SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SEAFOODS PLUS, LTD.
(Exact name of registrant as specified in its charter)
Utah 87-0413539
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
110 Commerce Drive, Allendale, New Jersey 07401
(Address of Principal Executive Offices) (Zip Code)
(201) 236-1100
(Issuer's Telephone Number, including Area Code)
1998 Incentive Plan
(Full Title of Plan)
Michael W. Levin
Chairman, President and Chief Executive Officer
110 Commerce Drive
Allendale, New Jersey 07401
(Name and address of agent for service)
(201) 236-1100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Maximum Maximum
Title of Each Offering Aggregate
Class of Securities Amount to be Price Per Offering Amount of
To be Registered Registered Share Price Registration Fee
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------------
Common Stock, $.001
par value.................. 500,000 $2.625 (1) $1,312,500 (1) $387.19
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This calculation is made solely for the purpose of determining the
registration fee pursuant to Rule 457(h) and Rule 457(c) under the Securities
Act of 1933, as amended, and is based upon the average of the high asked and low
bid prices of $2.625 for the Common Stock on August 7, 1998.
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Seafoods Plus, Ltd.
(the "Registrant") with the Securities and Exchange Commission (the
"Commission"), are hereby incorporated by reference in this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1997.
(b) The Registrant's Quarterly Report on Form 10-QSB for the
quarter ended March 31, 1998, and all other reports filed
pursuant to Section 13(a) or 15(d) of the Exchange Act for the
past twelve months.
(c) Not applicable.
All documents filed by the Registrant, pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 into this Registration Statement and to be a part
hereof from the respective dates of filing such documents.
The Registrant will provide without charge to any Plan participant,
upon the oral or written request of such person, a copy of any or all of the
foregoing documents incorporated herein by reference (other than exhibits to
such documents). Requests should be directed to Frances Blanco, Vice President,
110 Commerce Drive, Allendale, New Jersey 07401, telephone number: (201)
236-1100.
Item 4. Description of Securities.
Each share of the Registrant's Common Stock, $.001 par value per share
("Common Share"), currently outstanding is fully paid and nonassessable and is
entitled to one vote per share on all matters submitted for action by
stockholders. All Common Shares are equal to each other with respect to the
election of directors and cumulative voting is not permitted; therefore, the
holders of more than 50% of the outstanding Common Shares can, if they choose to
do so, elect all directors. The terms of the directors are not staggered.
Directors are elected annually to serve until the next annual meeting of
stockholders or until their successors are elected and qualified. There are no
preemptive rights to purchase any additional Common Shares or other securities
of the Registrant. Holders of Common Shares are entitled to receive ratably such
<PAGE>
dividends as may be declared by the Board of Directors out of funds legally
available therefor. In the event of liquidation or dissolution, holders of
Common Shares are entitled to receive pro rata the remaining assets after
creditors and holders of any class of stock having liquidation rights senior to
holders of Common Shares have been paid in full.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 16-10a-902(1) of the Utah Revised Business Corporation Act
authorizes a Utah corporation to indemnify any director against liability
incurred in any proceeding if he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
Section 16-10a-902(4) prohibits a Utah corporation from indemnifying a
director in a proceeding by or in the right of the corporation in which the
director was adjudged liable to the corporation or in a proceeding in which the
director was adjudged liable on the basis that he or she improperly received a
personal benefit. Otherwise, Section 16-10a-902(5) allows indemnification for
reasonable expenses incurred in connection with a proceeding by or in the right
of a corporation.
Unless limited by the Articles of Incorporation, Section 16-10a-905
authorizes a director to apply for indemnification to the court conducting the
proceeding or another court of competent jurisdiction. Section 16-10a-907(1)
extends this right to officers of a corporation as well.
Unless limited by the Articles of Incorporation, Section 16-10a-903
requires that a corporation indemnify a director who was successful, on the
merits or otherwise, in defending any proceeding to which he or she was a party
against reasonable expenses incurred in connection therewith. Section
16-10a-907(1) extends this protection to officers of a corporation as well.
