As filed with the Securities and Exchange Commission on November 20, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
HumaScan Inc.
(Exact name of registrant as specified in its charter)
Delaware 22-3345046
State or jurisdiction of (I.R.S. Employer
incorporation or organization Identification Number)
125 Moen Avenue
Cranford, New Jersey 07016
(Address of principal executive offices)
1996 STOCK INCENTIVE PLAN
AND
OTHER EMPLOYEE BENEFIT PLANS
(Full title of the Plans)
Kenneth S. Hollander, Secretary
HumaScan Inc.
125 Moen Avenue
Cranford, New Jersey 07016
(908) 709-3434
(Name, address and telephone number, including area code, of agent for service)
with a copy to:
David Alan Miller, Esq.
Graubard Mollen & Miller
600 Third Avenue
New York, New York 10016-2097
(212) 818-8800
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed maximum
Amount to be maximum offering aggregate Amount of
Title of securities to be registered registered price per share offering price registration fee
================================================== ===============================================================================
<S> <C> <C> <C> <C>
163,000 shares $6.00 $1,833,443.75
10,000 shares $5.75
Common Stock issuable upon exercise of options 12,000 shares $13.125
granted and outstanding under the Registrant's 46,700 shares $7.6875 $555.59
1996 Stock Incentive Plan ("1996 Plan")(1) 24,000 shares $6.75
13,000 shares $9.1875
- -------------------------------------------------- -------------------------------------------------------------------------------
Common Stock issuable upon exercise of awards 431,300 shares $9.00 $3,881,700.00 $1,176.27
which may be granted under the 1996 Plan(2)
- -------------------------------------------------- -------------------------------------------------------------------------------
</TABLE>
(Table continued on next page)
<PAGE>
<TABLE>
<CAPTION>
(Table continued from previous page)
Proposed
Proposed maximum
Amount to be maximum offering aggregate Amount of
Title of securities to be registered registered price per share offering price registration fee
================================================== ===============================================================================
<S> <C> <C> <C> <C>
Common Stock issuable upon exercise of options
granted and outstanding under other employee 142,500 shares $5.33 $804,525.00 $243.80
benefit plans ("Benefit Plans")(3) 7,500 shares $6.00
- -------------------------------------------------- -------------------------------------------------------------------------------
TOTAL $1,975.66
================================================== ===============================================================================
<FN>
(1) Represents the exercise prices payable for the 268,700 shares that may
be acquired under outstanding options granted under the 1996 Plan in
accordance with Rule 457(h) promulgated under the Securities Act of
1933, as amended ("Securities Act").
(2) Based on the average of the high and low prices of the Common Stock as
reported by The Nasdaq Stock Market on November 13, 1997 in accordance
with Rules 457(c) and 457(h) promulgated under the Securities Act.
(3) Represents the exercise prices payable for the 150,000 shares that may
be acquired under outstanding options granted pursuant to the Benefit
Plans in accordance with Rule 457(h) promulgated under the Securities
Act.
</FN>
</TABLE>
---------------------
In accordance with the provisions of Rule 462 promulgated under the
Securities Act, the Registration Statement will become effective upon filing
with the Securities and Exchange Commission.
The Registration Statement, including all exhibits and attachments,
contains 11 pages. The exhibit index may be found on page II-6 of the
Registration Statement.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and Employee Plan Annual Information*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act and the Note to Part I of the
Instructions to Form S-8.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the
Securities and Exchange Commission ("Commission") are incorporated by reference
in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1996 filed with the Commission
pursuant to Section 13(a) of the Securities Exchange Act of
1934 ("Exchange Act");
(b) The Registrant's Quarterly Reports on Form 10-QSB for the
fiscal quarters ended March 31, 1997, June 30, 1997 and
September 30, 1997 filed with the Commission pursuant to
Section 13(a) of the Exchange Act;
(c) The Registrant's Proxy Statement, dated May 7, 1997, relating
to the Annual Meeting of Stockholders filed with the
Commission pursuant to Section 14 of the Exchange Act;
(d) All other reports filed by the Registrant after the date of
this Registration Statement with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act; and
(e) The description of the Common Stock contained in the
Registrant's registration statement on Form 8-A filed with the
Commission pursuant to Section 12(g) of the Exchange Act,
including any subsequent amendment(s) or report(s) filed for
the purpose of updating such description.
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 have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the respective dates of filing of such documents. Any statement
contained in a document incorporated by reference herein is modified or
superseded for all purposes to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which is
incorporated by reference modifies or replaces such statement.
Item 4. Description of Securities.
The Common Stock of the Registrant is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware, as amended
("GCL"), authorizes a Delaware corporation to indemnify its officers, directors,
employees and agents under certain circumstances against expenses and
liabilities incurred in legal proceedings involving such persons because of
their holding or having held such positions with the corporation and to purchase
and maintain insurance for such indemnification. Article Tenth of the Company's
Certificate of Incorporation, as amended, provides in
II-1
<PAGE>
substance that the Company shall indemnify its officers, directors, employees
and agents to the fullest extent permitted by Section 145 of the GCL and the
Company has purchased insurance for such indemnification.
Paragraph 7 of Section 102(b) of the GCL permits a Delaware
corporation, by so providing in its Certificate of Incorporation, to eliminate
or limit the personal liability of a director to the corporation or its
stockholders for damages arising out of certain alleged breaches of the
director's duties to the corporation. The GCL, however, provides that no such
limitation of liability may affect a director's liability with respect to any of
the following: (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payment of dividends or unlawful purchase or redemption of its capital
stock, or (iv) for any transaction from which the director derived an improper
personal benefit. Article Ninth of the Company's Certificate of Incorporation,
as amended, eliminates the personal liability of the directors of the Company to
the fullest extent permitted by Paragraph 7 of Section 102(b) of the GCL.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 1996 Stock Incentive Plan of the Registrant (incorporated by reference to
Exhibit 10.11 to Registrant's Registration Statement on Form SB-2 (File
No. 333-6607))
4.2 Stock Option Agreement for the purchase of 37,500 shares between the
Registrant and Donald B. Brounstein (incorporated by reference to Exhibit
4.6 of the Registrant's Registration Statement on Form SB-2 (File No. 333-
6607))
4.3 Stock Option Agreement for the purchase of 37,500 shares between the
Registrant and James J. Whidden (incorporated by reference to Exhibit 4.6
of the Registrant's Registration Statement on Form SB-2 (File No. 333-
6607))
4.4 Stock Option Agreement for the purchase of 18,750 shares between the
Registrant and Whidden & Associates, Inc. (incorporated by reference to
Exhibit 4.6 of the Registrant's Registration Statement on Form SB-2 (File
No. 333-6607))
4.5 Stock Option Agreement for the purchase of 18,750 shares between the
Registrant and Amy P. Lewis (incorporated by reference to Exhibit 4.6 of the
Registrant's Registration Statement on Form SB-2 (File No. 333-6607))
4.6 Stock Option Agreement for the purchase of 18,750 shares between the
Registrant and Everett M. Lautin, M.D. (incorporated by reference to Exhibit
4.6 of the Registrant's Registration Statement on Form SB-2 (File No. 333-
6607))
4.7 Stock Option Agreement for the purchase of 11,250 shares between the
Registrant and Kenneth S. Hollander (incorporated by reference to Exhibit
4.6 of the Registrant's Registration Statement on Form SB-2 (File No. 333-6607))
II-2
<PAGE>
4.8* Stock Option Agreement for the purchase of 1,500 shares between the
Registrant and Steven Bussell
4.9* Stock Option Agreement for the purchase of 1,500 shares between the
Registrant and Burton L. Eichler
4.10* Stock Option Agreement for the purchase of 1,500 shares between the
Registrant and Robert Lane
4.11* Stock Option Agreement for the purchase of 1,500 shares between the
Registrant and Zsigmond L. Sagi, PhD
4.12* Stock Option Agreement for the purchase of 1,500 shares between the
Registrant and Leonard Brown
5.1* Opinion of Graubard Mollen & Miller
23.1* Consent of KPMG Peat Marwick LLP, independent accountants for
Registrant
23.2* Consent of Graubard Mollen & Miller (included in Exhibit 5.1)
24.1* Power of Attorney (included on the signature page hereto)
</TABLE>
- ------------------------------
* Filed herewith.
