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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
SKINVISIBLE, INC.
(Exact Name of Registrant as Specified in Its Chapter)
Nevada 88-0344219
------ ----------
(State of Incorporation) (I.R.S. Employer Identification No.)
3095 East Patrick Lane, Suite 1
Las Vegas Nevada 89120
----------------------
(Address of Principal Executive Offices)
STOCK OPTION PLAN OF SKINVISIBLE, INC.
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(Full Title of the Plan)
Skinvisible, Inc. , Terry Howlett, President
3095 East Patrick Lane, Suite 1
Las Vegas Nevada 89120
----------------------
(Name and Address of Agent for Service)
(702) 433-7154
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(Telephone Number, including Area Code of Agent for Service)
________________
CALCULATION OF REGISTRATION FEE
=====================================================================
Title of Amount Proposed Proposed Amount
Securities to be Maximum Maximum of
to be Regis- Offering Aggregate Regis-
Registered tered Price Per Offering tration
(1),(2) Share(3) Price(4) fee
- ---------------------------------------------------------------------
Common Stock 1,500,000 $2.19 $3,285,000 $914
$0.001 par Shares
value
=====================================================================
(1) This Registration Statement shall also cover any additional
shares of Common Stock which become issuable under the Stock
Option Plan being registered by reason of any stock dividend,
stock split, re-capitalization or any other similar transaction
effected without the receipt of consideration which results in
an increase in the number of the Registrant's outstanding shares
of Common Stock.
(2) Includes 1,500,000 shares of Common Stock issuable under the
Stock Option Plan.
(3) The Proposed Maximum Offering Price Per Share represents a
weighted average of the following estimates calculated in
accordance with Rule 457(h) of the Securities Act of 1933, as
amended (the "Securities Act of 1933"). With respect to
1,323,500 shares subject to outstanding options under the 1999
Stock Option Plan, the Proposed Maximum Offering Price Per Share
is equal to the weighted average exercise price of $2.085 per
share. With respect to the 176,500 shares of Common Stock
available for future issuance under the 1999 Stock Option Plan
for which the price at which the options to be granted in the
future is not currently determined, the estimated Proposed
Maximum Offering Price Per Share was determined pursuant to Rule
457(c) to be equal to $3.00, the average of the bid and asked
price of the stock as of December 1, 1999 per share.
(4) The Proposed Aggregate Maximum Aggregate Offering Price is
based on the Proposed Maximum Offering Price per Share times the
total number of shares of Common Stock to be registered. The
Proposed Maximum Aggregate Offering Price is estimated solely
for the purposes of calculating the registration fee pursuant to
Rule 457(h)(l) under Securities Act of 1933.
________________
Copies to:
Michael A. Cane, Cane & Company
Suite 1200, 101 Convention Center Drive
Las Vegas, Nevada
(702) 312-6255
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PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual
Information.*
* Information required by Part I to be contained in Section 10(a)
prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, and
Note to Part I of Form S-8.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed by Skinvisible, Inc. (the "Company")
with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(1) The Company's Form 10-SB Registration Statement, as
amended, filed with the Securities and Exchange Commission
pursuant to Section 12(g) of the Securities Exchange Act of
1934 (the "Exchange Act") originally on April 30, 1999 and
as amended on November 8, 1999;
(2) The Company's Quarterly Reports on Form 10-QSB filed with
the Securities and Exchange Commission on August 17, 1999
and November 15, 1999;
(3) All other reports filed by the Company pursuant to Sections
13(a) or 15(d) of the Exchange Act subsequent to the filing
of the Company's Form 10-SB Registration Statement referred
to in (a) above;
(4) The description of the Company's Common Stock which is
contained in the Form 10-SB Registration Statement,
referred to in (a) above, including any amendment or report
filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which de-registers all
securities then remaining unsold, shall be deemed to be incorporated
by reference herein and to be a part of this Registration Statement
from the date of the filing of such reports and documents.
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Item 4. Description of Securities.
The securities to be offered are registered under Section 12 of the
Exchange Act of 1934.
Item 5. Interests of Named Experts and Counsel.