Pursuant to Section 16-10a-904(1), the corporation may advance a
director's expenses incurred in defending any proceeding upon receipt of an
undertaking and a written affirmation of his or her good faith belief that he or
she has met the standard of conduct specified in Section 16-10a-902. Unless
limited by the Articles of Incorporation, Section 16- 10a-907(2) extends this
protection to officers, employees, fiduciaries and agents of a corporation as
well.
<PAGE>
Regardless of whether a director, officer, employee, fiduciary or
agent has the right to indemnity under the Utah Revised Business Corporation
Act, Section 16-10a-908 allows the corporation to purchase and maintain
insurance on his or her behalf against liability resulting from his or her
corporate role.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
4 Seafoods Plus, Ltd. 1998 Incentive Plan
5 Opinion on Legality of Fischbein Badillo Wagner Harding
23.1 Consent of Mantyla, McReynolds & Associates
23.2 Consent of Fischbein Badillo Wagner Harding (included in
Exhibit 5)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information in
the registration statement; and
(iii) To include any additional or changed material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement; provided, however, only to the extent required by the
general rules and regulations of the Commission.
(2) That, for the purpose of determining any liability under
the 1933 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.
<PAGE>
(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) 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act, as amended, may be permitted to directors, executive officers
and controlling persons of the Registrant as outlined above 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, executive officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, executive 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 of 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Allendale, State of New Jersey, on the 10th day of
August, 1998.
SEAFOODS PLUS, LTD.
By: /s/ Michael W. Levin
Michael W. Levin, President
<PAGE>
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 date indicated.
Date: 8/10/98 By: /s/ Michael W. Levin
Michael W. Levin, Chief Executive Officer,
President and Chairman of the Board
Date: 8/10/98 By: /s/ Frances Blanco
Frances Blanco, Vice President, Treasurer,
Secretary and Director
Date: 8/10/98 By: /s/ Paul C. Baker
Paul C. Baker, Director
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4 Seafoods Plus, Ltd. 1998 Incentive Plan
5 Opinion on Legality of Fischbein Badillo Wagner Harding
23.1 Consent of Mantyla, McReynolds & Associates
23.2 Consent of Fischbein Badillo Wagner Harding (included in
Exhibit 5)
EXHIBIT 4
SEAFOODS PLUS, LTD.
1998 INCENTIVE PLAN
ARTICLE I.
DEFINITIONS
1.01 Administrator means the Board and any delegate of the
Board that is appointed in accordance with Article III.
1.02 Agreement means a written agreement (including any
amendment or supplement thereto) between the Company and a Participant
specifying the terms and conditions of a Stock Award or Option granted to such
Participant.
1.03 Board means the Board of Directors of the Company.
1.04 Change in Control shall mean an event or series of events
that would be required to be described as a change in control of the Company in
a proxy or information statement distributed by the Company pursuant to section
14 of the Securities Exchange Act of 1934 (the "Exchange Act") in response to
Item 6(e) of Schedule 14A promulgated thereunder or otherwise adopted. The
determination whether and when a change in control has occurred or is about to
occur shall be made by the Board in office immediately prior to the occurrence
of the event or series of events constituting such change in control.
1.05 Code means the Internal Revenue Code of 1986, and any
amendments thereto.
1.06 Common Stock means the common stock of the Company.
1.07 Company means Seafoods Plus, Ltd.
1.08 Control Change Date means the occurrence of the event or
series of events constituting a Change in Control as determined by the Board.
1.09 Exchange Act means the Securities Exchange Act of 1934,
as amended and as in effect on the date of this Agreement.
1.10 Fair Market Value means, on any given date, the closing
price (or, if there is none, the average of the closing bid and asked price) of
<PAGE>
the Common Stock on such quotation system or principal securities exchange on
which the Common Stock is traded on such day, or, if the Common Stock is not so
traded on such day, then on the next preceding day that the Common Stock was
traded, all as reported by such source as the Administrator may select.
1.11 Forfeitable Shares shall have the meaning set forth in
Section 9.04.
1.12 Option means a stock option that entitles the holder to
purchase from the Company a stated number of shares of Common Stock at the price
set forth in an Agreement.
