As filed with the Securities and Exchange Commission on
May 22, 2000
Registration No. 333-
-----------------------
<P>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
<P>
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
<P>
THE AUXER GROUP, INC.
(Exact name of issuer as specified in its charter)
<P>
Delaware 22-3537927
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification
No.)
<P>
12 Andrews Drive, West Patterson, New Jersey 07424
(Address of Principal Executive Offices) (Zip Code)
<P>
The Auxer Group, Inc. Nonstatutory Stock Option Plan
(Full title of the Plan)
<P>
Eugene Chiaramonte, Jr., President and CEO
The Auxer Group, Inc.
12 Andrews Drive
West Patterson, New Jersey 07424
(Name and address of agent for service)
<P>
(973) 890-1331
<P>
copies to:
<P>
Richard I. Anslow & Associates
4400 Route 9, 2nd Floor
Freehold, NJ 07728
(732) 409-1212
<P>
Approximate date of commencement of proposed sale to the
public: Upon the effective date of this Registration
Statement.
<P>
<TABLE>
<S> <C> <C> <C> <C>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount Offering aggregate Amount of
to be to be price per offering registration
registered registered share(1)(2) price fee (1)
<P>
Common Stock, 2,000,000 (3) $0.0895 $179,000 $ 47.26
$.001 par value
</TABLE>
<P>
(1) The fee with respect to these shares has been
calculated pursuant to Rules 457(h) and 457(c) under the
Securities Act of 1933 and based upon the average of the
last price per share of the Registrant's Common Stock on
May 19, 2000, a date within five (5) days prior to the
date of filing of this Registration Statement, as
reported by the NQB Pink Sheets.
<P>
(2) Estimated solely for the purpose of calculating
the registration fee.
<P>
(3) Represents the maximum number of shares that may
be issued under the above-named
Non-Statutory Stock Option Plan.
<P>
(4) This Registration Statement shall also cover any
additional shares of Common Stock which become issuable
under the above-named Non-Statutory Stock Option Plan
being registered pursuant to this Registration Statement
by reason of any stock dividend, stock split,
recapitalization 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.
Documents Incorporated by Reference X Yes No
<P>
PART II
<P>
Item 3. Incorporation of Documents by Reference.
<P>
The following documents are incorporated by reference in
this Registration Statement and made a part hereof:
<P>
(a) General Form For Registration of Securities of
Small Business issuer on Form 10-SB and all Exhibits
thereto filed pursuant to Section 12(g) of the Exchange
Act of 1934, as amended (the "1934 Act") (File No. 000-
30440);
<P>
(b) The Company's Quarterly Report on Form 10-QSB for
the quarter ended March 31, 2000 filed pursuant to
Section 15(d) of the 1934 Act.
<P>
(c) All other documents filed by the Company after
the date of this Registration Statement under Section
13(a), 13(c), 14 and 15(d) of the 1934 Act, after the
date hereof and prior to the filing of a post-effective
amendment to the Registration Statement which indicates
that all securities offered have been sold or which de-
registers all securities then remaining in the
Registration Statement and to be part thereof from the
date of filing of such documents.
<P>
Item 4. Description of Securities.
<P>
Not Applicable.
<P>
Item 5. Interest of Named Experts and Counsel.
<P>
Certain legal matters in connection with the Common
Shares being registered herein will be passed upon for
the Company by Richard I. Anslow & Associates, 4400 Route
9, 2nd Floor, Freehold, NJ 07728. Richard I. Anslow,
the principal of Richard I. Anslow & Associates owns
200,000 shares of the Company's Common Stock which shares
are being registered pursuant to another Form S-8 to be
filed by the Company immediately subsequent to the filing
of this Form S-8 Registration Statement.
<P>
Item 6. Indemnification of Directors and Officers.
<P>
The Certificate of Incorporation and By-laws of the
Company provide that the Company shall indemnify to the
fullest permitted by Delaware law any person whom it may
indemnify thereunder, including directors, officers,
employees and agents of the Company. Such
indemnification (other than as ordered by a court) shall
be made by the Company only upon a determination that
indemnification is proper in the circumstances because
the individual met the applicable standard of conduct
i.e., such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interest of the Company. Advances for such
indemnification may be made pending such determination.
Such determination shall be made by a majority vote of a
quorum consisting of disinterested directors, or by
independent legal counsel or by the stockholders. In
addition, the Certificate of Incorporation provides for
the elimination, to the extent permitted by Delaware law,
of personal liability of directors to the Company and its
stockholders for monetary damages for breach of fiduciary
duty as directors.
