As filed with the Securities and Exchange Commission on July 22, 1996
Registration No. 33-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
MEDICAL STERILIZATION, INC.
(Exact name of registrant as specified in its charter)
New York 11-2621408
- ------------------------------- -------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
225 Underhill Boulevard, Syosset, NY 11791
---------------------------------------------------
(Address of principal executive offices) (Zip Code)
1996 STOCK PLAN
---------------
(Full title of the plan)
--------------------------
D. MICHAEL DEIGNAN
President and Chief Executive Officer
MEDICAL STERILIZATION, INC.
225 Underhill Boulevard
Syosset, NY 11791
(516) 496-8822
(Name, address including zip code and telephone number,
including area code, of agent for service)
--------------------------
Copy to:
STEVEN C. BROWNE
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, MA 02110
(617) 248-7000
================================================================================
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1996 STOCK PLAN
Common Stock, $.01 par value 500,000 shares $2.063 (1) $1,031,500 (1) $355.69
======================================================================================================================
(1) The price of $2.063 per share, which is the average of the bid and ask prices reported on the Nasdaq Bulletin
Board on July 15, 1996, is set forth solely for purposes of calculating the filing fee pursuant to Rule 457(c).
======================================================================================================================
</TABLE>
2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
-----------------
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
------------------------------------------------------------
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1995, as filed on or about March 29, 1996 and Registrant's
Quarterly Report on Form 10-QSB for the quarter ended March 31, 1996, as filed
on or about May 14, 1996 pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
3
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
The New York Business Corporation Law and the Registrant's Amended and
Restated By-Laws provide for indemnification of the Registrant's directors and
officers for liabilities and expenses that they may incur in such capacities. In
general, directors and officers are indemnified with respect to actions taken in
good faith, for a purpose which the indemnitee reasonably believed in, or not
opposed to, the best interests of the Registrant, and with respect to any
criminal action or proceeding, actions that the indemnitee had no reasonable
cause to believe were unlawful. Reference is made to the Registrant's Amended
and Restated By-Laws filed as Exhibit 3.4 to the Registrant's Annual Report on
Form 10-KSB filed March 29, 1996 and incorporated herein by reference.
The Registrant maintains directors and officers liability insurance for
the benefit of its directors and certain of its officers.
Item 7. Exemption From Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits
--------
Exhibit No. Description of Exhibit
----------- ----------------------
Exhibit 4.1 Specimen certificate representing the Common Stock of
the Registrant.
Exhibit 4.2 Amended and Restated Certificate of Incorporation of
the Registrant.
Exhibit 4.3 Amended and Restated By-laws of the Registrant,
(filed as Exhibit 3.4 to Registrant's Annual Report
on Form 10-KSB as filed on March 29, 1996 and
incorporated herein by reference).
Exhibit 4.4 1996 Stock Plan (filed as Exhibit 10.2 to
Registrant's Annual Report on Form 10-KSB as filed on
March 29, 1996 and incorporated herein by reference).
Exhibit 4.5 Form of Incentive Stock Option Agreement under the
1996 Stock Plan of the Registrant.
4
Exhibit 4.6 Form of Non-Qualified Stock Option Agreement under
the 1996 Stock Plan of the Registrant.
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Coopers & Lybrand L.L.P.
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included
in Exhibit 5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature
page to this Registration Statement).
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 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;
(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 (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the 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.
5
(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 the
Registrant's annual report pursuant to Section 13(a) or Section 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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 6, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the 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, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the questions whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Medical Sterilization, Inc., certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Syosset, State of New
York, on this 22nd day of July, 1996.
MEDICAL STERILIZATION, INC.
By: /s/ D. MICHAEL DEIGNAN
-------------------------------------------------
D. Michael Deignan
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, jointly and severally, D.
Michael Deignan and Paul V. Rossi his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 (including post-effective amendments), and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ D. MICHAEL DEIGNAN President, Chief Executive July 22, 1996
- ---------------------------------------- Officer and Director
D. Michael Deignan (Principal Executive Officer)
/s/ PAUL V. ROSSI Treasurer and Chief Financial Officer July 22, 1996
- ---------------------------------------- (Principal Financial and Accounting
Paul V. Rossi Officer)
/s/ HARVEY COHEN Director and Secretary July 22, 1996
- ----------------------------------------
Harvey Cohen
/s/JOHN R. HOOVER Director July 22, 1996
- ----------------------------------------
John R. Hoover
/s/ KENNETH W. RIND Director July 22, 1996
- ----------------------------------------
Kenneth W. Rind
/s/ KENNARD H. MORGANSTERN Director July 22, 1996
- ----------------------------------------
Kennard H. Morganstern
/s/ WILLIAM R. LONERGAN Director July 22, 1996
- ----------------------------------------
William R. Lonergan
/s/ FORREST R. WHITTAKER Director July 22, 1996
- ----------------------------------------
Forrest R. Whittaker
</TABLE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
- ------- ----------------------
<S> <C>
Exhibit 4.1 Specimen certificate representing the Common Stock of the Registrant.
