- --------------------------------------------------------------------------------
As Filed With the Securities and Exchange Commission on March 29, 2000
Registration No.: 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAPRIUS, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE
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(State or other jurisdiction of incorporation or organization)
22-2457487
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(I.R.S. Employer Identification No.)
ONE PARKER PLAZA, FORT LEE, NEW JERSEY 07024
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(Address of principal executive offices)
CONSULTING AND SEVERANCE AGREEMENTS
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(Full title of the plans)
JONATHAN JOELS, TREASURER; CAPRIUS, INC., ONE PARKER PLAZA, FORT LEE, NJ 07024
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(Name and address of agent for service)
(201) 592-8838
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Telephone number, including area code, of agent for service
Copy to:
Bruce A. Rich, Esq.
THELEN REID & PRIEST LLP
40 West 57th Street
New York, New York 10019
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================== ================= ==================== ==================== ===================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED (1) SHARE(2) PRICE REGISTRATION FEE
- ------------------------ ----------------- -------------------- -------------------- -------------------
<S> <C> <C> <C> <C> <C>
Common Stock,
Par Value $.01 225,000 shares $.81 $182,250.00 $48.11
- ------------------------ ----------------- -------------------- -------------------- -------------------
</TABLE>
(1) The number of shares stated is the aggregate number of shares of Common
Stock issued pursuant to the terms of the Consulting and Severance
Agreements filed as exhibits hereto.
(2) Based upon Rule 457(c) under the Securities Act of 1933.
<PAGE>
CAPRIUS, INC.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The shares of Common Stock included herein were issued to two executive
officers pursuant to Consulting and Severance Agreements.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN INFORMATION.
Not Applicable.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
1. The following documents, which have been filed by the Company with
the Securities and Exchange Commission (the "Commission"), pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act"), are incorporated by
reference into this Registration Statement:
(a) The Company's Quarterly Report on Form 10-QSB for the quarter
ended December 31, 1999 (Commission File No. 0-11914);
(b) The Company's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 1999 (Commission File No. 0-11914);
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of the Registration
Statement to the extent that a statement contained herein modifies or replaces
such statement. Any such statement shall not be deemed to constitute a part of
this Registration Statement except as so modified or replaced.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock offered hereby will be passed upon for the
Company by Thelen Reid & Priest LLP, the Company's Counsel.
ITEM 6. INDEMNIFICATION OF DIRECTORS
The By-Laws of the Company provide in part that the Company shall indemnify
its directors, officers, employees and agents to the fullest extent permitted by
the General Corporation Law of the State of Delaware (the "DGCL").
Section 145 of the DGCL permits a corporation, among other things, to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
<PAGE>
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation), by reason of the fact that he 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, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
A corporation also 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 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, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation. However, in such an action by or on behalf of a corporation, no
indemnification may be made in respect of any claim, issue or matter as to which
the person is adjudged liable to the corporation unless and only to the extent
that the court determines that, despite the adjudication of liability but in
view of all the circumstances, the person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
In addition, the indemnification and advancement of expenses provided by or
granted pursuant to Section 145 shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
---------- -----------
4.3.1* Consulting and Severance Agreement for Jack Nelson.
4.3.2* Consulting and Severance Agreement for Enrique Levy
5* Opinion of Thelen Reid & Priest LLP.
23.1* Consent of BDO Seidman LLP.
23.2* Consent of Thelen Reid & Priest LLP (included in
Exhibit 5).
* Filed herewith.
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
II-2
<PAGE>
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(b) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(c) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(d) 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 (b) and (c) do not apply if the Registration Statement
is on Form S-3, Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Company
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), that are incorporated by reference in the
Registration Statement;
(e) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(f) To remove from registration by means of a post-effective amendment any
of the securities that remain unsold at the end of the offering;
(g) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question 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.
II-3
<PAGE>
SIGNATURES
THE COMPANY.
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Fort Lee, New Jersey, on the __th day of March, 2000.
CAPRIUS INC.