II-3
<PAGE>
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 to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 ("Securities Act");
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information in the Registration Statement;
(iii) Include any additional or changed material information on
the plan of distribution;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
in a post-effective amendment by those paragraphs is incorporated by reference
from periodic reports filed by the Registrant under the Exchange Act.
(2) That, for the purpose of determining liability under the
Securities 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 file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities 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 Cranford, New Jersey on this 17th day of November, 1997.
HUMASCAN INC.
By: /s/ Donald B. Brounstein
----------------------------------
Donald B. Brounstein, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Donald B. Brounstein and Kenneth S.
Hollander as his true and lawful attorneys-in-fact and agents, each acting
alone, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
to this Registration Statement, including post-effective amendments, and to file
the same, with all exhibits thereto, and all documents in connection therewith,
with the Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all that said attorneys-in-fact and agents, each acting alone, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ Donald B. Brounstein President, Chief Executive Officer November 17, 1997
- ---------------------------------------------- and Director
Donald B. Brounstein
/s/ Kenneth S. Hollander Chief Financial Officer (and November 17, 1997
- ---------------------------------------------- principal accounting officer)
Kenneth S. Hollander
/s/ Steven S. Elbaum Director November 17, 1997
- ----------------------------------------------
Steven S. Elbaum
/s/ Jack L. Rivkin Director November 17, 1997
- ----------------------------------------------
Jack L. Rivkin
/s/ John F. Sasen, Sr. Director November 17, 1997
- ----------------------------------------------
John F. Sasen, Sr.
/s/ Udi Toledano Director November 17, 1997
- ----------------------------------------------
Udi Toledano
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 1996 Stock Incentive Plan of the Registrant
(incorporated by reference to Exhibit 10.11 to
Registrant's Registration Statement on Form SB-2
(File No. 333-6607))
4.2 Stock Option Agreement for the purchase of 37,500
shares between the Registrant and Donald B.
Brounstein (incorporated by reference to Exhibit 4.6
of the Registrant's Registration Statement on Form
SB-2 (File No. 333-6607))
4.3 Stock Option Agreement for the purchase of 37,500
shares between the Registrant and James J.
Whidden (incorporated by reference to Exhibit 4.6
of the Registrant's Registration Statement on Form
SB-2 (File No. 333-6607))
4.4 Stock Option Agreement for the purchase of 18,750
shares between the Registrant and Whidden &
Associates, Inc. (incorporated by reference to
Exhibit 4.6 of the Registrant's Registration
Statement on Form SB-2 (File No. 333-6607))
4.5 Stock Option Agreement for the purchase of 18,750
shares between the Registrant and Amy P. Lewis
(incorporated by reference to Exhibit 4.6 of the
Registrant's Registration Statement on Form SB-2
(File No. 333-6607))
4.6 Stock Option Agreement for the purchase of 18,750
shares between the Registrant and Everett M. Lautin,
M.D. (incorporated by reference to Exhibit 4.6 of the
Registrant's Registration Statement on Form SB-2
(File No. 333-6607))
4.7 Stock Option Agreement for the purchase of 11,250
shares between the Registrant and Kenneth S.
Hollander (incorporated by reference to Exhibit 4.6
of the Registrant's Registration Statement on Form
SB-2 (File No. 333-6607))
4.8* Stock Option Agreement for the purchase of 1,500
shares between the Registrant and Steven Bussell
4.9* Stock Option Agreement for the purchase of 1,500
shares between the Registrant and Burton L. Eichler
4.10* Stock Option Agreement for the purchase of 1,500
shares between the Registrant and Robert Lane
4.11* Stock Option Agreement for the purchase of 1,500
shares between the Registrant and Zsigmond L.
Sagi, PhD
4.12* Stock Option Agreement for the purchase of 1,500
shares between the Registrant and Leonard Brown
5.1* Opinion of Graubard Mollen & Miller
23.1* Consent of KPMG Peat Marwick LLP, independent
accountants for Registrant
23.2* Consent of Graubard Mollen & Miller (included in
Exhibit 5.1)
24.1* Power of Attorney (included on the signature page
hereto)
</TABLE>
- -----------------------------
* Filed herewith.
II-6
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of the 25th day of September, 1996, by and
between HUMASCAN INC., a Delaware corporation (the "Company"), and Steven
Bussell (the "Former Director").
WHEREAS, the Former Director resigned from the Company's Board
of Directors (the "Board") prior to June 20, 1996 at the request of the Company
and in order to facilitate the Company's initial public offering of securities;
and
WHEREAS, in January 1996, the Former Director received, in his
capacity as a nonemployee director of the Company and pursuant to the Company's
former Nonemployee Director Stock Incentive Plan, options to purchase 1,500
shares of the Company's Common Stock, $.01 par value (the "Common Stock"); and
WHEREAS, by their terms, such options are no longer
exercisable as a consequence of the termination of the Former Director's
membership on the Board; and
WHEREAS, on September 25, 1996 (the "Grant Date"), in
replacement of the options previously granted under the Nonemployee Director
Stock Incentive Plan, the Board authorized the grant to the Former Director of
an option (the "Option") to purchase an aggregate of 1,500 shares of the
authorized but unissued Common Stock, conditioned upon the Former Director's
acceptance thereof upon the terms and conditions set forth in this Agreement;
and
WHEREAS, the Former Director desires to acquire the Option on
the terms and conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants the Former
Director the Option to purchase all or any part of an aggregate of 1,500 shares
of Common Stock (the "Option Shares") on the terms and conditions set forth
herein.
2. Nonqualified Stock Option. The Option represented hereby is
not intended to be an Option which qualifies as an "Incentive Stock Option"
under Section 422 of the Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option shall be
$6.00 per share, subject to adjustment as hereinafter provided.
4. Exercisability. The right to purchase 25% of the Option
Shares shall become exercisable on January 12 of each year for four years
beginning January 12, 1997. After a portion of the Option becomes exercisable,
it shall remain exercisable except as otherwise provided herein, until the close
of business on September 25, 2006 (the "Exercise Period").
1
<PAGE>
5. Adjustments. In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than cash dividend), stock
split, reverse stock split, or other change in corporate structure affecting the
number of issued shares of Common Stock, the Company shall adjust the number and
kind of Option Shares and the exercise price of the Option proportionally in
order to prevent the dilution or enlargement of the Former Director's
proportionate interest in the Company and his rights hereunder, provided that
the number of Option Shares shall always be a whole number and any fractional
shares resulting from such adjustments shall be eliminated.
6. Method of Exercise.
6.1 Notice to the Company. The Option shall be
exercised in whole or in part by written notice in substantially the form
attached hereto as Exhibit A directed to the Company at its principal place of
business accompanied by full payment as hereinafter provided of the exercise
price for the number of Option Shares specified in the notice.
6.2 Delivery of Option Shares. The Company shall
deliver a certificate for the Option Shares to the Former Director as soon as
practicable after payment therefor.
6.3 Payment of Purchase Price.
6.3.1 Cash Payment. The Former Director
shall make cash payments by wire transfer, certified or bank check or personal
check, in each case payable to the order of the Company; the Company shall not
be required to deliver certificates for Option Shares until the Company has
confirmed the receipt of good and available funds in payment of the purchase
price thereof.
