Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
THE BAUER PARTNERSHIP, INC.
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(Exact name of registrant as specified in its charter)
Nevada 88-0429812
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(State or other jurisdiction (IRS Employer
of incorporation) Identification No.)
300 Park Avenue, Suite 1700, New York, New York 10022
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(Address of Principal Executive Offices) (Zip Code)
Stock Issuance Pursuant to
The Bauer Partnership, Inc. 2002 Non-Qualified Stock Option Plan
(Full title of the plan)
Copy to:
Ronald J. Bauer David Loev
The Bauer Partnership, Inc. Vanderkam & Sanders
300 Park Avenue, Suite 1700 440 Louisiana, Suite 475
New York, New York 10022 Houston, Texas 77002
(212) 572-6276 (713) 547-8900
Name, address and telephone
(number of agent for service)
Approximate date of proposed sales pursuant to the plan: From time to
time after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
================================ =============== =================== ===================== ==============
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per aggregate offering registration
share (1) price fee
-------------------------------- --------------- ------------------- --------------------- --------------
Common Stock, $.001 par value 5,000,000 $.205 $1,025,000 $94.30
================================ =============== =================== ===================== ==============
(1) Calculated in accordance with Rule 457(c) solely for the purpose of
determining the registration fee. The offering price is based on the
closing bid and asked price as reported on the Nasdaq Electronic Bulletin
Board on November 12, 2002.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Information required by Item 1 is included in documents sent or given
to participants in the Plan pursuant to Rule 428(b)(1) of the Securities Act.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Information required by Item 2 is included in documents sent or given
to participants in the Plan pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference into this
Registration Statement and are made a part hereof:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2001.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the Annual Report referred
to in Item 3(a) above, including, but not limited to, the Company's
quarterly reports on Form 10-QSB through the fiscal quarter ended June 30,
2002.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES
Common Stock
General. The Company is authorized to issue 200,000,000 shares of
Common Stock, $.001 par value per share.
The holders of the Common Stock are entitled to receive dividends when,
as and if declared by the Board of Directors, out of funds legally available
therefor. In the event of liquidation, dissolution or winding up of the Company,
the holders of the Common Stock are entitled to share ratably in all assets
remaining available for distribution to them after payment of liabilities and
after provision has been made for each class of stock, if any, having preference
over the Common Stock. The holders of the Common Stock as such have no
conversion, preemptive or other subscription rights and there are no redemption
provisions applicable to the Common Stock.
Voting Rights. The holders of the Common Stock are entitled to one vote
for each share held of record on all matters to be voted on by stockholders.
There is no cumulative voting with respect to the election of directors, with
the results that the holders of shares having more than fifty percent (50%) of
the votes for the election of directors can elect all of the directors.
Dividend Policy. To date, the Company has not paid any dividends on its
Common Stock. The payment of dividends, if any, in the future is within the
discretion of the Board of Directors and will depend upon the Company's
earnings, its capital requirements and financial condition and other relevant
factors. The Board does not intend to declare any dividends in the foreseeable
future, but instead intends to retain all earnings, if any, for use in the
Company's business operations.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Legal counsel for the Registrant is the owner of 745,000 shares of the
restricted common stock and 1,080,000 shares of free-trading common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation, as amended, eliminate the
personal liability of directors to the Company or its stockholders for monetary
damages for breach of fiduciary duty to the extent permitted by Nevada law. The
Company's Bylaws provide that the Company shall have the power to indemnify its
officers and directors to the extent permitted by Nevada law. Nevada law
authorizes a corporation to indemnify directors, officers, employees or agents
of the corporation in non-derivative suits if such party acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interest
of the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful, as determined in
accordance with Nevada law.
The provisions affecting personal liability do not abrogate a
director's fiduciary duty to the Company and its shareholders, but eliminate
personal liability for monetary damages for breach of that duty. The provisions
do not, however, eliminate or limit the liability of a director for failing to
act in good faith, for engaging in intentional misconduct or knowingly violating
a law, for authorizing the illegal payment of a dividend or repurchase of stock,
for obtaining an improper personal benefit, for breaching a director's duty of
loyalty, which is generally described as the duty not to engage in any
transaction which involves a conflict between the interest of the Company and
those of the director, or for violations of the federal securities laws.
