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As Filed with the Securities and Exchange Commission on March 13, 1996
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
WATER-JEL TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
New York 13-3006788
(State or other jurisdiction of (IRS Employer I.D. Number)
incorporation or organization)
243 Veterans Boulevard Carlstadt, New Jersey 07072
(Address of principal executive offices) (Zip Code)
Water-Jel Technologies, Inc. 1995 Stock Option Plan
(Full Title of Plan)
Peter D. Cohen, President
Water-Jel Technologies, Inc.
243 Veterans Boulevard, Carlstadt, New Jersey 07072
(Name and address of agent for service)
(201)-507-8300
(Telephone number, including area code, of agent for service)
Copies of all Oscar D. Folger, Esq.
communications to: 521 Fifth Avenue
New York, New York 10175
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered(1) Share(2) Price(1) Fee
---------------------------------------------------------------------------
Common Stock,
$.08 par value 500,000 $2.53125 $1,265,625 $ 436.42
(1) Estimated for purposes of computing the registration fee pursuant to
Rule 457(c) based upon the average of the bid and asked prices of the
Common Stock as reported by NASDAQ on March 11, 1996.
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PROSPECTUS
SUBJECT TO COMPLETION, DATED MARCH 13, 1996
WATER-JEL TECHNOLOGIES, INC.
500,000 Shares of Common Stock
This Prospectus relates to 500,000 shares of Common Stock of
Water-Jel Technologies, Inc. (the "Company"), par value $.08 per
share (the "Shares") which are issuable pursuant to the Company's
1995 Stock Option Plan. Any Shares which are offered will be
offered for the respective accounts of the Selling Shareholders.
This Prospectus does not relate to the sale or issuance by the
Company of any securities. The Company will not receive any
proceeds from the sale of the Shares by the Selling Shareholders.
The Company will receive exercise prices upon exercise of the
options relating to the Shares.
The Company has been advised by the Selling Shareholders that
there are no underwriting arrangements with respect to the sale of
the Shares, that the Shares will be sold from time to time in the
Nasdaq Small Cap Market ("Nasdaq") at then prevailing prices and/or
in private transactions at negotiated prices, and that usual and
customary brokerage fees will be paid by the Selling Shareholders
in connection therewith. See "Plan of Distribution."
The Company's Common Stock is traded on NASDAQ under the symbol
BURN. The closing bid quotation of the Company's Common Stock on
March 11, 1996 as quoted by NASDAQ was $2.4375 per share.
------------------------
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION, NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
==================================================================
Proceeds to
Price to Underwriting Discounts Selling
Public (1) and Commissions Shareholders(1)
Per Share ..... ___________________-0-_____________________________
Total ......... -0-
===================================================================
(1) Not determinable at present time.
The date of this Prospectus is March , 1996.
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AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the
Securities Exchange Act of 1934 and in accordance therewith files
reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information
may be inspected at the public reference facilities of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following Regional Offices of the
Commission: Suite 1400, 500 West Madison Street, Chicago, Illinois
60661-2511; Seven World Trade Center - 13th Floor, New York, New
York 10048; and Suite 500 East, 5757 Wilshire Boulevard, Los
Angeles, California 90036-3648. Copies of such material may be
obtained from the Public Reference Section of the Commission,
Washington, D.C. 20549, at prescribed rates.
------------------------
The Company will furnish its security holders with annual reports
containing audited financial statements at the end of each fiscal
year. In addition, the Company may, from time to time, issue
unaudited interim reports and financial statements.
------------------------
The Company undertakes to provide without charge to each person
to whom this Prospectus is delivered, upon the written or oral
request of such person, a copy of any and all of the information
that has been incorporated by reference in the Prospectus (not
including exhibits to the information that is incorporated by
reference unless such exhibits are specifically incorporated by
reference into the information that the Prospectus incorporates).
Such request should be directed to the Secretary, Water-Jel
Technologies, Inc., 243 Veterans Boulevard, Carlstadt, New Jersey
07072.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO
MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING DESCRIBED HEREIN
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFERING IN ANY JURISDICTION
TO ANY PERSON TO WHOM SUCH OFFER WOULD BE UNLAWFUL OR AN
OFFERING OF ANY SECURITIES OTHER THAN THE REGISTERED
SECURITIES TO WHICH IT RELATES. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER AT ANY TIME
SHALL IMPLY THAT THE INFORMATION PROVIDED HEREIN IS CORRECT AS
OF ANY TIME SUBSEQUENT TO ITS DATE.
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THE COMPANY
Water-Jel Technologies, Inc., (the "Company") is a New York
corporation established in 1979. Since its inception, the Company
has focused its efforts on the development, manufacture and
marketing of products using its Water-Jel gel as emergency first
aid for burn injuries. The Company's Water-Jel First Aid product
line for burns includes fire blankets, burn dressings, Burn Jel,
UnBurn, and Cool-Jel. In addition, the Company has expanded its
manufacturing operations to include a line of generic creams and
ointments and through an arrangement with Pfizer Inc. began
marketing Visine Singles to the industrial marketplace.
On November 25, 1994, the Company effected a one-for-eight
reverse stock split of all of the Company's securities. Unless
otherwise indicated, all information in this Prospectus gives
retroactive effect to this reverse stock split.
The Company was incorporated under the name Trilling Resources,
Ltd. in September 1979. It changed its name to Trilling Medical
Technologies, Inc. in September 1987 and to Water-Jel Technologies,
Inc. in July 1991. The executive offices of the Company are
located at 243 Veterans Boulevard, Carlstadt, New Jersey 07072. The
Company's telephone number is (201) 507-8300.
RISK FACTORS
THE SECURITIES OFFERED HEREBY ARE HIGHLY SPECULATIVE IN NATURE
AND INVOLVE A HIGH DEGREE OF RISK. THEREFORE, EACH PROSPECTIVE
INVESTOR SHOULD, PRIOR TO EXERCISE, CONSIDER VERY CAREFULLY THE
FOLLOWING RISK FACTORS, AS WELL AS ALL OF THE OTHER INFORMATION SET
FORTH ELSEWHERE IN THIS PROSPECTUS.
