SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section
14(a) of the Securities Exchange Act of 1934
Filed by the Registrant [XX]
Filed by a Party other than the Registrant
Check the appropriate box:
/ / Preliminary Information Statement.
/ / Confidential, for Use of the Commission Only (as permitted by
Rule 14c-5(d)(2).
/X/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Section 240.14a-12
Commission File No. 000-50508
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NUVIM, INC.
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(Name of Registrant as Specified in its Charter)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i) and 0-11.
(1) Title of each class of securities to which the transaction applies:
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pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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[ ] 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 No.:
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(4) Date Filed:
NuVim, Inc
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Notice of Annual Meeting
9:00 O'Clock AM, Thursday, May 15th, 2008
------------------------------------
Please take notice that the Annual Meeting of the holders of the Common
Stock of NuVim(R), Inc., (the "Company") shall be held at the Offices of the
Company Suite 212, 12 North State Route 17, Paramus, New Jersey 07652 at nine
o'clock, AM on the 15(th) day of May 2008 to consider all of the following:
1. Election of five Directors for a term of one year.
2. Any other business as may properly come before the meeting.
The enclosed proxy is solicited by the Company's management in connection
with this meeting.
Respectfully submitted,
Mark Alan Siegel
Secretary of the Company
NuVim, Inc.
------------------------------
PROXY STATEMENT
Annual Meeting of Stockholders
to be held May 15th, 2008
------------------------------
This Proxy Statement is furnished by NuVim, Inc. in connection with our Annual
Meeting of Stockholders to be held on May 15th, 2008 at 9:00 A.M. at our
offices, Suite 212, 12 North State Route 17, Paramus, New Jersey 07652. The
mailing address of our executive office is Suite 212, 12 North State Route 17,
Paramus, New Jersey 07652.
This Proxy Statement was first mailed to holders of Common Stock on or about
April 18, 2008 together with either a proxy card or voting instruction card. The
proxy statement summarizes the information you need to know to vote at the
Annual Meeting. You do not need to attend the Annual Meeting to vote your
shares.
Annual Report
A copy of our 2007 Annual Reports on Form 10-KSB, including consolidated
financial statements for the Fiscal Years concluded on December 31, 2006 ("FY
2006") and December 31, 2007 ("FY 2007"), have been mailed to all the Company's
stockholders of record with this Proxy Statement. The Annual Report is not part
of this Proxy Statement.
Outstanding Voting Securities and Voting Rights
The Board of Directors fixed the close of business on March 24th, 2008 as the
record date for determining the stockholders eligible to vote at the meeting. As
of the record date, the Company had 14,950,782 shares of its Common Stock. The
holder of each share of Common Stock is entitled to one vote per share on all
questions.
Our Board of Directors is soliciting your proxy to vote at the Annual Meeting
because you were a shareholder on the record date and are entitled to vote at
the meeting. You may vote your shares either by attending the meeting in person
or signing and returning the enclosed proxy. The proxy from allows you to
indicate how you wish your vote to be cast on the election of each director. If
you do not direct how your vote should be cast on any question to come before
the meeting, the individuals named as proxies, Messrs. Richard Kundrat and
Stanley Moger will cast your votes as they determine on any question scheduled
to come before the Annual Meeting.
Our Board recommends a vote FOR each of the nominees to the Board of Directors.
Please Complete the Enclosed Proxy and
Return it to us in the Postage-Free Proxy Envelope.
How to Vote at the Annual Meeting
o By use of the proxy card or voting instruction card. Be sure to complete,
sign, and date the card and return it in the prepaid envelope. If you are
a stockholder of record and you return your signed proxy card but do not
indicate your voting preferences, the persons named in the proxy card
will vote FOR the election of directors and FOR the adoption of the 2007
Employees Stock Option Plan on your behalf.
o In person at the Annual Meeting. All stockholders may vote in person at
the annual meeting. You may also be represented by another person at the
meeting by executing a proper proxy designating that person. If you are a
beneficial owner of shares, you must obtain a legal proxy from your
broker, bank, or nominee and present it to our corporate Secretary when
you arrive at the meeting.
o How may I Change my vote? If you are a stockholder of record, you may
revoke your proxy at any time before it is voted at the Annual Meeting by
doing any of the following:
o Send a written notice to our corporate Secretary.
o Submit a new, proper proxy card signed and dated after the date of
the revoked proxy.
o Attend the Annual Meeting and vote in person.
If you are a beneficial owner of shares, you may submit new voting
instructions by contacting your broker, bank, or nominee. You may also
vote in person at the annual meeting if you obtain a legal proxy as
described in the preceding paragraph.
o What constitutes a quorum? As of the record date, there were 14,950,782
shares of common stock issued and outstanding. A majority of those
outstanding shares, 7,475,391, present or represented by proxy,
constitutes a quorum for the purpose of electing directors and adopting
proposals at the Annual Meeting. If you submit a properly executed proxy,
then you will be considered part of the quorum.
Please complete, sign, and date and return it in the pre-paid addressed envelope
to spare us the additional costs of duplicate solicitation.
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Common Stock Ownership by Directors and Executive Officers
The following table sets forth information, as of March 24, 2008, with
respect to the beneficial ownership of the Company's Common Stock by (a) the
present executive officers and directors and nominees for Director of the
Company and (b) the present directors and officers of the Company as a group.
Unless otherwise noted, the shares are owned directly or indirectly with sole
voting and investment power.
Management Owners
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Number of Percentage
Shares of the Class
Beneficially Beneficially
Name and Address of Beneficial Owner Owned (1) Owned (2)
------------------------------------ ------------ ------------
Richard P. Kundrat (3) 3,451,437 13.42%
Stanley Moger (4) 866,632 3.37%
Peter V. DeCrescenzo (5) 191,833 0.75%
Calvin L. Hodock (6) 176,667 0.69%
Doug Scott (7) 448,571 1.74%
All directors and executive officers as a
group (5 persons) 5,255,140 20.44%
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(1) Beneficial Ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or
investment power with respect to securities. Shares of common stock subject
to options or warrants currently exercisable or convertible, or exercisable
or convertible within 60 days of March 25, 2007 are deemed outstanding for
computing the percentage of the person holding such option or warrant but
are not deemed outstanding for computing the percentage of any other
person.
(2) Percentage based on 14,950,782 shares of common stock outstanding with
respect to the common stock and the shares issuable upon exercise of
warrants to purchase 7,013,800 shares and options to purchase 3,746,147
shares.
(3) Includes 1,301,437 shares issued and options to purchase 420,000 shares at
$1.00, 230,000 shares at $0.77, 1,000,000 shares at $0.31, and 500,000
shares at $0.44.
(4) Includes 352,950 shares issued, warrants to purchase 122,500 shares at
$1.50, 122,500 shares at $2.00, and 100,000 shares at $0.35, and options to
purchase 1,182 shares at $11.00, 17,500 shares at $1.00, 50,000 shares at
$0.35, 20,000 shares at $0.31, and 80,000 shares at $0.40.
(5) Includes 33,333 shares issued and options to purchase 18,500 shares at
$1.00, 50,000 shares at $0.35, and 20,000 shares at $0.31, and 70,000
shares at $0.40.
(6) Includes 16,667 shares issued and options to purchase 20,000 shares at
$1.00, 50,000 shares at $0.35, 20,000 shares at $0.31, and 70,000 at $0.40.
(7) Includes 298,571 shares issued to Mr. Scott and a corporation owned by him
and options to purchase 50,000 shares at $0.35, 30,000 shares at $0.31, and
70,000 shares at $0.40.
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There currently are no arrangements that may result in a change of ownership or
control.
Principal Holders of Common Stock.
