<PAGE>
As filed with the Securities and Exchange Commission on February 23, 1998
Registration No. 333-12911
____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LEADING EDGE PACKAGING, INC.
----------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 22-3432883
- -------- ------------
(State of Incorporation) I.R.S. Employer I.D. No.
350 FIFTH AVENUE, SUITE 3922
NEW YORK, NY 10118
- --------------------------------------- --------
(Address of Principal Executive Offices) (Zip Code)
1996 INCENTIVE STOCK OPTION PLAN
1997 ASSOCIATE STOCK OPTION PLAN
(Full title of the plans)
Casey K. Tjang
Chief Financial Officer and Secretary
Leading Edge Packaging, Inc.
350 Fifth Avenue, Suite 3922
New York, NY 10118
212-239-1865
(Telephone number, including area code, and
name and address of agent for service)
_______________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of securities to be Amount to be registered offering price aggregate offering Amount of registration
registered per share (1) price (1) fee
<S> <C> <C> <C> <C>
Common Stock, $0.01
par value 312,500 shares(1) $7.15 $2,234,375 $659.14
</TABLE>
(1) Estimated pursuant to Rule 457 under the Securities Act of 1933 solely for
the purpose of determining the amount of the registration fee and is based on an
exercise price of $7.15 per share with respect to an aggregate of 312,500 shares
of Common Stock issuable upon the exercise of options granted and to be granted
under the Plans. The exercise price reflected and used for calculation of the
fee is equal to 110% of the average of the high and low sales prices for the
Common Stock reported on the Nasdaq National Market for December 10, 1996 and is
the exercise price for all options outstanding under both plans as of the date
of this registration statement.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I (Items 1 and
2) of Form S-8 will be sent or given to employees as specified by Rule 428(b)
(1) under the Securities Act of 1933, as amended (the "Securities Act"). These
documents and the documents incorporated by reference in the registration
statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, or portions thereof, filed by Leading Edge
Packaging, Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference in this registration
statement on Form S-8 ("Registration Statement"):
(1) The Company's latest Annual Report on Form 10-K for the year ended
March 31, 1997;
(2) The Company's latest Quarterly Report on Form 10-Q for the quarter
ended December 31, 1997;
(3) All other reports filed by the Company with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the Company's latest
fiscal year ended March 31, 1997; and
(4) The description of 's Common Stock as contained in Company's
Registration Statement on Form 8-A, under the Exchange Act, as filed
with the Commission on October 15, 1996.
In addition, all documents subsequently filed by Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date
of this Registration Statement and 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 are made a part
hereof from the date of filing of such documents.
ITEM 4. NOT APPLICABLE.
ITEM 5. NOT APPLICABLE.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a corporation may indemnify directors and officers as well
as other employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation, a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was unlawful. A similar standard
is applicable in the case of derivative actions, except that indemnification
only extends to expenses (including attorneys' fees) incurred in connection with
the defense or settlement of such actions, and the statute requires court
approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. The statute provides
that it is not exclusive of other indemnification that may be granted by a
corporation's by-laws, disinterested director vote, stockholder vote, agreement
or otherwise.
<PAGE>
The Certificate of Incorporation of the Company, as amended (the
"Certificate") provides that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person, or a person of whom such person is the legal
representative, is or was a director or officer of the Company or is or was
serving at the request of the Company as a director or officer of the Company or
is or was serving at the request of the Company as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer, employee or agent or in any other capacity while serving
as a director, officer, employee or agent, will be indemnified and held harmless
by the Company to the fullest extent authorized by the DGCL, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), against all expense, liability and loss reasonably incurred or
suffered by such person in connection therewith. Such right to indemnification
includes the right to have the Company pay the expenses incurred in defending
any such proceeding in advance of its final disposition, subject to the
provisions of the DGCL. Such rights are not exclusive of any other right which
any person may have or acquire.
ITEM 7. NOT APPLICABLE.
ITEM 8. EXHIBITS.
See index to Exhibits on page 6.
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent posteffective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement; provided,
however, that paragraphs (l)(i) and (l)(ii) do not apply
if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
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 remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The Company hereby further undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section
3
<PAGE>
15(d) of the Exchange Act (and each filing of the annual report of the
Plans 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
Securities Act may be permitted to directors, officers and controlling
person of Registrant pursuant to the provisions described under Item 6
above, or otherwise, the Company 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 Company of expenses incurred or paid by
a director, officer or controlling person of the Company 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 Company 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.
4
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the Territory of Hong Kong on February 23, 1998.
LEADING EDGE PACKAGING, INC.