1. Government Regulation
The Company's products and manufacturing practices are subject to
regulation by the Food and Drug Administration ("FDA") as well as
by similar foreign authorities. The Water-Jel Fire Blanket and Burn
Dressing are medical devices subject to regulation by the FDA. The
Company's generic creams and ointment, Burn Jel and UnBurn line are
classified as over the counter drugs. FDA requirements include
adherence to good manufacturing practices, proper labelling, and
either premarket notification under section 510(k) of the Medical
Device Amendments to the Federal Food, Drug and Cosmetics Act or
premarket approval (depending on the category of product) prior to
commercial marketing in the United States. The Company is also
subject to periodic inspections by the FDA relating to good
manufacturing practices. The FDA has the authority to require a
suspension of manufacturing operations if it finds serious
deficiencies. Additional regulation may, in the future, be imposed
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by Federal, state or local authorities, particularly the FDA. Any
new products will also be subject to review of various regulatory
authorities in virtually every foreign country in which such
products are offered for sale. To the extent that any new products
which the Company may develop are deemed to be new pharmaceutical
or new medical devices, such products will require FDA and other
regulatory clearance and/or approvals prior to marketing. Such
governmental regulation may prevent or substantially delay the
marketing of any products developed by the Company, cause the
Company to undertake costly procedures, and furnish a competitive
advantage to the more substantially capitalized companies which
compete with the Company. There can be no assurance that the
Company will have the requisite financial resources to complete the
regulatory approval process with respect to any new products which
it may develop.
2. Market Acceptance for Company's Products
The Company believes that its ability to market its products
requires educating potential users of its products as to their
benefits and applications. No assurance can be given that the
Company will be able to successfully increase the market for its
products.
3. Need for Additional Funds
It is likely that the Company's education and marketing efforts,
particularly those directed at the personal use market, will
require substantial funds.
4. Competition
The market in which the Company currently operates is
characterized by competition and rapid technological change. Other
firms, including Spenco Medical Corporation, C.R. Bard, Inc. and
Johnson & Johnson Products, Inc. manufacture and market fire
blankets, burn dressings and related fire safety products and have
been in business for a longer period of time, are better
established, have financial resources substantially greater, and
have more extensive facilities than those which now, or in the
foreseeable future, may be available to the Company. While some
segments of the market are dominated by large manufacturers, other
segments of the market are characterized by intense competition
among independent product manufacturers.
In fiscal 1995 Nortrade International, Inc. ("Nortrade")
introduced a product which attempts to duplicate the Company's
First Aid Product Line for Burns. The Company believes that it
will be able to compete with Nortrade based upon the Company's
established customer base, superior customer service and its
ability to offer a more diverse range of products.
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5. Patents
The design of the Company's Fire Blanket products was protected
by United States and foreign patents which were assigned to the
Company in 1979 and 1985. The United States patent which protected
a substantial portion of the Company's technology expired in 1992.
New competitors may now enter the Company's markets. The Company
may be materially and adversely affected if the Company should fail
to establish a secure market base before the entrance of
significant new competitors now that the original United States
patent has expired. See "Competition."
In January 1995, the Company was granted a patent for a synthetic
fabric containing a therapeutic, non-toxic, water-soluble and
bio-degradable gel used in the Company's Burn Dressing product
line. However, no assurance can be given that this patent will
prove enforceable or prevent others from marketing products similar
to, or which perform comparable functions as, the Company's
products.
The Company has obtained United States and foreign registrations
for several trademarks for use on the Company's products. These
marks and logos are used on the packaging of the Company's
products.
6. Uncertainty of International Sales
For the fiscal year ended August 31, 1995, the Company had
approximate revenues of $912,000 from international sales, which
represented approximately 18% of total sales during this period.
International sales represented 15% and 21% of total sales,
respectively, for the fiscal years ended August 31, 1994 and 1993.
Although the Company intends to continue to pursue international
sales, there can be no assurance that sales at present levels will
be maintained, or will not fluctuate significantly as has occurred
in recent years.
7. Product Liability
To date, there have been no material claims or threatened claims
against the Company by users of its products based on a failure to
perform as specified. In the event that any claims for substantial
amounts were to be successfully asserted against the Company, they
could have a materially adverse effect on the Company's financial
condition and its ability to distribute its products. The Company
maintains $11,000,000 of general product liability insurance.
There is no assurance that this amount will be sufficient to cover
potential claims or that the present amount of insurance can be
maintained at the present level of cost.
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8. No Dividends
The Company has not paid any cash dividends upon its Common Stock
since its inception and, by reason of its present financial status
and its contemplated financial requirements, does not anticipate
paying any cash dividends in the foreseeable future. It is
anticipated that earnings, if any, which may be generated from
operations will be used to finance the operations of the Company.
9. Potential Rule 144 and Other Sales
Of the Company's 3,499,180 outstanding shares as of the date of
this prospectus, approximately 533,000 shares may be deemed
"restricted securities" as that term is defined under the
Securities Act of 1933, as amended (the "Act"), and in the future
may be sold in compliance with Rule 144 under the Act or pursuant
to a registration statement filed under the Act. Rule 144
provides, in essence, that a person holding restricted securities
for a period of two years may sell every three months in brokerage
transactions and/or market maker transactions an amount equal to
the greater of one percent (1%) of either (a) the Company's issued
and outstanding Common Stock or (b) the average weekly trading
volume of the Common Stock during the four calendar weeks prior to
such sale. Rule 144 also permits, under certain circumstances, the
sale of shares without any quantity limitation by a person who is
not an affiliate of the Company and who has satisfied a three-year
holding period. In addition, the Company has registered 388,661
shares of Common Stock held by twelve persons. Investors should be
aware that sales of the Company's Common Stock, under registration
statements or Rule 144, may have a depressive effect on the price
of the Company's Common Stock in any market which may develop for
such securities.
10. Proceeds Not Allocated to Specific Uses
Any proceeds of this offering have been allocated to working
capital. While the Company anticipates that a significant portion
of any proceeds received will be used for manufacturing,
administrative, marketing or research and development expenses, the
acquisition of inventory, or the repurchase of certain of the
Company's outstanding securities, it has made no specific
allocation for these purposes and may use these funds for other
general corporate purposes. See "Use of Proceeds."
