Registration No. _____________________________
As filed with the Securities and Exchange Commission on
_________________________________, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BOVIE MEDICAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3186327
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
734 Walt Whitman Road
Melville, NY 11747
(516) 421-5452
(Address, including zip code, and telephone number, including
area code, or registrant's principal executive offices)
BOVIE MEDICAL CORPORATION
1998 NON-STATUTORY STOCK OPTION PLAN
(Full title of plan)
1998 NON-STATUTORY STOCK OPTION PLAN
(Full title of plan)
Andrew Makrides
President
Bovie Medical Corporation
734 Walt Whitman Road
Melville, NY 11747
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Alfred V. Greco, PLLC
666 Fifth Avenue (14th Floor)
New York, NY 10103
(212) 246-6550
<PAGE>
(Registration Statement cover page continued)
<TABLE>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Title of Each Amount to be Proposed Maximum Proposed Maximum Amount of Registration
Class of Securities Registered (1) Aggregate offering Aggregate Offering Fee
to be Registered Price (1) Price (1)
Common Stock,
par value $.001 per
share (2) 1,200,000 $.75 $900,000 $237.60
</TABLE>
- ----------------------------
(1) Estimated solely for the purpose of calculating the registration
fee.
(2) The shares registered pursuant to this Registration Statement are
available for grant as of the date of this Registration Statement under the
Company's 1998 Non-Statutory Stock Option and available for issuance
pursuant to certain stock options the forms of which are attached as
exhibits to this Registration Statement.
(3) Pursuant to General Instruction, the registration fee paid in
connection herewith is based on the maximum aggregate price at which
securities covered by this registration statement are proposed to be
offered.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1: Plan Information.
The information required by Part I is included in documents to be sent
or given to the participants.
ITEM 2: Registration Information and Employee Plan Annual Information.
Upon written or oral request, Bovie Medical Corporation, a Delaware
corporation (the "Registrant") will provide, without charge, a copy of all
documents incorporated by reference in Item 3 of Part II of this Registration
Statement, which are incorporated by reference in the Section 10(a) Prospectus,
and all other documents required to be delivered to employees pursuant to Rule
428(b) promulgated under the Securities Act of 1933, as amended (the "Securities
Act"). All requests should be made to Bovie Medical Corporation att: Andrew
Makrides, President, Melville, NY 11747, tel no. (516) 421-5452
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: Incorporation of Documents by Reference.
The following documents, which are on file with the Securities and
Exchange Commission (the "Commission"), are incorporated in this Registration
Statement by reference:
(a) Annual Report on Form 10-KSB for the Fiscal Year Ended December
31, 1998.
(b) Quarterly Report on Form 10-QSB for the Quarterly Period ended March 31,
1998.
(c) Quarterly Report on Form 10-QSB for the Quarterly Period Ended June 30,
1998.
(d) Quarterly Report on Form 10-Q5B for the Quarterly Period Ended September 30,
1998.
(e) The description of the Common Stock which is contained in the registration
statements filed under the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 14 and
15(d) of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all shares offered hereby have been sold or which
deregisters all shares then remaining unsold, shall be deemed to be incorporated
in this Registration Statement by reference and to be a part hereof from the
date of filing of such documents.
ITEM 4: Description of Securities.
N/A
ITEM 5: Interests of Named Experts and Counsel.
N/A
<PAGE>
(1)
ITEM 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation generally provide for the
maximum indemnification of a corporation's officers and directors as permitted
by law in the State of Delaware. Delaware law empowers a corporation to
indemnify any person who was or is a party or who is threatened to be made a
party to any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except in the case of
an action by or in the right of the corporation, by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise. Depending on the
character of the proceeding, a corporation may indemnify against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding if the person indemnified acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceedings, had no
reasonable cause to, believe his or her conduct was unlawful.
A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or other
enterprise, against expenses, including amounts paid in settlement and
attorney's fees actually and reasonably incurred by him or her in connection
with the defense or settlement of the action or suit if he or she acted in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the corporation. Indemnification may not be
made for any claim, issue or matter as to which such a person has been adjudged
by a court of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the corporation or for amounts paid in settlement to the
corporation unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to above, or in defense of any claim, issue
or matter therein, he or she must be indemnified by the corporation against
expenses, including attorney's fees, actually and reasonably incurred by him in
connection with the defense. Any indemnification under this section, unless
ordered by a court or advanced pursuant to this section, must be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made: (a) by the stockholders; (b) by
the board of directors by majority vote, of a quorum consisting of directors who
were not parties to the action, suit or proceeding; (C) if a majority vote of a
quorum consisting of directors who were not parties to the action, suit or
proceeding so orders, by independent legal counsel in a written opinion; or (d)
if a quorum consisting of directors who were not parties to the action, suit or
proceeding cannot be obtained, by independent legal counsel in a written
opinion.