Exhibit 4.2 Certificate of Amendment of Restated Certificate of Incorporation of the
Registrant.
Exhibit 4.3 Amended and Restated By-laws of the Registrant, (filed as Exhibit 3.4 to
Registrant's Annual Report on Form 10-KSB as filed on March 29, 1996 and
incorporated herein by reference).
Exhibit 4.4 1996 Stock Plan (filed as Exhibit 10.2 to Registrant's Annual Report on
Form 10-KSB as filed on March 29, 1996 and incorporated herein by
reference).
Exhibit 4.5 Form of Incentive Stock Option Agreement under the 1996 Stock Plan of
the Registrant.
Exhibit 4.6 Form of Non-Qualified Stock Option Agreement under the 1996 Stock Plan
of the Registrant.
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Coopers & Lybrand L.L.P.
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature page to this
Registration Statement).
</TABLE>
Exhibit 4.1
Number Shares
- ----------------- -------------
C 4264
- ----------------- -------------
MEDICAL STERILIZATION, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK
See Reverse for
Certain Definitions
CUSIP 584622 10 4
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF ONE
CENT ($.01) EACH, OF THE COMMON STOCK OF
MEDICAL STERILIZATION, INC.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this certificate properly
endorsed. This Certificate and the shares represented hereby are issued and
shall be held subject to all of the provisions of the Certificate of
Incorporation and By-Laws of the Corporation and any amendment thereto to all of
which the holder by acceptance here of assets.
This Certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
WITNESS the seal of the Corporation and the signatures of its duly
authorized officers.
Dated
Harvey Cohen D. Michael Deignan
SECRETARY PRESIDENT
Exhibit 4.2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
MEDICAL STERILIZATION, INC.
- --------------------------------------------------------------------------------
Under Section 805 of the New York Business Corporation Law
- --------------------------------------------------------------------------------
IT IS HEREBY CERTIFIED THAT:
FIRST: The name of the corporation is Medical Sterilization,
Inc. (the "Corporation"). The original name under which the Corporation was
formed was General Sterilization Services, Inc.
SECOND: The Certificate of Incorporation of the Corporation
was filed by the Department of State of New York on May 27, 1982. Restated
Certificates of Incorporation and Certificates of Amendment were filed on May
12, 1983, August 5, 1983, May 24, 1989, January 4, 1990 and November 28, 1994.
THIRD: The amendment of the Restated Certificate of
Incorporation of the Corporation effected by this Certificate of Amendment is to
permit the Corporation to issue certain additional securities without triggering
anti-dilution provisions with respect to the Corporation's Series B Convertible
Preferred Stock and Series C Convertible Preferred Stock.
FOURTH: To accomplish the foregoing amendment, Paragraph
FOURTH A(g)(vi) of the Restated Certificate of Incorporation of the Corporation
is hereby amended to read in its entirety as follows:
(vi) Certain Issues of Common Stock Excepted.
Anything herein to the contrary notwithstanding, the
Corporation shall not be required to make any adjustment of
the Conversion Price in the case of the issuance of: stock
options, stock awards or rights to purchase shares of Common
Stock issued or awarded pursuant to any stock plan adopted and
approved by the Board of Directors of the Corporation,
provided that, for so long as any shares of Series B
Convertible Preferred Stock or Series C Convertible Preferred
Stock are outstanding, at least one director nominated by the
holders of the then outstanding shares of Series B Convertible
Preferred Stock and Series C Convertible Preferred Stock shall
have voted in favor of the adoption and approval of such stock
plan; the issuance of 1,542,000 shares of Series C Convertible
Preferred Stock with a conversion price of $1.00 per share;
and the issuance of warrants to purchase 80,000 shares of
common stock of the Corporation at a price of $1.00 per share.