No expert or counsel named in this prospectus as having prepared or
certified any part of it or having given an opinion upon the validity
of the securities being registered or upon other legal matters in
connection with the registration or offering of the common stock was
employed on a contingency basis, or had, or is to receive, in
connection with the offering, a substantial interest, direct or
indirect, in the Company or any of its parents or subsidiaries. Nor
was any such person connected with the Company or any of its parents
or subsidiaries as a promoter, managing or principal underwriter,
voting trustee, director, officer, or employee.
Michael A. Cane of Cane & Company, Independent Counsel, has provided
an opinion on the validity of the Company's common stock.
Item 6. Indemnification of Directors and Officers.
The officers and directors of the Company are indemnified as provided
by the Nevada Revised Statutes (the "NRS") and the Bylaws of the
Company.
Unless specifically limited by a corporation's articles of
incorporation, the NRS automatically provides directors with immunity
from monetary liabilities. The Company's Articles of Incorporation do
not contain any such limiting language. Excepted from that immunity
are:
(i) a willful failure to deal fairly with the corporation or its
shareholders in connection with a matter in which the director
has a material conflict of interest;
(ii) a violation of criminal law unless the director had
reasonable cause to believe that his or her conduct was lawful
or no reasonable cause to believe that his or her conduct was
unlawful;
(iii) a transaction from which the director derived an improper
personal profit; and
(iv) willful misconduct.
The By-laws of the Company provide that the Company will indemnify
its directors and officers to the fullest extent not prohibited by
Nevada law; provided, however, that the Company may modify the extent
of such indemnification by individual contracts with its directors
and officers; and, provided, further, that the Company shall not be
required to indemnify any director or officer in connection with any
proceeding (or part thereof) initiated by such person unless (i) such
indemnification is expressly required to be made by law, (ii) the
proceeding was authorized by the Board of Directors of the Company,
(iii) such indemnification is provided by the Company, in its sole
discretion, pursuant to the powers vested in the Company under Nevada
law or (iv) such indemnification is required to be made pursuant to
the By-laws.
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The By-laws of the Company provide that the Company will advance to
any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason
of the fact that he 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
executive officer of another Company, partnership, joint venture,
trust or other enterprise, prior to the final disposition of the
proceeding, promptly following request therefor, all expenses
incurred by any director or officer in connection with such
proceeding upon receipt of an undertaking by or on behalf of such
person to repay said amounts if it should be determined ultimately
that such person is not entitled to be indemnified under the By-laws
of the Company or otherwise.
The By-laws of the Company provide that no advance shall be made by
the Company to an officer of the Company (except by reason of the
fact that such officer is or was a director of the Company in which
event this paragraph shall not apply) in any action, suit or
proceeding, whether civil, criminal, administrative or investigative,
if a determination is reasonably and promptly made (i) by the Board
of Directors by a majority vote of a quorum consisting of directors
who were not parties to the proceeding, or (ii) if such quorum is not
obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, that the facts known to the decision-making party at the
time such determination is made demonstrate clearly and convincingly
that such person acted in bad faith or in a manner that such person
did not believe to be in or not opposed to the best interests of the
Company.
Item 7. Exemption from Registration Claimed.
The Company relies on the Commission's Rule 701 promulgated under
section 3(b) of the Securities Act of 1933 to exempt the issuance and
exercise of certain of the options issued prior to the Company being
subject to the Securities Exchange Act's periodic reporting
requirements. Options to purchase 9,000 shares of the Company's
common stock were issued and then exercised by three former employees
of the Company at a price of $1.50 per share. Other options that have
been issued under the Company's Stock Option Plan registered hereby
have not, as yet, been exercised.
Item 8. Exhibits.
Exhibit
Number Description of Document
- ------- ---------------------------------------------------------
4.1 Stock Option Plan of Skinvisible, Inc.
5.1 Opinion of Cane & Company, LLC regarding validity of
securities with consent to use.
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
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Item 9. Undertakings.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration:
(1) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(2) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement; and
(3) 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 that paragraphs (a) (1) and (2) 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 herein.
(b) 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.