The certificate of incorporation, the bylaws or an agreement made by
the corporation may provide that the expenses of officers and directors incurred
in defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance o the final disposition of
<PAGE>
(2)
the action, suit or proceeding upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he or she is not entitled to be indemnified
by the corporation. The provisions of this section do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
The indemnification and advancement of expenses authorized in or
ordered by a court pursuant to this section: (a) does not exclude any other
rights to which a person seeking indemnification or advancement of expenses may
be entitled under the articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, for either an action in
his or her official capacity or an action in another capacity while holding his
or her office, except that indemnification, unless ordered by a court pursuant
to this section or for the advancement of any director or officer if a final
adjudication establishes that his or her acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action; and (b) continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
ITEM 7: Not Applicable
ITEM 8: Exhibits.
4.1 1998 Non-Statutory Stock Option Plan.
4.2 Form of Stock Option
5.1 Opinion of Alfred V. Greco, PLLC
23.1 Consent of Alfred V. Greco, PLLC (consent included in Exhibit 5.1).
23.2 Consent of Bloom & Company
- -------------------------------
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:
(i) To include any prospectus required by Section 10(a) (3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information in the
Registration Statement;
(iii) To include any additional or changed material information on the plan
of distribution;
provided, however, that paragraphs (1)(i) and (1)(ii) above 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 those paragraphs is
incorporated by reference from periodic reports filed by the Registrant under
the Exchange Act.
(2) That, for determining liability under the Securities Act, to treat each
such post-effective amendment as a new registration statement of the securities
offered, and the offering of such securities at that time to be the initial bona
fide offering.
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the end of the
offering.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person in the successful defense of
any action, suit or proceeding) is asserted by such director, officers 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 Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-B and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of New York, New York, on this day of March, 2000.
Bovie Medical Corporation
By _____________________________________
Andrew Makrides, Principal Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Capacity in Which Signed Date
_______________________ President, Director,
Andrew Makrides Principal Executive Officer March 21, 2000
_______________________
J. Robert Saron Director March 21, 2000
_______________________
Nancy Keller Chief Financial officer March 21, 2000
(Chief Financial Officer
and principal Accounting
Officer)
_______________________ Director March 21, 2000
George Kromer
_______________________ Director March 21, 2000
Alfred V. Greco
_______________________ Director March 21, 2000
Ken Davidson
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Alfred V Greco and George Kromer as his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
and supplements to this Registration Statement, and to file the same with the
Securities and Exchange Commission, granting until said attorneys-in-fact and
agent, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity in Which Signed Date
Andrew Makrides Director March 21, 2000
J. Robert Saron Director March 21, 2000
Ken Davidson Director March 21, 2000
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
Document Description of Document Sequentially
Numbered Page
4.1 1998 Non-Statutory Stock Option Plan 8
4.2 Form of Stock Option 18
5.1 Opinion of Alfred V. Greco, PLLC 20
23.1 Consent of Alfred V. Greco, PLLC 20
(contained in opinion)
23.2 Consent of Bloom & Company 21
</TABLE>
<PAGE>
AN-CON GENETICS, INC.
1998 Non-Statutory Stock Purchase and Option Plan
SECTION 1
PURPOSES
AN-CON GENETICS, INC. (the "Company") desires to afford certain of its
key employees, officers, directors and consultants who are responsible for the
continued growth of the Company an opportunity to acquire a proprietary interest
in the Company, and thus to create in such individuals an increased in and
greater concern for the welfare of the Company and its subsidiaries.
The Company, by means of this 1998 Non-Statutory Stock Purchase and
Option Plan (the "Plan"), seeks to retain the services of persons now holding
key positions and to secure the services of persons capable of filling such
positions.
The stock options offered pursuant to the Plan are a matter of separate
inducement and are not in lieu of any salary or other compensation for the
services of any key employee or consultant.
The stock options granted under the Plan are intended to be either
incentive stock options within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended, or options that do not meet the requirements
for incentive stock options.
SECTION 2
DEFINITIONS.
