As Filed with the Securities and Exchange Commission on September 28, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SPECTRASCIENCE, INC.
(Exact Name of Registrant as Specified in Its Charter)
Minnesota
(State of Incorporation)
41-1448837
(I.R.S. Employer Identification Number)
5909 Baker Road
Minnetonka, MN 55345
(Address of Principal Executive Offices) (Zip Code)
SPECTRASCIENCE, INC.
1991 STOCK PLAN
(Full title of the Plan)
Brian T. McMahon
President
SpectraScience, Inc.
5909 Baker Road
Minnetonka, MN 55345
(Name and Address of Agent For Service)
(612) 931-9000
(Telephone Number of Agent For Service)
Copy to:
Stephen P. Kregstein, Esq.
4999 Pearl East Circle, Suite 300
Boulder, CO 80301
(303) 449-9445
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
Common Stock,
$.25 par value 675,000 $5.50 $3,712,500.00 $1,280.17
Estimated solely for the purpose of determining the registration fee pursuant to
Rule 457(c) and (h) and based upon the average of the bid and asked price for
the Company's Common Stock on September 25, 1995.
PART I
Pursuant to the Note to Part I of Form S-8, the information required by Items 1
and 2 of Form S-8 is not filed as a part of this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission are
hereby incorporated by reference herein:
(a) A total of 325,000 shares of the Company's Common Stock were previously
registered under Form S-8, Registration No. 33-45523. The contents of that
registration statement, including all exhibits thereto, are incorporated by
reference. At the Company's June 29, 1995 Annual Meeting of Shareholders, the
number of shares of Common Stock authorized for issuance under the 1991 Stock
Option Plan was increased to 1,000,000 . This Registration Statement covers the
additional 675,000 shares of Common Stock authorized for issuance at such time.
(b) The Annual Reports of the Company on Forms 10-KSB for the calendar year
ended December 31, 1994.
(c) The Quarterly Reports of the Company on Forms 10-QSB for the quarters
ended March 31 and June 30, 1995.
(d) The Definitive Proxy Statement dated May 19, 1995 for the Annual
Meeting of Shareholders held on June 29, 1995.
(e) The description of the Company's Common Stock as set forth in the
Company's most recent Registration Statement and in the Company's Definitive
Proxy Statement referred to in (d) above.
(f) The latest annual report of the 1991 Stock Option Plan.
(g) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in the Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 8. Exhibits. Exhibit Index
Page
4 SpectraScience, Inc. 1991 Stock Option Plan, as amended 5
5 Opinion and Consent of Stephen P. Kregstein, Esq. as
to the legality of the common stock offered pursuant
to the stock plan referred to herein 14
23.1 Consent of Stephen P. Kregstein, Esq.
(included in Exhibit 5)
23.2 Consent of Ernst & Young LLP independent auditors 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minnetonka, State of Minnesota, on September 25,
1995.
SPECTRASCIENCE, INC
By /s/ Brian T. McMahon
Brian T. McMahon, President
POWER OF ATTORNEY
The undersigned officers and directors of SpectraScience, Inc. hereby constitute
and appoint Brian T. McMahon and Ching-Meng Chew, or either of them, with power
to act one without the other, our true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for us and in our stead, in
any and all capacities to sign any and all amendments (including post-effective
amendments) to this Registration Statement and all documents relating thereto,
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 necessary or advisable 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, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Date
/s/ Brian T. McMahon September 25, 1995
Brian T. McMahon, President,
Chief Executive Officer (Principal
Executive Officer) and Director
/s/ Ching-Meng Chew September 25, 1995
Ching-Meng Chew, Chief
Financial Officer (Principal
Financial and Accounting Officer)
/s/ Nathaniel S. Thayer September 25, 1995
Nathaniel S. Thayer, Director
/s/ Henry Holterman September 25, 1995
Henry Holterman, Director
Exhibit 4
SPECTRASCIENCE, INC.
1991 STOCK PLAN
(AS AMENDED OCTOBER 1, 1994)
rev 9/7/95
SECTION 1. GENERAL PURPOSE OF PLAN; DEFINITIONS.