(c) To remove from registration by means of post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(2) The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of
the Company's annual report pursuant to Section 13(a) or 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 the time shall
be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Company of expenses incurred or paid by the director,
officer or controlling person of the Company in the successful
defense of any action,
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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 the
counsel the matter has been settled by controlling precedent,
submit to the appropriate jurisdiction the question of 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, Skinvisible, Inc., 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 Las Vegas, State of Nevada, on this 10th day of
December, 1999.
SKINVISIBLE, INC.
/s/ Terry Howlett
By: _________________________
Terry Howlett, President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Terry Howlett, as his true and lawful attorney-in-fact and agent with
full power of substitution and re-substitution for him and his name,
place and stead, in any and all capacities, to sign any or all
amendments to this Registration Statement (including post-effective
amendments or any abbreviated registration statements and any
amendments thereto filed pursuant to Rule 462(b) increasing the
number of securities for which registration is sought) 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 full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and
about the foregoing, 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, 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 below by the following person
in the capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Terry Howlett President & Director
- ----------------- (Principal Executive Officer) December 10, 1999
TERRY HOWLETT
/s/ Howard Thomson Secretary & Treasurer
- ------------------ (Principal Accounting Officer) December 10, 1999
HOWARD THOMSON
/s/ Jerry Hodge Director December 10, 1999
- ------------------
JERRY HODGE
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/s/ Jost Steinbruchel Director December 10, 1999
- ---------------------
JOST STEINBRUCHEL
/s/ Anthony St. John Director December 9, 1999
- ---------------------
ANTHONY ST. JOHN
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STOCK OPTION PLAN OF
MICROBIAL SOLUTIONS INC.
A Nevada Corporation
1. Purpose of the Plan
The purpose of this Plan is to strengthen Microbial Solutions Inc.
(hereinafter the "Company") by providing incentive stock options as
a means to attract, retain and motivate key corporate personnel,
through ownership of stock of the Company, and to attract
individuals of outstanding ability to render services to and enter
the employment of the Company or its subsidiaries.
2. Types of Stock Options
There shall be two types of Stock Options (referred to herein as
"Options" without distinction between such different types) that may
be granted under this Plan: (1) Options intended to qualify as
Incentive Stock Options under Section 422 of the Internal Revenue
Code ("Qualified Stock Options"), and (2) Options not specifically
authorized or qualified for favorable income tax treatment under the
Internal Revenue Code ("Non-Qualified Stock Options").
3. Definitions
The following definitions are applicable to the Plan:
(a) Board. The Board of Directors of the Company.
(b) Code. The Internal Revenue Code of 1986, as amended from time
to time.
(c) Common Stock. The shares of Common Stork of the Company.
(d) Company. Microbial Solutions Inc., a Nevada corporation.
(e) Consultant. An individual or entity that renders professional
services to the Company as an independent contractor and is not
an employee or under the direct supervision and control of the
Company.
(f) Disabled or Disability. For the purposes of Section 7, a
disability of the type defined in Section 22(e)(3) of the Code.
The determination of whether an individual is Disabled or has a
Disability is determined under procedures established by the Plan
Administrator for purposes of the Plan.
(g) Fair Market Value. For purposes of the Plan, the "fair market
value" per share of Common Stock of the Company at any date shall
be: (a) if the Common Stock is listed on an established stock
exchange or exchanges or the NASDAQ National Market, the closing
price per share on the last trading day immediately preceding
such date on the principal exchange on which it is traded or as
reported by NASDAQ; or (b) if the Common Stock is not then listed
on an exchange or the NASDAQ National Market, but is quoted on
the NASDAQ Small Cap Market, the NASDAQ electronic bulletin board
or the National Quotation Bureau pink sheets, the average of the
closing
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bid and asked prices per share for the Common Stock as
quoted by NASDAQ or the National Quotation Bureau, as the case
may be, on the last trading day immediately preceding such date;
or (c) if the Common Stock is not then listed on an exchange or
the NASDAQ National Market, or quoted by NASDAQ or the National
Quotation Bureau, an amount determined in good faith by the Plan
Administrator.
(h) Incentive Stock Option. Any Stock Option intended to be and
designated as an "incentive stock option" within the meaning of
Section 422 of the Code.