By: /s/ Lip-Boon Saw
--------------------------------
Lip-Boon Saw, Chairman
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Lip-Boon Saw and Casey K. Tjang, and each of them
individually, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent 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, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Lip-Boon Saw Chairman and February 23, 1998
- -------------------------- Chief Executive Officer
Lip-Boon Saw
/s/ Peter Yu-Siu Chu President and February 23, 1998
- -------------------------- Chief Operating Officer
Peter Yu-Siu Chu
/s/Casey K. Tjang Chief Financial Officer February 23, 1998
- -------------------------- (Principal Accounting Officer),
Casey K. Tjang Secretary and Director
/s/Peter L. Coker Director February 23, 1998
- --------------------------
Peter L. Coker
/s/Robert B. Goergen Director February 23, 1998
- --------------------------
Robert B. Goergen
/s/Richard Fung-Gea Wong Director February 23, 1998
- --------------------------
Richard Fung-Gea Wong
5
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
4.1 1996 Incentive Stock Option Plan of
Leading Edge Packaging, Inc. (1)
4.2 Form of Agreement under 1996 Incentive Stock
Option Plan of Leading Edge Packaging, Inc.
4.3 1997 Associate Stock Option Plan of
Leading Edge Packaging, Inc.
4.4 Form of Agreement under 1997 Associate Stock
Option Plan of Leading Edge Packaging, Inc.
4.5 Certificate of Incorporation, as amended (2)
4.4 Amended and Restated By-laws (2)
5.1 Opinion of Bondy & Schloss LLP as to the
legality of the stock being registered
23.1 Consent of Independent Auditors -
Deloitte Touche Tomahtsu
23.2 Consent of Bondy & Schloss LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
___________________________
(1) Incorporated by reference. (Filed as Exhibit 4.4 to Amendment No. 1 to
Registrant's Registration Statement on Form S-1, filed October 10,
1996.)
(2) Incorporated by reference. (Filed as Exhibits 3.1 and 3.2 to Amendment
No. 2 to Registrant's Registration Statement on Form S-1, filed
November 13, 1996.)
6
<PAGE>
EXHIBIT 4.2
LEADING EDGE PACKAGING, INC.
AGREEMENT UNDER 1996 INCENTIVE STOCK OPTION PLAN
AGREEMENT dated as of , 19 (the "Grant Date") by and
between Leading Edge Packaging, Inc., a Delaware corporation, with its principal
office at 350 Fifth Avenue, Suite 3922, New York, New York 10118 (the
"Company"), and (the "Optionee");
WITNESSETH THAT:
WHEREAS, the Company has adopted the 1996 Incentive Stock Option Plan (the
"Plan") providing for options to purchase shares of the Company's common stock
(the "Stock") to be granted to certain key employees of the Company or any
subsidiary corporation, as defined in Section 424(f) of the Internal Revenue
Code of 1986, as amended (the "Subsidiary"); and
WHEREAS, the Optionee is a key employee of the Company or a Subsidiary and
the Company desires the Optionee to remain in such employ by providing the
Optionee with a means to acquire or to increase the Optionee's proprietary
interest in the Company's success;
NOW, THEREFORE, in consideration of the covenants and agreements herein set
forth, the parties hereby mutually covenant and agree as follows:
<PAGE>
1. GRANT OF OPTION. Subject to the terms and conditions of the Plan, a
copy of which is attached hereto and made a part hereof, and this Agreement, the
Company grants to the Optionee the option to purchase from the Company all or
any part of an aggregate number of shares of Stock (hereinafter such shares
of Stock are referred to as the "Optioned Shares" and the option to purchase the
Optioned Shares is referred to as the "Option").
2. OPTION PRICE. The option price to be paid for the Optioned Shares
shall be Dollars ($ ) per share, which is not less than the greater of
(a) 110% of the fair market value of the Optioned Shares on the Grant Date and
(b) the initial public offering price per share sold pursuant to the
Registration Statement and Prospectus filed in connection therewith. For
purposes of this Agreement, fair market value shall be determined in accordance
with Section 5(a)(1) of the Plan.
3. EXERCISE OF OPTION. Subject to the terms and conditions of the Plan
and this Agreement, the Option may be exercised by the Optionee while in the
employ of the Company or any Subsidiary, in whole or in part, from time to time,
on or before ten (10) years after the Grant Date (the "Terminal Date"), but
subject to the following conditions and limitations:
(a) The Option may not be exercised in whole or in part before twelve
months after the Grant Date;
2
<PAGE>
(b) Up to one-third (1/3) of the Optioned Shares may be exercised at
any time after twelve months after the Grant Date;
(c) Up to an additional one-third (1/3) of the Optioned Shares may be
exercised at any time after thirty months after the Grant Date; and
(d) Up to an additional one-third (1/3) of the Optioned Shares may be
exercised at any time after sixty months after the Grant Date.
(e) Installments of Options not exercised when permitted shall
accumulate and be exercisable at any time (subject to the provisions of this
Section 3) on or before the Terminal Date; provided, however, the Option may not
at any time be exercised as to fewer than One Hundred (100) shares. In no event
shall the Company be required to issue fractional shares.
