
shares of our common stock that are subject to:
- - Issuance upon exercise of an option but cease to be subject to such option
for any reason other than exercise of such option;
- - An award granted but forfeited or repurchased by International Development
Corp. at the original issue price; and
- - An award that otherwise terminates without shares of our common stock being
issued. At all times, International Development Corp. shall reserve and
keep available a sufficient number of shares of our common stock as shall
be required to satisfy the requirements of all outstanding options granted
under the Stock Plan and all other outstanding but unvested awards granted
under the Stock Plan.
ELIGIBILITY
Incentive Stock Options and Awards may be granted only to employees
(including, officers and directors who are also employees) of International
Development Corp. or of a parent or subsidiary of International Development
Corp.
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DISCRETIONARY OPTION GRANT PROGRAM
The committee may grant options to eligible persons and will determine
whether such options will be Incentive Stock Options ("ISO") or Nonqualified
Stock Options ("NQSOs"), the number of shares of our common stock subject to the
option, the exercise price of the option, the period during which the option may
be exercised, and all other terms and conditions of the option, subject to the
following.
Form of Option Grant. Each option granted under the Stock Plan is
evidenced by an Award Agreement that will expressly identify the option as an
ISO or an NQSO (the "Option Agreement"), and will be in such form and contain
such provisions (which need not be the same for each participant) as the
committee may from time to time approve, and which will comply with and be
subject to the terms and conditions of the Stock Plan.
Date of Grant. The date of grant of an option is the date on which the
committee makes the determination to grant such option, unless otherwise
specified by the committee. The Option Agreement and a copy of the applicable
Stock Plan is delivered to the participant within a reasonable time after the
granting of the option.
Exercise Period. Options may be exercisable within the times or upon the
events determined by the committee as set forth in the Stock Option Agreement
governing such option; provided, however, that no option will be exercisable
after the expiration of 10 years from the date the option is granted. For
further restrictions on the Exercise Periods, please refer to the Stock Plan.
Exercise Price. The exercise price of an option is determined by the
committee when the option is granted and may be not less than 85 percent of the
fair market value of the shares of our common stock on the date of grant;
provided that the exercise price of any ISO granted to a Ten Percent Stockholder
as defined in the Stock Plan is not less than 110 percent of the fair market
value of the shares of our common stock on the date of grant. Payment for the
shares of our common stock purchased may be made in accordance with the Stock
Plan.
Method of Exercise. Options may be exercised only by delivery to
International Development Corp. of a written stock option exercise agreement
(the "Notice and Agreement of Exercise") in a form approved by the committee,
together with payment in full of the exercise price for the number of shares of
our common stock being purchased.
Termination. Notwithstanding the exercise periods set forth in the Stock
Option Agreement, exercise of an option is always subject to the following:
- - Upon an Employee's Retirement, Disability (as those terms are defined in
the Stock Plan) or death, (a) all Stock Options to the extent then
presently exercisable shall remain in full force and effect and may be
exercised pursuant to the provisions thereof, and (b) unless otherwise
provided by the committee, all Stock Options to the extent not then
presently exercisable by the Employee shall terminate as of the date of
such termination of employment and shall not be exercisable thereafter.
Unless employment is terminated for Cause, as defined by applicable law,
the right to exercise in the event of termination of employment, to the
extent that the optionee is entitled to exercise on the date the employment
terminates as follows:
- - At least six months from the date of termination if termination was caused
by death or disability.
- - At least 30 days from the date of termination if termination was caused by
other than death or disability.
- - Upon the termination of the employment of an Employee for any reason other
than those specifically set forth in the Stock Plan, (a) all Stock Options
to the extent then presently exercisable by the Employee shall remain
exercisable only for a period of 90 days after the date of such termination
of employment (except that the 90 day period shall be extended to 12 months
if the Employee shall die during such 90 day period), and may be exercised
pursuant to the provisions thereof, including expiration at the end of the
fixed term thereof, and (b) unless otherwise provided by the committee, all
Stock Options to the extent not then
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presently exercisable by the Employee shall terminate as of the date of
such termination of employment and shall not be exercisable thereafter.
Limitations on Exercise. The committee may specify a reasonable minimum
number of shares of our common stock that may be purchased on any exercise of an
option, provided that such minimum number will not prevent the participant from
exercising the option for the full number of shares of our common stock for
which it is then exercisable. Subject to the provisions of the Stock Plan, the
Employee has the right to exercise his Stock Options at the rate of at least
33-1/3 percent per year over three years from the date the Stock Option is
granted.
Limitations on ISO. The aggregate fair market value (determined as of the
date of grant) of shares of our common stock with respect to which ISOs are
exercisable for the first time by a participant during any calendar year (under
the Stock Plan or under any other ISO plan of International Development Corp.,
or the parent or any subsidiary of International Development Corp.) will not
exceed $100,000.00. In the event that the Internal Revenue Code or the
regulations promulgated thereunder are amended after the effective date of the
Stock Plan to provide for a different limit on the fair market value of shares
of our common stock permitted to be subject to ISO, such different limit will be
automatically incorporated in the Stock Plan and will apply to any options
granted after the effective date of such amendment.
Modification, Extension or Renewal. The committee may modify or amend any
Award under the Stock Plan or waive any restrictions or conditions applicable to
the Award; provided, however, that the committee may not undertake any such
modifications, amendments or waivers if the effect thereof materially increases
the benefits to any Employee, or adversely affects the rights of any Employee
without his consent.
STOCKHOLDER RIGHTS AND OPTION TRANSFERABILITY
Awards granted under the Stock Plan, including any interest, are not
transferable or assignable by the participant, and may not be made subject to
execution, attachment or similar process, other than by will or by the laws of
descent and distribution.
GENERAL PROVISIONS
Adoption and Stockholder Approval. The Stock Plan became effective on the
date they were adopted by the board of directors of International Development
Corp. (the "effective date"). The Stock Plan must be approved by the
stockholders of International Development Corp. within 12 months before or after
the date of adoption and the committee may grant Awards pursuant to the Stock
Plan upon the effective date.
Term of Stock Plan/Governing Law. Unless earlier terminated as provided,
the Stock Plan will terminate 10 years from the date of adoption, or, if
earlier, from the date of stockholder approval. The Stock Plan and all
agreements thereunder shall be governed by and construed in accordance with the
laws of the State of Nevada.
Amendment or Termination of the Stock Plan. Our board of directors may at
any time terminate or amend the Stock Plan including to preserve or come within
any exemption from liability under Section 16(b) of the Exchange Act, as it may
deem proper and in our best interest without further approval of our
stockholders, provided that, to the extent required under Nevada law or to
qualify transactions under the Stock Plan for exemption under Rule 16b-3
promulgated under the Exchange Act, no amendment to the Stock Plan shall be
adopted without further approval of our stockholders and, provided, further,
that if and to the extent required for the Stock Plan to comply with Rule 16b-3
promulgated under the Exchange Act, no amendment to the Stock Plan shall be made
more than once in any six month period that would change the amount, price or
timing of the grants of our common stock hereunder other than to comport with
changes in the Code, the Employee Retirement Income Security Act of 1974, as
amended, or the regulations thereunder. The board may terminate the Stock Plan
at any time by a vote of a majority of the members thereof.
-9
AWARD OF STOCK BONUSES
Award of Stock Bonuses. A Stock Bonus is an award of shares of our common
stock (which may consist of Restricted Stock) for extraordinary services
rendered to International Development Corp. or any parent or subsidiary of
International Development Corp. Each Award under the Stock Plan consists of a
grant of shares of our common stock subject to a restriction period (after which
the restrictions shall lapse), which shall be a period commencing on the date
the Award is granted and ending on such date as the committee shall determine
(the "Restriction Period"). The committee may provide for the lapse of
restrictions in installments, for acceleration of the lapse of restrictions upon
the satisfaction of such performance or other criteria or upon the occurrence of
such events as the committee shall determine, and for the early expiration of
the Restriction Period upon an Employee's death, Disability or Retirement as
defined in the Stock Plan or, following a Change of Control, upon termination of
an Employee's employment by us without "Cause" or by the Employee for "Good
Reason," as those terms are defined in the Stock Plan.
Terms of Stock Bonuses. Upon receipt of an Award of shares of our common
stock under the Stock Plan, even during the Restriction Period, an Employee is
the holder of record of the shares and has all the rights of a stockholder with
respect to such shares, subject to the terms and conditions of the Stock Plan
and the Award.
FEDERAL TAX CONSEQUENCES
Option Grants. Options granted under the Stock Plan may be either ISO
which satisfy the requirements of Section 422 of the Code or NQSOs which are not
intended to meet such requirements. The federal income tax treatment for the
two types of options differs as discussed below.
Incentive Stock Options. The optionee recognizes no taxable income at the
time of the option grant, and no taxable income is generally recognized at the
time the option is exercised. However, the exercise of an ISO (if the holding
period rules set forth below are satisfied) will give rise to income includable
by the optionee in his alternative minimum taxable income for purposes of the
alternative minimum tax in an amount equal to the excess of the fair market
value of the shares acquired on the date of the exercise of the option over the
exercise price. The optionee will also recognize taxable income in the year in
which the exercised shares are sold or otherwise made the subject of a taxable
disposition. For federal tax purposes, dispositions are divided into two
categories: (i) qualifying and (ii) disqualifying. A qualifying disposition
occurs if the sale or other disposition is made after the optionee has held the
shares for more than two years after the option grant date and more than one
year after the exercise date. If either of these two holding periods is not
satisfied, then a disqualifying disposition will result. In addition, the
optionee must be an employee of International Development Corp. or a qualified
subsidiary at all times between the date of grant and the date three months (one
year in the case of disability) before exercise of the option (special rules
apply in the case of the death of the optionee).
Upon a qualifying disposition, the optionee will recognize long-term
capital gain or loss in an amount equal to the difference between (i) the amount
realized upon the sale or other disposition of the purchased shares over (ii)
the exercise price paid for the shares. If there is a disqualifying disposition
of the shares, then the excess of (i) the lesser of the fair market value of
those shares on the exercise date or the sale date and (ii) the exercise price
paid for the shares will be taxable as ordinary income to the optionee. Any
additional gain or loss recognized upon the disposition will be recognized as a
capital gain or loss by the optionee.
If the optionee makes a disqualifying disposition of the purchased shares,
then we will be entitled to an income tax deduction, for the taxable year in
which such disposition occurs, equal to the excess of (i) the fair market value
of such shares on the option exercise date or the sale date, if less, over (ii)
the exercise price paid for the shares. In no other instance will we be allowed
a deduction with respect to the optionee's disposition of the purchased shares.
Nonqualified Stock Options. No taxable income is recognized by an optionee
upon the grant of a NQSO. The optionee will in general recognize ordinary
income in the year in which the option is exercised, equal to the
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excess of the fair market value of the purchased shares on the exercise date
over the exercise price paid for the shares, and the optionee will be required
to satisfy the tax withholding requirements applicable to such income.
If the shares acquired upon exercise of the NQSO are unvested and subject
to repurchase, at the exercise price paid per share, by us in the event of the
optionee's termination of service prior to vesting in those shares, then the
optionee will not recognize any taxable income at the time of exercise but will
have to report as ordinary income, as and when our repurchase right lapses, an
amount equal to the excess of (i) the fair market value of the shares on the
date the repurchase right lapses over (ii) the exercise price paid for the
shares. The optionee may, however, elect under Section 83(b) of the Code to
include as ordinary income in the year of exercise of the option an amount equal
to the excess of (i) the fair market value of the purchased shares on the
exercise date over (ii) the exercise price paid for such shares. If the Section
83(b) election is made, the optionee will not recognize any additional income as
and when the repurchase right lapse and all subsequent appreciation in the
shares generally would be eligible for capital gains treatment.
We will be entitled to an income tax deduction equal to the amount of
ordinary income recognized by the optionee with respect to the exercised NQSO.
The deduction will in general be allowed for our taxable year in which such
ordinary income is recognized by the optionee.
Direct Stock Issuance. With respect to the receipt of a stock award not
subject to restriction, the participant would have ordinary income, at the time
of receipt, in an amount equal to the difference between the fair market value
of the stock received at such time and the amount, if any, paid by the holder
for the stock award.
With respect to the receipt of a stock award that is subject to
restrictions, or certain repurchase rights of International Development Corp.,
unless the recipient of such stock award makes an "83(b) election" (as discussed
below), there generally will be no tax consequences as a result of such a stock
award until the shares are no longer subject to a substantial risk of forfeiture
or are transferable (free of such risk). We intend that, generally, when the
restrictions are lifted, the holder will recognize ordinary income, and we will
be entitled to a deduction, equal to the difference between the fair market
value of the shares at such time and the amount, if any, paid by the holder for
the stock. Subsequently realized changes in the value of the stock generally
will be treated as long-term or short-term capital gain or loss, depending on
the length of time the shares are held prior to disposition of such shares. In
general terms, if a holder makes an "83(b) election" (under Section 83(b) of the
Code) upon the award of a stock award subject to restrictions (or certain
repurchase rights of International Development Corp.), the holder will recognize
ordinary income on the date of the award of the stock award, and we will be
entitled to a deduction, equal to (i) the fair market value of such stock as
though the stock were (A) not subject to a substantial risk of forfeiture or (B)
transferable, minus (ii) the amount, if any, paid for the stock award. If an
"83(b) election" is made, there will generally be no tax consequences to the
holder upon the lifting of restrictions, and all subsequent appreciation in the
stock award generally would be eligible for capital gains treatment.
ACCOUNTING TREATMENT
Option grants or stock issuances with exercise or issue prices less than
the fair market value of the shares on the grant or issue date will result in a
compensation expense to our earnings equal to the difference between the
exercise or issue price and the fair market value of the shares on the grant or
issue date. Such expense will be amortized against our earnings over the period
that the option shares or issued shares are to vest.
Option grants or stock issuances with exercise or issue prices equal to the
fair market value of the shares at the time of issuance or grant generally will
not result in any charge to our earnings, but International Development Corp,
Inc., in accordance with Generally Accepted Accounting Principals, must
disclose, in pro-forma statements to our financial statements, the impact those
option grants would have upon our reported earnings (losses) were the value of
those options treated as compensation expense. Whether or not granted at a
discount, the number of outstanding options may be a factor in determining our
earnings per share on a fully diluted basis.