(i) Non-Qualified Stock Option. Any Stock Option that is not an
Incentive Stock Option.
(j) Optionee. The recipient of a Stock Option.
(k) Plan Administrator. The board or the Committee designated by
the Board pursuant to Section 4 to administer and interpret the
terms of the Plan.
(l) Stock Option. Any option to purchase shares of Common Stock
granted pursuant to Section 7.
4. Administration of the Plan
This Plan shall be administered by a Compensation Committee
(hereinafter the "Committee" or "Plan Administrator") composed of
members selected by, and serving at the pleasure of, the Board of
Directors. Subject to the provisions of the Plan, the Plan
Administrator shall have authority to construe and interpret the
Plan, to promulgate, amend, and rescind rules and regulations
relating to its administration, to select, from time to time, among
the eligible employees and non-employee consultants (as determined
pursuant to Section 5) of the Company and its subsidiaries those
employees and consultants to whom Stock Options will be granted, to
determine the duration and manner of the grant of the Options, to
determine the exercise price, the number of shares and other terms
covered by the Stock Options, to determine the duration and purpose
of leaves of absence which may be granted to Stock Option holders
without constituting termination of their employment for purposes of
the Plan, and to make all of the determinations necessary or
advisable for administration of the Plan. The interpretation and
construction by the Plan Administrator of any provision of the Plan,
or of any agreement issued and executed under the Plan, shall be
final and binding upon all parties. No member of the Committee or
Board shall be liable for any action or determination undertaken or
made in good faith with respect to the Plan or any agreement
executed pursuant to the Plan.
All of the members of the Committee shall be persons who, in the
opinion of counsel to the Company, are outside directors and
"non-employee directors" within the meaning of Rule 16b-3(b)(3)(i)
promulgated by the Securities and Exchange Commission. From time to
time, the Board may increase or decrease the size of the Committee,
and add additional members to, or remove members from, the
Committee. The Committee shall act pursuant to a majority vote, or
the written consent of a majority of its members, and minutes shall
be kept of all of its meetings and copies thereof shall be provided
to the Board. Subject to the provisions of the Plan and the
directions of the Board, the Committee may establish and follow such
rules and regulations for the conduct of its business as it may deem
advisable.
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At the option of the Board, the entire Board of Directors of the
Company may act as the Plan Administrator during such periods of
time as all members of the Board are "outside directors" as defined
in Prop. Treas. Regs. 1.162-27(e)(3), except that this requirement
shall not apply during any period of time prior to the date the
Company's Common Stock becomes registered pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended.
5. Grant of Options
The Company is hereby authorized to grant Incentive Stock Options as
defined in section 422 of the Code to any employee or director
(including any officer or director who is an employee) of the
Company, or of any of its subsidiaries; provided, however, that no
person who owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company, or any of its
parent or subsidiary corporations, shall be eligible to receive an
Incentive Stock Option under the Plan unless at the time such
Incentive Stock Option is granted the Option price is at least 110%
of the fair market value of the shares subject to the Option, and
such Option by its terms is not exercisable after the expiration of
five years frorn the date such Option is granted.
An employee may receive more than one Option under the Plan.
Non-Employee Directors shall be eligible to receive Non-Qualified
Stock Options in the discretion of the Plan Administrator. In
addition, Non-Qualified Stock Options may be granted to Consultants
who are selected by the Plan Administrator.
6. Stock Subject to Plan
The stock available for grant of Options under the Plan shall be
shares of the Company's authorized but unissued, or reacquired,
Common Stock. The aggregate number of shares that may be issued
pursuant to exercise of Options granted under the Plan, as amended,
shall not exceed 1,500,000 shares of Common Stock (subject to
adjustment as provided herein), including shares previously issued
under the Plan. The maximum number of shares for which an Option may
be granted to any Optionee during any calendar year shall not exceed
300,000 shares. In the event that any outstanding Option under the
Plan for any reason expires or is terminated, the shares of Common
Stock allocable to the unexercised portion of the Option shall again
be available for Options under the Plan as if no Option had been
granted with regard to such shares.
