As filed with the Securities and Exchange Commission on July 6, 2006
Registration No. 333-___________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VALCOM, INC.
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(Exact name of registrant as specified in its charter)
Delaware 58-1700840
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
920 South Commerce Street
Las Vegas, Nevada 89106-4501
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(Address of principal executive offices) (Zip Code)
2006 STOCK COMPENSATION PLAN
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(full title of plan)
Vince Vellardita
920 South Commerce Street
Las Vegas, Nevada 89106
(702) 385-9000
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(Name, address, and telephone number of agent for service)
With a copy to:
Darrin M. Ocasio, Esq.
Yoel Goldfeder, Esq.
Sichenzia Ross Friedman Ference LLP
1065 Avenue of Americas
New York, NY 10018
(212) 930-9700
Fax: (212) 930-9725
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee
- ---------- ----------- ------------ ---------- -----------
Common Stock, 5,000,000(2) $0.10 $500,000 $53.50
$.001 par value
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(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, using the average
of the high and low price as reported on the Over-The-Counter Bulletin Board on
July 3, 2006.
(2) Includes shares issuable pursuant to the Company's 2006 Stock Compensation
Plan.
PART I
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in Item 1 will be sent or
given to participants in the Plan as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents are
not required to be and are not filed with the Securities and Exchange
Commission (the "SEC") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated by reference in
Item 3 of Part II of this Registration Statement (which documents are
incorporated by reference in this Section 10(a) Prospectus), other documents
required to be delivered to eligible employees, non-employee directors and
consultants, pursuant to Rule 428(b) are available without charge by
contacting:
Vince Vellardita, Chief Executive Officer
920 South Commerce Street
Las Vegas, Nevada 89106
(702) 385-9000
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed below. In addition, all documents subsequently
filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold, shall be deemed to
be incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents:
- - Reference is made to the Registrant's annual report on Form 10-KSB/A for the
year ended September 30, 2005, as filed with the SEC on February 22, 2006,
which is hereby incorporated by reference.
- - Reference is made to the Registrant's quarterly report on Form 10-QSB/A for
the quarter ended December 31, 2005, as filed with the SEC on February 23,
2006, which is hereby incorporated by reference.
- - Reference is made to the Registrant's quarterly report on Form 10-QSB for the
quarter ended March 31, 2006, as filed with the SEC on May 22, 2006, which is
hereby incorporated by reference.
- - Reference is made to Registrant's 8-Ks filed with the SEC on June 4, 2005,
July 11, 2005, July 26, 2005, December 19, 2005, and May 3, 2006, each of which
are hereby incorporated by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with this registration statement will be
passed upon for the Registrant by Sichenzia Ross Friedman Ference LLP, New
York, New York.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Certificate of Incorporation provide to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, that our
directors or officers shall not be personally liable to us or our shareholders
for damages for breach of such director's or officer's fiduciary duty. The
effect of this provision of our Certificate of Incorporation, as amended and
restated, is to eliminate our rights and our shareholders (through
shareholders' derivative suits on behalf of our company) to recover damages
against a director or officer for breach of the fiduciary duty of care as a
director or officer (including breaches resulting from negligent or grossly
negligent behavior), except under certain situations defined by statute. We
believe that the indemnification provisions in our Certificate of
Incorporation, as amended, are necessary to attract and retain qualified
persons as directors and officers.
Our By Laws also provide that the Board of Directors may also authorize us to
indemnify our employees or agents, and to advance the reasonable expenses of
such persons, to the same extent, following the same determinations and upon
the same conditions as are required for the indemnification of and advancement
of expenses to our directors and officers. As of the date of this Registration
Statement, the Board of Directors has not extended indemnification rights to
persons other than directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers or persons controlling us pursuant
to the foregoing provisions, or otherwise, we have been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Description
- ---------- -------------------------------------------------
4.1 2006 Stock Compensation Plan
5.1 Opinion of Sichenzia Ross Friedman Ference LLP
23.1 Consent of Sichenzia Ross Friedman Ference LLP is
included in Exhibit 5.1
23.2 Consent of Armando C. Ibarra, C.P.A.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-
effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (1)(i), and (1)(ii) do not apply if the
Registration Statement is on Form S-8 and if the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) That, for the purpose of determining liability under the Securities Act of
1933 to any purchaser:
(A) Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or
(b)(7) as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose
of providing the information required by Section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which the
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
(6) That, for the purpose of determining liability of a Registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities, each undersigned Registrant undertakes that in a primary offering
of securities of an undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to
the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any preliminary prospectus or prospectus of an undersigned Registrant
relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on
behalf of an undersigned Registrant or used or referred to by an undersigned
Registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about an undersigned Registrant or its
securities provided by or on behalf of an undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by an
undersigned Registrant to the purchaser.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements of an amendment to a filing on Form S-8 and authorized
this amendment to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Las Vegas, State of Nevada on July 6, 2006.