As used in the Plan, the following terms shall have the meanings set
forth below:
(a) "Affiliate" shall mean (i) any entity that, directly or indirectly
through one or more intermediaries, is controlled by the Company and (ii) any
entity in which the Company has a significant equity interest.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any regulations promulgated thereunder.
(c) "Committee" shall mean the Board of Directors, or a committee of the
Board of Directors of the Company designated by resolution of the Board of
Directors to administer the Plan, which shall consist of not less than two (2)
"Non-Employee Directors," as such term is defined in Rule 16b-3(b)(3)(i)
promulgated under the Securities Exchange Act of 1934, as amended, each having
the requisite qualifications thereunder to satisfy the requirements of Rule
16b-3.
(d) "Company shall mean AN-CON GENETICS, INC.", a Delaware corporation.
(e)"Eligible Person" shall mean any employee, officer or consultant
providing services to the Company or any Affiliate who the Committee determines
to be an Eligible Person. A director of the Company who is not also an employee
of the Company or an Affiliate shall not be an Eligible Person.
(f) "Fair Market Value" shall mean the closing "bid" price of the Company's
Shares on the date in question as quoted on the Electronic Bulletin Board of the
National Association of Securities Dealers or its Automated Quotation System
("NASDAQ") or on any successor national stock exchange on which the Common Stock
is then traded, provided, however, that if on the date in question there is no
public market for the Company's Shares and they are neither quoted on "NASDAQ"
nor traded on a national securities exchange, then the Committee shall, in its
sole discretion and best judgment, determine the Fair Market Value.
(g) "Incentive Stock Option" shall mean an option granted under the Plan
that is intended to meet the requirements of Section 422 of the Code or any
successor provision.
(h) "Non-Qualified Stock Option" shall mean an option granted under the
Plan that is not intended to be an Incentive Stock Option.
(i) "Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
(j) "Option Agreement" shall mean any written agreement, contract or
document evidencing any Option granted under the Plan.
(k) "Participant" shall mean an Eligible Person designated to be granted an
Option under the Plan.
(l) "Person" shall mean any individual, corporation, partnership,
association, limited liability company, association or trust. <PAGE>
(m) "Plan" shall mean this 1996 Employee and Consultant Stock Option Plan,
as amended from (9) time to time.
(n) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended, or
any successor rule or regulation.
(o) "Shares" shall mean shares of Common Stock, $.001 par value, of the
Company.
SECTION 3
ADMINISTRATION.
(a) Power and Authority of the Committee. The Plan shall be
administered by the Board of Directors, or, pursuant to resolution of the Board
of Directors, a committee consisting of at least two non-employee directors,
(the "Committee"). Subject to the express provisions of the Plan and to
applicable law, the Committee shall have full power and authority to: (i)
designate Participants; (ii) determine the types of Options (e.g., whether
Incentive Stock Options or Non-Qualified Stock Options) to be granted to each
Participant under the Plan; (iii) determine the number of Shares to be covered
by each Option; (iv) determine the terms and conditions of any Option Agreement;
(v) amend the terms and conditions of any Option Agreement and accelerate the
exercisability of Options covered thereunder; (vi) determine whether, to what
extent and under what circumstances Options may be exercised in cash, Shares or
other property, or canceled, forfeited or suspended; (vii) determine whether, to
what extent and under what circumstances Options shall be deferred either
automatically or at the election of the holder thereof or the Committee; (viii)
interpret and administer the Plan and any instrument or Option Agreement
relating to, or Option granted under the Plan; (ix) establish, amend, suspend or
waive such rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and (x) make any other
determination and take any other action that the Committee deems necessary or
desirable for the administration of the Plan. Unless otherwise expressly
provided in the Plan, all designations, determinations, interpretations and
other decisions under or with respect to the Plan or any Option shall be within
the sole discretion of the Committee, may be made at any time and shall be
final, conclusive and binding upon any Participant, any holder or beneficiary of
any Option granted under the Plan and any employee of the Company or any
Affiliate.
SECTION 4
AVAILABLE SHARES SUBJECT TO OPTION.
(a) Shares Available. The total number of Shares for which Options may be
granted pursuant to the Plan shall be 1,200,000 Shares of the Common Stock in
the aggregate, subject to adjustment as provided in
Section 4(c). If any Shares covered by an Option or to which an Option
relates are not purchased or are forfeited, or if an Option otherwise expires,
then the number of Shares counted against the aggregate number of Shares
available under the Plan with respect to such Option, to the extent of any such
forfeiture or termination, shall again be available for Options under the Plan.