By: /s/ George Aaron
------------------------------------
George Aaron, President
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ George Aaron President, Chief Operating March 29, 2000
- ----------------------------- Officer and Director
George Aaron
/s./ Jonathan Joels Chief Financial Officer and March 29, 2000
- ----------------------------- Director
Jonathan Joels
/s/ Enrique Levy Director March 29, 2000
- -----------------------------
Enrique Levy
/s/ Jack Nelson Director March 29, 2000
- -----------------------------
Jack Nelson
/s/ Robert Spira Director March 29, 2000
- -----------------------------
Robert Spira
/s/ Sol Triebeasser Director March 29, 2000
- -----------------------------
Sol Triebwasser
II-4
<PAGE>
INDEX TO EXHIBITS
CAPRIUS INC.
------------
- -------------- ----------------------------------------------------------------
Sequentially
Exhibit No. Description Numbered Page
----------- ----------- -------------
- -------------- ----------------------------------------- -----------------------
4.3.1* Consulting and Severance Agreement for
Jack Nelson
- -------------- ----------------------------------------- -----------------------
4.3.2* Consulting and Severance Agreement for
Enrique Levy
- -------------- ----------------------------------------- -----------------------
5* Opinion of Thelen Reid & Priest LLP
- -------------- ----------------------------------------- -----------------------
23.1* Consent of BDO Seidman LLP.
- -------------- ----------------------------------------- -----------------------
23.2* Consent of Thelen Reid & Priest LLP
(included in Exhibit 5).
- -------------- ----------------------------------------- -----------------------
II-5
Exhibit 4.3.1
CAPRIUS, INC.
2 EXECUTIVE DRIVE
FORT LEE, NEW JERSEY 07024
As of June 28, 1999
Jack Nelson
281 East Linden Avenue
Englewood, NJ 07631
Dear Jack:
This letter sets forth our agreement (the "Agreement") regarding the termination
of your employment with Caprius, Inc. (the "Company") in connection with the
merger (the "Merger") of Caprius Merger Sub, Inc. with and into opus Diagnostics
Inc. ("Opus") under the employment agreement dated as of February 19, 1998,
between you and the Company (the "Employment Agreement"). This Agreement
supersedes any previous agreement or arrangement between us in all respects,
except as otherwise provided herein.
1. Your employment with the Company shall be terminated effective as of
the close of business on June 28, 1999 (the "Termination Date"). You
shall remain a Director of the Company and serve at this position in
accordance with the Certificate of Incorporation and Bylaws of the
Company.
2. On the Termination Date, (i) the Company shall pay you an amount of
$45,000 in cash plus all amounts and benefits that have accrued or
were earned but remain unpaid through the Termination Date, including
salary ($10,439.47), unreimbursed expenses ($6,305.07) and accrued and
unused vacation ($39,263), and (ii) the Company shall deliver to you a
stock certificate issued to you representing 125,000 shares of its
Common Stock registered under the Securities Act of 1933, as amended.
If the Company does not have a sufficient number of registered shares
available for delivery to you pursuant to the preceding sentence, the
Company agrees to use its best efforts to file promptly a form S-8
with the Securities and Exchange Commission to register a number of
shares sufficient to enable the Company to satisfy its obligation
pursuant to this Section 2.
3. The Company shall make all premium payments for a period of twelve
(12) months following the Termination Date (the "Severance Term") on
your behalf for health care benefits for which you are eligible
(including dependent coverage) in accordance with the federal
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), provided you make a timely election to continue such
benefits through COBRA. You shall continue to receive during the
Severance Term, at the Company's cost, any welfare benefits provided
to you as of the Termination Date (other than COBRA). The Company
shall not be required to provide you with the welfare benefits
described in this Section in the event you accept employment with any
<PAGE>
corporation or other entity (other than the Company) and such
corporation or other entity provides you with health care coverage or
other benefits on terms that are substantially similar to the benefits
provided by the Company.
4. The payments and benefits to be provided to you as set forth in
sections 2 and 3 above shall be in lieu of (i) any and all payments to
which you may have been entitled in connection with the Merger or your
termination as an employee of the Company under the Employment
Agreement, or otherwise, and (ii) any and all other benefits otherwise
provided under any severance pay policy, plan or program maintained
from time to time by the Company for its employees. You shall not be
required to seek other employment or to attempt in any way to reduce
amounts payable to you pursuant to this Agreement. Except as otherwise
provided in Section 3 above, no amount payable hereunder shall be
reduced by any compensation earned by or other benefits provided to
you as a result of employment by another employer or otherwise.