FIFTH: The foregoing amendment of the Restated Certificate of
Incorporation of the Corporation was authorized by the Board of Directors of the
Corporation, followed by the consent of the holders of two-thirds of the
outstanding shares of Series B Convertible Preferred Stock and Series C
Convertible Preferred Stock in the aggregate, and a majority of the votes cast
by the holders of Common Stock entitled to vote on the said amendment of the
Restated Certificate of Incorporation.
IN WITNESS WHEREOF, the undersigned subscribed this document
on the date set forth below and do hereby affirm, under the penalties of
perjury, that the statements contained herein have been examined by the
undersigned and are true and correct.
Dated: May 31, 1996
/s/ D. Michael Deignan
-------------------------------------------
D. Michael Deignan, Chief Executive Officer
and President
/s/ Harvey Cohen
-------------------------------------------
Harvey Cohen, Secretary
Exhibit 4.5
MEDICAL STERILIZATION, INC.
INCENTIVE STOCK OPTION AGREEMENT
--------------------------------
Medical Sterilization, Inc., a New York corporation (the "Company"),
hereby grants as of ___________, 199_ to _______________________ (the
"Employee"), an option to purchase a maximum of __________ shares (the "Option
Shares") of its Common Stock, $.01 par value ("Common Stock"), at the price of
$________ per share, on the following terms and conditions:
1. GRANT UNDER THE 1996 STOCK PLAN. This option is granted pursuant to
and is governed by the Company's 1996 Stock Plan (the "Plan") and, unless the
context otherwise requires, terms used herein shall have the same meaning as in
the Plan. Determinations made in connection with this option pursuant to the
Plan shall be governed by the Plan as it exists on this date.
2. GRANT AS INCENTIVE STOCK OPTION; OTHER OPTIONS. This option is
intended to qualify as an incentive stock option under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"). This option is in
addition to any other options heretofore or hereafter granted to the Employee by
the Company or any Related Corporation (as defined in the Plan), but a duplicate
original of this instrument shall not effect the grant of another option.
3. VESTING OF OPTION IF EMPLOYMENT CONTINUES. If the Employee has
continued to be employed by the Company or any Related Corporation on the
following dates, the Employee may exercise this option for the number of shares
of Common Stock set opposite the applicable date:
[INSERT VESTING SCHEDULE]
The foregoing rights are cumulative and, while the Employee continues to be
employed by the Company or any Related Corporation, may be exercised on or
before the date which is ten (10) years from the date this option is granted.
All of the foregoing rights are subject to Sections 4 and 5, as appropriate, if
the Employee ceases to be employed by the Company and all Related Corporations.
4. TERMINATION OF EMPLOYMENT.
(A) TERMINATION OTHER THAN FOR CAUSE: If the Employee ceases
to be employed by the Company and all Related Corporations, other than by reason
of death or disability as defined in Section 5 or termination for Cause as
defined in Section 4(c), no further installments of this option shall become
exercisable, and this option shall terminate on the earlier of (i) ninety (90)
days after the date of termination of the Employee's employment, or (ii) the
scheduled expiration date of this option. In such a case, the Employee's only
rights hereunder shall be those which are properly exercised before the
termination of this option.
(B) TERMINATION FOR CAUSE: If the employment of the Employee
is terminated for Cause (as defined in Section 4(c)), this option shall
terminate upon the Employee's receipt of written notice of such termination and
shall thereafter not be exercisable to any extent whatsoever.
(C) DEFINITION OF CAUSE: "Cause" shall mean conduct involving
one or more of the following: (i) the substantial and continuing failure of the
Employee, after notice thereof, to render services to the Company or Related
Corporation in accordance with the terms or requirements of his or her
employment; (ii) disloyalty, gross negligence, willful misconduct, dishonesty or
breach of fiduciary duty to the Company or Related Corporation; (iii) the
commission of an act of embezzlement or fraud; (iv) deliberate disregard of the
rules or policies of the Company or Related Corporation which results in direct
or indirect loss, damage or injury to the Company or Related Corporation; (v)
the unauthorized disclosure of any trade secret or confidential information of
the Company or Related Corporation; or (vi) the commission of an act which
constitutes unfair competition with the Company or Related Corporation or which
induces any customer or supplier to breach a contract with the Company or
Related Corporation.
