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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIOSHIELD TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Georgia 58-2181628
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4405 International Blvd.
Suite B-109
Norcross, GA 30093
BioShield Technologies, Inc. 1997 Stock Incentive Plan
(Full Title of the Plan)
Timothy C. Moses, 4405 International Blvd., Suite B-109, Norcross, GA 30093
(Name and address of agent for service)
Copies of Communications to:
Timothy C. Moses
4405 International Blvd.
Suite B-109
Norcross, GA 30093
(770) 925-3432
CALCULATION OF REGISTRATION FEE
1997 Stock Incentive Plan
<TABLE>
<CAPTION>
Title of
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
<S> <C> <C> <C> <C> <C>
Common Stock
(no par value) 1,200,000 Shares (1) N/A 20,700,000 $5,754.60
</TABLE>
================================================================================
(1) Represents 1,200,000 shares of Common Stock, authorized for issuance
under the BioShield Technologies, Inc. (the "Company") Amended and Restated 1997
Stock Incentive Plan (the "Stock Option Plan"). This Registration Statement also
covers such indeterminable additional number of shares as may be issuable under
the Stock Option Plan by reason of adjustments in the number of shares covered
thereby as described in the Prospectus.
(2) The price of shares of Common Stock is estimated in accordance with
Rule 457(c), solely for purposes of calculating the registration fee by
reference as the average high and low sales prices of the Common Stock on the
Nasdaq Stock Market on May 20, 1999, which was 17-1/4 per share.
<PAGE> 2
Pursuant to Rule 416(a) of the General Rules and Regulations under the
Securities Act of 1933, this Registration Statement shall cover such additional
securities as may be offered or issued to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company's financial statements for the year ended June 30, 1998, which has
been filed by the Company in its final prospectus filed pursuant to Rule 424(b)
with the Commission on September 30, 1998 (File No. 333-57767), is incorporated
herein by reference. All other reports filed by the Company 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 fiscal year covered by the foregoing financial
statements are incorporated herein by reference. All other reports or documents
filed by the Company pursuant to the requirements of 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 termination of the offering of the securities offered
hereby shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such reports or documents. Any statements
contained in a document incorporated herein by reference shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any subsequently filed document which also is
incorporated herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
The financial statements of BioShield Technologies, Inc. and
subsidiaries as of June 30, 1998 and for each of the years in the three-year
period ended June 30, 1998, have been incorporated in this Registration
Statement by reference in reliance upon the report, also incorporated in this
Registration Statement by reference, of Grant Thornton LLP, independent
certified public accountants, and upon the authority of said firm as experts in
accounting and auditing.
The description of the Company's Common Stock, the class of securities
offered pursuant to this Registration Statement, is contained in the Company's
Registration Statement filed pursuant to Section 12 of the Exchange Act, and is
incorporated herein by reference, including any subsequent amendments or reports
filed for the purpose of updating that description.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
The Company's Bylaws provide for the Company to indemnify each director
and officer of the Company against liabilities imposed upon him (including
reasonable amounts paid in settlement) and expenses incurred by him in
connection with any claim made against him or any action, suit or proceeding to
which he may be a party by reason of his being or having been a director or
officer of the Company. The Company has also entered into Indemnification
Agreements with each officer and director pursuant to which the Company will, in
general, indemnify such persons to the maximum extent permitted by the Company's
Bylaws and the laws of the State of Georgia against any expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement incurred in
connection with any actual or threatened action or proceeding to which such
director or officer is made or threatened to be made a party by reason of the
fact that such person is or was a director or officer of the Company. The
foregoing provisions may reduce the likelihood of derivative litigation against
directors and may discourage or deter shareholders or management from suing
directors for breaches of their duty of care, even though such an action, if
successful, might otherwise benefit the Company and its shareholders.
Insofar as indemnification of liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, or persons controlling the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is
therefore unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue. However, these provisions may reduce the likelihood of derivative
litigation against directors and may discourage stockholders from bringing a
lawsuit against directors for a breach of their fiduciary duties.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Reference is made to the Exhibit Index.
Item 9. Undertakings
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:
<PAGE> 4
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement; provided,
however, that paragraphs (1)(i) and (1) (ii) do not apply if the registration
statement is on Form S-3, Form S-8, or Form F-3, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 15
(d) of Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or by the registrant or expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Atlanta, State of Georgia, on the 19th day of May,
1999.