The following table sets forth information, as of March 24, 2008, with respect
to the beneficial ownership of the Company's Common Stock by each person known
by the Company to be the beneficial owner of more than five percent (5%) of the
Company's outstanding Common Stock
Number of Percentage
Shares of the Class
Beneficially Beneficially
Name and Address of Beneficial Owner Owned (1) Owned (2)
------------------------------------ ------------ ------------
Dick Clark (3) 1,298,637 5.05%
c/o Dick Clark Productions
3003 West Olive Avenue
Burbank, CA 91505
Richard P. Kundrat (4) 3,451,437 13.42%
12 North State Route 17, Suite 210
Paramus, New Jersey 07652
Cede & Co. (5) 4,689,957 18.24%
P O Box 20, Bowling Green Station
New York, NY 10004
--------------------------------------------------------------------------------
(1) Beneficial Ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or
investment power with respect to securities. Shares of common stock subject
to options or warrants currently exercisable or convertible, or exercisable
or convertible within 60 days of March 25, 2007 are deemed outstanding for
computing the percentage of the person holding such option or warrant but
are not deemed outstanding for computing the percentage of any other
person.
(2) Percentage based on 14,950,782 shares of common stock outstanding with
respect to the common stock and the shares issuable upon exercise of
warrants to purchase 7,013,800 and options to purchase 3,746,147.
(3) Includes 628,637 shares issued and warrants to purchase 325,000 shares at
$1.00, 122,500 shares at $1.50, 122,500 shares at $2.00, and 100,000 shares
at $0.35.
(4) Includes 1,301,437 shares issued and options to purchase 420,000 shares at
$1.00, 230,000 shares at $0.77, 1,000,000 shares at $0.31, and 500,000
shares at $0.44.
(5) Cede & Co. is the nominee name of The Depository Trust Company, the record
holder for most shareholders who keep their securities in street name. Cede
& Co. has no beneficial interest in or voting power over these shares.
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Section 16(a) Beneficial Owners
Under Section 16(a) of the Securities Exchange Act of 1934, the Company's
directors, executive officers, and beneficial holders of more than 10% of the
Company's Common Stock are required to file reports of ownership and changes in
ownership with the Securities and Exchange Commission. Based on our records and
other information, the Company believes the following required reports were not
filed during FY 2007.
In April 2007, Mssrs. Scott, DeCrescenzo, and Hodock, each a NuVim
director, purchased 50,000, 33,333, and 16,667 shares of NuVim common stock,
respectively but failed to file the required forms four.
No executive officer or director sold any NuVim securities during 2007.
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Agenda Item 1 Election of Directors
Five directors are to be elected to hold office for approximately one year
until the next Annual Meeting and until their successors have been duly elected
and qualified. All nominees are presently members of the Board of Directors. All
five present directors were elected at the last annual meeting in May of 2007.
We have no reason to believe that any of the nominees will not serve if elected.
If any of the nominees becomes unavailable for election, which we do not expect,
the proxies will cast their votes for the substitute nominees as may be
designated by our Board of Directors, unless the Board reduces the number of
directors.
Board vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a majority vote
of the directors then in office, even if less than a quorum, or by a sole
remaining director. The executive officers are appointed by the Board and serve
at its pleasure.
The five directors receiving the highest number of votes will be elected.
When voting on the election of directors, each share of Common Stock casts one
vote.
Our Board recommends a vote FOR each of the nominees to the Board of
Directors.
Background and Business Experience of Directors
The following sets forth information about each nominee for election at
this Annual Meeting and the Company's other executive officers.
Richard P. Kundrat (64) Nominee for Director, NuVim(R) Director and Chief
Executive Officer since 1999
He has served since our inception as a director and our Chief Executive
Officer. He was elected as our Chairman of the Board in March 2000. He has
more than 30 years experience in the beverage industry, including a total
of 27 years in various positions at Thomas J. Lipton, Inc., the Lipton
subsidiary of Unilever NV, Englewood Cliffs, New Jersey ("Unilever/
Lipton") from which he retired in June 1996. Upon his retirement form
Unilever/Lipton, he founded the business management firm, Kundrat
Associates, Mahwah, New Jersey, which he operated full-time until he
joined NuVim in September 1999. From November 1991 to June 1996, Mr.
Kundrat was the General Manager of the Unilever/Lipton and Pepsi-Cola
partnership. From June 1987 to November 1991, he was the Vice
President/General Manager of the Foodservice, Bottler, Dairy Division at
Unilever/Lipton. Mr. Kundrat received his B.A. degree from the University
of Scranton. He currently is a director of Dialog Group, Inc.
Stanley H. Moger (71) Nominee for Director, NuVim(R) Director since March 2004.
Since January 1998, he has served as President of SFM Entertainment, LLC,
a provider of media services to major corporations. He received his B.A.
degree from Colby College.
Peter V. DeCrescenzo (57) Nominee for Director, Director of the Company since
January 2005; President and Chief Executive Officer of Dialog Marketing Services
Inc.
Since January 2007 Mr. DeCrescenzo has served as President and Chief
Executive Officer of Dialog Marketing Services, a subsidiary of Redi-
Direct Marketing, Inc. a privately held information services company.
From March 2003 to December 2006, he was the President and Chief Executive
Officer of Dialog Group, Inc. a publicly traded provider of relationship
marketing communications services and business and consumer targeting
databases. From
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November 2000 to March 2003, he served as President and Chief Executive
Officer of HealthCare Dialog, a direct marketing company specializing in
healthcare. In March 2000, HealthCare Dialog was acquired by Dialog Group,
Inc. From October 1993 until November 2000, Mr. DeCrescenzo was the
founding partner of PVD and Partners, a full-service healthcare marketing
and communications agency. He has been the Chairman of the Board of Dialog
Group, Inc. since April 2003. He received a BBA degree from Pace
University.
Calvin L. Hodock (73) Nominee for Director, Director of the Company since April
2005.
For more than five years, Mr. Hodock has been the President and Managing
Partner of The Hodock Group, a marketing consulting and research company,
located in Skillman, New Jersey. Since June 2002, he also has served as
Professor of Marketing, Berkeley College and from June 2002 to December
2003, he served as Adjunct Professor, Stern School of Business, New York
University. He received his B.B.A degree from the University of Cincinnati
and his M.S. degree in Marketing from the University of Illinois.
Doug Scott (41) Nominee for Director, Director of the Company since May 2006.
Mr. Scott has served as the President and CEO of the company he founded,
the Platinum Television Group and New Line Media Solutions since 1997.
Before that he was a Vice President and Senior Vice President of
Intermedia Marketing Solutions, Inc. with responsibility for marketing and
media development.
Board Participation
All the nominees who were members of the Board of Directors participated
in all four meetings held during FY 2007 and one held since then except that Mr.
DeCrescenzo and Mr. Hodock could not participate in part of one meeting and Mr.
DeCrescenzo was unable to attend the March 2008 meeting. In addition, on nine
occasions since January 2007, actions were taken by written consent. All
Directors attended the 2007 Annual Meeting and all are expected to attend this
year's.
CORPORATE GOVERNANCE
Board of Directors - Our Board has positions for five Directors that are elected
annually at the annual meeting of stockholders to hold office for one year and
until their successors are duly elected and qualified. Board vacancies and newly
created directorships resulting from any increase in the authorized number of
directors may be filled by a majority vote of the directors then in office, even
if less than a quorum, or by a sole remaining director. The executive officers
are appointed by the Board and serve at their discretion. There are no family
relationships among the directors or executive officers of NuVim.
All the Directors except Mr. Kundrat are independent as determined in accordance
with the rules of the National Association of Securities dealers.
The Board of Directors currently has three standing committees: an Audit
Committee, a Compensation Committee and a Corporate Governance and Nominating
Committee.