1.13 Participant means an employee of and non-employee
director, advisor and independent consultant to the Company or a Related Entity,
including an employee who is a member of the Board, who satisfies the
requirements of Article IV and is selected by the Administrator to receive a
Stock Award, an Option or a combination thereof.
1.14 Plan means the Company's 1998 Incentive Plan.
1.15 Related Entity means any entity that directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Company.
1.16 Stock Award means Common Stock awarded to a Participant
under Article IX.
1.17 Stockholders means the stockholders of the Company.
ARTICLE II.
PURPOSES
The Plan is intended to assist the Company and Related
Entities in recruiting and retaining employees, directors, officers,
consultants, and advisors who are exclusive agents of the Company, and in
compensating such individuals by enabling such individuals to participate in the
future success of the Company and the Related Entities and to associate their
interests with those of the Company and its Stockholders. The Plan is intended
to permit the grant of Stock Awards and the grant of both Options qualifying
under Section 422 of the Code ("incentive stock options") and Options not so
qualifying. No Option that is intended to be an incentive stock option shall be
invalid for failure to qualify as an incentive stock option. The proceeds
received by the Company from the sale of Common Stock pursuant to this Plan
shall be used for general corporate purposes.
<PAGE>
ARTICLE III.
ADMINISTRATION
The Plan shall be administered by the Administrator. The
Administrator shall have authority to grant Stock Awards and Options upon such
terms (not inconsistent with the provisions of this Plan) as the Administrator
may consider appropriate. Such terms may include conditions (in addition to
those contained in this Plan) on the exercisability of all or any part of an
Option or on the transferability or forfeitability of a Stock Award, including
by way of example and not limitation, conditions on which Participants may defer
receipt of benefits under the Plan, requirements that the Participant complete a
specified period of employment with or service to the Company or a Related
Entity, that the Company achieve a specified level of financial performance or
that the Company achieve a specified level of financial return. Notwithstanding
any such conditions, the Administrator may, in its discretion, accelerate the
time at which any Option may be exercised, or the time at which a Stock Award
may become transferable or nonforfeitable. In addition, the Administrator shall
have complete authority to interpret all provisions of this Plan, to prescribe
the form of Agreements, to adopt, amend, and rescind rules and regulations
pertaining to the administration of the Plan and to make all other
determinations necessary or advisable for the administration of this Plan. The
express grant in the Plan of any specific power to the Administrator shall not
be construed as limiting any power or authority of the Administrator. Any
decision made, or action taken, by the Administrator or in connection with the
administration of this Plan shall be final and conclusive. Neither the
Administrator nor any member of the Board shall be liable for any act done in
good faith with respect to this Plan or any Agreement, Option or Stock Award.
All expenses of administering this Plan shall be borne by the Company.
The Board, in its discretion, may appoint a committee of the
Board and delegate to such committee all or part of the Board's authority and
duties with respect to the Plan. The Board may revoke or amend the terms of a
delegation at any time but such action shall not invalidate any prior actions of
the Board's delegate or delegates that were consistent with the terms of the
Plan.
ARTICLE IV.
ELIGIBILITY
Section 4.01 General. Any employee, director, officer, or
exclusive agent of, and advisor or consultant to, the Company or a Related
Entity (including a corporation that becomes a Related Entity after the adoption
of this Plan) is eligible to participate in this Plan if the Administrator, in
its sole discretion, determines that such person has contributed significantly
or can be expected to contribute significantly to the profits or growth of the
<PAGE>
Company or a Related Entity. Directors of the Company who are employees of the
Company or a Related Entity may be selected to participate in this Plan.
Section 4.02 Grants. The Administrator will designate
individuals to whom Stock Awards and Options are to be granted and will specify
the number of shares of Common Stock subject to each award or grant. All Stock
Awards and Options granted under this Plan shall be evidenced by Agreements
which shall be subject to the applicable provisions of this Plan and to such
other provisions as the Administrator may adopt. No Participant may be granted
incentive stock options (under all incentive stock option plans of the Company
and any Related Entity) which are first exercisable in any calendar year for
stock having an aggregate Fair Market Value (determined as of the date an Option
is granted) that exceed the limitation prescribed by Code section 422(d). The
preceding annual limitation shall not apply with respect to Options that are not
incentive stock options.