(b) Accounting for Shares Covered by an Option. For purposes of this
Section 4, the number of Shares covered by an Option shall be counted on the
date of grant of such Option against the aggregate number of Shares available
for granting Options under the Plan.
(c) Adjustments. In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Shares, other
securities or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Shares or other securities of the Company, issuance of
warrants or other rights to purchase Shares or other securities of the Company
or other similar rights to purchase Shares or other securities of the Company or
other similar corporation transaction or event affects the Shares subject to
Option grants under the Plan such that an adjustment is determined by the
Committee to be appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan,
then the Committee shall, in such manner as it may deem equitable, adjust any or
all of(i) the number of Shares which may thereafter be made the subject of
Options; (ii) the number of Shares subject to outstanding Option awards; (iii)
the purchase or exercise price with respect to any Option, provided, however,
that the number of Shares covered by an Option or to which such Option relates
shall always be a whole number.
(d) Incentive Stock Options. Notwithstanding the foregoing, the number of
Shares available for granting Incentive Stock Options under the Plan shall not
exceed 1,200,000, subject to adjustment as provided in the Plan and Section 422
or 424 of the Code or any successor provisions.
SECTION 5
ELIGIBILITY
Any Eligible Person shall be eligible to be designated a Participant. In
determining which Eligible Persons shall receive an Option and the terms of any
Option, the Committee may take into account the nature of the services rendered
by the respective Eligible Persons, their present and potential contributions to
the success of the Company or such other factors as the Committee, in its
discretion, shall deem relevant. Notwithstanding the foregoing, an Incentive
Stock Option may only be granted to fall or part-time employees (which term as
used herein includes, without limitation, officers and directors who are also
employees) and an Incentive Stock Option shall not be granted to an employee of
an Affiliate unless such Affiliate is also a "subsidiary corporation" of the
Company within the meaning of Section 424(f) of the Code or any successor
provision.
SECTION 6
OPTION AWARDS.
The Committee is hereby authorized to grant Options to Participants with
the following terms and conditions and with such additional terms and conditions
not inconsistent with the provisions of the Plan as the Committee shall
determine:
(i) Exercise Price. The purchase price per Share purchasable under an
Option shall be determined by the Committee, provided, however, that such
purchase price shall not be less than 100% of the Fair Market Value of a Share
on the date of grant of such Option, provided further, however, that in the case
of an Incentive Stock Option granted to a Participant who, at the time such
Option is granted, owns Shares of the Company or shares of any subsidiary
corporation or parent corporation of the Company which possesses more than ten
percent (10%) of the total combined voting power of all classes of shares of the
Company or of any subsidiary corporation or parent corporation of the Company
(hereinafter, a "10% Shareholder"), the purchase price for each Share shall be
such amount as the Committee in its best judgment shall determine to be not less
than one hundred ten percent (110%) of the Fair Market Value per Share at the
date the Incentive Stock Option is granted. In determining stock ownership of a
Participant for any purposes under the Plan, the rules of Section 424(d) of the
Code shall be applied, and the Committee may rely on representations of fact
made to it by Participant and believed by it to be true.
(ii) Option Term. The term of each Option shall be fixed by the Committee
which in any event shall not exceed a term often (10) years from the date of the
grant, provided, however, that the term of any Incentive Stock Option granted to
any 10% Shareholder shall not be exercisable after the expiration of five (5)
years from the date such Incentive Stock option was granted.
(iii) Maximum Grant of Incentive Stock Options. The aggregate Fair Market
Value (determined on the date the Incentive Stock Option is granted) of Shares
subject to an Incentive Stock Option (when first exercisable) granted to a
Participant by the Committee in any calendar year shall not exceed $100,000.
(iv) Time and Method of Exercise. Subject to the provisions of the Plan,
the Committee shall determine the time or times at which an Option may be
exercised in whole or in part and the method or methods by which, and the form
or forms (including, without limitation, cash, Shares, promissory notes, other
securities, other property, or any combination thereof, having a Fair Market
Value on the exercise date equal to the relevant exercise price) in which,
payment of the exercise price with respect thereto may be made or deemed to have
been made.