The provisions regarding indemnification provide, in essence, that the
Company will indemnify its directors against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with any action, suit or proceeding arising out of the
director's status as a director of the Company, including actions brought by or
on behalf of the Company (shareholder derivative actions). The provisions do not
require a showing of good faith. Moreover, they do not provide indemnification
for liability arising out of willful misconduct, fraud, or dishonesty, for
"short-swing" profits violations under the federal securities laws, for the
receipt of illegal remuneration or if the director received a benefit in money,
property or services to which the director is not legally entitled. The
provisions also do not provide indemnification for any liability to the extent
such liability is covered by insurance.
The provisions also limit or indemnify against liability resulting from
grossly negligent decisions including grossly negligent business decisions
relating to attempts to change control of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 The Bauer Partnership, Inc. 2002 Non-Qualified Stock Option Plan
5.1 Opinion and consent of Vanderkam & Sanders re: the legality of the
shares being registered
23.1 Consent of Vanderkam & Sanders (included in Exhibit 5.1)
23.2 Consent of Malone & Bailey, PLLC
ITEM 9. UNDERTAKINGS
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers or sells
are being made, a post-effective amendment to this
registration statement 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.
(2) That, for the purpose of determining liability under
the Securities Act of 1933, each post-effective
amendment shall be treated as a new registration
statement of the securities offered, and the offering
of the securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold
at the end of the offering.
(b) The undersigned registrant hereby undertakes 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 Section 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.
(c) 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 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
Pursuant to 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 for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, New York on the 12th day of November, 2002.
THE BAUER PARTNERSHIP, INC.
By: /s/ Ronald J. Bauer
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Ronald J. Bauer, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signatures Title Date
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/s/ Ronald J. Bauer (Principal Executive Officer) November 12, 2002
----------------------
Ronald J. Bauer
/s/ Ronald J. Bauer (Principal Financial and November 12, 2002
---------------------- Accounting Officer)
Ronald J. Bauer
THE BAUER PARTNERSHIP, INC.
2002 NON-QUALIFIED STOCK OPTION PLAN
1.Purpose. This 2002 Non-Qualified Stock Option Plan (the "Plan") is intended to
promote the financial success and interests of The Bauer Partnership, Inc. (the
"Company") and materially increase shareholder value by giving incentives to
officers and other employees and directors of and consultants and advisors to
the Company, its parent (if any) and any present or future subsidiaries of the
Company (collectively, "Related Corporations") through providing opportunities
to acquire stock in the Company. As used herein, the terms "parent" and
"subsidiary" mean "parent corporation" and "subsidiary corporation",
respectively, as those terms are defined in Sections 424(e) and 424(f) or
successor provisions of the Internal Revenue Code of 1986 as amended from time
to time (the "Code"). Any proceeds of cash or property received by the Company
for the sale of The Bauer Partnership, Inc. Common Stock pursuant to options
granted under this Plan will be used for general corporate purposes.
2. Structure of the Plan. The Plan permits the following separate types of
grant:
A. Options may be granted hereunder to purchase shares of common stock of
the Company. These options may not meet the requirements of Section 422 of the
Code ("Non-Qualified Options"). Non-Qualified Options are sometimes referred to
hereinafter as "Options".
B. Awards of stock in the Company ("Awards") may be granted.
C. Opportunities to make direct purchases of stock in the Company
("Purchases") may be authorized.
Options, Awards and authorizations to make Purchases are sometimes referred to
hereinafter as "Stock Rights".