5. DEATH; DISABILITY.
(A) DEATH: If the Employee ceases to be employed by the
Company and all Related Corporations by reason of his or her death, this option
may be exercised, to the extent otherwise exercisable on the date of death, by
the estate, personal representative or beneficiary who has acquired this option
by will or by the laws of descent and distribution, until the earlier of (i) the
specified expiration date of this option or (ii) 180 days from the date of the
Employee's death.
(B) DISABILITY: If the Employee ceases to be employed by the
Company and all Related Corporations by reason of his or her disability (as
defined in Paragraph 10(B) of the Plan), the Employee shall have the right to
exercise this option on the date of termination of employment, for the number of
shares for which he or she could have exercised it on that date, until the
earlier of (i) the specified expiration date of this option or (ii) 180 days
from the date of the termination of the Employee's employment.
(C) EFFECT OF TERMINATION: At the expiration of the 180-day
period provided in paragraph (a) or (b) of this Section 5 or the scheduled
expiration date, whichever is the earlier, this option shall terminate and the
only rights hereunder shall be those as to which the option was properly
exercised before such termination.
6. PARTIAL EXERCISE. The Employee may exercise this option in part at
any time and from time to time within the above limits, except that the Employee
may not exercise this option for a fraction of a share unless such exercise is
with respect to the final installment of stock subject to this option and cash
in lieu of a fractional share must be paid, in accordance with Paragraph 13(G)
of the Plan, to permit the Employee to exercise completely such final
installment. Any fractional share with respect to which an installment of this
option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Employee in accordance with the terms hereof.
7. PAYMENT OF PRICE. (a) The option price shall be paid in the
following manner:
(i) in United States dollars in cash or by
check;
(ii) subject to paragraph 7(b) below, through
delivery of shares of Common Stock having a
fair market value (determined by the Board
of Directors of the Company or a committee
appointed by the Board) equal as of the date
of the exercise to the cash exercise price
of the Option;
(iii) consistent with applicable law, through the
delivery of an assignment to the Company of
a sufficient amount of the proceeds from the
sale of the Common Stock acquired upon
exercise of the Option and an authorization
to the broker or selling agent to pay that
amount to the Company, which sale shall be
at the participant's direction at the time
of exercise; or
(iv) by any combination of (i), (ii) or (iii)
above.
(B) LIMITATIONS ON PAYMENT BY DELIVERY OF COMMON STOCK: If the
Employee delivers Common Stock held by the Employee ("Old Stock") to the Company
in full or partial payment of the option price, and the Old Stock so delivered
is subject to restrictions or limitations imposed by agreement between the
Employee and the Company, an equivalent number of Option Shares shall be subject
to all restrictions and limitations applicable to the Old Stock to the extent
that the Employee paid for the Option Shares by delivery of Old Stock, in
addition to any restrictions or limitations imposed by this Agreement.
Notwithstanding the foregoing, the Employee may not pay any part of the exercise
price hereof by transferring Common Stock to the Company unless the Employee has
owned such Common Stock free of any substantial risk of forfeiture for at least
six months.
(C) PERMITTED PAYMENT BY RECOURSE NOTE: In addition, if this
paragraph is signed below by the person signing this Agreement on behalf of the
Company, the option price may be paid by delivery of the Employee's personal
recourse note bearing interest payable not less than annually at no less than
100% of the lowest applicable Federal rate, as defined in Section 1274(d) of the
Code.
--------------------------------
signature
8. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of
this Agreement, this option may be exercised by written notice to the Company at
its principal executive office, or to such transfer agent as the Company shall
designate. Such notice shall state the election to exercise this option and the
number of Option Shares for which it is being exercised and shall be signed by
the person or persons exercising this option. Such notice shall be accompanied
by payment of the full purchase price of such shares, and the Company shall
deliver a certificate or certificates representing such shares as soon as
practicable after the notice shall be received. Such certificate or certificates
shall be registered in the name of the person or persons so exercising this
option (or, if this option is exercised by the Employee and if the Employee
requests in the notice exercising this option, shall be registered in the name
of the Employee and another person jointly, with right of survivorship). In the
event this option is exercised, pursuant to Section 5 hereof, by any person or
persons other than the Employee, such notice shall be accompanied by appropriate
proof of the right of such person or persons to exercise this option.
9. OPTION NOT TRANSFERABLE. This option is not transferable or
assignable except by will or by the laws of descent and distribution. During the
Employee's lifetime only the Employee can exercise this option.
10. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
option imposes no obligation on the Employee to exercise it.