5. During the period from the Termination Date until June 28, 2000 (the
"Consulting Period"), you shall provide consulting and advisory
services with respect to all aspects of the Company's business
including, without limitation, the completion by the Company of a
Business Transaction, and such other consulting and advisory services
as may be mutually agreed upon by you and the Company. Until the
expiration of the Consulting Period, you shall make yourself available
whenever reasonably necessary to perform the services hereunder for
the Company. In performing these services, you shall act as an
independent contractor, and not an employee of the Company.
6. You shall be entitled to keep and to use in your performance of
services hereunder at the Company's expense during the Consulting
Period, the Company credit card and the mobile phone which you have
been using to date. Until the expiration of the Consulting Period, the
Company shall pay you a monthly allowance of $1,350 for miscellaneous
expenses incurred by you in your performance of services hereunder. In
addition, the Company shall reimburse you for any itemized business
expenses incurred by you in your performance of services hereunder,
including the costs of travel at the Company's request, upon proper
submission of all related receipts relating to such expenses.
7. Upon the earlier to occur of (i) the consummation of a Business
Transaction (as defined below), or (ii) December 28, 1999, the Company
shall pay you an amount of $258,500 in cash. For purposes of this
Agreement, the term "Business Transaction" shall mean any of the
following: (1) the acquisition by any individual, entity or group of
beneficial ownership of 500 or more of either (a) the then outstanding
shares of common stock of the Company or (b) the combined voting power
of the then outstanding voting securities of the Company entitled to
vote generally in the election of directors; (2) Jonathan Joels and
George Aaron cease for any reason to be members of the Board of
Directors of the Company; (3) the consummation of a recapitalization
or exchange of equity for debt or debt for equity for an amount in
<PAGE>
excess of $1,000,000, restructuring, reorganization, merger or
consolidation of the Company or the Strax Center, or any sale or other
disposition of the Strax Center or all or substantially all of the
Company's assets, or (4) the liquidation or dissolution of the
Company.
8. Sections 5.1, 5.6 (with the exception of subsection (iii) thereof) and
5.7 of the Employment Agreement shall continue in full force and
effect and are hereby incorporated by reference to this Agreement.
9. You shall use your best judgment in the performance of your duties
hereunder. You shall not be liable for any acts or omissions or any
error of judgment or for any loss suffered by the Company in
connection with this Agreement except loss resulting from your willful
misfeasance, bad faith or gross negligence or by reason of reckless
disregard of your obligations and duties under this Agreement. The
Company shall indemnify you against any and all losses, claims,
damages, liabilities or expenses (including counsel fees and expenses)
arising from your past employment with the Company, any consulting
services you may provide to the Company hereunder, or by reason of the
fact that you were or are an officer or Director of the Company,
except those resulting from your willful misfeasance, gross
negligence, bad faith or reckless disregard in the performance of your
obligations and duties. You shall be entitled to advances from the
Company for payment of reasonable expenses incurred by you in
connection with the matter as to which you are seeking indemnification
in advance of the final disposition of such matter upon receipt by the
Company of your written undertaking to repay any such advance if it
should ultimately be determined that the standard of conduct has not
been met. Your right of indemnification hereunder shall continue after
the expiration of the Consulting Period and shall inure to the benefit
of your heirs and personal representatives.
10. In consideration of the payments contemplated hereunder and other
consideration provided to you pursuant to this Agreement, you, for
yourself and your heirs, executors, administrators, and their
respective successors and assigns, hereby release and forever
discharge the Company, and any of its subsidiaries, affiliates,
officers, directors, employees, agents, successors and assigns, and
all plan administrators and trustees of employee benefit plans
maintained by any of them (collectively "Company Entities"), from all
rights, claims or demands you may have based on your employment with
any Company Entity or the termination of that employment including,
without limitation, any claim for wrongful discharge ("Claims"). The
Company hereby agrees to release you and your heirs, executors,
administrators, and their respective successors and assigns, from all
rights, claims or demands the Company may have based on your
employment with any Company Entity or the termination of that
employment. The foregoing mutual release covers both known and unknown
claims. Each party hereby agrees never individually or with any person
to file, commence or aid in any fashion the filing of, any charges,
lawsuits or complaints with any governmental agency, or against the
other party, with respect to any of the matters covered by this
Section 10. Anything herein to the contrary notwithstanding, the
provisions of this Section 10 shall not apply to limit the rights of
<PAGE>
either party to enforce the terms of this Agreement against the other
party.