6.3.2 Cashless Payment. The Former Director
may, with the consent of the Board, use Common Stock of the Company owned by him
or her to pay the purchase price for the Option Shares by delivery of stock
certificates in negotiable form which are effective to transfer good and valid
title thereto to the Company, free of any liens or encumbrances. Shares of
Common Stock used for this purpose shall be valued at the fair market value, as
determined by the Board in its sole discretion. Alternatively, at the election
of the Former Director and with the consent of the Board, the Company may retain
from the Option Shares that number of shares having a fair market value on the
date of exercise (as determined by the Board in its sole discretion) equal to
the option price of the number of Option Shares for which the Option is being
exercised.
6.3.3 Exchange Act Compliance.
Notwithstanding the foregoing, the Company shall have the right to reject
payment in the form of Common Stock if in the opinion of counsel for the
Company, (i) it could result in an event of "recapture" under Section 16(b) of
the Securities Exchange Act of 1934 ("Exchange Act"); (ii) such shares of Common
Stock may not be sold or transferred to the Company; or (iii) such transfer
could create legal difficulties for the Company.
7. Nonassignability. The Option shall not be assignable or
transferable except by will or by the laws of descent and distribution in the
event of the death of the Former
2
<PAGE>
Director. No transfer of the Option by the Former Director by will or by the
laws of descent and distribution shall be effective to bind the Company unless
the Company shall have been furnished with written notice thereof and a copy of
the will and such other evidence as the Company may deem necessary to establish
the validity of the transfer and the acceptance by the transferee or transferees
of the terms and conditions of the Option.
8. Company Representations. The Company hereby represents and
warrants to the Former Director that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered by
the Company to the Former Director in accordance with the terms and
conditions hereof, will be duly and validly issued and fully paid and
non-assessable.
9. Former Director Representations. The Former Director hereby
represents and warrants to the Company that:
(i) he or she is acquiring the Option and shall
acquire the Option Shares for his or her own account and not with a
view towards the distribution thereof;
(ii) he or she has received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) he or she understands that he or she must bear
the economic risk of the investment in the Option Shares, which cannot
be sold by him or her unless they are registered under the Securities
Act of 1933 (the "Securities Act") or an exemption therefrom is
available thereunder and that the Company is under no obligation to
register the Option Shares for sale under the Securities Act;
(iv) he or she has had both the opportunity to ask
questions and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and
conditions of the offer made hereunder and to obtain any additional
information to the extent the Company possesses or may possess such
infor mation or can acquire it without unreasonable effort or expense
necessary to verify the accuracy of the information obtained pursuant
to clause (ii) above;
(v) he or she is aware that the Company shall place
stop transfer orders with its transfer agent against the transfer of
the Option Shares in the absence of registration under the Securities
Act or an exemption therefrom as provided herein; and
(vi) The certificates evidencing the Option Shares
shall bear the following legends:
3
<PAGE>
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of September 25, 1996, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
10. Restriction on Transfer of Option Shares. Anything in this
Agreement to the contrary notwithstanding, the Former Director hereby agrees
that he or she shall not sell, transfer by any means or otherwise dispose of the
Option Shares acquired by him or her without registration under the Securities
Act, or in the event that they are not so registered, unless (i) an exemption
from the Securities Act registration requirements is available thereunder, and
(ii) the Former Director has furnished the Company with notice of such proposed
transfer and the Company's legal counsel, in its reasonable opinion, shall deem
such proposed transfer to be so exempt.
11. Miscellaneous.
11.1 Notices. All notices, requests, deliveries,
payments, demands and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be either delivered
personally or sent by registered or certified mail, or by private courier,
return receipt requested, postage prepaid to the parties at their respective
addresses set forth herein, or to such other address as either shall have
specified by notice in writing to the other. Notice shall be deemed duly given
hereunder when delivered or mailed as provided herein.
11.2 Stockholder Rights. The Former Director
shall not have any of the rights of a stockholder with respect to the Option
Shares until such shares have been issued after the due exercise of the Option.
11.3 Waiver. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
11.4 Entire Agreement. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof. This Agreement may not be amended except by writing executed by the
Former Director and the Company.
11.5 Binding Effect; Successors. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and, to the
extent not prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided
4
<PAGE>
above, their respective heirs, successors, assigns and representatives any
rights, remedies, obligations or liabilities.
11.6 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to choice of law provisions).
11.7 Headings. The headings contained herein are
for the sole purpose of convenience of reference, and shall not in any way limit
or affect the meaning or interpretation of any of the terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
HUMASCAN INC. Address:
125 Moen Avenue
Cranford, New Jersey 07016
By:
--------------------------
FORMER DIRECTOR:
--------------------------
5
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
HumaScan Inc.
125 Moen Avenue
Cranford, New Jersey 07016
Attention: Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
September 25, 1996 ("Agreement") with HumaScan Inc. (the "Company"), I hereby
irrevocably elect to exercise the right to purchase _________ shares of the
Company's common stock, par value $.01 per share ("Common Stock"), which are
being purchased for investment and not for resale.
As payment for my shares, enclosed is (check and complete
applicable box[es]):
a [personal check] [certified check] [bank check] payable to the order of
"HumaScan Inc." in the sum of $_________;
confirmation of wire transfer in the amount of $_____________; and/or
certificate for ____ shares of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a fair market value of $_________.
I hereby represent, warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the
Option Shares for my own account and not with a view towards the
distribution thereof;
(ii) I have received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934 within the last 24
months and all reports issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk
of the investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933 (the
"Securities Act") or an exemption therefrom is available and that the
Company is under no obligation to register the Option Shares for sale
under the Securities Act;
(iv) I have had both the opportunity to ask questions
and receive answers from the officers and directors of the Company and
all persons acting on its behalf concerning the terms and conditions of
the offer made hereunder and to obtain any additional information
1
<PAGE>
to the extent the Company possesses or may possess such information or
can acquire it without unreasonable effort or expense necessary to
verify the accuracy of the information obtained pursuant to clause (ii)
above;
(v) I am aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the Securities Act
or an exemption therefrom as provided herein;
(vi) the certificates evidencing the Option Shares
shall bear the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of September 25, 1996, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- --------------------- ---------------------------------
(Signature) (Address)
- --------------------- ---------------------------------
(Print Name) (Address)
---------------------------------
(Social Security Number)
2
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of the 25th day of September, 1996, by and
between HUMASCAN INC., a Delaware corporation (the "Company"), and Burton L.
Eichler (the "Former Director").
WHEREAS, the Former Director resigned from the Company's Board
of Directors (the "Board") prior to June 20, 1996 at the request of the Company
and in order to facilitate the Company's initial public offering of securities;
and
WHEREAS, in January 1996, the Former Director received, in his
capacity as a nonemployee director of the Company and pursuant to the Company's
former Nonemployee Director Stock Incentive Plan, options to purchase 1,500
shares of the Company's Common Stock, $.01 par value (the "Common Stock"); and
WHEREAS, by their terms, such options are no longer
exercisable as a consequence of the termination of the Former Director's
membership on the Board; and
WHEREAS, on September 25, 1996 (the "Grant Date"), in
replacement of the options previously granted under the Nonemployee Director
Stock Incentive Plan, the Board authorized the grant to the Former Director of
an option (the "Option") to purchase an aggregate of 1,500 shares of the
authorized but unissued Common Stock, conditioned upon the Former Director's
acceptance thereof upon the terms and conditions set forth in this Agreement;
and
WHEREAS, the Former Director desires to acquire the Option on
the terms and conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants the Former
Director the Option to purchase all or any part of an aggregate of 1,500 shares
of Common Stock (the "Option Shares") on the terms and conditions set forth
herein.
