DEF 14C
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 18549
SCHEDULE 14C
(Rule 14C-101)
Information Statement Pursuant to Section 14(c) of
The Securities
Exchange Act of 1934
Check the appropriate box:
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Preliminary Information Statement |
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-5(d) (1)) |
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Definitive Information Statement |
Access Plans, Inc.
(Exact name of registrant as specified in its charter)
(Name of Person(s) Filing Proxy Statement, if other than the registrant)
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Filed by a party other than the Registrant o |
Payment of Filing Fee (Check the appropriate box):
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No fee required |
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Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11. |
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act
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Fee previously paid with preliminary materials. |
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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. |
Access Pans, Inc.
900 36th Avenue, NW, Suite 105
Norman, Oklahoma 73072
RE: Notice of Action by Written Consent of Shareholders to be Effective August 30, 2010.
Dear Shareholder:
We
are notifying you and our other shareholders of record on July 13, 2010 that shareholders
owning 11,802,806 shares of our common stock representing 59.7% of our outstanding Common Stock on
August 30, 2010 (but not earlier than the 21st business day following distribution of this
information statement to the shareholders) will execute a written consent in lieu of an annual
meeting approving:
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The election of seven members to our Board of Directors, to hold office until
their successors are duly elected and qualified at the annual meeting of our
shareholders to be held in 2011 or until the earlier of their death, resignation, or
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The ratification of Eide Bailly LLP as our independent registered public
accounting firm for fiscal 2010. |
Under the corporate laws of Oklahoma and our bylaws, shareholder action may be taken by
written consent without a meeting of shareholders. The written consent of the holders of a
majority of our outstanding common stock is sufficient under the Oklahoma General Corporation Act
and our articles of incorporation and bylaws to approve the actions described above. Accordingly,
the actions described above will not be submitted to you and our other shareholders for a vote.
This letter is the notice required by Section 18 Okla.St.Ann. § 1073 of the Oklahoma General
Corporation Act.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
An information statement containing a detailed description of the matters approved and adopted
by written consent in lieu of an annual meeting of shareholders accompanies this notice. You are
urged to read the information statement in its entirety for a description of the actions to be
taken by the holders of a majority of our outstanding common stock shares. We mailed this notice
and the accompanying information statement to you and our other shareholders on or about July 20,
2010.
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By order of the Board of Directors, |
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BRADLEY DENISON |
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Secretary |
Norman, Oklahoma
July 14, 2010
Access Plans, Inc.
900 36th Avenue, NW, Suite 105
Norman, Oklahoma 73072
(405) 579-8525
INFORMATION STATEMENT
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
We are sending you this information statement to inform you of the actions to be taken by the
holders of a majority of our outstanding common stock by written consent in lieu of our 2010 annual
meeting of shareholders.
What actions are to be taken by the written consent in lieu of an annual meeting?
The holders of a majority of our outstanding common stock executed a written consent:
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The election of a Board of Directors consisting of seven members, to hold
office until their successors are duly elected and qualified at the annual meeting of
our shareholders to be held in 2011 or until the earlier of their death, resignation,
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The ratification of Eide Bailly LLP as our independent registered public
accounting firm for fiscal year ending September 30, 2010. |
How many shares were voted for the actions?
The approval and adoption of each of the actions taken by written consent in lieu of an annual
meeting requires the consent of the holders of a majority of the shares of our outstanding common
stock. We had 19,777,304 outstanding shares of our common stock on the record date. Each share of
our common stock is entitled to one vote. The seven holders of 11,802,806 shares of our common
stock, representing 59.7% of our outstanding common stock shares entitled to vote on the record
date, will execute a written consent in lieu of an annual meeting that will be effective on or
following August 30, 2010. Under the Oklahoma General Corporation Act and our bylaws, shareholder
action may be taken by written consent without a meeting of shareholders. The written consent of
the holders of a majority of our outstanding common stock will be sufficient under the Oklahoma
General Corporation Act and our articles of incorporation and bylaws to approve the actions
described above. As a result, all actions described in this information statement will be effected
on August 30, 2010, (but not earlier than the 21st business day following distribution
of this information statement to our shareholders) without any further action or vote by
shareholders.
Action 1 Election of Directors
Our Bylaws provide that the Board of Directors consists of that number of members as the Board
of Directors may from time to time determine by resolution or election, but not less than five and
not more than seven. Our Board of Directors currently consists of seven members.
The holders of 11,802,806 shares of our common stock, representing 59.7% of the shares of our
common stock entitled to vote on the record date, will execute a written consent in lieu of an
annual meeting electing seven directors to serve on our board of directors. That consent and the
election of directors will be effective on or following August 30, 2010, (but not earlier than the
21st business day following distribution of this information statement to our shareholders). The
directors will serve for a one year term or until their successors are duly elected and qualified
at the annual meeting of our shareholders to be held in 2011 or until the earlier of their death,
resignation, or removal. The following is a brief description of the background and business
experience of each of the nominee directors, Messrs. Wright, Wimberley, Gerdes, Simonelli, Kidd,
Hill and Cleveland, to be elected to serve on our Board of Directors:
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Danny C. Wright
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Mr. Wright (age 59) has served as our Chairman of the
Board of Directors and Chief Executive Officer since
March 2007 and has served as Chief Executive Officer
of our subsidiary, Benefit Marketing Solutions, since
January 2003. From 2000 to 2003, Mr. Wright was a
principal of Club Source Group (CSG). CSG was the
largest independent representative of Foresight, Inc.
products and was sold in 1999. In 1989, Mr. Wright
co-founded and served as President of Foresight, Inc.
until the company sold in December 1999. Mr. Wright
led Foresights growth from start-up to one of the
leading membership plan providers in the rental
purchase industry and serving two-thirds of the
industrys locations. Prior to Foresight, Mr. Wright
managed warranty terms administration and add-on
programs for a regional home and auto retail chain
and served in various positions for two insurance
carriers. |
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Brett Wimberley
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Mr. Wimberley (age 47) has served as one of our
Directors and as President since May 2007, and Chief
Financial Officer since February 11, 2010 and Chief
Operating Officer of our subsidiary Benefit Marketing
Solutions (BMS) since February 2002. Mr. Wimberley
has been President of Southwest Brokers, Inc., a real
estate investment company, since February 1987. Mr.
Wimberley served as President of Universal Marketing
Services from October 1996 to December 2000 and
Foresight, Inc. from December 1999 to December 2000.
From January 1990 to September 1996, Mr. Wimberley
served in various sales positions for United Bank
Services, last as Senior Vice President. Mr.
Wimberley holds a BBA and MBA from the University of
Oklahoma. |
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Larry G. Gerdes
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Mr. Gerdes (age 61) has served as one of our
Directors since February 1, 2001. Mr. Gerdes has
served as the Chief Executive Officer of Transcend
Services, Inc. since May 1993 and as Chairman of the
Board since 1995. In addition, he served as President
of Transcend Services, Inc. from May 1993 to
September 2009. From 1991 to 1993, Mr. Gerdes was a
private investor. Mr. Gerdes serves on the board of
Transcend Services, Inc. (TRCR) and CME Group (CME).
For the five years prior to 1991, Mr. Gerdes held
various executive positions with HBO & Company,
including Chief Financial Officer and Executive Vice
President. |
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John Simonelli
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Mr. Simonelli (age 64) has served as one of our
Directors since May 12, 2008. Mr. Simonelli served
as Chairman of the Board and Chief Executive Officer
of Graymark Healthcare, Inc. (GRMK) from February 3,
2005 until July 23, 2008 and served as its President
and Chief Operating Officer from August 18, 2003 to
February 3, 2005. Mr. Simonelli is an independent
business consultant who has extensive experience in
the planning, development, and funding of emerging
growth companies. He served as a director of Access
Plans USA, Inc. (formerly Precis, Inc.) from December
2000 until July 2001. Access Plans USA, Inc. is a
publicly-held company primarily engaged in the
providing of healthcare savings to the self-insured.