Audit Committee Our Audit Committee oversees our accounting and financial
reporting processes, internal systems of accounting and financial controls,
relationships with independent auditors, and audits of financial statements.
Specific responsibilities include the following:
o Selecting, hiring and terminating our independent auditors.
o Evaluating the qualifications, independence and performance of our
independent auditors.
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o Approving the audit and non-audit services to be performed by the
independent auditors.
o Reviewing the design, implementation, adequacy and effectiveness of our
internal controls and critical accounting policies.
o Overseeing and monitoring the integrity of our financial statements and
our compliance with legal and regulatory requirements as they relate to
financial statements or accounting matters.
o Together with management and our independent auditors, reviewing any
earnings announcements and other public announcements regarding our
results of operations.
o preparing the report that the Securities and Exchange Commission requires
in our annual proxy statement.
The Audit Committee is comprised of Mr. Scott, Mr. Moger, and Mr. DeCrescenzo.
Mr. Scott is serving as Chairman. The Board has determined all members of the
Audit Committee are independent under the rules of the National Association of
Securities Dealers. The Board has determined that Mr. Scott and Mr. DeCrescenzo
qualify as "audit committee financial experts," as defined by the rules of the
Securities and Exchange Commission.
Compensation Committee Our Compensation Committee assists our Board of Directors
in determining the development plans and compensation of our officers, directors
and employees. Specific responsibilities include the following:
o Approving the compensation and benefits of our executive officers.
o Reviewing the performance objectives and actual performance of our
officers.
o Administering our stock option and other equity compensation plans.
Our Compensation Committee is comprised of Messrs. Hodock, Moger, and Scott. Mr.
Hodock serves as Chairman. The Board has determined that all members of the
Compensation Committee are independent under the rules of the NASD.
Corporate Governance and Nominating Committee Our Corporate Governance and
Nominating Committee assists the Board by identifying and recommending
individuals qualified to become members of our Board of Directors, reviewing
correspondence from our stockholders, and establishing, evaluating and
overseeing our corporate governance guidelines. Specific responsibilities
include the following:
o Evaluating the composition, size and governance of our Board of Directors
and its committees and make recommendations regarding future planning and
the appointment of directors to our committees.
o Establishing a policy for considering stockholder nominees for election
to our Board of Directors.
o Evaluating and recommending candidates for election to our Board of
Directors; reviewing our corporate governance principles and providing
recommendations to the Board regarding possible changes.
o Reviewing and monitoring compliance with our Code of Ethics and our
insider trading policy.
Our Corporate Governance and Nominating Committee is comprised of Messrs.
DeCrescenzo, Scott, and Hodock. Mr. DeCrescenzo serves as Chairman. The Board
has determined that all members of the Corporate Governance and Nominating
Committee are independent.
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Corporate Documents
You can obtain corporate governance information from our home page,
www.NuVim.com. Copies of the following information can be found on the home
page or is available in print to any stockholder who requests it.
o Our Committee Charters: Audit Committee, Corporate Governance and
Nominating Committee, and Compensation Committee.
o Our Code of Conduct and Business Ethics.
Executive Officers
Our executive officers and directors, including their ages as of March
31, 2007, and certain information about them are set forth below. Our directors
serve for terms of one year, or until their successors are elected.
Name Age Position
Richard P. Kundrat 64 Chairman of the Board, Chief Executive Officer,
and Chief Financial Officer
Background and Business Experience of Executive Officers
There are no executive officers except Mr. Kundrat who was discussed as a
candidate for director. Mr. Young, our Vice President of Operations, resigned
as an officer in March 2006, Mr. Vesey, our Chief Financial Officer, resigned in
May 2006, and Mr. Sullivan, our Vice President of Sales, resigned at the end of
October 2006.
Executive Compensation
The following table sets forth certain information concerning total
compensation received by our Chief Executive Officer and our other executive
officers during the last year for services rendered to NuVim in all capacities.
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SUMMARY COMPENSATION TABLE
FOR THE YEAR ENDED DECEMBER 31, 2007
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Non-Equity Non-Qualified
Incentive Plan Deferred
Option Compensation Compensation All Other
Name and Salary Bonus Stock Awards Awards Earnings Earnings Compensation Total
Principal Position Year ($) ($) ($) ($) ($) ($) ($) ($)
(a) (b) (c) (d) (e) (f) (g) (h) (i) (j)
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Richard Kundrat
CEO 2007 225,000 135,000 158,600 518,600
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Total 225,000 135,000 158,600 518,600
=======================================================================================================
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The following table sets forth the equity awards outstanding at the end of 2007.
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OUTSTANDING EQUITY AWARDS AT December 31, 2007 YEAR-END
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OPTION AWARDS STOCK AWARDS
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Equity
Equity Equity Incentive
Incentive Incentive Plan Awards:
Plan Plan Awards: Market or
Awards: Market Number of Product Value
Number of Number of Number of Number of Value of Unearned of Unearned
Securities Securities Securities Shares or Shares or Shares, Units Shares, Units
Underlying Underlying Underlying Units of Units of or Other or Other
Unexercised Unexercised Unexercised Option Stock That Stock That Rights that Rights that
Options Options Unearned Exercise Option Have not Have not Have not Have not
(#) (#) Options Price Expiration Vested Vested Vested Vested
Name Exercisable Unexercisable (#) ($) Date (#) ($) (#) ($)
(a) (b) (c) (d) (e) (f) (g) (h) (i) (j)
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Richard
Kundrat 420,000 $ 1.00 6/21/2015
Chair of the
Board & CEO 230,000 $ 0.77 8/4/2015
1,000,000 $ 0.31 7/25/2016
500,000 $ 0.44 5/17/2017
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TOTALS 2,150,000 - - $ - -
=============================================================
Compensation Discussion
The compensation for NuVim's only executive officer is fixed by his
contract at $225,000 per year and provides for a potential bonus based on the
attainment of goals set by the Board of Directors. Mr. Kundrat accepted common
stock in lieu of cash for his entire 2006 bonus. He has deferred payment of his
2007 bonus until January 2010. In both years his bonus was less than the maximum
permitted by his contract. In neither 2007 nor 2006 was he paid all the cash due
under his contract. For 2006, $95,483 of salary has still not been paid. An
additional $121,800 of salary remains unpaid for 2007. In March 2008 Mr. Kundrat
agreed to defer payment of his 2007 bonus in the amount of $135,000 and unpaid
2006 and 2007 salary to 2010. At that time he may choose payment in cash or
shares of NuVim common stock valued at $0.20 per share.
Employment Agreements
Each of our officers serves at the discretion of our Board of Directors.
In September 2004, we entered into employment agreements with Richard P.
Kundrat, our Chairman of the Board and Chief Executive Officer, who also serves
as Chief Financial Officer. This contract expires during June 2008. Under this
agreement, Mr. Kundrat's base salary is $225,000 per year. This base salary is
subject to
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increase at the discretion of the Board. Under his employment agreement, Mr.
Kundrat is entitled to participate in an annual bonus program, if and when such
program is adopted by the Board. His receipt of bonus compensation is within the
sole discretion of the Board of Directors, and the Board has the right to alter,
amend or eliminate all or any part of any bonus at any time, without
compensation. He is also is entitled to participate in all of our employee
benefit plans, including any stock plan adopted by the Board that permits
participation by executive officers. There is no company-provided health
insurance or any similar benefits under their respective agreements. The Board
may terminate the agreement at any time for "cause" or in the event of Mr.