Should one or more optionee be granted stock appreciation rights that have
no conditions upon exercisability other than a service or employment
requirement, then such rights will result in a compensation expense to our
earnings. Accordingly, at the end of each fiscal quarter, the amount (if any)
by which the fair market value of the shares of common stock subject to such
outstanding stock appreciation rights has increased from the
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prior quarter-end would be accrued as compensation expense, to the extent such
fair market value is in excess of the aggregate exercise price in effect for
those rights.
VOTE REQUIRED
Once a quorum is present and voting, a simple majority of the voting shares
is required to approve the Stock Plan.
Our board of directors recommends that stockholders vote FOR the approval
of the Stock Plan.
Information regarding the beneficial ownership of our common and preferred
stock by management and the board of directors is noted below.
APPROVAL OF THE TRANSACTION
(PROPOSAL 3)
Our majority stockholder intends to approve the stock purchase transaction
in which we will sell to Max Weissengruber, our president, chief operating
officer and director, and D. Brian Robertson, our chief financial officer, one
share of common stock, par value $0.001 per share, constituting 100 percent of
the issued and outstanding shares of the capital stock of Freshwater
Technologies, Inc., for a total purchase price of $60,210.33 (the
"Transaction").
The principal features of the Transaction are summarized below. This
summary does not purport to be complete and is qualified in its entirety by
reference to the stock purchase agreement by and between International
Development, Inc. as the sole stockholder of Freshwater Technologies, Inc., a
Nevada corporation ("Freshwater"), Max Weissengruber, our president, chief
operating officer and director ("Weissengruber") and D. Brian Robertson, our
chief financial officer ("Robertson") (the "Stock Purchase Agreement"). A copy
of the Stock Purchase Agreement is attached to this information statement as
Attachment D. Any stockholder who wishes to obtain copies of the Stock Purchase
- ------------
Agreement may also do so upon written request to our corporate secretary at our
principal executive offices in Buffalo, New York.
FRESHWATER STOCK PURCHASE
As of September 29, 2005, we entered into the Stock Purchase Agreement with
Weissengruber and Robertson. Under the terms of the Stock Purchase Agreement, if
certain conditions are met, Weissengruber and Robertson will purchase from
International Development Corp., and International Development Corp. will to
sell to Weissengruber and Robertson one share of common stock, constituting 100
percent of the issued and outstanding shares of the capital stock of Freshwater
(the "Stock") for an aggregate purchase price of $60,210.33.
The purchase price will be paid as follows:
a) The sum of $32,482.51 will be paid in the form of forgiveness of
debt for salary by International Development Corp. to Weissengruber, as well as
the termination of his employment agreement with International Development
Corp., and
b) The sum of $27,727.82 will be paid in the form of forgiveness of
debt for salary owing by International Development Corp. to Robertson, as well
as the termination of his employment agreement with International Development
Corp.
If the Transaction is consummated, Messrs. Weissengruber and Robertson will
own 100 percent of Freshwater's outstanding capital stock.
The Stock of Freshwater to be delivered to Weissengruber and Robertson
pursuant to the Transaction will be issued pursuant to an exemption from
registration under Section 4(2) of the Securities Act of 1933, as amended,
inasmuch as the share will be issued for investment purposes without a view to
distribution. We will deliver to
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Weissengruber certificates representing one-half share of the Stock and we will
deliver to Robertson certificates representing one-half share of the Stock.
The certificates representing the Stock of Freshwater to be delivered to
Weissengruber and Robertson will bear a restrictive legend thereon restricting
their transfer.
BOARD AND SHAREHOLDER APPROVAL
The Board of Directors has unanimously approved the execution and delivery
of the Stock Purchase Agreement and the related agreements to which we are a
party.
We are seeking stockholder approval of the Transaction because, if it is
approved, Freshwater will cease to be our wholly-owned subsidiary and we will
exit the water purification business.
NASD Rule 4350(h) requires that all related party transactions be approved
by a company's audit committee or a comparable body of the board of directors.
Given Mr. Weissengruber and Robertson's participation in the Transaction, the
Transaction was reviewed and approved by the Special Committee (as defined
below).
PERSONS WITH AN INTEREST IN THE TRANSACTION
The interests of Messrs. Weissengruber and Robertson in the Transaction may
be different than the interests of most of our stockholders. If the Transaction
is consummated, we will extinguish our debt to each of Messrs. Weissengruber and
Robertson. In addition, each of Messrs. Weissengruber and Robertson has an
employment agreement with us, which will be terminated if the Transaction is
consummated.
BACKGROUND AND REASONS FOR THE TRANSACTION
On January 21, 2005, we formed Freshwater Technologies, Inc. as a Nevada
corporation and our wholly-owned subsidiary for the purpose of transferring our
water purification-related assets and business to Freshwater. Although we had
disclosed our intent to get out of direct management of the water related
business in our Form 10-KSB for the Fiscal Year Ended August 31, 2004, we
ultimately decided that we could realize most value from the water
purification-related assets by creating a wholly owned subsidiary to carry on
our water purification business. Since January 21, 2005, we have been
conducting all of our water purification-related business through Freshwater.
On September 1, 2005, we formed a special committee of disinterested
directors (the "Special Committee") comprised of Betty-Ann Harland, Douglas
Robertson, Robert W. Gingell, Richard Proulx and Arthur N. Kelly to consider a
possible transaction with Messrs. Weissengruber and D. Brian Robertson. The
Special Committee was authorized to review, approve and make a recommendation to
the Board of Directors as to the terms of a potential transaction to sell all of
the outstanding Stock of Freshwater to Messrs. Weissengruber and Robertson.
The Special Committee held several meetings to discuss the financial and
legal aspects of the proposed transaction. In reaching its decision to approve
and recommend the proposed transaction to the board of directors, the Special
Committee considered the need for simplification and modification of our
financial and corporate governance structures and the extinguishment of our
obligations to Messrs. Weissengruber and Robertson.
At a meeting of the Board of Directors on September 30, 2005, the board of
directors (i) concluded that the Transaction was fair to unaffiliated
shareholders and was beneficial to the Company, (ii) approved the Transaction
and the Stock Purchase Agreement in substantially the form presented, and (iii)
resolved to recommend to the Company's stockholders that they approve the
Transaction and the Stock Purchase Agreement.
VOTE REQUIRED
Once a quorum is present and voting, a simple majority of the voting shares
is required to approve the Transaction and the Stock Purchase Agreement.
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Our board of directors recommends that stockholders vote FOR the approval
of the Transaction and the Stock Purchase Agreement.
Information regarding the beneficial ownership of our common and preferred
stock by management and the board of directors is noted below
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table presents information regarding the beneficial ownership
of all shares of our common stock and preferred stock as of the record date, by:
- - Each person who beneficially owns more than five percent of the outstanding
shares of our common stock;
- - Each person who beneficially owns outstanding shares of our preferred
stock;
- - Each of our directors;
- - Each named executive officer; and
- - All directors and officers as a group.
NAME OF BENEFICIAL OWNER (1) COMMON STOCK BENEFICIALLY PREFERRED STOCK BENEFICIALLY
- ------------------------------------------------ OWNED (2) OWNED (2)
---------------------------- --------------------------------
NUMBER PERCENT NUMBER PERCENT
----------- --------------- -------------- ----------------
-0- -0- 1,000,000 (3) 100 (3)
Betty-Ann Harland .(6). . . . . . . . . . . . . . -0- -0- 65,000 (5) 100 (5)
Max Weissengruber . . . . . . . . . . . . . . . . -0- -0- -0- -0-
D. Brian Robertson (4). . . . . . . . . . . . . . 1,731,546 3.51 -0- -0-
Robert W. Gingell . . . . . . . . . . . . . . . . -0- -0- -0- -0-
Douglas Robertson . . . . . . . . . . . . . . . . -0- -0- -0- -0-
Arthur N. Kelly . . . . . . . . . . . . . . . . . -0- -0- -0- -0-
Richard Proulx . . . . . . . . . . . . . . . . . -0- -0- -0- -0-
----------- --------------- -------------- ----------------
All directors and executive officers as a group 1,000,000 (3) 100 (3)
(seven persons) . . . . . . . . . . . . . . . . . 1,731,546 3.51 65,000 (5) 100 (5)
----------- ---------------
1,000,000 (3) 100 (3)
Total . . . . . . . . . . . . . . . . . . . . . . 1,731,546 46.23 65,000 (5) 100 (5)
=========== =============== ============== ================
(1) Unless otherwise indicated, the address for each of these stockholders is
c/o International Development Corp., 534 Delaware Avenue, Suite 412,
Buffalo, New York 14202. Also, unless otherwise indicated, each person
named in the table above has the sole voting and investment power with
respect to our shares of common stock which he beneficially owns.
(2) Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission. As of the date of this Annual Report,
there were issued and outstanding 483,404,226 shares of our common stock,
65,000 shares of our Series A preferred stock and 1,000,000 shares of our
Series B preferred Stock.
(3) Series B preferred stock.
(4) Mr. Robertson owns directly 1,052,440 shares of our common stock and his
wife, Margaret Robertson, owns 169,106 shares of our common stock. Mr.
Robertson is a controlling stockholder of Arenal Holdings S.A., which owns
510,000 shares of our common stock.
(5) Series A preferred stock.
(6) Betty-Ann Harland is our \director and chief executive officer, who holds
zero shares of our common stock, 65,000 shares of our Series A preferred
stock and 1,000,000 shares of our Series B preferred stock. Therefore, Ms.
Harland will have the power to vote 513,000,000 shares of our common stock,
which number exceeds the majority of the issued and outstanding shares of
the common stock on the record date.
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SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Exchange Act requires our directors, executive
officers and persons who own more than 10 percent of a registered class of our
equity securities, file with the SEC initial reports of ownership and reports of
changes in ownership of our equity securities. Officers, directors and greater
than 10 percent stockholders are required by SEC regulation to furnish us with
copies of all Section 16(a) forms they file. All such persons have filed all
required reports.
DOCUMENTS INCORPORATED BY REFERENCE
Our Annual Report on Form 10-KSB, as amended, for the year ended August 31,
2004 and our Quarterly Reports on Form 10-QSB for the period ended November 30,
2004 and February 28, 2005 are incorporated herein by reference.
COPIES OF ANNUAL AND QUARTERLY REPORTS
We will furnish a copy of our Annual Report on Form 10-KSB, as amended, for
the year ended August 31, 2004 and our Quarterly Reports on Form 10-QSB for the
period ended November 30, 2004 and February 28, 2005, and any exhibit referred
to therein without charge to each person to whom this information statement is
delivered upon written or oral request by first class mail or other equally
prompt means within one business day of receipt of such request. Any request
should be directed to our corporate secretary at 534 Delaware Avenue, Suite 412,
Buffalo, New York 14202, Telephone (416) 490-0254.
By Order of the board of directors,
/s/ Betty-Ann Harland
Betty-Ann Harland
Chief Executive Officer
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ATTACHMENT A
RESOLUTIONS TO BE ADOPTED BY THE
STOCKHOLDERS OF
INTERNATIONAL DEVELOPMENT CORP.
(the "Company")
RESOLVED, that the grant of discretionary authority to the board
of directors to implement a reverse split of the Company's issued and
outstanding common stock on the basis of one post-consolidation share
for up to each 1,000 pre-consolidation shares within 60 days of the
Company's information statement on Schedule 14C dated October 17, 2005
is hereby approved in all respects; and
RESOLVED FURTHER, that the Company's Stock Plan, included as
Attachment C to the Company's information statement on Schedule 14C
-------------
dated October 17, 2005 is hereby approved in all respects; and
RESOLVED FURTHER, that the Stock Purchase Agreement between the
Company and Max Weissengruber and D. Brian Robertson, included as
Attachment D to the Company's information statement on Schedule 14C
------------
dated October 17, 2005 is hereby approved in all respects; and
RESOLVED FURTHER, that the officers of the Company be, and each
of them hereby is, authorized, empowered and directed, for and on
behalf of the Company, to take any and all actions, to perform all
such acts and things, to execute, file, deliver or record in the name
and on behalf of the Company, all such instruments, agreements, or
other documents, and to make all such payments as they, in their
judgment, or in the judgment of any one or more of them, may deem
necessary, advisable or appropriate in order to carry out the
transactions contemplated by the foregoing resolutions.
-16-
ATTACHMENT B
SECTIONS 92A.300-92A.500 OF THE NEVADA REVISED STATUTES
NRS 92A.300 DEFINITIONS. As used in NRS 92A.300 to 92A.500, inclusive,
----------- -------
unless the context otherwise requires, the words and terms defined in NRS
---
92A.305 to 92A.335, inclusive, have the meanings ascribed to them in those
- ------- -------
sections.
(Added to NRS by 1995, 2086)
NRS 92A.305 "BENEFICIAL STOCKHOLDER" DEFINED. "Beneficial stockholder"
means a person who is a beneficial owner of shares held in a voting trust or by
a nominee as the stockholder of record.
(Added to NRS by 1995, 2087)
NRS 92A.310 "CORPORATE ACTION" DEFINED. "Corporate action" means the
action of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.315 "DISSENTER" DEFINED. "Dissenter" means a stockholder who is
entitled to dissent from a domestic corporation's action under NRS 92A.380 and
-----------
who exercises that right when and in the manner required by NRS 92A.400 to
-----------
92A.480, inclusive.
- -------
(Added to NRS by 1995, 2087; A 1999, 1631)
----
NRS 92A.320 "FAIR VALUE" DEFINED. "Fair value," with respect to a
dissenter's shares, means the value of the shares immediately before the
effectuation of the corporate action to which he objects, excluding any
appreciation or depreciation in anticipation of the corporate action unless
exclusion would be inequitable.
(Added to NRS by 1995, 2087)
NRS 92A.325 "STOCKHOLDER" DEFINED. "Stockholder" means a stockholder of
record or a beneficial stockholder of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.330 "STOCKHOLDER OF RECORD" DEFINED. "Stockholder of record" means
the person in whose name shares are registered in the records of a domestic
corporation or the beneficial owner of shares to the extent of the rights
granted by a nominee's certificate on file with the domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.335 "SUBJECT CORPORATION" DEFINED. "Subject corporation" means the
domestic corporation which is the issuer of the shares held by a dissenter
before the corporate action creating the dissenter's rights becomes effective or
the surviving or acquiring entity of that issuer after the corporate action
becomes effective.