<P>
The Company has also agreed to indemnify each director
and executive officer pursuant to an Indemnification
Agreement with each such director and executive officer
from and against any and all expenses, losses, claims,
damages and liability incurred by such director or
executive officer for or as a result of action taken or
not taken while such director or executive officer was
acting in his capacity as a director, officer, employee
or agent of the Company. The obligations of the Company
for indemnification is limited to the extent provided in
the Delaware Business Corporation Act and is also limited
in situations where, among others, the indemnitee is
deliberately dishonest, gains any profit or advantage to
which he is not legally entitled or is otherwise
indemnified.
<P>
Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended (the "1933 Act")
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 Securities Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling
person in connection with the securities being
registered, the Company will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction
the question of whether such indemnification by it is
against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such
issue.
<P>
Item 7. Exemption From Registration Claimed.
<P>
Not Applicable.
<P>
Item 8. Exhibits.
<TABLE>
<S> <C>
Number Description
<P>
4.1 Auxer Industries, Inc. (now known as The Auxer
Group, Inc.) Nonstatutory Stock Option Plan.
<P>
4.2 Employment Agreement dated May 15, 2000 between
The Auxer Group, Inc. and Ronald Shaver.
<P>
4.3 Employment Agreement dated April 22, 1999 between
Hardyston Distributors, Inc. (a subsidiary of The
Auxer Group, Inc.) and Ernest DeSaye, Jr.; and Addendum
No. 1 to such Employment Agreement dated May 15, 2000.
<P>
5.1 Consent and Opinion of Richard I. Anslow & Associates.
<P>
23.1 Consent of Edelman and Kalosieh, Certified Public
Accountants, P.A.
</TABLE>
<P>
Item 9. Undertakings.
<P>
The undersigned registrant hereby undertakes:
<P>
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
<P>
(a) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933.
<P>
(b) 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
<P>
(c) 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.
<P>
Provided, however, that paragraphs (1)(a) and (1)(b) do
not apply if the Registration Statement is on Form S-3 or
Form S-8 and the information required to be included in a
post-effective amendment by this paragraphs is contained
in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the 1933 Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
<P>
(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.
<P>
(4) That, for purposes of determining any liability
under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d)
of the 1934 Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the 1934 Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
<P>
(5) To deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders
that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the 1934 Act; and, where
interim financial information required to be presented by
Item 310(b) of Registration S-B is not set forth in the
prospectus, to deliver, or cause to be delivered, to each
person to whom the prospectus is sent or given, the
latest quarterly report that is specifically incorporated
by reference in the prospectus to provide such interim
financial information.
<P>
(6) To deliver or cause to be delivered with the
prospectus to each employee to whom the prospectus is
sent or given, a copy of the Registrant's annual report
to stockholders for its last fiscal year, unless such
employee otherwise has received a copy of such report, in
which case the registration shall state in the prospectus
that it will promptly furnish, without charge, a copy of
such report on written request of the employee. If the
last fiscal year of the Registrant has ended within 120
days prior to the use of the prospectus, the annual
report of the Registrant for the preceding fiscal year
may be so delivered, but within such 120-day period the
annual report for the last fiscal year will be furnished
to each such employee.
<P>
(7) To transmit or cause to be transmitted to all
employees participating in the Plans who do not otherwise
receive such material as stockholders of the Registrant,
at the time and in the manner such material is sent to
its stockholders, copies of all reports, proxy statements
and other communications distributed to its stockholders
generally.
<P>
SIGNATURES
<P>
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the
undersigned, there unto duly authorized, in the Borough
of West Patterson, State of New Jersey, on May 23, 2000.
<P>
THE AUXER GROUP, INC.
<P>
/s/ Eugene Chiaramonte, Jr.
----------------------------
Eugene Chiaramonte, Jr.
Chairman, Chief Executive
Officer and President
<P>
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below
by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
<P>
Signatures Date
/s/ Eugene Chiaramonte, Jr. May 23, 2000
----------------------------
Eugene Chiaramonte, Jr.
Chairman, Chief Executive Officer and President
<P>
EXHIBIT 4.1
<P>
AUXER INDUSTRIES, INC.
<P>
NONSTATUTORY STOCK OPTION PLAN
<P>
1. Purpose
<P>
The purpose of this Nonstatutory Stock Option Plan
(hereinafter referred to as the "Plan"), is to provide a
special incentive to selected individuals who have made
significant contributions to the business and success of
AUXER INDUSTRIES, INC., (hereinafter referred to as the
"Company"). The Plan is designed to accomplish this purpose
by offering such individuals options ("Options") to purchase
shares of the common stock of the Company ("Shares") so that
they will share in the Company's success.