Kundrat's disability or death. If the agreement is terminated without "cause,"
he is entitled to one year's base salary, in addition to any other accrued
benefits which have been earned or become payable as of the date of the
termination. In the event that the agreement is terminated because of death or
disability, we will continue to pay Mr. Kundrat's full salary through the end of
the month in which his period of employment ends, together with any benefits
which have been earned or become payable as of the termination date. As part of
this agreement, he has signed a nondisclosure, developments and nonsolicitation
agreement, in which he agrees, among other things, to protect our confidential
information, not to solicit our employees, and not to breach any agreements with
third parties.
Securities authorized for issuance under equity compensation plans
The equity compensation reported in this section has been and will be
issued pursuant to individual compensation contracts and arrangements with
employees, directors, consultants, advisors, vendors, suppliers, lenders and
service providers. The equity is reported on an aggregate basis as of December
31, 2007. Our security holders have not approved the compensation contracts and
arrangements underlying the equity reported.
Directors' Compensation
Prior to our initial public offering in June of 2005 we have never paid
cash compensation to our directors, but directors have, from time to time,
received shares of common stock and option grants. Under the 2005 Directors
Stock Option Plan, which became effective upon the closing of the initial public
offering, each director received an option to purchase 10,000 shares of common
stock, which vests and becomes exercisable over three years in equal
installments. Each director also received 7,500 for their first year of service,
and is eligible to receive an option to purchase an additional 7,500 shares in
each year of service thereafter. Each director also receives an option to
purchase an additional 500 shares for each committee on which that director
serves, except that each year the chairman of the Audit Committee receive an
option to purchase 4,000 shares and the chairmen of the Compensation Committee
and the Corporate Governance and Nominating Committee each receive an annual
option to purchase 2,000 shares as compensation for their services as chairman
of the committees. The annual options become immediately vested and exercisable.
Under the 2006 Employee Stock Option Plan, each outside director receives
an annual option to purchase 50,000 shares. In 2007, these options were granted
at a per share option price of $0.40. In 2006 the options were granted at a per
share price of $0.35. In addition, each independent director receives 10,000 for
serving on one of the three board committees. In both 2007 and 2006, 90,000
shares were issued pursuant to this provision. In 2007, the per share price was
$0.40; in 2006, the price was $0.31.
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The following table summarizes Director compensation during 2007:
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DIRECTOR COMPENSATION
FOR THE YEAR ENDED DECEMBER 31, 2007
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Non-Equity Non-Qualified
Fees Earned or Stock Option Incentive Plan Deferred Compensation All Other
Paid in Cash Awards Awards Compensation Earnings Compensation Total
Name ($) ($) ($) ($) ($) ($) ($)
(a) (b) (c) (d) (e) (f) (g) (h)
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Stanley Moger 23,064 23,064
Peter V.
DeCrescenzo 20,181 20,181
Douglas Scott 20,181 20,181
Calvin Hodock 20,181 20,181
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2007 TOTALS - - 83,607 - - - 83,607
=============================================================================================================
Non-employee directors are reimbursed for their reasonable out-of-pocket
expenses incurred in attending meetings of the Board of Directors.
Independent Registered Public Accounting Firm:
Sherb & Co., LLP of New York, NY have audited our 2007 financial
statements. WithumSmith+Brown, P.C. of Somerville, New Jersey, served as
auditors for 2006. The Audit Committee and the Board have not yet selected our
auditor for 2008. Neither accountant is expected to attend the Annual Meeting,
and neither asked for an opportunity to address the shareholders.
The following table sets forth fees billed to the Company by
WithunSmith+Brown as independent auditors for the years ended December 31, 2007
and December 31, 2006 for (i) services rendered for the audit of the Company's
annual financial statements and the review of the Company's quarterly financial
statements and also includes related fees for all SEC filings, (ii) services
rendered that are reasonably related to the performance of the audit or review
of the Company's financial statements that are not reported as Audit Fees, and
(iii) services rendered in connection with tax preparation, compliance, advice
and assistance. The Board pre-approved all services rendered by the Company's
independent auditors.
Independent Registered Public Accounting Firm Fees and Services
For the fiscal year ended December 31, 2007 December 31, 2006
Audit Fees $35,000 $174,645
Audit - Related Fees 45,925 ---
Tax Fees 5,000 10,575
--------------------------------------------
Total Fees $89,925 $185,220
============================================
12
STOCK PERFORMANCE CHART
----------------------------------------------------------------------------
High Bid Low Bid
----------------------------------------------------------------------------
2008
First Quarter $0.27 $0.17
Second Quarter $0.23 $0.18
(Through April 10, 2008)
----------------------------------------------------------------------------
2007
First Quarter $0.55 $0.13
Second Quarter $0.59 $0.25
Third Quarter $0.30 $0.18
Fourth Quarter $0.35 $0.23
----------------------------------------------------------------------------
2006
First Quarter $0.70 $0.50
Second Quarter $0.53 $0.27
Third Quarter $0.40 $0.16
Fourth Quarter $0.32 $0.16
----------------------------------------------------------------------------
Certain Relationships and Related Transactions
Before he was elected in May, 2006, Mr. Scott's production company,
Platinum Television Group, engaged in two transactions with NuVim. In 2005,
NuVim paid Platinum a total of $19,700 for advertising production services. In
2006, NuVim issued 248,581 shares of common stock, valued at $87,000, to
Platinum for TV production and placement services and the purchase of broadcast
time. Management believes that the price for the services delivered was in line
with industry standards.
During 2006, Mr. Kundrat, our CEO, advanced the Company working capital
funds in anticipation of the receipt of funds from the sale of the State of New
Jersey Tax losses. A total of $160,000 was advanced in increments beginning in
August and ending in December when the advances were fully repaid. The officer
was also paid approximately $1,600 in interest that was accrued at 8% and will
be paid approximately $4,000 to reimburse him for his tax expense resulting from
the source of the funds and the timing of repayment. In 2007, he advanced
$25,000 which was also repaid during the fiscal year. No interest was accrued.
13
Agenda Item 2 Approval of the 2008 Outside Director Stock Option Plan
Prior to our initial public offering of common stock and warrants, we had
adopted the 2005 Directors Stock Option Plan to better link the Directors'
interests to those of the stockholders through equity based incentives. In 2006
terminated the 2005 plan and adopted the 2006 Employee Stock Option Plan which
provided automatic option grants to our outside directors and Board committee
members. Almost all the shares available for issuance under the 2006 plan have
been committed. Stock Options are a key aspect of NuVim's efforts to attract,
retain, and motivate the highly qualified individuals required by current
business conditions to serve on our Board and its committees. The 2008 Outside
Director Stock Option Plan (the "2008 Plan") meets this need. None of the
Company's employees are eligible to participate in the plan.
The affirmative votes of a majority of the common shares that are voted
are necessary to approve the 2008 Plan.
Our Board recommends a vote FOR the adoption of the 2008 Outside Director
Stock Option Plan.
At its March 2008 meeting, the Directors proposed to adopt the 2008 Plan
to make automatic common stock option grants to our Outside Directors and
members of our Board's three committees: Nominations and Corporate Governance,
Audit, and Compensation.
The number of shares subject to the plan shall be 1,000,000 shares.
The 2006 Plan provides automatic annual grants to our Outside Directors of
options to purchase 50,000 shares and, to each Independent Directors who is a
chair or member of a Board Committee, of options to purchase 10,000 shares for
each committee on which they serve.
No executive officers are eligible to receive grants under the 2008 Plan.
The only aspect of the 2008 Plan which affects the Company's directors and
executive officers is the provision relating to the automatic grants. The
following table shows the number of common shares which would be granted to or
confirmed for each executive officer, the non-executive directors, and the Non
-Executive Officer Employee Group on the date of each annual meeting.