11. You agree that the payments and deliveries provided in Sections 2 and
3 hereunder are a full and fair payment for the release of any Claims
you may have. Except as provided in this Agreement, you also agree
that the Company does not owe you anything in addition to what you
will be receiving.
12. Each party hereto expressly acknowledges that this Agreement does not
constitute an admission by such party of any violation of any law,
regulation, ordinance, or administrative procedure, or any other
federal, state, or local law, common law, regulation or ordinance,
liability for which is expressly denied.
13. This Agreement is personal to you and shall not be assignable by you
without the written consent of the Company. This Agreement shall inure
to the benefit of and be binding upon the Company and its successors
or assigns.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without reference to principles of
conflict of laws.
15. This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective
successors or legal representatives.
16. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision
of this Agreement.
17. The failure of the Company at any time to enforce performance by you
of any provisions of this Agreement shall in no way affect the
Company's rights thereafter to enforce the same, nor shall the waiver
by the Company of any breach of any provision hereof be held to be a
waiver of any other breach of the same or any other provision.
18. The Company may withhold from any amounts payable under this Agreement
such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
<PAGE>
If the foregoing terms meet with your approval, please acknowledge you
acceptance as indicated below.
Sincerely,
CAPRIUS, INC.
By: Enrique Levy
------------------------------------
Vice President
AGREED: /s/ Jack Nelson June 28, 1999
-------------------------------- -------------------
Jack Nelson Date
Exhibit 4.3.2
CAPRIUS, INC.
2 EXECUTIVE DRIVE
FORT LEE, NEW JERSEY 07024
As of June 28, 1999
Enrique Levy
436 Cape May Street
Englewood, NJ 07631
Dear Enrique:
This letter sets forth our agreement (the "Agreement") regarding the termination
of your employment with Caprius, Inc. (the "Company") in connection with the
merger (the "Merger") of Caprius Merger Sub, Inc. with and into Opus Diagnostics
Inc. ("Opus") under the employment agreement dated as of February 19, 1998,
between you and the Company (the "Employment Agreement"). This Agreement
supersedes any previous agreement or arrangement between us in all respects,
except as otherwise provided herein.
1. Your employment with the Company shall be terminated effective as of
the close of business on June 28, 1999 (the "Termination Date"). You
shall remain a Director of the Company and serve at this position in
accordance with the Certificate of Incorporation and Bylaws of the
Company.
2. On the Termination Date, (i) the Company shall pay you an amount of
$43,000 in cash plus all amounts and benefits that have accrued or
were earned but remain unpaid through the Termination Date, including
salary ($9,995.10), unreimbursed expenses ($2,100) and accrued and
unused vacation ($39,340), and (ii) the Company shall deliver to you a
stock certificate issued to you representing 100,000 shares of its
Common Stock registered under the Securities Act of 1933, as amended.
If the Company does not have a sufficient number of registered shares
available for delivery to you pursuant to the preceding sentence, the
Company agrees to use its best efforts to file promptly a form S-8
with the Securities and Exchange Commission to register a number of
shares sufficient to enable the Company to satisfy its obligation
pursuant to this Section 2.
3. The Company shall make all premium payments for a period of twelve
(12) months following the Termination Date (the "Severance Term") on
your behalf for health care benefits for which you are eligible
(including dependent coverage) in accordance with the federal
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), provided you make a timely election to continue such
benefits through COBRA. You shall continue to receive during the
Severance Term, at the Company's cost, any welfare benefits provided
<PAGE>
to you as of the Termination Date (other than COBRA). The Company
shall not be required to provide you with the welfare benefits
described in this Section in the event you accept employment with any
corporation or other entity (other than the Company) and such
corporation or other entity provides you with health care coverage or
other benefits on terms that are substantially similar to the benefits
provided by the Company.