4. NOTICE OF EXERCISE OF OPTION; PAYMENT. The Option may be exercised
only by written notice, delivered personally or mailed by postage prepaid,
registered or certified mail, return receipt requested, addressed to the
Treasurer of the Company at 350 Fifth Avenue, Suite 3922, New York, New York
10118, specifying the number of shares of Stock as to which the Option is being
exercised. Such notice shall be accompanied by payment
3
<PAGE>
of the entire option price of the Optioned Shares being purchased by cash,
certified or bank check.
Upon receipt of the payment of the entire option price of the Optioned
Shares so purchased, certificates for such Optioned Shares shall be issued to
the Optionee. If the Optionee fails to pay for all of the shares of Stock
specified in the notice upon delivery thereof, the Optionee's right to purchase
may be terminated by the Company at its election.
5. EMPLOYMENT BY COMPANY.
(a) If the Optionee ceases to be an employee of the Company or any
Subsidiary for any reason whatsoever other than "for cause", then the Option
shall, to the extent then exercisable, be exercisable during the three (3)
months after the Optionee ceases to be an employee of the Company. Following
expiration of such three (3) month period, any Option granted to such Optionee
shall terminate and may no longer be exercised.
(b) If the Optionee ceases to be an employee of the Company or any
Subsidiary by reason of death or permanent and total disability (as defined
under the Plan), the Option may be exercised (without regard to any limitations
provided in Section 3(a), (b), (c) or (d) hereof), unless terminated earlier by
its terms, in whole or in part, by the Optionee or in the event of
4
<PAGE>
death, the person to whom the Option is transferred by will or by applicable
laws of descent and distribution, by giving notice, as provided in Section 4 of
this Agreement, at any time within one (1) year after the date of permanent and
total disability (as defined under the Plan) or death, and not thereafter.
(c) If the Optionee ceases to be an employee of the Company or any
Subsidiary due to termination "for cause", then the Option shall immediately
terminate .
6. STOCKHOLDER STATUS. The Optionee shall not be deemed for any purposes
to be a stockholder of the Company with respect to any shares which may be
acquired hereunder except to the extent that the Option shall have been
exercised with respect thereto, payment made in full of the option price and a
stock certificate issued therefor.
7. NON-TRANSFERABILITY. The Option herein granted shall not be
transferable by the Optionee otherwise than by will or the laws of descent and
distribution, and may be exercised during the life of the Optionee only by the
Optionee.
8. RESTRICTIONS ON SALE, ETC.. The Optionee agrees for Optionee and
Optionee's heirs, legatees, and legal representatives, with respect to all
shares of Stock acquired pursuant to the terms and conditions of this Agreement
(or any
5
<PAGE>
shares of stock issued pursuant to a stock dividend or stock split thereon or
any securities issued in lieu thereof or in substitution or exchange therefor),
that the Optionee and the Optionee's heirs, legatees, and legal representatives
will not sell or otherwise dispose of such shares except pursuant to an
effective registration statement under the Securities Act of 1933, as amended
("Act"), or except in a transaction which, in the opinion of counsel for the
Company, is exempt from registration under the Act.
9. THE COMPANY'S UNAFFECTED RIGHTS. The existence of the Option herein
granted shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations, or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issuance of
bonds, debentures, preferred, or prior preference stock ahead of or affecting
the Stock or the rights thereof, or dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise.
10. CHANGE OF EMPLOYMENT TERMS. Subject to the terms of any written
employment agreement to the contrary, the Company (or its Subsidiary which
employs the Optionee) shall have the right to terminate or change the terms of
employment of the Optionee at any
6
<PAGE>
time and for any reason whatsoever. Subject to the Company's right to terminate
or change the terms of employment of the Optionee as set forth above, in
consideration of the grant of the Option, the Optionee agrees to remain in the
employ of the Company or of a Subsidiary at all times during the period of at
least twelve (12) months which begins with the Grant Date, and if such
employment is terminated within such period for any reason whatsoever, this
Option, except to the extent otherwise provided in Section 5 hereof, shall
terminate and become null and void.
11. PLAN COMMITTEE. As a condition of the granting of the Option, the
Optionee agrees for the Optionee and the Optionee's heirs, legatees and legal
representatives, that any dispute or disagreement which may arise under or as a
result of or pursuant to this Agreement shall be determined by the Committee
administering the Plan in its sole discretion, and any interpretation by the
Committee of the terms of this Agreement or the Plan shall be final, binding,
and conclusive.
7
<PAGE>
12. PLAN TERMS. Capitalized terms used herein shall, unless otherwise
defined, have the meanings assigned to them in the Plan.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
by its duly authorized officers and its corporate seal hereunto affixed, and the
Optionee has hereunto affixed his hand and seal, the date first above written.