ARTICLE V.
STOCK SUBJECT TO PLAN
Section 5.01 Shares Issued. Upon the award of shares of Common
Stock pursuant to a Stock Award, the Company may issue shares of Common Stock
from its authorized but unissued Common Stock. Upon the exercise of any Option,
the Company may deliver to the Participant (or the Participant's broker if the
Participant so directs), shares of Common Stock from its authorized but unissued
Common Stock.
Section 5.02 Aggregate Limit. The maximum aggregate number of
shares of Common Stock that may be issued under this Plan shall not exceed
500,000 shares.
Section 5.03 Reallocation of Shares. If an Option is
terminated, in whole or in part, for any reason other than its exercise, or if a
Stock Award is forfeited in whole or in part, the number of shares of Common
Stock allocated to the Option or Stock Award or portion thereof may be
reallocated to other Options and Stock Awards to be granted under this Plan.
<PAGE>
ARTICLE VI.
OPTION EXERCISE PRICE
The price per share for Common Stock purchased on the exercise
of an Option shall be determined by the Administrator on the date of grant;
provided, however, that the price per share for Common Stock purchased on the
exercise of an Option that is an incentive stock option shall not be less than
the Fair Market Value on the date the Option is granted. Notwithstanding the
foregoing, the price per share for Common Stock purchased on the exercise of an
Option granted to any person then owning more than ten percent (10%) of the
total combined voting power of all classes of shares of the Company, or of its
parent or subsidiary corporation, shall be one hundred ten percent (110%) of the
Fair Market Value of the Common Stock at the time of grant of the Option.
ARTICLE VII.
EXERCISE OF OPTIONS
Section 7.0 Maximum Option Period. The maximum period in
which an Option may be exercised shall be determined by the Administrator on the
date of grant, except that no Option that is an incentive stock option shall be
exercisable after the expiration of ten years from the date such Option was
granted. Notwithstanding the foregoing, any Option granted to any person then
owning more than ten percent (10%) of the total combined voting power of all
classes of shares of the Company, or of its parent or subsidiary corporation,
must be exercised within five years from the date of the grant thereof. The
terms of any Option that is an incentive stock option may provide that it is
exercisable for a period less than such maximum period.
Section 7.02 Nontransferability. Any Option granted under this
Plan shall be nontransferable except by will or by the laws of descent and
distribution. In the event of any such transfer, the Option must be transferred
to the same person or person(s). During the lifetime of the Participant to whom
the Option is granted, the Option may be exercised only by the Participant. No
right or interest of a Participant in any Option shall be liable for, or subject
to, any lien, obligation, or liability of such Participant.
Section 7.03 Employee Status. For purposes of determining the
applicability of Section 422 of the Code (relating to incentive stock options),
or in the event that the terms of any Option provide that it may be exercised
only during employment or within a specified period of time after termination of
employment, the Administrator may decide to what extent leaves of absence for
governmental or military service, illness, temporary disability, or other
reasons shall not be deemed interruptions of continuous employment.
<PAGE>
Section 7.04 Change in Control. Section 7.01 to the contrary
notwithstanding, after a Control Change Date, each Option shall be fully
exercisable thereafter in accordance with the terms of the applicable Agreement.
If not sooner exercisable under the terms of the applicable Agreement, a
Participant's Option shall be fully exercisable (i) as of his or her termination
of employment if his or her employment terminates after a Control Change Date
and he or she is terminated without cause or following his refusal to move to
another location or (ii) as of the date that there is a material reduction in
the Participant's compensation or duties if such reduction occurs after a
Control Change Date. For purposes of the preceding sentence, the term "cause"
means a willful neglect of responsibilities to the Company or a Related Entity.
ARTICLE VIII.