(Added to NRS by 1995, 2087)
NRS 92A.340 COMPUTATION OF INTEREST. Interest payable pursuant to NRS
---
92A.300 to 92A.500, inclusive, must be computed from the effective date of the
- ------- -------
action until the date of payment, at the average rate currently paid by the
entity on its principal bank loans or, if it has no bank loans, at a rate that
is fair and equitable under all of the circumstances.
(Added to NRS by 1995, 2087)
NRS 92A.350 RIGHTS OF DISSENTING PARTNER OF DOMESTIC LIMITED PARTNERSHIP.
A partnership agreement of a domestic limited partnership or, unless otherwise
provided in the partnership agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the partnership interest of a
dissenting general or limited partner of a domestic limited partnership are
available for any class or group of partnership interests in connection with any
merger or exchange in which the domestic limited partnership is a constituent
entity.
(Added to NRS by 1995, 2088)
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NRS 92A.360 RIGHTS OF DISSENTING MEMBER OF DOMESTIC LIMITED-LIABILITY
COMPANY. The articles of organization or operating agreement of a domestic
limited-liability company or, unless otherwise provided in the articles of
organization or operating agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the interest of a dissenting
member are available in connection with any merger or exchange in which the
domestic limited-liability company is a constituent entity.
(Added to NRS by 1995, 2088)
NRS 92A.370 RIGHTS OF DISSENTING MEMBER OF DOMESTIC NONPROFIT CORPORATION.
1. Except as otherwise provided in subsection 2, and unless otherwise
provided in the articles or bylaws, any member of any constituent domestic
nonprofit corporation who voted against the merger may, without prior notice,
but within 30 days after the effective date of the merger, resign from
membership and is thereby excused from all contractual obligations to the
constituent or surviving corporations which did not occur before his resignation
and is thereby entitled to those rights, if any, which would have existed if
there had been no merger and the membership had been terminated or the member
had been expelled.
2. Unless otherwise provided in its articles of incorporation or bylaws,
no member of a domestic nonprofit corporation, including, but not limited to, a
cooperative corporation, which supplies services described in chapter 704 of NRS
------------------
to its members only, and no person who is a member of a domestic nonprofit
corporation as a condition of or by reason of the ownership of an interest in
real property, may resign and dissent pursuant to subsection 1.
(Added to NRS by 1995, 2088)
NRS 92A.380 RIGHT OF STOCKHOLDER TO DISSENT FROM CERTAIN CORPORATE ACTIONS
AND TO OBTAIN PAYMENT FOR SHARES.
1. Except as otherwise provided in NRS 92A.370 and 92A.390, any
------------ -------
stockholder is entitled to dissent from, and obtain payment of the fair value of
his shares in the event of any of the following corporate actions:
(a) Consummation of a conversion or plan of merger to which the domestic
corporation is a constituent entity:
(1) If approval by the stockholders is required for the conversion
or merger by NRS 92A.120 to 92A.160, inclusive, or the articles of
------------ -------
incorporation, regardless of whether the stockholder is entitled to vote on the
conversion or plan of merger; or
(2) If the domestic corporation is a subsidiary and is merged with
its parent pursuant to NRS 92A.180.
------------
(b) Consummation of a plan of exchange to which the domestic corporation
is a constituent entity as the corporation whose subject owner's interests will
be acquired, if his shares are to be acquired in the plan of exchange.
(c) Any corporate action taken pursuant to a vote of the stockholders to
the extent that the articles of incorporation, bylaws or a resolution of the
board of directors provides that voting or nonvoting stockholders are entitled
to dissent and obtain payment for their shares.
2. A stockholder who is entitled to dissent and obtain payment pursuant
to NRS 92A.300 to 92A.500, inclusive, may not challenge the corporate action
------------ -------
creating his entitlement unless the action is unlawful or fraudulent with
respect to him or the domestic corporation.
(Added to NRS by 1995, 2087; A 2001, 1414, 3199; 2003, 3189)
---- ---- ----
NRS 92A.390 LIMITATIONS ON RIGHT OF DISSENT: STOCKHOLDERS OF CERTAIN
CLASSES OR SERIES; ACTION OF STOCKHOLDERS NOT REQUIRED FOR PLAN OF MERGER.
1. There is no right of dissent with respect to a plan of merger or
exchange in favor of stockholders of any class or series which, at the record
date fixed to determine the stockholders entitled to receive notice of and to
vote at the meeting at which the plan of merger or exchange is to be acted on,
were either listed on a national securities exchange, included in the national
market system by the National Association of Securities Dealers, Inc., or held
by at least 2,000 stockholders of record, unless:
(a) The articles of incorporation of the corporation issuing the shares
provide otherwise; or
(b) The holders of the class or series are required under the plan of
merger or exchange to accept for the shares anything except:
(1) Cash, owner's interests or owner's interests and cash in lieu
of fractional owner's interests of:
(I) The surviving or acquiring entity; or
(II) Any other entity which, at the effective date of the
plan of merger or exchange, were either listed on a national securities
exchange, included in the national market system by the National Association of
Securities Dealers, Inc., or held of record by a least 2,000 holders of owner's
interests of record; or
-18-
(2) A combination of cash and owner's interests of the kind
described in sub-subparagraphs (I) and (II) of subparagraph (1) of paragraph
(b).
2. There is no right of dissent for any holders of stock of the surviving
domestic corporation if the plan of merger does not require action of the
stockholders of the surviving domestic corporation under NRS 92A.130.
------------
(Added to NRS by 1995, 2088)
NRS 92A.400 LIMITATIONS ON RIGHT OF DISSENT: ASSERTION AS TO PORTIONS ONLY
TO SHARES REGISTERED TO STOCKHOLDER; ASSERTION BY BENEFICIAL STOCKHOLDER.
1. A stockholder of record may assert dissenter's rights as to fewer than
all of the shares registered in his name only if he dissents with respect to all
shares beneficially owned by any one person and notifies the subject corporation
in writing of the name and address of each person on whose behalf he asserts
dissenter's rights. The rights of a partial dissenter under this subsection are
determined as if the shares as to which he dissents and his other shares were
registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter's rights as to shares
held on his behalf only if:
(a) He submits to the subject corporation the written consent of the
stockholder of record to the dissent not later than the time the beneficial
stockholder asserts dissenter's rights; and
(b) He does so with respect to all shares of which he is the beneficial
stockholder or over which he has power to direct the vote.
(Added to NRS by 1995, 2089)
NRS 92A.410 NOTIFICATION OF STOCKHOLDERS REGARDING RIGHT OF DISSENT.
1. If a proposed corporate action creating dissenters' rights is
submitted to a vote at a stockholders' meeting, the notice of the meeting must
state that stockholders are or may be entitled to assert dissenters' rights
under NRS 92A.300 to 92A.500, inclusive, and be accompanied by a copy of those
------------ -------
sections.
2. If the corporate action creating dissenters' rights is taken by
written consent of the stockholders or without a vote of the stockholders, the
domestic corporation shall notify in writing all stockholders entitled to assert
dissenters' rights that the action was taken and send them the dissenter's
notice described in NRS 92A.430.
------------
(Added to NRS by 1995, 2089; A 1997, 730)
NRS 92A.420 PREREQUISITES TO DEMAND FOR PAYMENT FOR SHARES.
1. If a proposed corporate action creating dissenters' rights is
submitted to a vote at a stockholders' meeting, a stockholder who wishes to
assert dissenter's rights:
(a) Must deliver to the subject corporation, before the vote is taken,
written notice of his intent to demand payment for his shares if the proposed
action is effectuated; and
(b) Must not vote his shares in favor of the proposed action.
2. A stockholder who does not satisfy the requirements of subsection 1
and NRS 92A.400 is not entitled to payment for his shares under this chapter.
------------
(Added to NRS by 1995, 2089; 1999, 1631)
----
NRS 92A.430 DISSENTER'S NOTICE: DELIVERY TO STOCKHOLDERS ENTITLED TO
ASSERT RIGHTS; CONTENTS.
1. If a proposed corporate action creating dissenters' rights is
authorized at a stockholders' meeting, the subject corporation shall deliver a
written dissenter's notice to all stockholders who satisfied the requirements to
assert those rights.
2. The dissenter's notice must be sent no later than 10 days after the
effectuation of the corporate action, and must:
(a) State where the demand for payment must be sent and where and when
certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates to what
extent the transfer of the shares will be restricted after the demand for
payment is received;
(c) Supply a form for demanding payment that includes the date of the
first announcement to the news media or to the stockholders of the terms of the
proposed action and requires that the person asserting dissenter's rights
certify whether or not he acquired beneficial ownership of the shares before
that date;
(d) Set a date by which the subject corporation must receive the demand
for payment, which may not be less than 30 nor more than 60 days after the date
the notice is delivered; and
(e) Be accompanied by a copy of NRS 92A.300 to 92A.500, inclusive.
------------ -------
(Added to NRS by 1995, 2089)
-19-
NRS 92A.440 DEMAND FOR PAYMENT AND DEPOSIT OF CERTIFICATES; RETENTION OF
RIGHTS OF STOCKHOLDER.
1. A stockholder to whom a dissenter's notice is sent must:
(a) Demand payment;
(b) Certify whether he or the beneficial owner on whose behalf he is
dissenting, as the case may be, acquired beneficial ownership of the shares
before the date required to be set forth in the dissenter's notice for this
certification; and
(c) Deposit his certificates, if any, in accordance with the terms of the
notice.
2. The stockholder who demands payment and deposits his certificates, if
any, before the proposed corporate action is taken retains all other rights of a
stockholder until those rights are cancelled or modified by the taking of the
proposed corporate action.
3. The stockholder who does not demand payment or deposit his
certificates where required, each by the date set forth in the dissenter's
notice, is not entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2090; A 1997, 730; 2003, 3189)
----
NRS 92A.450 UNCERTIFICATED SHARES: AUTHORITY TO RESTRICT TRANSFER AFTER
DEMAND FOR PAYMENT; RETENTION OF RIGHTS OF STOCKHOLDER.
1. The subject corporation may restrict the transfer of shares not
represented by a certificate from the date the demand for their payment is
received.
2. The person for whom dissenter's rights are asserted as to shares not
represented by a certificate retains all other rights of a stockholder until
those rights are cancelled or modified by the taking of the proposed corporate
action.
(Added to NRS by 1995, 2090)
NRS 92A.460 PAYMENT FOR SHARES: GENERAL REQUIREMENTS.
1. Except as otherwise provided in NRS 92A.470, within 30 days after
-----------
receipt of a demand for payment, the subject corporation shall pay each
dissenter who complied with NRS 92A.440 the amount the subject corporation
------------
estimates to be the fair value of his shares, plus accrued interest. The
obligation of the subject corporation under this subsection may be enforced by
the district court:
(a) Of the county where the corporation's registered office is located; or
(b) At the election of any dissenter residing or having its registered
office in this state, of the county where the dissenter resides or has its
registered office. The court shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation's balance sheet as of the end of a fiscal year
ending not more than 16 months before the date of payment, a statement of income
for that year, a statement of changes in the stockholders' equity for that year
and the latest available interim financial statements, if any;
(b) A statement of the subject corporation's estimate of the fair value of
the shares;
(c) An explanation of how the interest was calculated;
(d) A statement of the dissenter's rights to demand payment under NRS
---
92A.480; and
- -------
(e) A copy of NRS 92A.300 to 92A.500, inclusive.
------------ -------
(Added to NRS by 1995, 2090)
NRS 92A.470 PAYMENT FOR SHARES: SHARES ACQUIRED ON OR AFTER DATE OF
DISSENTER'S NOTICE.
1. A subject corporation may elect to withhold payment from a dissenter
unless he was the beneficial owner of the shares before the date set forth in
the dissenter's notice as the date of the first announcement to the news media
or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold payment,
after taking the proposed action, it shall estimate the fair value of the
shares, plus accrued interest, and shall offer to pay this amount to each
dissenter who agrees to accept it in full satisfaction of his demand. The
subject corporation shall send with its offer a statement of its estimate of the
fair value of the shares, an explanation of how the interest was calculated, and
a statement of the dissenters' right to demand payment pursuant to NRS 92A.480.
-----------
(Added to NRS by 1995, 2091)
NRS 92A.480 DISSENTER'S ESTIMATE OF FAIR VALUE: NOTIFICATION OF SUBJECT
CORPORATION; DEMAND FOR PAYMENT OF ESTIMATE.
1. A dissenter may notify the subject corporation in writing of his own
estimate of the fair value of his shares and the amount of interest due, and
demand payment of his estimate, less any payment pursuant to NRS 92A.460, or
-----------
-20-
reject the offer pursuant to NRS 92A.470 and demand payment of the fair value of
-----------
his shares and interest due, if he believes that the amount paid pursuant to NRS
---
92A.460 or offered pursuant to NRS 92A.470 is less than the fair value of his
- ------- -----------
shares or that the interest due is incorrectly calculated.
2. A dissenter waives his right to demand payment pursuant to this
section unless he notifies the subject corporation of his demand in writing
within 30 days after the subject corporation made or offered payment for his
shares.
(Added to NRS by 1995, 2091)
NRS 92A.490 LEGAL PROCEEDING TO DETERMINE FAIR VALUE: DUTIES OF SUBJECT
CORPORATION; POWERS OF COURT; RIGHTS OF DISSENTER.
1. If a demand for payment remains unsettled, the subject corporation
shall commence a proceeding within 60 days after receiving the demand and
petition the court to determine the fair value of the shares and accrued
interest. If the subject corporation does not commence the proceeding within the
60-day period, it shall pay each dissenter whose demand remains unsettled the
amount demanded.
2. A subject corporation shall commence the proceeding in the district
court of the county where its registered office is located. If the subject
corporation is a foreign entity without a resident agent in the state, it shall
commence the proceeding in the county where the registered office of the
domestic corporation merged with or whose shares were acquired by the foreign
entity was located.
3. The subject corporation shall make all dissenters, whether or not
residents of Nevada, whose demands remain unsettled, parties to the proceeding
as in an action against their shares. All parties must be served with a copy of
the petition. Nonresidents may be served by registered or certified mail or by
publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced
under subsection 2 is plenary and exclusive. The court may appoint one or more
persons as appraisers to receive evidence and recommend a decision on the
question of fair value. The appraisers have the powers described in the order
appointing them, or any amendment thereto. The dissenters are entitled to the
same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to a
judgment:
(a) For the amount, if any, by which the court finds the fair value of his
shares, plus interest, exceeds the amount paid by the subject corporation; or
(b) For the fair value, plus accrued interest, of his after-acquired
shares for which the subject corporation elected to withhold payment pursuant to
NRS 92A.470.