From March 1994 until July 1999, Mr. Simonelli was
employed by Laboratory Specialists of America, Inc.
and served as Chairman of the Board, Chief Executive
Officer and Secretary, and a Director until December
7, 1998. Laboratory Specialists of America, Inc. was
engaged in forensic drug testing and was formerly
publicly-held until acquired by The Kroll-OGara
Company by merger. Mr. Simonelli served as a
Director, Chief Executive Officer and Secretary of
Vantage Capital Resources, Inc. from March 1996 until
its merger with The Vialink Company (formerly Applied
Intelligence Group, Inc.) and thereafter served as a
Director |
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and Vice President of The Vialink Company
until October 14, 1996.
He served as Chairman of the
Board and Chief Executive Officer of MBf USA, Inc.
(formerly American Drug Screens, Inc.), a
publicly-held company engaged in the medical products
and services industry, from February 1988 through
June 1992. He served as Chief Executive Officer of
Unico, Inc. (formerly CMS Advertising, Inc.), a
publicly-held company engaged in the franchising of
cooperative direct mail advertising businesses, from
June 1986 to June 1988. From July 1981 through June
1985, he served in various capacities, including
President and Director, with Moto Photo, Inc., a
publicly-held company engaged in the business of
franchising one-hour, photo development
laboratories. Mr. Simonelli served as President and Chief Executive Officer
from May 1985 until November 1985, and a Director, from May 1985 through 1988,
of TM Communications, Inc. (formerly Video Image, Inc. and TM Century, Inc.), a
publicly-held company engaged in radio broadcasting and corporate
communications. |
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Mark R. Kidd
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Mr. Kidd (age 43) has served as one of our Directors
since May 12, 2008. Mr. Kidd served as Chief
Financial Officer and Secretary for Graymark
Healthcare, Inc. (GRMK) from August 18, 2003 until
July 23, 2008. Mr. Kidd has over 20 years experience
in finance and accounting. Mr. Kidd is also Chief
Operations Officer of C&L Supply, Inc., a
privately-held wholesale distribution company which
serves customers in seven states. Mr. Kidd is also a
co-owner of RandMark, LLC, a privately-held company.
Mr. Kidd served as Chief Financial Officer of Access
Plans USA, Inc. (formerly Precis, Inc.), a
publicly-held company, from August 1999 until January
2002 and as a director from January 2000 until
February 2002. He also served as President, Chief
Operating Officer, Secretary and a Director of
Foresight, Inc. a wholly-owned subsidiary of Access
Plans USA, Inc. from February 1999 until January
2002. Mr. Kidd served as President of Paceco
Financial Services, Inc., a privately-held regulated
savings company, from March 1998 until December
2000. Mr. Kidd is a Certified Public Accountant and
holds a B.B.A. in accounting from Southern Methodist
University. |
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J. French Hill
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Mr. Hill (age 53) has served as one of our Directors since April 1, 2009. Mr.
Hill served on the Board of Directors of Access Plans USA, Inc. from January 2003 until
April 2009 and was named as its Chairman of the Board of Directors on August 20, 2007. In
1999, Mr. Hill founded Delta Trust & Banking Corp., a privately held banking, trust and
investment brokerage company headquartered in Little Rock, Arkansas, following a six year
career with Arkansas largest publicly traded holding company, First Commercial Corp. First
Commercial was sold in 1998 to Regions Financial Corp. (RF). As an executive officer of
First Commercial, Mr. Hill was chairman of the bank holding companys trust division and its
investment brokerage dealer subsidiary from 1995 until 1998. He also oversaw a number of
other staff functions in the company from 1993 through 1998 including human resources,
executive compensation, bank compliance, credit review and strategic planning. During the
last five years he has served as a member of the Board of Directors of Delta Trust & Banking
Corp. and its affiliates (1999 to present), Research Solutions LLC, a privately held company
in the clinical trials business (1999 to 2008), and Syair Designs LLC, a privately held
company in the aircraft lighting systems business (2000-2003). From May 1989 through January
1993, Mr. Hill was a senior economic policy official in the George H. W. Bush Administration
on the staff of the White House and as deputy assistant secretary of the U.S. Treasury.
Mr. Hill graduated magna cum laude in economics from Vanderbilt University. |
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Russell Cleveland
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Mr. Cleveland (age 71) has served as one of our Directors since April 1, 2009.
Mr. Cleveland was a director of Access Plans USA, Inc. from September 2005 until April 2009.
He is the Founder, President, and Chief Executive Officer of Renn Capital Group, Inc., a
privately held investment management company. He has held these positions since 1972.
Mr. Cleveland has 40 years experience in the investment business, of which 31 years has been
spent as a portfolio manager specializing in the investment of common stocks and convertibles
of small private and publicly traded companies. A graduate of Wharton School of Business,
Mr. Cleveland has served as President of the Dallas Association of Investment Analysts and,
during the course of his career, has served on numerous boards of directors of public and
private companies. Mr. Cleveland currently serves on the Boards of Directors of Renaissance
III, RUSGIT, Cover-All Technologies, Inc., CaminoSoft Corp., Digital Recorders, Inc.,
Integrated Security Systems, Inc. and BPO, Inc., all of which are publicly traded companies. |
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Action 2 Ratification of Appointment of Independent Registered Public Accounting Firm
Seven holders of 11,802,806 shares of our common stock, representing 59.7% of the shares of
our common stock entitled to vote on the record date, will execute a written consent in lieu of an
annual meeting ratifying the appointment of Eide Bailly LLP, as our independent registered public.
That consent and the ratification will be effective on or following August 30, 2010, but not
earlier than the 21st business day following distribution of this information statement to our
shareholders.
ADDITIONAL INFORMATION
MEETINGS OF THE BOARD OF DIRECTORS AND COMMITTEES OF THE BOARD
Our Board of Directors has three standing committees: the Audit Committee, the Stock Option
and Compensation Committee, and Nominating and Governance Committee.
Audit Committee
The Audit Committee of the Board of Directors that is currently comprised of Messrs. Gerdes,
Simonelli, and Kidd, oversees our accounting and reporting processes and the audits of our
financial statements.
Each of Messrs. Gerdes, Simonelli, and Kidd is independent as defined in Rule 6320A of the
Financial Industry Regulatory Authority. Furthermore, our Board of Directors has determined that
each of Messrs. Gerdes and Kidd qualify as an audit committee financial expert as defined in
Item 401(h)(2) of Regulation S-K. The Report of the Audit Committee appears below. The Audit
Committee Charter is posted in the Investors Relations section of our website, www.accessplans.com.
The Audit Committee reviews and reassesses the adequacy of its charter on an annual basis. The
Audit Committee held four meetings during the fiscal year ended September 30, 2009.
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Members of the Audit Committee:
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Larry G. Gerdes |
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John Simonelli |
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Mark R. Kidd |
Stock Option and Compensation Committee
The Stock Option and Compensation Committee (the Compensation Committee) that is comprised
of Messrs. Gerdes, Simonelli, Kidd, Hill and Cleveland acts as administrator of our stock option
plan and makes recommendations concerning the establishment of additional employee benefit plans
and compensation of our executive officers and directors. Each member of the Compensation Committee
is independent as defined in Rule 6320A of the Financial Industry Regulatory Authority. The
Report of the Compensation Committee appears below. The Stock Option and Compensation Committee
Charter is posted in the Investors section of our website, www.accessplans.com. The Compensation
Committee held two meetings during the fiscal year ended September 30, 2009.
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Members of the Compensation Committee:
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Larry G. Gerdes |
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John Simonelli |
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Mark R. Kidd |
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J. French Hill |
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Russell Cleveland |
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Nominating and Governance Committee
The Nominating and Corporate Governance Committee (a) monitors and oversees matters of
corporate governance, including the evaluation of the performance and processes and the
independence of directors of our Board of Directors, and (b) selects, evaluates and recommends to
the Board qualified candidates for election or appointment to our Board. This Committee consists
is of Messrs. Simonelli, Hill and Cleveland, each being independent as defined in Rule 6320A of
the Financial Industry Regulatory Authority. The Nominating and
Governance Committee Charter is posted in the Investors section of our website,
www.accessplans.com. Because this Committee was recently chartered and formed, it has not
previously met. The nominee directors were nominated by our Board of Directors prior to formation
of the Nominating and Governance Committee.