2. Nonqualified Stock Option. The Option represented hereby is
not intended to be an Option which qualifies as an "Incentive Stock Option"
under Section 422 of the Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option shall be
$6.00 per share, subject to adjustment as hereinafter provided.
4. Exercisability. The right to purchase 25% of the Option
Shares shall become exercisable on January 12 of each year for four years
beginning January 12, 1997. After a portion of the Option becomes exercisable,
it shall remain exercisable except as otherwise provided herein, until the close
of business on September 25, 2006 (the "Exercise Period").
1
<PAGE>
5. Adjustments. In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than cash dividend), stock
split, reverse stock split, or other change in corporate structure affecting the
number of issued shares of Common Stock, the Company shall adjust the number and
kind of Option Shares and the exercise price of the Option proportionally in
order to prevent the dilution or enlargement of the Former Director's
proportionate interest in the Company and his rights hereunder, provided that
the number of Option Shares shall always be a whole number and any fractional
shares resulting from such adjustments shall be eliminated.
6. Method of Exercise.
6.1 Notice to the Company. The Option shall be
exercised in whole or in part by written notice in substantially the form
attached hereto as Exhibit A directed to the Company at its principal place of
business accompanied by full payment as hereinafter provided of the exercise
price for the number of Option Shares specified in the notice.
6.2 Delivery of Option Shares. The Company shall
deliver a certificate for the Option Shares to the Former Director as soon as
practicable after payment therefor.
6.3 Payment of Purchase Price.
6.3.1 Cash Payment. The Former Director
shall make cash payments by wire transfer, certified or bank check or personal
check, in each case payable to the order of the Company; the Company shall not
be required to deliver certificates for Option Shares until the Company has
confirmed the receipt of good and available funds in payment of the purchase
price thereof.
6.3.2 Cashless Payment. The Former Director
may, with the consent of the Board, use Common Stock of the Company owned by him
or her to pay the purchase price for the Option Shares by delivery of stock
certificates in negotiable form which are effective to transfer good and valid
title thereto to the Company, free of any liens or encumbrances. Shares of
Common Stock used for this purpose shall be valued at the fair market value, as
determined by the Board in its sole discretion. Alternatively, at the election
of the Former Director and with the consent of the Board, the Company may retain
from the Option Shares that number of shares having a fair market value on the
date of exercise (as determined by the Board in its sole discretion) equal to
the option price of the number of Option Shares for which the Option is being
exercised.
6.3.3 Exchange Act Compliance.
Notwithstanding the foregoing, the Company shall have the right to reject
payment in the form of Common Stock if in the opinion of counsel for the
Company, (i) it could result in an event of "recapture" under Section 16(b) of
the Securities Exchange Act of 1934 ("Exchange Act"); (ii) such shares of Common
Stock may not be sold or transferred to the Company; or (iii) such transfer
could create legal difficulties for the Company.
7. Nonassignability. The Option shall not be assignable or
transferable except by will or by the laws of descent and distribution in the
event of the death of the Former
2
<PAGE>
Director. No transfer of the Option by the Former Director by will or by the
laws of descent and distribution shall be effective to bind the Company unless
the Company shall have been furnished with written notice thereof and a copy of
the will and such other evidence as the Company may deem necessary to establish
the validity of the transfer and the acceptance by the transferee or transferees
of the terms and conditions of the Option.
8. Company Representations. The Company hereby represents and
warrants to the Former Director that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered by
the Company to the Former Director in accordance with the terms and
conditions hereof, will be duly and validly issued and fully paid and
non-assessable.
9. Former Director Representations. The Former Director hereby
represents and warrants to the Company that:
(i) he or she is acquiring the Option and shall
acquire the Option Shares for his or her own account and not with a
view towards the distribution thereof;
(ii) he or she has received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) he or she understands that he or she must bear
the economic risk of the investment in the Option Shares, which cannot
be sold by him or her unless they are registered under the Securities
Act of 1933 (the "Securities Act") or an exemption therefrom is
available thereunder and that the Company is under no obligation to
register the Option Shares for sale under the Securities Act;
(iv) he or she has had both the opportunity to ask
questions and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and
conditions of the offer made hereunder and to obtain any additional
information to the extent the Company possesses or may possess such
infor mation or can acquire it without unreasonable effort or expense
necessary to verify the accuracy of the information obtained pursuant
to clause (ii) above;
(v) he or she is aware that the Company shall place
stop transfer orders with its transfer agent against the transfer of
the Option Shares in the absence of registration under the Securities
Act or an exemption therefrom as provided herein; and
(vi) The certificates evidencing the Option Shares
shall bear the following legends:
3
<PAGE>
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of September 25, 1996, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
10. Restriction on Transfer of Option Shares. Anything in this
Agreement to the contrary notwithstanding, the Former Director hereby agrees
that he or she shall not sell, transfer by any means or otherwise dispose of the
Option Shares acquired by him or her without registration under the Securities
Act, or in the event that they are not so registered, unless (i) an exemption
from the Securities Act registration requirements is available thereunder, and
(ii) the Former Director has furnished the Company with notice of such proposed
transfer and the Company's legal counsel, in its reasonable opinion, shall deem
such proposed transfer to be so exempt.
11. Miscellaneous.
11.1 Notices. All notices, requests, deliveries,
payments, demands and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be either delivered
personally or sent by registered or certified mail, or by private courier,
return receipt requested, postage prepaid to the parties at their respective
addresses set forth herein, or to such other address as either shall have
specified by notice in writing to the other. Notice shall be deemed duly given
hereunder when delivered or mailed as provided herein.
11.2 Stockholder Rights. The Former Director
shall not have any of the rights of a stockholder with respect to the Option
Shares until such shares have been issued after the due exercise of the Option.
11.3 Waiver. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
11.4 Entire Agreement. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof. This Agreement may not be amended except by writing executed by the
Former Director and the Company.
11.5 Binding Effect; Successors. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and, to the
extent not prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided
4
<PAGE>
above, their respective heirs, successors, assigns and representatives any
rights, remedies, obligations or liabilities.
11.6 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to choice of law provisions).
11.7 Headings. The headings contained herein are
for the sole purpose of convenience of reference, and shall not in any way limit
or affect the meaning or interpretation of any of the terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
HUMASCAN INC. Address:
125 Moen Avenue
Cranford, New Jersey 07016
By:
----------------------------
FORMER DIRECTOR:
----------------------------
5
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
HumaScan Inc.
125 Moen Avenue
Cranford, New Jersey 07016
Attention: Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
September 25, 1996 ("Agreement") with HumaScan Inc. (the "Company"), I hereby
irrevocably elect to exercise the right to purchase _________ shares of the
Company's common stock, par value $.01 per share ("Common Stock"), which are
being purchased for investment and not for resale.
As payment for my shares, enclosed is (check and complete
applicable box[es]):
a [personal check] [certified check] [bank check] payable to the order of
"HumaScan Inc." in the sum of $_________;
confirmation of wire transfer in the amount of $_____________; and/or
certificate for ____ shares of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a fair market value of $_________.
I hereby represent, warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the
Option Shares for my own account and not with a view towards the
distribution thereof;
(ii) I have received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934 within the last 24
months and all reports issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk
of the investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933 (the
"Securities Act") or an exemption therefrom is available and that the
Company is under no obligation to register the Option Shares for sale
under the Securities Act;
(iv) I have had both the opportunity to ask questions
and receive answers from the officers and directors of the Company and
all persons acting on its behalf concerning the terms and conditions of
the offer made hereunder and to obtain any additional information
1
<PAGE>
to the extent the Company possesses or may possess such information or
can acquire it without unreasonable effort or expense necessary to
verify the accuracy of the information obtained pursuant to clause (ii)
above;
(v) I am aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the Securities Act
or an exemption therefrom as provided herein;
(vi) the certificates evidencing the Option Shares
shall bear the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of September 25, 1996, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- --------------------------- ----------------------------
(Signature) (Address)
- --------------------------- ----------------------------
(Print Name) (Address)
----------------------------
(Social Security Number)
2
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of the 25th day of September, 1996, by and
between HUMASCAN INC., a Delaware corporation (the "Company"), and Robert Lane
(the "Former Director").