- ------------
(Added to NRS by 1995, 2091)
NRS 92A.500 LEGAL PROCEEDING TO DETERMINE FAIR VALUE: ASSESSMENT OF COSTS
AND FEES.
1. The court in a proceeding to determine fair value shall determine all
of the costs of the proceeding, including the reasonable compensation and
expenses of any appraisers appointed by the court. The court shall assess the
costs against the subject corporation, except that the court may assess costs
against all or some of the dissenters, in amounts the court finds equitable, to
the extent the court finds the dissenters acted arbitrarily, vexatiously or not
in good faith in demanding payment.
2. The court may also assess the fees and expenses of the counsel and
experts for the respective parties, in amounts the court finds equitable:
(a) Against the subject corporation and in favor of all dissenters if the
court finds the subject corporation did not substantially comply with the
requirements of NRS 92A.300 to 92A.500, inclusive; or
------------ -------
(b) Against either the subject corporation or a dissenter in favor of any
other party, if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously or not in good faith with
respect to the rights provided by NRS 92A.300 to 92A.500, inclusive.
------------ -------
3. If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that the fees
for those services should not be assessed against the subject corporation, the
court may award to those counsel reasonable fees to be paid out of the amounts
awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to NRS 92A.460, the court may
-----------
assess the costs against the subject corporation, except that the court may
assess costs against all or some of the dissenters who are parties to the
proceeding, in amounts the court finds equitable, to the extent the court finds
that such parties did not act in good faith in instituting the proceeding.
5. This section does not preclude any party in a proceeding commenced
pursuant to NRS 92A.460 or 92A.490 from applying the provisions of N.R.C.P. 68
----------- ------- -----------
or NRS 17.115.
-----------
(Added to NRS by 1995, 2092)
-21-
ATTACHMENT C
STOCK PLAN
INTERNATIONAL DEVELOPMENT CORP.
EMPLOYEE STOCK INCENTIVE PLAN FOR THE YEAR 2004
1. General Provisions.
-------------------
1.1 Purpose. This Stock Incentive Plan (the "Plan") is intended to
-------
allow designated officers and employees (all of whom are sometimes collectively
referred to herein as the "Employees," or individually as the "Employee") of
International Development Corp., a Nevada corporation (the "Company") and its
Subsidiaries (as that term is defined below) which they may have from time to
time (the Company and such Subsidiaries are referred to herein as the "Company")
to receive certain options (the "Stock Options") to purchase common stock of the
Company, par value $0.001 per share (the "Common Stock"), and to receive grants
of the Common Stock subject to certain restrictions (the "Awards"). As used in
this Plan, the term "Subsidiary" shall mean each corporation which is a
"subsidiary corporation" of the Company within the meaning of Section 424(f) of
the Internal Revenue Code of 1986, as amended (the "Code"). The purpose of this
Plan is to provide the Employees, who make significant and extraordinary
contributions to the long-term growth and performance of the Company, with
equity-based compensation incentives, and to attract and retain the Employees.
1.2 Administration.
--------------
1.2.1 The Plan shall be administered by the Compensation Committee (the
"Committee") of, or appointed by, the Board of Directors of the Company (the
"Board"). The Committee shall select one of its members as Chairman and shall
act by vote of a majority of a quorum, or by unanimous written consent. A
majority of its members shall constitute a quorum. The Committee shall be
governed by the provisions of the Company's Bylaws and of Nevada law applicable
to the Board, except as otherwise provided herein or determined by the Board.
1.2.2 The Committee shall have full and complete authority, in its
discretion, but subject to the express provisions of this Plan (a) to approve
the Employees nominated by the management of the Company to be granted Awards or
Stock Options; (b) to determine the number of Awards or Stock Options to be
granted to an Employee; (c) to determine the time or times at which Awards or
Stock Options shall be granted; (d) to establish the terms and conditions upon
which Awards or Stock Options may be exercised; (e) to remove or adjust any
restrictions and conditions upon Awards or Stock Options; (f) to specify, at the
time of grant, provisions relating to exercisability of Stock Options and to
accelerate or otherwise modify the exercisability of any Stock Options; and (g)
to adopt such rules and regulations and to make all other determinations deemed
necessary or desirable for the administration of this Plan. All interpretations
and constructions of this Plan by the Committee, and all of its actions
hereunder, shall be binding and conclusive on all persons for all purposes.
1.2.3 The Company hereby agrees to indemnify and hold harmless each
Committee member and each Employee, and the estate and heirs of such Committee
member or Employee, against all claims, liabilities, expenses, penalties,
damages or other pecuniary losses, including legal fees, which such Committee
member or Employee, his estate or heirs may suffer as a result of his
responsibilities, obligations or duties in connection with this Plan, to the
extent that insurance, if any, does not cover the payment of such items. No
member of the Committee or the Board shall be liable for any action or
determination made in good faith with respect to this Plan or any Award or Stock
Option granted pursuant to this Plan.
1.3 Eligibility and Participation. The Employees eligible under this
-------------------------------
Plan shall be approved by the Committee from those Employees who, in the opinion
of the management of the Company, are in positions which enable them to make
significant contributions to the long-term performance and growth of the
Company. In selecting the Employees to whom Award or Stock Options may be
granted, consideration shall be given to factors such as employment position,
duties and responsibilities, ability, productivity, length of service, morale,
interest in the Company and recommendations of supervisors.
1.4 Shares Subject to this Plan. The maximum number of shares of the
-----------------------------
Common Stock that may be issued pursuant to this Plan shall be 500,000,000
subject to adjustment pursuant to the provisions of Paragraph 4.1. If shares of
the Common Stock awarded or issued under this Plan are reacquired by the Company
due to a forfeiture
1
or for any other reason, such shares shall be cancelled and thereafter shall
again be available for purposes of this Plan. If a Stock Option expires,
terminates or is cancelled for any reason without having been exercised in full,
the shares of the Common Stock not purchased thereunder shall again be available
for purposes of this Plan. In the event that any outstanding Stock Option or
Award under this Plan for any reason expires or is terminated, the shares of
Common Stock allocable to the unexercised portion of the Stock Option or Award
shall be available for issuance under the International Development Corp.
Non-Employee Directors and Consultants Retainer Stock Plan for the Year 2004.
The Compensation Committee may, in its discretion, increase the number of shares
available for issuance under this Plan, while correspondingly decreasing the
number of shares available for issuance under International Development Corp.'s
Non-Employee Directors and Consultants Retainer Stock Plan for the Year 2004.
The Compensation Committee may, in its discretion, increase the number of shares
available for issuance under this Plan, while correspondingly decreasing the
number of shares available for issuance under International Development Corp.'s
Non-Employee Directors and Consultants Retainer Stock Plan for the Year 2004.
2. Provisions Relating to Stock Options.
----------------------------------------
2.1 Grants of Stock Options. The Committee may grant Stock Options in
------------------------
such amounts, at such times, and to the Employees nominated by the management of
the Company as the Committee, in its discretion, may determine. Stock Options
granted under this Plan shall constitute "incentive stock options" within the
meaning of Section 422 of the Code, if so designated by the Committee on the
date of grant. The Committee shall also have the discretion to grant Stock
Options which do not constitute incentive stock options, and any such Stock
Options shall be designated non-statutory stock options by the Committee on the
date of grant. The aggregate Fair Market Value (determined as of the time an
incentive stock option is granted) of the Common Stock with respect to which
incentive stock options are exercisable for the first time by any Employee
during any one calendar year (under all plans of the Company and any parent or
subsidiary of the Company) may not exceed the maximum amount permitted under
Section 422 of the Code (currently, $100,000.00). Non-statutory stock options
shall not be subject to the limitations relating to incentive stock options
contained in the preceding sentence. Each Stock Option shall be evidenced by a
written agreement (the "Option Agreement") in a form approved by the Committee,
which shall be executed on behalf of the Company and by the Employee to whom the
Stock Option is granted, and which shall be subject to the terms and conditions
of this Plan. In the discretion of the Committee, Stock Options may include
provisions (which need not be uniform), authorized by the Committee in its
discretion, that accelerate an Employee's rights to exercise Stock Options
following a "Change in Control," upon termination of the Employee's employment
by the Company without "Cause" or by the Employee for "Good Reason," as such
terms are defined in Paragraph 3.1 hereof. The holder of a Stock Option shall
not be entitled to the privileges of stock ownership as to any shares of the
Common Stock not actually issued to such holder.
2.2 Purchase Price. The purchase price (the "Exercise Price") of
---------------
shares of the Common Stock subject to each Stock Option (the "Option Shares")
shall not be less than 85 percent of the Fair Market Value of the Common Stock
on the date of the grant of the option. For an Employee holding greater than 10
percent of the total voting power of all stock of the Company, either Common or
Preferred, the Exercise Price of an incentive stock option shall be at least 110
percent of the Fair Market Value of the Common Stock on the date of the grant of
the option. As used herein, "Fair Market Value" means the mean between the
highest and lowest reported sales prices of the Common Stock on the New York
Stock Exchange Composite Tape or, if not listed on such exchange, on any other
national securities exchange on which the Common Stock is listed or on The
Nasdaq Stock Market, or, if not so listed on any other national securities
exchange or The Nasdaq Stock Market, then the average of the bid price of the
Common Stock during the last five trading days on the OTC Bulletin Board
immediately preceding the last trading day prior to the date with respect to
which the Fair Market Value is to be determined. If the Common Stock is not
then publicly traded, then the Fair Market Value of the Common Stock shall be
the book value of the Company per share as determined on the last day of March,
June, September, or December in any year closest to the date when the
determination is to be made. For the purpose of determining book value
hereunder, book value shall be determined by adding as of the applicable date
called for herein the capital, surplus, and undivided profits of the Company,
and after having deducted any reserves theretofore established; the sum of these
items shall be divided by the number of shares of the Common Stock outstanding
as of said date, and the quotient thus obtained shall represent the book value
of each share of the Common Stock of the Company.
2.3 Option Period. The Stock Option period (the "Term") shall commence
-------------
on the date of grant of the Stock Option and shall be 10 years or such shorter
period as is determined by the Committee. Each Stock Option
2
shall provide that it is exercisable over its term in such periodic installments
as the Committee may determine, subject to the provisions of Paragraph 2.4.1.
Section 16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") exempts persons normally subject to the reporting requirements of Section
16(a) of the Exchange Act (the "Section 16 Reporting Persons") pursuant to a
qualified employee stock option plan from the normal requirement of not selling
until at least six months and one day from the date the Stock Option is granted.
2.4 Exercise of Options.
---------------------
2.4.1 Each Stock Option may be exercised in whole or in part (but not
as to fractional shares) by delivering it for surrender or endorsement to the
Company, attention of the Corporate Secretary, at the principal office of the
Company, together with payment of the Exercise Price and an executed Notice and
Agreement of Exercise in the form prescribed by Paragraph 2.4.2. Payment may be
made (a) in cash, (b) by cashier's or certified check, (c) by surrender of
previously owned shares of the Common Stock valued pursuant to Paragraph 2.2 (if
the Committee authorizes payment in stock in its discretion), (d) by withholding
from the Option Shares which would otherwise be issuable upon the exercise of
the Stock Option that number of Option Shares equal to the exercise price of the
Stock Option, if such withholding is authorized by the Committee in its
discretion, or (e) in the discretion of the Committee, by the delivery to the
Company of the optionee's promissory note secured by the Option Shares, bearing
interest at a rate sufficient to prevent the imputation of interest under
Sections 483 or 1274 of the Code, and having such other terms and conditions as
may be satisfactory to the Committee. Subject to the provisions of this
Paragraph 2.4 and Paragraph 2.5, the Employee has the right to exercise his or
her Stock Options at the rate of at least 20 percent per year over five years
from the date the Stock Option is granted.
2.4.2 Exercise of each Stock Option is conditioned upon the agreement
of the Employee to the terms and conditions of this Plan and of such Stock
Option as evidenced by the Employee's execution and delivery of a Notice and
Agreement of Exercise in a form to be determined by the Committee in its
discretion. Such Notice and Agreement of Exercise shall set forth the agreement
of the Employee that (a) no Option Shares will be sold or otherwise distributed
in violation of the Securities Act of 1933, as amended (the "Securities Act") or
any other applicable federal or state securities laws, (b) each Option Share
certificate may be imprinted with legends reflecting any applicable federal and
state securities law restrictions and conditions, (c) the Company may comply
with said securities law restrictions and issue "stop transfer" instructions to
its Transfer Agent and Registrar without liability, (d) if the Employee is a
Section 16 Reporting Person, the Employee will furnish to the Company a copy of
each Form 4 or Form 5 filed by said Employee and will timely file all reports
required under federal securities laws, and (e) the Employee will report all
sales of Option Shares to the Company in writing on a form prescribed by the
Company.
2.4.3 No Stock Option shall be exercisable unless and until any
applicable registration or qualification requirements of federal and state
securities laws, and all other legal requirements, have been fully complied
with. At no time shall the total number of securities issuable upon exercise of
all outstanding options under this Plan, and the total number of securities
provided for under any bonus or similar plan or agreement of the Company exceed
a number of securities which is equal to 30 percent of the then outstanding
securities of the Company, unless a percentage higher than 30 percent is
approved by at least two-thirds of the outstanding securities entitled to vote.
The Company will use reasonable efforts to maintain the effectiveness of a
Registration Statement under the Securities Act for the issuance of Stock
Options and shares acquired thereunder, but there may be times when no such
Registration Statement will be currently effective. The exercise of Stock
Options may be temporarily suspended without liability to the Company during
times when no such Registration Statement is currently effective, or during
times when, in the reasonable opinion of the Committee, such suspension is
necessary to preclude violation of any requirements of applicable law or
regulatory bodies having jurisdiction over the Company. If any Stock Option
would expire for any reason except the end of its term during such a suspension,
then if exercise of such Stock Option is duly tendered before its expiration,
such Stock Option shall be exercisable and exercised (unless the attempted
exercise is withdrawn) as of the first day after the end of such suspension.
The Company shall have no obligation to file any Registration Statement covering
resales of Option Shares.
2.5 Continuous Employment. Except as provided in Paragraph 2.7 below,
----------------------
an Employee may not exercise a Stock Option unless from the date of grant to the
date of exercise the Employee remains continuously in the employ of the Company.