7. Terms and Conditions of Options
Options granted under the Plan shall be evidenced by agreements
(which need not be identical) in such form and containing such
provisions that are consistent with the Plan as the Plan
Administrator shall from time to time approve. Such agreements may
incorporate all or any of the terms hereof by reference and shall
comply with and be subject to the following terms and conditions:
(a) Number of Shares. Each Option agreement shall specify the
number of shares subject to the Option.
(b) Option Price. The purchase price for the shares subject to any
Option shall be determined by the Plan Administrator at the time
of the grant, but shall not be less than 85% of Fair Market Value
per share. Anything to the contrary notwithstanding, the purchase
price for the shares subject to
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any Incentive Stock Option shall not be less than 100% of the
Fair Market Value of the shares of Common Stock of the Company
on the date the Stock Option is granted. In the case of any
Option granted to an employee who owns stock possessing more
than 10% of the total combined voting power of all classes of
stock of the Company, or any of its parent or subsidiary
corporations, the Option price shall not be less than 110% of
the Fair Market Value per share of the Common Stock of the
Company on the date the Option is granted. For purposes
of determining the stock ownership of an employee, the
attribution rules of Section 424(d) of the Code shall apply.
(c) Notice and Payment. Any exercisable portion of a Stock Option
may be exercised only by: (a) delivery of a written notice to the
Company prior to the time when such Stock Option becomes
unexercisable herein, stating the number of shares bring
purchased and complying with all applicable rules established by
the Plan Administrator; (b) payment in full of the exercise price
of such Option by, as applicable, delivery of: (i) cash or check
for an amount equal to the aggregate Stock Option exercise price
for the number of shares being purchased, (ii) in the discretion
of the Plan Administrator, upon such terms as the Plan
Administrator shall approve, a copy of instructions to a broker
directing such broker to sell the Common Stock for which such
Option is exercised, and to remit to the Company the aggregate
exercise price of such Stock Option (a "cash1ess exercise"), or
(iii) in the discretion of the Plan Administrator, upon such
terms as the Plan Administrator shall approve, shares of the
Company's Common Stock owned by the Optionee, duly endorsed for
transfer to the Company, with a Fair Market Value on the date of
delivery equal to the aggregate purchase price of the shares with
respect to which such Stock Option or portion is thereby
exercised (a "stock-for-stock exercise"); (c) payment of the
amount of tax required to be withheld (if any) by the Company, or
any parent or subsidiary corporation as a result of the exercise
of a Stock Option. At the discretion of the Plan Administrator,
upon such terms as the Plan Administrator shall approve, the
Optionee my pay all or a portion of the tax withholding by: (i)
cash or check payable to the Company, (ii) a cashless exercise,
(iii) a stock-for-stock exercise, or (iv) a combination of one or
more of the foregoing payment rnethods; and (d) delivery of a
written notice to the Company requesting that the Company direct
the transfer agent to issue to the Optionee (or his designee) a
certificate for the number of shares of Common Stock for which
the Option was exercised or, in the case of a cashless exercise,
for any shares that were not sold in the cashless exercise.
Notwithstanding the foregoing, the Company, in its sole
discretion, may extend and maintain, or mange for the extension
and maintenance of credit to any Optionee to finance the
Optionee's purchase of shares pursuant to the exercise of any
Stock Option, on such terms as may be approved by the Plan
Administrator, subject to applicable regulations of the Federal
Reserve Board and any other laws or regulations in effect at the
time such credit is extended.
(d) Terms of Option. No Option shall be exercisable after the
expiration of the earliest of: (a) ten years after the date the
Option is granted, (b) three Months after the date the Optionee's
employment with the Company and its subsidiaries terminates, or a
Non-Employee Director or Consultant ceases to provide services to
the Company, if such termination or cessation is for any reason
other than Disability or death, (c) one year after the date the
Optionee's employment with the Company, and its subsidiaries,
terminates, or a Non-Employee Director or Consultant ceases to
provide services to the Company, if such termination or cessation
is a result of death or Disability; provided, however, that the
Option agreement for any Option may provide for shorter periods
in each of the foregoing instances. In the case of an Incentive
Stock Option granted to an employee who owns stock possessing
more than 10% of the total combined voting power of all
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classes of stock of the Company, or any of its parent or
subsidiary corporations, the term set forth in (a) above shall not
be more than five years after the date the Option is granted.