Attested To: Leading Edge Packaging, Inc.
By:
- ---------------------- --------------------------------
Peter Yu-Siu Chu
as President and COO
Optionee:
-------------------------
Address:
---------------------------
Social Security
Number:
----------------------------
8
<PAGE>
EXHIBIT 4.3
LEADING EDGE PACKAGING, INC.
1997 ASSOCIATE STOCK OPTION PLAN
1. PURPOSE. Leading Edge Packaging, Inc. (the "Company") hereby
establishes the Leading Edge Packaging, Inc. 1997 Associate Stock Option Plan
(the "Plan"). The purpose of the Plan is to advance the interests of the
Company and its stockholders by encouraging participation in the ownership and
economic progress of the Company by the Company's Associates (as defined in
Section 3) and to provide such Associates with an opportunity to participate in
the increased value of the Company which their effort, initiative, and skill
have helped produce. The stock options granted under this Plan will be
nonstatutory stock options not intended to qualify as incentive stock options
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. ADMINISTRATION.
(a) The Plan will be administered by a Plan committee (the
"Committee"), designated by the Board of Directors of the Company (the "Board"),
which shall include one or more members of the Board; provided, however, that at
any time that the Company becomes subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Board may
appoint members to the Committee, and the Committee must act, only in accordance
with the requirements of Rule 16b-3 promulgated pursuant to Section 16(b) of the
Exchange Act ("Rule 16b-3"). The Committee may make such rules and regulations
and establish such
<PAGE>
procedures as it deems appropriate for the administration of this Plan. The
Committee may interpret this Plan, prescribe, amend or rescind any rules and
regulations necessary or appropriate for the administration of this Plan, and
make such other determinations and take such other action as it deems necessary
or advisable. Any interpretation, determination or other action made or taken
by the Committee shall be final, binding and conclusive, and the decision of the
Committee shall be final and binding upon all parties in interest, including the
Company and its stockholders. Any decision or determination reduced to writing
and signed by all members of the Committee shall be fully as effective as if
made by unanimous vote at a meeting duly called and held.
(b) The Committee may employ such legal counsel, consultants and
agents as it may deem desirable for the administration of this Plan and may rely
upon any opinion received from any such counsel or consultant and any
computation received from any such consultant or agent.
(c) No member or former member of the Committee shall be liable for
any action or determination made in good faith with respect to this Plan or any
option awarded under it. To the maximum extent permitted by applicable law,
each member or former member of the Committee shall be indemnified and held
harmless by the Company against any cost or expense (including counsel fees) or
liability (including any sum paid in settlement of a claim) arising out of any
action or omission to act in connection with this Plan,
2
<PAGE>
unless arising out of such member's or former member's own fraud or bad faith.
Such indemnification shall be in addition to any rights of indemnification the
member or former member may have as director or under the By-laws of the
Company.
(d) The Committee shall have complete authority in its sole
discretion to determine which participants under this Plan shall be granted
options and the number of shares of the Company's stock to be subject to each
option.
(e) The Committee shall report to the Board annually the names of
those Associates granted options during the preceding year, the number of shares
covered by each option and the applicable option prices.
3. ELIGIBILITY. The individuals who shall be eligible to participate in
this Plan and to receive options shall be such Associates of the Company or any
subsidiary (the "Subsidiary"), within the definition of subsidiary corporation
in Section 424(f) of the Code, or any similar provision hereinafter enacted, as
the Committee shall from time to time determine. The term "Associate" shall
mean:
(a) any person employed by the Company or any Subsidiary on the
basis of an employer-employee relationship who receives remuneration for
personal services rendered to the Company;
(b) any person who renders consulting services to the Company or
any Subsidiary; and
3
<PAGE>
(c) active members of the Board of Directors of the Company or
any Subsidiary whether or not, as of the date of any option grant, they are
employees of the Company.
4. STOCK SUBJECT TO PLAN.
(a) Options may be granted permitting the purchase in the aggregate of
not more than 400,000 shares of the Company's common stock, par value, $0.01 per
share ("Common Stock") provided that until December 5, 1998 the number of shares
issuable pursuant to options granted under this Plan shall not, when aggregated
with the shares issuable pursuant to options granted under the Company's 1996
Incentive Stock Option Plan (the "1996 Plan"), exceed 312,500 shares. These
shares may consist either in whole or in part of shares of the Company's
authorized but unissued Common Stock or shares of the Company's authorized and
issued Common Stock reacquired by the Company and held in its treasury. If an
option granted under this Plan is surrendered or for any other reason ceases to
be exercisable in whole or in part, the shares which were subject to any such
option but as to which the option ceases to be exercisable shall again be
available for options to be granted under this Plan.