NEW PLAN BENEFITS
from the amendments
2006 Employee Stock Option Plan
-----------------------------------
Name and Position Dollar Value Number of Units
Rick Kundrat, CEO None None
Michael Vesey, CFO None None
Executive Group None None
Non-Executive
(1)
290,000(2)
Director Group
Non-Executive Office None None
Employee Group
(1) The dollar value of the option grants will only be known on the date of
each annual meeting.
(2) Assuming there are four outside directors and three chair committees and
each is a member two or three of the three Board committees: Corporate
Governance and Nominations, Audit, and Compensation Committees.
14
Approval of the Plan requires the affirmative vote of the holders of a
majority of the shares of common stock, casting one vote each.
A copy of the 2008 Plan, with these amendments indicated therein, is
included in this Information Statement as Exhibit A and the description below is
qualified in its entirety by reference to the 2008 Plan.
Number of Options Authorized - The 2008 Plan reserves 1,000,000 shares of
the Company's Common Stock for the issuance of options under the 2008 Plan.
The 2008 Plan Administration - The Compensation Committee of the Board of
Directors will administer the 2008 Plan. If no Compensation Committee is
designated, the Board of Directors shall administer the Plan.
Term and Amendment of the 2008 Plan - The 2008 Plan was effective as of
March 20, 2008, but is subject to approval by the Stockholders the 2008 Annual
Meeting. No Options may be granted on or after March 20, 2018. The Board of
Directors may suspend or terminate the 2008 Plan at any time and it shall
terminate when all the shares reserved for options have been purchased. The
Board may amend the Plan as its deems necessary and intends to make any
amendments necessary to comply with changes in the Income Tax or Securities Laws
of the United States or the State of its incorporation.
Stock Option Award - Stock options awarded will, to the extent available,
will be Qualified under Section 442 of the Internal Revenue Code. Non-Qualified
which fall outside Section 442's requirements, will be used if Qualified options
are not available. The options will expire 10 years after the date of grant and
are all available for exercise immediately upon grant. The exercise price of the
options may not be less than the fair market value on the date of grant. The
2008 Plan provides that the Committee for any reason, including complying with
state and Federal securities laws, may restrict the transfer of Stock Options.
The Stock Option Certificate utilized by the Committee restricts transfer of the
Option and allows exercise after termination under limited circumstances.
Adjustments - After the common stock consolidation proposed at this 2008
Annual Meeting, the number of shares reserved for the exercise of Options and,
at all times, the number of shares for which an Option is outstanding shall be
adjusted by the Board in an equitable manner to reflect any change in the
capitalization of the Company, including, among other things, stock dividends
and stock splits.
Federal Income Tax Consequences - The granting of Qualified Stock Options
or Nonqualified Stock Options does not result in immediate taxable income to the
optionee.
The exercise of a Qualified Stock Option will not result in taxable income
to the optionee if the optionee does not dispose of the stock within two years
of the date the option was granted and one year after the option is exercised.
If these requirements are met, any gain realized by the optionee will be taxed
as a long-term capital gain. The Company will not receive a tax deduction for
the resulting gain. If these holding periods are not met, the option will be
treated generally as a nonqualified Stock Option for tax purposes.
The exercise of a Nonqualified Stock Option award will result in taxable
income to the optionee. The amount by which the market price exceeds the
exercise price would be taxable as ordinary income. Income tax obligations may
be met either through cash payments at the time of exercise or through share
withholding. At the discretion of the Committee, options may be allowed to elect
to defer the receipt of
15
the taxable shares resulting form the exercise. If this election is made, the
optionee will be liable for the taxes on the full value of the shares plus any
accumulated dividends at their value upon distribution. The Company will receive
a tax deduction for the compensation that corresponds to the compensation gain.
Agenda Item 3 Other Matters
Your Board of Directors knows of no other matters to be brought before the
Annual Meeting, but if other matters properly come before the meeting, the votes
cast by Messrs. Kundrat and Moger as proxies will probably constitute a majority
of the votes that may be cast by the common stock and thus determine the outcome
of any vote on a new matter.
Stockholder Proposals for the 2009 Annual Meeting
Nominations for director and Stockholder proposals relating to the
Company's 2009 Annual Meeting must be received by the Company at its principal
executive offices, 12 North State Route 17, Paramus New Jersey 07652, Attention:
CEO, no later than February 24th, 2009.
Expenses of Meeting
The Company will bear the expenses in preparing, printing, and mailing the
Information Statement and Annual Reports for FY 2006 and FY 2007 on Form 10-KSB
to the stockholders. The cost of soliciting the proxies on behalf of our Board
in connection with this meeting is estimated to be about $1,500. Our employees,
officers, and directors may also solicit proxies. We will reimburse brokerage
houses and other custodians, nominees, and fiduciaries for their reasonable out
-of-pocket expenses for forwarding proxy and solicitation materials to the
owners of common stock.
YOUR BOARD OF DIRECTORS IS ASKING YOU FOR A PROXY AND URGING YOU TO VOTE
FOR THE ELECTION OF ALL FIVE NOMINEES FOR DIRECTORS AND FOR THE APPROVAL OF THE
2008 OUTSIDE DIRECTOR STOCK OPTION PLAN.
By Order of the Board of Directors,
Mark Alan Siegel
Secretary of the Company
Dated: April 17, 2008
16
Exhibit A
---------
NuVim, Inc.
2008 OUTSIDE DIRECTOR STOCK OPTION PLAN
Section 1 PURPOSE
The purpose of this Plan is to promote the interests of NuVim, Inc. (the
"Company") by granting Options to purchase Stock to Outside Directors and Board
Committee Members in order to (a) attract and retain Quality Outside Directors
and Board Committee Members; (b) provide an additional incentive to each Outside
Director and Board Committee Member to work to increase the value of the Stock;
and (c) provide each Outside Directors and Board Committee Members with a stake
in the future of the Company which corresponds to the stake of the Company's
stockholders.
Section 2 DEFINITIONS
Each term set forth in this Section 2 shall have the meaning set forth
opposite such term for purposes of this Plan and for any Option granted under
this Plan. For purposes of such definitions, the singular shall include the
plural and the plural shall include the singular. Unless otherwise expressly
indicated, all Section references herein shall be construed to mean references
to a particular Section of this Plan.
2.1 Board means the Board of Directors of the Company.
2.2 Change of Control means any of the following:
(i) the acquisition, other than from the Company, by any
individual, entity or group (within the meaning of Section 13(d) or
14(d)(2) of the Securities Exchange Act of 1934, as amended from time to
time) (the "Exchange Act"), of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 15% or more of either
(A) the then outstanding shares of Stock (the "Outstanding Company Common
Stock") or (B) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Company Voting Securities"); provided, however, that any
acquisition by (x) the Company or any of its subsidiaries, or any employee
benefit plan (or related trust) sponsored or maintained by the Company or
any of its subsidiaries or (y) any corporation with respect to which,
following such acquisition, more than 50% of, respectively, the then
outstanding shares of common stock of such corporation and the combined
voting power of the 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 Company Voting Securities
immediately prior to such acquisition in substantially the same portion as
their ownership, immediately prior to such acquisition of the Outstanding
Company Common Stock and Company Voting Securities, as the case may be,
shall not constitute a change in control of the Company; or
(ii) individuals who, as of January 31, 2008, constitute the Board
of Directors of the Company (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board, provided that any
individual becoming a director subsequent to January 31, 2008, whose
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election or nomination for election by the Company's shareholders 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 was
elected prior to January 31, 2008, even if his initial assumption of
office is in connection with an actual or threatened election contest
relating to the election of the Directors of the Company (as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act); or
(iii) approval by the shareholders of the Company of a
reorganization, merger or consolidation (a "Business Combination"), in
each case, with respect to which all or substantially all of the
individuals and entities who were the respective beneficial owners of the
Outstanding Company Common Stock and Company Voting Securities immediately
prior to such Business Combination do not, following such Business
Combination, beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination in substantially the
same proportion as their ownership immediately prior to such Business
Combination or the Outstanding Company Common Stock and Company Voting
Securities, as the case may be; or
(iv) (A) a complete liquidation or dissolution of the Company or a
(B) 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 disposition, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors is then owned beneficially, 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 Company Voting Securities immediately prior to such sale or
disposition in substantially the same proportion as their ownership of the
Outstanding Company Common Stock and Company Voting Securities, as the
case may be, immediately prior to such sale or disposition.
