AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 17, 1996
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------
SANO CORPORATION
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 65-0263022
- ------------------------------- ----------------------
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
3250 COMMERCE PARKWAY
MIRAMAR, FLORIDA 33025
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
SANO CORPORATION 1995 STOCK OPTION PLAN
SANO CORPORATION 1993 NON-QUALIFIED STOCK OPTION PLAN
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(FULL TITLE OF THE PLAN)
-------------------
REGINALD L. HARDY
PRESIDENT
SANO CORPORATION
3250 COMMERCE PARKWAY
MIRAMAR, FLORIDA 33025
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(Name and address of agent for service)
(954) 430-3340
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(Telephone number, including area code, of agent for service)
COPY TO:
DANIEL E. REED, ESQ.
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0827
-------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================
<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE(1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
COMMON STOCK, 1,724,083
$.01 PAR VALUE................... SHARES $1.50 - $17.625 $9,860,190 $3,400
================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
which was computed in accordance with Rule 457(h) on the basis of (i) the
actual price of options granted under the Registrant's 1995 Stock Option
Plan and 1993 Non-Qualified Stock Option Plan and (ii) an assumed price
of $17.625 per share (based on the Registrant's closing stock price on
the Nasdaq Stock Market on May 15, 1996) for each of the remaining
options to be granted under the 1995 Stock Option Plan.
<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this
Registration Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995,
as amended;
(b) all other reports filed by the Registrant
pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the
"Exchange Act") since the end of fiscal year
1995; and
(c) the descriptions of the Registrant's
Common Stock and related matters set forth under
the captions "Description of Capital Stock" and
"Dividend Policy" in the Registrant's
Registration Statement on Form S-1 (File No.
33-97194) filed under the Securities Act of
1933, as amended (the "Act"), including any
amendments to such descriptions in such
Registration Statement.
In addition, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated herein by reference
and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under Section 607.0850 of
the Florida Business Corporation Act to indemnify its directors and officers to
the extent provided in such statute. The Registrant's Articles of Incorporation
provide that the Registrant may indemnify its executive officers and directors
to the fullest extent permitted by law either now or hereafter.
The provisions of the Florida Business Corporation Act
that authorize indemnification do not eliminate the duty of care of a director,
and in appropriate circumstances equitable remedies such as injunctive or other
forms of nonmonetary relief will remain available under Florida law. In
addition, each director will continue to be subject to liability for (a)
violations of criminal laws, unless the director had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe his conduct was
unlawful; (b) deriving an improper personal benefit from a transaction; (c)
voting for or assenting to an unlawful distribution; and (d) willful misconduct
or a conscious disregard for the best interests of the Registrant in a
proceeding by or in the right of the Registrant to procure a judgment in its
favor or in a proceeding by or in the right of a shareholder. The statute does
not affect a director's responsibilities under any other law, such as the
federal securities laws.
At present, there is no pending litigation or proceeding
involving a director or officer of the Registrant as to which indemnification is
being sought, nor is the Registrant aware of any threatened litigation that may
result in claims for indemnification by any officer or director.
II - 1
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See "Exhibit Index" on page II-4 below.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II - 2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Act, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Miramar, State of Florida on May 17, 1996.
SANO CORPORATION
By: /s/ REGINALD L. HARDY
-------------------------------
Reginald L. Hardy
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Marc M. Watson and Reginald L.
Hardy his true and lawful attorneys-in-fact, each acting alone, with full powers
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this Registration Statement, and to file the same,
with exhibits thereto, and other documents to be filed in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorneys-in-fact or their substitutes, each acting alone, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
SIGNATURE TITLE DATE
/s/ Reginald L.Hardy
__________________________ President and Director May 17, 1996
Reginald L. Hardy (principal executive officer)
/s/ Marc M. Watson
__________________________ Chairman of the Board May 17, 1996
Marc M. Watson
/s/ Gerald S. Coombs
__________________________ Chief Financial Officer May 17, 1996
Gerald S. Coombs (principal financial officer and
principal accounting officer)
/s/ Charles J. Betlach
___________________________ Director May 17, 1996
Charles J. Betlach, Ph.D.