4. The payments and benefits to be provided to you as set forth in
sections 2 and 3 above shall be in lieu of (i) any and all payments to
which you may have been entitled in connection with the Merger or your
termination as an employee of the Company under the Employment
Agreement, or otherwise, and (ii) any and all other benefits otherwise
provided under any severance pay policy, plan or program maintained
from time to time by the Company for its employees. You shall not be
required to seek other employment or to attempt in any way to reduce
amounts payable to you pursuant to this Agreement. Except as otherwise
provided in Section 3 above, no amount payable hereunder shall be
reduced by any compensation earned by or other benefits provided to
you as a result of employment by another employer or otherwise.
5. During the period from the Termination Date until June 28, 2000 (the
"Consulting Period"), you shall provide consulting and advisory
services with respect to all aspects of the Company's business
including, without limitation, the completion by the Company of a
Business Transaction, and such other consulting and advisory services
as may be mutually agreed upon by you and the Company. Until the
expiration of the Consulting Period, you shall make yourself available
whenever reasonably necessary to perform the services hereunder for
the Company. In performing these services, you shall act as an
independent contractor, and not an employee of the Company.
6. You shall be entitled to keep and to use in your performance of
services hereunder at the Company's expense during the Consulting
Period, the Company credit card and the mobile phone which you have
been using to date. Until the expiration of the Consulting Period, the
Company shall pay you a monthly allowance of $700 for miscellaneous
expenses incurred by you in your performance of services hereunder. In
addition, the Company shall reimburse you for any itemized business
expenses incurred by you in your performance of services hereunder,
including the costs of travel at the Company's request, upon proper
submission of all related receipts relating to such expenses.
7. Upon the earlier to occur of (i) the consummation of a Business
Transaction (as defined below), or (ii) December 28, 1999, the Company
shall pay you an amount of $247,500 in cash. For purposes of this
Agreement, the term "Business Transaction" shall mean any of the
following: (1) the acquisition by any individual, entity or group of
beneficial ownership of 500 or more of either (a) the then outstanding
shares of common stock of the Company or (b) the combined voting power
of the then outstanding voting securities of the Company entitled to
vote generally in the election of directors; (2) Jonathan Joels and
George Aaron cease for any reason to be members of the Board of
<PAGE>
Directors of the Company; (3) the consummation of a recapitalization
or exchange of equity for debt or debt for equity for an amount in
excess of $1,000,000, restructuring, reorganization, merger or
consolidation of the Company or the Strax Center, or any sale or other
disposition of the Strax Center or all or substantially all of the
Company's assets, or (4) the liquidation or dissolution of the
Company.
8. Sections 6.1, 6.2, 6.3(i) and (ii) and 6.4 of the Employment Agreement
shall continue in full force and effect and are hereby incorporated by
reference to this Agreement.
9. You shall use your best judgment in the performance of your duties
hereunder. You shall not be liable for any acts or omissions or any
error of judgment or for any loss suffered by the Company in
connection with this Agreement except loss resulting from your willful
misfeasance, bad faith or gross negligence or by reason of reckless
disregard of your obligations and duties under this Agreement. The
Company shall indemnify you against any and all losses, claims,
damages, liabilities or expenses (including counsel fees and expenses)
arising from your past employment with the Company, any consulting
services you may provide to the Company hereunder, or by reason of the
fact that you were or are an officer or Director of the Company,
except those resulting from your willful misfeasance, gross
negligence, bad faith or reckless disregard in the performance of your
obligations and duties. You shall be entitled to advances from the
Company for payment of reasonable expenses incurred by you in
connection with the matter as to which you are seeking indemnification
in advance of the final disposition of such matter upon receipt by the
Company of your written undertaking to repay any such advance if it
should ultimately be determined that the standard of conduct has not
been met. Your right of indemnification hereunder shall continue after
the expiration of the Consulting Period and shall inure to the benefit
of your heirs and personal representatives.
10. In consideration of the payments contemplated hereunder and other
consideration provided to you pursuant to this Agreement, you, for
yourself and your heirs, executors, administrators, and their
respective successors and assigns, hereby release and forever
discharge the Company, and any of its subsidiaries, affiliates,
officers, directors, employees, agents, successors and assigns, and
all plan administrators and trustees of employee benefit plans
maintained by any of them (collectively "Company Entities"), from all
rights, claims or demands you may have based on your employment with
any Company Entity or the termination of that employment including,
without limitation, any claim for wrongful discharge ("Claims"). The
Company hereby agrees to release you and your heirs, executors,
administrators, and their respective successors and assigns, from all
rights, claims or demands the Company may have based on your
employment with any Company Entity or the termination of that
employment. The foregoing mutual release covers both known and unknown
claims. Each party hereby agrees never individually or with any person
to file, commence or aid in any fashion the filing of, any charges,
lawsuits or complaints with any governmental agency, or against the
<PAGE>
other party, with respect to any of the matters covered by this
Section 10. Anything herein to the contrary notwithstanding, the
provisions of this Section 10 shall not apply to limit the rights of
either party to enforce the terms of this Agreement against the other
party.