2.3 Code means the Internal Revenue Code of 1986, as amended.
2.4 Committee means the committee of Non-Employee Directors appointed
by the Board to administer this Plan as contemplated by Section 5.
2.5 Company means NuVim, Inc., a Delaware corporation, and any
successor to this corporation.
2.6 Exchange Act means the Securities Exchange Act of 1934, as amended.
2.7 Fair Market Value in respect of the Stock on any day means (a) if
the principal market for the Stock is a national securities exchange, the
average between the high and low sales prices of the Stock on such day as
reported by such exchange or on a consolidated tape reflecting transactions on
such exchange; (b) if the principal market for the Stock is not a national
securities exchange and the Stock is quoted on The NASDAQ Stock Market
("NASDAQ"), and (i) if actual sales price information is available with respect
to the Stock, then the average between the high and low sales prices of the
Stock on such day on NASDAQ, or (ii) if such information is not available, then
the average between the highest bid and lowest asked prices for the Stock on
such day on NASDAQ; or (c) if the principal market for the Stock is not a
national securities exchange and the Stock is not quoted on NASDAQ, then the
average between the highest bid and lowest asked prices for the Stock on such
day as reported by
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The Nasdaq Bulletin Board, or a comparable service; provided that if clauses
(a), (b) and (c) of this Paragraph are all inapplicable, or if no trades have
been made or no quotes are available for such day, then the fair market value of
the Stock shall be determined by the Committee by any method consistent with
applicable regulations adopted by the Treasury Department relating to stock
options. The determination of the Committee shall be conclusive in determining
the fair market value of the stock.
2.8 For cause, when used in connection with termination of a grantee's
employment, shall have the meaning set forth in any then-effective employment
agreement between the grantee and the Company or Subsidiary. In the absence of
such an employment agreement, "for cause" means: (a) charge or conviction of a
felony or any other crime (whether or not involving the Company or a
Subsidiary); (b) engaging in any substantiated act involving moral turpitude;
(c) the continual or frequent possession by grantee of an illegal substance or
abuse by the grantee of a controlled substance or alcohol resulting in a pattern
of behavior disruptive to the business operations of the Company or a
Subsidiary; (d) engaging in any act which, in each case, subjects, or if
generally known would subject, the Company or a Subsidiary to public ridicule or
embarrassment; (e) any action by the grantee which constitutes dishonesty
relating to the Company or a Subsidiary, a willful violation of law (other than
traffic and similar minor offenses) or a fraud against the Company or a
Subsidiary; (f) material violation of the Company's or a Subsidiary's written
policies, including, without limitation, those relating to sexual harassment or
the disclosure or misuse of confidential information; (g) misappropriation of
the Company's or a Subsidiary's funds or assets by the grantee for personal
gain; or (h) serious neglect or misconduct in the performance of the grantee's
duties for the Company or a Subsidiary or willful or repeated failure or refusal
to perform such duties; in each case determined by the Committee, which
determination shall be final, binding and conclusive.
2.9 Insider shall mean an employee who is, at the time of an award made
under this Plan, an insider pursuant to Section 16 of the Exchange Act.
2.10 ISO means any option granted under this Plan to purchase Stock
which satisfies the requirements of Section 422 of the Code. Any Option that is
not specifically designated as an ISO shall under no circumstances be considered
an ISO.
2.11 Non-Employee Director means any member of the Board of Directors of
the Company qualified as such under SEC Rule 16b-3(b)(3)(i) under the Exchange
Act, or any successor rule.
2.12 Non-ISO means any option granted under this Plan to purchase stock
that fails to satisfy the requirements of Section 422 of the Code or has been
specifically denominated as a non-ISO by the Committee as of the time the option
is granted.
2.13 Option means an ISO or a Non-ISO.
2.14 Option Certificate means the written agreement or instrument which
sets forth the terms of an Option granted to a Key Employee, Independent
Advisor, Key Consultant, or Outside Director under this Plan.
2.15 Option Price means the price which shall be paid to purchase one
share of stock upon the exercise of an Option granted under this Plan.
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2.16 Outside Director means any member of the Board of Directors of the
Company who is not employed by the Company, regardless of whether such person
qualifies as a Non-Employee Director.
2.17 Parent Corporation means any corporation which is a parent
corporation of the Company within the meaning of Section 424(e) of the Code.
2.18 Plan means this NuVim, Inc. 2008 Outside Director Stock Option
Plan, as amended from time to time.
2.19 Principal Officer means the Chairman of the Board (if the Chairman
of the Board is a payroll employee), the Chief Executive Officer, the President,
any Executive Vice President, any Senior Vice President, any Vice President, the
Chief Financial Officer, and the Treasurer of the Company and any other person
who is an "officer" of the Company as that term is defined in SEC Rule 16a-1(f)
under the Exchange Act or any successor rule there under.
2.20 Securities Act means the Securities Act of 1933, as amended.
2.21 SEC means the Securities Exchange Commission.
2.22 Stock means the Common Stock, $.00001 par value per share, of the
Company.
2.23 Subsidiary means any corporation that is a subsidiary corporation
of the Company within the meaning of Section 424(f) of the Code.
2.24 Ten Percent Shareholder means a person who owns after taking into
account the attribution rules of Section 424(d) of the Code more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company, a Subsidiary or a Parent Corporation.
Section 3. SHARES SUBJECT TO OPTIONS
There shall be 1,000,000 shares of Stock reserved for issuance in
connection with ISOs and Non-ISOs granted under this Plan. Shares of Stock
shall be reserved to the extent that the Company deems appropriate from
authorized but unissued shares of Stock and from shares of Stock which have been
reacquired by the Company. Any shares of Stock subject to an Option which remain
after the cancellation, expiration, or exchange of that Option for another
Option thereafter shall again become available for use under this Plan.
Section 4. EFFECTIVE DATE
The effective date of this Plan shall be March 20, 2008, subject to
approval by the stockholders of the Company acting at a duly called meeting of
stockholders or acting by unanimous written consent in lieu of a meeting,
provided the stockholder approval occurs within twelve (12) months after the
date the Board approves and adopts this Plan.
Section 5. COMMITTEE
(a) The Compensation Committee, consisting solely of not less than two
(2) Non-Employee Directors, shall administer this Plan. The members of the
Committee shall be appointed by, and serve at,
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the pleasure of the Board. To the extent required for transactions under the
Plan to qualify for the exemptions available under Rule 16b-3 promulgated under
the Exchange Act, all actions relating to awards to persons subject to Section
16 of the Exchange Act shall be taken by the Committee (as defined below). In
addition, to the extent required for compensation realized from awards under the
Plan to be deductible by the Company pursuant to Section 162(m) of the Code, all
actions relating to awards to persons subject to Section 162(m) of the Code
shall be taken by the Committee (as defined below).
(b) The Committee acting in its absolute discretion shall exercise all
powers and take any action as expressly called for under this Plan. Furthermore,
the Committee shall have the power to interpret this Plan and to take any other
action in the administration and operation of this Plan as the Committee deems
equitable under the circumstances, which action shall be binding on the Company,
on each affected Outside Director or Committee Member and on each other person
directly or indirectly affected by that action.