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Members of the Nominating and Corporate Governance Committee:
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John Simonelli |
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J. French Hill |
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Russell Cleveland |
Shareholder Nominations for Directors
A shareholder desiring to recommend a candidate for election to our Board of Directors at our
schedule February 1, 2011 annual shareholders meeting at which one or more directors will be
elected must submit a written proposal of his, her or its recommendation of the candidate to our
Corporate Secretary at our principal executive offices at 900 36th Avenue, Suite 105,
Norman, Oklahoma 73072. The proposal must be received at our principal executive office on or
before September 30, 2011. We have established February 1, 2011 as the meeting date for our 2011
annual shareholders meeting. In the event this date changes, we will report the change in our next
Quarterly Report on Form 10-Q. The shareholder proposal must comply with Rule 14a-8 of the U.S.
Securities and Exchange Commission. The proposal must provide set forth certain information
concerning the proposing shareholder and the nominee, including the nominees name and address, a
representation that the proposing shareholder is entitled to vote at the meeting and intends to
appear in person or by proxy at the meeting to nominate the person specified in the notice, a
description of all arrangements or understandings between the proposing shareholder and the nominee
and any other person pursuant to which the nomination is to be made by the proposing shareholder,
the other information that would be required to be included in a proxy statement soliciting proxies
for the election of the nominee and the consent of the nominee to serve as a director if elected.
The nomination of any person not made in compliance with the foregoing procedure may not be
recognized by our Board of Directors or Nominating and Governance Committee.
In considering individuals for nomination as directors, our Board typically solicits
recommendations from our current directors and may engage third-party advisors to assist in the
identification and evaluation of candidates, as deemed necessary. The Board has not established
specific minimum qualities or skills that the Board believes are necessary for one or more
directors to possess. Instead, in evaluating potential candidates and incumbent directors for
reelection, the Board considers numerous factors, including judgment, skill, independence,
integrity, experience with business and other organizations of comparable size, the interplay of
the candidates experience with other board members, experience as an officer or director of
another publicly-held company, understanding of management trends in general or in our industry,
expertise in financial accounting and corporate finance, ability to bring diversity to the member
group, community or civic service, knowledge or expertise not currently on the Board, shareholder
perception, and to the extent that the candidate would be a desirable addition to the Board and any
committee of the Board. No particular weight is given to one factor over another on a general
basis, but rather the factors are weighted in relationship to the perceived needs of our Board at
the time of nominee selection. Our Board will evaluate candidates recommended or properly proposed
by our shareholders on the same basis as our Board evaluates other candidates.
Meetings
The Board of Directors held five meetings during the fiscal year ended September 30, 2009.
During the fiscal year ended September 30, 2009, each Director attended more than 75% of the total
number of meetings of the Board of Directors and committees on which he served.
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COMMUNICATIONS WITH THE BOARD
While the Board of Directors does not have a formal process for shareholders to send
communications to the Board of Directors, each member of the Board of Directors is receptive to
receiving communications from our shareholders. Shareholders may send communications to the
attention of any Director at our office address.
CODE OF BUSINESS CONDUCT AND ETHICS POLICY
Our Board of Directors adopted a Code of Business Conduct and Ethics Policy (the Code of
Ethics) on November 1, 2004. The Code of Ethics applies to our directors, officers and employees
and must be acknowledged in writing by our Chief Executive Officer and Chief Financial Officer.
The Code of Ethics is posted in the Investors Relations section of our website,
www.accessplans.com.
REPORT OF THE AUDIT COMMITTEE
December 28, 2009
With the recommendation and approval of the Audit Committee of the Board of Directors,
effective October 1, 2008, we engaged the firm of Eide Bailly LLP to be our independent registered
public accountants of our financial statements for the 2009 fiscal year.
On August 1, 2008, Murrell, Hall, McIntosh & Co. PLLP (MHM) resigned as our independent
registered public accounting firm. MHM had entered previously into an agreement with Eide Bailly
LLP, pursuant to which Eide Bailly LLP acquired the operations of MHM, and certain of the
professional staff and shareholders of MHM joined Eide Bailly LLP either as employees or partners
and will continue to practice as members of Eide Bailly LLP. Effective August 18, 2008, through
and with the approval of our Audit Committee, we engaged Eide Bailly LLP as our independent
registered public accounting firm.
We have reviewed and discussed with management our audited financial statements as of and for
the fiscal year ended September 30, 2009 included in our Annual Report on Form 10-K.
We discussed with Eide Bailly LLP the matters required to be discussed by Statement on
Auditing Standards No. 61, Communication with Audit Committees, as amended. In addition, we have
received and reviewed the written disclosures and the letter from Eide Bailly LLP required by
Independence Standards Board, Standard No. 1, Independence Discussions with Audit Committees, and
discussed with Eide Bailly LLP its independence.
Based on the reviews and discussions referred to above, on December 28, 2009 we recommended to
the Board of Directors that the financial statements referred to above be included in our Annual
Report on Form 10-K filed with the Securities and Exchange Commission for the fiscal year ended
September 30, 2009.
Prior to the start of each annual audit for the years ended September 30, 2009 and 2008, the
Audit Committee reviewed and pre-approved the fee estimates of Eide Bailly LLP for fiscal 2009 and
2008 for providing the audit, audit-related, and all other services described below. In addition,
the Audit Committee reviewed and pre-approved managements budget for audit, audit-related, and all
other fees related to Eide Bailly LLP in conjunction with its review of our business plan and
related operating budgets for the years ended September 30, 2009 and 2008. In addition to the
review and pre-approval processes described above, in 2009 and beyond, as provided for in the Audit
Committee Charter referred to below, the Committee pre-approved and intends to continue
pre-approving all audit and non-audit services to be provided by the independent auditors by
delegating to the Chairman of the Audit Committee the authority to pre-approve any audit or
non-audit services to be performed by the independent auditors, provided that each approval be
presented to the Audit Committee at its next scheduled meeting.
The Audit Committee has considered whether the provision of the services described under the
captions Audit-Related Fees and All Other Fees by Eide Bailly LLP are compatible with
maintaining the principal accountants independence and determined that the independence of Eide
Bailly LLP was not and is not impaired by the provision of said services.
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Audit Fees
The aggregate fees billed by Eide Bailly LLP for professional services rendered for our audit
for the year ended September 30, 2009 were $124,784. The aggregate fees billed by Eide Bailly LLP
and Murrell, Hall, McIntosh & Co., PLLP (MHM) for professional services rendered for our audit for
the year ended September 30, 2008 were $69,585 and $21,500, respectively. No person or firm other
than Eide Bailly LLP or MHM performed audit related services for us in fiscal year 2009 or 2008.
Tax Fees
The aggregate fees billed by Dunn & Stone for professional services rendered in conjunction
with federal, state and local income tax return preparation in 2009 were $10,747. The aggregate
fees billed by Eide Bailly LLP and MHM for professional services rendered in conjunction with
federal, state and local income tax return preparation in 2008 were $23,300.
All Other Fees
The aggregate fees billed by Eide Bailly LLP for all other fees were $46,298 for professional
services rendered on our behalf for the year ended September 30, 2009. No other professional fees
were billed by Eide Bailly LLP to us for the year ended September 30, 2009.
The foregoing report of the Audit Committee is not incorporated by reference in any previous
or future reports or other filings by us with the Securities and Exchange Commission under the
Securities Act of 1933 or the Securities Exchange Act of 1934, except to the extent that we
specifically incorporate the report or filing by reference in the applicable report or filing.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of June 22, 2010 certain information with respect to all
shareholders known to us to beneficially own more than 5% of our Common stock, and information with
respect to our common stock beneficially owned by each of our directors nominee directors,
executive officers included in the Summary Compensation Table set forth under the caption
Executive Compensation, and our directors and executive officers as a group. Except as otherwise
indicated by footnote, the persons listed in the table have sole voting and investment powers with
respect to the common stock beneficially owned by them. For purposes of the following table, the
number of shares and percent of ownership of our outstanding common stock that the named person
beneficially owns includes shares of our common stock that the named person has the right to
acquire within 60 days of the above-referenced date pursuant to exercise of stock options and other
types of purchase rights and are deemed to be outstanding, but are not deemed to be outstanding for
the purposes of computing the number of shares beneficially owned and percent of outstanding common
stock of any other named person.