(v) Limits on Transfer of Options. No Option shall be transferable by a
Participant otherwise than by will or by the laws of descent and distribution;
provided, however, that, if so determined by the Committee, a Participant may,
in the manner established by the Committee, designate a beneficiary or
beneficiaries to exercise the rights of the Participant and receive any Shares
purchased with respect to any Option upon the death of the Participant. Each
Option shall be exercisable during the Participant's lifetime only by the
Participant or, if permissible under applicable law, by the Participant's
guardian or legal representative. No Option or Shares underlying any Option
shall be pledged, alienated, attached or otherwise encumbered, and any purported
pledge, alienation, attachment or encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.
(vi) Restrictions: Securities Exchange Listing. All certificates for Shares
delivered upon the exercise of Options under the Plan shall be subject to such
stop transfer orders and other restrictions as the Committee may deem advisable
under the Plan or the rules, regulations and other requirements of the
Securities and Exchange Commission and any applicable federal or state
securities laws, and the Committee may cause a legend or legends to be placed on
such certificates to make appropriate reference to such restrictions. If the
Shares or other securities are traded on a national securities exchange, the
Company shall not be required to deliver any Shares covered by an Option unless
and until such Shares have been admitted for trading on such securities
exchange.
(vii) Termination of Employment. (A) Upon termination of the employment or
consultancy, as the case may be, of any Participant, an Option previously
granted to the Participant, unless otherwise specified by the Committee in the
Option, shall, to the extent not theretofore exercised, terminate and become
null and void, provided that:
(a) If the Participant shall die while in the employ of the Company or
during a period after termination of employment as specified in clause (b) below
and at a time when such Participant was entitled to exercise an Option as herein
provided, the legal representative of such Participant, or such Person who
acquired such Option by bequest or inheritance or by reason of the death of the
Participant, may, not later than one (1) year from the date of death, exercise
such Option, to the extent not theretofore exercised, in respect of any or all
of such number of Shares as specified by the Committee in such Option; and
(b) With respect to Participants who are employees, if the employment of
any employee to whom such Option shall have been granted shall terminate by
reason of the Employee's retirement (at such age or upon such conditions as
shall be specified by the Board of Directors), disability (as described in
Section 22(e)(3) of the Code) or dismissal by the employer other than for cause
(as defined below), and while such employee Participants entitled to exercise
such option as herein provided, such employee Participant shall have the right
to exercise such Option so granted, to the extent not theretofore exercised, in
respect of any or all of such number of Shares as specified by the Committee in
such Option, at any time up to and including (i) twelve (12) months after the
date of such termination of employment. In the event death occurs during the 12
month period after termination for any reason other than for cause, the time for
such optionee's representative to exercise such option shall extend to one (1)
year from date of death of the optionee. (B) If a Participant voluntarily
terminates his or her employment or consultancy, as the case may be, or is
discharged for cause, any Option granted hereunder shall, unless otherwise
specified by the Committee in the Option, forthwith terminate with respect to
any unexercised portion thereof
(C) If an Option granted hereunder shall be exercised by the legal
representative of a deceased or disabled Participant, or by a person who
acquired an Option granted hereunder by (13) bequest or inheritance or by reason
of death of any such person, written notice of such exercise shall be
accompanied by a certified copy of letters testamentary or equivalent proof of
the right of such legal representative or other person to exercise such Option.
(D) For all purposes of the Plan, the term "for cause" shall mean, (i) with
respect to a Participant who is a party to a written employment or consultancy
agreement with the Company, as the case may be, which contains a definition of
"for cause" or "cause" (or words of like import) for purposes of termination of
employment or consultancy thereunder by the Company, "for cause" or ~~cause~~ as
defined in the most recent of such agreements, or (ii) in all other cases, as
determined by the Committee, in its sole discretion, that one or more of the
following has occurred: (W) any failure by a Participant to substantially
perform his or her employment or consultancy duties, as the case may be, which
shall not have been corrected within thirty (30) days following written notice
thereof, (X) any engaging by such Participant in misconduct or, in the case of
an officer Participant, any failure or refusal by such officer Participant to
follow the directions of the Company's Board of Directors or Chief Executive
Officer of the Company which, in either case, is injurious to the Company or any
Affiliate, (Y) any breach by a Participant of any covenant contained in the
instrument pursuant to which an Option is granted, or (Z) such Participant's
conviction of or entry of a plea of nolo contendere in respect of any felony, or
of a misdemeanor which results in or is reasonably expected to result in
economic or reputational injury to the Company or any of its Affiliates.
SECTION 7
AMENDMENT AND TERMINATION: ADJUSTMENTS.