(e) Exercise of an Option. No Option shall be exercisable during
the lifetime of an Optionee by any person other than the
Optionee. Subject to the foregoing, the Plan Administrator shall
have the power to set the time or times within which each Option
shall be exercisable and to accelerate the time or times of
exercise; provided. However the Option shall provide the right to
exercise at the rate of at least 20% per year over five years
from the date the Option is granted. Unless otherwise provided by
the Plan Administrator, each Option granted under the Plan shall
become exercisable on a cumulative basis as to one-third (1/3) of
the total number of shares covered thereby at any time after one
year from the date the Option is granted and an additional
one-third (1/3) of such total number of shares at any time after
the end of each consecutive one-year period thereafter until the
Option has become exercisable as to all of such total number of
shares. To the extent that an Optionee has the right to exercise
an Option and purchase shares pursuant hereto, the Option may be
exercised from time to time by written notice to the Company,
stating the number of shares being purchased and accompanied by
payment in full of the exercise price for such shares.
(f) No Transfer of Option. No Option shall be transferable by an
Optionee otherwise than by will or the laws of descent and
distribution.
(g) Limit on Incentive Stock Option. The aggregate Fair Market
Value (determined at the time the Option is granted) of the stock
with respect to which an Incentive Stock Option is granted and
exercisable for the first time by an Optionee during any calendar
year (under all Incentive Stock Option plans of the Company and
its subsidiaries) shall not exceed $100,000. To the extent the
aggregate Fair Market Value (determined at the time the Stock
Option is granted) of the Common Stock with respect to which
Incentive Stock Options are exercisable for the first time by an
Optionee during any calendar year (under all Incentive Stock
Option plans of the Company and any parent or subsidiary
corporations) exceeds $100,000, such Stock Options shall be
treated as Non-Qualified Stock Options. The determination of
which Stock Options shall be treated as Non-Qualified Stock
Options shall be made by taking Stock Options into account in the
Order in which they were granted.
(h) Restriction on Issuance of Shares. The issuance of Options and
shares shall be subject to compliance with all of the applicable
requirements of law with respect to the issuance and sale of
securities, including, without limitation, any required
qualification under state securities laws. If an Optionee
acquires shares of Common Stock pursuant to the exercise of an
Option, the Plan Administrator, in its sole discretion, may
require as a condition of issuance of shares covered by the
Option that the shares of Common Stock be subject to restrictions
on transfer. The Company may place a legend on the share
certificates reflecting the fact that they are subject to
restrictions on transfer pursuant to the terms of this Section.
In addition, the Optionee may be required to execute a buy-sell
agreement in favor of the Company or its designee with respect to
all or any of the shares so acquired. In such event, the terms of
any such agreement shall apply to the optioned shares.
(i) Investment Representation. Any Optionee may be required, as a
condition of issuance of shares covered by his or her Option, to
represent that the shares to be acquired pursuant to exercise
will be acquired for investment and without a view toward
distribution thereof, and in such case, the
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Company may place a legend on the share certificate(s) evidencing
the fact that they were acquired for investment and cannot be sold
or transferred unless registered under the Securities Act of 1933,
as amended, or unless counsel for the Company is satisfied that the
circumstances of the proposed transfer do not require such
registration.
(j) Rights as a Shareholder or Employee. An Optionee or transferee
of an Option shall have no right as a stockholder of the Company
with respect to any shares covered by any Option until the date
of the issuance of a share certificate for such shares. No
adjustment shall be made for dividends (Ordinary or
extraordinary, whether cash, securities, or other property), or
distributions or other rights for which the record date is prior
to the date such share certificate is issued, except as provided
in paragraph (m) below. Nothing in the Plan or in any Option
agreement shall confer upon any employee any right to continue in
the employ of the Company or any of its subsidiaries or interfere
in any way with any right of the Company or any subsidiary to
terminate the Optionee's employment at any time.