WHEREAS, the Former Director resigned from the Company's Board
of Directors (the "Board") prior to June 20, 1996 at the request of the Company
and in order to facilitate the Company's initial public offering of securities;
and
WHEREAS, in January 1996, the Former Director received, in his
capacity as a nonemployee director of the Company and pursuant to the Company's
former Nonemployee Director Stock Incentive Plan, options to purchase 1,500
shares of the Company's Common Stock, $.01 par value (the "Common Stock"); and
WHEREAS, by their terms, such options are no longer
exercisable as a consequence of the termination of the Former Director's
membership on the Board; and
WHEREAS, on September 25, 1996 (the "Grant Date"), in
replacement of the options previously granted under the Nonemployee Director
Stock Incentive Plan, the Board authorized the grant to the Former Director of
an option (the "Option") to purchase an aggregate of 1,500 shares of the
authorized but unissued Common Stock, conditioned upon the Former Director's
acceptance thereof upon the terms and conditions set forth in this Agreement;
and
WHEREAS, the Former Director desires to acquire the Option on
the terms and conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants the Former
Director the Option to purchase all or any part of an aggregate of 1,500 shares
of Common Stock (the "Option Shares") on the terms and conditions set forth
herein.
2. Nonqualified Stock Option. The Option represented hereby is
not intended to be an Option which qualifies as an "Incentive Stock Option"
under Section 422 of the Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option shall be
$6.00 per share, subject to adjustment as hereinafter provided.
4. Exercisability. The right to purchase 25% of the Option
Shares shall become exercisable on January 12 of each year for four years
beginning January 12, 1997. After a portion of the Option becomes exercisable,
it shall remain exercisable except as otherwise provided herein, until the close
of business on September 25, 2006 (the "Exercise Period").
1
<PAGE>
5. Adjustments. In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than cash dividend), stock
split, reverse stock split, or other change in corporate structure affecting the
number of issued shares of Common Stock, the Company shall adjust the number and
kind of Option Shares and the exercise price of the Option proportionally in
order to prevent the dilution or enlargement of the Former Director's
proportionate interest in the Company and his rights hereunder, provided that
the number of Option Shares shall always be a whole number and any fractional
shares resulting from such adjustments shall be eliminated.
6. Method of Exercise.
6.1 Notice to the Company. The Option shall be
exercised in whole or in part by written notice in substantially the form
attached hereto as Exhibit A directed to the Company at its principal place of
business accompanied by full payment as hereinafter provided of the exercise
price for the number of Option Shares specified in the notice.
6.2 Delivery of Option Shares. The Company shall
deliver a certificate for the Option Shares to the Former Director as soon as
practicable after payment therefor.
6.3 Payment of Purchase Price.
6.3.1 Cash Payment. The Former Director
shall make cash payments by wire transfer, certified or bank check or personal
check, in each case payable to the order of the Company; the Company shall not
be required to deliver certificates for Option Shares until the Company has
confirmed the receipt of good and available funds in payment of the purchase
price thereof.
6.3.2 Cashless Payment. The Former
Director may, with the consent of the Board, use Common Stock of the Company
owned by him or her to pay the purchase price for the Option Shares by delivery
of stock certificates in negotiable form which are effective to transfer good
and valid title thereto to the Company, free of any liens or encumbrances.
Shares of Common Stock used for this purpose shall be valued at the fair market
value, as determined by the Board in its sole discretion. Alternatively, at the
election of the Former Director and with the consent of the Board, the Company
may retain from the Option Shares that number of shares having a fair market
value on the date of exercise (as determined by the Board in its sole
discretion) equal to the option price of the number of Option Shares for which
the Option is being exercised.
6.3.3 Exchange Act Compliance.
Notwithstanding the foregoing, the Company shall have the right to reject
payment in the form of Common Stock if in the opinion of counsel for the
Company, (i) it could result in an event of "recapture" under Section 16(b) of
the Securities Exchange Act of 1934 ("Exchange Act"); (ii) such shares of Common
Stock may not be sold or transferred to the Company; or (iii) such transfer
could create legal difficulties for the Company.
7. Nonassignability. The Option shall not be assignable or
transferable except by will or by the laws of descent and distribution in the
event of the death of the Former
2
<PAGE>
Director. No transfer of the Option by the Former Director by will or by the
laws of descent and distribution shall be effective to bind the Company unless
the Company shall have been furnished with written notice thereof and a copy of
the will and such other evidence as the Company may deem necessary to establish
the validity of the transfer and the acceptance by the transferee or transferees
of the terms and conditions of the Option.
8. Company Representations. The Company hereby represents and
warrants to the Former Director that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered by
the Company to the Former Director in accordance with the terms and
conditions hereof, will be duly and validly issued and fully paid and
non-assessable.
9. Former Director Representations. The Former Director hereby
represents and warrants to the Company that:
(i) he or she is acquiring the Option and shall
acquire the Option Shares for his or her own account and not with a
view towards the distribution thereof;
(ii) he or she has received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) he or she understands that he or she must bear
the economic risk of the investment in the Option Shares, which cannot
be sold by him or her unless they are registered under the Securities
Act of 1933 (the "Securities Act") or an exemption therefrom is
available thereunder and that the Company is under no obligation to
register the Option Shares for sale under the Securities Act;
(iv) he or she has had both the opportunity to ask
questions and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and
conditions of the offer made hereunder and to obtain any additional
information to the extent the Company possesses or may possess such
infor mation or can acquire it without unreasonable effort or expense
necessary to verify the accuracy of the information obtained pursuant
to clause (ii) above;
(v) he or she is aware that the Company shall place
stop transfer orders with its transfer agent against the transfer of
the Option Shares in the absence of registration under the Securities
Act or an exemption therefrom as provided herein; and
(vi) The certificates evidencing the Option Shares
shall bear the following legends:
3
<PAGE>
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of September 25, 1996, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
10. Restriction on Transfer of Option Shares. Anything in this
Agreement to the contrary notwithstanding, the Former Director hereby agrees
that he or she shall not sell, transfer by any means or otherwise dispose of the
Option Shares acquired by him or her without registration under the Securities
Act, or in the event that they are not so registered, unless (i) an exemption
from the Securities Act registration requirements is available thereunder, and
(ii) the Former Director has furnished the Company with notice of such proposed
transfer and the Company's legal counsel, in its reasonable opinion, shall deem
such proposed transfer to be so exempt.
11. Miscellaneous.
11.1 Notices. All notices, requests, deliveries,
payments, demands and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be either delivered
personally or sent by registered or certified mail, or by private courier,
return receipt requested, postage prepaid to the parties at their respective
addresses set forth herein, or to such other address as either shall have
specified by notice in writing to the other. Notice shall be deemed duly given
hereunder when delivered or mailed as provided herein.
11.2 Stockholder Rights. The Former Director
shall not have any of the rights of a stockholder with respect to the Option
Shares until such shares have been issued after the due exercise of the Option.
11.3 Waiver. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
11.4 Entire Agreement. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof. This Agreement may not be amended except by writing executed by the
Former Director and the Company.
11.5 Binding Effect; Successors. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and, to the
extent not prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided
4
<PAGE>
above, their respective heirs, successors, assigns and representatives any
rights, remedies, obligations or liabilities.
11.6 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to choice of law provisions).
11.7 Headings. The headings contained herein are
for the sole purpose of convenience of reference, and shall not in any way limit
or affect the meaning or interpretation of any of the terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
HUMASCAN INC. Address:
125 Moen Avenue
Cranford, New Jersey 07016
By:
------------------------------
FORMER DIRECTOR:
------------------------------
5
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
HumaScan Inc.