<P>
2. Administration
<P>
The Plan shall be administered by the board of directors of
the Company or by an option committee to be established by
the board of directors of the Company. If an option
committee administers the Plan, it shall consists of three
or more members, at least one of whom shall be neither an
officer nor an employee of the Company. (The board of
directors or an option committee shall be referred to the
"Board" herein).
<P>
The Board shall have authority, consistent with the Plan,
(a) to determine which individuals shall be granted
Options;
(b) to determine the time or times when Options shall be
granted and the number of Shares to be subject to each
Option;
(c) to determine the exercise price of the Shares
subject to each Option and the method of payment of such
price;
(d) to determine the time or times when each Option
becomes exercisable and the duration of the exercise period,
subject to the limitations contained in Paragraph 6(b);
(e) to prescribe the form or forms of the instruments
evidencing any options granted under the Plan and of any
other instruments required under the Plan and to change such
forms from time to time;
(f) to adopt, amend and rescind rules and regulations
for the administration of the Plan and the Options and for
its own acts and proceedings; and
(g) to decide all questions and settle all controversies
and disputes which may arise in connection with the Plan.
All decisions, determinations and interpretations of the
Board shall be binding on all parties concerned.
<P>
3. Participants
<P>
The Participants in the Plan shall be employees, officers,
directors, consultants of the Company or any other parties
who have made a significant contribution to the business and
success of the Company, as may be selected from time to time
by the Board in its discretion. In any grant of Options
after the initial grants, Participants who were previously
granted Options or sold Shares under the Plan may be
included or excluded.
<P>
4. Limitations
<P>
No Option shall be granted under the Plan after March 31,
2001, but Options theretofore granted may extend beyond that
date. Subject to adjustments as provided in Section 8 of
the Plan, the number of Shares which may be issued under the
Plan shall not exceed two (2,000,000) million in the
aggregate. To the extend that any Option granted under the
plan shall expire or terminate unexercised or for any reason
become unexercisable as to any Shares subject thereto, such
Shares shall thereafter be available for further grants
under the Plan, within the limit specified above.
<P>
5. Shares to be Issued
<P>
Shares to be issued under the Plan may constitute an
original issue of authorized Shares or may consist of
previously issued Shares acquired by the Company, as shall
be determined by the Board. The Board and the proper
officers of the Company shall take any appropriated action
required for such issuance. The maximum number of Shares
which may be issued under the Plan is two millions
(2,000,000) Shares.
<P>
6. Terms and Conditions of Options
<P>
All Options granted under the Plan shall be subject to the
following terms and conditions (except as provided in
Section 7) and to such other terms and conditions as the
Board shall determine to be appropriate to accomplish the
purposes of the Plan:
<P>
(a) Exercise price. The exercise price under each
Option shall be determined by the Board and may be more,
equal to or less than the then current market price of the
Shares as the Board may deem to be appropriate: provided,
however, that in the event an option committee shall
determine to grant an Option at less than 85% of the then
current market price of the Shares, such Option shall not be
granted by the option committee without the prior approval
of the board of directors.
<P>
(b) Period of Options. The period of an Option shall
not exceed five years from the date of grant.
<P>
(c) Exercise of Options
<P>
(i) Each Option shall be made exercisable at such
time or times, whether or not in installments, as the Board
shall prescribe at the time the Option is granted.
<P>
(ii) A person electing to exercise an Option shall
give written notice to the Company, as specified by the
Board, of his/her election and of the number of Shares
he/she has elected to purchase, such notice to be
accompanied by such instruments or documents as may be
required by the Board, and shall at the time of such
exercise tender the purchase price of the Shares he/she has
elected to purchase.
<P>
(d) Payment for Issuance of Shares. Upon exercise of
any Option granted hereunder, payment in full shall be made
at the time of such exercise for all such Shares then being
purchased.
<P>
The Company shall not be obligated to issue any Shares
unless and until, in the opinion of the Company's counsel,
all applicable laws and regulations have been complied with,
nor, in the event the Shares at the time are not listed upon
any stock exchange, unless and until the Shares to be issued
have been listed or authorized to be added to the list upon
official notice of issuance upon such exchange, nor unless
or until all other legal matters in connection with the
issuance and delivery of Shares have been approved by the
Company's counsel. Without limiting the generality of the
foregoing, the Company may require from the Participant such
investment representation or such agreement, if any, as
counsel for the Company may consider necessary in order to
comply with the Securities Act of 1933 as then in effect,
and may require that the Participant agree that any sale of
the Shares will be made only in such manner as is permitted
by the Board and that a participant will notify the Company
when he/she intends to make any disposition of the Shares
whether by sale, gift or otherwise. The Participant shall
take any action reasonably requested by the Company in such
connection. A Participant shall have the rights of a
stockholder only as to Shares actually acquired by him/her
under the Plan.