For purposes of this Paragraph 2.5, the period of continuous employment of an
Employee with the Company shall be deemed to include (without extending the term
of the Stock Option) any
3
period during which the Employee is on leave of absence with the consent of the
Company, provided that such leave of absence shall not exceed three months and
that the Employee returns to the employ of the Company at the expiration of such
leave of absence. If the Employee fails to return to the employ of the Company
at the expiration of such leave of absence, the Employee's employment with the
Company shall be deemed terminated as of the date such leave of absence
commenced. The continuous employment of an Employee with the Company shall also
be deemed to include any period during which the Employee is a member of the
Armed Forces of the United States, provided that the Employee returns to the
employ of the Company within 90 days (or such longer period as may be prescribed
by law) from the date the Employee first becomes entitled to a discharge from
military service. If an Employee does not return to the employ of the Company
within 90 days (or such longer period as may be prescribed by law) from the date
the Employee first becomes entitled to a discharge from military service, the
Employee's employment with the Company shall be deemed to have terminated as of
the date the Employee's military service ended.
2.6 Restrictions on Transfer. Each Stock Option granted under this
--------------------------
Plan shall be transferable only by will or the laws of descent and distribution.
No interest of any Employee under this Plan shall be subject to attachment,
execution, garnishment, sequestration, the laws of bankruptcy or any other legal
or equitable process. Each Stock Option granted under this Plan shall be
exercisable during an Employee's lifetime only by the Employee or by the
Employee's legal representative.
2.7 Termination of Employment.
---------------------------
2.7.1 Upon an Employee's Retirement, Disability (both terms being
defined below) or death, (a) all Stock Options to the extent then presently
exercisable shall remain in full force and effect and may be exercised pursuant
to the provisions thereof, and (b) unless otherwise provided by the Committee,
all Stock Options to the extent not then presently exercisable by the Employee
shall terminate as of the date of such termination of employment and shall not
be exercisable thereafter. Unless employment is terminated for cause, as
defined by applicable law, the right to exercise in the event of termination of
employment, to the extent that the optionee is entitled to exercise on the date
the employment terminates as follows:
(i) At least six months from the date of termination if
termination was caused by death or disability.
(ii) At least 30 days from the date of termination if termination
was caused by other than death or disability.
2.7.2 Upon the termination of the employment of an Employee for any
reason other than those specifically set forth in Paragraph 2.7.1, (a) all Stock
Options to the extent then presently exercisable by the Employee shall remain
exercisable only for a period of 90 days after the date of such termination of
employment (except that the 90 day period shall be extended to 12 months if the
Employee shall die during such 90 day period), and may be exercised pursuant to
the provisions thereof, including expiration at the end of the fixed term
thereof, and (b) unless otherwise provided by the Committee, all Stock Options
to the extent not then presently exercisable by the Employee shall terminate as
of the date of such termination of employment and shall not be exercisable
thereafter.
2.7.3 For purposes of this Plan:
(a) "Retirement" shall mean an Employee's retirement from the
employ of the Company on or after the date on which the Employee attains the age
of 65 years; and
(b) "Disability" shall mean total and permanent incapacity of an
Employee, due to physical impairment or legally established mental incompetence,
to perform the usual duties of the Employee's employment with the Company, which
disability shall be determined (i) on medical evidence by a licensed physician
designated by the Committee, or (ii) on evidence that the Employee has become
entitled to receive primary benefits as a disabled employee under the Social
Security Act in effect on the date of such disability.
4
3. Provisions Relating to Awards.
3.1 Grant of Awards. Subject to the provisions of this Plan, the
-----------------
Committee shall have full and complete authority, in its discretion, but subject
to the express provisions of this Plan, to (1) grant Awards pursuant to this
Plan, (2) determine the number of shares of the Common Stock subject to each
Award (the "Award Shares"), (3) determine the terms and conditions (which need
not be identical) of each Award, including the consideration (if any) to be paid
by the Employee for such Common Stock, which may, in the Committee's discretion,
consist of the delivery of the Employee's promissory note meeting the
requirements of Paragraph 2.4.1, (4) establish and modify performance criteria
for Awards, and (5) make all of the determinations necessary or advisable with
respect to Awards under this Plan. Each Award under this Plan shall consist of
a grant of shares of the Common Stock subject to a restriction period (after
which the restrictions shall lapse), which shall be a period commencing on the
date the Award is granted and ending on such date as the Committee shall
determine (the "Restriction Period"). The Committee may provide for the lapse
of restrictions in installments, for acceleration of the lapse of restrictions
upon the satisfaction of such performance or other criteria or upon the
occurrence of such events as the Committee shall determine, and for the early
expiration of the Restriction Period upon an Employee's death, Disability or
Retirement as defined in Paragraph 2.7.3, or, following a Change of Control,
upon termination of an Employee's employment by the Company without "Cause" or
by the Employee for "Good Reason," as those terms are defined herein. For
purposes of this Plan:
"Change of Control" shall be deemed to occur (a) on the date the Company
first has actual knowledge that any person (as such term is used in Sections
13(d) and 14(d)(2) of the Exchange Act) has become the beneficial owner (as
defined in Rule 13(d)-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 40 percent or more of the combined voting
power of the Company's then outstanding securities, or (b) on the date the
stockholders of the Company approve (i) a merger of the Company with or into any
other corporation in which the Company is not the surviving corporation or in
which the Company survives as a subsidiary of another corporation, (ii) a
consolidation of the Company with any other corporation, or (iii) the sale or
disposition of all or substantially all of the Company's assets or a plan of
complete liquidation.
"Cause," when used with reference to termination of the employment of an
Employee by the Company for "Cause," shall mean:
(a) The Employee's continuing willful and material breach of
his duties to the Company after he receives a demand from the Chief Executive of
the Company specifying the manner in which he has willfully and materially
breached such duties, other than any such failure resulting from Disability of
the Employee or his resignation for "Good Reason," as defined herein; or
(b) The conviction of the Employee of a felony; or
(c) The Employee's commission of fraud in the course of his
employment with the Company, such as embezzlement or other material and
intentional violation of law against the Company; or
(d) The Employee's gross misconduct causing material harm to
the Company.
"Good Reason" shall mean any one or more of the following, occurring
following or in connection with a Change of Control and within 90 days prior to
the Employee's resignation, unless the Employee shall have consented thereto in
writing:
(a) The assignment to the Employee of duties inconsistent
with his executive status prior to the Change of Control or a substantive change
in the officer or officers to whom he reports from the officer or officers to
whom he reported immediately prior to the Change of Control; or
(b) The elimination or reassignment of a majority of the
duties and responsibilities that were assigned to the Employee immediately prior
to the Change of Control; or
5
(c) A reduction by the Company in the Employee's annual base
salary as in effect immediately prior to the Change of Control; or
(d) The Company requiring the Employee to be based anywhere
outside a 35-mile radius from his place of employment immediately prior to the
Change of Control, except for required travel on the Company's business to an
extent substantially consistent with the Employee's business travel obligations
immediately prior to the Change of Control; or
(e) The failure of the Company to grant the Employee a
performance bonus reasonably equivalent to the same percentage of salary the
Employee normally received prior to the Change of Control, given comparable
performance by the Company and the Employee; or
(f) The failure of the Company to obtain a satisfactory
Assumption Agreement (as defined in Paragraph 4.13 of this Plan) from a
successor, or the failure of such successor to perform such Assumption
Agreement.
3.2 Incentive Agreements. Each Award granted under this Plan shall be
---------------------
evidenced by a written agreement (an "Incentive Agreement") in a form approved
by the Committee and executed by the Company and the Employee to whom the Award
is granted. Each Incentive Agreement shall be subject to the terms and
conditions of this Plan and other such terms and conditions as the Committee may
specify.
3.3 Amendment, Modification and Waiver of Restrictions. The Committee
---------------------------------------------------
may modify or amend any Award under this Plan or waive any restrictions or
conditions applicable to the Award; provided, however, that the Committee may
not undertake any such modifications, amendments or waivers if the effect
thereof materially increases the benefits to any Employee, or adversely affects
the rights of any Employee without his consent.
3.4 Terms and Conditions of Awards. Upon receipt of an Award of shares
------------------------------
of the Common Stock under this Plan, even during the Restriction Period, an
Employee shall be the holder of record of the shares and shall have all the
rights of a stockholder with respect to such shares, subject to the terms and
conditions of this Plan and the Award.
3.4.1 Except as otherwise provided in this Paragraph 3.4, no shares of
the Common Stock received pursuant to this Plan shall be sold, exchanged,
transferred, pledged, hypothecated or otherwise disposed of during the
Restriction Period applicable to such shares. Any purported disposition of such
Common Stock in violation of this Paragraph 3.4 shall be null and void.
3.4.2 If an Employee's employment with the Company terminates prior to
the expiration of the Restriction Period for an Award, subject to any provisions
of the Award with respect to the Employee's death, Disability or Retirement, or
Change of Control, all shares of the Common Stock subject to the Award shall be
immediately forfeited by the Employee and reacquired by the Company, and the
Employee shall have no further rights with respect to the Award. In the
discretion of the Committee, an Incentive Agreement may provide that, upon the
forfeiture by an Employee of Award Shares, the Company shall repay to the
Employee the consideration (if any) which the Employee paid for the Award Shares
on the grant of the Award. In the discretion of the Committee, an Incentive
Agreement may also provide that such repayment shall include an interest factor
on such consideration from the date of the grant of the Award to the date of
such repayment.
3.4.3 The Committee may require under such terms and conditions as it
deems appropriate or desirable that (a) the certificates for the Common Stock
delivered under this Plan are to be held in custody by the Company or a person
or institution designated by the Company until the Restriction Period expires,
(b) such certificates shall bear a legend referring to the restrictions on the
Common Stock pursuant to this Plan, and (c) the Employee shall have delivered to
the Company a stock power endorsed in blank relating to the Common Stock.
6
4. Miscellaneous Provisions.
4.1 Adjustments Upon Change in Capitalization.
---------------------------------------------
4.1.1 The number and class of shares subject to each outstanding Stock
Option, the Exercise Price thereof (and the total price), the maximum number of
Stock Options that may be granted under this Plan, the minimum number of shares
as to which a Stock Option may be exercised at any one time, and the number and
class of shares subject to each outstanding Award, shall not be proportionately
adjusted in the event of any increase or decrease in the number of the issued
shares of the Common Stock which results from a split-up or consolidation of
shares, payment of a stock dividend or dividends exceeding a total of five
percent for which the record dates occur in any one fiscal year, a
recapitalization (other than the conversion of convertible securities according
to their terms), a combination of shares or other like capital adjustment, so
that (a) upon exercise of the Stock Option, the Employee shall receive the
number and class of shares the Employee would have received prior to any such
capital adjustment becoming effective, and (b) upon the lapse of restrictions of
the Award Shares, the Employee shall receive the number and class of shares the
Employee would have received prior to any such capital adjustment becoming
effective.
4.1.2 Upon a reorganization, merger or consolidation of the Company
with one or more corporations as a result of which the Company is not the
surviving corporation or in which the Company survives as a wholly-owned
subsidiary of another corporation, or upon a sale of all or substantially all of
the property of the Company to another corporation, or any dividend or
distribution to stockholders of more than 10 percent of the Company's assets,
adequate adjustment or other provisions shall be made by the Company or other
party to such transaction so that there shall remain and/or be substituted for
the Option Shares and Award Shares provided for herein, the shares, securities
or assets which would have been issuable or payable in respect of or in exchange
for such Option Shares and Award Shares then remaining, as if the Employee had
been the owner of such shares as of the applicable date. Any securities so
substituted shall be subject to similar successive adjustments.
4.2 Withholding Taxes. The Company shall have the right at the time of
-----------------
exercise of any Stock Option, the grant of an Award, or the lapse of
restrictions on Award Shares, to make adequate provision for any federal, state,
local or foreign taxes which it believes are or may be required by law to be
withheld with respect to such exercise (the "Tax Liability"), to ensure the
payment of any such Tax Liability. The Company may provide for the payment of
any Tax Liability by any of the following means or a combination of such means,
as determined by the Committee in its sole and absolute discretion in the
particular case (1) by requiring the Employee to tender a cash payment to the
Company, (2) by withholding from the Employee's salary, (3) by withholding from
the Option Shares which would otherwise be issuable upon exercise of the Stock
Option, or from the Award Shares on their grant or date of lapse of
restrictions, that number of Option Shares or Award Shares having an aggregate
Fair Market Value (determined in the manner prescribed by Paragraph 2.2) as of
the date the withholding tax obligation arises in an amount which is equal to
the Employee's Tax Liability or (4) by any other method deemed appropriate by
the Committee. Satisfaction of the Tax Liability of a Section 16 Reporting
Person may be made by the method of payment specified in clause (3) above only
if the following two conditions are satisfied:
(a) The withholding of Option Shares or Award Shares and the
exercise of the related Stock Option occur at least six months and one day
following the date of grant of such Stock Option or Award; and
(b) The withholding of Option Shares or Award Shares is made
either (i) pursuant to an irrevocable election (the "Withholding Election") made
by the Employee at least six months in advance of the withholding of Options
Shares or Award Shares, or (ii) on a day within a 10-day "window period"
beginning on the third business day following the date of release of the
Company's quarterly or annual summary statement of sales and earnings.
Anything herein to the contrary notwithstanding, a Withholding Election may
be disapproved by the Committee at any time.
7
4.3 Relationship to Other Employee Benefit Plans. Stock Options and
-----------------------------------------------
Awards granted hereunder shall not be deemed to be salary or other compensation
to any Employee for purposes of any pension, thrift, profit-sharing, stock
purchase or any other employee benefit plan now maintained or hereafter adopted
by the Company.
4.4 Amendments and Termination. The Board of Directors may at any time
--------------------------
suspend, amend or terminate this Plan. No amendment, except as provided in
Paragraph 3.3, or modification of this Plan may be adopted, except subject to
stockholder approval, which would (1) materially increase the benefits accruing
to the Employees under this Plan, (2) materially increase the number of
securities which may be issued under this Plan (except for adjustments pursuant
to Paragraph 4.1 hereof), or (3) materially modify the requirements as to
eligibility for participation in this Plan.
4.5 Successors in Interest. The provisions of this Plan and the
------------------------
actions of the Committee shall be binding upon all heirs, successors and assigns
of the Company and of the Employees.