125 Moen Avenue
Cranford, New Jersey 07016
Attention: Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
September 25, 1996 ("Agreement") with HumaScan Inc. (the "Company"), I hereby
irrevocably elect to exercise the right to purchase _________ shares of the
Company's common stock, par value $.01 per share ("Common Stock"), which are
being purchased for investment and not for resale.
As payment for my shares, enclosed is (check and complete
applicable box[es]):
a [personal check] [certified check] [bank check] payable to the order of
"HumaScan Inc." in the sum of $_________;
confirmation of wire transfer in the amount of $_____________; and/or
certificate for ____ shares of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a fair market value of $_________.
I hereby represent, warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the
Option Shares for my own account and not with a view towards the
distribution thereof;
(ii) I have received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934 within the last 24
months and all reports issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk
of the investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933 (the
"Securities Act") or an exemption therefrom is available and that the
Company is under no obligation to register the Option Shares for sale
under the Securities Act;
(iv) I have had both the opportunity to ask questions
and receive answers from the officers and directors of the Company and
all persons acting on its behalf concerning the terms and conditions of
the offer made hereunder and to obtain any additional information
1
<PAGE>
to the extent the Company possesses or may possess such information or
can acquire it without unreasonable effort or expense necessary to
verify the accuracy of the information obtained pursuant to clause (ii)
above;
(v) I am aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the Securities Act
or an exemption therefrom as provided herein;
(vi) the certificates evidencing the Option Shares
shall bear the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of September 25, 1996, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- --------------------------- ----------------------------
(Signature) (Address)
- --------------------------- ----------------------------
(Print Name) (Address)
----------------------------
(Social Security Number)
2
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of the 25th day of September, 1996, by and
between HUMASCAN INC., a Delaware corporation (the "Company"), and Zsigmond L.
Sagi, Ph.D. (the "Former Director").
WHEREAS, the Former Director resigned from the Company's Board
of Directors (the "Board") prior to June 20, 1996 at the request of the Company
and in order to facilitate the Company's initial public offering of securities;
and
WHEREAS, in January 1996, the Former Director received, in his
capacity as a nonemployee director of the Company and pursuant to the Company's
former Nonemployee Director Stock Incentive Plan, options to purchase 1,500
shares of the Company's Common Stock, $.01 par value (the "Common Stock"); and
WHEREAS, by their terms, such options are no longer
exercisable as a consequence of the termination of the Former Director's
membership on the Board; and
WHEREAS, on September 25, 1996 (the "Grant Date"), in
replacement of the options previously granted under the Nonemployee Director
Stock Incentive Plan, the Board authorized the grant to the Former Director of
an option (the "Option") to purchase an aggregate of 1,500 shares of the
authorized but unissued Common Stock, conditioned upon the Former Director's
acceptance thereof upon the terms and conditions set forth in this Agreement;
and
WHEREAS, the Former Director desires to acquire the Option on
the terms and conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants the Former
Director the Option to purchase all or any part of an aggregate of 1,500 shares
of Common Stock (the "Option Shares") on the terms and conditions set forth
herein.
2. Nonqualified Stock Option. The Option represented hereby is
not intended to be an Option which qualifies as an "Incentive Stock Option"
under Section 422 of the Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option shall be
$6.00 per share, subject to adjustment as hereinafter provided.
4. Exercisability. The right to purchase 25% of the Option
Shares shall become exercisable on January 12 of each year for four years
beginning January 12, 1997. After a portion of the Option becomes exercisable,
it shall remain exercisable except as otherwise provided herein, until the close
of business on September 25, 2006 (the "Exercise Period").
1
<PAGE>
5. Adjustments. In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than cash dividend), stock
split, reverse stock split, or other change in corporate structure affecting the
number of issued shares of Common Stock, the Company shall adjust the number and
kind of Option Shares and the exercise price of the Option proportionally in
order to prevent the dilution or enlargement of the Former Director's
proportionate interest in the Company and his rights hereunder, provided that
the number of Option Shares shall always be a whole number and any fractional
shares resulting from such adjustments shall be eliminated.
6. Method of Exercise.
6.1 Notice to the Company. The Option shall be
exercised in whole or in part by written notice in substantially the form
attached hereto as Exhibit A directed to the Company at its principal place of
business accompanied by full payment as hereinafter provided of the exercise
price for the number of Option Shares specified in the notice.
6.2 Delivery of Option Shares. The Company shall
deliver a certificate for the Option Shares to the Former Director as soon as
practicable after payment therefor.
6.3 Payment of Purchase Price.
6.3.1 Cash Payment. The Former Director
shall make cash payments by wire transfer, certified or bank check or personal
check, in each case payable to the order of the Company; the Company shall not
be required to deliver certificates for Option Shares until the Company has
confirmed the receipt of good and available funds in payment of the purchase
price thereof.
6.3.2 Cashless Payment. The Former
Director may, with the consent of the Board, use Common Stock of the Company
owned by him or her to pay the purchase price for the Option Shares by delivery
of stock certificates in negotiable form which are effective to transfer good
and valid title thereto to the Company, free of any liens or encumbrances.
Shares of Common Stock used for this purpose shall be valued at the fair market
value, as determined by the Board in its sole discretion. Alternatively, at the
election of the Former Director and with the consent of the Board, the Company
may retain from the Option Shares that number of shares having a fair market
value on the date of exercise (as determined by the Board in its sole
discretion) equal to the option price of the number of Option Shares for which
the Option is being exercised.
6.3.3 Exchange Act Compliance.
Notwithstanding the foregoing, the Company shall have the right to reject
payment in the form of Common Stock if in the opinion of counsel for the
Company, (i) it could result in an event of "recapture" under Section 16(b) of
the Securities Exchange Act of 1934 ("Exchange Act"); (ii) such shares of Common
Stock may not be sold or transferred to the Company; or (iii) such transfer
could create legal difficulties for the Company.
7. Nonassignability. The Option shall not be assignable or
transferable except by will or by the laws of descent and distribution in the
event of the death of the Former
2
<PAGE>
Director. No transfer of the Option by the Former Director by will or by the
laws of descent and distribution shall be effective to bind the Company unless
the Company shall have been furnished with written notice thereof and a copy of
the will and such other evidence as the Company may deem necessary to establish
the validity of the transfer and the acceptance by the transferee or transferees
of the terms and conditions of the Option.
8. Company Representations. The Company hereby represents and
warrants to the Former Director that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered by
the Company to the Former Director in accordance with the terms and
conditions hereof, will be duly and validly issued and fully paid and
non-assessable.
9. Former Director Representations. The Former Director hereby
represents and warrants to the Company that:
(i) he or she is acquiring the Option and shall
acquire the Option Shares for his or her own account and not with a
view towards the distribution thereof;
(ii) he or she has received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) he or she understands that he or she must bear
the economic risk of the investment in the Option Shares, which cannot
be sold by him or her unless they are registered under the Securities
Act of 1933 (the "Securities Act") or an exemption therefrom is
available thereunder and that the Company is under no obligation to
register the Option Shares for sale under the Securities Act;
(iv) he or she has had both the opportunity to ask
questions and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and
conditions of the offer made hereunder and to obtain any additional
information to the extent the Company possesses or may possess such
infor mation or can acquire it without unreasonable effort or expense
necessary to verify the accuracy of the information obtained pursuant
to clause (ii) above;
(v) he or she is aware that the Company shall place
stop transfer orders with its transfer agent against the transfer of
the Option Shares in the absence of registration under the Securities
Act or an exemption therefrom as provided herein; and
(vi) The certificates evidencing the Option Shares
shall bear the following legends:
3
<PAGE>
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of September 25, 1996, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
10. Restriction on Transfer of Option Shares. Anything in this
Agreement to the contrary notwithstanding, the Former Director hereby agrees
that he or she shall not sell, transfer by any means or otherwise dispose of the
Option Shares acquired by him or her without registration under the Securities
Act, or in the event that they are not so registered, unless (i) an exemption
from the Securities Act registration requirements is available thereunder, and
(ii) the Former Director has furnished the Company with notice of such proposed
transfer and the Company's legal counsel, in its reasonable opinion, shall deem
such proposed transfer to be so exempt.