Bioshield Technologies, Inc.
By /s/ Timothy C. Moses
-----------------------------------
Timothy C. Moses, President and
Chief Executive Officer
BIOSHIELD TECHNOLOGIES, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy C. Moses and Daniel E. Swaye, and
each of them, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her 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 and any other regulatory
authority, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing required and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his or her 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 below on May 19, 1999, by the following
persons in the capacities indicated.
By /s/ Timothy C. Moses
-----------------------------------
Timothy C. Moses, President and
Chief Executive Officer
/s/ Timothy C. Moses /s/ Michel Azran
-------------------------- ----------------------
Timothy C. Moses, Director Michel Azran, Director
/s/ Jacques Elfersy /s/ Tim Garner
------------------------- ----------------------
Jacques Elfersy, Director Tim Garner, Director
<PAGE> 6
EXHIBIT INDEX
The following exhibits are filed as a part of the Registration
Statement:
Exhibit 4 BioShield Technologies, Inc. 1997 Stock Incentive Plan
Exhibit 5 Opinion Sims Moss Kline & Davis LLP
Exhibit 23.1 Consent of Grant Thornton LLP
Exhibit 23.2 Consent of Sims Moss Kline & Davis LLP-included in Exhibit 5
Exhibit 24 Power of Attorney (included on signature page, herein)
<PAGE> 1
Exhibit 4
BIOSHIELD TECHNOLOGIES, INC.
AMENDED AND RESTATED
1997 STOCK INCENTIVE PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 1: DEFINITIONS 1
1.1 Definitions 1
SECTION 2: THE STOCK INCENTIVE PLAN 3
2.1 Purpose of the Plan 3
2.2 Stock Subject to the Plan 3
2.3 Administration of the Plan 3
2.4 Eligibility and Limits 4
SECTION 3: TERMS OF STOCK INCENTIVES 4
3.1 Terms and Conditions of All Stock Incentives 4
3.2 Terms and Conditions of Options 5
(a) Option Price 5
(b) Option Term 5
(c) Payment 5
(d) Conditions to the Exercise of an Option 6
(e) Termination of Incentive Stock Option 6
(f) Special Provisions for Certain Substitute Options 6
3.3 Omitted 7
3.4 Omitted 7
3.5 Omitted 7
3.6 Omitted 7
3.7 Omitted 7
3.8 Treatment of Awards Upon Termination of Employment 7
SECTION 4: RESTRICTIONS ON STOCK 7
4.1 Escrow of Shares. 7
4.2 Restrictions on Transfer 8
SECTION 5: GENERAL PROVISIONS 8
5.1 Withholding 8
5.2 Changes in Capitalization; Merger; Liquidation 8
5.3 Cash Awards 9
5.4 Compliance with Code 9
5.5 Right to Terminate Employment 9
5.6 Non-alienation of Benefits 9
</TABLE>
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<TABLE>
<S> <C> <C>
5.7 Restrictions on Delivery and Sale of Shares; Legends 10
5.8 Listing and Legal Compliance 10
5.9 Termination and Amendment of the Plan 10
5.10 Stockholder Approval 10
5.11 Choice of Law 10
5.12 Effective Date of Plan 11
</TABLE>
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BIOSHIELD TECHNOLOGIES, INC.
AMENDED AND RESTATED
1997 STOCK INCENTIVE PLAN
SECTION 1: DEFINITIONS
1.1. DEFINITIONS. Whenever used herein, the masculine pronoun will be
deemed to include the feminine, and the singular to include the plural, unless
the context clearly indicates otherwise, and the following capitalized words and
phrases are used herein with the meaning thereafter ascribed:
(a) "Affiliate" means:
(1) an entity that directly or through one or more
intermediaries is controlled by the Company, and
(2) any entity in which the Company has a significant
equity interest, as determined by the Company.
(b) "Board of Directors" means the board of directors of the
Company.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Committee" means the committee appointed by the Board of
Directors to administer the Plan. The Board of Directors shall consider the
advisability of whether the members of the Committee shall consist solely of at
least two members of the Board of Directors who are both "outside directors" as
defined in Treas. Reg. 1.162-27(e) as promulgated by the Internal Revenue
Service and "non-employee directors" as defined in Rule 16b-3(b)(3) as
promulgated under the Exchange Act.