USE OF PROCEEDS
The net proceeds to the Company from the exercise of all
presently outstanding options for which the underlying common stock
is registered herein would be approximately $1,085,000 after
taking into account estimated offering expenses of approximately
$10,000. The Company will receive no proceeds from the sale of
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stock held by any Selling Shareholders. There can be no assurances
that the Company will receive any proceeds from the exercise of the
options and not all options may be exercised which could result in
the proceeds of this offering to the Company being minimal. Any
proceeds received from the exercise of the options would be added
to working capital. The Company has not made any specific
allocations as to the use of any such proceeds. The proceeds could
be used for manufacturing, administrative, marketing or research
and development expenses, the acquisition of inventory, or the
repurchase of certain of the Company's outstanding securities. In
the opinion of management, the Company has sufficient capital,
together with anticipated revenues from sales of its products, to
continue operations for at least the next twelve months.
Prior to expenditure, the net proceeds will be invested in
short-term interest bearing securities or money market funds. Any
income from investments, will be added to working capital.
SELLING SHAREHOLDERS
Included in the securities covered by the Plan are the following
shares which are being offered on behalf of current directors and
officers of the Company.
Name (1) Securities Owned Securities to Securities to
Before Offering be Sold be Owned after
Offering
Peter D. Cohen (2) 331,287 100,000 231,287
Yitz Grossman (3) 600,250 100,000 500,250
Werner Haase (4) 300,625 100,000 200,625
(1) The address for Messrs. Cohen, Grossman and Haase is c/o the
Company.
(2) In addition to securities included herein to be sold pursuant
to options, also takes into account shares issuable upon exercise
of options to purchase 212,500 shares which are not included in
this prospectus.
(3) In addition to securities included herein to be sold pursuant
to options, also takes into account shares issuable upon exercise
of options to purchase 200,000 shares which are not included in
this prospectus.
(4) In addition to securities included herein to be sold pursuant
to options, also takes into account shares issuable upon exercise
of options to purchase 143,750 shares which are not included in
this prospectus.
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MATERIAL DEVELOPMENTS
Since the Company's filing of its quarterly report on Form 10-QSB
for the three months ended November 30, 1995, the Company has
announced that it is engaged in discussions with Journeycraft, Inc.
of New York, New York ("Journeycraft") for the acquisition by the
Company of Journeycraft. Journeycraft is a diversified services
company. Either directly or through subsidiaries, it has interests
in travel technology, corporate travel management and consulting,
use of media in the fields of performance improvement and internal
corporate communications, and providing training, communications
and data to the health care industry. Journeycraft has informed the
Company that for the fiscal year ended March 31, 1995, the
unaudited combined revenues of Journeycraft and its subsidiaries
were approximately $31,000,000 and unaudited pre-tax income was
approximately $1,100,000.
Journeycraft is majority-owned and controlled by Werner Haase and
his wife. Mr. Haase is a director of the Company and beneficial
owner of approximately 8% of the Company's Common Stock after
giving effect to the exercise of stock options held by Mr. Haase.
Negotiations for this transaction are continuing, but no letter
of intent has been signed. There can be no assurance that an
agreement will be achieved or that any agreement will be signed or
closed. The Company anticipates that the closing for any agreement
will be subject to numerous terms and conditions, including the
receipt of an opinion on the fairness of the transaction.
PLAN OF DISTRIBUTION
The Securities are being offered for the respective accounts of
the Selling Shareholders. The Company will not receive any proceeds
from the sale of any Securities by the Selling Shareholders. The
Company will receive the exercise prices of options which are
exercised by the Selling Shareholders.
The sale of Securities by the Selling Shareholders may be
effected from time to time in transactions in the over-the-counter
market, in negotiated transactions, through the timing of options
on the Shares, or through a combination of such methods of sale, at
fixed prices, which may be charged at market prices prevailing at
the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Selling Shareholders may
effect such transactions by selling the Securities to or through
broker-dealers, and such broker-dealers may receive compensation in
the form of discounts, concessions or commissions from the Selling
Shareholders and/or the purchasers of the Securities for which such
broker-dealers may act as agent or to whom they sell as principal,
or both (which compensation as to a particular broker-dealer may be
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in excess of customary compensation).
The Selling Shareholders and any broker-dealers who act in
connection with the sale of the Securities hereunder may be deemed
to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any commissions received by them and profit on
any sale of the Securities as principal might be deemed to be
underwriting discounts and commissions under the Securities Act.
LEGAL MATTERS
Certain legal matters in connection with this offering are being
passed upon for the Company by Oscar D. Folger, Esq., New York, New
York. Mr. Folger owns beneficially 12,500 shares of the Company's
Common Stock. James W. Lucas, who is of counsel to Mr. Folger,
owns 1,666 shares of Common Stock and 1,666 Class A Warrants.
Messrs. Folger and Lucas also each hold options to acquire 20,000
and 15,000 shares, respectively, of the Company's Common Stock. The
shares underlying certain of these options are included in this
prospectus.
EXPERTS
The financial statements of Water-Jel Technologies, Inc. for the
years ended August 31, 1995 and 1994, incorporated by reference
from the Company's annual report on Form 10-KSB for the fiscal year
ended August 31, 1995, have been examined by Holtz Rubenstein &
Co., LLP, independent certified public accountants, as stated in
their report, and are included in reliance upon the report of such
firm and upon their authority as experts in accounting and
auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed with the
Commission by the Company are incorporated herein by reference and
made a part hereof. The Commission file number for all documents
which are incorporated by reference is 0-13049.
(1) Annual Report on Form 10-KSB for the fiscal year
ended August 31, 1995, as amended December 28, 1995.
(2) Quarterly Report on Form 10-QSB for the three months
ended November 30, 1995.
(3) The section entitled "Description of Securities" in
the Company's registration statement on Form S-1 (Registration
No. 33-23910), declared effective on October 31, 1988.
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In addition, all documents filed by the Company pursuant to
Sections 13 (a), 13 (c), 14 and 15 (d) of the Exchange Act, prior
to the termination of the offering of the securities covered by
this Prospectus or the filing of a post-effective amendment which
indicates that all securities have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be
incorporated in this Prospectus and made a part hereof by reference
from the date of filing each such document. Any statement
contained in an earlier document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as
so modified or superseded to constitute a part of this Prospectus.