METHOD OF EXERCISE
Section 8.01 Exercise. Subject to the provisions of Articles
VII and XI, an Option may be exercised in whole at any time or in part from time
to time at such times and in compliance with such requirements as the
Administrator shall determine. An Option granted under this Plan may be
exercised with respect to any number of whole shares less than the full number
for which the Option could be exercised. A partial exercise of an Option shall
not affect the right to exercise the Option from time to time in accordance with
this Plan and the applicable Agreement with respect to the remaining shares
subject to the Option.
Section 8.02 Payment. Unless otherwise provided by the
Agreement, payment of the Option exercise price shall be made in cash or a cash
equivalent acceptable to the Administrator. If the Agreement provides, or in the
discretion of the Board, payment of all or part of the Option price may be made
by surrendering shares of Common Stock to the Company, including by allowing the
Company to deduct from the number of shares of Common Stock deliverable upon
exercise of the Option, a number of such shares which has an aggregate Fair
Market Value, determined as of the day preceding the date of exercise of the
Option, equal to the aggregate Option exercise price. If Common Stock is used to
pay all or part of the Option price, the shares surrendered must have a Fair
Market Value (determined as of the day preceding the date of exercise) that is
not less than such price or part thereof.
Section 8.03 Installment Payment. If the Agreement provides,
and if the Participant is employed by the Company on the date the Option is
exercised, payment of all or part of the Option price may be made in
installments. In that event the Company may, if so determined by the
Administrator, lend the Participant an amount equal to not more than ninety
percent (90%) of the Option price of the shares acquired by the exercise of the
Option. This amount shall be evidenced by the Participant's promissory note and
<PAGE>
shall be payable in not more than five equal annual installments, unless the
amount of the loan exceeds the maximum loan value for the shares purchased,
which value shall be established from time to time by regulations of the Board
of Governors of the Federal Reserve System. In that event, the note shall be
payable in equal quarterly installments over a period of time not to exceed five
years.
The Participant shall pay interest on the unpaid balance at
the minimum rate necessary to avoid imputed interest or original issue discount
under the Code. All shares acquired with cash borrowed from the Company shall be
pledged to the Company as security for the repayment thereof. In the discretion
of the Administrator, shares of stock may be released from such pledge
proportionately as payments on the note (together with interest) are made,
provided the release of such shares complies with the regulations of the Federal
Reserve System relating to securities credit transactions then applicable. While
shares are so pledged, and so long as there has been no default in the
installment payments, such shares shall remain registered in the name of the
Participant, and he shall have the right to vote such shares and to receive all
dividends thereon.
Section 8.04 Shareholder Rights. No Participant shall have any
rights as a stockholder with respect to shares subject to an Option until the
date of exercise of such Option.
ARTICLE IX.
STOCK AWARDS
Section 9.01 Awards. In accordance with the provisions of
Article IV, the Administrator will designate each individual to whom a Stock
Award is to be made and will specify the number of shares of Common Stock
covered by such awards.
Section 9.02 Vesting. The Administrator, on the date of the
award, may prescribe that a Participant's rights in the Stock Award shall be
forfeitable or otherwise restricted for a period of time set forth in the
Agreement. By way of example and not of limitation, the restrictions may
postpone transferability of the shares or may provide that the shares will be
forfeited if the Participant separates from the service of the Company and its
Related Entities before the expiration of a stated term or if the Company and
its Related Entities or the Participant fails to achieve stated objectives.
Section 9.03 Change in Control. Section 9.02 to the contrary
notwithstanding, after a Control Change Date, each Stock Award will become
transferable and nonforfeitable in accordance with the terms of the applicable
Agreement. If not sooner transferable and nonforfeitable under the terms of the
applicable Agreement, a Participant's interest in a Stock Award shall be
transferable and nonforfeitable (i) as of his termination of
<PAGE>
employment if his employment terminates after a Control Change Date and he is
terminated without cause or following his refusal to move to another location or
(ii) as of the date that there is a material reduction in the Participant's
compensation or duties if such reduction occurs after a Control Change Date. For
purposes of the preceding sentence, the term "cause" means a willful neglect of
responsibilities to the Company or a Related Entity.