/s/ Hubert E.Huckel
___________________________ Director May 17, 1996
Hubert E. Huckel, M.D.
/s/ Marco Possati
___________________________ Director May 17, 1996
Marco Possati
/s/ Roy S. Walzer
___________________________ Director May 17, 1996
Roy S. Walzer
II - 3
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION SEQUENTIAL
PAGE NO.
4.1 Registrant's Amended and Restated Articles of Incorporation (1)
4.2 Registrant's Amended and Restated Bylaws (2)
4.3 Sano Corporation 1993 Non-Qualified Stock Option Plan (3)
4.4 Sano Corporation 1995 Stock Option Plan
5.1 Opinion of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel,
P.A.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.
(contained in its opinion filed as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signatures section of this
Registration Statement
- ----------------------------
(1) Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Registration Statement on Form S-1 (File No. 33-97194).
(2) Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Registration Statement on Form S-1 (File No. 33-97194).
(3) Incorporated by reference to Exhibit 10.1 filed with the Registrant's
Registration Statement on Form S-1 (File No. 33-97194).
II - 4
EXHIBIT 4.4
SANO CORPORATION 1995
STOCK OPTION PLAN
1. PURPOSE. The purpose of this Plan is to advance the
interests of SANO CORPORATION, a Florida corporation (the "Company"), by
providing an additional incentive to attract and retain qualified and competent
persons who are key to the Company or its Subsidiaries, if any, including key
employees, Officers, Directors and independent contractors, and upon whose
efforts and judgment the success of the Company and its Subsidiaries is largely
dependent, through the encouragement of stock ownership in the Company by such
persons.
2. DEFINITIONS. As used herein, the following terms shall
have the meaning indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Committee" shall mean the stock option committee
appointed by the Board pursuant to Section 13 hereof or, if not appointed, the
Board.
(d) "Common Stock" shall mean the Company's Common Stock, par
value $0.01 per share.
(e) "Director" shall mean a member of the Board.
(f) "Disinterested Person" shall mean a Director who is not,
during the one year prior to his or her service as an administrator of this
Plan, or during such service, granted or awarded equity securities pursuant to
this Plan or any other plan of the Company or any of its affiliates, except
that:
(i) participation in a formula plan meeting the conditions in
paragraph (c)(2)(ii) of Rule 16b-3 promulgated under the Securities
Exchange Act shall not disqualify a Director from being a
Disinterested Person;
(ii) participation in an ongoing securities acquisition plan
meeting the conditions in paragraph (d)(2)(i) of Rule 16b-3
promulgated under the Securities Exchange Act shall not disqualify a
Director from being a Disinterested Person; and
(iii) an election to receive an annual retainer fee in either
cash or an equivalent amount of securities, or partly in cash and
partly in securities, shall not disqualify a Director from being a
Disinterested Person.
(g) "Employee Director" shall mean a member of the Board who
is also an employee of the Company or a Subsidiary.
(h) "Fair Market Value" of a Share on any date of reference
shall be the "Closing Price" (as defined below) of the Common Stock on the date
immediately prior to such date (or, if such date is not a business day, on the
immediately preceding business day), unless the Committee in its sole discretion
shall determine otherwise in a fair and uniform manner. For the purpose of
determining Fair Market Value, the "Closing Price" of the Common Stock on any
business day shall be (i) if the Common Stock is listed or admitted for trading
on any United States national securities exchange, or if actual transactions are
otherwise reported on a consolidated transaction reporting system, the last
reported sale price of Common Stock on such exchange or reporting system, as
reported in any newspaper of general circulation, (ii) if the Common Stock is
quoted on the National Association of Securities Dealers Automated Quotations
System ("NASDAQ"), or any similar system of automated dissemination of
quotations of securities prices in common use, the last reported sale price of
Common Stock for such day on such
<PAGE>
system, or (iii) if neither clause (i) or (ii) is applicable, the mean between
the high bid and low asked quotations for the Common Stock as reported by the
National Quotation Bureau, Incorporated if at least two securities dealers have
inserted both bid and asked quotations for Common Stock on at least five of the
ten preceding days.