4.6 Other Documents. All documents prepared, executed or delivered in
----------------
connection with this Plan (including, without limitation, Option Agreements and
Incentive Agreements) shall be, in substance and form, as established and
modified by the Committee; provided, however, that all such documents shall be
subject in every respect to the provisions of this Plan, and in the event of any
conflict between the terms of any such document and this Plan, the provisions of
this Plan shall prevail.
4.7 Fairness of the Repurchase Price. In the event that the Company
-----------------------------------
repurchases securities upon termination of employment pursuant to this Plan,
either: (a) the price will not be less than the fair market value of the
securities to be repurchased on the date of termination of employment, and the
right to repurchase will be exercised for cash or cancellation of purchase money
indebtedness for the securities within 90 days of termination of the employment
(or in the case of securities issued upon exercise of options after the date of
termination, within 90 days after the date of the exercise), and the right
terminates when the Company's securities become publicly traded, or (b) Company
will repurchase securities at the original purchase price, provided that the
right to repurchase at the original purchase price lapses at the rate of at
least 20 percent of the securities per year over five years from the date the
option is granted (without respect to the date the option was exercised or
became exercisable) and the right to repurchase must be exercised for cash or
cancellation of purchase money indebtedness for the securities within 90 days of
termination of employment (or in case of securities issued upon exercise of
options after the date of termination, within 90 days after the date of the
exercise).
4.8 No Obligation to Continue Employment. This Plan and the grants
----------------------------------------
which might be made hereunder shall not impose any obligation on the Company to
continue to employ any Employee. Moreover, no provision of this Plan or any
document executed or delivered pursuant to this Plan shall be deemed modified in
any way by any employment contract between an Employee (or other employee) and
the Company.
4.9 Misconduct of an Employee. Notwithstanding any other provision of
--------------------------
this Plan, if an Employee commits fraud or dishonesty toward the Company or
wrongfully uses or discloses any trade secret, confidential data or other
information proprietary to the Company, or intentionally takes any other action
which results in material harm to the Company, as determined by the Committee,
in its sole and absolute discretion, the Employee shall forfeit all rights and
benefits under this Plan.
4.10 Term of Plan. No Stock Option shall be exercisable, or Award
--------------
granted, unless and until the Directors of the Company have approved this Plan
and all other legal requirements have been met. This Plan was adopted by the
Board effective December 13, 2004. No Stock Options or Awards may be granted
under this Plan after December 13, 2014.
4.11 Governing Law. This Plan and all actions taken thereunder shall
--------------
be governed by, and construed in accordance with, the laws of the State of
Nevada.
4.12 Assumption Agreements. The Company will require each successor,
----------------------
(direct or indirect, whether by purchase, merger, consolidation or otherwise),
to all or substantially all of the business or assets of the Company, prior to
the consummation of each such transaction, to assume and agree to perform the
terms and provisions
8
remaining to be performed by the Company under each Incentive Agreement and
Stock Option and to preserve the benefits to the Employees thereunder. Such
assumption and agreement shall be set forth in a written agreement in form and
substance satisfactory to the Committee (an "Assumption Agreement"), and shall
include such adjustments, if any, in the application of the provisions of the
Incentive Agreements and Stock Options and such additional provisions, if any,
as the Committee shall require and approve, in order to preserve such benefits
to the Employees. Without limiting the generality of the foregoing, the
Committee may require an Assumption Agreement to include satisfactory
undertakings by a successor:
(a) To provide liquidity to the Employees at the end of the
Restriction Period applicable to the Common Stock awarded to them under this
Plan, or on the exercise of Stock Options;
(b) If the succession occurs before the expiration of any
period specified in the Incentive Agreements for satisfaction of performance
criteria applicable to the Common Stock awarded thereunder, to refrain from
interfering with the Company's ability to satisfy such performance criteria or
to agree to modify such performance criteria and/or waive any criteria that
cannot be satisfied as a result of the succession;
(c) To require any future successor to enter into an
Assumption Agreement; and
(d) To take or refrain from taking such other actions as the
Committee may require and approve, in its discretion.
4.13 Compliance with Rule 16b-3. Transactions under this Plan are
-----------------------------
intended to comply with all applicable conditions of Rule 16b-3 promulgated
under the Exchange Act. To the extent that any provision of this Plan or action
by the Committee fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
4.14 Information to Stockholders. The Company shall furnish to each of
---------------------------
its stockholders financial statements of the Company at least annually.
IN WITNESS WHEREOF, this Plan has been executed effective as of December
13, 2004.
INTERNATIONAL DEVELOPMENT CORP.
By /s/ Max Weissengruber
-------------------------------------------
Max Weissengruber, President
9
INTERNATIONAL DEVELOPMENT CORP.
NON-EMPLOYEE DIRECTORS AND CONSULTANTS RETAINER STOCK PLAN
FOR THE YEAR 2004
1. Introduction. This Plan shall be known as the "International
------------
Development Corp. Non-Employee Directors and Consultants Retainer Stock Plan for
the Year 2004," and is hereinafter referred to as the "Plan." The purposes of
this Plan are to enable International Development Corp., a Nevada corporation
(the "Company"), to promote the interests of the Company and its stockholders by
attracting and retaining non-employee Directors and Consultants capable of
furthering the future success of the Company and by aligning their economic
interests more closely with those of the Company's stockholders, by paying their
retainer or fees in the form of shares of the Company's common stock, par value
$0.001 per share (the "Common Stock").
2. Definitions. The following terms shall have the meanings set forth
-----------
below:
"Board" means the Board of Directors of the Company.
"Change of Control" has the meaning set forth in Paragraph 12(d) hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and the rules
and regulations thereunder. References to any provision of the Code or rule or
regulation thereunder shall be deemed to include any amended or successor
provision, rule or regulation.
"Committee" means the committee that administers this Plan, as more fully
defined in Paragraph 13 hereof.
"Common Stock" has the meaning set forth in Paragraph 1 hereof.
"Company" has the meaning set forth in Paragraph 1 hereof.
"Consultants" means Company's consultants and advisors only if: (i) they
are natural persons; (ii) they provide bona fide services to the Company; and
(iii) the services are not in connection with the offer or sale of securities in
a capital-raising transaction, and do not directly or indirectly promote or
maintain a market for the Company's securities.
"Deferral Election" has the meaning set forth in Paragraph 6 hereof.
"Deferred Stock Account" means a bookkeeping account maintained by the
Company for a Participant representing the Participant's interest in the shares
credited to such Deferred Stock Account pursuant to Paragraph 7 hereof.
"Delivery Date" has the meaning set forth in Paragraph 6 hereof.
"Director" means an individual who is a member of the Board of Directors of
the Company.
"Dividend Equivalent" for a given dividend or other distribution means a
number of shares of the Common Stock having a Fair Market Value, as of the
record date for such dividend or distribution, equal to the amount of cash, plus
the Fair Market Value on the date of distribution of any property, that is
distributed with respect to one share of the Common Stock pursuant to such
dividend or distribution; such Fair Market Value to be determined by the
Committee in good faith.
"Effective Date" has the meaning set forth in Paragraph 3 hereof.
"Exchange Act" has the meaning set forth in Paragraph 12(d) hereof.
1
"Fair Market Value" means the mean between the highest and lowest reported
sales prices of the Common Stock on the New York Stock Exchange Composite Tape
or, if not listed on such exchange, on any other national securities exchange on
which the Common Stock is listed or on The Nasdaq Stock Market, or, if not so
listed on any other national securities exchange or The Nasdaq Stock Market,
then the average of the bid price of the Common Stock during the last five
trading days on the OTC Bulletin Board immediately preceding the last trading
day prior to the date with respect to which the Fair Market Value is to be
determined. If the Common Stock is not then publicly traded, then the Fair
Market Value of the Common Stock shall be the book value of the Company per
share as determined on the last day of March, June, September, or December in
any year closest to the date when the determination is to be made. For the
purpose of determining book value hereunder, book value shall be determined by
adding as of the applicable date called for herein the capital, surplus, and
undivided profits of the Company, and after having deducted any reserves
theretofore established; the sum of these items shall be divided by the number
of shares of the Common Stock outstanding as of said date, and the quotient thus
obtained shall represent the book value of each share of the Common Stock of the
Company.
"Participant" has the meaning set forth in Paragraph 4 hereof.
"Payment Time" means the time when a Stock Retainer is payable to a
Participant pursuant to Paragraph 5 hereof (without regard to the effect of any
Deferral Election).
"Stock Retainer" has the meaning set forth in Paragraph 5 hereof.
"Third Anniversary" has the meaning set forth in Paragraph 6 hereof.
3. Effective Date of the Plan. This Plan was adopted by the Board
------------------------------
effective December 13, 2004 (the "Effective Date").
4. Eligibility. Each individual who is a Director or Consultant on the
-----------
Effective Date and each individual who becomes a Director or Consultant
thereafter during the term of this Plan, shall be a participant (the
"Participant") in this Plan, in each case during such period as such individual
remains a Director or Consultant and is not an employee of the Company or any of
its subsidiaries. Each credit of shares of the Common Stock pursuant to this
Plan shall be evidenced by a written agreement duly executed and delivered by or
on behalf of the Company and a Participant, if such an agreement is required by
the Company to assure compliance with all applicable laws and regulations.
5. Grants of Shares. Commencing on the Effective Date, the amount of
------------------
compensation for service to directors or consultants shall be payable in shares
of the Common Stock (the "Stock Retainer") pursuant to this Plan. The deemed
issuance price of shares of the Common Stock subject to each Stock Retainer
shall not be less than 85 percent of the Fair Market Value of the Common Stock
on the date of the grant. In the case of any person who owns securities
possessing more than ten percent of the combined voting power of all classes of
securities of the issuer or its parent or subsidiaries possessing voting power,
the deemed issuance price of shares of the Common Stock subject to each Stock
Retainer shall be at least 100 percent of the Fair Market Value of the Common
Stock on the date of the grant.
6. Deferral Option. From and after the Effective Date, a Participant
----------------
may make an election (a "Deferral Election") on an annual basis to defer
delivery of the Stock Retainer specifying which one of the following ways the
Stock Retainer is to be delivered (a) on the date which is three years after the
Effective Date for which it was originally payable (the "Third Anniversary"),
(b) on the date upon which the Participant ceases to be a Director or Consultant
for any reason (the "Departure Date") or (c) in five equal annual installments
commencing on the Departure Date (the "Third Anniversary" and "Departure Date"
each being referred to herein as a "Delivery Date"). Such Deferral Election
shall remain in effect for each Subsequent Year unless changed, provided that,
any Deferral Election with respect to a particular Year may not be changed less
than six months prior to the beginning of such Year, and provided, further, that
no more than one Deferral Election or change thereof may be made in any Year.
2
Any Deferral Election and any change or revocation thereof shall be made by
delivering written notice thereof to the Committee no later than six months
prior to the beginning of the Year in which it is to be effected; provided that,
with respect to the Year beginning on the Effective Date, any Deferral Election
or revocation thereof must be delivered no later than the close of business on
the 30th day after the Effective Date.
7. Deferred Stock Accounts. The Company shall maintain a Deferred
-------------------------
Stock Account for each Participant who makes a Deferral Election to which shall
be credited, as of the applicable Payment Time, the number of shares of the
Common Stock payable pursuant to the Stock Retainer to which the Deferral
Election relates. So long as any amounts in such Deferred Stock Account have
not been delivered to the Participant under Paragraph 8 hereof, each Deferred
Stock Account shall be credited as of the payment date for any dividend paid or
other distribution made with respect to the Common Stock, with a number of
shares of the Common Stock equal to (a) the number of shares of the Common Stock
shown in such Deferred Stock Account on the record date for such dividend or
distribution multiplied by (b) the Dividend Equivalent for such dividend or
distribution.
8. Delivery of Shares.
--------------------
(a) The shares of the Common Stock in a Participant's Deferred Stock
Account with respect to any Stock Retainer for which a Deferral Election has
been made (together with dividends attributable to such shares credited to such
Deferred Stock Account) shall be delivered in accordance with this Paragraph 8
as soon as practicable after the applicable Delivery Date. Except with respect
to a Deferral Election pursuant to Paragraph 6 hereof, or other agreement
between the parties, such shares shall be delivered at one time; provided that,
if the number of shares so delivered includes a fractional share, such number
shall be rounded to the nearest whole number of shares. If the Participant has
in effect a Deferral Election pursuant to Paragraph 6 hereof, then such shares
shall be delivered in five equal annual installments (together with dividends
attributable to such shares credited to such Deferred Stock Account), with the
first such installment being delivered on the first anniversary of the Delivery
Date; provided that, if in order to equalize such installments, fractional
shares would have to be delivered, such installments shall be adjusted by
rounding to the nearest whole share. If any such shares are to be delivered
after the Participant has died or become legally incompetent, they shall be
delivered to the Participant's estate or legal guardian, as the case may be, in
accordance with the foregoing; provided that, if the Participant dies with a
Deferral Election pursuant to Paragraph 6 hereof in effect, the Committee shall
deliver all remaining undelivered shares to the Participant's estate
immediately. References to a Participant in this Plan shall be deemed to refer
to the Participant's estate or legal guardian, where appropriate.
(b) The Company may, but shall not be required to, create a grantor
trust or utilize an existing grantor trust (in either case, "Trust") to assist
it in accumulating the shares of the Common Stock needed to fulfill its
obligations under this Paragraph 8. However, Participants shall have no
beneficial or other interest in the Trust and the assets thereof, and their
rights under this Plan shall be as general creditors of the Company, unaffected
by the existence or nonexistence of the Trust, except that deliveries of Stock
Retainers to Participants from the Trust shall, to the extent thereof, be
treated as satisfying the Company's obligations under this Paragraph 8.
9. Share Certificates; Voting and Other Rights. The certificates for
---------------------------------------------
shares delivered to a Participant pursuant to Paragraph 8 above shall be issued
in the name of the Participant, and from and after the date of such issuance the
Participant shall be entitled to all rights of a stockholder with respect to the
Common Stock for all such shares issued in his name, including the right to vote
the shares, and the Participant shall receive all dividends and other
distributions paid or made with respect thereto.
10. General Restrictions.
---------------------
(a) Notwithstanding any other provision of this Plan or agreements
made pursuant thereto, the Company shall not be required to issue or deliver any
certificate or certificates for shares of the Common Stock under this Plan prior
to fulfillment of all of the following conditions:
(i) Listing or approval for listing upon official notice of
issuance of such shares on the New York Stock Exchange, Inc., or such other
securities exchange as may at the time be a market for the Common Stock;
3
(ii) Any registration or other qualification of such shares
under any state or federal law or regulation, or the maintaining in effect of
any such registration or other qualification which the Committee shall, upon the
advice of counsel, deem necessary or advisable; and
(iii) Obtaining any other consent, approval, or permit from
any state or federal governmental agency which the Committee shall, after
receiving the advice of counsel, determine to be necessary or advisable.