(e) "Company" means BioShield Technologies, Inc., a Georgia
corporation.
(f) "Disability" has the same meaning as provided in the
long-term disability plan or policy maintained or, if applicable, most recently
maintained, by the Company or, if applicable, any Affiliate of the Company for
the Participant. If no long-term disability plan or policy was ever maintained
on behalf of the Participant or, if the determination of Disability relates to
an Incentive Stock Option, Disability means that condition described in Code
Section 22(e)(3), as amended from time to time. In the event of a dispute, the
determination of Disability will be made by the Committee and will be supported
by advice of a physician competent in the area to which such Disability relates.
(g) Omitted
<PAGE> 4
(h) "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
(i) "Fair Market Value" with regard to a date means the
closing price at which Stock was sold on the last trading date prior to that
date as reported by the Nasdaq Stock Market (or, if applicable, as reported by a
national securities exchange selected by the Committee on which the shares of
Stock are then actively traded) and published in The Wall Street Journal;
provided that, for purposes of granting awards other than incentive stock
options, Fair Market Value of the shares of Stock may be determined by the
Committee by reference to the average market value determined over a period
certain or as of specified dates, to a tender offer price for the shares of
Stock (if settlement of an award is triggered by such an event) or to any other
reasonable measure of fair market value. If an Over 10% Owner is granted
incentive stock options hereunder, Fair Market Value shall be not less than 110%
of Fair Market Value.
(j) "Option" means a non-qualified stock option or an
incentive stock option.
(k) "Over 10% Owner" means an individual who at the time an
Incentive Stock Option is granted owns Stock possessing more than 10% of the
total combined voting power of the Company or one of its Subsidiaries,
determined by applying the attribution rules of Code Section 424 (d).
(l) "Participant" means an individual who receives a Stock
Incentive hereunder.
(m) "Plan" means the BioShield Technologies, Inc. 1997 Stock
Incentive Plan.
(n) "Stock" means the Company's common stock.
(o) "Stock Award" means a stock award described in Section
3.4.
(p) "Stock Incentive Agreement" means an agreement between the
Company and a Participant or other documentation evidencing an award of a Stock
Incentive.
(q) "Stock Incentive Program" means a written program
established by the committee, pursuant to which Stock Incentives are awarded
under the Plan under uniform terms, conditions and restrictions set forth in
such written program.
(r) "Stock Incentives" means, collectively, incentive stock
options, non-qualified stock options and Stock Awards.
(s) "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company if,
with respect to Incentive Stock Options, at the time of the granting of the
Option, each of the corporations other than the last corporation in the unbroken
chain owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in the chain.
<PAGE> 5
(t) "Termination of Employment" means the termination of the
employee-employer relationship between a Participant and the Company and its
Affiliates, regardless of whether severance or similar payments are made to the
Participant for any reason, including, but not by way of limitation, a
termination by resignation, discharge, death, Disability or retirement. The
committee will, in its absolute discretion, determine the effect of all matters
and questions relating to a Termination of Employment, including, but not by way
of limitation, the question of whether a leave of absence constitutes a
Termination of Employment.
SECTION 2: THE STOCK INCENTIVE PLAN
2.1. PURPOSE OF THE PLAN. The Plan is intended to: (a) provide
incentive to officers and key employees of the Company and its Affiliates to
stimulate their efforts toward the continued success of the Company and to
operate and manage the business in a manner that will provide for the long-term
growth and profitability of the Company; (b) encourage stock ownership by
officers and key employees by providing them with a means to acquire a
proprietary interest in the Company, acquire shares of Stock, or to receive
compensation which is based upon appreciation in the value of Stock; and (c)
provide a means of obtaining, rewarding and retaining key personnel and
consultants.
2.2. STOCK SUBJECT TO THE PLAN. Subject to adjustment in accordance
with Section 5.2, 1,200,000 shares of Stock (the "Maximum Plan Shares") are
hereby reserved exclusively for issuance pursuant to Stock Incentives. At no
time may the Company have outstanding under the Plan, Stock Incentives subject
to Section 16 of the Exchange Act and shares of Stock issued in respect of Stock
Incentives under the Plan in excess of the Maximum Plan Shares. The shares of
Stock attributable to the nonvested, unpaid, unexercised, unconverted or
otherwise unsettled portion of any Stock Incentive that is forfeited or canceled
or expires or terminates for any reason without becoming vested, paid,
exercised, converted or otherwise settled in full will again be available for
purposes of the Plan.