(b) The total number of shares of the Common Stock as to which an
option or options may be granted under this Plan to any one Associate shall not
exceed 100,000 shares.
4
<PAGE>
5. STOCK OPTIONS.
(a) OPTION PRICE. The price at which options may be granted under the
Plan and the effective date of such grant shall be determined as follows:
(1) The per share option price of the Common Stock subject to
each option shall be at least equal to the greater of (x) one hundred ten (110%)
percent of the fair market value of a share of Common Stock on the date that the
option is granted and (y) six dollars ($6) per share.
For purposes of this Plan, fair market value of a share of Common
Stock shall be determined by reference to the last reported closing price of a
share on any national securities exchange upon which the shares of Common Stock
are listed (or the average of the closing bid and asked price or other
applicable published share quotation if the shares are not then traded on a
national securities exchange) on the trading day next preceding the date of the
grant or exercise of the option, as the case may be, or
the last third party sale within a one-month period prior to the date of grant,
or if no such third party sales, the last price at which shares of Common Stock
were sold or redeemed by the Company if no public market or pink sheet share
quotations then exist for the shares, whichever is applicable.
(2) Notwithstanding anything to the contrary contained herein,
any options issued under this Plan, which are so issued in replacement of or
substitution for options previously issued under the 1996 Plan, shall be
exercisable at the same
5
<PAGE>
exercise price as the options issued under the 1996 Plan which they are intended
to replace.
(3) The Committee shall, after it approves the granting of an
option to an Associate, cause the Associate to be notified of such action. The
date on which the Committee approves the granting of an option shall be
considered the date on which such option is granted irrespective of the date on
which the Associate is notified.
(b) EXERCISE OF OPTION. The right to purchase shares covered by any
option or options under this Plan shall be exercisable only in accordance with
the terms and conditions of the grant to such optionee as evidenced by a stock
option agreement in such form, not inconsistent with this Plan, as the Committee
shall approve from time to time. Options granted under the Plan shall be
exercised in the following manner:
(1) The right to purchase shares covered by any option or
options granted under this Plan shall not be exercisable until the expiration of
twelve months from the date such option is granted except in the event of the
death or permanent and total disability (within the meaning of Section 22(e)(3)
of the Code) of the optionee within such period, in which event such option or
options shall be deemed exercisable for purposes of Section 5(c)(2) hereof
without regard to such twelve-month period.
(2) The Committee may, in its discretion, provide that such
option or options may be exercised in whole or in part in installments,
cumulative or otherwise, for any period or periods of
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time specified by the Committee of not less than twelve months nor more than ten
years from the date of the grant of the option. Subject to the provisions of
subdivision (b)(3) of this Section 5, that portion of an option which is
exercisable on an installment basis may not be exercised prior to the expiration
of the applicable installment period.
(3) If the optionee shall continue as an Associate during the
whole of any period for which an installment of shares shall have been allotted
by the terms of any option granted such optionee under this Plan, the option
thereupon shall be exercisable with respect to such shares in accordance with
the terms and conditions of the grant of such option to such optionee.
(4) Notwithstanding anything to the contrary contained herein,
any options issued under this Plan, which are so issued in replacement of or
substitution for options previously issued under the 1996 Plan, shall be deemed
to have been granted on the same date as the options issued under the 1996 Plan
which they are intended to replace and on terms and conditions no less favorable
to the grantee than the options issued under the 1996 Plan, except with respect
to tax treatment of the options on their exercise.
(c) EXPIRATION OR TERMINATION OF OPTION.
(1) Each option and all rights and obligations thereunder shall,
subject to the provisions of subdivision (c)(2) of this Section 5, expire on a
date to be determined by the
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Committee, such date, however, in no event to be later than ten years from the
date on which the option is granted.
(2)(i) In the event an optionee shall cease being an Associate as
determined by the Committee, as the result of any reason whatsoever other than
"for cause", then an option granted to such optionee shall, to the extent then
exercisable, be exercisable within three months after such optionee ceases to be
an Associate. Following the expiration of such three-month period, any option
granted to such optionee shall terminate and may no longer be exercised.
(ii) If the optionee dies or becomes permanently and totally
disabled (within the meaning of Section 22(e)(3) of the Code) while an
Associate, such option (without regard to any installment limitations provided
in Section 5(b)(2)) hereof may, within one year after such optionee ceases to be
an Associate (or within such shorter period as may be specified in the option by
the Committee), be exercised by such optionee or the person or persons to whom
the optionee's rights under the option shall pass by will or by the applicable
laws of descent and distribution; provided, however, that an option may not be
exercised to any extent by any person after the expiration of the option
according to its terms.
(iii) In the event an optionee shall cease to be an Associate as
the result of any circumstance other than those referred to above in subdivision
(c)(2)(i) or (ii) of this Section 5, then all options granted to such optionee
under this Plan shall
8
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terminate and no longer be exercisable as of the date such optionee ceases to be
an Associate.