11. Miscellaneous.
11.1 Notices. All notices, requests, deliveries,
payments, demands and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be either delivered
personally or sent by registered or certified mail, or by private courier,
return receipt requested, postage prepaid to the parties at their respective
addresses set forth herein, or to such other address as either shall have
specified by notice in writing to the other. Notice shall be deemed duly given
hereunder when delivered or mailed as provided herein.
11.2 Stockholder Rights. The Former Director
shall not have any of the rights of a stockholder with respect to the Option
Shares until such shares have been issued after the due exercise of the Option.
11.3 Waiver. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
11.4 Entire Agreement. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof. This Agreement may not be amended except by writing executed by the
Former Director and the Company.
11.5 Binding Effect; Successors. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and, to the
extent not prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided
4
<PAGE>
above, their respective heirs, successors, assigns and representatives any
rights, remedies, obligations or liabilities.
11.6 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to choice of law provisions).
11.7 Headings. The headings contained herein are
for the sole purpose of convenience of reference, and shall not in any way limit
or affect the meaning or interpretation of any of the terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
HUMASCAN INC. Address:
125 Moen Avenue
Cranford, New Jersey 07016
By:
----------------------------
FORMER DIRECTOR:
----------------------------
5
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
HumaScan Inc.
125 Moen Avenue
Cranford, New Jersey 07016
Attention: Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
September 25, 1996 ("Agreement") with HumaScan Inc. (the "Company"), I hereby
irrevocably elect to exercise the right to purchase _________ shares of the
Company's common stock, par value $.01 per share ("Common Stock"), which are
being purchased for investment and not for resale.
As payment for my shares, enclosed is (check and complete
applicable box[es]):
a [personal check] [certified check] [bank check] payable to the order of
"HumaScan Inc." in the sum of $_________;
confirmation of wire transfer in the amount of $_____________; and/or
certificate for ____ shares of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a fair market value of $_________.
I hereby represent, warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the
Option Shares for my own account and not with a view towards the
distribution thereof;
(ii) I have received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934 within the last 24
months and all reports issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk
of the investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933 (the
"Securities Act") or an exemption therefrom is available and that the
Company is under no obligation to register the Option Shares for sale
under the Securities Act;
(iv) I have had both the opportunity to ask questions
and receive answers from the officers and directors of the Company and
all persons acting on its behalf concerning the terms and conditions of
the offer made hereunder and to obtain any additional information
1
<PAGE>
to the extent the Company possesses or may possess such information or
can acquire it without unreasonable effort or expense necessary to
verify the accuracy of the information obtained pursuant to clause (ii)
above;
(v) I am aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the Securities Act
or an exemption therefrom as provided herein;
(vi) the certificates evidencing the Option Shares
shall bear the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of September 25, 1996, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- ------------------------- -----------------------------
(Signature) (Address)
- ------------------------- -----------------------------
(Print Name) (Address)
-----------------------------
(Social Security Number)
2
<PAGE>
NONQUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of the 25th day of September, 1996, by and
between HUMASCAN INC., a Delaware corporation (the "Company"), and Leonard Brown
(the "Former Director").
WHEREAS, the Former Director resigned from the Company's Board
of Directors (the "Board") prior to June 20, 1996 at the request of the Company
and in order to facilitate the Company's initial public offering of securities;
and
WHEREAS, in January 1996, the Former Director received, in his
capacity as a nonemployee director of the Company and pursuant to the Company's
former Nonemployee Director Stock Incentive Plan, options to purchase 1,500
shares of the Company's Common Stock, $.01 par value (the "Common Stock"); and
WHEREAS, by their terms, such options are no longer
exercisable as a consequence of the termination of the Former Director's
membership on the Board; and
WHEREAS, on September 25, 1996 (the "Grant Date"), in
replacement of the options previously granted under the Nonemployee Director
Stock Incentive Plan, the Board authorized the grant to the Former Director of
an option (the "Option") to purchase an aggregate of 1,500 shares of the
authorized but unissued Common Stock, conditioned upon the Former Director's
acceptance thereof upon the terms and conditions set forth in this Agreement;
and
WHEREAS, the Former Director desires to acquire the Option on
the terms and conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants the Former
Director the Option to purchase all or any part of an aggregate of 1,500 shares
of Common Stock (the "Option Shares") on the terms and conditions set forth
herein.
2. Nonqualified Stock Option. The Option represented hereby is
not intended to be an Option which qualifies as an "Incentive Stock Option"
under Section 422 of the Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option shall be
$6.00 per share, subject to adjustment as hereinafter provided.
4. Exercisability. The right to purchase 25% of the Option
Shares shall become exercisable on January 12 of each year for four years
beginning January 12, 1997. After a portion of the Option becomes exercisable,
it shall remain exercisable except as otherwise provided herein, until the close
of business on September 25, 2006 (the "Exercise Period").
1
<PAGE>
5. Adjustments. In the event of any merger, reorganization,
consolidation, recapitalization, dividend (other than cash dividend), stock
split, reverse stock split, or other change in corporate structure affecting the
number of issued shares of Common Stock, the Company shall adjust the number and
kind of Option Shares and the exercise price of the Option proportionally in
order to prevent the dilution or enlargement of the Former Director's
proportionate interest in the Company and his rights hereunder, provided that
the number of Option Shares shall always be a whole number and any fractional
shares resulting from such adjustments shall be eliminated.
6. Method of Exercise.
6.1 Notice to the Company. The Option shall be
exercised in whole or in part by written notice in substantially the form
attached hereto as Exhibit A directed to the Company at its principal place of
business accompanied by full payment as hereinafter provided of the exercise
price for the number of Option Shares specified in the notice.
6.2 Delivery of Option Shares. The Company shall
deliver a certificate for the Option Shares to the Former Director as soon as
practicable after payment therefor.
6.3 Payment of Purchase Price.
6.3.1 Cash Payment. The Former Director
shall make cash payments by wire transfer, certified or bank check or personal
check, in each case payable to the order of the Company; the Company shall not
be required to deliver certificates for Option Shares until the Company has
confirmed the receipt of good and available funds in payment of the purchase
price thereof.
6.3.2 Cashless Payment. The Former
Director may, with the consent of the Board, use Common Stock of the Company
owned by him or her to pay the purchase price for the Option Shares by delivery
of stock certificates in negotiable form which are effective to transfer good
and valid title thereto to the Company, free of any liens or encumbrances.
Shares of Common Stock used for this purpose shall be valued at the fair market
value, as determined by the Board in its sole discretion. Alternatively, at the
election of the Former Director and with the consent of the Board, the Company
may retain from the Option Shares that number of shares having a fair market
value on the date of exercise (as determined by the Board in its sole
discretion) equal to the option price of the number of Option Shares for which
the Option is being exercised.
6.3.3 Exchange Act Compliance.
Notwithstanding the foregoing, the Company shall have the right to reject
payment in the form of Common Stock if in the opinion of counsel for the
Company, (i) it could result in an event of "recapture" under Section 16(b) of
the Securities Exchange Act of 1934 ("Exchange Act"); (ii) such shares of Common
Stock may not be sold or transferred to the Company; or (iii) such transfer
could create legal difficulties for the Company.