2.3. ADMINISTRATION OF THE PLAN. The Plan is administered by the
Committee. The Committee has full authority in its discretion to determine the
officers and key employees of the Company or its Affiliates to whom Stock
Incentives will be granted and the terms and provisions of Stock Incentives,
subject to the Plan. Subject to the provisions of the Plan, the Committee has
full and conclusive authority to interpret the Plan; to prescribe, amend and
rescind rules and regulations relating to the Plan; to determine the terms and
provisions of the respective Stock Incentive Agreements and to make all other
determinations necessary or advisable for the proper administration of the Plan.
The Committee's determinations under the Plan need not be uniform and may be
made by it selectively among persons who receive, or are eligible to receive,
awards under the Plan (whether or not such persons are similarly situated). The
Committee's decisions are final and binding on all Participants.
2.4. ELIGIBILITY AND LIMITS. Stock Incentives may be granted only to
officers, and key employees and consultants of the Company, or any Affiliate of
the Company; provided, however, that an incentive stock option may only be
granted to an employee of the Company or any Subsidiary. In the case of
incentive stock options, the aggregate Fair Market Value (determined as at the
date an incentive stock option is granted) of stock with respect to which stock
options intended
<PAGE> 6
to meet the requirements of Code Section 422 become exercisable for the first
time by an individual during any calendar year under all plans of the Company
and its Subsidiaries may not exceed $100,000; provided further, that if the
limitation is exceeded, the incentive stock option(s) which cause the limitation
to be exceeded will be treated as non-qualified stock option(s).
SECTION 3: TERMS OF STOCK INCENTIVES
3.1. TERMS AND CONDITIONS OF ALL STOCK INCENTIVES.
(a) The number of shares of Stock as to which a Stock
Incentive may be granted will be determined by the Committee in its sole
discretion, subject to the provisions of Section 2.2 as to the total number of
shares available for grants under the Plan.
(b) Each Stock Incentive will either be evidenced by a Stock
Incentive Agreement in such form and containing such terms, conditions and
restrictions as the Committee may determine to be appropriate, or be made
subject to the terms of a Stock Incentive Program, containing such terms,
conditions and restrictions as the Committee may determine to be appropriate.
Each Stock Incentive Agreement or Stock Incentive Program is subject to the
terms of the Plan and any provisions contained in the Stock Incentive Agreement
or Stock Incentive Program that are inconsistent with the Plan are null and
void.
(c) The date a Stock Incentive is granted will be the date on
which the Committee has approved the terms and conditions of the Stock Incentive
and has determined the recipient of the Stock Incentive and the number of shares
covered by the Stock Incentive, and has taken all such other actions necessary
to complete the grant of the Stock Incentive.
(d) Any Stock Incentive may be granted in connection with all
or any portion of a previously or contemporaneously granted Stock Incentive.
Exercise or vesting of a Stock Incentive granted in connection with another
Stock Incentive may result in a pro rata surrender or cancellation of any
related Stock Incentive, as specified in the applicable Stock Incentive
Agreement or Stock Incentive Program.
(e) Stock Incentives are not transferable or assignable except
by will or by the laws of descent and distribution or for estate planning
purposes (in the case only of non-qualified options upon prior Board approval)
and are exercisable, during the Participant's lifetime, only by the Participant;
or in the event of the Disability of the Participant, by the legal
representative of the Participant; or in the event of death of the Participant,
by the legal representative of the Participant's estate or if no legal
representative has been appointed, by the successor in interest determined under
the Participant's will.
3.2. TERMS AND CONDITIONS OF OPTIONS. Each Option granted under the
Plan must be evidenced by a Stock Incentive Agreement. At the time any Option is
granted, the Committee will determine whether the Option is to be an incentive
stock option described in Code Section 422 or a non-qualified stock option, and
the Option must be clearly identified as to its status as an incentive stock
option or a non-qualified stock option. Incentive stock options may only be
granted to
<PAGE> 7
employees of the Company or any Subsidiary. At the time any incentive stock
option granted under the Plan is exercised, the Company will be entitled to
legend the certificates representing the shares of Stock purchased pursuant to
the Option to clearly identify them as representing the shares purchased upon
the exercise of an incentive stock option. An incentive stock option may only be
granted within ten (10) years from the earlier of the date the Plan is adopted
or approved by the Company's stockholders.