VALCOM, INC.
By: /s/ Vincent Vellardita
-----------------------------------------
Vincent Vellardita, President, Chief Executive Officer
(Principal Executive Officer) and Chairman of the Board Chief Financial
Officer and Principal Accounting Officer
In accordance with the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities stated.
Signature Title Date
/s/ Vincent Vellardita President, Chief Executive Officer, July 6, 2006
----------------------------------- and Chairman of the Board
Vincent Vellardita
/s/ Richard Shintaku Director July 6, 2006
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Richard Shintaku
/s/ Ian Adlington Director July 6, 2006
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Ian Adlington
Director
-----------------------------------
Bonnie Nelson
/s/ Sandra Markham Secretary and Treasurer July 6, 2006
-----------------------------------
Sandra Markham
EXHIBIT 5.1
SICHENZIA ROSS FRIEDMAN FERENCE LLP
1065 AVENUE OF THE AMERICAS
NEW YORK, NY 10018
TEL 212 930 9700
FAX 212 930 9725
July 6, 2006
VIA ELECTRONIC TRANSMISSION
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Re: Valcom, Inc.
Ladies and Gentlemen:
We refer to the registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"), filed by
Valcom, Inc., a Delaware corporation (the "Company"), with the Securities and
Exchange Commission on July 6, 2006.
We have examined the originals, photocopies, certified copies or other evidence
of such records of the Company, certificates of officers of the Company and
public officials, and other documents as we have deemed relevant and necessary
as a basis for the opinion hereinafter expressed. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as certified copies or photocopies and the authenticity of the
originals of such latter documents.
Based on our examination mentioned above, we are of the opinion that the
securities being registered to be sold pursuant to the Registration Statement
are duly authorized and will be, when sold in the manner described in the
Registration Statement, legally and validly issued, and fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving the foregoing consent, we do not hereby admit
that we are in the category of persons whose consent is required under Section
7 of the Act, or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
/s/ Sichenzia Ross Friedman Ference LLP
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Sichenzia Ross Friedman Ference LLP
EXHIBIT 4.1
VALCOM, INC.
2006 STOCK COMPENSATION PLAN
THIS VALCOM, INC. 2006 STOCK COMPENSATION PLAN (the "PLAN") is designed
to retain consultants and employees and reward them for making major
contributions to the success of the Company.
1. Definitions.
(a) "BOARD" - The Board of Directors of the Company.
(b) "CODE" - The Internal Revenue Code of 1986, as amended from time to
time.
(c) "COMMITTEE" - The Compensation Committee of the Company's Board, or such
other committee of the Board that is designated by the Board to
administer the Plan, composed of not less than two members of the Board
all of whom are disinterested persons, as contemplated by Rule 16b-3
("RULE 16B-3") promulgated under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT").
(d) "COMPANY" - VALCOM, Inc. and its subsidiaries including subsidiaries of
subsidiaries.
(e) "EXCHANGE ACT" - The Securities Exchange Act of 1934, as amended from
time to time.
(f) "FAIR MARKET VALUE" - The fair market value of the Company's issued and
outstanding Stock as determined in good faith by the Board or Committee.
(g) "GRANT" - The grant of any stock award to a Participant pursuant to such
terms, conditions and limitations as the Committee may establish in
order to fulfill the objectives of the Plan.