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Option Agreement or in the Plan:
(a) Amendments to the Plan. The Board of Directors of the Company may
amend, alter, suspend, discontinue or terminate the Plan; provided, however,
that, notwithstanding any other provision of the Plan or any Option Agreement,
without the approval of the stockholders of the Company, no such amendment,
alteration, suspension, discontinuation or termination shall be made that,
absent such approval:
(i) would cause Rule 16b-3 to become unavailable with respect to the Plan;
(ii) would violate the rules or regulations of any national securities
exchange on which the Shares of the Company are traded or the rules or
regulations of the National Association of Securities Dealers, Inc. that are
applicable to the Company; or
(iii) would cause the Company to be unable, under the Code, to grant
Incentive Stock Options under the Plan.
(b) Amendments to Option Grants. The Committee may waive any conditions or
rights of the Company under any outstanding Option grant, prospectively or
retroactively. The Committee may not amend, alter, suspend, discontinue or
terminate any outstanding Option grant, prospectively or retroactively, without
the consent of the Participant or holder or beneficiary thereof, except as
otherwise herein provided.
(c) Correction of Defects, Omissions and Inconsistencies. The Committees
may correct any defect, supply any omission or reconcile any inconsistency in
the Plan or any Option in the manner and to the extent it shall deem desirable
to carry the Plan into effect.
SECTION 8
INCOME TAX WITHHOLDING: TAX BONUSES.
(a) Withholding. In order to comply with all applicable federal or state
income tax laws or regulations, the Company may take such action as it deems
appropriate to ensure that all applicable federal or state payroll, withholding,
income or other taxes, which are the sole and absolute responsibility of a
Participant, are withheld or collected from such Participant. In order to assist
a Participant paying all or a portion of the federal and state taxes to be
withheld or collected upon exercise of any Option, the Committee, in its
discretion and subject to such additional terms and conditions as it may adopt,
may permit the Participant to satisfy such tax obligation by (i) electing to
have the Company withhold a portion of the Shares otherwise to be delivered upon
exercise of any Option with a Fair Market Value equal to the amount of such
taxes or (ii) delivering to the Company Shares other than the Shares issuable
upon exercise of the applicable Option with a Fair Market Value equal to the
amount of such taxes. The election, if any, must be made on or before the date
that the amount of tax to be withheld is determined.
(b) Tax Bonuses. The Committee, in its discretion, shall have the
authority, at the time of grant of any Option under this Plan or at any time
thereafter, to approve cash bonuses to designated Participants to be paid upon
their exercise in order to provide funds to pay all or a portion of federal and
state taxes due as a result of such exercise. The Committee shall have lull
authority in its discretion to determine the amount of any such tax bonus.
SECTION 9
GENERAL PROVISIONS.
(a) No Rights to Option Grants. No Eligible Person, Participant or other
Person shall have any claim to be granted an Option under the Plan, and there is
no obligation for uniformity of treatment of Eligible Persons, Participants or
holders or beneficiaries of Options granted under the Plan. The terms and
conditions of Options need not be the same with respect to any Participant or
with respect to different Participants.
(b) Option Agreements. No Participant will have rights under an Option
granted to such Participant unless and until an Option Agreement shall have been
duly executed on behalf of the Company. Each Option Agreement shall set forth
the terms and conditions of any Option granted to a Participant consistent with
the provisions of this Plan.
(c) No Limit on Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or continuing in
effect other or additional compensation arrangements, and such arrangements may
be either generally applicable or applicable only in specific cases.
(d) No Right to Employment. The grant of an Option shall not be construed
as giving a Participant the right to be retained in the employ of the Company or
any Affiliate, nor will it affect in anyway the right of the Company or an
Affiliate to terminate such employment at any time, with or without cause. In
addition, the Company or an Affiliate may at any time dismiss a Participant from
employment free from any liability or any claim under the Plan, unless otherwise
expressly provided in the Plan or in any Option Agreement.
(e) Governing Law. The validity, construction and effect of the Plan or any
Option granted hereunder, and any rules and regulations relating to the
Plan or any Option granted hereunder, shall be determined in accordance with the
laws of the State of Connecticut except to the extent preempted by Federal law.
(1) Severability. If any provision of the Plan or any Option is or becomes
or is deemed to be invalid, illegal or unenforceable in any jurisdiction or
would disqualify the Plan or any Option under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be so construed or deemed amended without, in
the determination of the Committee, materially altering the purpose or intent of
the Plan or the Option, such provision shall be stricken as to such jurisdiction
or Option, and the remainder of the Plan or any Option shall remain in full
force and effect.