The name of this plan is the SpectraScience, Inc. 1991 Stock Plan (the
"Plan"). The purpose of the Plan is to enable SpectraScience, Inc. (the
"Company") and its Subsidiaries to retain and attract executives, key employees
(whether full or part-time), consultants and non-employee directors who
contribute to the Company's success by their ability, ingenuity and industry,
and to enable such individuals to participate in the long-term success and
growth of the Company by giving them a proprietary interest in the Company.
For purposes of the Plan, the following terms shall be defined as set forth
below:
a. "BOARD" means the Board of Directors of the Company.
b. "CAUSE" means a felony conviction of a participant or the failure of a
participant to contest prosecution for a felony, or a participant's
willful misconduct or dishonesty, any of which is directly and
materially harmful to the business or reputation of the Company.
c. "CODE" means the Internal Revenue Code of 1986, as amended.
d. "COMMITTEE" means the Committee referred to in Section 2 of the Plan.
If at any time no Committee shall be in office, then the functions of
the Committee specified in the Plan shall be exercised by the Board.
e. "COMPANY" means, SpectraScience, Inc., a corporation organized under
the laws of the State of Minnesota (or any successor corporation).
f. "DISABILITY" means permanent and total disability as determined by the
Committee.
g. "DISINTERESTED PERSON" shall have the meaning set forth in Rule 16b-3
as promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, or any successor definition adopted
by the Commission.
h. "EARLY RETIREMENT" means retirement, with consent of the Committee at
the time of retirement, from active employment with the Company and
any Subsidiary or Parent Corporation of the Company.
i. "FAIR MARKET VALUE" means the value of the Stock on a given date as
determined by the Committee in accordance with the applicable Treasury
Department regulations under Section 422A of the Code with respect to
"incentive stock options."
j. "INCENTIVE STOCK OPTION" means any Stock Option intended to be and
designated as an "Incentive Stock Option" within the meaning of
Section 422A of the Code.
k. "NON-QUALIFIED STOCK OPTION" means any Stock Option that is not an
Incentive Stock Option, and is intended to be and is designated as a
"Non-Qualified Stock Option."
1. "NON-EMPLOYEE DIRECTOR" means any member of the Board who is not an
employee of the Company, any Parent Corporation or Subsidiary.
m. "NORMAL RETIREMENT" means retirement from active employment with the
Company, any Subsidiary or Parent Corporation of the Company on or
after age 65.
n. "PARENT CORPORATION" means any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company if each of
the corporations (other than the Company) owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one
of the other corporations in the chain.
o. "RETIREMENT" means Normal Retirement or Early Retirement.
p. "STOCK" means the Common Stock, $.25 par value per share, of the
Company.
q. "STOCK APPRECIATION RIGHT" means the right pursuant to an award
granted under Section 6 below to surrender to the Company all or a
portion of a Stock Option in exchange for an amount equal to the
difference between (i) the Fair Market Value, as of the date such
Stock Option or such portion thereof is surrendered, of the shares of
Stock covered by such Stock Option or such portion thereof, and (ii)
the aggregate exercise price of such Stock Option or such portion
thereof.
r. "STOCK OPTION" means any option to purchase shares of Stock granted
pursuant to Section 5 below.
s. "SUBSIDIARY" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of
the corporations (other than the last corporation in the unbroken
chain) owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the
chain.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Board of Directors or by a Committee
of not less than two directors, all of whom are Disinterested Persons, who shall
be appointed by the Board of Directors of the Company and who shall serve at the
pleasure of the Board.
The Committee shall have the power and authority to grant to eligible
persons, pursuant to the terms of the Plan: (A) Stock Options or (B) Stock
Appreciation Rights.