Section 9.04 Stockholder Rights. If all or any portion of a
Stock Award is forfeitable pursuant to the Agreement, at all times prior to a
forfeiture thereof, a Participant will have all rights of a Stockholder with
respect to forfeitable shares of the Stock Award (the "Forfeitable Shares"),
including the right to receive dividends and vote the Forfeitable Shares;
provided, however, that (i) a Participant may not sell, transfer, pledge,
exchange, hypothecate, or otherwise dispose of the Forfeitable Shares, (ii) the
Company shall retain custody of the certificates evidencing the Forfeitable
Shares, and (iii) the Participant will deliver to the Company a stock power,
endorsed in blank, with respect to the Forfeitable Shares. The limitations set
forth in the preceding sentence shall not apply after the Forfeitable Shares are
no longer forfeitable.
ARTICLE X.
ADJUSTMENT UPON CHANGE IN COMMON STOCK
The maximum number of shares as to which Options that are
incentive stock options may be granted under this Plan shall be proportionately
adjusted, and the terms of outstanding Stock Awards and Options shall be
adjusted, as the Board shall determine to be equitably required in the event
that (a) the Company (i) effects one or more stock dividends, stock split-ups,
subdivisions or consolidations of shares or (ii) engages in a transaction to
which Section 424 of the Code applies or (b) there occurs any other event which,
in the judgment of the Board necessitates such action. Any determination made
under this Article X by the Board shall be final and conclusive.
The issuance by the Company of shares of stock of any class,
or securities convertible into shares of stock of any class, for cash or
property, or for labor or services, either upon direct sale or upon the exercise
of rights or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, outstanding Stock Awards or Options.
The Board may make Stock Awards and may grant Options in
substitution for performance shares, phantom shares, stock awards, stock
options, stock appreciation rights, or similar awards held by an individual who
becomes an employee of the Company or a Related Entity in connection with a
transaction described in clause (ii) of the first paragraph of this Article X.
Notwithstanding any provision of the Plan (other than the limitation of
<PAGE>
Article V), the terms of such substituted Stock Award(s) or Option grant(s)
shall be as the Board, in its discretion, determines is appropriate.
ARTICLE XI.
COMPLIANCE WITH LAW AND
APPROVAL OF REGULATORY BODIES
No Option shall be exercisable, no Common Stock shall be
issued, no certificates for shares of Common Stock shall be delivered, and no
payment shall be made under this Plan except in compliance with all applicable
federal and state laws and regulations (including, without limitation,
withholding tax requirements), any listing agreement to which the Company is a
party, and the rules of all domestic stock exchanges on which the Company's
shares may be listed. The Company shall have the right to rely on an opinion of
its counsel as to such compliance. Any share certificate issued to evidence
Common Stock when a Stock Award is granted or for which an Option is exercised
may bear such legends and statements as the Administrator may deem advisable to
assure compliance with federal and state laws and regulations. No Common Stock
shall be issued, no certificate for shares shall be delivered and no payment
shall be made under this Plan until the Company has obtained such consent or
approval as the Administrator may deem advisable from regulatory bodies having
jurisdiction over such matters.
ARTICLE XII.
GENERAL PROVISIONS
Section 12.01 Effect on Employment. Neither the adoption of
this Plan, its operation, nor any documents describing or referring to this Plan
(or any part thereof) shall confer upon any individual any right to continue in
the employ or service of the Company or a Related Entity or in any way affect
any right and power of the Company or a Related Entity to terminate the
employment or service of any individual at any time with or without assigning a
reason therefor.
Section 12.02 Disposition of Stock. A Participant shall notify
the Administrator of any sale or other disposition of Common Stock acquired
pursuant to an Option that was an incentive stock option if such sale or
disposition occurs (i) within two years of the grant of an Option or (ii) within
one year of the issuance of the Common Stock to the Participant. Such notice
shall be in writing and directed to the Secretary of the Company.
<PAGE>
Section 12.03 Rules of Construction. Headings are given to the
articles and sections of this Plan solely as a convenience to facilitate
reference. The reference to any statute, regulation, or other provision of law
shall be construed to refer to any amendment to or successor of such provision
of law.