11. NO OBLIGATION TO CONTINUE EMPLOYMENT. Neither the Plan, this
Agreement, nor the grant of this option imposes any obligation on the Company or
any Related Corporation to continue the Employee in employment.
12. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Employee shall have no
rights as a stockholder with respect to the Option Shares until the date of
issuance of a stock certificate to the Employee. Except as is expressly provided
in the Plan with respect to certain changes in the capitalization and stock
dividends of the Company, no adjustment shall be made for dividends or similar
rights for which the record date is before the date such stock certificate is
issued.
13. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. The Plan contains
provisions covering the treatment of options in a number of contingencies such
as stock splits and mergers. Provisions in the Plan for adjustment with respect
to stock subject to options and the related provisions with respect to
successors to the business of the Company are hereby made applicable hereunder
and are incorporated herein by reference.
14. EARLY DISPOSITION. The Employee agrees to notify the Company in
writing immediately after the Employee transfers any Option Shares, if such
transfer occurs on or before the later of (a) the date two years after the date
of this Agreement or (b) the date one year after the date the Employee acquired
such Option Shares. The Employee also agrees to provide the Company with any
information concerning any such transfer required by the Company for tax
purposes.
15. WITHHOLDING TAXES. If the Company or any Related Corporation in its
discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, the making of a Disqualifying Disposition (as
defined in Paragraph 18 of the Plan), the vesting or transfer of Option Shares
acquired on the exercise of this option, or the making of a distribution or
other payment with respect to the Option Shares, the Employee hereby agrees that
the Company or any Related Corporation may withhold from the Employee's wages or
other remuneration the appropriate amount of tax. At the discretion of the
Company or Related Corporation, the amount required to be withheld may be
withheld in cash from such wages or other remuneration or in kind from the
Common Stock or other property otherwise deliverable to the Employee on exercise
of this option. The Employee further agrees that, if the Company or any Related
Corporation does not withhold an amount from the Employee's wages or other
remuneration sufficient to satisfy the withholding obligation of the Company or
Related Corporation, the Employee will make reimbursement on demand, in cash,
for the amount underwithheld.
16. PROVISION OF DOCUMENTATION TO EMPLOYEE. By signing this Agreement
the Employee acknowledges receipt of a copy of this Agreement and a copy of the
Plan.
17. MISCELLANEOUS.
(A) NOTICES: All notices hereunder shall be in writing and
shall be deemed given when sent by certified or registered mail, postage
prepaid, return receipt requested, to the address set forth below. The addresses
for such notices may be changed from time to time by written notice given in the
manner provided for herein.
(B) ENTIRE AGREEMENT; MODIFICATION: This Agreement constitutes
the entire agreement between the parties relative to the subject matter hereof,
and supersedes all proposals, written or oral, and all other communications
between the parties relating to the subject matter of this Agreement. This
Agreement may be modified, amended or rescinded only by a written agreement
executed by both parties.
(C) SEVERABILITY: The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way affect the
validity, legality or enforceability of any other provision.
(D) SUCCESSORS AND ASSIGNS: This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, subject to the limitations set forth in Section 9
hereof.
(E) GOVERNING LAW: This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York, without giving
effect to the principles of the conflicts of laws thereof.
IN WITNESS WHEREOF, the Company and the Employee have caused this
instrument to be executed as of the date first above written.
MEDICAL STERILIZATION, INC.
- ----------------------------- 225 Underhill Boulevard
EMPLOYEE Syosset, NY 11791-3489
By:
- ----------------------------- -----------------------------------
Print Name of Employee [NAME OF OFFICER]
- ----------------------------- --------------------------------------
Street Address Title
- ----------------------------
City State Zip Code
Exhibit 4.6
MEDICAL STERILIZATION, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
Medical Sterilization, Inc., a New York corporation (the "Company"),
hereby grants as of __________, 199_ to ___________ (the "Optionee"), an option
to purchase a maximum of ________ shares (the "Option Shares") of its Common
Stock, $.01 par value ("Common Stock"), at the price of $________ per share, on
the following terms and conditions:
1. GRANT UNDER THE 1996 STOCK PLAN. This option is granted pursuant to
and is governed by the Company's the 1996 Stock Plan (the "Plan") and, unless
the context otherwise requires, terms used herein shall have the same meaning as
in the Plan. Determinations made in connection with this option pursuant to the
Plan shall be governed by the Plan as it exists on this date.