INDEMNIFICATION
The Certificate of Incorporation of the Company provides that all
directors, officers, employees and agents of the Company shall be
entitled to be indemnified by the Company to the fullest extent
permitted by law.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors,
officers or persons controlling the Company pursuant to the
foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
ADDITIONAL INFORMATION
This Prospectus contains certain information concerning the
Company and its securities, but does not contain all the
information set forth in the Registration Statement and the
Exhibits thereto filed with the Commission under the Securities Act
of 1933, as amended, to which reference is made. Any summary from
the Exhibits contained in this Prospectus is necessarily incomplete
and must not be considered as a full statement of the provisions of
such instruments.
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WATER-JEL TECHNOLOGIES, INC.
500,000 Shares of Common Stock
______________________
PROSPECTUS
______________________
March _, 1996
No dealer, salesman or any other person has been authorized to
give any information or to make any representations other than
those contained in this Prospectus, and if given or made, such
information or representations must not be relied upon as having
been authorized by the Company. This Prospectus does not
constitute an offer to sell or a solicitation of any offer to buy
any securities in any jurisdiction in which such an offer or
solicitation would be unlawful. Neither the delivery of this
Prospectus nor any sale made hereunder shall under any
circumstances create any implication that there has been no change
in the affairs of the Company since the date hereof.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
See "Incorporation of Certain Information by Reference."
ITEM 4. Description of Securities.
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel.
See "Experts" and "Legal Matters."
ITEM 6. Indemnification of Directors and Officers.
(a) Sections 721 through 726 of the New York Business
Corporation Law (the "NYBCL") provide, in general, that (i) in the
case of a derivative action, any person made a party to any action
by reason of the fact that he, his testator or intestate, is or was
a director or officer of the Registrant, may be indemnified by the
Registrant against the reasonable expenses, including attorney's
fees, actually and necessarily incurred by him in connection with
the defense of such action or an appeal therein except in relation
to matters as to which such director or officer is adjudged to have
breached his duty to the Registrant under Section 717 of the NYBCL,
and (ii) in the case of a non-derivative action, any person made or
threatened to be made a party to any action, whether civil or
criminal, by reason or the fact that he, his testator or intestate,
is or was a director or officer of the Registrant or served another
corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity at the request of
the Registrant may be indemnified by the Registrant against
judgments, fines, amounts paid in settlement and reasonable
expenses, including attorney's fees, actually and necessarily
incurred by him as a result of such action or an appeal therein if
such officer or director acted in good faith, for a purpose which
he reasonably believed to be in, or in the case of service for such
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, not opposed to, the best
interests of the Registrant, and, in addition, in criminal actions
or proceedings had no reasonable cause to believe that his conduct
was unlawful.
(b) Registrant's certificate of incorporation has been amended
to permit certain limitations on the grounds upon which a director
may be personally liable to Registrant or any shareholder
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for damages for breach of fiduciary duty as a director to the full
extent permitted by the New York Business Corporation Law.
(c) Registrant's by-laws, as amended, permit the indemnification
of directors and officers in connection with both derivative and
non-derivative actions, to the full extent permitted by the New
York Business Corporation Law. Article 12 of the by-laws, as
amended, reads:
A. The Company shall, to the fullest extent permitted by
applicable law as the same exists or may hereafter be in effect,
indemnify any person who is or was or has agreed to become director
or officers of the Company and who is or was made or threatened to
be made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the
right of the Company to procure a judgment in its favor and an
action by or in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, which such person
is serving, has served or has agreed to serve in any capacity at
the request of the Company, by reason of the fact that he or she is
or was or has agreed to become a director or officer of the
Company, or is or was serving or has agreed to serve such other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise in any capacity against judgments, fines,
amounts paid or to be paid in settlement, taxes or penalties and
costs, charges and expenses, including attorney's fees, incurred in
connection with such action or proceeding or any appeal therein,
provided, however, that no indemnification shall be provided to any
such person if a judgement or other final adjudication adverse to
the director or officer establishes that (i) his or her acts were
committed in bad faith or were the result of active and deliberate
dishonesty and in either case, were material to the cause of action
so adjudicated, or (ii) he or she personally gained in fact a
financial profit or other advantage to which he or she was not
legally entitled. The benefits of this Paragraph A shall extend to
the heirs and legal representatives of any person entitled to
indemnification under this Paragraph.
B. The Company may, to the extent authorized from time to time
by the Board of Directors, or by a committee comprised of members
of the Board of members of management as the board may designate
for such purpose, provide indemnification to employees or agents of
the Company who are not officers or directors of the Company with
such scope and effect as determined by the Board, or such
committee.
C. The Company may indemnify any person to whom the Company is
permitted by applicable law to provide indemnification or the
advancement of expenses, whether pursuant to rights granted
pursuant to, or provided by, the New York Business Corporation Law
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or other rights created by (i) a resolution of shareholders, (ii)
a resolution of directors, or (iii) an agreement providing for such
indemnification, it being expressly intended that these By-laws
authorize the creation of other rights in any such manner. The
right to be indemnified and to the reimbursement or advancement of
expenses incurred in defending a proceeding in advance of its final
disposition authorized by this Paragraph C shall not be exclusive
of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation,
By-laws, agreement, vote of shareholders or disinterested directors
or otherwise.
D. the right to indemnification conferred by Paragraph A shall,
and any indemnification extended under Paragraph B or Paragraph C
may, be retroactive to events occurring prior to the adoption of
this Article XII, to the fullest extent permitted by applicable
law.
E. This Article XII may be amended, modified or repealed either
by action of the Board of Directors of the Company or by the vote
of the shareholders.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors,
officers or persons controlling the Registrant pursuant to the
foregoing provisions, or otherwise, Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
Registrant of expenses paid or incurred by a director, officer or
controlling person of Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to the
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
ITEM 7. Exemption from Registration Claimed.
Not Applicable.
ITEM 8. Exhibits.
(4) 1995 Stock Option Plan
(5) Opinion of Oscar D. Folger as to legality
(23)(a) Consent of Holtz Rubenstein & Co.