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Common Stock Beneficial Ownership |
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Danny C. Wright(3) |
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3,994,900 |
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3,994,900 |
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900 36th Avenue, NW
Norman, Oklahoma 73072 |
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Brett Wimberley(4) |
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3,966,327 |
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|
|
|
|
|
|
3,966,327 |
|
|
|
20.1 |
% |
900 36th Avenue, NW
Norman, Oklahoma 73072 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Susan Matthews(5) |
|
|
1,990,000 |
|
|
|
|
|
|
|
1,990,000 |
|
|
|
10.1 |
% |
900 36th Avenue, NW
Norman, Oklahoma 73072 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RENN Capital(6) |
|
|
1,851,579 |
|
|
|
18,387 |
|
|
|
1,869,966 |
|
|
|
9.5 |
% |
4929 West Royal Lane, Suite 200
Irving, Texas 75063 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Russell Cleveland(6) |
|
|
1,851,579 |
|
|
|
18,387 |
|
|
|
1,869,966 |
|
|
|
9.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Larry G. Gerdes(8) |
|
|
181,165 |
|
|
|
145,000 |
|
|
|
326,165 |
|
|
|
1.6 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mark Kidd(9) |
|
|
5,000 |
|
|
|
10,000 |
|
|
|
15,000 |
|
|
|
* |
*% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John Simonelli(9) |
|
|
6,007 |
|
|
|
85,000 |
|
|
|
91,007 |
|
|
|
0.5 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
J. French Hill(9) |
|
|
15,000 |
|
|
|
26,839 |
|
|
|
41,839 |
|
|
|
0.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rita W. McKeown(7) |
|
|
|
|
|
|
26,999 |
|
|
|
26,999 |
|
|
|
0.1 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
David Huguelet(10) |
|
|
60,920 |
|
|
|
4,500 |
|
|
|
65,420 |
|
|
|
0.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bradley W. Denison(11) |
|
|
61,500 |
|
|
|
7,500 |
|
|
|
69,000 |
|
|
|
0.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive Officers and Directors as a group
(11 individuals) |
|
|
12,132,398 |
|
|
|
324,225 |
|
|
|
12,456,623 |
|
|
|
63.0 |
% |
|
|
|
(1) |
|
Shares not outstanding but deemed beneficially owned by virtue of the right of a person or
members of a group to acquire them within 60 days are treated as outstanding for determining
the amount and percentage of common stock owned by such person. To our knowledge, each named
person has sole voting and sole investment power with respect to the shares shown except as
noted, subject to community property laws, where applicable. |
|
(2) |
|
Rounded to the nearest one-tenth of one percent, based upon 19,777,304 shares of common stock
outstanding. |
|
(3) |
|
Mr. Wright is our Chairman of Board of Directors and Chief Executive Officer. |
|
(4) |
|
Mr. Wimberley is one of our directors and our President, Chief Financial Officer and Chief
Operating Officer. |
|
(5) |
|
Ms. Matthews is President of our subsidiary, Benefit Marketing Solutions, LLC. |
|
(6) |
|
The beneficial shares owned are held of record by Global Special Opportunities Trust PLC
(268,997 shares), RENN Global Entrepreneurs Fund, Inc. (formerly Renaissance Capital Growth &
Income Fund III, Inc.) (369,436 shares), Premier RENN Entrepreneurial Fund Limited (formerly
Premier RENN US Emerging Growth Fund Limited) (417,306 shares), Renaissance US Growth
Investment Trust PLC (795,840 shares), each of which is an investment fund managed by RENN
Capital Group, Inc. Mr. Cleveland controls RENN Capital Group, Inc. and is also deemed to be
the beneficial owner of those common stock shares. Mr. Cleveland serves as one of our
Directors. |
|
(7) |
|
Ms. McKeown served as our Chief Financial Officer until February 11, 2010 and now serves as
our Chief Accounting Officer and Treasurer. |
|
(8) |
|
The number of shares and the percent includes 166,666 shares held by Gerdes Huff Investments
of which Mr. Gerdes is a general partner and 9,999 shares held by Gerdes Family Partnership of
which M. Gerdes is a general partner. |
|
(9) |
|
The named individual is one of our directors. |
|
(10) |
|
Mr. Huguelet is President, Retail Division. |
|
(11) |
|
Mr. Denison is Executive Vice President, General Counsel and Secretary. |
8
EXECUTIVE OFFICERS
Set forth below is certain information with respect to our executive officers. Executive
officers are elected by our Board of Directors and each serves at the discretion of the Board.
|
|
|
|
|
|
|
Name |
|
Age |
|
|
Position Held |
Danny C. Wright |
|
|
59 |
|
|
Chairman of the Board of Directors and Chief Executive Officer |
Brett Wimberley |
|
|
47 |
|
|
Director, President, Chief Financial Officer and Chief Operating Officer |
Rita W. McKeown |
|
|
57 |
|
|
Chief Accounting Officer and Treasurer |
Susan Matthews |
|
|
52 |
|
|
President, Benefit Marketing Solutions, LLC (a subsidiary) |
Bradley W. Denison |
|
|
49 |
|
|
Executive Vice President, General Counsel, and Secretary |
David Huguelet |
|
|
51 |
|
|
President, Retail Plans Division |
Set forth below is background information of our executive officers and directors. The
background of our executive officers that are also nominee directors is contained in Action 1
Election of Directors, above.
Rita W. McKeown began serving as our Chief Accounting Officer in 2010 and served as Chief
Financial Officer from September 2000 until February 11, 2010. From 1994 to 1999, Ms. McKeown
served as director of finance of Transcend Services, Inc., an Atlanta Georgia healthcare company
specializing in patient information management solutions for hospitals and other associated
healthcare providers. From 1991 to 1994, Ms. McKeown served as director of accounting of Premier
Anesthesia, Inc. From 1981 to 1991, Ms. McKeown held multiple senior accounting positions with
HBO & Co in Atlanta. Ms. McKeown is a Certified Public Accountant and received her BBA from
Kennesaw State University in Kennesaw, Georgia.
Susan Matthews has served as President of Benefit Marketing Solutions, a subsidiary of the
Company, since September 2009 and served as Executive Vice President of Sales & Marketing for our
subsidiary Benefit Marketing Solutions since January 2003. From 2000 to 2003, she co-founded Club
Source Group, a company formed to market club programs to various industries. Ms. Matthews served
as Marketing Director for Foresight, Inc. from 1989 until it was sold in 1999. From 1984 to 1999
she served in various capacities with United Bank Services and Steve Owens & Associates marketing
club programs to financial institutions. Ms. Matthews received her BBA from the University of
Oklahoma.
Bradley W. Denison joined Benefit Marketing Solutions (BMS) in early 2006 as its General
Counsel. Mr. Denison was previously employed by Rent-A-Center, Inc. from 1991-2001 and served as
its Senior Vice President and General Counsel from 1998 through 2001. Prior to his employment at
Rent-A-Center, Mr. Denison worked extensively in insurance and litigation in private law practice
from 1985 through 1991. Prior to his employment with BMS, Mr. Denison was involved in consulting
and operating retail businesses. Mr. Denison has a B.S. Business Administration and a Juris
Doctorate from the University of Kansas.
David Huguelet has served as the President of the Retail Division since September 2009 and
served as Senior Vice President of Business Development since January 2005. From 2003 to 2004 he
was a Director of New Business Development for Aon Innovative Solutions, a major provider of
extended service contracts to retailers. Mr. Huguelet served as Vice President of Lyndon Insurance
Group, a subsidiary of Protective Life, from 2001 to 2003. From 1989 to 2001, Mr. Huguelet
served in various capacities, including Business Board Chairman, with American Bankers Insurance
Group, now Assurant. From 1984 to 1989, Mr. Huguelet served in various capacities with Household
Finance, now HSBC. Mr. Huguelet holds a Bachelor of Science in Business Administration from the
University of North Carolina at Greensboro, an MBA from Barry University, a CLU designation and a
CPCU designation.