2. GRANT AS NON-QUALIFIED OPTION; OTHER OPTIONS. This option shall be
treated for federal income tax purposes as a Non-Qualified Option (rather than
an incentive stock option). This option is in addition to any other options
heretofore or hereafter granted to the Optionee by the Company or any Related
Corporation (as defined in the Plan), but a duplicate original of this
instrument shall not effect the grant of another option.
3. VESTING OF OPTION IF BUSINESS RELATIONSHIP CONTINUES. If the
Optionee has continued to serve the Company or any Related Corporation in the
capacity of an employee, officer, director or consultant (such service is
described herein as maintaining or being involved in a "Business Relationship
with the Company") on the following dates, the Optionee may exercise this option
for the number of shares of Common Stock set opposite the applicable date:
[INSERT VESTING SCHEDULE]
The foregoing rights are cumulative and, while the Optionee continues to
maintain a Business Relationship with the Company, may be exercised up to and
including the date which is ten (10) years from the date this option is granted.
All of the foregoing rights are subject to Sections 4 and 5, as appropriate, if
the Optionee ceases to maintain a Business Relationship with the Company dies,
becomes disabled or undergoes dissolution while involved in a Business
Relationship with the Company.
4. TERMINATION OF BUSINESS RELATIONSHIP.
(A) TERMINATION OTHER THAN FOR CAUSE: If the Optionee's
Business Relationship with the Company is terminated, other than by reason of
death, disability or dissolution as defined in Section 5 or termination for
Cause as defined in Section 4(c), no further installments of this option shall
become exercisable, and this option shall terminate after the passage of ninety
(90) days from the date the Business Relationship ceases, but in no event later
than the scheduled expiration date. In such a case, the Optionee's only rights
hereunder shall be those which are properly exercised before the termination of
this option.
(B) TERMINATION FOR CAUSE: If the Optionee's Business
Relationship with the Company is terminated for Cause (as defined in Section
4(c)), this option shall terminate upon the Optionee's receipt of written notice
of such termination and shall thereafter not be exercisable to any extent
whatsoever.
(C) DEFINITION OF CAUSE: "Cause" shall mean conduct involving
one or more of the following: (i) the substantial and continuing failure of the
Optionee, after notice thereof, to render services to the Company or Related
Corporation in accordance with the terms or requirements of the Optionee's
Business Relationship with the Company; (ii) disloyalty, gross negligence,
willful misconduct, dishonesty or breach of fiduciary duty to the Company or
Related Corporation; (iii) the commission of an act of embezzlement or fraud;
(iv) deliberate disregard of the rules or policies of the Company or Related
Corporation which results in direct or indirect loss, damage or injury to the
Company or Related Corporation; (v) the unauthorized disclosure of any trade
secret or confidential information of the Company or Related Corporation; or
(vi) the commission of an act which constitutes unfair competition with the
Company or Related Corporation or which induces any customer or supplier to
break a contract with the Company or Related Corporation.
5. DEATH; DISABILITY; DISSOLUTION.
(A) DEATH: If the Optionee is a natural person who dies while
involved in a Business Relationship with the Company, this option may be
exercised, to the extent otherwise exercisable on the date of his or her death,
by the Optionee's estate, personal representative or beneficiary to whom this
option has been assigned pursuant to Section 9, at any time within 180 days
after the date of death, but not later than the scheduled expiration date.
(B) DISABILITY: If the Optionee is a natural person whose
Business Relationship with the Company is terminated by reason of his or her
disability (as defined in the Plan), this option may be exercised, to the extent
otherwise exercisable on the date the Business Relationship was terminated, at
any time within 180 days after such termination, but not later than the
scheduled expiration date.
(C) EFFECT OF TERMINATION: At the expiration of such 180-day
period provided in paragraph (a) or (b) of this Section 5 or the scheduled
expiration date, whichever is the earlier, this option shall terminate and the
only rights hereunder shall be those as to which the option was properly
exercised before such termination.
(D) DISSOLUTION: If the Optionee is a corporation,
partnership, trust or other entity that is dissolved, is liquidated, becomes
insolvent or enters into a merger or acquisition with respect to which the
Optionee is not the surviving entity, at a time when the Optionee is involved in
a Business Relationship with the Company, this option shall immediately
terminate
as of the date of such event, and the only rights hereunder shall be those as to
which this option was properly exercised before such dissolution or other event.