(23)(b) Consent of Oscar D. Folger (included in Exhibit 5)
II-3
<PAGE>
ITEM 9. Undertakings.
(a) 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 of 1933;
(ii) To reflect in the Prospectus any fact 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;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3, or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that for
purposes of determining any liability under the Securities Act of
1933, each filing of Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is 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.
II-4
<PAGE>
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors,
officers or persons controlling the Registrant pursuant to the
foregoing provisions, or otherwise, Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
Registrant of expenses paid or incurred by a director, officer or
controlling person of Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to the
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, WATER-JEL TECHNOLOGIES, INC. has duly caused this
Registration Statement on Form S-8 to be signed on its behalf by
the undersigned, thereunto duly authorized, in Carlstadt, New
Jersey, on March 8, 1996.
WATER-JEL TECHNOLOGIES, INC.
By /s/ Peter D. Cohen
-----------------------------------
Peter D. Cohen, President, Chief
Executive Officer, Treasurer and
Director (Chief Operating Officer
and Chief Financial and Accounting
Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
hereby constitutes and appoints Peter D. Cohen, 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 or all pre-effective and
post-effective amendments to the Registration Statement, and to
file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent,
or his 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 below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Peter D. Cohen President, Chief Executive 3/8/96
------------------------ Officer, Treasurer and
(Peter D. Cohen) Director and Chief Financial
and Accounting Officer
/s/ Yitz Grossman Director and Secretary 3/8/96
------------------------
(Yitz Grossman)
/s/ Werner Haase Director 3/12/96
------------------------
(Werner Haase)
II-6
Exhibit 4
WATER-JEL TECHNOLOGIES, INC.
1995 STOCK OPTION PLAN
There is hereby established a 1995 Stock Option Plan (the
"Plan"). The Plan provides for the grant to certain employees and
others who render services to Water-Jel Technologies, Inc. (the
"Company") or of any subsidiary thereof, of options to purchase
shares of the common stock, $.08 par value per share, of the
Company ("Options") and for the issuance, transfer or sale of such
common stock upon the exercise of such Options. The term "Company",
as used in the Plan, shall include Water-Jel Technologies, Inc. and
any present or future subsidiary thereof, unless the context
otherwise requires. It is intended that certain of the Options
will constitute Incentive Stock Options within the meaning of
Section 422A of the Internal Revenue Code ("ISOs"), and the
remainder of the Options will constitute nonstatutory options
("Nonstatutory Options"). The Board of Directors of the Company or
a committee thereof appointed by the Board (the term "Committee" as
used herein shall refer to either such committee or the Board of
Directors as a whole, as the case may be) shall determine which
Options are to be ISOs and which are to be Nonstatutory Options and
shall enter into option agreements with the recipients accordingly.
1. Purpose: The purpose of the Plan is to provide additional
incentive to the officers, key employees, and others who render
services to the Company, who are primarily responsible for the
management and growth of the Company, or otherwise materially
contribute to the conduct and direction of its business, operations
and affairs, in order to strengthen their desire to remain in the
employ of the Company, stimulate their efforts on behalf of the
Company and to retain and attract persons of competence, and, by
encouraging ownership of a stock interest in the Company, to gain
for the organization the advantages inherent in employees and
others who render services to the Company having a sense of
proprietorship.
2. The Stock: The aggregate number of shares of common stock,
$.08 par value per share, which may be issued, transferred or sold
upon the exercise of Options granted under the Plan shall not,
except as such number may be adjusted in accordance with paragraph
(g) of Article 6 hereof, exceed 500,000 shares of the common stock,
$.08 par value per share, of the Company ("Common Shares") which
may be either authorized and unissued common stock, $.08 par value
per share, or issued common stock, $.08 par value per share,
reacquired by the Company. Notwithstanding the above limitation,
if any Option granted under the Plan shall expire, terminate or be
canceled for any reason without having been exercised in full, the
corresponding number of unpurchased shares shall again be available
for the purposes of the Plan.
1
3. Employees: The term "employees" as used in the Plan, shall
mean officers and other employees of the Company (including
officers and other employees who are also directors) within the
classes referred to in Article 1 hereof.
4. Eligibility:
(a) Options may be granted to such employees of (or, in the case
of Nonstatutory Options only, to others who render services to) the
Company or its subsidiaries or parent as the Committee shall select
from time to time (the "Optionees"). The term "subsidiary" and
"parent" as used in the Plan shall have the respective meanings set
forth in Sections 425(f) and (e) of the Internal Revenue Code.
(b) No individual who, at the time an ISO is granted, is
considered under Section 422A(b)(6) of the Internal Revenue Code as
owning stock possessing more than 10 percent of the total combined
voting power of all classes of stock of the Company or of its
parent or any subsidiary corporation shall be eligible to receive
such ISO, provided that this restriction shall not apply if at the
time such ISO is granted the provisions of 7(f)(ii) are complied
with.
(c) An Optionee may hold more than one Option.
5. Subsidiary: The term "subsidiary", as used herein, shall be
deemed to mean any corporation (other than Water-Jel Technologies,
Inc.) in an unbroken chain of corporations beginning with and
including Water-Jel Technologies, Inc. if, at the time of the
granting of an Option, each of the corporations other than the last
corporation in said unbroken chain owns stock possessing 50 percent
or more of the total combined voting power of all classes of stock
in one of the other corporation in such chain.
6. General Terms of Options:
(a) Consideration : The Committee shall determine the
consideration to the Company, for the granting of Options under the
Plan, as well as the conditions, if any, which it may deem
appropriate to ensure that such consideration will be receive by,
or will accrue to the Company and, in the discretion of the
Committee, such consideration need not be the same, but may vary
for Options granted under the Plan at the same time or from time to
time.
(b) Number of Options which may be Granted to, and
Number of Common Shares which may be Acquired by Employees. The
Committee may grant more than one Option to an individual during
the life of the Plan and, subject to the requirements of Section
422A of the Internal Revenue Code of 1986, as amended (the "Code"),
with respect to incentive stock options, such Option may be in
2
addition to, in tandem with, or in substitution for, Options
previously granted under the Plan or of another corporation and
assumed by the Company.