In particular, the Committee shall have the authority:
(i) to select the officers and other key employees of the Company or
its Subsidiaries, and consultants and other persons having a
contractual relationship with the Company or its Subsidiaries, to
whom Stock Options and/or Stock Appreciation Rights may from time
to time be granted hereunder;
(ii) to determine whether and to what extent Incentive Stock Options,
Non-Qualified Stock Options or Stock Appreciation Rights, or a
combination of the foregoing, are to be granted hereunder;
(iii) to determine the number of shares to be covered by each such
award granted hereunder;
(iv) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder (including, but
not limited to, any restriction on any Stock Option or other
award and/or the shares of Stock relating thereto) and to amend
such terms and conditions (including, but not limited to, any
amendment which accelerates the vesting of any award); and
(v) to determine whether, to what extent, and under what
circumstances, Stock Options may be exercised following
termination of employment.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time, deem advisable; to interpret the terms and provisions of the
Plan and any award issued under the Plan (and any agreements relating thereto);
and to otherwise supervise the administration of the Plan. The Committee may
delegate its authority to the President and/or the Chief Executive Officer of
the Company for the purpose of selecting employees who are not officers of the
Company for purposes of (A) above.
All decisions made by the Committee pursuant to the provisions of the Plan
shall be final and binding on all persons, including the Company and Plan
participants.
SECTION 3. STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for distribution
under the Plan shall be 1,000,000 shares, subject to increase or decrease in the
event of any adjustment required in the paragraph below. Such shares may
consist, in whole or in part, of authorized and unissued shares. Subject to
paragraph (b)(iv) of Section 6 below, if any shares that have been optioned
cease to be subject to Options, are forfeited or such award otherwise terminates
without a payment being made to the participant, such shares shall again be
available for distribution in connection with future awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split (reverse or other), other change
in corporate structure affecting the Stock, or spin-off or other distribution of
assets to shareholders, such substitution or adjustment shall be made in the
aggregate number of shares reserved for issuance under the Plan and in the
number and option price of shares subject to outstanding options granted under
the Plan as may be determined to be appropriate by the Committee, in its sole
discretion, provided that the number of shares subject to any award shall always
be a whole number. Such adjusted option price shall also be used to determine
the amount payable by the Company upon the exercise of any Stock Appreciation
Right associated with any Option.
SECTION 4. ELIGIBILITY.
Officers, other key employees of the Company or its subsidiaries,
Non-Employee Directors and consultants and other persons having a contractual
relationship with the Company or its Subsidiaries who are responsible for or
contribute to the management, growth and/or profitability of the business of the
Company and its Subsidiaries are eligible to be granted Stock Option or Stock
Appreciation Right awards under the Plan. Except for Non-Employee Directors,
whose participation in the Plan shall be limited as provided in paragraph (k) of
Section 5, the optionees and participants under the Plan shall be selected from
time to time by the Committee, in its sole discretion, from among those
eligible, and the Committee shall determine, in its sole discretion, the number
of shares covered by each award.
SECTION 5. STOCK OPTIONS.
Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
The Stock Options granted under the Plan may be of two types: (i) Incentive
Stock Options and (ii) Non-Qualified Stock Options. No Incentive Stock Options
shall be granted under the Plan after July 10, 2001.
The Committee shall have the authority to grant any optionee Incentive
Stock Options, Non-Qualified Stock options, or both types of options (in each
case with or without Stock Appreciation Rights). To the extent that any option
does not qualify as an Incentive Stock Option, it shall constitute a separate
Non-Qualified Stock Option.
Anything in the Plan to the contrary notwithstanding, no term of this Plan
relating to Incentive Stock Options shall be interpreted, amended or altered,
nor shall any discretion or authority granted under the Plan be so exercised, so
as to disqualify either the Plan or any Incentive Stock Option under Section
422A of the Code. The preceding sentence shall not preclude any modification or
amendment to an outstanding Incentive Stock Option, whether or not such
modification or amendment results in disqualification of such option as an
Incentive Stock Option, provided the optionee consents in writing to the
modification or amendment.
Options granted under the Plan shall be subject to the following terms and
conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem desirable.