(iv) An optionee who is prevented from performing services as an
Associate because of such optionee's disability (other than as provided in
subdivision (c)(2)(ii) of this Section 5), or who is on leave of absence for the
purpose of serving in a military capacity the government of the country in which
the principal place of business of the Company or any Subsidiary is located, or
for such other purpose or reason as the Committee may specifically approve,
shall not during the period of any such absence be deemed, by virtue of such
absence alone, to have terminated such status as an Associate except as the
Committee may otherwise expressly provide. All rights which such optionee would
have had to exercise options granted hereunder will be suspended during the
period of such leave of absence and may be exercised cumulatively by such
optionee upon his resuming services as an Associate provided such options are
exercised within ten years after the grant thereof.
6. CAPITAL ADJUSTMENTS. The aggregate number of shares of the Company's
Common Stock subject to this Plan, the maximum number of shares as to which
options may be granted to any one optionee hereunder, and the number of shares
and the price per share subject to outstanding options shall be appropriately
adjusted for any increase or decrease in the number of shares of Common Stock
which the Company has issued resulting from any stock split, stock dividend,
combination of shares or any other change, or any
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exchange for other securities or any reclassification, reorganization,
redesignation, recapitalization, or otherwise.
7. NONTRANSFERABILITY. An option granted under the Plan may not be
transferred except by will or the laws of descent and distribution and, during
the lifetime of the Associate to whom granted, may be exercised only by such
Associate.
8. SECURITIES ACT OF 1933. Upon issuance of shares of the Company's
Common Stock hereunder, the recipient of such stock shall represent that the
shares are taken for investment and not resale and make such other
representations as may be necessary to qualify the issuance of the shares as
exempt from the Securities Act of 1933 and shall further represent that he or
she will not dispose of such shares in violation of the Securities Act of 1933.
The Company reserves the right to place a legend on any stock certificate issued
pursuant to the Plan to assure compliance with this Section 8. In the event
that the Company shall nevertheless deem it necessary to register under the
Securities Act of 1933 or other applicable statutes any shares with respect to
which an option shall have been exercised, then the Company shall take such
action at its own expense before delivery of such shares. In the event the
shares of the Company shall be listed on any national stock exchange at the time
of the exercise of an option under this Plan, then, whenever required, the
Company shall register the shares with respect to which such option is exercised
under the Securities Exchange Act of 1934, and, whenever required, shall make
prompt application for the listing on such stock exchange.
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9. NON-ALIENATION OF BENEFITS. No right or benefit under this Plan shall
be subject to anticipation, alienation, sale, assignment, pledge, encumbrance or
charge, and any attempt to anticipate, alienate, sell, assign, pledge, encumber,
or charge the same shall be void. No right or benefit hereunder shall in any
manner be liable for or subject to the debts, contracts, liabilities, or torts
of the person entitled to such benefits. If any optionee should become bankrupt
or attempt to anticipate, alienate, sell, assign, pledge, encumber, or charge
any right or benefit hereunder, then such right or benefit shall, in the
discretion of the Committee, cease and terminate.
10. AMENDMENT, SUSPENSION, OR TERMINATION OF PLAN. The Board may at any
time suspend or terminate the Plan and may amend it from time to time in such
respects as the Board may deem advisable in order that options granted
thereunder shall conform to any change in the law, or in any other respect which
the Board may deem to be in the best interests of the Company; provided,
however, that without the consent of a majority of the stockholders of the
Company, no such amendment shall, except as specified in Section 6 hereof,
increase the maximum number of shares for which options may be granted under
this Plan. No option may be granted during any suspension of, or after
termination of the Plan. No amendment, suspension of, or termination of this
Plan shall, without the optionee's consent, alter or impair any of the rights or
obligations under any option theretofore granted to her or him under this Plan.
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11. CONTINUATION OF EMPLOYMENT OR OTHER SERVICES. Neither this Plan nor
any option granted hereunder shall confer upon any Associate any right to
continue to render services or continue to remain in the employ of the Company
or any Subsidiary, or limit in any respect the right of the Company or any
Subsidiary to terminate the employment or services of any Associate at any time.
12. EFFECTIVE DATE. The effective date ("Effective Date") of this Plan
shall be June 18, 1997, provided that if this Plan is not approved by the
holders of a majority of the outstanding shares of Common Stock of the Company
within twelve months of the Effective Date, then the Plan shall terminate and
any options granted hereunder shall be void and of no further force or effect.
13. TERMINATION DATE. Unless this Plan shall have been previously
terminated by the Board, this Plan shall terminate ten years from the Effective
Date, except as to options theretofore granted and outstanding under the Plan at
that date, and no option shall be granted after that date.
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EXHIBIT 4.4
LEADING EDGE PACKAGING, INC.