The Committee may permit the voluntary surrender of all or a
portion of any Option granted under the Plan to be conditioned upon
the granting to the employee of a new Option for the same or a
different number of Common Shares as the Option surrendered, or may
require such voluntary surrender as a condition precedent to a
grant of a new Option to such employee. Such new Option shall be
exercisable at the price, during the period, and in accordance with
any other terms or conditions specified by the Committee at the
time the new Option is granted, all determined in accordance with
the provisions of the Plan without regard to the price, period of
exercise, or any other terms or conditions of the Option
surrendered (except as otherwise provided in paragraph (f) of
Article 7 hereof).
(c) Period of Grant of Options. Options under the Plan may be
granted at any time after the Plan has been approved by the
stockholders of the Company. However, no Option shall be granted
under the Plan after March 1, 2005.
(d) Option Agreement. the Company shall effect the grant of
Options under the Plan, in accordance with determinations made by
the Committee by execution of instruments in writing in a form
approved by the Committee. Each Option shall contain such terms
and conditions (which need not be the same for all Options, whether
granted at the time or at different times) as the Committee shall
deem to be appropriate and not inconsistent with the provisions of
the Plan, and such terms and conditions shall be agreed to in
writing by the Optionee. The Committee may, in its sole
discretion, and subject to such terms and conditions as it may
adopt, accelerate the date or dates on which some or all
outstanding Options may be exercised. Options shall be exercised
by submitting to the Company a signed copy of notice of exercise in
a form to be supplied by the Company. The exercise of an Option
shall be effective on the date on which the Company receives such
notice at its principal corporate offices.
(e) Supplemental Cash Award. Upon issuance of any Common Shares
to an Optionee pursuant to the exercise of a Non-statutory Option
that may be granted hereunder, the Company or a Subsidiary may
issue a supplemental cash award to the Optionee at the time that
the stock certificates representing such common stock are issued to
him. The supplemental cash award shall be the smaller of
(i) 65% of the difference between the fair market value of the
Common Shares issued at the time of exercise and the option
price tendered by the Optionee for the Common Shares or
3
(ii) 90% of the Option price tendered by the Optionee pursuant
to the exercise of Options hereunder.
The Company (or its Subsidiary) may withhold from this
supplemental cash award all required amounts including that which
may be required as a result of the Optionee's exercise of the
option.
(f) Non-Transferability of Option. No Option granted under the
Plan to an Optionee shall be transferable by the Optionee or
otherwise than by will or by the laws of descent and distribution
and during the Optionee's lifetime, such Option shall be
exercisable only by such Optionee.
(g) Effect of Change in Common Stock. In the event of a
reorganization, recapitalization, liquidation, stock split, stock
dividend, combination of shares, merger or consolidation, or the
sale, conveyance, lease or other transfer by the Company of all or
substantially all of its property, or any change in the corporate
structure or shares of common stock of the Company pursuant to any
of which events the then outstanding shares of the common stock are
split up or combined or changed into, become exchangeable at the
holder's election for, or entitle the holder thereof to other
shares of common stock, or in the case of any other transaction
described in Section 425(a) of the Code, the Committee may change
the number and kind of shares of Common Shares available under the
Plan and any outstanding Option (including substitution of shares
of common stock of another corporation) and the price of any Option
and the fair market value determined under paragraph (i) of Article
6 hereof in such manner as it shall deem equitable. Options
granted under the Plan shall contain such provisions as are
consistent with the foregoing with respect to adjustments to be
made in the number and kind of Common Shares covered thereby and in
the option price per share in the event of any such change.
(h) Optionees not Stockholders. An Optionee or a legal
representative thereof shall have none of the rights of a
stockholder with respect to Common Shares subject to Options until
such shares shall be issued, transferred or sold upon exercise of
the Option.
(i) Fair Market Value. As used in the Plan, the term "fair
market value" shall (i) if the common stock of the Company is
traded in the over-the-counter market, be the mean between the
closing bid and asked sales prices for the common stock of the
Company as reported by the National Quotation Bureau (or similar
quotation agency) on the date the calculation thereof shall be made
or (ii) if the common stock of the Company is listed on a national
securities exchange, be the mean between the high and low sales
prices for the common stock of the Company on such exchange
on the date the calculation thereof shall be made, in each case
4
with such adjustments, if any, as shall be made in accordance with
paragraph (g) of this Article 6. In the event the date of
calculation shall be a date on which there shall not have been
reported a closing bid and asked price for common stock of the
Company or a date which shall not be a trading date on such
national securities exchange as the case may be, determination of
fair market value shall be made as of the first date prior thereto
on which there shall have been reported a closing bid and asked
price for common stock of the Company or the first date prior
thereto which shall have been a trading date on such national
securities exchange, as the case may be.
(j) Types of Options. Options granted under the Plan shall be
in the form of (i) incentive stock options as defined in Section
422A of the Code, or (ii) options not qualifying under such
Section, or both, in the discretion of the Committee. The status
of each Option shall be identified in the Option Agreement.
7. Terms of Options:
(a) Option Price. The price or prices per share of Common Shares
to be sold pursuant to an Option shall be such as shall be fixed by
the Committee but not less in any case than the fair market value
per share for such Common Shares in the case of Incentive Stock
Options, or 85% of the fair market value in the case of
Nonstatutory Options on the date of the granting of the Option,
subject to adjustment pursuant or paragraph (g) of Article 6
hereof.
For the purposes of this Article 7, the date of the granting of
an Option under the Plan shall be the date fixed by the Committee
as the date for such Option for the person who is to be the
recipient thereof.
(b) Period of Option Vesting. (i) Unless otherwise determined
by the Committee or by other provisions of the Plan, upon the
granting of any Option such Option will be vested and be
exercisable with respect to the percentage of the Common Shares
subject to the Option as determined by the Committee. The Committee
may, in its discretion, (A) provide for the holding of such Common
Shares in escrow for a period not exceeding five years, or (B)
impose other restrictions on the vesting of any Option or the
vesting of any Common Shares that an Optionee receives upon
exercise of any Option; provided that any and all such restrictions
shall lapse if there is a sale of (A) substantially all of the
assets or (B) 50 percent or more of the voting securities of the
Company (excluding for this purpose Company stock sold in a primary
or secondary public offering). Any restrictions the Committee
imposes on an Option pursuant to this paragraph shall be specified
in the stock option agreement governing such Option.