(A) OPTION PRICE. Subject to adjustment in accordance with
Section 5.2 and the other provisions of this Section 3.2, the exercise price
(the "Exercise Price") per share of Stock purchasable under any Option must be
as set forth in the applicable Stock Incentive Agreement, but in no event may it
be less than the Fair Market Value on the date the Option is granted or 110% of
Fair Market Value in the case of an Over 10% Owner. The Exercise Price of an
Option may not be amended or modified after the grant of the Option, and an
Option may not be surrendered in consideration of or exchanged for a grant of a
new Option having an Exercise Price below that of the Option which was
surrendered or exchanged.
(B) OPTION TERM. Any incentive stock option is not exercisable
after the expiration of ten (10) years after the date the Option is granted. For
an Over 10% Owner, the option is only exercisable for a period of five years
from the date of grant. The term of any non-qualified Stock Option must be as
specified in the applicable Stock Incentive Agreement.
(C) PAYMENT. Payment for all shares of Stock purchased
pursuant to exercise of an Option will be made in any form or manner authorized
by the Committee in the Stock Incentive Agreement or by amendment thereto,
including, but not limited to, cash or, if the Stock Incentive Agreement
provides:
(i) by delivery to the Company of a number of
shares of Stock which have been owned by the holder for at least six (6) months
prior to the date of exercise having an aggregate Fair Market Value of not less
than the product of the Exercise Price multiplied by the number of shares the
Participant intends to purchase upon exercise of the Option on the date of
delivery;
(ii) in a cashless exercise through a broker; or
(iii) by having a number of shares of Stock
withheld, the Fair Market Value of which as of the date of exercise is
sufficient to satisfy the Exercise Price. In its discretion, the Committee also
may authorize (at the time an Option is granted or thereafter) Company financing
to assist the Participant as to payment of the Exercise Price on such terms as
may be offered by the Committee in its discretion. Payment must be made at the
time that the Option or any part thereof is exercised, and no shares may be
issued or delivered upon exercise of an option until full payment has been made
by the Participant. The holder of an Option, as such, has none of the rights of
a stockholder.
(D) CONDITIONS TO THE EXERCISE OF AN OPTION. Each Option
granted under the Plan is exercisable by whom, at such time or times, or upon
the occurrence of such event or events, and in such amounts, as the Committee
specifies in the Stock Incentive Agreement; provided, however, that subsequent
to the grant of an Option, the Committee, at any time before complete
termination
<PAGE> 8
of such Option, may accelerate the time or times at which such Option may be
exercised in whole or in part, including, without limitation, upon a Change in
Control and may permit the Participant or any other designated person to
exercise the Option, or any portion thereof, for all or part of the remaining
Option term, notwithstanding any provision of the Stock Incentive Agreement to
the contrary.
(E) TERMINATION OF INCENTIVE STOCK OPTION. With respect to an
incentive stock option, in the event of termination of employment of a
Participant, the Option or portion thereof held by the Participant which is
unexercised will expire, terminate, and become unexercisable no sooner than 30
days and no later than the expiration of three (3) months after the date of
termination of employment; provided, however, that in the case of a holder whose
termination of employment is due to death or Disability, one (1) year will be
substituted for such three (3) month period; provided further, that such time
limits may be exceeded by the Committee under the terms of the grant, in which
case, the incentive stock option will be a nonqualified option if it is
exercised after the time limits that would otherwise apply. For purposes of this
Subsection (e), termination of employment of the Participant will not be deemed
to have occurred if the Participant is employed by another corporation (or a
parent or subsidiary corporation of such other corporation) which has assumed
the incentive stock option of the Participant in a transaction to which Code
Section 424(a) is applicable.
(F) SPECIAL PROVISIONS FOR CERTAIN SUBSTITUTE OPTIONS.
Notwithstanding anything to the contrary in this Section 3.2, any Option issued
in substitution for an option previously issued by another entity, which
substitution occurs in connection with a transaction to which Code Section
424(a) is applicable, may provide for an exercise price computed in accordance
with such Code Section and the regulations thereunder and may contain such other
terms and conditions as the Committee may prescribe to cause such substitute
Option to contain as nearly as possible the same terms and conditions (including
the applicable vesting and termination provisions) as those contained in the
previously issued option being replaced thereby.