7. Nonassignability. The Option shall not be assignable or
transferable except by will or by the laws of descent and distribution in the
event of the death of the Former
2
<PAGE>
Director. No transfer of the Option by the Former Director by will or by the
laws of descent and distribution shall be effective to bind the Company unless
the Company shall have been furnished with written notice thereof and a copy of
the will and such other evidence as the Company may deem necessary to establish
the validity of the transfer and the acceptance by the transferee or transferees
of the terms and conditions of the Option.
8. Company Representations. The Company hereby represents and
warrants to the Former Director that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into this Agreement and consummate
all of the transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered by
the Company to the Former Director in accordance with the terms and
conditions hereof, will be duly and validly issued and fully paid and
non-assessable.
9. Former Director Representations. The Former Director hereby
represents and warrants to the Company that:
(i) he or she is acquiring the Option and shall
acquire the Option Shares for his or her own account and not with a
view towards the distribution thereof;
(ii) he or she has received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) he or she understands that he or she must bear
the economic risk of the investment in the Option Shares, which cannot
be sold by him or her unless they are registered under the Securities
Act of 1933 (the "Securities Act") or an exemption therefrom is
available thereunder and that the Company is under no obligation to
register the Option Shares for sale under the Securities Act;
(iv) he or she has had both the opportunity to ask
questions and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and
conditions of the offer made hereunder and to obtain any additional
information to the extent the Company possesses or may possess such
infor mation or can acquire it without unreasonable effort or expense
necessary to verify the accuracy of the information obtained pursuant
to clause (ii) above;
(v) he or she is aware that the Company shall place
stop transfer orders with its transfer agent against the transfer of
the Option Shares in the absence of registration under the Securities
Act or an exemption therefrom as provided herein; and
(vi) The certificates evidencing the Option Shares
shall bear the following legends:
3
<PAGE>
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of September 25, 1996, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
10. Restriction on Transfer of Option Shares. Anything in this
Agreement to the contrary notwithstanding, the Former Director hereby agrees
that he or she shall not sell, transfer by any means or otherwise dispose of the
Option Shares acquired by him or her without registration under the Securities
Act, or in the event that they are not so registered, unless (i) an exemption
from the Securities Act registration requirements is available thereunder, and
(ii) the Former Director has furnished the Company with notice of such proposed
transfer and the Company's legal counsel, in its reasonable opinion, shall deem
such proposed transfer to be so exempt.
11. Miscellaneous.
11.1 Notices. All notices, requests, deliveries,
payments, demands and other communications which are required or permitted to be
given under this Agreement shall be in writing and shall be either delivered
personally or sent by registered or certified mail, or by private courier,
return receipt requested, postage prepaid to the parties at their respective
addresses set forth herein, or to such other address as either shall have
specified by notice in writing to the other. Notice shall be deemed duly given
hereunder when delivered or mailed as provided herein.
11.2 Stockholder Rights. The Former Director
shall not have any of the rights of a stockholder with respect to the Option
Shares until such shares have been issued after the due exercise of the Option.
11.3 Waiver. The waiver by any party hereto of a
breach of any provision of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
11.4 Entire Agreement. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof. This Agreement may not be amended except by writing executed by the
Former Director and the Company.
11.5 Binding Effect; Successors. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and, to the
extent not prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided
4
<PAGE>
above, their respective heirs, successors, assigns and representatives any
rights, remedies, obligations or liabilities.
11.6 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to choice of law provisions).
11.7 Headings. The headings contained herein are
for the sole purpose of convenience of reference, and shall not in any way limit
or affect the meaning or interpretation of any of the terms or provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
HUMASCAN INC. Address:
125 Moen Avenue
Cranford, New Jersey 07016
By:
---------------------------
FORMER DIRECTOR:
---------------------------
5
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
- --------------------
DATE
HumaScan Inc.
125 Moen Avenue
Cranford, New Jersey 07016
Attention: Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of
September 25, 1996 ("Agreement") with HumaScan Inc. (the "Company"), I hereby
irrevocably elect to exercise the right to purchase _________ shares of the
Company's common stock, par value $.01 per share ("Common Stock"), which are
being purchased for investment and not for resale.
As payment for my shares, enclosed is (check and complete
applicable box[es]):
a [personal check] [certified check] [bank check] payable to the order of
"HumaScan Inc." in the sum of $_________;
confirmation of wire transfer in the amount of $_____________; and/or
certificate for ____ shares of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a fair market value of $_________.
I hereby represent, warrant to, and agree with, the Company
that:
(i) I am acquiring the Option and shall acquire the
Option Shares for my own account and not with a view towards the
distribution thereof;
(ii) I have received a copy of all reports and
documents required to be filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934 within the last 24
months and all reports issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk
of the investment in the Option Shares, which cannot be sold by me
unless they are registered under the Securities Act of 1933 (the
"Securities Act") or an exemption therefrom is available and that the
Company is under no obligation to register the Option Shares for sale
under the Securities Act;
(iv) I have had both the opportunity to ask questions
and receive answers from the officers and directors of the Company and
all persons acting on its behalf concerning the terms and conditions of
the offer made hereunder and to obtain any additional information
1
<PAGE>
to the extent the Company possesses or may possess such information or
can acquire it without unreasonable effort or expense necessary to
verify the accuracy of the information obtained pursuant to clause (ii)
above;
(v) I am aware that the Company shall place stop
transfer orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the Securities Act
or an exemption therefrom as provided herein;
(vi) the certificates evidencing the Option Shares
shall bear the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of September 25, 1996, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
- --------------------------- ----------------------------
(Signature) (Address)
- --------------------------- ----------------------------
(Print Name) (Address)
----------------------------
(Social Security Number)
2
<PAGE>
EXHIBIT 5.1
November 20, 1997
HumaScan Inc.
125 Moen Avenue
Cranford, New Jersey 07016
Dear Sirs:
Reference is made to the Registration Statement on Form S-8
("Registration Statement") filed by HumaScan Inc. ("Company"), a Delaware
corporation, under the Securities Act of 1933, as amended ("Act"), with respect
to an aggregate of 850,000 shares of common stock, par value $.01 per share
("Common Stock"), to be offered by the Company under the Company's 1996 Stock
Incentive Plan and certain other employee benefit plans under separate written
agreements ("Plans").
We have examined such documents and considered such legal
matters as we have deemed necessary and relevant as the basis for the opinion
set forth below. With respect to such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as reproduced or certified copies, and the authenticity of the originals of
those latter documents. As to questions of fact material to this opinion, we
have, to the extent deemed appropriate, relied upon certain representations of
certain officers and employees of the Company. We have also assumed that in
granting future awards under the 1996 Stock Incentive Plan, the Board of
Directors of the Company or the appropriate committee thereunder will exercise
its discretion in establishing the terms of such awards within the permissible
limits of the law of the State of Delaware.
Based upon the foregoing, it is our opinion that the Common
Stock to be issued by the Company under the Plans, when sold in accordance with
the terms of the Plans and the individual instruments governing their issuance,
will be legally issued, fully paid and nonassessable, although they may be
subject to contractual restrictions established by the applicable Plans or
instruments.
In giving this opinion, we have assumed that all certificates
for the Company's shares of Common Stock, prior to their issuance, will be duly
executed on behalf of the Company by the Company's transfer agent and registered
by the Company's registrar, if necessary, and will conform, except as to
denominations, to specimens which we have examined.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement, to the use of our name as your counsel and to all
references made to us in the Registration Statement and in the Prospectus
forming a part thereof. In giving this consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act, or the rules and regulations promulgated thereunder.
Very truly yours,
/s/ Graubard Mollen & Miller
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
of HumaScan Inc.
We consent to the use of our report incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
Short Hills, New Jersey
November 17, 1997
<PAGE>