Section 12.04 Employee Status. In the event that the terms of
any Stock Award or the grant of any Option provide that shares may be issued or
become transferable and nonforfeitable thereunder only after completion of a
specified period of employment, the Administrator may decide in each case to
what extent leaves of absence for governmental or military service, illness,
temporary disability, or other reasons shall not be deemed interruptions of
continuous employment.
Section 12.05 Limitation on Awards. Notwithstanding any other
provision of the Plan, if any award under this Plan, either alone or together
with payments that a Participant has the right to receive from the Company or a
Related Entity, would constitute a "parachute payment" (as defined in section
280G of the Code), all such payments shall be reduced to the largest amount that
will result in no portion being subject to the excise tax imposed by section
4999 of the Code.
ARTICLE XIII.
AMENDMENT
The Board may amend or terminate this Plan from time to time;
provided, however, that no amendment shall, without a Participant's consent,
adversely affect any rights of such Participant under any Stock Award or Option
outstanding at the time such amendment is made.
ARTICLE XIV.
DURATION OF PLAN
No Stock Award or Option may be granted under this Plan more
than ten years after the date the Plan is adopted by the Board, or the date the
Plan is approved by the Stockholder, whichever is earlier.
<PAGE>
ARTICLE XV.
EFFECTIVE DATE OF PLAN
Stock Awards and Options may be granted under this Plan upon
its adoption by the Board, provided that no incentive stock option will continue
to be effective unless this Plan is approved by a majority of the votes entitled
to be cast by the Stockholders, voting either in person or by proxy, at a duly
held Stockholders' meeting or by the consent of Stockholders owning more than
fifty percent (50%) of shares of the Common Stock within twelve months of such
adoption.
EXHIBIT 5
August 10, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Cadapult Graphic Systems, Inc.
Registration Statement on Form S-8
1998 Incentive Plan
Dear Sirs:
As counsel to Cadapult Graphic Systems, Inc., a Delaware corporation
(the "Company"), we have been requested to render this opinion for filing as
Exhibit 5 to the Company's Registration Statement on Form S-8 (the "Registration
Statement"). Each term used herein that is defined in the Registration Statement
and not otherwise defined herein, shall have the meaning specified in the
Registration Statement.
The Registration Statement covers 500,000 shares of the Registrant's
Common Stock, par value $.001 per share, which are issuable under the Company's
1998 Incentive Plan upon the grant of Stock Awards and the exercise of Options.
We have examined the originals or photocopies or certified copies of
such records of the Company, certificates of officers of the Company and other
documents as we have deemed necessary or appropriate for the purpose of this
opinion. In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to originals of all documents submitted to us as certified copies or photocopies
and the authenticity of the originals of such latter documents.
Based on our examination mentioned above, and such other investigations
as we have deemed necessary, we are of the opinion that the shares of Common
Stock which are issuable under the Company's 1998 Incentive Plan upon the grant
of Stock Awards and the exercise of Options, will be, when issued and earned or
paid for in the manner contemplated by the 1998 Incentive Plan, legally and
validly issued, fully paid and nonassessable.
<PAGE>
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. The opinion expressed in this letter is rendered as of
the date hereof. We assume no obligation to update or supplement this opinion to
reflect any facts or circumstances which may hereinafter come to court decisions
which may hereafter occur. We do not render any opinion with respect to any
matters other than those expressly set forth above.
Very truly yours,
Fischbein Badillo Wagner Harding
by /s/ Dan Brecher, Counsel
Fischbein Badillo Wagner Harding
EXHIBIT 23.1
July 31, 1998
Seafoods Plus, Ltd.
co/ Fischbein,Badillo,Wagner,Harding
909 Third Avenue
New York, NY 10022
To Whom It May Concern:
Pursuant to a Form S-8 Registration Statement to be filed with the
Securities and Exchange Commission, please be advised that this letter
constitutes our consent to the use of our report on the financial statements of
Seafoods Plus, Ltd. for the years ended December 31, 1997 and 1996, with our
report thereon dated February 27, 1998.
Sincerely,
/s/ Mantyla, McReyonlds And Associates
MANTYLA, MCREYONLDS AND ASSOCIATES
KGM:km