(a) OPTION PRICE. The option price per share of Stock purchasable under a
Stock Option shall be determined by the Committee at the time of grant and may
not, except as provided in this paragraph or in paragraph (1) below, be less
than 85% of the Fair Market Value of the Stock on the date of the grant of the
Option unless the Option itself or such lower option price per share is approved
by the shareholders. In no event shall the option price per share of Stock
purchasable under an Incentive Stock Option be less than 100% of the Fair Market
Value of the Stock on the date of the grant of the option. If an employee owns
or is deemed to own (by reason of the attribution rules applicable under Section
425(d) of the Code) more than 10% of the combined voting power of all classes of
stock of the Company or any Parent Corporation or subsidiary and an Incentive
Stock Option is granted to such employee, the option price shall be no less than
110% of the Fair Market Value of the Stock on the date the option is granted.
(b) OPTION TERM. The term of each Stock Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than ten
years after the date the option is granted. If an employee owns or is deemed to
own (by reason of the attribution rules of Section 425(d) of the Code) more than
10% of the combined voting power of all classes of stock of the Company or any
Parent Corporation or Subsidiary and an Incentive Stock Option is granted to
such employee, the term of such option shall be no more than five years from the
date of grant.
(c) EXERCISABILITY. Stock Options shall be exercisable at such time or
times as determined by the Committee at or after grant. If the Committee
provides, in its discretion, that any option is exercisable only in
installments, the Committee may waive such installment exercise provisions at
any time. Installment exercise restrictions may be based upon the lapse of time,
the attainment of specified performance goals, or a combination of each.
Notwithstanding the foregoing, unless the Stock Option Agreement provides
otherwise, any Stock Option granted under this Plan shall be exercisable in
full, without regard to any installment exercise provisions, for a period
specified by the Company, but not to exceed sixty (60) days, prior to the
occurrence of any of the following events: (i) dissolution or liquidation of the
Company other than in conjunction with a bankruptcy of the company or any
similar occurrence, (ii) any merger, consolidation, acquisition, separation,
reorganization, or similar occurrence, where the Company will not be the
surviving entity or (iii) the transfer of substantially all of the assets of the
Company or 75% or more of the outstanding Stock of the Company.
(d) METHOD OF EXERCISE. Stock Options may be exercised in whole or in part
at any time during the option period by giving written notice of exercise to the
Company specifying the number of shares to be purchased. Such notice shall be
accompanied by payment in full of the purchase price, either by certified or
bank check, or by any other form of legal consideration deemed sufficient by the
Committee and consistent with the Plan's purpose and applicable law, including
promissory notes or a properly executed exercise notice together with
irrevocable instructions to a broker acceptable to the Company to promptly
deliver to the Company the amount of sale or loan proceeds to pay the exercise
price. As determined by the Committee, in its sole discretion, payment in full
or in part may also be made in the form of unrestricted Stock already owned by
the optionee (based on the Fair Market Value of the Stock on the date the option
is exercised, as determined by the Committee); provided, however, that, in the
case of an Incentive Stock Option, the right to make a payment in the form of
already owned shares may be authorized only at the time the option is granted.
If the terms of an option so permit, or the Committee so provides, an optionee
may elect to pay all or part of the option exercise price by having the Company
withhold from the shares of Stock that would otherwise be issued upon exercise
that number of shares of Stock having a Fair Market Value equal to the aggregate
option exercise price for the shares with respect to which such election is
made. No shares of Stock shall be issued until full payment therefor has been
made. An optionee shall generally have the rights to dividends and other rights
of a shareholder with respect to shares subject to the option when the optionee
has given written notice of exercise, has paid in full for such shares, and, if
requested, has given the representation described in paragraph (a) of Section
10.
(e) NON-TRANSFERABILITY OF OPTIONS. No Stock Option shall be transferable
by the optionee otherwise than 0by will or by the laws of descent and
distribution, and all Stock Options shall be exercisable, during the optionees
lifetime, only by the optionee.
(f) TERMINATION BY DEATH. If an optionees employment by the Company and any
Subsidiary or Parent Corporation terminates by reason of death, the Stock Option
may thereafter be immediately exercised, to the extent then exercisable (or on
such accelerated basis as the Committee shall determine at or after grant), by
the legal representative of the estate or by the legatee of the optionee under
the will of the optionee, for a period of two years (or such shorter period as
the committee shall specify at grant) from the date of such death or until the
expiration of the stated term of the option, whichever period is shorter.