9
COMPENSATION DISCUSSION AND ANALYSIS
Overall Philosophy
Our Executive Compensation program is designed to attract, motivate and retain qualified
executives, reward outstanding performance and results and align managements incentives with the
interests of our shareholders. We believe that our Executive Officers should be motivated by our
performance as well as their individual performance.
To accomplish these objectives, our executive compensation program includes three underlying
components: base salary, short-term cash incentives and long-term equity-based incentives. The
following sections describe the process of setting executive compensation, the compensation
elements, how these elements are determined, why we choose to pay each element and how each element
relates to our overall compensation philosophy.
Base Salary Program
Our base salary program is based on a philosophy of providing base pay levels that are
competitive with similarly situated companies in the healthcare industry. We periodically review
our executive pay levels to assure consistencies with the external market. Annual salary
adjustments are based on several factors including the general level of market salary increases,
individual performance and long-term value to us, competitive base salary levels and our overall
financial and operating results.
Long-Term Incentives
Long-term incentives consist of equity-based compensation including awards of stock options
and restricted stock that vest over a period of time. We believe this vesting period motivates our
executive officers to focus their efforts on our long-term goals and aligns the executives
interests with those of our shareholders because the ultimate value of the equity-based
compensation is linked directly to the price of our stock.
We rely primarily on stock options to provide long-term incentive compensation because of the
favorable tax treatment of stock options to employees. Stock options typically have a 10-year term
before expiration and are generally exercisable 33% per year on the grant date anniversary.
Executives must be employed by us at the time of vesting in order to exercise the options. The
exercise price of the options is based on the closing stock price on the date of grant.
Employment Contracts and Termination of Employment, and Change-in-Control Arrangements
In conjunction with our merger-acquisition of BMS Holding Company, we entered into employment
agreements with Danny C. Wright, Brett Wimberley and Susan Matthews on March 1, 2007.
Pursuant to the employment agreement with Danny C. Wright, he agreed to serve as the President
and Chief Executive Officer of our subsidiary, AHC Benefit Marketing Acquisition, Inc. The term
of the agreement commenced on March 1, 1007 and continues through February 28, 2010. The term of
the agreement will automatically be extended for additional one-year terms, unless either notice of
termination is given not less than to the other on or before December 1 in the year of termination,
commencing March 1, 2010. We agreed to pay to Mr. Wright a base annualized salary of $200,000. In
addition to the base salary, Mr. Wright is eligible to be considered for annual bonuses to be
determined by our Board of Directors. On May 28, 2010 Mr. Wrights employment agreement was
amended effective May 1, 2010 increasing his salary to $325,000 annually.
Pursuant to the employment agreement with Brett Wimberley, he agreed to serve as the Chief
Operating Officer of our subsidiary, AHC Benefit Marketing Acquisition, Inc. The term of the
agreement commenced on March 1, 1007 and continues through February 28, 2010. The term of the
agreement will automatically be extended for additional one-year terms, unless either notice of
termination is given not less than to the other on or before
December 1 in the year of termination, commencing March 1, 2010. We agreed to pay to
Mr. Wimberley a base annualized salary of $175,000. In addition to the base salary, Mr. Wimberley
is eligible to be considered for annual bonuses to be determined by our Board of Directors. On May
28, 2010 Mr. Wimberleys employment agreement was amended effective May 1, 2010 increasing his
salary to $300,000 annually.
10
Pursuant to the employment agreement with Susan Matthews, she agreed to serve as the Executive
Vice President of our subsidiary, AHC Benefit Marketing Acquisition, Inc. The term of the
agreement commenced on March 1, 1007 and continues through February 28, 2010. The term of the
agreement will automatically be extended for additional one-year terms, unless either notice of
termination is given not less than to the other on or before December 1 in the year of termination,
commencing March 1, 2010. We agreed to pay to Ms. Matthews a base annualized salary of $175,000. In
addition to the base salary, Ms. Matthews is eligible to be considered for annual bonuses to be
determined by our Board of Directors.
We do not maintain any key-man insurance covering the death or disability of any of our
executive officers.
Retirement Plans
We offer each employee, including our executive officers, the opportunity to participate in
our 401(k) plan. Employees may contribute up to the maximum allowed by the Internal Revenue
Service. The Company may elect to match a portion of their contributions. Effective August 1,
2007, we began matching 50% of the first 6% of our employees compensation contributed to our
401(k) plan.
Perquisites
Other than the compensation elements described above, we do not provide any other benefits to
our executive officers that would qualify as a perquisite for purposes of this Compensation
Discussion and Analysis.
Equity Compensation Plan
For the benefit of our employees, directors and consultants, we have adopted two stock options
plans, the 2009 Stock Option Plan and the 2000 Stock Option Plan.
The 2009 Stock Option Plan. For the benefit of our employees, directors and consultants we adopted
the Alliance Healthcard, Inc. 2009 (Access Plans, Inc.) Equity Compensation Plan (the 2009 Plan). The 2009 Plan was
established to create equity compensation incentives designed to motivate our directors and
employees to put forth maximum effort toward our success and growth and enable our ability to
attract and retain experienced individuals who by their position, ability and diligence are able to
make important contributions to our success. The 2009 Plan provides for the grant of stock
options, including incentive stock options (within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the Code)), restricted stock awards, performance units,
performance bonuses and stock appreciation rights to our employees and the grant of nonqualified
stock options, stock appreciation rights and restricted stock awards to non-employee directors,
subject to the conditions of the 2009 Plan. The 2009 Plan is administered by our Stock Option and
Compensation Committee. The number of shares of common stock authorized and reserved for issuance
under the 2009 Plan is 2,550,000. The 2009 Plan was approved by our shareholders on December 4,
2009 and as of September, 30 2009 no incentive awards had been awarded.
The 2009 Plan consists of three separate plans, a Non-Executive Officer Participant Plan, an
Executive Officer Participant Plan and a Non-Employee Director Participant Plan. Except for
administration and the category of employees eligible to receive incentive awards, the terms of the
Non-Executive Officer Participant Plan and the Executive Officer Participant Plan are identical.
The Non-Employee Director Plan has other variations in terms and only permits the grant of
nonqualified stock options and restricted stock awards. Each incentive award will be pursuant to a
written award agreement. The 2009 Plan is designed to provide flexibility to meet our needs in a
changing and competitive environment while minimizing dilution to our shareholders. We do not
intend to use all incentive elements of the 2009 Plan at all times for each participant but will
selectively grant the incentive awards and rights to achieve long-term goals.
11
Our Board of Directors approved and adopted the Access Plans, Inc. (Alliance HealthCard, Inc.)
2009 Plan on October 13, 2009. The 2009 Plan became effective on December 4, 2009 and has a term
ending October 30, 2019 during which incentive awards may be granted; the 2009 Plan will continue
in effect until all matters relating to the payment of incentive awards and administration are
settled.
The 2000 Stock Option Plan. The 2000 Stock Option Plan (the 2000 Plan), terminated on
December 4, 2009. Prior to termination this plan provided for the issuance of options intended to
qualify as incentive stock options for federal income tax purposes as well as option that do not
qualify as incentive stock options, to our employees and non-employees, including employees who
also serve as our directors. Qualification of the grant of options under the 2000 Plan as incentive
stock options for federal income tax purposes is not a condition of the grant and failure to so
qualify does not affect the ability to exercise the stock options. The number of shares of common
stock authorized and reserved for issuance under the 2000 Plan is 2,806,691. As of September 30,
2009, options exercisable for the purchase of 1,601,787 common stock shares had been granted under
the 2000 Plan.
Our Stock Option and Compensation Committee administers and interprets the 2000 Plan (unless
delegated to a committee) and has authority to grant options to all eligible participants and
determine the types of options granted, the terms, restrictions and conditions of the options at
the time of grant.
The exercise price of qualifying incentive stock options may not be less than the fair market
value of our common stock on the date of grant of the option. The exercise price of options other
than those qualifying as incentive stock options may be granted at less than the fair market value
of common stock on the date of the grant. Upon the exercise of an option, the exercise price must
be paid in full, in cash, in our common stock (at the fair market value thereof) or a combination
thereof as permitted under the terms of the agreement evidencing the option.