6. PARTIAL EXERCISE. This option may be exercised in part at any time
and from time to time within the above limits, except that this option may not
be exercised for a fraction of a share unless such exercise is with respect to
the final installment of stock subject to this option and cash in lieu of a
fractional share must be paid, in accordance with Paragraph 13(G) of the Plan,
to permit the Optionee to exercise completely such final installment. Any
fractional share with respect to which an installment of this option cannot be
exercised because of the limitation contained in the preceding sentence shall
remain subject to this option and shall be available for later purchase by the
Optionee in accordance with the terms hereof.
7. PAYMENT OF PRICE. (A) The option price shall be paid in the
following manner:
(i) in United States dollars in cash or by
check;
(ii) in the discretion of the Board of
Directors/Committee, subject to paragraph
7(b) below, through delivery of shares of
Common Stock having a fair market value
(determined by the Board of Directors of the
Company or a committee appointed by the
Board) equal as of the date of the exercise
to the cash exercise price of the Option;
(iii) in the discretion of the Board of
Directors/Committee, by delivery of the
grantee's personal recourse note bearing
interest payable not less than annually at
no less than 100% of the lowest applicable
Federal rate, as defined in Section 1274(d)
of the Code,
(iv) in the discretion of the Board of
Directors/Committee, consistent with
applicable law, through the delivery of an
assignment to the Company of a sufficient
amount of the proceeds from the sale of the
Common Stock acquired upon exercise of the
Option and an authorization to the broker or
selling agent to pay that amount to the
Company, which sale shall be at the
participant's direction at the time of
exercise; or
(v) in the discretion of the Board of
Directors/Committee, by any combination of
(i), (ii), (iii) and (iv) above.
(B) LIMITATIONS ON PAYMENT BY DELIVERY OF COMMON STOCK: If the
Optionee delivers Common Stock held by the Optionee ("Old Stock") to the Company
in full or partial payment of the option price, and the Old Stock so delivered
is subject to restrictions or limitations imposed by agreement between the
Optionee and the Company, an equivalent number of Option Shares shall be subject
to all restrictions and limitations applicable to the Old Stock to the extent
that the Optionee paid for the Option Shares by delivery of Old Stock, in
addition to
any restrictions or limitations imposed by this Agreement. Notwithstanding the
foregoing, the Optionee may not pay any part of the exercise price hereof by
transferring Common Stock to the Company unless the Optionee has owned such
Common Stock free of any substantial risk of forfeiture for at least six months.
8. METHOD OF EXERCISING OPTION. Subject to the terms and conditions of
this Agreement, this option may be exercised by written notice to the Company,
at its principal executive office, or to such transfer agent as the Company
shall designate. Such notice shall state the election to exercise this option
and the number of Option Shares for which it is being exercised and shall be
signed by the person or persons so exercising this option. Such notice shall be
accompanied by payment of the full purchase price of such shares, and the
Company shall deliver a certificate or certificates representing such shares as
soon as practicable after the notice shall be received. Such certificate or
certificates shall be registered in the name of the person or persons so
exercising this option (or, if this option shall be exercised by the Optionee
and if the Optionee shall so request in the notice exercising this option, shall
be registered in the name of the Optionee and another person jointly, with right
of survivorship). In the event this option shall be exercised, pursuant to
Section 5 hereof, by any person or persons other than the Optionee, such notice
shall be accompanied by appropriate proof of the right of such person or persons
to exercise this option.
9. OPTION NOT TRANSFERABLE. This option is not transferable or
assignable except by will or by the laws of descent and distribution or pursuant
to a valid domestic relations order. Except as set forth in the previous
sentence, during the Optionee's lifetime, only the Optionee can exercise this
option.
10. NO OBLIGATION TO EXERCISE OPTION. The grant and acceptance of this
option imposes no obligation on the Optionee to exercise it.
11. NO OBLIGATION TO CONTINUE BUSINESS RELATIONSHIP. Neither the Plan,
this Agreement, nor the grant of this option imposes any obligation on the
Company or any Related Corporation to continue to maintain a Business
Relationship with the Optionee.
12. NO RIGHTS AS STOCKHOLDER UNTIL EXERCISE. The Optionee shall have no
rights as a stockholder with respect to the Option Shares until the date of
issuance of a stock certificate to the Optionee. Except as is expressly provided
in the Plan with respect to certain changes in the capitalization and stock
dividends of the Company, no adjustment shall be made for dividends or similar
rights for which the record date is before the date such stock certificate is
issued.