(g) TERMINATION BY REASON OF DISABILITY. If an optionees employment by the
Company and any Subsidiary or Parent Corporation terminates by reason of
Disability, any Stock Option held by such optionee may thereafter be exercised,
to the extent it was exercisable at the time of termination due to Disability
(or on such accelerated basis as the Committee shall determine at or after
grant), but may not be exercised after two years (or such shorter period as the
Committee shall specify at grant) from the date of such termination of
employment or the expiration of the stated term of the option, whichever period
is the shorter. In the event of termination of employment by reason of
Disability, if an Incentive Stock Option is exercised after the expiration of
the exercise periods that apply for purposes of Section 422A of the Code, the
option will thereafter be treated as a Non-Qualified Stock Option.
(h) TERMINATION BY REASON OF RETIREMENT. If an optionees employment by the
Company and any Subsidiary or Parent Corporation terminates by reason of
Retirement, any Stock Option held by such optionee may thereafter be exercised
to the extent it was exercisable at the time of such Retirement, but may not be
exercised after two years (or such shorter period as Committee shall specify at
grant) from the date of such termination of employment or the expiration of the
stated term of the option, whichever period is the shorter. In the event of
termination of employment by reason of Retirement, if an Incentive Stock Option
is exercised after the expiration of the exercise periods that apply for
purposes of Section 422A of the Code, the option will thereafter be treated as a
Non-Qualified Stock Option.
(i) OTHER TERMINATION. Unless otherwise determined by the Committee or as
set forth in paragraph (1) below, if an optionees employment by the Company, any
Subsidiary or Parent Corporation terminates for any reason other than death,
Disability or Retirement, any Stock option held by such optionee may thereafter
be exercised to the extent it was exercisable at such termination, but may not
be exercised after two years (or such shorter period as the Committee shall
specify at grant) from the date of such termination of employment or the
expiration of the stated term of the option, whichever period is the shorter;
provided, however, that if the optionees employment is terminated for Cause, all
rights under the Stock Option shall terminate and expire upon such termination.
(j) ANNUAL LIMIT ON INCENTIVE STOCK OPTIONS. The aggregate Fair Market
Value (determined as of the time the Option is granted) of the Common Stock with
respect to which an Incentive Stock Option under this Plan or any other plan of
the Company, any subsidiary or Parent Corporation is exercisable for the first
time by an optionee during any calendar year shall not exceed $100,000.
(k) NON-EMPLOYEE DIRECTORS. Each Non-Employee Director serving as a
director on October 1, 1994 shall, on or before October 15, 1994, surrender for
cancellations all options held by such person to purchase shares of the
Company's Common Stock (pre-split) and shall be granted options to purchase the
same number of shares of the Company's Common Stock (post-split). Each
Non-Employee Director not serving as a director on October 1, 1994 elected as
director (whether by vote of shareholders or directors) shall, upon such
election, be granted an option to purchase 25,000 shares of the Company's Common
Stock (subject to adjustment pursuant to Section 3 above).
Each Non-Employee Director serving as a director on October 1, 1994 shall,
on or before October 15, 1995, be granted an option to purchase an additional
3,000 shares of the Company's Common Stock in lieu of any 1995 annual grant to
which such director would otherwise be entitled.
Each Non-Employee Director shall automatically be granted an option to
purchase 3,000 shares of the Company's Common Stock (subject to adjustment
pursuant to Section 3 above) annually during the period such director serves on
the Board and the Plan is in effect. The date of the automatic grant shall be
January 1 if the Non-Employee Director is serving on the Board on such date, and
the date on which the Non-Employee Director commences services on the Board if
the director is elected after January 1. If a Non-Employee Director commences
service on the Board after June 30 in any year in which the Plan is in effect
then, for such year, such director shall be granted an option to purchase 1,500
shares of the Company's Common Stock (subject to adjustment pursuant to Section
3 above).