(h) "GRANT AGREEMENT" - An agreement between the Company and a Participant
that sets forth the terms, conditions and limitations applicable to a
Grant.
(i) "PARTICIPANT" - An outside consultants, professional and service
provider of the Company to whom an Award has been made under the Plan.
(j) "SECURITIES ACT" - The Securities Act of 1933, as amended from time to
time.
(k) "STOCK" - Authorized and issued or unissued shares of common stock of
the Company.
(l) "STOCK AWARD" - A Grant made under the Plan in stock or denominated in
units of stock for which the Participant is not obligated to pay
additional consideration.
2. Administration.
The Plan shall be administered by the Board, provided however, that the
Board may delegate such administration to the Committee. Subject to the
provisions of the Plan, the Board and/or the Committee shall have authority
to (a) grant, in its discretion, Stock Awards; (b) determine in good faith
the fair market value of the Stock covered by any Grant; (c) determine which
eligible persons shall receive Grants and the number of shares,
restrictions, terms and conditions to be included in such Grants; (d)
construe and interpret the Plan; (e) promulgate, amend and rescind rules and
regulations relating to its administration, and correct defects, omissions
and inconsistencies in the Plan or any Grant; (f) consistent with the Plan
and with the consent of the Participant, as appropriate, amend any
outstanding Grant; (g) determine the duration and purpose of leaves of
absence which may be granted to Participants without constituting
termination of their engagement for the purpose of the Plan or any Grant;
and (h) make all other determinations necessary or advisable for the Plan's
administration. The interpretation and construction by the Board of any
provisions of the Plan or selection of Participants shall be conclusive and
final. No member of the Board or the Committee shall be liable for any
action or determination made in good faith with respect to the Plan or any
Grant made thereunder.
3. Eligibility.
The persons who shall be eligible to receive Grants shall be consultants and
employees of the Company.
4. Stock.
(a) Authorized Stock: Stock subject to Grants may be either unissued or
reacquired Stock.
(b) Number of Shares: Subject to adjustment as provided in Section 5(i) of
the Plan, the total number of shares of Stock which may be purchased or
granted directly by Stock Awards granted under the Plan shall not exceed
Five Million (5,000,000) shares. If any Grant shall for any reason
terminate or expire, any shares allocated thereto but remaining unvested
shall again be available for Grants with respect thereto under the Plan
as though no Grant had previously occurred with respect to such shares.
Any shares of Stock issued pursuant to a Grant and repurchased pursuant
to the terms thereof shall be available for future Grants as though not
previously covered by a Grant.
(c) Reservation of Shares: The Company shall reserve and keep available at
all times during the term of the Plan such number of shares as shall be
sufficient to satisfy the requirements of the Plan. If, after reasonable
efforts, which efforts shall not include the registration of the Plan or
Grants under the Securities Act, the Company is unable to obtain
authority from any applicable regulatory body, which authorization is
deemed necessary by legal counsel for the Company for the lawful
issuance of shares hereunder, the Company shall be relieved of any
liability with respect to its failure to issue and sell the shares for
which such requisite authority was so deemed necessary unless and until
such authority is obtained.
5. Stock Awards.
All or part of any Stock Award under the Plan may be subject to
conditions established by the Board or the Committee, and set forth in a
Stock Award Agreement, which may include, but are not limited to, continuous
service with the Company, achievement of specific business objectives,
increases in specified indices, attaining growth rates and other comparable
measurements of Company performance. Such Awards may be based on Fair Market
Value or other specified valuation. All Stock Awards will be made pursuant
to the execution of a Stock Award Agreement.
(a) Conditions and Restrictions. Shares of Stock which Participants may
receive as a Stock Award under a Stock Award Agreement may include such
restrictions as the Board or Committee, as applicable, shall determine,
including restrictions on transfer, repurchase rights, right of first
refusal, and forfeiture provisions. When transfer of Stock is so
restricted or subject to forfeiture provisions it is referred to as
"RESTRICTED STOCK." Further, with Board or Committee approval, Stock
Awards may be deferred, either in the form of installments or a future
lump sum distribution. The Board or Committee may permit selected
Participants to elect to defer distributions of Stock Awards in
accordance with procedures established by the Board or Committee to
assure that such deferrals comply with applicable requirements of the
Code including, at the choice of Participants, the capability to make
further deferrals for distribution after retirement. Any deferred
distribution, whether elected by the Participant or specified by the
Stock Award Agreement or by the Board or Committee, may require the
payment be forfeited in accordance with the provisions of Section 5(c).