(k) No Fractional Shares. In no event shall the Company be required
to issue fractional shares upon the exercise of an Option.
(l) Exercise in the Event of Death. In the event of the death of
the Optionee, any Option or unexercised portion thereof granted
to the Optionee, to the extent exercisable by him or her on the
date of death, may be exercised by the Optionee's personal
representatives, heirs, or legatees subject to the provisions of
paragraph (d) above.
(m) Recapitalization or Reorganization of the Company. Except as
otherwise provided herein, appropriate and proportionate
adjustments shall be made (1) in the number and class of shares
subject to the Plan, (2) to the Option rights granted under the
Plan, and (3) in the exercise price of such Option rights, in the
event that the number of shares of Common Stock of the Company
are increased or decreased as a result of a stock dividend (but
only on Common Stock), stock split, reverse stock split,
recapitalization, reorganization, merger, consolidation,
separation, or like change in the corporate or capital structure
of the Company. In the event there shall be any other change in
the number or kind of the outstanding shares of Common Stock of
the Company, or any stock or other securities into which such
common stock shall have been changed, or for which it shall have
been exchanged, whether by reason of a complete liquidation of
the Company or a merger, reorganization, or consolidation with
any other corporation in which the Company is not the surviving
corporation, or the Company becomes a wholly-owned subsidiary of
another corporation, then if the Plan Administrator shall, in its
sole discretion, determine that such change equitably requires an
adjustment to shares of Common Stock currently subject to Options
under the Plan, or to prices or terms of outstanding Options,
such adjustment shall be made in accordance with such
determination.
To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustment shall be made by the
Plan Administrator, the determination of which in that respect
shall be final, binding, and conclusive. No right to purchase
fractional shares shall result from any adjustment of Options
pursuant to this Section. In case of any such adjustment, the
shares subject to the Option shall he rounded down to the nearest
whole share. Notice of any adjustment shall be given by the
Company to each Optionee whose Options shall have been so
adjusted and such
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<PAGE>
adjustment (whether or not notice is given) shall be effective
and binding for all purposes of the Plan.
In the event of a complete liquidation of the Company or a
merger, reorganization, or consolidation of the Company with any
other corporation in which the Company is not the surviving
corporation, or the Company becomes a wholly-owned subsidiary of
another corporation, any unexercised Options granted under the
Plan shall be deemed cancelled unless the surviving corporation
in any such merger, reorganization, or consolidation elects to
assume the Options under the Plan or to issue substitute Options
in place thereof; provided, however, that notwithstanding the
foregoing, if such Options would be cancelled in accordance with
the foregoing, the Optionee shall have the right exercisable
during a ten-day period ending on the fifth day prior to such
liquidation, merger, or consolidation to exercise such Option in
whole or in part without regard to any installment exercise
provisions in the Option agreement.
(n) Modification, Extension and Renewal of Options. Subject to the
terms and conditions and within the limitations of the Plan, the
Plan Administrator may modify, extend or renew outstanding
options granted under the Plan and accept the surrender of
outstanding Options (to the extent not theretofore exercised).
The Plan Administrator shall not, however, without the approval
of the Board, modify any outstanding Incentive Stock Option in
any manner that would cause the Option not to qualify as an
Incentive Stock Option within the meaning of Section 422 of the
Code. Notwithstanding the foregoing. no modification of an Option
shall, without the consent of the Optionee, alter or impair any
rights of the Optionee under the Option.
(o) Other Provisions. Each Option may contain such other terms,
provisions, and conditions not inconsistent with the Plan as may
be determined by the Plan Administrator.
8. Termination or Amendment of the Plan
The Board may at any time terminate or amend the Plan; provided
that, without approval of the holders of a majority of the shares of
Common Stock of the Company represented and voting at a duly held
meeting at which a quorum is present or the written consent of a
majority of the outstanding shares of Common Stock, there shall be
(except by operation of the provisions of paragraph (m) above) no
increase in the total number of shares covered by the Plan, no
change in the class of persons eligible to receive options granted
under the Plan, no reduction in the exercise price of Options
granted under the Plan, and no extension of the latest date upon
which Options may be exercised; and provided further that, without
the consent of the Optionee, no amendment may adversely affect any
then outstanding Option or any unexercised portion thereof.