<P>
(e) Transferability of Options. No Option may be
transferred by the Participant otherwise than by will or by
the laws of descent and distribution, and during the
Participant's lifetime the Option may be exercised only by
the Participant.
<P>
(f) Termination of Employment. If the Participant is an
employee and his/her employment terminates for any reason
other than his/her death, the Participant may, unless
discharged for cause, thereafter exercise his/her Option as
provided below, but only to the extent the Participant was
entitled to exercise the Option on the date when his/her
employment terminated. If such termination of employment is
voluntary on the part of the Participant, he/she may
exercise his/her Option only within ten days after the date
of termination of employment (unless a longer period not in
excess of three months is allowed by the Board). If such
termination of employment is involuntary on the part of the
Participant, he/she may exercise his/her Option only within
three months after the date of termination of employment. In
no event, however, may such Participant exercise his/her
Option at a time when the Option would not be exercisable
had the Participant remained an employee or when the
termination was for cause. For purposes of this subsection
(f), a Participant's employment shall not considered
terminated in the case of sick leave or other bona fide
leave of absence approved by the Company or a subsidiary, or
in the case of a transfer to the employment of a subsidiary
or the employment of the Company. Anything herein to the
contrary notwithstanding, an Option may be exercised only to
the extent exercisable on the date of termination of
employment by death or otherwise.
<P>
(g) Retirement or Resignation. If prior to the
expiration date of a Participant's Option an optionee shall
retire or resign with the Company's consent such Option may
be exercised in the same manner as if the Optionee had
continued in the Company's employ; provided, however, the
Board may terminate, at any time prior to exercise, all
unexercised Options if it shall determine that the retired
or resigning optionee has engaged in any activity
detrimental to the Company's interest.
<P>
(h) Death. If a Participant dies at a time when he/she
is entitled to exercise an Option, then at any time or times
within one (1) year after his/her death (or such further
period as the Board may allow) such Option may be exercised,
as to all or any of the Shares which the Participant was
entitled to purchase immediately prior to his/her death, by
his/her executor or administrator or the person or persons
to whom the Option is transferred by will or the applicable
laws of descent and distribution, and except as so exercised
such Option shall expire at the end of such period. In no
event, however, may an Option be exercised after the
expiration of the Option period.
<P>
7. Replacement Options
<P>
The Company may grant Options under the Plan on terms
differing from those provided for in Section 6 where such
Options are granted in substitution for Options held by
employees of other corporations who concurrently become
employees of the Company or a subsidiary as the result of a
merger, consolidation or other regoranization of the
employing corporation with the Company of subsidiary, or the
acquisition by the Company or a subsidiary of the business,
property or stock of the employing corporation. The Board
may direct that the substitute Options be granted on such
terms and conditions as the Board considers appropriate in
the circumstances.
<P>
8. Changes in Stock
<P>
In the event of a stock dividends, stock split or
recapitalization or merger in which the Company is the
surviving corporation, or other similar capital change, the
number and kind of shares of stock or securities of the
Company to be subject to the Plan and to options then
outstanding or to be granted thereunder, the maximum number
of Shares or securities which may be issued or sold under
the Plan, the exercise price and other relevant provisions
shall be appropriately adjusted by the Board of the Company,
the determination of which shall be binding on all persons.
<P>
9. Employment Rights
<P>
The adoption of the plan or the granting of an Option does
not confer upon any individual any right to employment or
continued employment with the Company or a subsidiary, as
the case may be, nor does it interfere in any way with the
right of the Company or a subsidiary to terminate the
employment of any of its employees at any time.
<P>
10. Amendment
<P>
The Board may at any time discontinue granting Options under
the Plan. The Board of the Company may at any time or times
amend the Plan or amend any outstanding Option or Options
for the purpose of satisfying the requirements of any
changes in applicable laws or regulations or for any other
purpose which may at the time be permitted by law provided,
however, that, except to the extent required or permitted
under Section 8, no such amendment shall void or diminish
Options previously granted without the consent of the
Participant, nor shall any amendment increase or accelerate
the conditions and actions required for the exercise of an
Option unless the Participant shall have been discharged
from the Company's employment for cause.