13. CAPITAL CHANGES AND BUSINESS SUCCESSIONS. The Plan contains
provisions covering the treatment of options in a number of contingencies such
as stock splits and mergers. Provisions in the Plan for adjustment with respect
to stock subject to options and the related provisions with respect to
successors to the business of the Company are hereby made applicable hereunder
and are incorporated herein by reference.
14. WITHHOLDING TAXES. If the Company or any Related Corporation in its
discretion determines that it is obligated to withhold any tax in connection
with the exercise of this option, the vesting or transfer of the Option Shares
acquired on the exercise of this option, or the making of a distribution or
other payment with respect to the Option Shares, the Optionee hereby agrees that
the Company or any Related Corporation may withhold from the Optionee's wages or
other remuneration the appropriate amount of tax. At the discretion of the
Company or Related Corporation, the amount required to be withheld may be
withheld in cash from such wages or other remuneration or in kind from the
Common Stock or other property otherwise deliverable to the Optionee on exercise
of this option. The Optionee further agrees that, if the Company or Related
Corporation does not withhold an amount from the Optionee's wages or other
remuneration sufficient to satisfy the withholding obligation of the Company or
Related Corporation, the Optionee will make reimbursement on demand, in cash,
for the amount underwithheld.
15. PROVISION OF DOCUMENTATION TO OPTIONEE. By signing this Agreement
the Optionee acknowledges receipt of a copy of this Agreement and a copy of the
Plan.
16. MISCELLANEOUS.
(A) NOTICES: All notices hereunder shall be in writing and
shall be deemed given when sent by certified or registered mail, postage
prepaid, return receipt requested, to the address set forth below. The addresses
for such notices may be changed from time to time by written notice given in the
manner provided for herein.
(B) ENTIRE AGREEMENT; MODIFICATION: This Agreement constitutes
the entire agreement between the parties relative to the subject matter hereof,
and supersedes all proposals, written or oral, and all other communications
between the parties relating to the subject matter of this Agreement. This
Agreement may be modified, amended or rescinded only by a written agreement
executed by both parties.
(C) SEVERABILITY: The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way affect the
validity, legality or enforceability of any other provision.
(D) SUCCESSORS AND ASSIGNS: This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, subject to the limitations set forth in Section 9
hereof.
(E) GOVERNING LAW: This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York, without giving
effect to the principles of the conflicts of laws thereof. The preceding choice
of law provision shall apply to all claims, under any theory whatsoever, arising
out of the relationship of the parties contemplated herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Company and the Optionee have caused this
instrument to be executed as of the date first above written.
MEDICAL STERILIZATION, INC.
225 Underhill Boulevard
Syosset, NY 11791-3489
- ----------------------------
OPTIONEE
By:
- ---------------------------- ---------------------------------------
Print Name of Optionee [NAME OF OFFICER]
- ---------------------------- ------------------------------------------
Street Address Title
- ----------------------------
City State Zip Code
Exhibit 5.1
[Testa, Hurwitz & Thibeault, LLP Letterhead]
July 22, 1996
Medical Sterilization, Inc.
225 Underhill Boulevard
Syosset, NY 11791
Re: Registration Statement on Form S-8 Relating to the 1996 Stock
Plan (the "Plan") of Medical Sterilization, Inc. (the "Company")
Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by the Company on or about July 22,
1996 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, relating to an aggregate of 500,000 shares of Common Stock,
$.01 par value per share, of the Company issuable pursuant to the Plan (the
"Shares").
We have examined, are familiar with, and have relied as to factual
matters solely upon, a copy of the Plan, the Certificate of Amendment of
Restated Certificate of Incorporation and Amended and Restated By-Laws of the
Company, the minute books and stock records of the Company and originals of such
other documents, certificates and proceedings as we have deemed necessary for
the purpose of rendering this opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the Plan, the terms of any option or purchase right grant thereunder duly
authorized by the Company's Board of Directors or Compensation Committee, and/or
any related agreements with the Company, will be validly issued, full paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
TESTA, HURWITZ & THIBEAULT, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Medical Sterilization, Inc. on Form S-8 of our report dated March 19, 1996, on
our audits of the financial statements of Medical Sterilization, Inc. as of
December 31, 1995, and for the years ended December 31, 1995 and 1994, which
report is included in the annual report of Medical Sterilization, Inc. on Form
10-KSB.
COOPERS & LYBRAND L.L.P.
Melville, New York
July 22, 1996