Dividends or dividend equivalent rights may be extended to and made part
of any Stock Award, subject to such terms, conditions and restrictions
as the Board or Committee may establish.
(b) Cancellation and Rescission of Grants. Unless the Stock Award Agreement
specifies otherwise, the Board or Committee, as applicable, may cancel
any unvested or deferred Grants at any time if the Participant is not in
compliance with all other applicable provisions of the Stock Award
Agreement, the Plan and with the following conditions:
(i)A Participant shall not render services for any organization or
engage directly or indirectly in any business which, in the judgment
of the chief executive officer of the Company or other senior officer
designated by the Board or Committee, is or becomes competitive with
the Company, or which organization or business, or the rendering of
services to such organization or business, is or becomes otherwise
prejudicial to or in conflict with the interests of the Company. For
Participants whose engagement has terminated, the judgment of the
chief executive officer shall be based on the Participant's position
and responsibilities while employed by the Company, the Participant's
post-engagement responsibilities and position with the other
organization or business, the extent of past, current and potential
competition or conflict between the Company and the other
organization or business, the effect on the Company's customers,
suppliers and competitors and such other considerations as are deemed
relevant given the applicable facts and circumstances. A Participant
who has retired shall be free, however, to purchase as an investment
or otherwise, stock or other securities of such organization or
business so long as they are listed upon a recognized securities
exchange or traded over-the-counter, and such investment does not
represent a substantial investment to the Participant or a greater
than five percent (5%) equity interest in the organization or
business.
(ii)A Participant shall not, without prior written authorization from
the Company, disclose to anyone outside the Company, or use in other
than the Company's business, any confidential information or material
relating to the business of the Company, acquired by the Participant
either during or after engagement with the Company.
(iii) A Participant shall disclose promptly and assign to the Company
all right, title and interest in any invention or idea, patentable or
not, made or conceived by the Participant during engagement by the
Company, relating in any manner to the actual or anticipated
business, research or development work of the Company and shall do
anything reasonably necessary to enable the Company to secure a
patent where appropriate in the United States and in foreign
countries.
(iv)Upon exercise, payment or delivery pursuant to a Grant, the
Participant shall certify on a form acceptable to the Committee that
he or she is in compliance with the terms and conditions of the Plan.
(c) Nonassignability.
(i)Except pursuant to Section 5(e)(iii) and except as set forth in
Section 5(d)(ii), no Grant or any other benefit under the Plan shall
be assignable or transferable, or payable to, anyone other than the
Participant to whom it was granted.
(ii)Where a Participant terminates engagement and retains a Grant
pursuant to Section 5(e)(ii) in order to assume a position with a
governmental, charitable or educational institution, the Board or
Committee, in its discretion and to the extent permitted by law, may
authorize a third party (including but not limited to the trustee of
a "blind" trust), acceptable to the applicable governmental or
institutional authorities, the Participant and the Board or
Committee, to act on behalf of the Participant with regard to such
Awards.
(d) Termination of Engagement. If the engagement or service to the Company
of a Participant terminates, other than pursuant to any of the following
provisions under this Section 5(e), all unvested or deferred Stock
Awards shall be cancelled immediately, unless the Stock Award Agreement
provides otherwise:
(i)Retirement Under a Company Retirement Plan. When a Participant's
engagement terminates as a result of retirement in accordance with
the terms of a Company retirement plan, the Board or Committee may
permit Stock Awards to continue in effect beyond the date of
retirement in accordance with the applicable Grant Agreement and
vesting of any such Grants may be accelerated.
(ii)Rights in the Best Interests of the Company. When a Participant
resigns from the Company and, in the judgment of the Board or
Committee, the acceleration and/or continuation of outstanding Stock
Awards would be in the best interests of the Company, the Board or
Committee may (i) authorize, where appropriate, the acceleration
and/or continuation of all or any part of Grants issued prior to such
termination and (ii) permit the vesting of such Grants for such
period as may be set forth in the applicable Grant Agreement, subject
to earlier cancellation pursuant to Section 8 or at such time as the
Board or Committee shall deem the continuation of all or any part of
the Participant's Grants are not in the Company's best interest.