11. You agree that the payments and deliveries provided in Sections 2 and
3 hereunder are a full and fair payment for the release of any Claims
you may have. Except as provided in this Agreement, you also agree
that the Company does not owe you anything in addition to what you
will be receiving.
12. Each party hereto expressly acknowledges that this Agreement does not
constitute an admission by such party of any violation of any law,
regulation, ordinance, or administrative procedure, or any other
federal, state, or local law, common law, regulation or ordinance,
liability for which is expressly denied.
13. This Agreement is personal to you and shall not be assignable by you
without the written consent of the Company. This Agreement shall inure
to the benefit of and be binding upon the Company and its successors
or assigns.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without reference to principles of
conflict of laws.
15. This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective
successors or legal representatives.
16. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision
of this Agreement.
17. The failure of the Company at any time to enforce performance by you
of any provisions of this Agreement shall in no way affect the
Company's rights thereafter to enforce the same, nor shall the waiver
by the Company of any breach of any provision hereof be held to be a
waiver of any other breach of the same or any other provision.
18. The Company may withhold from any amounts payable under this Agreement
such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
<PAGE>
If the foregoing terms meet with your approval, please acknowledge you
acceptance as indicated below.
Sincerely,
CAPRIUS, INC.
By: Jack Nelson
------------------------------------
President
AGREED: /s/ Enrique Levy June 28, 1999
-------------------------------- -------------------
Enrique Levy Date
EXHIBIT 5
OPINION OF THELEN REID & PRIEST LLP
(212) 603-6780
New York, New York
March 29, 2000
Caprius, Inc.
One Parker Plaza
Fort Lee, NJ 07024
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have acted as counsel to Caprius, Inc., a Delaware corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") with respect to the registration under
the Securities Act of 1933, as amended (the "Act") of 225,000 shares of the
Company's Common Stock, $.01 par value per share (the "Common Stock"), issued to
two executives pursuant to the terms of Consulting and Severance Agreements (the
"Agreements").
For purposes of this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement; (ii) the Certificate of Incorporation and By-Laws of the Company, as
in effect on the date hereof; (iii) the Agreements; (iv) the resolutions adopted
by the Board of Directors of the Company relating to the foregoing and (v) such
other documents, certificates or other records as we have deemed necessary or
appropriate. With respect to any documents or other corporate records we have
examined, we have assumed the genuineness of all signatures on, and the
authenticity of, all documents submitted to us as originals, and the conformity
to the original documents submitted to us as certified or photostatic copies.
Based upon the foregoing, and subject to the qualifications hereinafter
expressed, we are of the opinion that:
(1) The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(2) The shares of Common Stock included in the Registration Statement to be
issued upon the exercise of the Options will be duly authorized, validly
issued, fully paid and non-assessable when the Options shall have been
properly exercised, and the exercise price shall have been paid for the
Shares in accordance with the terms of the Agreements.
We are members of the Bar of the State of New York and do not hold
ourselves out as experts concerning, or qualified to render opinions with
respect to, any laws other than the laws of the State of New York, the federal
laws of the United States and the General Corporation Law of the State of
Delaware.
<PAGE>
Caprius, Inc. -2- March 29, 2000
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. In giving the foregoing consent, we do
not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
/s/Thelen Reid & Priest LLP
THELEN REID & PRIEST LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Caprius, Inc.
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated December
7, 1999, relating to the consolidated financial statements of Caprius, Inc.
appearing in the Company's Annual Report on Form 10-KSB for the year ended
September 30, 1999, Our report contains an explanatory paragraph regarding the
Company's ability to continue as a going concern.
/s/ BDO Seidman, LLP
Boston, Massachusetts
March 23, 2000