3.3. [OMITTED]
3.4. [OMITTED]
3.5. [OMITTED]
3.6. [OMITTED]
3.7. [OMITTED]
3.8. TREATMENT OF AWARDS UPON TERMINATION OF EMPLOYMENT. Except as
otherwise provided by Plan Section 3.2(e), any award under this Plan to a
Participant who has experienced a Termination of Employment may be canceled,
accelerated, paid or continued, as provided in the applicable Stock Incentive
Agreement or Stock Incentive Program, or, in the absence of such provision, as
the Committee may determine. The portion of any award exercisable in the event
of continuation or the amount of any payment due under a continued award may be
adjusted by the Committee to reflect the Participant's period of service from
the date of grant through the date of the
<PAGE> 9
Participant's Termination of Employment or such other factors as the Committee
determines are relevant to its decision to continue the award.
SECTION 4: RESTRICTIONS ON STOCK
4.1. ESCROW OF SHARES. Any certificates representing the shares of
Stock issued under the Plan will be issued in the Participant's name, but, if
the applicable Stock Incentive Agreement or Stock Incentive Program so provides,
the shares of Stock will be held by a custodian designated by the Committee (the
"Custodian"). Each applicable Stock Incentive Agreement or Stock Incentive
Program providing for transfer of shares of Stock to the Custodian must appoint
the Custodian as the attorney-in-fact for the Participant for the term specified
in the applicable Stock Incentive Agreement or Stock Incentive Program, with
full power and authority in the Participant's name, place and stead to transfer,
assign and convey to the Company any shares of Stock held by the Custodian for
such Participant, if the Participant forfeits the shares under the terms of the
applicable Stock Incentive Agreement or Stock Incentive Program. During the
period that the Custodian holds the shares subject to this Section, the
Participant is entitled to all rights, except as provided in the applicable
Stock Incentive Agreement or Stock Incentive Program, applicable to shares of
Stock not so held. Any dividends declared on shares of Stock held by the
Custodian must provide in the applicable Stock Incentive Agreement or Stock
Incentive Program, be paid directly to the Participant or, in the alternative,
be retained by the Custodian or by the Company until the expiration of the term
specified in the applicable Stock Incentive Agreement or Stock Incentive Program
and shall then be delivered, together with any proceeds, with the shares of
Stock to the Participant or to the Company, as applicable.
4.2. RESTRICTIONS ON TRANSFER. The Participant does not have the right
to make or permit to exist any disposition of the shares of Stock issued
pursuant to the Plan except as provided in the Plan or the applicable Stock
Incentive Agreement or Stock Incentive Program. Any disposition of the shares of
Stock issued under the Plan by the Participant not made in accordance with the
Plan or the applicable Stock Incentive Agreement or Stock Incentive Program will
be void. The Company will not recognize, or have the duty to recognize, any
disposition not made in accordance with the Plan and the applicable Stock
Incentive Agreement or Stock Incentive Program, and the shares so transferred
will continue to be bound by the Plan and the applicable Stock Incentive
Agreement or Stock Incentive Program.
SECTION 5: GENERAL PROVISIONS
5.1. WITHHOLDING. The Company must deduct from all cash distributions
under the Plan any taxes required to be withheld by federal, state or local
government. Whenever the Company proposes or is required to issue or transfer
shares of Stock under the Plan or upon the vesting of any Stock Award, the
Company has the right to require the recipient to remit to the Company an amount
sufficient to satisfy any federal, state and local withholding tax requirements
prior to the delivery of any certificate or certificates for such shares or the
vesting of such Stock Award. A Participant may pay the withholding tax in cash,
or, if the applicable Stock Incentive Agreement or Stock Incentive Program
provides, a Participant may elect to have the number of shares of Stock he is to
receive reduced by, or with respect to a Stock Award, tender back to the
Company, the smallest number of whole shares of Stock which, when multiplied by
the Fair Market Value of the shares of
<PAGE> 10
Stock determined as of the Tax Date (defined below), is sufficient to satisfy
federal, state and local, if any, withholding taxes arising from exercise or
payment of a Stock Incentive (a "Withholding Election"). A Participant may make
a Withholding Election only if both of the following conditions are met:
(a) The Withholding Election must be made on or prior to the
date on which the amount of tax required to be withheld is determined (the "Tax
Date") by executing and delivering to the Company a properly completed notice of
Withholding Election as prescribed by the Committee; and
(b) Any Withholding Election made will be irrevocable except
on six months advance written notice delivered to the Company; however, the
Committee may in its sole discretion disapprove and give no effect to the
Withholding Election.