(iii) Death or Disability of a Participant.
(1)In the event of a Participant's death, the Participant's estate or
beneficiaries shall have a period up to the expiration date
specified in the Grant Agreement within which to receive or
exercise any outstanding Grant held by the Participant under such
terms as may be specified in the applicable Grant Agreement.
Rights to any such outstanding Grants shall pass by will or the
laws of descent and distribution in the following order: (a) to
beneficiaries so designated by the Participant; if none, then (b)
to a legal representative of the Participant; if none, then (c) to
the persons entitled thereto as determined by a court of competent
jurisdiction. Grants so passing shall be made at such times and in
such manner as if the Participant were living.
(2)In the event a Participant is deemed by the Board or Committee to
be unable to perform his or her usual duties by reason of mental
disorder or medical condition which does not result from facts
which would be grounds for termination for cause, Grants and
rights to any such Grants may be paid to the Participant, if
legally competent, or a committee or other legally designated
guardian or representative if the Participant is legally
incompetent by virtue of such disability.
(3)After the death or disability of a Participant, the Board or
Committee may in its sole discretion at any time (1) terminate
restrictions in Grant Agreements; (2) accelerate any or all
installments and rights; and (3) instruct the Company to pay the
total of any accelerated payments in a lump sum to the
Participant, the Participant's estate, beneficiaries or
representative; notwithstanding that, in the absence of such
termination of restrictions or acceleration of payments, any or
all of the payments due under the Grant might ultimately have
become payable to other beneficiaries.
(4)In the event of uncertainty as to interpretation of or
controversies concerning this Section 5, the determinations of the
Board or Committee, as applicable, shall be binding and
conclusive.
6. Investment Intent. All Grants under the Plan are intended to be exempt from
registration under the Securities Act provided by Rule 701 thereunder.
Unless and until the sale and issuance of Stock subject to the Plan are
registered under the Securities Act or shall be exempt pursuant to the rules
promulgated thereunder, each Grant under the Plan shall provide that the
purchases or other acquisitions of Stock thereunder shall be for investment
purposes and not with a view to, or for resale in connection with, any
distribution thereof. Further, unless the issuance and sale of the Stock
have been registered under the Securities Act, each Grant shall provide that
no shares shall be purchased upon the exercise of the rights under such
Grant unless and until (i) all then applicable requirements of state and
federal laws and regulatory agencies shall have been fully complied with to
the satisfaction of the Company and its counsel, and (ii) if requested to do
so by the Company, the person exercising the rights under the Grant shall
(i) give written assurances as to knowledge and experience of such person
(or a representative employed by such person) in financial and business
matters and the ability of such person (or representative) to evaluate the
merits and risks of receiving the Stock as compensation, and (ii) execute
and deliver to the Company a letter of investment intent and/or such other
form related to applicable exemptions from registration, all in such form
and substance as the Company may require. If shares are issued upon exercise
of any rights under a Grant without registration under the Securities Act,
subsequent registration of such shares shall relieve the purchaser thereof
of any investment restrictions or representations made upon the exercise of
such rights.
7. Amendment, Modification, Suspension or Discontinuance of the Plan. The
Board may, insofar as permitted by law, from time to time, with respect to
any shares at the time not subject to outstanding Grants, suspend or
terminate the Plan or revise or amend it in any respect whatsoever, except
that without the approval of the shareholders of the Company, no such
revision or amendment shall (i) increase the number of shares subject to the
Plan, (ii) decrease the price at which Grants may be granted, (iii)
materially increase the benefits to Participants, or (iv) change the class
of persons eligible to receive Grants under the Plan; provided, however, no
such action shall alter or impair the rights and obligations under any Stock
Award outstanding as of the date thereof without the written consent of the
Participant thereunder. No Grant may be issued while the Plan is suspended
or after it is terminated, but the rights and obligations under any Grant
issued while the Plan is in effect shall not be impaired by suspension or
termination of the Plan.