All Non-Employee Director Stock Options shall be granted at a price per
share equal to 100% of the Fair Market Value of the Company's Common Stock on
the date of grant. The term of each Non-Employee Director Stock Option shall be
ten years from the date of grant.
All such Stock Options shall be designated as Non-Qualified Stock options
and shall be subject to the same terms and provisions as are then in effect with
respect to the grant of Non-Qualified Stock Options to salaried officers and key
employees of the Company, except that (i) the term of each such Stock Option
shall be equal to ten years; (ii) each Stock Option shall become exercisable as
to all or any part of the shares subject to the Stock Option beginning six
months after the date the Stock Option is granted; and (iii) no Stock
Appreciation Rights may be granted to Non-Employee Directors in conjunction with
any Stock Options granted under this paragraph (k) or in any other manner under
this Plan. Subject to the foregoing, all provisions of this Plan not
inconsistent with the foregoing shall apply to Stock Options granted to
Non-Employee Directors. The maximum number of shares as to which Stock Options
may be granted to any individuals/Non-Employee Director under this Plan shall be
40,000 shares. The maximum aggregate number of shares as to which Stock Options
may be granted to Non-Employee Directors under this Plan shall be 200,000
shares. The number of shares reflects the July 1, 1994, 1-for-5 reverse stock
split of the Company's Common Stock and shall be further subject to adjustment
pursuant to Section 3 above.
(l) Yurek and Seiler Options. The options to be granted to Daryl F. Yurek
(1,000,000 shares) and James L. Seiler (50,000 shares) at $.50 per share are
issued pursuant to that certain financing transaction to be approved by
shareholders on or about January 30, 1992. At the time of issue, Mr. Yurek will
be an employee of the Company and Mr. Seiler will be a consultant to the
Company. Paragraph (i) above notwithstanding, if the Company terminates Mr.
Yurek's employment other than for cause, disability or death, then all of the
Option shares shall vest for both Yurek and Seiler and the two optionees shall
continue to have the right to exercise the Options pursuant to the terms thereof
as if Mr. Yurek's employment had continued.
SECTION 6. STOCK APPRECIATION RIGHTS.
(a) GRANT AND EXERCISE. Except as set forth in paragraph (k) of Section 5,
Stock Appreciation Rights may be granted in conjunction with all or part of any
Stock option granted under the Plan. In the case of a Non-Qualified Stock
Option, such rights may be granted either at or after the time of the grant of
such Option. In the case of an Incentive Stock Option, such rights may be
granted only at the time of the grant of the option.
A Stock Appreciation Right or applicable portion thereof granted with
respect to a given Stock Option shall terminate and no longer be exercisable
upon the termination or exercise of the related Stock option, except that a
Stock Appreciation Right granted with respect to less than the full number of
shares covered by a related Stock Option shall not be reduced until the exercise
or termination of the related Stock Option exceeds the number of shares not
covered by the Stock Appreciation Right.
A Stock Appreciation Right may be exercised by an optionee, in accordance
with paragraph (b) of this Section 6, by surrendering the applicable portion of
the related Stock Option. Upon such exercise and surrender, the optionee shall
be entitled to receive an amount determined in the manner prescribed in
paragraph (b) of this Section 6. Stock Options which have been so surrendered,
in whole or in part, shall no longer be exercisable to the extent the related
Stock Appreciation Rights have been exercised.
(b) TERMS AND CONDITIONS. Stock Appreciation Rights shall be subject to
applicable regulations relating to the exercise of Stock Appreciation Rights by
optionees subject to reporting responsibilities under Section 16 of the
Securities and Exchange Act of 1934, and to such terms and conditions, not
inconsistent with the provisions of the Plan, as shall be determined from time
to time by the Committee, including the following:
(i) Stock Appreciation Rights shall be exercisable only at
such time or times and to the extent that the Stock Options to which
they relate shall be exercisable in accordance with the provisions of
Section 5 and this Section 6 of the Plan.