(g) Section Headings. The section headings included herein are only for
convenience, and they shall have no effect on the interpretation of the Plan.
SECTION 10
EFFECTIVE DATE OF THE PLAN.
The Plan shall be effective on January 2, 1998 (the "Plan Effective Date"),
subject to approval by the Company's stockholders within one (1) year
thereafter.
SECTION 11
TERM OF THE PLAN.
Unless the Plan shall have been discontinued or terminated as provided in
Section 7(a), the Plan shall terminate on January 1, 2008. No Option shall be
granted after the termination of the Plan. However, unless otherwise expressly
provided in the Plan or in an applicable Option Agreement, any Option
theretofore granted may extend beyond the termination of the Plan, and the
authority of the Committee provided for hereunder with respect to the Plan and
any Option grants, and the authority of the Board of Directors of the Company to
amend the Plan, shall extend beyond the termination of the Plan.
IN WITNESS WHEREOF, this Plan has been executed at St. Petersburg, Florida
on this 2nd day of January, 1998.
AN-CON GENETICS, INC.
By ___/s/______________________
J. Robert Saron, President and Chief Executive Officer
<PAGE>
An-Con Genetics, Inc.
a Delaware corporation
NON-STATUTORY STOCK OPTION
Name of Optionee Date Option Granted
Address No. ________
This Agreement ("Agreement") is made as of the date set forth above
between An-Con Genetics, Inc., a Delaware corporation (hereinafter the
"Company"), and the optionee named above (hereinafter "Optionee"). The option
granted by this Agreement is designated a "Non-Statutory Option" granted
pursuant to the An-Con Genetics, Inc., 1996 Non-Statutory Stock Option Plan
dated __________________1996 (the "Plan").
1. Grant of Option. Pursuant to and subject to the terms and conditions of
the Agreement, the Company grants to the Optionee, a consultant to the Company,
the right and option (the "Option") to purchase at $.75 per share on the terms
and conditions hereinafter set forth all or any part of an aggregate
of________shares (the "Shares") of the currently authorized and unissued Common
Stock, par value $.OO1 per share. The Option shall be exercisable, in whole or
in part, during the period commencing with the date on which it is granted and
ending on December 31, 1999.
Nothing contained herein shall be construed to limit or restrict the
right of the Company or a parent or subsidiary corporation of the Company to
terminate the Optionee's services for the Company.
2. Method of Exercise. The Option may be exercised pursuant thereto by
written notice to the Company stating the number of shares with respect to which
the option is being exercised, together with payment in full, (a) in cash or
certified check; (b) or acknowledgement of cancellation of the Company's
indebtedness to the optionee for services or otherwise; or (c) any combination
of the foregoing. If requested by the Board of Directors, prior to the delivery
of any Shares, the Optionee shall supply the Board of Directors with a
representation that the Shares are not being acquired with a view to
distribution and will be sold or otherwise disposed of only in accordance with
applicable federal and state statutes, rules and regulations.
As soon after the notice of exercise as the Company is reasonably able
to comply, the company shall, without payment of any transfer or issue tax by
the Optionee, deliver to the Optionee or any such other person, at the main
office of the company or such other place as shall be mutually acceptable, a
certificate or certificates for the Shares being purchased upon exercise of the
Option. Notwithstanding the foregoing, the Company shall have the right to
postpone the time of delivery of the Shares for such period as may be required
for it with reasonable diligence to comply with any applicable listing
requirements of any national securities exchange or any federal, state or local
law. The Optionee may exercise the Option for less than the total number of
Shares for which the Option is then exercisable, provided that a partial
exercise may not be for fewer than 100 Shares, unless the remaining shares
exercisable under the Option is for less than 100 Shares. The Option may be
exercisable for whole Shares only.
3. Termination of Option. The Option shall terminate and expire
immediately and in total at the expiration date of the option. In addition, the
option shall automatically terminate upon the earlier of:
(i)Upon termination of the optionee's employment with the Company for cause
(as defined under the Plan);
(ii) At the expiration of twelve (12) months from the date of termination
of the optionee's employment with the Company for any other reason; provided,
that if the optionee dies within such twelve-month period, subclause (iii) below
shall apply; or
(iii) At the expiration of twelve (12) months after the date of death of
the optionee.