5.2. CHANGES IN CAPITALIZATION; MERGER; LIQUIDATION.
(a) The number of shares of Stock reserved for the grant of
Options and Stock Awards; the number of shares of Stock reserved for issuance
upon the exercise or payment, as applicable, of each outstanding Option and upon
vesting or grant, as applicable, of each Stock Award; the Exercise Price of each
outstanding Option and the specified number of shares of Stock to which each
outstanding Option and Stock Award pertains must be proportionately adjusted for
any increase or decrease in the number of issued shares of Stock resulting from
a subdivision or combination of shares or the payment of a stock dividend in
shares of Stock to holders of outstanding shares of Stock or any other increase
or decrease in the number of shares of Stock outstanding effected without
receipt of consideration by the Company.
(b) In the event of a merger, consolidation or other
reorganization of the Company or tender offer for shares of Stock, the Committee
may make such adjustments with respect to awards and take such other action as
it deems necessary or appropriate to reflect such merger, consolidation,
reorganization or tender offer, including, without limitation, the substitution
of new awards, or the adjustment of outstanding awards, the acceleration of
awards, the removal of restrictions on outstanding awards, or the termination of
outstanding awards in exchange for the cash value determined in good faith by
the Committee of the vested portion of the award. Any adjustment pursuant to
this Section 5.2 may provide, in the Committee's discretion, for the elimination
without payment therefor of any fractional shares that might otherwise become
subject to any Stock Incentive, but except as set forth in this Section may not
otherwise diminish the then value of the Stock Incentive.
(c) The existence of the Plan and the Stock Incentives granted
pursuant to the Plan must not affect in any way the right or power of the
Company to make or authorize any adjustment, reclassification, reorganization or
other change in its capital or business structure, any merger or consolidation
of the Company, any issue of debt or equity securities having preferences or
priorities as to the Stock or the rights thereof, the dissolution or liquidation
of the Company, any sale or transfer of all or any part of its business or
assets, or any other corporate act or proceeding.
<PAGE> 11
5.3. CASH AWARDS. The Committee may, at any time and in its discretion,
grant to any holder of a Stock Incentive the right to receive, at such times and
in such amounts as determined by the Committee in its discretion, a cash amount
which is intended to reimburse such person for all or a portion of the federal,
state and local income taxes imposed upon such person as a consequence of the
receipt of the Stock Incentive or the exercise of rights thereunder.
5.4. COMPLIANCE WITH CODE. All incentive stock options to be granted
hereunder are intended to comply with Code Section 422, and all provisions of
the Plan and all incentive stock options granted hereunder must be construed in
such manner as to effectuate that intent.
5.5. RIGHT TO TERMINATE EMPLOYMENT. Nothing in the Plan or in any Stock
Incentive confers upon any Participant the right to continue as an employee or
officer of the Company or any of its Affiliates or affect the right of the
Company or any of its Affiliates to terminate the Participant's employment at
any time.
5.6. NON-ALIENATION OF BENEFITS. Other than as specifically provided
with regard to the death of a Participant, no benefit under the Plan may be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge; and any attempt to do so shall be void. No such
benefit may, prior to receipt by the Participant, be in any manner liable for or
subject to the debts, contracts, liabilities, engagements or torts of the
Participant.