<P>
Adopted by the Board of Directors
<P>
EXHIBIT 4.2
<P>
EMPLOYMENT AGREEMENT
BETWEEN
THE AUXER GROUP, INC.
AND
RONALD SHAVER
<P>
AGREEMENT dated this 15th day of May, 2000, between THE
AUXER GROUP, INC., a Delaware corporation (hereinafter the
"Company") which will have its principal place of business
at 12 Andrews Drive, West Paterson, NJ 07424, and Ronald
Shaver (hereinafter the "Employee").
<P>
WHEREAS, the Company desires to acquire the services of
Employee because of his special knowledge and skills; and,
<P>
NOW, THEREFORE, in consideration of the foregoing, the
following is agreed:
<P>
1. DUTIES
<P>
The Company hereby employs Ronald Shaver as Executive Vice
President of the business which has been conveyed this day
to the Company, having powers and duties in that capacity as
set forth from time to time by the President of the Company.
Employee shall devote his full time and best efforts to the
Business of the Company.
<P>
2. COMPENSATION
<P>
As compensation for his services to the Company, in whatever
capacity rendered, the Company shall pay to Employee once
every two weeks the sum of $3900 as gross salary. This
salary shall be paid over the term of this Agreement which
is one (1) year(s). This Agreement shall be renewed for an
additional year or remain in effect after the term of this
agreement provided that all material terms of this Agreement
are performed by Employee and provided that both mutually
agree.
<P>
In addition, Employee shall be entitled to options under the
company's Non-Statutory Option Plan. The Employee shall be
granted the option to purchase an aggregate of 665,000
shares of The Auxer Group, Inc. common stock, $0.001 par
value per share, at an exercise price of $0.05. Upon signing
this agreement, the Company will file the appropriate
registration statement and upon filing registration
statement, Employee may exercise these options at any time
within the plan's limitations.
<P>
3. EXPENSES
<P>
The Employee may incur reasonable expenses including expense
for travel, entertainment and similar items. All expenses
must be pre-approved. The Company will reimburse the
Employee for all such expenses upon the presentation by the
Employee, from time to time, of an itemized account
justifying such expenditures. Such reimbursement shall be
provided within 30 working days of such presentation by
Employee. If the Company determines, in its sole
discretion, that this method allowing expenses is not in the
best interest of the Company, the Company may impose such
other method, if any, for allowing such expenses, including
elimination of the same.
<P>
4. TERMINATION
<P>
This Agreement may be immediately terminated in any one of
the following manners:
<P>
1. The death of Employee;
<P>
2. The failure of the Company, as evidenced by filing
under the Bankruptcy Act for liquidation, or the making of
an assignment for the benefit of creditors;
<P>
3. A material breach of this Agreement executed between
the Company and the Employee; or
<P>
4. The Employer may immediately terminate for Just
Cause. For purposes of this Agreement "Just Cause" shall
mean only the following: (i) a final non-appealable
conviction of or a plea of guilty or nolo contendere by the
Employee to a felony or misdemeanor involving fraud,
embezzlement, theft, dishonesty, or other criminal conduct
against the Company; (ii) habitual neglect of the Employee's
duties or failure by the Employee to perform or observe any
substantial lawful obligation of such employment that is not
immediately remedied, or (iii) failure of the Employee to
comply with the policies and procedures of the Company. In
the event of termination of this Agreement other than for
death, the Employee hereby agrees to resign from all
positions held in the Company, including, without
limitation, any positions as a director, officer, agent,
trustee or consultant of the Company or any affiliate of the
Company.
<P>
5. NONCOMPETITION, TRADE SECRETS, ETC.
<P>
During the term of this Agreement and at all times
thereafter, Employee shall not use for his personal benefit,
or disclose, communicate or divulge to, or use for the
direct or indirect benefit of any person, firm, association
or company other the Company, any material or information
regarding the business methods, business policies, billing
and collection policies and procedures, techniques, research
or development projects or results, trade secrets, or other
knowledge or processes under or developed by the Company or
any names and addresses of customers, or any data on or
relating to past, present, or prospective customers or any
other confidential information relating to or dealing with
the business activities of the Company, made known to
Employee or learned or acquired by Employee while in the
employ of the Company.