4. Adjustments. If there is any change in the capitalization of the
Company affecting in any manner the number or kind of outstanding shares of
Common Stock of the Company, whether by stock dividend, stock split,
reclassification or recapitalization of such stock, or because the Company has
merged or consolidated with one or more other corporations (and provided the
Option does not thereby terminate pursuant to Section 5 hereof), then the number
and kind of shares then subject to the Option and the price to be paid therefor
shall be appropriately adjusted by the Board of Directors; provided, however,
that in no event shall any such adjustment result in the Company's being
required to sell or issue any fractional shares. Any such adjustment shall be
made without change in the aggregate purchase price applicable to the
unexercised portion of the option, but with an appropriate adjustment to the
price of each Share or other unit of security covered by this Option.
5. Cessation of Corporate Existence. Notwithstanding any other provision
of this Option, upon the dissolution or liquidation of the Company, the
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or the sale of substantially all the assets of the Company or of more than 50%
of the then outstanding stock of the Company to another corporation or other
entity, the option granted hereunder shall terminate; provided, however, that:
(i) each option for which no option has been tendered by the surviving
corporation in accordance with all of the terms of provision (ii) immediately
below shall, within five days before the effective date of such dissolution or
liquidation, merger or consolidation or sale of assets in which the Company is
not the surviving corporation or sale of stock, become fully exercisable; or
(ii) in its sole and absolute discretion, the surviving corporation may, but
shall not be so obligated to, tender to any optionee, an option to purchase
shares of the surviving corporation, and such new option or options shall
contain such terms and provisions as shall be required substantially to preserve
the rights and benefits of this option.
6. Non-Transferability. The Option is not assignable or transferable by
the Optionee, either voluntarily or by operation of law, otherwise than by will
or by the laws of descent and distribution, and is exercisable, during the
Optionee's lifetime, only by the Optionee. Upon any attempted transfer of this
Option contrary to the provisions hereof, the Board of Directors may, at its
discretion, terminate this option.
7. No Stockholder Rights. The Optionee or other person entitled to
exercise this option shall have no rights or privileges as a stockholder with
respect to any Shares subject hereto until the Optionee or such person has
become the holder of record of such Shares, and no adjustment (except such
adjustment as may be effected pursuant to the provisions of Section 4 hereof)
shall be made for dividends or distributions of rights in respect of such Shares
if the record date is prior to the date on which the optionee or such person
becomes the holder of record.
8. Method of Acceptance. This Agreement is addressed to the optionee
in duplicate and shall not be effective until the Optionee has executed the
acceptance below and returned one copy to the Company, thereby acknowledging
that he has read and agreed to all the terms and conditions of this Agreement.
Executed by the Company as of this _____ day of _______________, 199__.
An-Con Genetics, Inc.
a Delaware corporation
By:____________________________
ACCEPTED:
("Optionee")
By:___________________ ______________________________
Date
<PAGE>
Alfred V. Greco PLLC
A Professional Limited Liability Company
666 Fifth Avenue
New York, NY 10103
Alfred V. Greco Tel.212/ 246 6550
Attorney at Law Fax 212/ 582 0176
March 15, 2000
Securities & Exchange Commission
450 Fifth Street N.W.
Washington, DC 20549
Attn: Section of Filings and Reports
Re: Bovie Medical Corporation (the "Company")
1998 Non-Statutory Stock Option Plan Form S-8
Gentlemen:
In connection with the filing of the above referenced registration statement on
Form S-8 to render an opinion concerning 1,200,000 shares of common stock which
are the subject of said registration statement. In this connection the
undersigned has reviewed the Company's Certificate of Incorporation, its
By-Laws, minutes and other relevant documents of the corporation.
Based upon the foregoing, the undersigned is of the opinion that (a) the
Company's 1998 Non Statutory Stock Option Plan was duly adopted by the Board of
Directors and ratified by Stockholders; (b) 1,200,000 shares of common stock of
the Company having a par value $.001 per share have been duly authorized for
issuance pursuant to exercise of options under the Company's 1998 Non-Statutory
Stock Option Plan (the "Plan") and,"Plan"; (c) upon exercise of options issued
pursuant to the Plan, and payment of consideration therefor, such shares, when
issued, shall be validly issued, fully paid and non-assessable shares of the
Company.
The undersigned consents to the use of his name and the name of this firm in
connection with the filing of the above referenced registration statement with
the Securities & Exchange Commission.
Very truly yours,
Alfred V Greco