(b) Nothing contained in this Plan shall prevent the Company from
adopting other or additional compensation arrangements for the Participants.
11. Shares Available. Subject to Paragraph 12 below, the maximum
-----------------
number of shares of the Common Stock which may in the aggregate be paid as Stock
Retainers pursuant to this Plan is 50,000,000. Shares of the Common Stock
issuable under this Plan may be taken from treasury shares of the Company or
purchased on the open market. In the event that any outstanding Stock Retainer
under this Plan for any reason expires or is terminated, the shares of Common
Stock allocable to the unexercised portion of the Stock Retainer shall be
available for issuance under the International Development Corp. Employee Stock
Incentive Plan for the Year 2004. The Compensation Committee may, in its
discretion, increase the number of shares available for issuance under this
Plan, while correspondingly decreasing the number of shares available for
issuance under International Development Corp.'s Employee Stock Incentive Plan
for the Year 2004.
12. Adjustments; Change of Control.
---------------------------------
(a) In the event that there is, at any time after the Board adopts
this Plan, any change in corporate capitalization, such as a stock split,
combination of shares, exchange of shares, warrants or rights offering to
purchase the Common Stock at a price below its Fair Market Value,
reclassification, or recapitalization, or a corporate transaction, such as any
merger, consolidation, separation, including a spin-off, stock dividend, or
other extraordinary distribution of stock or property of the Company, any
reorganization (whether or not such reorganization comes within the definition
of such term in Section 368 of the Code) or any partial or complete liquidation
of the Company (each of the foregoing a "Transaction"), in each case other than
any such Transaction which constitutes a Change of Control (as defined below),
(i) the Deferred Stock Accounts shall not be credited with the amount and kind
of shares or other property which would have been received by a holder of the
number of shares of the Common Stock held in such Deferred Stock Account had
such shares of the Common Stock been outstanding as of the effectiveness of any
such Transaction, (ii) the number and kind of shares or other property subject
to this Plan shall also not be appropriately adjusted to reflect the
effectiveness of any such Transaction, and (iii) the Committee will not adjust
any other relevant provisions of this Plan to reflect any such transaction.
(b) If the shares of the Common Stock credited to the Deferred
Stock Accounts are converted pursuant to Paragraph 12(a) into another form of
property, references in this Plan to the Common Stock shall be deemed, where
appropriate, to refer to such other form of property, with such other
modifications as may be required for this Plan to operate in accordance with its
purposes. Without limiting the generality of the foregoing, references to
delivery of certificates for shares of the Common Stock shall be deemed to refer
to delivery of cash and the incidents of ownership of any other property held in
the Deferred Stock Accounts.
(c) In lieu of the adjustment contemplated by Paragraph 12(a), in
the event of a Change of Control, the following shall occur on the date of the
Change of Control (i) the shares of the Common Stock held in each Participant's
Deferred Stock Account shall be deemed to be issued and outstanding as of the
Change of Control; (ii) the Company shall forthwith deliver to each Participant
who has a Deferred Stock Account all of the shares of the Common Stock or any
other property held in such Participant's Deferred Stock Account; and (iii) this
Plan shall be terminated.
(d) For purposes of this Plan, Change of Control shall mean any of
the following events:
(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) (a
4
"Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 40 percent or more of either (1) the then outstanding
shares of the Common Stock of the Company (the "Outstanding Company Common
Stock"), or (2) the combined voting power of then outstanding voting securities
of the Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that the following
acquisitions shall not constitute a Change of Control (A) any acquisition
directly from the Company (excluding an acquisition by virtue of the exercise of
a conversion privilege unless the security being so converted was itself
acquired directly from the Company), (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or (D)
any acquisition by any corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or consolidation, the
conditions described in clauses (A), (B) and (C) of paragraph (iii) of this
Paragraph 12(d) are satisfied; or
(ii) Individuals who, as of the date hereof, constitute the
Board of the Company (as of the date hereof, "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided, however, that
any individual becoming a director subsequent to the date hereof whose election,
or nomination for election by the Company's stockholders, was approved by a vote
of at least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board; or
(iii) Approval by the stockholders of the Company of a
reorganization, merger, binding share exchange or consolidation, unless,
following such reorganization, merger, binding share exchange or consolidation
(A) more than 60 percent of, respectively, then outstanding shares of common
stock of the corporation resulting from such reorganization, merger, binding
share exchange or consolidation and the combined voting power of then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such reorganization, merger,
binding share exchange or consolidation in substantially the same proportions as
their ownership, immediately prior to such reorganization, merger, binding share
exchange or consolidation, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no Person
(excluding the Company, any employee benefit plan (or related trust) of the
Company or such corporation resulting from such reorganization, merger, binding
share exchange or consolidation and any Person beneficially owning, immediately
prior to such reorganization, merger, binding share exchange or consolidation,
directly or indirectly, 20 percent or more of the Outstanding Company Common
Stock or Outstanding Company Voting Securities, as the case may be) beneficially
owns, directly or indirectly, 20 percent or more of, respectively, then
outstanding shares of common stock of the corporation resulting from such
reorganization, merger, binding share exchange or consolidation or the combined
voting power of then outstanding voting securities of such corporation entitled
to vote generally in the election of directors, and (C) at least a majority of
the members of the board of directors of the corporation resulting from such
reorganization, merger, binding share exchange or consolidation were members of
the Incumbent Board at the time of the execution of the initial agreement
providing for such reorganization, merger, binding share exchange or
consolidation; or
(iv) Approval by the stockholders of the Company of (1) a
complete liquidation or dissolution of the Company, or (2) the sale or other
disposition of all or substantially all of the assets of the Company, other than
to a corporation, with respect to which following such sale or other
disposition, (A) more than 60 percent of, respectively, then outstanding shares
of common stock of such corporation and the combined voting power of then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no Person
(excluding the Company and any employee benefit plan (or related trust) of the
Company or such corporation and any Person beneficially owning, immediately
prior to such sale or other disposition, directly or indirectly, 20 percent or
more of the Outstanding Company Common Stock
5
or Outstanding Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 20 percent or more of, respectively, then outstanding
shares of common stock of such corporation and the combined voting power of then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors, and (C) at least a majority of the members of the
board of directors of such corporation were members of the Incumbent Board at
the time of the execution of the initial agreement or action of the Board
providing for such sale or other disposition of assets of the Company.
13. Administration; Amendment and Termination.
--------------------------------------------
(a) This Plan shall be administered by a committee consisting of
two members who shall be the current directors of the Company or senior
executive officers or other directors who are not Participants as may be
designated by the Chief Executive Officer (the "Committee"), which shall have
full authority to construe and interpret this Plan, to establish, amend and
rescind rules and regulations relating to this Plan, and to take all such
actions and make all such determinations in connection with this Plan as it may
deem necessary or desirable.
(b) The Board may from time to time make such amendments to this
Plan, including to preserve or come within any exemption from liability under
Section 16(b) of the Exchange Act, as it may deem proper and in the best
interest of the Company without further approval of the Company's stockholders,
provided that, to the extent required under Nevada law or to qualify
transactions under this Plan for exemption under Rule 16b-3 promulgated under
the Exchange Act, no amendment to this Plan shall be adopted without further
approval of the Company's stockholders and, provided, further, that if and to
the extent required for this Plan to comply with Rule 16b-3 promulgated under
the Exchange Act, no amendment to this Plan shall be made more than once in any
six month period that would change the amount, price or timing of the grants of
the Common Stock hereunder other than to comport with changes in the Code, the
Employee Retirement Income Security Act of 1974, as amended, or the regulations
thereunder. The Board may terminate this Plan at any time by a vote of a
majority of the members thereof.
14. Restrictions on Transfer. Each Stock Option granted under this
--------------------------
Plan shall be transferable only by will or the laws of descent and distribution.
No interest of any Employee under this Plan shall be subject to attachment,
execution, garnishment, sequestration, the laws of bankruptcy or any other legal
or equitable process. Each Stock Option granted under this Plan shall be
exercisable during an Employee's lifetime only by the Employee or by the
Employee's legal representative.
15. Term of Plan. No shares of the Common Stock shall be issued,
--------------
unless and until the Directors of the Company have approved this Plan and all
other legal requirements have been met. This Plan was adopted by the Board
effective December 13, 2004, and shall expire on December 13, 2014.
16. Governing Law. This Plan and all actions taken thereunder shall be
-------------
governed by, and construed in accordance with, the laws of the State of Nevada.
17. Information to Stockholders. The Company shall furnish to each of
----------------------------
its stockholders financial statements of the Company at least annually.
18. Miscellaneous.
-------------
(a) Nothing in this Plan shall be deemed to create any obligation
on the part of the Board to nominate any Director for reelection by the
Company's stockholders or to limit the rights of the stockholders to remove any
Director.
(b) The Company shall have the right to require, prior to the
issuance or delivery of any shares of the Common Stock pursuant to this Plan,
that a Participant make arrangements satisfactory to the Committee for the
withholding of any taxes required by law to be withheld with respect to the
issuance or delivery of such shares, including, without limitation, by the
withholding of shares that would otherwise be so issued or delivered, by
withholding from any other payment due to the Participant, or by a cash payment
to the Company by the Participant.
6
IN WITNESS WHEREOF, this Plan has been executed effective as of
December 13, 2004.
INTERNATIONAL DEVELOPMENT CORP.
By /s/ Max Weissengruber
---------------------------------------------
Max Weissengruber, President
7
ATTACHMENT D
FRESHWATER TECHNOLOGIES, INC.
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made this 29th day of September, 2005, by and between
INTERNATONAL DEVLOPMENT CORP., a Nevada corporation (the "Seller"), as the sole
stockholder of FRESHWATER TECHNOLOGIES, INC., a Nevada corporation (the
"Company"), and MAX WEISSENGRUBER ("Weissengruber") and D. BRIAN ROBERTSON
("Robertson").
WHEREAS, the Seller desires to sell to Weissengruber and Robertson one
share of common stock, constituting 100 percent of the issued and outstanding
shares of the capital stock of the Company, par value $0.001 per share (the
"Stock");
WHEREAS, Weissengruber and Robertson desire to purchase the Stock as
hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto agree as follows:
1. Purchase of Stock. At the closing of this Agreement (the
-------------------
"Closing"), upon the basis of the covenants, warranties and representations of
Weissengruber and Robertson set forth in this Agreement, the Seller will sell,
transfer, assign, and deliver to Weissengruber one-half share of the Stock and
to Robertson on-half share of the Stock. The Stock shall be delivered free and
clear of all liens and encumbrances, except as otherwise may be permitted
hereunder.
2. Purchase Price. The purchase price for the Stock shall be
--------------
$60,210.33 to be paid at the Closing as follows:
(a) The sum of $32,482.51 shall be paid in the form of forgiveness
of debt for salary by the Seller to Weissengruber, as well as the termination of
his employment agreement with the Seller, to be evidenced by a Release in the
form attached hereto as Attachment A.
-------------
(b) The sum of $27,727.82 shall be paid in the form of forgiveness
of debt for salary owing by the Seller to Robertson, as well as the termination
of his employment agreement with the Seller, to be evidenced by a Release in the
form attached hereto as Attachment A.
-------------
3. Restrictive Legend. All shares of the Stock to be delivered
------------------
hereunder shall be issued pursuant to an exemption from registration under
Section 4(2) of the Securities Act of 1933, as amended, inasmuch as such shares
will be issued for investment purposes without a view to distribution. All
shares of the Stock to be delivered hereunder shall bear a restrictive legend in
substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SHARES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS A REGISTRATION STATEMENT
WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT."
4. Representations and Warranties of the Seller. Where a
-------------------------------------------------
representation contained in this Agreement is qualified by the phrase "to the
best of the Seller's knowledge" (or words of similar import), such expression
means that, after having conducted a due diligence review, the Seller believes
the statement to be true, accurate, and complete in all material respects.
Knowledge shall not be imputed nor shall it include any matters which such
person should have known or should have been reasonably expected to have known.
The Seller represents and warrants to Weisengruber and Robertson as follows:
(a) Power and Authority. The Seller has full power and authority
--------------------
to execute, deliver, and perform this Agreement and all other agreements,
certificates or documents to be delivered in connection herewith, including,
without limitation, the other agreements, certificates and documents
contemplated hereby (collectively the "Other Agreements").
(b) Binding Effect. Upon execution and delivery by the Seller,
---------------
this Agreement and the Other Agreements shall be and constitute the valid,
binding and legal obligations of the Seller, enforceable against the Seller in
accordance with the terms hereof and thereof, except as the enforceability
hereof or thereof may be subject to the effect of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(c) No Consents. No consent, approval or authorization of, or
------------
registration, declaration or filing with any third party, including, but not
limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or obtained on or
prior to the Closing, be obtained or made by the Seller prior to the Closing to
authorize the execution, delivery and performance by the Seller of this
Agreement or the Other Agreements.
(d) Stock Ownership of the Stock to be Sold by the Seller. The
--------------------------------------------------------
Seller has good, absolute, and marketable title to one share of the Stock which
constitutes 100 percent of the issued and outstanding shares of the Stock. The
Seller has the complete and unrestricted right, power and authority to cause the
sale, transfer, and assignment of 100 shares of the Stock pursuant to this
Agreement. The delivery of the Stock to Weissengruber and Robertson as herein
contemplated will vest in Weissengruber and Robertson good, absolute and
marketable title to the share of the Stock as described herein, free and clear
of all liens, claims, encumbrances, and restrictions of every kind, except those
restrictions imposed by applicable securities laws or this Agreement.
(e) Organization and Standing of the Company. The Company is a
-------------------------------------------
duly organized and validly existing Nevada corporation in good standing, with
all requisite corporate power and authority to carry on the Business as
presently conducted. The Company has not qualified to do business in any other
jurisdiction.
(f) No Subsidiaries. The Company has no subsidiaries.
----------------
(g) Capitalization and Other Outstanding Shares. The Company is
---------------------------------------------
authorized by its Articles of Incorporation to issue 800,000,000 shares of the
Stock, par value $0.001 per share; and 100,000,000 preferred shares are
authorized, par value $0.001 per share. No other class of capital stock is
authorized. As of the date of this Agreement, the Company has duly and validly
issued and outstanding, fully paid, and non-assessable, one share of the Stock.