3. Administration of the Plan.
A. The Plan shall be administered by the Board of Directors of the Company
(the "Board"). The Board may in its sole discretion grant Options, authorize
Purchases and grant Awards, as provided in the Plan. The Board shall have full
power and authority, subject to the express provisions of the Plan, to construe
and interpret the Plan and all Option agreements, Purchase authorizations and
Award grants thereunder, to establish, amend and rescind such rules and
regulations as it may deem appropriate for the proper administration of the
Plan, to determine in each case the terms and provisions which shall apply to a
particular Option agreement, Purchase authorization, or Award grant, and to make
all other determinations which are, in the Board's judgment, necessary or
desirable for the proper administration of the Plan. The Board may correct any
defect, supply any omission or reconcile any inconsistency in the Plan or in any
Option agreement, Purchase authorization or Award grant in the manner and to the
extent it shall, in its sole discretion, consider expedient. Decisions of the
Board shall be final and binding on all parties who have an interest in the Plan
or any Option, Purchase, Award, or stock issuance thereunder. No director or
person acting pursuant to authority delegated by the Board shall be liable for
any action or determination under the Plan made in good faith.
B. The Board may, to the full extent permitted by and consistent with
applicable law and the Company's By-laws, and subject to Subparagraph D
hereinbelow, delegate any or all of its powers with respect to the
administration of the Plan to a committee (the "Committee") appointed by the
Board. If a Committee has been appointed, all references in this Plan to the
Board shall mean and relate to that Committee.
C. Those provisions of this Plan which make express reference to Rule 16b-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
any successor rule ("Rule 16b-3"), or which are required in order for certain
option transactions to qualify for exemption under Rule 16b-3, shall apply only
to those persons required to file reports under Section 16(a) of the Exchange
Act (a "Reporting Person").
D. If the Company registers any class of equity security under Section 12
of the Exchange Act, the selection of a director or an officer (as the terms
"director" and "officer" are defined for purposes of Rule 16b-3) as a recipient
of an option, the timing of the option grant, the exercise price of the option
and the number of shares subject to the option shall be determined either (i) by
the Board, if all of the Board members are disinterested persons within the
meaning of Rule 16(b)(3), or (ii) by two or more directors having full authority
to act in the matter, each of whom shall be such a disinterested person.
4. Eligible Employees and Others. Non-Qualified Options, Awards, and
authorizations to make Purchases may be granted to any employee, officer or
director of, or consultant or advisor to the Company or any Related Corporation,
except for instances where services are in connection with the offer or sale of
securities in a capital-raising transaction, or they directly or indirectly
promote or maintain a market for the Company's securities. In making such
determinations, the Board and/or the Committee may take into account the nature
of the services rendered by such person, his or her present and potential
contribution to the Company's success, and such other factors as the Company
and/or Committee in its discretion shall deem relevant. The granting of any
Stock Right to any individual or entity shall neither entitle that individual or
entity to, nor disqualify him from, participation in any other grant of Stock
Rights.
5. Stock. The stock subject to Options, Awards and Purchases shall be
authorized but unissued shares of common stock of the Company ("Common Stock"),
or shares of Common Stock reacquired by the Company in any manner. The aggregate
number of shares which may be issued under the Plan is Five Million (5,000,000),
subject to adjustment as provided in Paragraph 13. If any Option granted under
the Plan shall expire or terminate for any reason without having been exercised
in full or shall cease for any reason to be exercisable in whole or in part, or
if the Company shall reacquire any nonvested shares issued pursuant to Awards or
Purchases, the unpurchased shares subject to such Option, or such nonvested
shares so reacquired shall again be available for grants of Stock Rights under
the Plan. No fractional shares of Common Stock shall be issued, and the Board
and/or Committee shall determine the manner in which fractional share value
shall be treated.
6. Option Agreements. As a condition to the grant of an Option, each
recipient of an Option shall execute an option agreement in such form not
inconsistent with the Plan as the Board shall approve. These option agreements
may differ among recipients. The Board may, in its sole discretion, include
additional provisions in option agreements, including without limitation
restrictions on transfer, repurchase rights, commitments to pay cash bonuses, to
make, arrange for or guarantee loans or to transfer other property to optionees
upon exercise of options, or such other provisions as shall be determined by the
Board; provided, however, that such additional provisions shall not be
inconsistent with any provision of the Plan
7. Option Exercise Price.
A. Subject to Subparagraph 3D of this Plan and Subparagraphs B and C of
this Paragraph 7, the purchase price per share of Common Stock deliverable upon
the exercise of an Option ("exercise price") shall be determined by the Board.