AGREEMENT UNDER 1997 ASSOCIATE STOCK OPTION PLAN
AGREEMENT dated as of (the "Grant Date") by and between
Leading Edge Packaging, Inc., a Delaware corporation, with its principal office
at 350 Fifth Avenue, Suite 3922, New York, New York 10118 (the "Company"), and
(the "Optionee").
WITNESSETH THAT:
WHEREAS, the Company has adopted the 1997 Associate Stock Option Plan (the
"Plan") providing for options to purchase shares of the Company's common stock
(the "Stock") to be granted to certain Associates (as defined in the Plan) of
the Company or any subsidiary corporation, as defined in Section 424(f) of the
Internal Revenue Code of 1986, as amended (the "Subsidiary"); and
WHEREAS, the Optionee is an Associate of the Company or a Subsidiary, and
the Company desires the Optionee to remain an Associate by providing the
Optionee with a means to acquire or to increase the Optionee's proprietary
interest in the Company's success;
NOW, THEREFORE, in consideration of the covenants and agreements herein set
forth, the parties hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions of the Plan, a
copy of which is attached hereto and made a part hereof, and this Agreement, the
Company grants to the Optionee the option to purchase from the Company all or
any part of an aggregate number of ____________ shares of Stock (hereinafter
such shares of Stock are referred to as the "Optioned Shares" and the option to
<PAGE>
purchase the Optioned Shares is referred to as the "Option").
2. OPTION PRICE. The option price to be paid for the Optioned Shares
shall be _______________________________ per share, which is not less than the
greater of (a) 110% of the fair market value of the Optioned Shares on the Grant
Date and (b) six dollars ($6) per share. For purposes of this Agreement, fair
market value shall be determined in accordance with Section 5(a)(1) of the Plan.
3. EXERCISE OF OPTION. Subject to the terms and conditions of the Plan
and this Agreement, the Option may be exercised by the Optionee while an
Associate of the Company or any Subsidiary, in whole or in part, from time to
time, on or before ten (10) years after the Grant Date (the "Terminal Date"),
but subject to the following conditions and limitations:
(a) The Option may not be exercised in whole or in part before twelve
(12) months after the Grant Date;
(b) Up to one-third (1/3) of the Optioned Shares may be exercised at
any time after twelve (12) months after the Grant Date;
(c) Up to an additional one-third (1/3) of the Optioned Shares may be
exercised at any time after thirty (30) months after the Grant Date;
(d) Up to an additional one-third (1/3) of the Optioned Shares may be
exercised at any time after sixty (60) months after the Grant Date; and
(e) Installments of Options not exercised when permitted shall
accumulate and be exercisable at any time (subject to the
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provisions of this Section 3) on or before the Terminal Date; provided, however,
the Option may not at any time be exercised as to fewer than one hundred (100)
shares. In no event shall the Company be required to issue fractional shares.
4. NOTICE OF EXERCISE OF OPTION; PAYMENT. The Option may be exercised
only by written notice, delivered personally or mailed by postage prepaid,
registered or certified mail, return receipt requested, addressed to Chief
Financial Officer, Leading Edge Packaging, Inc., 350 Fifth Avenue, Suite 3922,
New York, New York 10118, specifying the number of shares of Stock as to which
the Option is being exercised. Such notice shall be accompanied by payment of
the entire option price of the Optioned Shares being purchased by cash,
certified or bank check.
Upon receipt of the payment of the entire option price of the Optioned
Shares so purchased, certificates for such Optioned Shares shall be issued to
the Optionee. If the Optionee fails to pay for all of the shares of Stock
specified in the notice upon delivery thereof, the Optionee's right to purchase
may be terminated by the Company at its election.
5. TERMINATION AS AN ASSOCIATE.
(a) If the Optionee ceases to be an Associate of the Company or any
Subsidiary for any reason whatsoever other than "for cause", then the Option
shall, to the extent then exercisable, be exercisable during the three (3)
months after the Optionee ceases to be an Associate. Following expiration of
such three (3) month period, any Option granted to such Optionee shall terminate
and may
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no longer be exercised.
(b) If the Optionee ceases to be an Associate of the Company or any
Subsidiary by reason of death or permanent and total disability (as defined
under the Plan), the Option may be exercised (without regard to any limitations
provided in Section 3(a), (b), (c) or (d) hereof), at any time within one (1)
year after the date of permanent and total disability (as defined under the
Plan) or death, and not thereafter unless terminated earlier by its terms, in
whole or in part, by the Optionee or in the event of death, the person to whom
the Option is transferred by will or by applicable laws of descent and
distribution, by giving notice, as provided in Section 4 of this Agreement.
(c) If the Optionee ceases to be an Associate of the Company or any
Subsidiary due to termination "for cause", then the Option shall immediately
terminate .