(ii) Options will be exercisable thereafter over
5
the Option Period which, in the case of each Option, shall be for
a period of not more than ten years from the date of the grant of
such Option, and, subject to the provisions of paragraphs 4(b) or
6(d), will be exercisable, at such times and in such amounts as
determined by the Committee at the time each Option is granted.
Notwithstanding any other provision contained in the Plan, no
Option shall be exercisable after the expiration of the Option
Period. Except as provided in paragraphs (c) and (d) of this
Article 7, no Option may be exercised unless the Optionee is then
in the employ of the Company and shall have been continuously so
employed since the date of the grant of such Option. The Plan
shall not convey upon any Optionee any right with respect to
continuation of employment by the Company, nor shall it interfere
in any way with the employee's right or the Company's right to
terminate employment at any time.
(c) Termination of Optionee's Employment or Other Services.
(i) In the event of the termination of an Optionee's employment
with or rendering of other services to the Company, any parent or
subsidiary of the Company, and any successor corporation to either
the Company or any parent or subsidiary of the Company other than
by reason of death, all Options previously granted to such Optionee
shall terminate, except with respect to Options which the Optionee
was entitled to exercise prior to the date of such termination (the
"Termination Date").
(ii) With respect to any Option which the Optionee was entitled
to exercise prior to the Termination Date but had not as yet done
so as of such date, such Option will lapse unless exercised by the
Optionee within the earlier of (A) thirty days after the
Termination Date or (B) the last date such Option could have been
exercised had the Optionee's position with the Company not
terminated. Nothing in the Plan or in any Option or stock option
agreement shall confer on any Optionee any right to continue in the
service of the Company or any parent or subsidiary of the Company
or interfere with the right of Company to terminate such Optionee's
employment or other services at any time.
(iii) In the event that termination of an Optionee's
services results from (A) the Optionee having been convicted of a
felony, a crime of moral turpitude or any crime involving the
Company (other than pursuant to actions taken at the direction or
with approval of the Committee), or (B) a determination by the
Committee that the Optionee was engaged in fraud, misappropriation
or embezzlement, the Company shall have the right, exercisable
within 60 days of the Termination Date, to repurchase any Common
Shares acquired by the Optionee pursuant or this Plan and owned by
the Optionee at the Termination Date at the lower of (A) the option
price of such Common Shares, (B) if such Common Shares are not
publicly traded, their book value on the Termination Date, or (C)
6
if such Common Shares are publicly traded, the average of their
high and low market price on the Termination Date.
(d) Death of Optionee. If an Optionee should die
while in the employ of the Company, the Option theretofore granted
shall be exercisable by the estate of the Optionee or by a person
who acquired the right to exercise such Option by bequest or
inheritance or by reason of the death of the Optionee, but then
only if and to the extent that the Optionee was entitled to
exercise the Option at the date of death, giving effect to the
limitations, if any, which may have been imposed by the Committee
pursuant or paragraph (b)(ii) of this Article 7 with respect to the
percent of the total number of Common Shares to which the Option
relates which may be purchased from time to time during the Option
Period; provided, however, that such Option shall be exercisable
only within the twelve-month period next succeeding the death of
the Optionee and in no event after the expiration of the Option
Period.
(e) Payment for Common Shares. Upon exercise of an
Option, the Optionee shall make full payment of the Option Price
(i) in cash; (ii) with the common stock of the Company (valued at
their fair market value, as determined by the Committee, as of such
date of exercise), (iii) with the consent of the Committee with a
full recourse interest bearing promissory note of the Optionee,
secured by a pledge of the Common Shares received upon exercise of
such Option, and having such other terms and conditions as
determined by the Committee, or (iv) with the consent of the
Committee, any combination of (i),(ii), or (iii) above.
(f) Incentive Stock Options. Options granted in the form of
incentive stock options shall be subject in addition to the
foregoing provisions of this Article 7, to the following
provisions:
(i) Aggregate Fair Market Value Limitation. The aggregate fair
market value (determined at the time the Option is granted) of the
stock with respect to which incentive stock options are exercisable
for the first time by an Optionee during any calendar year (under
all such plans of the Company, its parent or subsidiary) shall not
exceed $100,000.
(ii) Ten Percent Shareholder. Any stock option granted to any
individual who, at the time of the proposed grant, owns common
stock possessing more than ten percent of the total combined voting
power of all classes of stock of the Company or any subsidiary
shall, in addition to such other terms as may be
required by this Article 7(f) provide that (A) the prices per share
for Common Shares to be sold pursuant or such incentive stock
option shall not be less than 110% of the fair market value per
share for such Common Shares on the date of the granting of the
incentive stock option, subject to adjustment pursuant to paragraph
7
(g) of Article 6 hereof and (B) the Option Period of such
incentive stock option shall be for a period of not more than five
years from the date of the grant of such incentive stock option.
The Company intends that Options designated by the Committee as
incentive stock options shall constitute incentive stock options
under Section 422A of the Code. Should any of the foregoing
provisions not be necessary in order to so comply or should any
additional provisions be required, the Board of Directors of the
Company may amend the Plan accordingly without the necessity of
obtaining the approval of the stockholders of the Company.
8. Withholding Taxes:
(a) In the case of Common Shares that an Optionee receives
pursuant to his exercise of an Option, the Company shall have the
right to withhold from any salary, wages, or other compensation for
services payable by the Company to such Optionee, amounts
sufficient to satisfy any withholding tax liability attributable to
such Optionee's receipt of such Common Shares or the supplemental
cash award.
(b) In the case of Common Shares that an Optionee receives
pursuant to his exercise of an Option which is an ISO, if such
Optionee disposes of such Common Shares within two years from the
date of the granting of the ISO or within one year after the
transfer of such Common Shares to him, the Company shall have the
right to withhold from any salary, wages, or other compensation for
services payable by the Company to such Optionee, amounts
sufficient to satisfy any withholding tax liability attributable
to such disposition.