B The exercise price of each Non-Qualified Option granted under the Plan
shall in no event be less than the par value per share of the Company's Common
Stock.
8. Cancellation and New Grant of Options, Etc. The Board shall have the
authority to effect, at any time and from time to time, with the consent of the
affected optionees, the cancellation of any or all outstanding Options and the
grant in substitution therefor of new Options covering the same or different
shares of Common Stock and having an exercise price per share which may be lower
or higher than the exercise price per share of the canceled Options.
9. Exercise of Options.
A. Each Option granted under the Plan shall be exercisable either in full
or in installments at such time or times and during such period as shall be set
forth in the agreement evidencing the Option, subject to the provisions of the
Plan. The partial exercise of an option shall not cause the expiration,
termination or cancellation of the remaining portion thereof. The Board may, in
its sole discretion, (i) accelerate the date or dates on which all or any
particular Option or Options granted under the Plan may be exercised or (ii)
extend the dates during which all, or any particular, Option or Options granted
under the Plan may be exercised.
B. Options granted under the Plan may provide for payment of the exercise
price by any of the following methods:
(i) In cash, by wire transfer, by certified or cashier's check, or by
money order; or
(ii) By delivery to the Company of an exercise notice that requests
the Company to issue to the Optionee the full number of shares as to which
the Option is then exercisable, less the number of shares that have an
aggregate Fair Market Value, as determined by the Board in its sole
discretion at the time of exercise, equal to the aggregate purchase price
of the shares to which such exercise relates. (This method of exercise
allows the Optionee to use a portion of the shares issuable at the time of
exercise as payment for the shares to which the option relates and is often
referred to as a "cashless exercise." For example, if the Optionee elects
to exercise 1,000 shares at an exercise price of $0.25 and the current Fair
Market Value of the shares on the date of exercise is $1.00, the Optionee
can use 250 of the 1,000 shares at $1.00 per share to pay for the exercise
of the entire Option (250 x $1.00 = $250.00) and receive only the remaining
750 shares.)
For purposes of this section, " Fair Market Value" shall be defined as the
average closing price of the common stock (if actual sales price information on
any trading day is not available, the closing bid price shall be used) for the
five trading days prior to the Date of Exercise of this Option (the "Average
Closing Bid Price"), as reported by the National Association of Securities
Dealers Automated Quotation System ("NASDAQ"), or if the common stock is not
traded on NASDAQ, the Average Closing Bid Price in the over-the-counter market;
provided, however, that if the common stock is listed on a stock exchange, the
Fair Market Value shall be the Average Closing Bid Price on such exchange; and,
provided further, that if the common stock is not quoted or listed by any
organization, the fair value of the common stock, as determined by the Board of
Directors of the Company, whose determination shall be conclusive, shall be
used). In no event shall the Fair Market Value of any share of Common Stock be
less than its par value.
10. Option Period. Subject to earlier termination under other provisions of
this Plan, each Option and all rights thereunder shall expire on such date as
shall be set forth in the applicable option agreement.
11. Nontransferability of Options. Non-Qualified options shall not be
assignable or transferable by the optionee, either voluntarily or by operation
of law, except by will or the laws of descent and distribution, and, during the
life of the optionee, except to the extent otherwise provided in the agreement
evidencing the Non-Qualified Option.
12. Effect of Termination of Employment or Other Relationship Subject to
all other provisions of the Plan, the Board shall determine the period of time
during which an Optionee may exercise an Option following (i) the termination of
the optionee's employment or other relationship with the Company or a Related
Corporation or (ii) the death or disability of the optionee. Such periods shall
be set forth in the agreement evidencing the Option.