There are no outstanding options, contracts, commitments, warrants, preemptive
rights, agreements or any rights of any character affecting or relating in any
manner to the issuance of the Stock, or other securities or entitling anyone to
acquire the Stock or other securities of the Company.
(h) Representations and Warranties True and Complete. All
-----------------------------------------------------
representations and warranties of the Seller in this Agreement and the Other
Agreements are true, accurate and complete in all material respects as of the
Closing.
(i) No Knowledge of Default. The Seller has no knowledge that any
-----------------------
representations and warranties of Weissengruber and Robertson contained in this
Agreement or the Other Agreements are untrue, inaccurate or incomplete or that
Weissengruber or Robertson is in default under any term or provision of this
Agreement or the Other Agreements.
(j) No Untrue Statements. No representation or warranty by the
----------------------
Seller in this Agreement or in any writing furnished or to be furnished pursuant
hereto, contains or will contain any untrue statement of a material fact, or
omits, or will omit to state any material fact required to make the statements
herein or therein contained not misleading.
(k) Reliance. The foregoing representations and warranties are
--------
made by the Seller with the knowledge and expectation that Weissengruber and
Robertson are placing complete reliance thereon.
5. Representations and Warranties of Weissengruber and Robertson.
-------------------------------------------------------------------
Where a representation contained in this Agreement is qualified by the phrase
"to the best of Weissengruber and Robertson's knowledge" (or words of similar
import), such expression means that, after having conducted a due diligence
review, Weissengruber and Robertson believe the statement to be true, accurate,
and complete in all material respects. Knowledge shall not be imputed nor shall
it include any matters which such person should have known or should have been
reasonably expected to have known. Weissengruber and Robertson hereby represent
and warrant to the Seller as follows:
(a) Power and Authority. They have full power and authority to
---------------------
execute, deliver and perform this Agreement and the Other Agreements.
(b) Binding Effect. Upon execution and delivery by Weissengruber
---------------
and Robertson, this Agreement and the Other Agreements shall be and constitute
the valid, binding and legal obligations of Weissengruber and Robertson
enforceable against Weissengruber and Robertson in accordance with the terms
hereof or thereof, except as the enforceability hereof and thereof may be
subject to the effect of (i) any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally, and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) No Consents. No consent, approval or authorization of, or
------------
registration, declaration or filing with any third party, including, but not
limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or obtained on or
prior to the Closing, be obtained or made by Weisengruber and Robertson prior to
the Closing to authorize the execution, delivery and performance by Weisengruber
and Robertson of this Agreement or the Other Agreements.
(d) Representations and Warranties of Weissengruber and Robertson
--------------------------------------------------------------
True and Complete. All representations and warranties of Weissengruber and
- -------------------
Robertson in this Agreement and the Other Agreements are true, accurate and
complete in all material respects as of the Closing.
(e) No Knowledge of the Seller's Default. Weissengruber and
-----------------------------------------
Robertson have no knowledge that any of the Seller's representations and
warranties contained in this Agreement or the Other Agreements are untrue,
inaccurate or incomplete in any respect or that the Seller is in default under
any term or provision of this Agreement or the Other Agreements.
(f) No Untrue Statements. No representation or warranty by
----------------------
Weissengruber and Robertson in this Agreement or in any writing furnished or to
be furnished pursuant hereto, contains or will contain any untrue statement of a
material fact, or omits, or will omit to state any material fact required to
make the statements herein or therein contained not misleading.
(g) Reliance. The foregoing representations and warranties are
--------
made by Weissengruber and Robertson with the knowledge and expectation that the
Seller is placing complete reliance thereon.
6. The Nature and Survival of Representations, Covenants and
----------------------------------------------------------------
Warranties. All statements and facts contained in any memorandum, certificate,
- ----------
instrument, or other document delivered by or on behalf of the parties hereto
for information or reliance pursuant to this Agreement, shall be deemed
representations, covenants and warranties by the parties hereto under this
Agreement. All representations, covenants and warranties of the parties
shall survive the Closing and all inspections, examinations, or audits on behalf
of the parties, shall expire one year following the Closing.
7. Records of the Company. For a period of five years following the
-------------------------
Closing, the books of account and records of the Company pertaining to all
periods prior to the Closing shall be available for inspection by the Seller for
use in connection with tax audits.
8. Further Conveyances and Assurances. After the Closing, the Seller
------------------------------------
and Weissengruber and Robertson, each, will, without further cost or expense to,
or consideration of any nature from the other, execute and deliver, or cause to
be executed and delivered, to the other, such additional documentation and
instruments of transfer and conveyance, and will take such other and further
actions, as the other may reasonably request as more completely to sell,
transfer and assign to and fully vest in Weissengruber and Robertson ownership
of the Stock and the Stock and to consummate the transactions contemplated
hereby.
9. Closing. The Closing of this Agreement shall be on or before
-------
September 29, 2005, subject to acceleration or postponement from time to time as
the parties hereto may mutually agree.
10. Deliveries at the Closing by the Seller. At the Closing the
---------------------------------------------
Seller:
(a) Shall deliver to Weissengruber certificates representing
one-half share of the Stock, duly endorsed by the Seller, free and clear of all
liens, claims, encumbrances, and restrictions of every kind except for the
restrictive legend required by Paragraph 3 hereof.
(b) Shall deliver to Robertson certificates representing one-half
share of the Stock, duly endorsed by the Seller, free and clear of all liens,
claims, encumbrances, and restrictions of every kind except for the restrictive
legend required by Paragraph 3 hereof.
(c) The Seller shall deliver any other document which may be
necessary to carry out the intent of this Agreement.
11. Deliveries at the Closing by Weissengruber and Robertson. At the
----------------------------------------------------------
Closing, Weisengruber and Robertson shall deliver to the Seller the following:
(a) The purchase price, which shall be evidenced by the Releases
in the form attached hereto as Attachment A.
(b) Any other document which may be necessary to carry out the
intent of this Agreement.
12. No Assignment. This Agreement shall not be assignable by any party
-------------
without the prior written consent of the other parties, which consent shall be
subject to such parties' sole, absolute and unfettered discretion.
13. Attorney's Fees. In the event that it should become necessary for
----------------
any party entitled hereunder to bring suit against any other party to this
Agreement for enforcement of the covenants contained in this Agreement, the
parties hereby covenant and agree that the party or parties who are found to be
in violation of said covenants shall also be liable for all reasonable
attorney's fees and costs of court incurred by the other party or parties that
bring suit.
14. Benefit. All the terms and provisions of this Agreement shall be
--------
binding upon and inure to the benefit of and be enforceable by each of the
parties hereto, and his respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
15. Construction. Words of any gender used in this Agreement shall be
------------
held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise.
16. Waiver. No course of dealing on the part of any party hereto or
------
its agents, or any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
17. Cumulative Rights. The rights and remedies of any party under this
-----------------
Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
18. Invalidity. In the event any one or more of the provisions
----------
contained in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
19. Time of the Essence. Time is of the essence of this Agreement.
----------------------
20. Incorporation by Reference. The Attachments to this Agreement
----------------------------
referred to or included herein constitute integral parts to this Agreement and
are incorporated into this Agreement by this reference.
21. Controlling Agreement. In the event of any conflict between the
----------------------
terms of this Agreement or Attachments referred to herein, the terms of this
Agreement shall control.
22. Multiple Counterparts. This Agreement may be executed in one or
----------------------
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A facsimile transmission
of this signed Agreement or an email of this Agreement containing digitized
signatures shall be legal and binding on all parties hereto.
23. Law Governing. This Agreement shall be construed and governed by
--------------
the laws of the State of Nevada.
24. Entire Agreement. This instrument and the attachments hereto
-----------------
contain the entire understanding of the parties and may not be changed orally,
but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought.
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date first written above.
INTERNATONAL DEVLOPMENT CORP.
By /s/ Betty-Ann Harland
------------------------------------------------
Betty-Ann Harland, Chairman of the Board
/s/ Max Weissengruber
--------------------------------------------------
MAX WEISSENGRUBER
/s/ D. Brian Robertson
--------------------------------------------------
D. BRIAN ROBERTSON
Attachment:
- ----------
Attachment A Releases
RELEASE AND SETTLEMENT AGREEMENT
THIS AGREEMENT is made September 29th, 2005, by and between D. BRIAN
ROBERTSON ("Robertson") and INTERNATIONAL DEVELOPMENT CORP., a Nevada
corporation (the "Company").
WHEREAS, the Company is indebted to Robertson in the amount of $27,727.82
(the "Indebtedness"); and
WHEREAS, the Company and Robertson have executed an Employment Agreement
dated October 1, 2004 (the "Employment Agreement"); and
WHEREAS, Robertson and the Company want to terminate the Employment
Agreement and provide for the payment of the Indebtedness;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto do hereby agree as follows:
1. Settlement. As a result of the mutual covenants and considerations
----------
contained herein, and for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties, Robertson agrees to accept one half
of one common share constituting 50 percent of the issued and outstanding shares
of Freshwater Technologies, Inc., a Nevada corporation, in full payment of the
Indebtedness and the termination of the Employment Agreement.
2. General Release of the Company. As a result of the mutual covenants
------------------------------
and considerations contained herein, Robertson, individually and for his
assigns, predecessors, successors, joint venturers, heirs, executors,
administrators, personal representatives, and trustees, hereby releases and
forever discharges the Company, its assigns, predecessors, successors, joint
venturers, personal representatives, and any other person at interest therewith,
from and against any and all claims, demands, debts, interest, expenses, dues,
liens, liabilities, causes of action including court costs or attorney's fees,
or any other form of compensation, he may now own or hereafter acquire against
the Company, whether statutory, in contract, in tort, either at law or in
equity, including quantum meruit, as well as any other kind or character of
action on account of, growing out of, relating to or concerning, whether
directly or indirectly, the Indebtedness or the Employment Agreement, any other
instrument, agreement or transaction, whether written or oral, in connection
with the Indebtedness or the Employment Agreement, or any other transaction or
occurrence of any nature whatsoever occurring before the execution of this
Release and Settlement Agreement.
3. Acknowledgments. Robertson acknowledges and agrees that the release
---------------
and discharge set forth above is a GENERAL RELEASE. Robertson further
----------------
acknowledges that the general release set forth herein above is given
voluntarily, based solely upon the judgment of Robertson formed after
consultation with his attorney, and is not based upon any representations or
statements of any kind or nature whatsoever made by or on behalf of the Company
as to the liability, if any, of the Company, or the value of the Indebtedness or
the Employment Agreement or any other matter relating thereto. Additionally,
Robertson expressly states and acknowledges that no promise, agreement, or
representation, other than those expressed herein, have been made by the Company
to Robertson or his attorney in order to induce the execution of this Release
and Settlement Agreement.
4. Entire Agreement. This instrument contains the entire agreement of
-----------------
the parties and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Release and Settlement
Agreement on the date first written above.
/s/ D. Brian Robertson
----------------------
D. BRIAN ROBERTSON
INTERNATIONAL DEVELOPMENT CORP.
By /s/ Betty-Ann Harland
Betty-Ann Harland, Chairman of the Board
RELEASE AND SETTLEMENT AGREEMENT
THIS AGREEMENT is made September 29th, 2005, by and between MAX
WEISSENGRUBER ("Weissengruber") and INTERNATIONAL DEVELOPMENT CORP., a Nevada
corporation (the "Company").
WHEREAS, the Company is indebted to Weissengruber in the amount of
$32,482.51 (the "Indebtedness"); and
WHEREAS, the Company and Weissengruber have executed an Employment
Agreement dated October 1, 2004 (the "Employment Agreement"); and
WHEREAS, Weissengruber and the Company want to terminate the Employment
Agreement and provide for the payment of the Indebtedness;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto do hereby agree as follows:
1. Settlement. As a result of the mutual covenants and considerations
----------
contained herein, and for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties, Weissengruber agrees to accept
one-half of one common share, constituting 50 percent of the issued and
outstanding shares of Freshwater Technologies, Inc., a Nevada corporation, in
full payment of the Indebtedness and the termination of the Employment
Agreement.
2. General Release of the Company. As a result of the mutual covenants
------------------------------
and considerations contained herein, Weissengruber, individually and for his
assigns, predecessors, successors, joint venturers, heirs, executors,
administrators, personal representatives, and trustees, hereby releases and
forever discharges the Company, its assigns, predecessors, successors, joint
venturers, personal representatives, and any other person at interest therewith,
from and against any and all claims, demands, debts, interest, expenses, dues,
liens, liabilities, causes of action including court costs or attorney's fees,
or any other form of compensation, he may now own or hereafter acquire against
the Company, whether statutory, in contract, in tort, either at law or in
equity, including quantum meruit, as well as any other kind or character of
action on account of, growing out of, relating to or concerning, whether
directly or indirectly, the Indebtedness or the Employment Agreement, any other
instrument, agreement or transaction, whether written or oral, in connection
with the Indebtedness or the Employment Agreement, or any other transaction or
occurrence of any nature whatsoever occurring before the execution of this
Release and Settlement Agreement.
3. Acknowledgments. Weissengruber acknowledges and agrees that the
---------------
release and discharge set forth above is a GENERAL RELEASE. Weissengruber
---------------
further acknowledges that the general release set forth herein above is given
voluntarily, based solely upon the judgment of Weissengruber formed after
consultation with his attorney, and is not based upon any representations or
statements of any kind or nature whatsoever made by or on behalf of the Company
as to the liability, if any, of the Company, or the value of the Indebtedness or
the Employment Agreement or any other matter relating thereto. Additionally,
Weissengruber expressly states and acknowledges that no promise, agreement, or
representation, other than those expressed herein, have been made by the Company
to Weissengruber or his attorney in order to induce the execution of this
Release and Settlement Agreement.
4. Entire Agreement. This instrument contains the entire agreement of
-----------------
the parties and may not be changed orally, but only by an instrument in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
IN WITNESS WHEREOF, the parties have executed this Release and Settlement
Agreement on the date first written above.
/s/ Max Weissengruber
-------------------------------
MAX WEISSENGRUBER
INTERNATIONAL DEVELOPMENT CORP.
By /s/ Betty-Ann Harland
----------------------------------------
Betty-Ann Harland, Chairman of the Board