(ii) Upon the exercise of a Stock Appreciation Right, an
optionee shall be entitled to receive up to, but not more than, an
amount in cash or shares of Stock equal in value to the excess of the
Fair Market Value of one share of Stock over the option price per share
specified in the related option multiplied by the number of shares in
respect of which the Stock Appreciation Right shall have been
exercised, with the Committee having the right to determine the form of
payment.
(iii) Stock Appreciation Rights shall be transferable only
when and to the extent that the underlying Stock Option would be
transferable under Section 5 of the Plan.
(iv) Upon the exercise of a Stock Appreciation Right, the
Stock Option or part thereof to which such Stock Appreciation Right is
related shall be deemed to have been exercised for the purpose of the
limitation set forth in Section 3 of the Plan on the number of shares
of Stock to be issued under the Plan, but only to the extent of the
number of shares issued or issuable under the Stock Appreciation Right
at the time of exercise based on the value of the Stock Appreciation
Right at such time.
(v) A Stock Appreciation Right granted in connection with an
Incentive Stock Option may be exercised only if and when the market
price of the Stock subject to the Incentive Stock Option exceeds the
exercise price of such Option.
SECTION 7. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer of an employee from the Company to a Parent Corporation or
Subsidiary, or from a Parent Corporation or Subsidiary to the Company, or from
one Subsidiary to another;
(b) a leave of absence, approved in writing by the Committee, for military
service or sickness, or for any other purpose approved by the Company if the
period of such leave does not exceed ninety (90) days (or such longer period as
the Committee may approve, in its sole discretion); and
(c) a leave of absence in excess of ninety (90) days, approved in writing
by the Committee, but only if the employee's right to re-employment is
guaranteed either by a statute or by contract, and provided that, in the case of
any leave of absence, the employee returns to work within 30 days after the end
of such leave.
SECTION 8. AMENDMENTS AND TERMINATION.
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration, or discontinuation shall be made (i) which would impair the rights
of an optionee or participant under a Stock Option or Stock Appreciation Right
or other Stock-based award theretofore granted, without the optionees or
participant's consent, or (ii) which without the approval of the shareholders of
the Company would cause the Plan to no longer comply with rules promulgated by
the Securities and Exchange Commission under authority granted in Section 16 of
the Securities Exchange Act of 1934, as amended, Section 422A of the Code or any
other regulatory requirements.
The Committee may amend the terms of any award or option theretofore
granted, prospectively or retroactively, but, subject to Section 3 above, no
such amendment shall impair the rights of any holder without his consent. The
Committee may also substitute new Stock Options for previously granted options,
including previously granted options having higher option prices.
SECTION 9. UNFUNDED STATUS OF PLAN.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Company, nothing contained herein shall give any
such participant or optionee any rights that are greater than those of a general
creditor of the Company. In its sole discretion, the Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Stock or payments in lieu of or with respect to awards
hereunder, provided, however, that the existence of such trusts or other
arrangements is consistent with the unfunded status of the Plan.
SECTION 10. GENERAL PROVISIONS.
(a) The Committee may require each person purchasing shares pursuant to a
Stock Option under the Plan to represent to and agree with the Company in
writing that the optionee is acquiring the shares without a view to distribution
thereof. The certificates for such shares may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer.
All certificates for shares of Stock delivered under the Plan pursuant to
any Stock-based awards shall be subject to such stock transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations,
and other requirements of the securities and Exchange commission, any stock
exchange upon which the Stock is then listed, and any applicable Federal or
state securities laws, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such restrictions.
(b) Subject to paragraph (d) below, recipients of Stock-based awards under
the Plan (other than Stock Options) are not required to make any payment or
provide consideration other than the rendering of services.
(c) Nothing contained in this Plan shall prevent the Board of Directors
from adopting other or additional compensation arrangements, subject to
shareholder approval if such approval is required; and such arrangements may be
either generally applicable or applicable only in specific cases. The adoption
of the Plan shall not confer upon any employee of the Company or any subsidiary
any right to continued employment with the Company or a Subsidiary, as the case
may be, nor shall it interfere in any way with the right of the Company or a
Subsidiary to terminate the employment of any of its employees at any time.