13. Adjustments.
A. If, through or as a result of any merger, consolidation, sale of all or
substantially all of the assets of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other similar transaction, (i) the outstanding shares of Common Stock
are increased, decreased or exchanged for a different number or kind of shares
or other securities of the Company, or (ii) additional shares or new or
different shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of Common Stock or other securities, an
appropriate and proportionate adjustment shall be made in (a) the maximum number
and kind of shares reserved for issuance under the Plan, (b) the number and kind
of shares or other securities subject to any then outstanding Options under the
Plan, and (c) the price for each share subject to any then outstanding Options
under the Plan, without changing the aggregate purchase price as to which such
Options remain exercisable. No fractional shares shall be issued under the Plan
on account of any such adjustments.
B. Any adjustments under this Paragraph 13 shall be made by the Board of
Directors, whose determination as to what adjustments, if any, will be made and
the extent thereof shall be final, binding and conclusive.
14. Rights as a Shareholder. The holder of an Option shall have no rights
as a shareholder with respect to any shares covered by the option (including,
without limitation, any voting rights, the right to inspect or receive the
Company's balance sheets or financial statements or any rights to receive
dividends or non-cash distributions with respect to such shares) until the date
of issue of a stock certificate for such shares. No adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
stock certificate is issued.
15. Merger, Consolidation, Asset Sale, Liquidation, Etc.
A. Except as may otherwise be provided in the applicable option agreement,
in the event of a consolidation or merger or sale of all or substantially all of
the assets of the Company in which outstanding shares of Common Stock are
exchanged for securities, cash or other property of any other corporation or
business entity, or in the event of the liquidation of the Company (each, a
"Change in Control"), the Board, or the board of directors of any corporation
assuming the obligations of the Company, shall, in its discretion, take any one
or more of the following actions, as to outstanding Options: (i) provide that
such Options shall be assumed, or equivalent options shall be substituted, by
the acquiring or succeeding corporation (or an affiliate thereof); (ii) upon
written notice to the optionees, provide that any and all outstanding Options
shall become exercisable in full (to the extent not otherwise so exercisable) as
of a specified date or time ("Accelerated Vesting Date") prior to the
consummation of such transaction, and that all unexercised Options shall
terminate as of a specified date or time ("Accelerated Expiration Date")
following the Accelerated Vesting Date unless exercised by the Optionee prior to
the Accelerated Expiration Date; provided, however, that optionees shall be
given a reasonable period of time within which to exercise or provide for the
exercise of outstanding Options following such written notice and before the
Accelerated Expiration Date; (iii) in the event of a merger under the terms of
which holders of the Common Stock of the Company will receive upon consummation
thereof a cash payment for each share surrendered in the merger (the "Merger
Price"), terminate each outstanding Option in exchange for a payment, made or
provided for by the Company, equal in amount to the excess, if any, of the
Merger Price over the per-share exercise price of each such Option, times the
number of shares of Common Stock subject to such Option; or (iv) terminate each
outstanding Option in exchange for a cash payment equal in amount to the product
of the excess, if any, of the fair market value of a share of Common Stock over
the per-share exercise price of each such Option, times the number of shares
subject to such Option. The Board shall determine the fair market value of a
share of Common Stock for purposes of the foregoing, and the Board's
determination of such fair market value shall be final, binding and conclusive.