<P>
Any and all writing, inventions, improvements, processes,
procedures and/or techniques which Employee may make,
conceive, discover or develop, either solely or jointly with
any other person or persons, at any time during the term of
this Agreement, whether during working hours or at any other
time and at the request or upon the suggestion of the
Company which relate to or are useful in connection with any
business now or hereafter carried on or contemplated by the
Company, including developments or expansions of its present
fields of operations, shall be the sole and exclusive
property of the Company. Employee shall make full
disclosure to the Company of all such writings, inventions,
improvements, processes, procedures and techniques, and
shall do everything necessary or desirable to vest the
absolute title thereto in the Company. Employee shall write
and prepare all specifications and procedures regarding such
inventions, improvements, processes, procedures and
techniques and otherwise aid and assist the Company so that
the Company can prepare and present applications for
copyright or Letters Patent wherever possible, as well as
reissues, renewals, and extensions thereof, and can obtain
the record title to such copyright or patents so that the
Company shall be the sole and absolute owner thereof in all
countries in which it may desire to have copyright or patent
protection. Employee shall not be entitled to any
additional or special compensation or reimbursement
regarding any and all such writings, inventions,
improvements, processes, procedures and techniques.
<P>
6. APPLICABLE LAW
<P>
This Agreement shall be governed by the laws of the State of
New Jersey and shall be enforceable only in the Superior
Court of New Jersey for Bergen County. If any provision of
this Agreement is declared void, such provision shall be
deemed severed from this Agreement, which shall otherwise
remain in full force and effect.
<P>
7. BINDING EFFECT
<P>
This Agreement shall have binding effect upon the parties
hereto, when approved by the Board, and upon their
respective personal representatives, legal representatives,
successors and assigns. Any waiver of any breach of this
Agreement shall be made in writing and shall be applicable
only to such breach and shall not be construed to waive any
subsequent or prior breach other than the specific breach so
waived.
<P>
8. SUPERSEDES EARLIER AGREEMENTS
<P>
This Agreement supersedes all earlier agreements between the
Employee and the Company with respect to Employee's
employment by the Company.
<P>
IN WITNESS WHEREOF, the parties have executed this Agreement
the date first written above.
/s/ Ronald Shaver /s/ Eugene Chiaramonte, Jr.
- ------------------ ----------------------------
Ronald Shaver Eugene Chiaramonte, Jr.
President
The Auxer Group, Inc.
<P>
EXHIBIT 4.3
<P>
EMPLOYMENT AGREEMENT
BETWEEN
A SUBSIDIARY CORPORATION TO BE FORMED BY
THE AUXER GROUP, INC.
AND
ERNEST R. DESAYE, JR.
<P>
AGREEMENT dated this 22 day of April, 1999, between a
subsidiary corporation to be formed by THE AUXER GROUP,
INC., a New Jersey corporation to be formed (hereinafter the
"Company") which will have its principal place of business
at 30 Galesi Drive, Wayne, NJ 07470, and Ernest R. DeSaye,
Jr. (hereinafter the "Employee").
<P>
WHEREAS, the Company desires to acquire the services of
Employee because of his special knowledge and skills; and,
<P>
NOW, THEREFORE, in consideration of the foregoing, ten
dollars paid in hand, and other good and valuable
consideration, receipt and sufficiency of which is hereby
acknowledged, the following is agreed:
<P>
1. DUTIES
-------
<P>
The Company hereby employs Employee as a manager of the
business which has been conveyed this day to the Company,
having powers and duties in that capacity as set for the
from time to time by the President of the Company. Employee
shall devote his full time and best efforts to the Business
of the Company.
<P>
2. COMPENSATION
------------
<P>
As compensation for his services to the Company, in whatever
capacity rendered, the Company shall pay to Employee once
every two weeks the sum of $1,731 as gross
salary. This salary shall be paid over the term of this
Agreement which is five years, with a 5% increase being made
on each anniversary date of this Agreement. This Agreement
shall be renewed for one additional five year term provided
that all material terms of this Agreement are performed by
Employee provided that both mutually agree.
<P>
In addition, Employee shall be entitled to incentive
payments as follows: 1) cash equal to one percent (1%) of
the gross profit (gross sales less discounts less costs of
goods sold) derived from house accounts defined as all
current accounts of Hardyston Distributor purchased today by
the Company; 2) cash equal to two percent (2%) of the gross
profit on all new clients obtained during the term of this
agreement only on orders placed by each of said new clients
for twelve months following said each new client's first
order where after said account will become a house account;
3) stock or stock options equal in cash value based upon the
average of the bid and asked price on the day preceding the
date of issuance equal to one percent (1%) of gross profit
on all supervised accounts upon achieving in excess of one
million dollars ($1,000,000) in total revenue for a fiscal
year; and, 4) stock or stock options equal in cash value
based upon the average of the bid and asked price on the day
preceding the date of issuance equal to one-half percent
(0.5%) of the gross profit in excess of two million dollars
($2,000,000) in total revenue for a fiscal year, so that the
total stock and stock option compensation under items 3) and
4) of this paragraph 2 shall equal 1.5% of the gross profit
on total revenue above said two million dollars.