(d) Each participant shall, no later than the date as of which any part of
the value of an award first becomes includible as compensation in the gross
income of the participant for Federal income tax purposes, pay to the Company,
or make arrangements satisfactory to the Committee regarding payment of, any
Federal, state, or local taxes of any kind required by law to be withheld with
respect to the award. The obligations of the Company under the Plan shall be
conditional on such payment or arrangements and the Company and Subsidiaries
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to the participant. With respect to
any award under the Plan, if the written terms of such award so permit, a
participant may elect by written notice to the Company to satisfy part or all of
the withholding tax requirements associated with the award by (i) authorizing
the Company to retain from the number of shares of Stock that would otherwise be
deliverable to the participant, or (ii) delivering to the Company from shares of
Stock already owned by the participant, that number of shares having an
aggregate Fair Market Value equal to part or all of the tax payable by the
participant under this Section 10(d). Any such election shall be in accordance
with, and subject to, applicable tax and securities laws, regulations and
rulings.
(e) At the time of grant, the Committee may provide in connection with any
grant made under this Plan that the shares of Stock received as a result of such
grant shall be subject to a repurchase right in favor of the Company, pursuant
to which the participant shall be required to offer to the Company upon
termination of employment for any reason any shares that the participant
acquired under the Plan, with the price being the then Fair Market Value of the
Stock or, in the case of a termination for Cause, an amount equal to the cash
consideration paid for the Stock, subject to such other terms and conditions as
the Committee may specify at the time of grant. The Committee may, at the time
of the grant of an award under the Plan, provide the Company with the right to
repurchase shares of Stock acquired pursuant to the Plan by any participant who,
at any time within two years after termination of employment with the Company,
directly or indirectly competes with, or is employed by a competitor of the
Company.
SECTION 11. EFFECTIVE DATE OF PLAN.
The Plan shall be effective on July 11, 1991 (the date of approval by the Board
of Directors), subject to approval by a vote of the holders of a majority of the
Stock present and entitled to vote at the next Annual or Special Meeting of the
Company's shareholders and shall expire (unless terminated earlier) as of July
10, 2001. Awards may be granted under the Plan prior to shareholder approval,
provided such awards are made subject to shareholder approval.
5/31/95
Exhibit 5
STEPHEN P. KREGSTEIN
Attorney at Law
4999 Pearl East Circle, Suite 300 Boulder, Colorado 80301 303-449-9445
September 27, 1995
Brian T. McMahon, President
SpectraScience, Inc.
5909 Baker Road
Minnetonka, MN 55345
RE: Opinion of Counsel as to Legality of 675,000 Shares of Common Stock To Be
Registered Under the Securities Act of 1933
Dear Mr. McMahon:
This opinion is furnished in connection with the registration under the
Securities Act of 1933 on Form S-8 of 675,000 shares of Common Stock, $.25 par
value, of SpectraScience, Inc. (the "Company") offered to officers, key
employees, consultants and non-employee directors of the Company pursuant to
SpectraScience, Inc.'s 1991 Stock Option Plan (the "Plan").
As counsel for the Company, I advise you that it is my opinion, based on my
familiarity with the affairs of the Company and upon my examination of pertinent
documents, that the 675,0000 shares of Common Stock to be offered to officers,
key employees, consultants and non-employee directors by the Company under the
Plan will, when paid for and issued, be validly issued and lawfully outstanding,
fully paid and nonassessable shares of Common Stock of the Company.
The undersigned hereby consents to the filing of this opinion with the
Securities and Exchange Commission as an Exhibit to the Registration Statement
with respect to said shares of Common Stock under the Securities Act of 1933.
Very truly yours,
/s/ Stephen P. Kregstein
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Spectra Science, Inc. 1991 Stock Option Plan of our
report dated March 16, 1995, with respect to the financial statements included
in its Annual Report (Form 10-KSB) for the year ended December 31, 1994, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
September 27, 1995