Options, qualifying as incentive stock options, are exercisable only by an optionee during the
period ending three months after the optionee ceases to be our employee, a director or non-employee
service provider. However, in the event of death or disability of the optionee, the incentive stock
options are exercisable for one year following death or disability and in the event of the
retirement of the optionee, the Board of Directors may designate an additional period for exercise.
In any event options may not be exercised beyond the expiration date of the options. Options may be
granted to our key management employees, directors, key professional employees or key professional
non-employee service providers. Options granted non-employee directors and non-employee service
providers do not qualify as incentive stock options. No option may be granted after December 31,
2010. Options are not transferable except by will or by the laws of descent and distribution.
Accounting and Tax Considerations
Our stock-based awards are accounted for under the provisions of FASB ASC Topic 718-Stock
Compensation using the modified prospective method. Under the modified prospective method,
stock-based compensation cost is measured at the grant date based on the fair value of the award
and is recognized as expense on a straight-line basis over the requisite service or vesting period.
As part of its role, our Compensation Committee reviews and considers the deductibility of
executive compensation under Section 162(m) of the Internal Revenue Code, which provides that we
may not deduct compensation of more than $1,000,000 that is paid to certain individuals, unless the
compensation is performance-based. We have no individuals with non-performance based compensation
paid in excess of the Internal Revenue Code Section 162(m) tax deduction limit.
12
REPORT OF THE STOCK OPTION AND COMPENSATION COMMITTEE
December 29, 2009
We have reviewed and discussed the above Compensation Discussion and Analysis with management
of Access Plans, Inc.
Based on that review and discussions, we recommended to the Board of Directors that the
Compensation Discussion and Analysis referred to above be included in the Annual Report on Form
10-K for the year ended September 30, 2009 and in this information statement.
The Stock Option and Compensation Committee
Larry G. Gerdes, Chairman
John Simonelli
Mark R. Kidd
EXECUTIVE COMPENSATION
The following table sets forth the cash and non-cash compensation of the
individuals that served as our Chief Executive Officer and Chief Financial Officer paid or accrued
during the years ended September 30, 2009, 2008 and 2007 and our three other most highly
compensated executive officers that were serving at September 30, 2009.
SUMMARY COMPENSATION TABLE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option |
|
|
All Other |
|
|
|
|
Name and Principal Position |
|
Year |
|
|
Salary |
|
|
Bonus |
|
|
Awards(1) |
|
|
Compensation |
|
|
Total |
|
Danny C. Wright |
|
|
2009 |
|
|
$ |
200,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
200,000 |
|
Chairman and Chief Executive Officer |
|
|
2008 |
|
|
$ |
200,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
200,000 |
|
|
|
|
2007 |
|
|
$ |
180,358 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
180,358 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Brett Wimberley |
|
|
2009 |
|
|
$ |
175,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
175,000 |
|
Director, President, Chief Financial Officer(2) |
|
|
2008 |
|
|
$ |
175,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
175,000 |
|
and Chief Operating Officer |
|
|
2007 |
|
|
$ |
118,817 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
118,817 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bradley W. Denison |
|
|
2009 |
|
|
$ |
250,000 |
|
|
$ |
10,400 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
260,400 |
|
Executive Vice President, General Counsel and |
|
|
2008 |
|
|
$ |
250,000 |
|
|
$ |
10,400 |
|
|
$ |
6,096 |
|
|
$ |
|
|
|
$ |
266,496 |
|
Secretary |
|
|
2007 |
|
|
$ |
205,743 |
|
|
$ |
4,800 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
210,543 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rita W. McKeown |
|
|
2009 |
|
|
$ |
100,671 |
|
|
$ |
9,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
109,671 |
|
Chief Accounting Officer (3) |
|
|
2008 |
|
|
$ |
94,000 |
|
|
$ |
5,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
99,000 |
|
and Treasurer |
|
|
2007 |
|
|
$ |
87,833 |
|
|
$ |
|
|
|
$ |
11,500 |
|
|
$ |
|
|
|
$ |
99,333 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Susan Matthews |
|
|
2009 |
|
|
$ |
175,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
175,000 |
|
President Benefit Marketing Solutions |
|
|
2008 |
|
|
$ |
175,000 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
175,000 |
|
|
|
|
2007 |
|
|
$ |
118,792 |
|
|
$ |
|
|
|
$ |
|
|
|
$ |
|
|
|
$ |
118,792 |
|
|
|
|
(1) |
|
In accordance with the provisions of FASB ASC Topic 718-Stock Compensation, we measure stock based compensation expense using the modified prospective method. Under
the modified prospective method, stock-based compensation cost is measured at the grant date based on the fair value of the award and is recognized as expense on a
straight-line basis over the requisite service period, which is the vesting period. |
|
(2) |
|
Brett Wimberley was appointed as our Chief Financial Officer on February 11, 2010. |
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(3) |
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Rita W. McKeown served as our Chief Financial Officer until February 11, 2010. |
13
Outstanding Equity Awards at Fiscal Year-End
During the year ended September 30, 2009, no options were exercised for the
purchase of our common stock by the executive officers named in the Summary Compensation Table,
above. The following table sets forth information related to the number and value of options held
by the named officers at September 30, 2009.
Outstanding Equity Awards at September 30, 2009
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Stock Option Awards |
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Number of Common Stock |
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|
Option |
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|
Option |
|
|
Underlying Options |
|
|
Exercise |
|
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Expiration |
Name |
|
Exercisable |
|
|
Unexercisable |
|
|
Price(1) |
|
|
Date |
Danny C. Wright |
|
|
|
|
|
|
|
|
|
$ |
|
|
|
N/A |
Brett Wimberley |
|
|
|
|
|
|
|
|
|
$ |
|
|
|
N/A |
Bradley Denison |
|
|
5,000 |
|
|
|
2,500 |
|
|
$ |
1.00 |
|
|
May 13, 2018 |
Rita McKeown |
|
|
23,410 |
|
|
|
|
|
|
$ |
0.83 |
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|
October 1, 2009 |
|
|
|
6,000 |
|
|
|
|
|
|
$ |
1.00 |
|
|
October 1, 2010 |
|
|
|
4,999 |
|
|
|
|
|
|
$ |
1.01 |
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|
May 26, 2014 |
|
|
|
10,000 |
|
|
|
|
|
|
$ |
1.15 |
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|
February 15, 2017 |
Susan Matthews |
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|
|
|
|
|
|
|
$ |
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|
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N/A |
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(1) |
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The closing sale price of our common stock as reported on the OTC Bulletin Board on
September 30, 2009 was $1.00. |
DIRECTOR COMPENSATION
In May 2010, we adopted a compensation policy for our independent or non-employee directors.
This policy provides that the directors qualifying as independent or non-employee directors are
entitled to receive stock grants of 10,000 common stock shares, annually, and $2,500 per calendar
quarter. Prior to adoption of this compensation policy, beginning in May 2008, we adopted a
compensation policy for our independent or non-employee directors that consisted of stock options
exercisable for the purchase of 10,000 common stock shares upon initially becoming a member of the
board of directors, thereafter annual options exercisable for the purchase of 5,000 common stock
shares, and $1,000 per calendar quarter. Directors who are also our employees receive no additional
compensation for serving as directors or on a board committee, unless special circumstances or
assigned responsibilities support additional compensation, including negotiation of the terms of an
asset or entity acquisition transaction. We reimburse our directors for travel and out-of-pocket
expenses in connection with their attendance at meetings of our board and its committees.