($2,000,000).
<P>
3. EXPENSES
--------
<P>
The Employee may incur reasonable expenses for promoting the
business of the Company, including expense for travel,
entertainment and similar items. The Company
will reimburse the Employee for all such expenses upon the
presentation by the Employee, from time to time, of an
itemized account justifying such expenditures. Such
reimbursement shall be provided within 30 working days of
such presentation by Employee. If the Company determines,
in its sole discretion, that this method allowing expenses
is not in the best interest of the Company, the Company may
impose such other method, if any, for allowing such expense,
including elimination of the same.
<P>
4. NOTICE
------
<P>
Any notice required to be given pursuant to the provisions
of this Agreement shall be in writing and by registered
mail, and mailed to the parties at the following addresses:
<P>
COMPANY: 30 Galesi Drive
Suite 304
Wayne, NJ 07470
<P>
EMPLOYEE: 22-B Lasinski Road
Franklin, NJ 07416
<P>
5. TERMINATION
-----------
<P>
This Agreement may be terminated in any one of the following
manners:
<P>
1. The death of Employee
2. The failure of the company, as evidenced by
filing under the Bankruptcy Act for
liquidation, or the making of an assignment
for the benefit of creditors; or,
3. A material breach of the Assignment and Non-
Disclosure Agreement executed between the
Company and the Employee.
<P>
6. APPLICABLE LAW
--------------
<P>
This Agreement shall be governed by the laws of the State of
New Jersey and shall be enforceable only in the Superior
Court of New Jersey for Bergen County. If any provision of
this Agreement is declared void, such provision shall be
deemed severed from this Agreement, which shall otherwise
remain in full force and effect.
<P>
7. BINDING EFFECT
--------------
<P>
This Agreement shall have binding effect upon the parties
hereto, when approved by the Board, and upon their
respective personal representatives, legal representatives,
successors and assigns. Any waiver of any breach of this
Agreement shall be made in writing and shall be applicable
only to such breach and shall not be construed to waive any
subsequent or prior breach other than the specific breach so
waived.
<P>
8. SUPERSEDES EARLIER AGREEMENTS
-----------------------------
<P>
This Agreement supersedes all earlier agreements between the
Employee and the Company with respect to Employee's
employment by the Company.
<P>
IN WITNESS WHEREOF, the parties have executed this Agreement
the date first written above.
<P>
THE AUXER GROUP, INC.
/s/ Ernest R. DeSaye /s/ Eugene Chiaramonte, Jr.
- ----------------------- ---------------------------
Ernest R. DeSaye, Jr. Eugene Chiaramonte, Jr.
President
<P>
ADDENDUM No. 1
TO
EMPLOYMENT AGREEMENT
BETWEEN
HARDYSTON DISTRIBUTORS, INC
A SUBSIDIARY OF
THE AUXER GROUP, INC.
AND
ERNEST R. DESAYE, JR.
<P>
ADDENDUM No. 1, dated May 15, 2000, to the AGREEMENT dated
the 22 day of April, 1999, between Hardyston Distributors,
Inc., a subsidiary corporation of THE AUXER GROUP, INC., a
Delaware corporation (hereinafter the "Company") which will
have its principal place of business at 12 Andrews Drive,
West Paterson, NJ 07424, and Ernest R. DeSaye, Jr.
(hereinafter the "Employee").
<P>
WHEREAS, the Company employs the services of Employee
because of his special knowledge and skills; and,
<P>
NOW, THEREFORE, in consideration of and hereby acknowledged,
that the following Addendum agreed:
<P>
1) COMPENSATION
<P>
For year one (1) of the Agreement, in lieu of Mr. DeSaye's
incentive payments as summarized below:
<P>
1) cash equal to one percent (1%) of the gross profit
(gross sales less discounts less costs of goods sold)
derived from house accounts defined as all current accounts
of Hardyston Distributors purchased today by the Company; 2)
cash equal to two percent (2%) of the gross profit on all
new clients obtained during the term of this agreement only
on orders placed by each of said new clients for twelve
months following said each new client's first order where
after said account will become a house account.