6. STOCKHOLDER STATUS. The Optionee shall not be deemed for any purpose
to be a stockholder of the Company with respect to any shares which may be
acquired hereunder unless and until the Option shall have been exercised with
respect thereto, payment made in full of the option price and a stock
certificate issued therefor.
7. NON-TRANSFERABILITY. The Option herein granted shall not be
transferable by the Optionee otherwise than by will or the laws of descent and
distribution, and may be exercised during the life of the Optionee only by the
Optionee.
8. RESTRICTIONS ON SALE, ETC.. The Optionee agrees that for Optionee and
Optionee's heirs, legatees, and legal representatives,
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<PAGE>
with respect to all shares of Stock acquired pursuant to the terms and
conditions of this Agreement (and any shares of stock issued pursuant to a stock
dividend or stock split thereon or any securities issued in lieu thereof or in
substitution or exchange therefor or in addition thereto), the Optionee and the
Optionee's heirs, legatees, and legal representatives will not sell or otherwise
dispose of such shares except pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Act"), or except in a
transaction which, in the opinion of counsel for the Company, is exempt from
registration under the Act.
9. THE COMPANY'S UNAFFECTED RIGHTS. The existence of the Option herein
granted shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations, or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issuance of
bonds, debentures, preferred, or prior preference stock ahead of or affecting
the Stock or the rights thereof, or dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise.
10. CHANGE OF ASSOCIATE STATUS. Nothing in the Plan or this Agreement
shall abrogate the right of the Company or any Subsidiary to terminate or change
the terms of employment or other services rendered by the Optionee at any time
and for any reason whatsoever. Subject to the Company's right to terminate or
change the terms of
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employment or other services of the Optionee as set forth above, in
consideration of the grant of the Option, the Optionee agrees to remain an
Associate of the Company or of a Subsidiary at all times during the period of at
least twelve (12) months which begins with the Grant Date, and if such Associate
status is terminated within such period for any reason whatsoever, this Option,
except to the extent otherwise provided in Section 5 hereof, shall terminate and
become null and void.
11. PLAN COMMITTEE. As a condition of the granting of the Option, the
Optionee agrees for the Optionee and the Optionee's heirs, legatees and legal
representatives, that any dispute or disagreement which may arise under or as a
result of or pursuant to this Agreement shall be determined by the Committee
administering the Plan in its sole discretion, and any interpretation by the
Committee of the terms of this Agreement or the Plan shall be final, binding,
and conclusive.
12. PLAN TERMS. Capitalized terms used herein shall, unless otherwise
defined, have the meanings assigned to them in the Plan.
13. NONSTATUTORY OPTION. The Optionee understands that the option granted
hereunder is a nonstatutory stock option not intended to qualify as an incentive
stock option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"). Accordingly, the Company shall not be obligated
to issue any Optioned Shares until there has been compliance with such laws and
regulations as the Company may deem applicable, including, if required, federal,
state or local withholding tax requirements.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer, and the Optionee has executed this Agreement, on
the date first above written.
LEADING EDGE PACKAGING, INC.
By:
--------------------------------
Peter Yu-Siu Chu
as President and Chief Operating Officer
Optionee:
----------------------------
Address:
----------------------------
----------------------------
Social Security
Number:
-------------------------------
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EXHIBIT 5.1
OPINION AND CONSENT OF COUNSEL
BONDY & SCHLOSS LLP
6 EAST 43RD STREET
NEW YORK, NY 10017
February 2, 1998
Leading Edge Packaging, Inc.
350 Fifth Avenue
Suite 3922
New York, NY 10118
Ladies and Gentlemen:
This opinion and consent is provided to you in connection with the
Registration Statement on Form S-8 (the "Registration Statement") of Leading
Edge Packaging, Inc. (the "Company") to be filed under the Securities Act of
1933, as amended, relating to an offering of up to 312,500 shares of the
Company's Common Stock (the "Common Stock") issuable upon the exercise of
options granted under the Company's 1996 Incentive Stock Option Plan and the
Company's 1997 Associate Stock Option Plan (collectively, the "Plans").
It is our opinion that the shares of Common Stock are validly authorized
and, when such shares have been delivered against payment therefor as
contemplated under the Plans, such shares will be validly issued, fully paid,
and non-assessable.
We know that this opinion will be filed as Exhibit 5.1 to the Registration
Statement and consent to such filing.
Very truly yours,
BONDY & SCHLOSS LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
DELOITTE TOUCHE TOMAHTSU
The Board of Directors
Leading Edge Packaging, Inc.:
We consent to the use of our report relating to the audited financial
statements of Leading Edge Packaging, Inc. incorporated by reference into the
Registration Statement on Form S-8 to which this consent is to be filed as an
exhibit.
DELOITTE TOUCHE TOMAHTSU
New York, New York
February 23, 1998