(i) "Incentive Stock Option" shall mean an incentive stock
option as defined in Section 422 of the Code.
(j) "Non-Employee Director" shall mean a member of the Board
who is not an employee of the Company or a Subsidiary.
(k) "Non-Statutory Stock Option" shall mean an Option which is
not an Incentive Stock Option.
(l) "Officer" shall mean the Company's president, principal
financial officer, principal accounting officer (or, if there is no such
accounting officer, the controller), any vice-president of the Company in charge
of a principal business unit, division or function (such as sales,
administration or finance), any other officer who performs a policy-making
function, or any other person who performs similar policy-making functions for
the Company. Officers of Subsidiaries shall be deemed Officers of the Company if
they perform such policy-making functions for the Company. As used in this
paragraph, the phrase "policy-making function" does not include policy-making
functions that are not significant. Unless specified otherwise in a resolution
by the Board, an "executive officer" pursuant to Item 401(b) of Regulation S-K
(17 C.F.R. 229.401(b)) shall be only such person designated as an "Officer"
pursuant to the foregoing provisions of this paragraph.
(m) "Option" (when capitalized) shall mean any option granted
under this Plan.
(n) "Optionee" shall mean a person to whom a stock option is
granted under this Plan or any person who succeeds to the rights of such person
under this Plan by reason of the death of such person.
(o) "Plan" shall mean this Stock Option Plan for the Company.
(p) "Securities Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(q) "Share(s)" shall mean a share or shares of the Common
Stock.
3. SHARES AND OPTIONS. The Company may grant to Optionees
from time to time Options to purchase an aggregate of up to five hundred
thousand (500,000) Shares from Shares held in the Company's treasury or from
authorized and unissued Shares. If any Option granted under the Plan shall
terminate, expire, or be canceled or surrendered as to any Shares, new Options
may thereafter be granted covering such Shares. Subject to the provisions of
Section 14 hereof, an Option granted hereunder shall be either an Incentive
Stock Option or a Non-Statutory Stock Option as determined by the Committee at
the time of grant of such Option and shall clearly state whether it is an
Incentive Stock Option or Non-Statutory Stock Option. All Incentive Stock
Options shall be granted within 10 years from the effective date of this Plan.
4. DOLLAR LIMITATION. Options otherwise qualifying as
Incentive Stock Options hereunder will not be treated as Incentive Stock Options
to the extent that the aggregate Fair Market Value (determined at the time the
Option is granted) of the Shares, with respect to which Options meeting the
requirements of Code Section 422(b) are exercisable for the first time by any
individual during any calendar year (under all plans of the Company and any
Subsidiary), exceeds $100,000.
-2-
<PAGE>
5. CONDITIONS FOR GRANT OF OPTIONS.
(a) Each Option shall be evidenced by an option agreement
that may contain any term deemed necessary or desirable by the Committee,
provided such terms are not inconsistent with this Plan or any applicable law.
In addition to Non-Employee Directors (who shall receive Options only pursuant
to Section 15 of this Plan), Optionees shall be those persons selected by the
Committee from the class of (i) all regular employees of the Company or its
Subsidiaries, including Employee Directors and Officers who are regular
employees of the Company, and (ii) independent contractors of the Company deemed
by the Committee to be key to the Company's success. Any person who files with
the Committee, in a form satisfactory to the Committee, a written waiver of
eligibility to receive any Option under this Plan shall not be eligible to
receive any Option under this Plan for the duration of such waiver.
(b) In granting Options to employees or independent contractors
of the Company or its Subsidiaries, the Committee shall take into consideration
the contribution the person has made to the success of the Company or its
Subsidiaries and such other factors as the Committee shall determine. The
Committee shall also have the authority to consult with and receive
recommendations from officers and other personnel of the Company and its
Subsidiaries with regard to these matters. The Committee may from time to time
in granting Options to employees or independent contractors of the Company or
its Subsidiaries under the Plan prescribe such other terms and conditions
concerning such Options as it deems appropriate, including, without limitation,
(i) prescribing the date or dates on which the Option becomes exercisable, (ii)
providing that the Option rights accrue or become exercisable in installments
over a period of years, or upon the attainment of stated goals or both, or (iii)
relating an Option to the continued employment of the Optionee for a specified
period of time, provided that such terms and conditions are not more favorable
to an Optionee than those expressly permitted herein.