<P>
Mr. DeSaye, Jr. has agreed to accept the following:
<P>
Mr. DeSaye shall be entitled to options under the Company's
Non-Statutory Option Plan. The Employee shall be granted the
option to purchase an aggregate of 100,000 shares of The
Auxer Group, Inc. common stock, $0.001 par value per share,
at an exercise price of $0.05 per share. Upon signing this
agreement, the Company will file the appropriate
registration statement and upon filing the registration
statement, Employee may exercise these options at any time
within the plan's limitations.
2) SUPERSEDES EARLIER AGREEMENTS
<P>
This Addendum No. 1 to the Agreement dated April 22, 1999
supersedes all earlier agreements between the Employee and
the Company with respect to Employee's employment by the
Company.
<P>
IN WITNESS WHEREOF, the parties have executed this Agreement
the date first written above.
<P>
THE AUXER GROUP, INC.
/s/ Ernest R. DeSaye, Jr. /s/ Eugene Chiaramonte, Jr.
- -------------------------- ---------------------------
Ernest R. DeSaye, Jr. Eugene Chiaramonte, Jr.
President
<P>
EXHIBIT 5.1
<P>
RICHARD I. ANSLOW & ASSOCIATES
4400 ROUTE 9 SOUTH, 2ND FLOOR
FREEHOLD, NEW JERSEY 07728
Telephone (732) 409-1212
Facsimile (732) 577-1188
<P>
May 23, 2000
<P>
Combined Opinion and Consent
<P>
The Auxer Group, Inc.
12 Andrews Drive
West Patterson, New Jersey 07424
<P>
Re: The Auxer Group, Inc.
<P>
Gentlemen:
<P>
We have acted as counsel to The Auxer Group, Inc., a
Delaware corporation (the "Company"), in connection with the
preparation and filing with the Securities and Exchange
Commission (the "Commission") under the Securities Act of
1933 as amended (the "Act") of the Company's Registration
Statement on Form S-8, filed contemporaneously with the
Commission relating to the registration under the Act of
2,000,000 shares (the "Shares") of the Company's Common
Stock, $0.001 par value (the "Common Stock").
<P>
In rendering this opinion, we have reviewed the Registration
Statement on Form S-8, as well as a copy of the Certificate
of Incorporation of the Company, as amended, and the By-Laws
of the Company. We have also reviewed such statutes and
judicial precedents as we have deemed relevant and necessary
as a basis for the opinion hereinafter expressed. In our
examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals,
the conformity with, the original documents of all documents
submitted to us as certified or photostatic copies, and the
authenticity of the originals of such copies.
<P>
Based on the foregoing and in reliance thereon, and subject
to the qualifications and limitations set forth herein, we
are of the opinion that:
<P>
(1) The Company has been duly incorporated and is a
validly existing corporation under the laws of the State of
Delaware;
<P>
(2) The Shares, when issued in connection with the
agreements (copies annexed to the Registration Statement),
will be legally issued, fully paid and non-assessable.
<P>
This opinion is limited to the General Corporation Law and
the Constitution of the State of Delaware and we express no
opinion with respect to the laws of any other jurisdiction.
We consent to your filing this opinion with the Securities
and Exchange Commission as an exhibit to the Registration
Statement on Form S-8. This opinion is not to be used,
circulated, quoted or otherwise referred to for any other
purpose without our prior written consent.
<P>
Very truly yours,
<P>
RICHARD I. ANSLOW & ASSOCIATES
<P>
By: /s/ Richard I. Anslow
- ------------------------------
Richard I. Anslow
<P>
RIA/tp
<P>
EXHIBIT 23.1
<P>
CONSENT OF INDEPENDENT AUDITORS
<P>
The Auxer Group, Inc., West Patterson, New Jersey
<P>
We have issued our report dated March 23,2000, relating to
the financial statements of The Auxer Group, Inc. for the
years ended December 31, 1999 and December 31, 1998
appearing in the Company's Form 10-SB. In addition, we have
issued our report dated May 10, 2000, relating to the
financial statements of The Auxer Group, Inc. for the
quarter ended March 31, 2000 appearing in the Company's Form
10-QSB. Such reports have been incorporated by reference in
this Registration Statement. We consent to the
incorporation by reference in this Registration Statement on
Form S-8 of the aforementioned reports and to the use of our
name as it appears under the caption "Experts."
<P>
Edelman & Kalosieh, Certified Public Accountants, P.A.
<P>
By: /s/ Edelman & Kalosieh, CPAs, P.A.
----------------------------------
Edelman & Kalosieh, CPAs, P.A.
<P>
Fair Lawn, New Jersey
May 23, 2000
<P>