B. In the event of a Change in Control and to the extent the rights
described in this Section 16B are not already substantially provided to each
Qualified Option Recipient by the Board (or the board of directors of any
corporation assuming the obligations of the Company) pursuant to Section 16A,
beginning on the date which is 180 days from the date of such Change in Control,
each Qualified Option Recipient (as defined below) shall have the right to
exercise and receive from the Company or its successor their respective
Acceleration Amount (as defined below). A "Qualified Option Recipient" is
defined as an option recipient hereunder who both (A) has maintained a
relationship as an employee, officer or director of, or consultant or advisor
to, the Company or its successor for the 180 days immediately prior to the
Change in Control and (B) on the date which is 180 days after the date of the
Change in Control, either (i) maintains a relationship as an employee, officer
or director of, or consultant or advisor to, the Company or its successor or
(ii) fails to maintain a relationship as an employee, officer or director of, or
consultant or advisor to, the Company or its successor by reason of having such
relationship terminated by the Company or its successor other than for Cause,
where "Cause" means willful misconduct or willful failure of the option
recipient to perform the responsibilities of such option recipient's agreed-upon
business relationship with the Company or its successor, including without
limitation such option recipient's breach of any provision of any employment,
consulting, nondisclosure, non-competition or similar agreement between the
option recipient and the Company. With respect to each Qualified Option
Recipient, the "Acceleration Amount" shall mean the lesser of (a) the number of
additional shares of Common Stock (or their equivalent) which would have become
vested pursuant to their option agreement over the twelve (12) month period
following the date of the Change in Control or (b) fifty percent (50%) of the
shares of Common Stock (or their equivalent) which had not yet vested pursuant
to their option agreement as of the date of the Change in Control. The Board
and, where applicable, the board of directors of any corporation assuming the
obligations of the Company, shall take all necessary action to accomplish the
purposes of this Section 16B, including all such actions as are necessary to
provide for the assumption of such obligation upon the Change in Control.
C. The Company may grant Options under the Plan in substitution for Options
held by employees of another corporation who become employees of the Company or
a Related Corporation as the result of a merger or consolidation of the
employing corporation with the Company or a Related Corporation, or as a result
of the acquisition by the Company or a Related Corporation of property or stock
of the employing corporation. The Company may direct that substitute Options be
granted on such terms and conditions as the Board considers appropriate in the
circumstances.
D. In the event of a Change in Control and with respect thereto, the rights
and responsibilities of holders of Stock Rights pursuant to this Plan shall be
governed first and foremost by the Company's agreement with the respective
recipient of such Stock Rights and then, to the extent applicable, by the terms
of this Section 15.
16. Stock Restriction Agreement. The Company may require the recipient of
the Award or Purchase authorization to execute an agreement ("Stock Restriction
Agreement") in such form not inconsistent with the Plan as may be approved by
the Board. Stock Restriction Agreements may differ among recipients. Stock
Restriction Agreements may include any provisions the Board determines should be
included and that are not inconsistent with any provision of the Plan.
17. No Special Employment Rights. Nothing contained in the Plan or in any
option agreement or other agreement or instrument executed pursuant to the
provisions of the Plan shall confer upon any Optionee any right with respect to
the continuation of his or her employment by the Company or any Related
Corporation or interfere in any way with the right of the Company or a Related
Corporation at any time to terminate such employment or to increase or decrease
the compensation of the optionee.
18. Other Employee Benefits. Except as to plans which by their terms
include such amounts as compensation, no amount of compensation deemed to be
received by an employee as a result of the grant or exercise of an Option or the
sale of shares received upon such exercise, or as a result of the grant of an
Award or the authorization or making of a Purchase will constitute compensation
with respect to which any other employee benefits of such employee are
determined, including, without limitation, benefits under any bonus, pension,
profit-sharing, life insurance or salary continuation plan, except as otherwise
specifically determined by the Board.
19. Amendment of the Plan.
A. The Board may at any time, and from time to time, modify or amend the
Plan in any respect, except as otherwise expressly provided in this Plan.
B. The termination or any modification or amendment of the Plan shall not,
without the consent of an optionee, affect the optionee's rights under an Option
previously granted. With the consent of the Optionee affected, the Board may
amend outstanding option agreements in a manner not inconsistent with the Plan.
The Board shall have the right to amend or modify terms and provisions of the
Plan, the terms and provisions of the Plan and of any outstanding Option to the
extent necessary to ensure the qualification of the Plan under Rule 16b-3.
20. Investment Representations. The Board may require any person to whom an
Option is granted, as a condition of exercising such Option, and any person to
whom an Award is granted or a Purchase is authorized, as a condition thereof, to
give written assurances in substance and form satisfactory to the Board to the
effect that such person is acquiring the Common Stock subject to the Option,
Award or Purchase for such person's own account for investment and not with any
present intention of selling or otherwise distributing the same, and to such
other effects as the Company deems necessary or appropriate in order to comply
with federal and applicable state securities laws, or with covenants or
representations made by the Company in connection with any public offering of
its Common Stock.