(c) The Options granted to employees or independent
contractors under this Plan shall be in addition to regular salaries, pension,
life insurance or other benefits related to their employment or contract with
the Company or its Subsidiaries. Neither the Plan nor any Option granted under
the Plan shall confer upon any person any right to employment or continuance of
employment by the Company or its Subsidiaries.
(d) Notwithstanding any other provision of this Plan, and in
addition to any other requirements of this Plan, Options may not be granted to
(i) an Officer or Employee Director unless the grant of such Options is
authorized by, and all of the terms of such Options are determined by, a
Committee that is appointed in accordance with Section 13 of this Plan and all
of whose members are Disinterested Persons, or (ii) a Non-Employee Director
unless the grant of such Options is made in accordance with Section 15 of this
Plan.
6. OPTION PRICE. The option price per Share of any Option
shall be any price determined by the Committee but shall not be less than the
par value per Share; provided, however, that in no event shall the option price
per Share of any Incentive Stock Option or Option granted pursuant to Section 15
of this Plan be less than the Fair Market Value of the Shares underlying such
Option on the date such Option is granted.
7. EXERCISE OF OPTIONS. An Option shall be deemed exercised
when (i) the Company has received written notice of such exercise in accordance
with the terms of the Option, (ii) full payment of the aggregate option price of
the Shares as to which the Option is exercised has been made, and (iii)
arrangements that are satisfactory to the Committee in its sole discretion have
been made for the Optionee's payment to the Company of the amount that is
necessary for the Company or Subsidiary employing the Optionee to withhold in
accordance with applicable Federal or state tax withholding requirements. Unless
further limited by the Committee in any Option, the option price of any Shares
purchased shall be paid in cash, by certified or official bank check, by money
order, with Shares or by a combination of the above; provided further, however,
that the Committee in its sole discretion may accept a personal check in full or
partial payment of any Shares. If the exercise price is paid in whole or in part
with Shares, the value of the Shares surrendered shall be their Fair Market
Value on the date the Option is exercised. The Company in its sole discretion
may, on an individual basis or pursuant to a general program
-3-
<PAGE>
established in connection with this Plan, lend money to an Optionee, guarantee a
loan to an Optionee, or otherwise assist an Optionee to obtain the cash
necessary to exercise all or a portion of an Option granted hereunder or to pay
any tax liability of the Optionee attributable to such exercise. If the exercise
price is paid in whole or part with Optionee's promissory note, such note shall
(i) provide for full recourse to the maker, (ii) be collateralized by the pledge
of the Shares that the Optionee purchases upon exercise of such Option, (iii)
bear interest at the prime rate of the Company's principal lender, and (iv)
contain such other terms as the Board in its sole discretion shall reasonably
require. No Optionee shall be deemed to be a holder of any Shares subject to an
unless and until a stock certificate or certificates for such Shares are issued
to such person(s) under the terms of this Plan. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as expressly provided in
Section 10 hereof.
8. EXERCISABILITY OF OPTIONS. Any Option shall become
exercisable in such amounts, at such intervals and upon such terms as the
Committee shall provide in such Option, except as otherwise provided in this
Section 8.
(a) The expiration date of an Option shall be determined by
the Committee at the time of grant, but in no event shall an Option be
exercisable after the expiration of 10 years from the date of grant of the
Option.