In the event of any change in the outstanding Stock by reason of a
stock split, stock dividend, combination or reclassification of shares,
recapitalization, merger, or similar event, the Board or the Committee may
adjust proportionally (a) the number of shares of Stock (i) reserved under
the Plan, (ii) covered by outstanding Stock Awards; (b) the Stock prices
related to outstanding Grants; and (c) the appropriate Fair Market Value and
other price determinations for such Grants. In the event of any other change
affecting the Stock or any distribution (other than normal cash dividends)
to holders of Stock, such adjustments as may be deemed equitable by the
Board or the Committee, including adjustments to avoid fractional shares,
shall be made to give proper effect to such event. In the event of a
corporate merger, consolidation, acquisition of property or stock,
separation, reorganization or liquidation, the Board or the Committee shall
be authorized to issue or assume stock options, whether or not in a
transaction to which Section 424(a) of the Code applies, and other Grants by
means of substitution of new Grant Agreements for previously issued Grants
or an assumption of previously issued Grants.
8. Tax Withholding. The Company shall have the right to deduct applicable taxes
from any Grant payment and withhold, at the time of delivery or exercise of
Stock Awards or vesting of shares under such Grants, an appropriate number
of shares for payment of taxes required by law or to take such other action
as may be necessary in the opinion of the Company to satisfy all obligations
for withholding of such taxes. If Stock is used to satisfy tax withholding,
such stock shall be valued based on the Fair Market Value when the tax
withholding is required to be made.
9. Availability of Information. During the term of the Plan and any additional
period during which a Grant granted pursuant to the Plan shall be payable,
the Company shall make available, not later than one hundred and twenty
(120) days following the close of each of its fiscal years, such financial
and other information regarding the Company as is required by the bylaws of
the Company and applicable law to be furnished in an annual report to the
shareholders of the Company.
10.Notice. Any written notice to the Company required by any of the provisions
of the Plan shall be addressed to the chief personnel officer or to the
chief executive officer of the Company, and shall become effective when it
is received by the office of the chief personnel officer or the chief
executive officer.
11.Indemnification of Board. In addition to such other rights or
indemnifications as they may have as directors or otherwise, and to the
extent allowed by applicable law, the members of the Board and the Committee
shall be indemnified by the Company against the reasonable expenses,
including attorneys' fees, actually and necessarily incurred in connection
with the defense of any claim, action, suit or proceeding, or in connection
with any appeal thereof, to which they or any of them may be a party by
reason of any action taken, or failure to act, under or in connection with
the Plan or any Grant granted thereunder, and against all amounts paid by
them in settlement thereof (provided such settlement is approved by
independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any such claim, action, suit or proceeding,
except in any case in relation to matters as to which it shall be adjudged
in such claim, action, suit or proceeding that such Board or Committee
member is liable for negligence or misconduct in the performance of his or
her duties; provided that within sixty (60) days after institution of any
such action, suit or Board proceeding the member involved shall offer the
Company, in writing, the opportunity, at its own expense, to handle and
defend the same.
12.Governing Law. The Plan and all determinations made and actions taken
pursuant hereto, to the extent not otherwise governed by the Code or the
securities laws of the United States, shall be governed by the law of the
State of Delaware and construed accordingly.
13.Termination Date. The Plan shall terminate ten years later, subject to
earlier termination by the Board pursuant to Section 7.
VALCOM, INC.
a Delaware corporation
By: /s/ Vincent Vellardita
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Its: Chief Executive Officer
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The firm of Armando C. Ibarra, Certified Public Accountants, consents to the
incorporation by reference of our reports of the financial statements of
Valcom, Inc. in the Company's Form S-8 filing dated July 5, 2006 with the U.S.
Securities and Exchange Commission or other regulatory agency. The reports
incorporated by reference are the auditor's report for the year ended September
30, 2005 dated February 22, 2006; the quarterly financial statements for the
quarter ended December 31, 2005; and the quarterly financial statements for the
quarter ended March 31, 2006.
/s/ Armando C. Ibarra, CPA
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Chula Vista, California 91910
July 3, 2006