(c) In the case of a disposition described in Section 8(b)
above, the Optionee shall give written notice to the Company of
such disposition within 30 days following the disposition within 30
days following the disposition, which notice shall include such
information as the Company may reasonably request to effectuate the
provisions hereof.
9. Agreements and Representations to Optionees:
(a) As a condition to the exercise of an Option, unless counsel
to the Company opines that it is not necessary under the Securities
Act of 1933, as amended, and the pertinent rules thereunder, as the
same are then in effect, the Optionee shall represent in writing
that the Common Shares being purchased are being purchased only for
investment and without any present intent at the time of the
acquisition of such Common Shares to sell or otherwise dispose of
the same.
(b) In the event there is a stockholders agreement
8
in effect among the Company and shareholders owning more than 50%
of the Company's common stock (the "Shareholders"), or among
substantially all the Shareholders, which agreement deals with
restrictions on the disposition of shares of common stock, then, as
a further condition to the exercise of an Option, the Optionee may
be required to execute appropriate papers, making him a party to
such agreement or agreements, or such part thereof as the Committee
determines would be in the best interests of the Company and the
Shareholders.
10. Administration of the Plan: The Plan shall be administered
by the Board of Directors or by a Committee which shall consist of
three or more members of the Board of Directors whom the Board of
Directors may appoint from time to time (either the Board or such
committee, as the case may be, being referred to herein as the
"Committee"). Subject to the express provisions of the Plan, the
Committee shall have authority, in its discretion, to determine the
individuals to receive Options, the times when they shall receive
them and the number of Common Shares to be subject to each Option.
Directors, including those that may be members of the Committee,
shall be eligible to receive Options under the Plan.
Subject to the express provisions of the Plan, the Committee
shall also have authority to construe the respective option
agreements and the Plan, to prescribe, amend and rescind rules and
regulations relating to the Plan, to determine the terms and
provisions of the respective option agreements (which need not be
identical) and to make all other determinations necessary or
advisable for administering the Plan. The Committee may correct
any defect or supply any omission or reconcile any inconsistency in
the Plan or in any option agreement in the manner and to the extent
it shall deem expedient to carry it into effect, and it shall be
the sole and final judge of such expediency. The determinations of
the Committee on the matters referred to in this Section 10 shall
be conclusive.
11. Amendment and Discontinuance of the Plan:
(a) The Board of Directors of the Company may at any time alter,
suspend or terminate the Plan, but, except in accordance with the
provisions of paragraph (g) of Article 6 and Article 12 hereof, no
change shall be made which will have a material adverse effect upon
any Option previously granted, unless the consent of the Optionee
is obtained; provided, however, that except in the case of
adjustment made pursuant or paragraph (g) of Article 6 hereof, the
Board of Directors may not without further approval of the
stockholders, (i) increase the maximum number of Common Shares for
which Options may be granted under the Plan or which may be
purchased by an individual Optionee, (ii) decrease the minimum
option price provided in the Plan, or (iii) change the class of
persons eligible to receive Options.
9
(b) Notwithstanding the foregoing provisions of this Article 11,
except as may otherwise be provided herein, no person may be
divested of the ownership of Common Shares previously issued, sold
or transferred under the Plan.
12. Other Conditions: If at any time counsel to the Company
shall be of the opinion that any sale or delivery of Common Shares
pursuant to an Option granted under the Plan is or may in the
circumstances be unlawful under the statutes, rules or regulations
of any applicable jurisdiction, the Company shall have no
obligation to make such sale or delivery, and the Company shall
not be required to make any application or to effect or to maintain
any qualification or registration under the Securities Act of 1933
or otherwise with respect to Common Shares or Options under the
Plan, and the right to exercise any such Option may be suspended
until, in the opinion of said counsel, such sale or delivery shall
be lawful.
Upon termination of any period of suspension under this Article
12, any Option affected by such suspension which shall not then
have expired or terminated shall be reinstated as to all Common
Shares available upon exercise of the Option before such suspension
and as to Common Shares which would otherwise have become available
for purchase during he period of such suspension, but no suspension
shall extend any Option Period.
At the time of any grant or exercise of any Option, the Company
may, if it shall deem it necessary or desirable for any reason
connected with any law or regulation of any governmental authority
relative to the regulation of securities, condition the grant
and/or exercise of such Option upon the Optionee making certain
representations to the Company and the satisfaction of the Company
with the correctness of such representations.
13. Approval; Effective Date: The Plan shall become effective
upon the approval by the stockholders of the Company at the Annual
Meeting of Stockholders to be held February 28, 1995 or at any
adjournment thereof.
10
Exhibit 5
March 13, 1996
Water-Jel Technologies, Inc.
243 Veterans Boulevard
Carlstadt, New Jersey 07072
Gentlemen:
We have acted as counsel to Water-Jel Technologies, Inc., a New
York corporation, (the "Company") in connection with the
registration by the Company of 500,000 shares of its Common Stock,
$.08 par value, which are issuable under the Company's 1995 Stock
Option Plan (the "Shares"), and which are the subject of a
Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Act"). As counsel to the Company we have
examined and relied upon the original or copies, certified of
otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary
in order to render the following opinion.
Based upon the foregoing, we are of the opinion that the Shares
to be issued by the Company are duly authorized and, when issued
and paid for in accordance with their terms as described in the
Registration Statement, will be validly issued, fully paid and
nonassessable.
We are aware that we are referred to under the caption "Legal
Matters" in the Prospectus included in the Registration Statement
and we hereby consent to such reference to us and to the filing of
this opinion as Exhibit 5 to the Registration Statement. In giving
such consent, however, we do not hereby imply or admit that we are
within the category of persons whose consent is required under
Section 7 of the Act or under the General Rules and Regulations of
the Securities and Exchange Commission adopted thereunder.
Very truly yours,
/s/ Oscar D. Folger
---------------------------
Oscar D. Folger
Exhibit 23(a)
HOLTZ RUBENSTEIN & CO., LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in Registration
Statement on Form S-8 of our report dated December 1, 1995
appearing in Water-Jel Technologies, Inc.'s annual report on Form
10-KSB for the fiscal year ended August 31, 1995 and to the
reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ Holtz Rubenstein & Co., LLP
HOLTZ RUBENSTEIN & CO., LLP
Melville, New York
March 11, 1996