(b) Unless otherwise provided in any Option, each outstanding
Option shall become immediately fully exercisable:
(i) if there occurs any transaction (which shall
include a series of transactions occurring within 60 days or
occurring pursuant to a plan), that has the result that shareholders
of the Company immediately before such transaction cease to own at
least 51 percent of the voting stock of the Company or of any entity
that results from the participation of the Company in a
reorganization, consolidation, merger, liquidation or any other form
of corporate transaction;
(ii) if the shareholders of the Company shall
approve a plan of merger, consolidation, reorganization, liquidation
or dissolution in which the Company does not survive (unless the
approved merger, consolidation, reorganization, liquidation or
dissolution is subsequently abandoned); or
(iii) if the shareholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of
all or substantially all the property and assets of the Company
(unless such plan is subsequently abandoned).
(c) Except with respect to an Option granted pursuant to
Section 15 of this Plan, the Committee may in its sole discretion accelerate the
date on which any Option may be exercised and may accelerate the vesting of any
Shares subject to any Option or previously acquired by the exercise of any
Option.
9. TERMINATION OF OPTION PERIOD.
(a) Unless otherwise extended by the Committee in its sole
discretion, the unexercised portion of any Option, other than an Option granted
pursuant to Section 15 hereof, shall automatically and without notice terminate
and become null and void at the time of the earliest to occur of the following:
(i) three months after the date on which the
Optionee's employment is terminated (or, in the case of independent
contractors, three months after the termination of the Optionee's
contract with the Company) for any reason other than by reason of (A)
Cause, which, solely for purposes of this Plan, shall mean the
termination of the Optionee's employment (or, in the case of
independent contractors, the Optionee's contract) by reason of the
Optionee's wilful misconduct or negligence, as determined by the
-4-
<PAGE>
Committee in its sole and absolute discretion, (B) a mental or
physical disability as determined by a medical doctor satisfactory to
the Committee in its sole and absolute discretion, or (C) death;
(ii) immediately upon the termination of the
Optionee's employment (or, in the case of independent contractors,
the Optionee's contract) for Cause;
(iii) one year after the date on which the Optionee's
employment (or, in the case of independent contractors, the
Optionee's contract) is terminated by reason of a mental or physical
disability (within the meaning of Code Section 22(e)) as determined
by a medical doctor satisfactory to the Committee in its sole and
absolute discretion; or
(iv) (A) one year after the date of termination of
the Optionee's employment (or, in the case of independent
contractors, the Optionee's contract) by reason of death of the
Optionee, or (B) three months after the date on which the Optionee
shall die if such death shall occur during the one year period
specified in Subsection 9(a)(iii) hereof.
(b) The Committee in its sole discretion may by giving
written notice ("cancellation notice") cancel, effective upon the date of the
consummation of any corporate transaction described in Subsections 8(b)(ii) or
(iii) hereof, any Option that remains unexercised on such date. Such
cancellation notice shall be given at least ten days prior to the proposed date
of such cancellation and may be given either before or after approval of such
corporate transaction.
10. ADJUSTMENT OF SHARES.
(a) If at any time while the Plan is in effect or unexercised
Options are outstanding, there shall be any increase or decrease in the number
of issued and outstanding Shares through the declaration of a stock dividend or
through any recapitalization resulting in a stock split, combination or exchange
of Shares, then and in such event:
(i) appropriate adjustment shall be made in the maximum
number of Shares available for grant under the Plan, so that the same
percentage of the Company's issued and outstanding Shares shall
continue to be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the number of
Shares and the exercise price per Share thereof then subject to any
outstanding Option, so that the same percentage of the Company's
issued and outstanding Shares shall remain subject to purchase at the
same aggregate exercise price.
(b) Subject to the specific terms of any Option, the
Committee may change the terms of Options outstanding under this Plan, with
respect to the option price or the number of Shares subject to the Options, or
both, when, in the Committee's sole and absolute discretion, such adjustments
become appropriate by reason of a corporate transaction described in Subsections
8(b)(ii) or (iii) hereof.
(c) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with a sale of Shares, or shares of any other class of capital stock
of the Company, or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of Shares or obligations of the Company convertible
into such Shares or other securities, shall not affect, and no adjustment by
reason thereof shall be made with respect to the number of or exercise price of
Shares then subject to outstanding Options granted under the Plan.