9. Indemnification
In addition to such other rights of indemnification as they may have
as members of the Board Committee that administers the Plan, the
members of the Plan Administrator shall be indemnified by the
Company against reasonable expense, including attorney's fees,
actually and necessarily incurred in connection with the defense of
any action, suit or proceeding, or in connection with any appeal
therein to which they, or any of them, may be a party by reason of
any action taken or failure to act under or in connection with the
Plan or any Option granted thereunder, and against any and all
amounts paid by them in settlement thereof (provided such settlement
is approved by independent legal counsel selected
7
<PAGE>
by the Company). In addition, such members shall be indemnified
by the Company for any amount paid by them in satisfaction of a
judgment in any action, suit, or proceeding, except in relation to
matters as to which it shall have been adjudged that such member
is liable for negligence or misconduct in the performance of his
or her duties, provided however that within 60 days after institution
of any such action, suit, or proceeding, the member shall in writing
offer the Company the opportunity, at its own expense, to handle and
defend the same.
10. Effective Date and Term of the Plan
This Plan shall become effective (the "Effective Date") on the date
of adoption by the board of directors as evidenced by the date and
signature of the President below. Options granted under the Plan
prior to shareholder approval are subject to cancellation by the
Plan Administrator if shareholder approval is not obtained within 12
months of the date of adoption. Unless sooner terminated by the
Board in its sole discretion, this Plan will expire on December 31,
2008.
IN WITNESS WHEREOF, the Company by its duly authorized officer, has
caused this Plan to be executed this 8 day of January, 1999.
MICROBIAL SOLUTIONS INC.
/s/ Terry Howlett
_____________________________________
By: Terry Howlett
Its: President
8
<PAGE>
Cane & Company, LLC
Affiliated with O'Neill Ritchie Taylor Law Corporation
of Vancouver, British Columbia, Canada
Michael A. Cane* Stephen F.X. O'Neill**
Leslie L. Kapusianyk** Michael H. Taylor**
Telephone: (702) 312-6255
Facsimile: (702) 312-6249
E-mail: [email protected]
101 Convention Center Drive
Suite 1200
Las Vegas, NV 89109
December 6, 1999
Skinvisible, Inc.
3095 East Patrick Lane, Suite 1
Las Vegas Nevada 89120
Attention: Terry Howlett, President
Re: Skinvisible, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Skinvisible, Inc., a Nevada
corporation (the "Company"), in connection with the preparation
of the registration statement on Form S-8 (the "Registration
Statement") filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as
amended (the "Act"), relating to the offering of certain shares
of the Company's common stock issued through its Incentive Stock
Option Plan (the "Plan"). This opinion is being furnished
pursuant to Item 601(b)(5) of Regulation S-K under the Act.
In rendering the opinion set forth below, we have reviewed (a)
the Registration Statement and the exhibits thereto; (b) the
Company's Articles of Incorporation; (c) the Company's Bylaws;
(d) certain records of the Company's corporate proceedings as
reflected in its minute books; and (e) such statutes, records and
other documents as we have deemed relevant. In our examination,
we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and
conformity with the originals of all documents submitted to us as
copies thereof. In addition, we have made such other examinations
of law and fact as we have deemed relevant in order to form a
basis for the opinion hereinafter expressed.
Based upon the foregoing, we are of the opinion that the common
stock to be issued under the Plan is validly issued, fully paid
and nonassessable.
Very truly yours,
CANE AND COMPANY, LLC
/s/ Michael A, Cane
_____________________________
Michael A. Cane, attorney and
Managing Member
*Licensed Nevada, California, Washington and Hawaii State Bars
** British Columbia Bar only
<PAGE>
Skinvisible, Inc.
December 6, 1999
Page 2
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to all references to this Firm under
the caption "Interests of Named Experts and Counsel" in the
Registration Statement.
Very truly yours,
CANE AND COMPANY, LLC
/s/ Michael A. Cane
_____________________________
Michael A. Cane, attorney and
Managing Member
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