5.7. RESTRICTIONS ON DELIVERY AND SALE OF SHARES; LEGENDS. Each Stock
Incentive is subject to the condition that if at any time the Committee, in its
discretion, shall determine that the listing, registration or qualification of
the shares covered by such Stock Incentive upon any securities exchange or under
any state or federal law is necessary or desirable as a condition of or in
connection with the granting of such Stock Incentive or the purchase or delivery
of shares thereunder, the delivery of any or all shares pursuant to such Stock
Incentive may be withheld unless and until such listing, registration or
qualification shall have been effected. If a registration statement is not in
effect under the Securities Act of 1933 or any applicable state securities laws
with respect to the shares of Stock purchasable or otherwise deliverable under
Stock Incentives then outstanding, the Committee may require, as a condition of
exercise of any Option or as a condition to any other delivery of Stock pursuant
to a Stock Incentive, that the Participant or other recipient of a Stock
Incentive represent, in writing, that the shares received pursuant to the Stock
Incentive are being acquired for investment and not with a view to distribution
and agree that the shares will not be disposed of except pursuant to an
effective registration statement, unless the Company shall have received an
opinion of counsel that such disposition is exempt from such requirement under
the Securities Act of 1933 and any applicable state securities laws. The Company
may include on certificates representing shares delivered pursuant to a Stock
Incentive such legends referring to the foregoing representations or
restrictions or any other applicable restrictions on resale as the Company, in
its discretion, shall deem appropriate.
5.8. LISTING AND LEGAL COMPLIANCE. The Committee may suspend the
exercise or payment of any Stock Incentive so long as it determines that
securities exchange listing or registration or qualification under any
securities laws is required in connection therewith and has not been completed
on terms acceptable to the Committee.
<PAGE> 12
5.9. TERMINATION AND AMENDMENT OF THE PLAN. The Board of Directors at
any time may amend or terminate the Plan without stockholder approval; provided
however, that the Board of Directors may condition any amendment on the approval
of stockholders of the Company if such approval is necessary or advisable with
respect to tax, securities or other applicable laws. No such termination or
amendment without the consent of the holder of a Stock Incentive may adversely
affect the rights of the Participant under such Stock Incentive.
5.10. STOCKHOLDER APPROVAL. The Plan must be submitted to the
stockholders of the Company for their approval within twelve months after an
amendment to the Plan which would increase the total number of shares of Stock
eligible for issuance under the Plan. If stockholder approval is not obtained
within such period, such Stock Issuance will be treated as a non qualified
option.
5.11. CHOICE OF LAW. The laws of the State of Georgia govern the Plan,
to the extent not preempted by federal law, without reference to the principles
of conflict of laws.
5.12. EFFECTIVE DATE OF PLAN. The Plan, as amended and restated hereby,
shall become effective December ___, 1998, the date of its adoption by the Board
of Directors.
BIOSHIELD TECHNOLOGIES, INC.
By: /s/ Timothy C. Moses
--------------------------
Name: Timothy C. Moses
Title: President
ATTEST:
By:
--------------------------------
Title:
[CORPORATE SEAL]
<PAGE> 1
Exhibit 5
May 19, 1999
BioShield Technologies, Inc.
Suite B109
4405 International Boulevard
Norcross, Georgia 30083
Re: Registration Statement on Form S-8 Relating to the BioShield
Technologies, Inc. 1997 Stock Incentive Plan (the "Stock Incentive
Plan")
Gentlemen:
With respect to the Registration Statement on Form S-8 (the "Registration
Statement"), filed by BioShield Technologies, Inc., a Georgia corporation (the
"Company"), with the Securities and Exchange Commission for the purpose of
registering under the Securities Act of 1933, as amended, 1,200,000 shares of
the Company's Common Stock, no par value per share, for issuance pursuant to the
Stock Incentive Plan, we have examined such documents and questions of law we
consider necessary or appropriate for the purpose of giving this opinion. On the
basis of such evaluation, we advise you that in our opinion the 1,200,000 shares
covered by the Registration Statement, upon the exercise of stock options, at
the prices described in the Registration Statement, but not less than the par
value thereof, and upon delivery of such shares and payment therefor in
accordance with the terms stated in the Stock Incentive Plan and the
Registration Statement, will be duly and legally authorized, issued and
outstanding and will be fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or under the rules and regulations of
the Securities and Exchange Commission relating thereto.
Sincerely,
SIMS MOSS KLINE & DAVIS LLP
/s/ Raymond L. Moss
----------------------------
By: Raymond L. Moss, Partner
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
BioShield Technologies, Inc.
Atlanta, Georgia
We have issued our report dated August 5, 1998, accompanying the financial
statements and schedules of BioShield Technologies, Inc. contained in the
Registration Statement and Prospectus on Form SB-2. We hereby consent to the
incorporation by reference of said report in the Registration Statement of
BioShield Technologies, Inc. on Form S-8 dated May 19, 1999.
/s/ Grant Thornton LLP
Atlanta, Georgia
May 19, 1999