During the fiscal year ended September 30, 2009, the members of our board of directors
received the following compensation:
|
|
Messrs. Simonelli, Kidd and Gerdes each received a quarterly payment
of $1,000 for each calendar quarter ended December 31, 2008, March 31,
June 30 and September 30, 2009. Messrs. Cleveland and Hill each
received a quarterly payment of $1,000 for each calendar quarter ended
June 30 and September 30, 2009. Furthermore, Mr. Simonelli was paid
an additional Directors fee of $50,000 and was granted stock options
exercisable for the purchase of 25,000 common stock shares for $0.70
per share pursuant to the 2000 Plan. |
|
|
|
We reimbursed our directors members for travel and out of pocket
expenses in connection with their attendance at board and committee
meetings. |
|
|
|
We granted stock options to the non-employee board members as follows: |
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|
|
|
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Director Name |
|
Options Granted |
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Russell Cleveland |
|
|
10,000 |
|
J. French Hill |
|
|
10,000 |
|
14
In the year ended September 30, 2009, the following directors received compensation in
the following aggregate amounts:
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|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Earned or |
|
|
Option |
|
|
|
|
Name |
|
Paid in Cash |
|
|
Awards (1) |
|
|
Total |
|
John Simonelli |
|
$ |
54,000 |
|
|
$ |
6,006 |
|
|
$ |
60,006 |
|
Mark R. Kidd |
|
$ |
4,000 |
|
|
$ |
|
|
|
$ |
4,000 |
|
Larry G. Gerdes |
|
$ |
4,000 |
|
|
$ |
|
|
|
$ |
4,000 |
|
J. French Hill |
|
$ |
2,000 |
|
|
$ |
1,785 |
|
|
$ |
3,785 |
|
Russell Cleveland |
|
$ |
2,000 |
|
|
$ |
1,785 |
|
|
$ |
3,785 |
|
|
|
|
(1) |
|
In accordance with the provisions of FASB ASC Topic 718-Stock Compensation,
we measure stock based compensation expense using the modified prospective
method. Under the modified prospective method, stock-based compensation
cost is measured at the grant date based on the fair value of the award and
is recognized as expense on a straight-line basis over the requisite
service period, which is the vesting period. Because the stock options
were fully vested on the date of grant, the related expense for these
options was recorded on that date. |
STOCK OPTION AND COMPENSATION COMMITTEE INTERLOCKS
AND INSIDER PARTICIPATION IN COMPENSATION DECISIONS
The Stock Option and Compensation Committee of the Board of Directors for the 2009 fiscal year
was comprised of Larry Gerdes (Chairman), John Simonelli, and Mark R. Kidd. None of the members of
the Stock Option and Compensation Committee served as one of our officers or employees during the
fiscal year ended September 30, 2009. No interlocking relationship exists between members of our
Board of Directors or Stock Option and Compensation Committee and members of the board of directors
or compensation committee of any other company.
EQUITY COMPENSATION PLAN INFORMATION
The following table sets forth as of September 30, 2009, information related to each
category of equity compensation plan approved or not approved by our shareholders, including
individual compensation arrangements with our non-employee directors. The equity compensation
plans approved by our shareholders are our 2009 Stock Option Plan. All stock options and rights
to acquire our equity securities are exercisable for or represent the right to purchase our
common stock.
On October 13, 2009, our board of directors approved and adopted the Alliance HealthCard,
Inc. 2009 Equity Compensation Plan. The 2009 Plan became effective on December 4, 2009 and on
December 4, 2009 the 2000 Stock Option Plan was terminated.
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|
|
|
|
|
|
|
|
Number of |
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|
|
|
|
|
|
|
|
|
securities to be |
|
|
|
|
|
|
Number of securities |
|
|
|
issued upon |
|
|
|
|
|
|
remaining available for |
|
|
|
exercise of |
|
|
Weighted-average |
|
|
future issuance under |
|
|
|
outstanding |
|
|
exercise price of |
|
|
equity compensation plans |
|
|
|
options, warrants |
|
|
outstanding options, |
|
|
(excluding securities |
|
Equity Compensation Plan |
|
and rights |
|
|
warrants and rights |
|
|
reflected in column (a)) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alliance HealthCard,
Inc. 2000 Stock Option
Plan
(Not approved by
security holders) |
|
|
1,601,787 |
|
|
$ |
1.61 |
|
|
|
1,204,904 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
1,601,787 |
|
|
$ |
1.61 |
|
|
|
1,204,904 |
(1) |
|
|
|
(1) |
|
On December 4, 2009 our shareholders approved the adoption of the Alliance Healthcard,
Inc. (Access Plans, Inc.) 2009 Equity Compensation Plan and we terminated the Alliance
HealthCard, Inc. 2000 Stock Option Plan and no common stock shares remained available for
issuance of stock options under the 2000 Plan. The 2009 Plan authorized the award of
2,550,000 common stock shares for future issuance as restricted stock awards and stock
option awards. |
|
|
|
There were 15,000 options issued in February 2010 under the 2009 Plan leaving 2,535,000
as the number of securities remaining available for future issuance under equity
compensation plans. |
15
Officer and Director Liability and Indemnification
As provided by the Oklahoma General Corporation Act, each of our directors and officers is not
liable to us or our shareholders for any action taken as a director or officer, or any failure to
take any action, if the director or officer performed his or her duties in compliance with the
Oklahoma General Corporation Act. A director is required to discharge his or her duties as a
director, including those duties as a member of a committee, or an officer in a manner he or she
believes in good faith to be in our best interests and with the care that an ordinarily prudent
person in a like position would exercise under similar circumstances. In discharging his or her
duties, a director or officer is entitled to rely on information, opinions, reports, or statements,
including financial statements and other financial data, if prepared or presented by:
|
|
One or more of our officers or employees whom the director reasonably
believes to be reliable and competent in the matters presented; |
|
|
|
Legal counsel, public accountants, investment bankers, or other
persons as to matters the director reasonably believes are within the
persons professional or expert competence; or |
|
|
|
A committee of our Board of Directors of which he is not a member if
the director reasonably believes the committee merits confidence. |
However, neither a director nor an officer is entitled to rely on the forgoing if the director or
officer has knowledge concerning the matter in question that makes reliance unwarranted.
The provisions of the Oklahoma General Corporation Act do not eliminate liability of a
director or an executive officer for violations of federal securities laws, nor do they limit our
and our shareholders rights, in appropriate circumstances, to seek equitable remedies including
injunctive or other forms of non-monetary relief. These remedies may not be effective in all cases.
The Oklahoma General Corporation Act requires us to indemnify all of our directors, officers,
employees and agents. Under these provisions, when an individual in his or her capacity as an
officer or a director is made or threatened to be made a party to any suit or proceeding, the
individual may be indemnified if he or she acted in good faith. These indemnification provisions
are not exclusive of any other rights to which the individual may be entitled. Insofar as
indemnification for liabilities arising under the Oklahoma General Corporation Act or otherwise may
be permitted to its directors and officers, we have been advised that in the opinion of the United
States Securities and Exchange Commission the indemnification is against public policy and is,
therefore, unenforceable.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Our Code of Business Conduct and Ethics Policy (Code of Ethics) addresses any conflicts of
interests on the part of any employee that might cast doubt on an employees ability to act
objectively when representing us. In addition to setting guidelines, the Code of Ethics provides
that each potential conflict of interest will be reviewed and the final decision as to the
existence of a conflict made by our Chief Executive Officer.
16
The following is a description of transactions we entered into with our officers,
directors and shareholders that beneficially own more than 5% of our common stock during the years
ended September 30, 2009 and 2008. These transactions will continue in effect and may result in
conflicts of interest between us and these named persons.
Although our officers and directors have fiduciary duties to us and our shareholders, there can be
no assurance that conflicts of interest will always be resolved in our favor or in favor of our
shareholders.
Office Space Leasing Arrangements
We lease space for our corporate offices and our Wholesale Plans division in Norman, Oklahoma
under a lease that expires September 30, 2010. The total space consists of approximately 6,523
square feet. The lease agreement is with Southwest Brokers, Inc., a company owned by Brett
Wimberley, one of our Directors and executive officers and greater than 5% shareholders.
In the event we are required to move from our current offices in Norman, Oklahoma, the terms
and cost of occupancy may be substantially different than those under which that office space is
currently occupied and the rental rate may be substantially greater.
Merger-Acquisition of BMS Holding Company
On February 28, 2007, we completed the merger-acquisition of BMS Holding Company, whose
shareholders were Danny C. Wright, Brett Wimberley and Susan Matthews (the BMS Shareholders). In
connection with this merger, three promissory notes were issued to the BMS Shareholders in the
aggregate amount of $7,147,000. The notes are dated March 1, 2007 and bear interest at 1% per
annum. The carrying amount of these notes for financial reporting purposes was discounted to
$6,666,447 with an effective interest rate of 7% to adjust for the below market interest rate.