Section 6. ELIGIBILITY
Only Outside Directors and Board Committee Members shall be eligible for
the grant of Options under this Plan.
Section 7. ANNUAL GRANT OF OPTIONS TO OUTSIDE DIRECTORS AND COMMITTEE CHAIRS
(a) Each Outside Director shall, effective upon election or appointment
at the annual meeting any time on or after May 1, 2008, but not more often than
once a calendar year, shall be granted an option to purchase 50,000 shares.
(b) In addition to the foregoing, each Chair of a Regular Board
Committee shall, effective on election or appointment at the annual meeting in
each year commencing in 2008, but not more often than once a calendar year,
shall be granted an option to purchase 10,000 shares.
(c) In addition to both of the foregoing, each member of a Regular
Board Committee shall, effective on election or appointment at the annual
meeting in each year commencing in 2008, but not more often than once a calendar
year, shall be granted an option to purchase 10,000 shares.
(d) If a person becomes an Outside Director, Regular Committee Chair,
or Regular Committee Member, after the annual meeting in any year, they shall
immediately, but not more often than once in a calendar year be granted the
applicable options described in 7.3 (a), (b), and (c).
(e) All of the Option granted to each individual shall be exercisable
immediately.
(f) The Option Price for each share of stock subject to an option
granted under this section shall be the Fair Market Value of a share of Stock on
the date the Option is granted.
(g) Each Option granted pursuant to this section shall be an ISO to the
maximum extent possible.
Section 8. OPTION PRICE
The Option Price for each share of Stock subject to an ISO shall not be
less than the Fair Market Value of a share of Stock on the date the Option is
granted. If the Option is an ISO and the Outside Director or Committee Member is
a Ten Percent Shareholder, the Option Price for each share of Stock subject to
that Option shall not be less than 110% of the Fair Market Value of a share of
Stock on the date the Option is granted. The Option Price shall be payable in
full upon the exercise of any Option, and an Option Certificate at the
discretion of the Committee (except for an Option granted to a Non-Employee
Director) may provide for the payment of the Option Price either in cash or in
Stock acceptable to the Committee or in any combination of cash and Stock
acceptable to the Committee. Any payment made in
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Stock shall be treated as equal to the Fair Market Value of that Stock on the
date the properly endorsed certificate for such Stock is delivered to the
Committee.
Section 9. EXERCISE PERIOD
(a) Each Option granted under this Plan shall be exercisable in whole
or in part at such time or times as set forth in the related Option Certificate,
but no Option Certificate shall provide that:
(1) an Option is exercisable before the date such Option is
granted, or
(2) an Option is exercisable after the date which is the tenth
anniversary of the date such Option is granted.
If an option that is an ISO is granted to a Key Employee who is a Ten Percent
Shareholder, the Option Certificate shall provide that the Option is not
exercisable after the expiration of five years from the date the Option is
granted. An Option Certificate may provide for the exercise of an Option after
the employment of a Key Employee or service by an Independent Advisor or Key
Consultant has terminated for any reason whatsoever, including death or
disability. In connection with the termination for any reason of employment by
or service to the Company or any Subsidiary of any particular holder of any
Option, the Committee may, in its discretion, determine to extend the period
during which that Option may be exercised as provided in the related Option
Certificate; provided, however, that no extension shall permit an Option to be
exercised beyond the date specified in paragraph (b) of this Section or the date
applicable to Options granted to a Ten Percent Shareholder, as the case may be.
(b) Notwithstanding any other provision of this Section, upon a Change
of Control each Option granted under this Plan prior to that Change of Control
shall immediately become exercisable to the full extent of the original grant
and, in the case an Option held by a Key Employee shall remain exercisable for
three months (or such longer period as specified in the particular Option with
regard to all or any shares of Stock covered by such Option) after any
termination of employment of that Key Employee.
Section 10. TRANSFERABILITY
The Committee shall impose any restrictions on the transfer of options
granted under the Plan as it may deem advisable, including, without limitation,
restrictions deemed necessary or advisable under applicable federal securities
laws, under the requirements of any stock exchange or market upon which Stock is
then listed in or traded, and under any Blue Sky or state securities laws
applicable to such Stock. Upon request of any person receiving an award of an
Option under the Plan, the Committee may, in its sole and absolute discretion,
determine to remove any transfer restriction originally imposed and may, in
connection with the removal of such transfer restriction, impose such conditions
(including restrictions on further transfers of the Option or upon transfers of
the Stock upon exercise of the Option) as the Committee, in its discretion, may
deem advisable, including, without limitation, restrictions deemed by the
Committee to be necessary or advisable in order to comply with applicable
federal and state securities laws or the requirements of any stock exchange or
market upon which the Stock is then listed or traded. Subject to its authority
to impose any conditions on further transfers, the Committee shall authorize the
transfer of Options for bona fide estate planning purposes or for contributions
to qualified charities or charitable trusts.
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Section 11. SECURITIES REGISTRATION AND RESTRICTIONS
Each Option Certificate shall provide that, upon the receipt of shares of
Stock as a result of the exercise or surrender of an Option, the Outside
Director shall, if so requested by the Company, hold those shares of Stock for
investment and not with a view toward resale or distribution to the public and,
if so requested by the Company, shall deliver to the Company a written statement
to that effect satisfactory to the Company. Each Option Certificate shall also
provide that, if so requested by the Company, the Outside Director shall
represent in writing to the Company that he or she will not sell or offer to
sell any of these shares of Stock unless a registration statement shall be in
effect with respect to that Stock under the Securities Act and any applicable
state securities law or unless he or she shall have furnished to the Company an
opinion, in form and substance satisfactory to the Company, of legal counsel
acceptable to the Company, that registration is not required. Certificates
representing the Stock transferred upon the exercise or surrender of an Option
granted under this Plan may, at the discretion of the Company, bear a legend to
the effect that this Stock has not been registered under the Securities Act or
any applicable state securities law and that this Stock may not be sold or
offered for sale in the absence of (i) an effective registration statement as to
this Stock under the Securities Act and any applicable state securities law or
(ii) an opinion, in form and substance satisfactory to the Company, of legal
counsel acceptable to the Company, that registration is not required.
Furthermore, the Company shall have the right to require a Key Employee, Key
Consultant, Independent Advisor, or Outside Director to enter into any
stockholder or other related agreements as the Company deems necessary or
appropriate under the circumstances as a condition to the issuance of any Stock
under this Plan to an Outside Director.
Section 12. LIFE OF PLAN
No Option shall be granted under this Plan on or after the earlier of
(a) the tenth anniversary of the original effective date of this
Plan as determined under Section 4; provided, however, that after that
anniversary this Plan otherwise shall continue in effect until all outstanding
Options have been exercised in full or no longer are exercisable, or
(b) the date on which all of the Stock reserved under Section 3 of
this Plan has, as a result of the exercise of Options granted under this Plan,
been issued or no longer is available for use under this Plan, in which event
this Plan also shall terminate on that date.