(d) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate (i)
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its
-5-
<PAGE>
business; (ii) any merger or consolidation of the Company; (iii) any issue by
the Company of debt securities, or preferred or preference stock that would rank
above the Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Company; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Company; or (vi) any other corporate act
or proceeding, whether of a similar character or otherwise.
11. TRANSFERABILITY OF OPTIONS. Each Option shall provide
that such Option shall not be transferable by the Optionee otherwise than by
will or the laws of descent and distribution, and each Option shall be
exercisable during the Optionee's lifetime only by the Optionee.
12. ISSUANCE OF SHARES. As a condition of any sale or
issuance of Shares upon exercise of any Option, the Committee may require such
agreements or undertakings, if any, as the Committee may deem necessary or
advisable to assure compliance with any such law or regulation including, but
not limited to, the following:
(i) a representation and warranty by the Optionee to the
Company, at the time any Option is exercised, that he is acquiring
the Shares to be issued to him for investment and not with a view to,
or for sale in connection with, the distribution of any such Shares;
and
(ii) a representation, warranty and/or agreement to be
bound by any legends that are, in the opinion of the Committee,
necessary or appropriate to comply with the provisions of any
securities law deemed by the Committee to be applicable to the
issuance of the Shares and are endorsed upon the Share certificates.
13. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Committee, which
shall consist of not less than two Directors, each of whom shall be
Disinterested Persons to the extent required by Section 5(d) hereof, provided
that the Committee shall not have any discretion with respect to the grant of
Options to Non-Employee Directors pursuant to Section 15 of this Plan. The
Committee shall have all of the powers of the Board with respect to the Plan.
Any member of the Committee may be removed at any time, with or without cause,
by resolution of the Board and any vacancy occurring in the membership of the
Committee may be filled by appointment by the Board.
(b) The Committee, from time to time, may adopt rules and
regulations for carrying out the purposes of the Plan. The Committee's
determinations and its interpretation and construction of any provision of the
Plan shall be final and conclusive.
(c) Any and all decisions or determinations of the Committee
shall be made either (i) by a majority vote of the members of the Committee at a
meeting or (ii) without a meeting by the unanimous written approval of the
members of the Committee.
14. INCENTIVE OPTIONS FOR 10% SHAREHOLDERS. Notwithstanding
any other provisions of the Plan to the contrary, an Incentive Stock Option
shall not be granted to any person owning directly or indirectly (through
attribution under Section 424(d) of the Code) at the date of grant, stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company (or of its subsidiary [as defined in Section 424 of the
Code] at the date of grant) unless the option price of such Option is at least
110% of the Fair Market Value of the Shares subject to such Option on the date
the Option is granted, and such Option by its terms is not exercisable after the
expiration of five years from the date such Option is granted.
15. FORMULA GRANTS TO NON-EMPLOYEE DIRECTORS. Each
Non-Employee Director shall receive (i) on the date of his or her appointment as
a Director, an Option to purchase 5,000 shares of Common Stock, which Option
will become fully exercisable on the first anniversary of its grant, and (ii)
each year, on the day the Company issues its earnings release for the prior
fiscal year, an Option to purchase 5,000 shares of Common Stock,
-6-
<PAGE>
which Option will become fully exercisable immediately upon its grant. The per
share exercise price of all Options granted to Non-Employee Directors pursuant
to this Section 15 will be equal to the Fair Market Value of the Shares
underlying such Option on the date such Option is granted. Unless otherwise
extended in the sole discretion of the Committee, the unexercised portion of any
Option granted pursuant to this Section 15 shall become null and void three
months after the date on which such Non-Employee Director ceases to be a
Director for any reason.
16. INTERPRETATION.
(a) The Plan shall be administered and interpreted so that
all Incentive Stock Options granted under the Plan will qualify as Incentive
Stock Options under section 422 of the Code. If any provision of the Plan should
be held invalid for the granting of Incentive Stock Options or illegal for any
reason, such determination shall not affect the remaining provisions hereof, but
instead the Plan shall be construed and enforced as if such provision had never
been included in the Plan.