Principal and accrued interest of the notes were due and payable in 12 consecutive quarterly
installments commencing on May 15, 2007 and on each August 14, November 14, February 14 and May 15
of each year thereafter and in full on February 14, 2010, if not previously paid. Any payment of
principal and interest was to be applied first to the payment of interest due on the outstanding
principal sum and the balance was to be applied in reduction of principal sum. Notwithstanding the
foregoing and any other provision in the notes, in the event that our consolidated earnings before
interest, income taxes, depreciation and amortization, determined in accordance with generally
accepted accounting principles for each of the fiscal years ending on September 30, 2007, 2008 and
2009 should be less (Actual EBITDA) than $4,200,000 (the Targeted EBITDA), then the principal
amount of these notes were to be reduced by an amount equal to the percentage by which the Actual
EBITDA for each applicable period falls short of the Targeted EBITDA and the adjusted principal
balance of the notes would then be amortized over the remaining term of the notes in accordance
with the foregoing payment terms and schedule.
In addition to the foregoing, after the consummation of the BMS Holdings merger,
the principal amounts of these notes were to be reduced dollar-for-dollar by any loss incurred by
BMS Insurance Agency, L.L.C., a BMS Holdings affiliate, resulting from contingent commissions
being held by CAPIC pending receipt of a non-resident license from the Puerto Rico Department of
Insurance. Any net proceeds of BMS Insurance Agency, L.L.C. attributable to pre-closing periods was
to inure on a pro-rata basis to the benefit of the BMS Shareholders as holders of the notes. After
any decrease or increase in the principal amount of the notes related to post-closing payments to
or from CAPIC, the adjusted principal balance of these notes will be amortized over the remaining
term of the notes in accordance with the foregoing payment terms. To comply with this provision,
the principal of the notes was reduced by $247,073 as of September 30, 2007. The notes further
provided that recovery of any net proceeds of BMS Insurance Agency, L.L.C. attributable to
pre-closing periods would inure on a pro-rata basis to the benefit of the BMS Shareholders. As a
result of the settlement agreement completed on March 13, 2008 with CAPIC, BMS Insurance Agency,
L.L.C. received proceeds of $34,280 that resulted in a pro rata increase in the aggregate principal
amounts of the notes.
Pursuant to discussions between the BMS Shareholders (as the holders of the notes)
and our disinterested directors (and their approval), on January 10, 2008 the original notes were
cancelled and replaced by new notes reflecting the unpaid principal balance, but modifying the
measurement periods to defer by one year to the fiscal years ending September 30, 2008,
September 30, 2009 and converted to quarterly reviews thereafter. Our disinterested directors
concluded that these deferred periods more appropriately tie the payment obligations to our
performance because the initial period did not reflect an entire 12-month period and also included
several merger related one-time expenses. Several additional provisions were added to allow for
adjustments of the principal amounts of the notes, if necessary. The new notes were issued in the
aggregate principal amount of $5,113,177
representing the unpaid principal balances on the original notes on that date before the above
described note adjustments.
17
Principal and interest payments made on these notes were $2,315,360 and $2,358,265,
respectively for the years ended September 30, 2009 and 2008.
Pursuant to discussions between the note holders and our independent directors, on November
18, 2009 the disinterested directors accepted a proposal by the note holders for the notes to be
paid off early at a 10% discount. Principal payments of $1,030,348 were made to the note holders on
January 6, 2010 and the notes were deemed fully paid.
PROPOSALS BY SHAREHOLDERS
Proposals by shareholders intended to be presented at our 2011 annual meeting (to be held
February 1, 2011) must be forwarded in writing and received at our principal executive offices no
later than September 30, 2010 and directed to the attention of the Secretary for consideration for
inclusion in our proxy statement for the annual meeting of shareholders to be held in 2011. Any
shareholder proposal must comply in all respects with Rule 14a-8 of the U.S. Securities and
Exchange Commission. In the event the September 30, 2011 deadline for presenting shareholder
proposal is changed, the change will be reported in our quarterly report on Form 10-Q on in a
current report on Form 8-K.
In connection with our annual meeting of shareholders to be held in 2011, if we do not receive
notice of a matter or proposal to be considered by September 30, 2011, then the persons appointed
by our Board of Directors to act as the proxies for that annual meeting (named in the form of
proxy) will be allowed to use their discretionary voting authority with respect to any such matter
or proposal at the annual meeting, if the matter or proposal is properly raised at the annual
meeting and put to a shareholder vote.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires our directors, executive
officers and persons who own more than 10% of our outstanding common stock to file with the U.S.
Securities and Exchange Commission reports of changes in ownership of our common stock held by
them. Officers, Directors and greater than 10% shareholders are also required to furnish us with
copies of all forms they file under this regulation.
The rules of the U.S. Securities and Exchange Commission require us to disclose late filings
of stock transaction reports by our executive officers and directors. During the fiscal year ended
September 30, 2009, to our knowledge, based solely on a review of the copies of the reports
furnished to us and representations that no other reports were required, all Section 16(a) filing
requirements applicable to our directors, officers and greater than 10% shareholders were complied
with during the fiscal year ended September 30, 2009.
Although it is not our obligation to make filings pursuant to Section 16 of the Securities
Exchange Act of 1934, we have adopted a policy requiring all Section 16 reporting persons to report
to our Chief Financial Officer all trading activity in our common stock on the day of any trade to
facilitate the timely filing of the reports of such trading activity with the U.S. Securities and
Exchange Commission.
18
HOUSEHOLDING INFORMATION
Unless we have received contrary instructions, we may send a single copy of this notice and
information statement to any household at which two or more shareholders reside if we believe the
shareholders are members of the same family. This process, known as householding, reduces the
volume of duplicate information received at any one household and helps to reduce our expenses.
However, if shareholders prefer to receive multiple sets of our disclosure documents at the same
address this year or in future years, the shareholders should follow the instructions described
below. Similarly, if an address is shared with another shareholder and together both of the
shareholders would like to receive only a single set of our disclosure documents, the shareholders
should follow these instructions:
If the shares are registered in the name of the shareholder, the shareholder should contact us
at our offices at 900 36th Avenue, NW, Norman, Oklahoma 73072, to inform us of their
request. If a bank, broker or other nominee holds the shares, the shareholder should contact the
bank, broker or other nominee directly.
WHERE YOU CAN FIND MORE INFORMATION
We file annual and quarterly reports and other reports and information with the U.S.
Securities and Exchange Commission. These reports and other information can be inspected and copied
at, and copies of these materials can be obtained at prescribed rates from, the Public Reference
Section of the Securities and Exchange Commission, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549-1004. We distribute to our shareholders annual reports containing financial
statements audited by our independent registered public accounting firm and, upon request,
quarterly reports for the first three quarters of each fiscal year containing unaudited financial
information. In addition, the reports and other information are filed through Electronic Data
Gathering, Analysis and Retrieval (known as EDGAR) system and are publicly available on the U.S.
Securities and Exchange Commissions site on the Internet, located at http://www.sec.gov. We will
provide without charge to you, upon written or oral request, a copy of the reports and other
information filed with the U.S. Securities and Exchange Commission.
Any requests for copies of information, reports or other filings with the Securities and
Exchange Commission should be directed to ACCESS Plans, Inc. at 900 36th Avenue, NW,
Norman, Oklahoma 73072, Attention: Corporate Secretary or telephone: (405) 579-8525.
ANNUAL REPORT ON FORM 10-K
A copy of our Annual Report on Form 10-K (without exhibits) for the fiscal year ended
September 30, 2009 accompanies this information statement. The exhibits to our Annual Report on
Form 10-K for the fiscal year ended September 30, 2009, as filed with the U.S. Securities and
Exchange Commission, are available to shareholders who make written request to our Corporate
Secretary at 900 36th Avenue, NW, Norman, Oklahoma 73072. These documents may also be
accessed from our website at www.accessplans.com.
|
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BY ORDER OF THE BOARD OF DIRECTORS |
|
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|
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|
|
DANNY C. WRIGHT |
|
|
Chairman of the Board |
Norman, Oklahoma
July 14, 2010
19