Section 13. ADJUSTMENT
The number of shares of Stock reserved under Section 3 of this Plan, the
number of shares of Stock to be granted from time to time pursuant to Section
7.3 of this Plan (if permitted by the exemption in Rule 16b-3 under the Exchange
Act or any successor rule), the number of shares of Stock that may be granted
pursuant to Section 5 of this Plan by the Committee to any single Key Employee
or Key Consultant, and the number of shares of Stock subject to Options granted
under this Plan and the Option Price of such Options shall be adjusted by the
Board in an equitable manner to reflect any change in the capitalization of the
Company, including, but not limited to, stock dividends, stock consolidations,
or stock splits. Furthermore, the Board shall have the right to adjust in a
manner which satisfies the requirements of Section 424(a) of the Code the number
of shares of Stock reserved under Section 3 of this Plan and the number of
shares subject to Options granted under this Plan and the Option Price of such
Options in the event of any corporate transaction described in Section 424(a) of
the Code that provides for the substitution or assumption of these Options. If
any adjustment under this Section 13 would create a fractional share of Stock or
a right to acquire a fractional share of Stock, any fractional share shall be
disregarded and the number of shares of Stock reserved under this Plan and the
number subject to any
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Options granted under this Plan shall be the next lower number of shares of
Stock, rounding all fractions downward. An adjustment made under this Section 13
by the Board shall be conclusive and binding on all affected persons and,
further, shall not constitute an increase in "the number of shares reserved
under Section 3" within the meaning of Section 15(a) of this Plan.
Section 14. SALE OR MERGER OF THE COMPANY
If the Company agrees to sell all or substantially all of its assets for
cash or property or for a combination of cash and property or agrees to any
merger, consolidation, reorganization, division, or other corporate transaction
in which Stock is converted into another security or into the right to receive
securities or property and the agreement governing the transaction does not
provide for the assumption or substitution of the Options granted under this
Plan, each then outstanding Option, at the direction of the Board, may be
canceled unilaterally by the Company as of the effective date of that
transaction in exchange for a payment in cash or Stock, or in a combination of
cash and Stock, equal in amount to the excess of the Fair Market Value on that
date of the shares represented by the canceled Options over the Option Price for
such shares.
Section 15. AMENDMENT OR TERMINATION
This Plan may be amended by the Board from time to time to the extent that
the Board deems necessary or appropriate; provided, however, that no such
amendment shall be made absent the approval of the stockholders of the Company
(a) to increase the aggregate number of shares reserved under Section 3, (b) to
change the class of persons eligible for Options under Section 6 or (c) to
materially modify the requirements as to eligibility for participation in this
Plan, (d) to otherwise materially increase the benefits accruing under this Plan
to Plan participants if such approval would be required in order for the Company
to comply with applicable law or the rules or regulations of any stock exchange
or market on which the Stock is traded or listed. The Board also may suspend the
granting of Options under this Plan at any time and may terminate this Plan at
any time; provided, however, that the Company shall not have the right to
unilaterally cancel or, in a manner which would materially adversely affect the
holder, amend or modify any Option granted before such suspension or termination
unless (i) the Key Employee, Key Consultant, Independent Advisor, or Outside
Director previously consents in writing to that modification, amendment, or
cancellation or (ii) there is a dissolution or liquidation of the Company or a
transaction described in Section 13 or Section 14 of this Plan.
It is the intention of the Company that the Plan shall comply with the
conditions of Rule 16b-3 of the Exchange Act, as that Rule may from time to time
be amended. The Board shall have the authority, without the approval of the
stockholders, to amend the Plan from time to time to include any conditions,
terms or other provisions which may be required to be set forth in a plan in
order for transactions by directors or officers to be exempt under Rule 16b-3 of
the Exchange Act or any successor exemption.
Section 16. CHANGE OF CONTROL
Notwithstanding any other provision of the Plan, upon a Change of Control
each Option granted under this Plan prior to that Change of Control shall
immediately become exercisable to the full extent of the original grant and
shall remain exercisable for three months (or such longer period as specified in
the particular Option with regard to all or any shares of Stock covered by such
Option) after any resignation or removal of any Outside Director from the
Company's Board of Directors.
A-8
Section 17. MISCELLANEOUS
17.1 No Stockholder Rights. No Outside Director or Board Committee
Member shall have any rights as a stockholder of the Company as a result of the
grant of an Option to him or to her under this Plan or his or her exercise or
surrender of that Option pending the actual delivery of Stock subject to that
Option to any Non-Employee Director or Board Committee Member.
17.2 No Contract of Employment. The grant of an Option to an Outside
Director or Board Committee Member under this Plan shall not constitute a
contract of employment or consulting or right to continue to serve on the
Company's Board of Directors and shall not confer on an Outside Director or
Board Committee Member any rights upon his or her termination of employment or
service in addition to those rights, if any, expressly set forth in the Option
Certificate which evidences his or her Option.
17.3 Withholding. The exercise or surrender of any Option granted under
this Plan shall constitute a Outside Director's or Board Committee Member's full
and complete consent to whatever action the Committee elects to satisfy the
federal and state tax withholding requirements, if any, which the Committee in
its discretion deems applicable to that exercise or surrender.
17.4 Governing Law and Construction. All rights and obligations under
this Plan and the Option Certificates shall be construed and interpreted with
the laws of the State of New Jersey, without giving effect to the principles of
conflict of laws.
17.5. Indemnification. In addition to any other rights of
indemnification as they may have as directors or as members of the Committee,
the members of the Committee shall be indemnified by the Company against all
reasonable expenses, including attorneys' fees, actually and reasonably incurred
in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken by them as directors or members of the Committee
and against all amounts paid by them in settlement thereof (provided such
settlement is approved by the Board) or paid by them in satisfaction of a
judgment in any action, suit or proceeding, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that the director
or Committee member is liable for gross negligence or willful misconduct in the
performance of his or her duties. To receive this indemnification, a director or
Committee member must first offer in writing to the Company the opportunity, at
its own expense, to defend that action, suit or proceeding.
The Company, the Board, and the Committee shall not be required to give
any security or bond for the performance of any obligation that may be created
by the Plan.
A-9
ANNUAL MEETING OF STOCKHOLDERS OF
NUVIM, INC.
May 15, 2008
Please date, sign and mail
your proxy card in the
envelope provided as soon
as possible.
Please detach along perforated line and mail in the envelope provided.
20530000000000000000 7 051508
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THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ELECTION OF DIRECTORS AND "FOR" PROPOSALS 2.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE [x]
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FOR AGAINST ABSTAIN
1. ELECTION OF DIRECTORS: 2. Approval of the 2008 Directors Stock Option Plan. [ ] [ ] [ ]
NOMINEES:
[ ] FOR ALL NOMINEES O Richard P. Kundrat
O Peter DeCrescsnzo This proxy is solicited on behalf of the Board of Directors of the
[ ] WITHHOLD AUTHORITY O Doug Scott Company. This proxy, when properly executed, will be voted in accordance
FOR ALL NOMINEES O Calvin L. Hodock with the instructions given above. If no instructions are given, this
O Stanley H. Moger proxy will be voted "FOR" election of the Directors and "FOR" proposal 2.
[ ] FOR ALL EXCEPT
(See instructions below)
INSTRUCTION: To withhold authority to vote for
------------ any individual nominee(s), mark "FOR
ALL EXCEPT" and fill in the circle
next to each nominee you wish to
withhold, as shown here:
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To change the address on your account,
please check the box at right and indicate
your new address in the address space above. [ ]
Please note that changes to the registered
name(s) on the account may not be submitted
via this method.
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----------------------- ------------ --------------------- ------------
Signature of Stockholder Date. Signature of Stockholder Date.
----------------------- ------------ --------------------- ------------
Note: Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should
sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If
the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such.
If signer is a partnership, please sign in partnership name by authorized person.
PROXY
NUVIM, INC.
ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON MAY 15, 2008
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Richard P. kundrat and Stanley H. Moger as
proxies, each with full power of substitution, to represent and vote as
designated on the reverse side, all the shares of common stock of Nuvim, Inc.,
held of record by the undersigned on March 24, 2008, at the Annual
Meeting of Stockholders to be held at the Company's headquarters located at
12 Route 17 North, Paramus, NJ 07625, on May 15, 2008, or any adjournment or
postponement thereof.
(Continued and to be signed on the reverse side)