21. Compliance With Securities Laws. Each Option shall be subject to the
requirement that if, at any time, counsel to the Company shall determine that
the listing, registration or qualification of the shares subject to such Option
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental or regulatory body, or that the disclosure of
non-public information or the satisfaction of any other condition is necessary
as a condition of, or in connection with, the issuance or purchase of shares
thereunder, such Option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, or satisfaction of
such condition shall have been effected or obtained on conditions acceptable to
the Board. Nothing herein shall be deemed to require the Company to apply for or
to obtain such listing, registration or qualification, or to satisfy such
condition.
22. Withholding. The Company shall have the right to deduct from payments
of any kind otherwise due to the Optionee any federal, state or local taxes of
any kind required by law to be withheld with respect to any shares issued upon
exercise of Options under the Plan or upon the grant of an Award, the making of
a Purchase of Common Stock for less than its fair market value, the making of a
Disqualifying Disposition (as defined in Paragraph 24), or the vesting of
restricted Common Stock acquired pursuant to a Stock Right. The Board in its
sole discretion may condition the exercise of an Option, the grant of an Award,
the making of a Purchase, or the vesting of restricted shares acquired by
exercising a Stock Right on the grantee's payment of such additional withholding
taxes.
23. Effective Date and Duration of the Plan.
A. The Plan shall become effective when adopted by the Board, and Stock
Rights granted under the Plan shall become exercisable upon the Board's approval
of the Plan. Amendments to the Plan not requiring shareholder approval shall
become effective when adopted by the Board. Stock Rights may be granted under
the Plan at any time after the effective date and before the termination date of
the Plan.
B. Unless sooner terminated as provided elsewhere in this Plan, this Plan
shall terminate upon the close of business on the day next preceding the tenth
anniversary of the date of its adoption by the Board. Stock Rights outstanding
on such date shall continue to have force and effect in accordance with the
provisions of the instruments evidencing such Stock Rights.
Adopted by the Board of Directors on November 12, 2002.
Vanderkam & Sanders
440 Louisiana, #475
Houston, TX 77002
713-547-8900 phone
713-547-8910 facsimile
November 13, 2002
The Bauer Partnership, Inc.
300 Park Avenue, Suite 1700
New York, New York 10022
Re: Form S-8 Registration Statement
Gentlemen:
You have requested that we furnish you our legal opinion with respect to the
legality of the following described securities of The Bauer Partnership, Inc.
(the "Company") covered by a Form S-8 Registration Statement (the "Registration
Statement"), filed with the Securities and Exchange Commission for the purpose
of registering such securities under the Securities Act of 1933:
1. 5,000,000 shares of common stock, $.001 par value (the "Shares") issuable
pursuant to The Bauer Partnership, Inc. 2002 Non-Qualified Stock Option
Plan.
In connection with this opinion, we have examined the corporate records of
the Company, including the Company's Articles of Incorporation, Bylaws, and the
Minutes of its Board of Directors and Shareholders meetings, the consulting
agreements, the Registration Statement, and such other documents and records as
we deemed relevant in order to render this opinion.
Based on the foregoing, it is our opinion that, after the Registration
Statement becomes effective and the Shares have been issued and delivered as
described therein, the Shares will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion with Securities and
Exchange Commission as an exhibit to the Registration Statement and further
consent to statements made therein regarding our firm and use of our name under
the heading "Legal Matters" in the Prospectus constituting a part of such
Registration Statement.
Sincerely,
VANDERKAM & SANDERS
/s/ Vanderkam & Sanders
INDEPENDENT AUDITORS' CONSENT
Malone & Bailey, PLLC
We consent to the incorporation by reference in the Registration Statement of
The Bauer Partnership, Inc. and Subsidiaries on Form S-8 of our report dated
April 10, 2002, appearing in Form 10-KSB of The Bauer Partnership, Inc. for the
year ended December 31, 2001.
/s/ Malone & Bailey, PLLC
Malone & Bailey, PLLC
November 13, 2002
Houston, Texas