(b) This Plan shall be governed by the laws of the State of
Florida.
(c) Headings contained in this Plan are for convenience only
and shall in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate.
17. AMENDMENT AND DISCONTINUATION OF THE PLAN.
(a) Either the Board or the Committee may from time to time
amend the Plan or any Option; provided, however, that, except to the extent
provided in Section 10, no such amendment may, without approval by the
shareholders of the Company, (i) materially increase the benefits accruing to
participants under the Plan, (ii) materially increase the number of securities
which may be issued under the Plan, or (iii) materially modify the requirements
as to eligibility for participation in the Plan; and provided further, that,
except to the extent provided in Section 9, no amendment or suspension of the
Plan or any Option issued hereunder shall substantially impair any Option
previously granted to any Optionee without the consent of such Optionee.
(b) Notwithstanding anything herein to the contrary, the
provisions of this Plan which govern the number of Options to be awarded to
Non-Employee Directors, the exercise price per share under each such Option,
when and under what circumstances such Option will be granted and the period
within which each such Option may be exercised, shall not be amended more than
once every six months (even with shareholder approval), other than to conform to
changes to the Code, or the rules promulgated thereunder, and under the Employee
Retirement Income Security Act of 1974, as amended, or the rules promulgated
thereunder, or with rules promulgated by the Securities and Exchange Commission.
18. EFFECTIVE DATE AND TERMINATION DATE. The Plan shall be
effective upon the approval of both the Board and the majority of voting
shareholders of the Company and shall terminate ten years thereafter.
-7-
May 17, 1996
Sano Corporation
3250 Commerce Parkway
Miramar, Florida 33025
RE: REGISTRATION STATEMENT ON FORM S-8 FOR SANO
CORPORATION'S 1993 NON- QUALIFIED STOCK OPTION
PLAN AND 1995 STOCK OPTION PLAN
Ladies and Gentlemen:
On the date hereof, Sano Corporation, a Florida corporation (the
"Company"), sent for filing with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-8 (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Act"). The
Registration Statement relates to the offering and sale by the Company of up to
1,724,083 shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), pursuant to stock options ("Options") granted or to be granted
under the Company's 1993 Non-Qualified Stock Option Plan (the "1993 Plan") and
1995 Stock Option Plan (the "1995 Plan"). We have acted as counsel to the
Company in connection with the preparation and filing of the Registration
Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Articles of Incorporation
and Bylaws of the Company;
<PAGE>
Sano Corporation
May 17, 1996
Page 2
(ii) records of corporate proceedings of the Company authorizing the 1993 Plan
and 1995 Plan; (iii) the Registration Statement and exhibits thereto; and (iv)
such other documents and instruments as we have deemed necessary for the
expression of the opinions herein contained. In making the foregoing
examinations, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents submitted to us as certified or
photostatic copies. As to various questions of fact material to this opinion, we
have relied, to the extent we deemed reasonably appropriate, upon
representations of officers or directors of the Company and upon documents,
records and instruments furnished to us by the Company, without independently
checking or verifying the accuracy of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Company presently has available at least 1,724,083 shares of authorized and
unissued Common Stock from which the 1,724,083 shares of Common Stock proposed
to be sold pursuant to the exercise of Options granted under the 1993 Plan and
1995 Plan may be issued. In addition, assuming that the Company maintains an
adequate number of authorized but unissued shares of Common Stock available for
issuance to those persons who exercise their Options, and that the consideration
for the underlying shares of Common Stock issued pursuant to the Options is
actually received by the Company as provided in the 1993 Plan and 1995 Plan, we
are of the opinion that the shares of Common Stock issued pursuant to the
exercise of Options granted under and in accordance with the terms of the 1993
Plan and 1995 Plan will be duly and validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
By: /s/ GARY M. EPSTEIN
------------------------
Gary M. Epstein
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
report dated January 31, 1996 included in Sano Corporation's Form 10-K for the
year ended December 31, 1995 and to all references to our Firm in this
registration statement.
ARTHUR ANDERSEN
Miami, Florida
May 14, 1996
