As filed with the Securities and Exchange Commission on July 11, 1995
Registration No. 33-
- ---------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------
PUREPAC, INC.
(Exact name of Registrant as specified in its charter)
Delaware 04-2769995
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
200 ELMORA AVENUE
ELIZABETH, NEW JERSEY 07207
(Address of principal executive offices)
1994 STOCK OPTION PLAN
(Full title of the Plan)
Michael R.D. Ashton, President
Purepac, Inc.
200 Elmora Avenue
Elizabeth, New Jersey 07207
(908) 527-9100
(Name, address and telephone number,
including area code, of agent for service)
with a copy to:
WILLIAM R. GRIFFITH, Esq.
Parker Duryee Rosoff & Haft
529 Fifth Avenue
New York, New York 10017
(212) 599-0500
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Titles of Offering Aggregate Amount of
Securities to Amount to be Price Per Offering Registration
be Registered Registered Share* Price* Fee
------------- ------------ --------- ----------- -----------
Common Stock, 1,000,000 shs. $10.69 $10,685,500 $3,685.34
$.01 par value
- --------------
* Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c).
</TABLE>
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Incorporated herein by reference are the following documents
filed by the Company with the Commission under the Exchange Act:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1994;
(b) The Company's Quarterly Reports on Form 10-Q for its
fiscal periods ended September 30, 1994, December 31, 1994
and March 31, 1995;
(c) The description of the Company's shares of Common Stock
contained in the Company's Registration Statement on Form
8-A No. 0-13588 filed with the Commission on May 14, 1985.
Any document filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date
of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all the shares
of Common Stock covered by the Registration Statement have been sold or
which deregisters all of such shares then remaining unsold, shall be deemed
to be incorporated herein by reference and to be a part hereof from the
date of filing of such document (any such document, and the documents
listed above being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
The Common Stock of Registrant is registered under Section 12
of the Securities Exchange Act of 1934 (the "Exchange Act").
<PAGE>
Item 5. Interest of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Article NINTH of the Certificate of Incorporation of Registrant
reads, in pertinent part, as follows:
"NINTH
(a) The Corporation shall, to the full extent permitted by
Section 145 of the Delaware General Corporation Law, as amended,
from time to time, indemnify all persons whom it may indemnify
pursuant thereto.
(b) A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit.
(c) Each person who was or is made a party or is threatened to
be made a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she,
or a person of whom he or she is the legal representative, is or was
a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to
<PAGE>
the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in section (d) hereof, the
Corporation shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such
person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. The right to indemnification
conferred in this Article NINTH shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred
in defending any such proceeding in advance of its final disposition;
provided, however, that if Delaware General Corporation Law requires,
the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit
plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced
if it shall ultimately be determined that such director or officer is
not entitled to be indemnified under this Article NINTH or otherwise.
The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the
same scope and effect as the foregoing indemnification of directors and
officers.
<PAGE>
(d) If a claim under section (c) of this Article NINTH is
not paid in full by the Corporation within thirty days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim.
It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any
is required, has been tendered to the Corporation ) that the claimant has
not met the standards of conduct which makes it permissible under
Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense
shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of
conduct set forth in Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant has not
met such applicable standard or conduct, shall be a defense to the action
or create a presumption that the claimant has not met the applicable
standard of conduct.
(e) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition
conferred in this Article NINTH shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise."
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>
Item 8. Exhibits
4 1994 Stock Option Plan
5 Opinion of Parker Duryee Rosoff & Haft as to the
legality of the Common Stock registered hereby
15 Not applicable
23(a) Consent of Parker Duryee Rosoff & Haft (Reference is
made to Exhibit 5 herein)
23(b) Consent of Deloitte & Touche
Item 9. Undertakings.
Registrant undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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 (the "Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
<PAGE>
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above 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 Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered hereby which remain
unsold at the termination of the offering.
Registrant hereby undertakes that, for purposes of determining any
liability under the Act, each filing of Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of
Registrant pursuant to the provisions of the Certificate of Incorporation
of Registrant and the provisions of Delaware law described under Item 6
above, Registrant has been advised that in the opinion of the Securities
and Exchange Commission, such indemnification is against public policy as
expressed in the Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by Registrant of expenses incurred or paid by a director, officer
or controlling person of Registrant in the successful defense of any
<PAGE>
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized on the 7th day of July 1995.
PUREPAC, INC.
By: /s/ Michael R.D. Ashton
-----------------------
Michael R.D. Ashton,
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities indicated on the dates indicated.
Signature Title Date
/s/ Edward D. Tweddell Chairman of the July 7, 1995
- ---------------------- Board and Director
Edward D. Tweddell
/s/ Lee Craker Chief Financial Officer July 7, 1995
- -------------- (Principal Financial and
Lee Craker Accounting Officer)
/s/ Michael R.D. Ashton President, Chief Executive July 7, 1995
- ----------------------- Officer (Principal Executive
Michael R.D. Ashton Officer) and Director
/s/ Robert H. Bur Chief Operating Officer July 7, 1995
- ----------------- and Director
Robert H. Bur
/s/ David Beretta Director July 7, 1995
- -----------------
David Beretta
Director July , 1995
- --------------------
Alan G. McGregor
/s/ Bruce T. Tully Director July 6, 1995
- ------------------
Bruce T. Tully
EXHIBIT 4
PUREPAC, INC.
1994 Stock Option Plan
1. Purpose of the Plan. The Purepac, Inc. 1994 Stock Option Plan
(the "Plan") is intended to advance the interests of Purepac, Inc., a
Delaware corporation (the "Company"), by inducing persons of outstanding
ability and potential to join and remain with the Company, by encouraging
and enabling employees to acquire proprietary interests in the Company,
and by providing the participating employees with an additional incentive to
promote the success of the Company. This is accomplished by providing for
the granting of "Options" (which term as used herein includes both "Incentive
Stock Options" and "Nonstatutory Stock Options," as later defined) to
qualified employees and non-employee Directors and consultants.
2. Administration. The Plan shall be administered by the Board of
Directors of the Company (the "Board of Directors") or by a committee
(the "Committee") consisting of at least two persons chosen by the Board
of Directors. Except as herein specifically provided, the interpretation
and construction by the Board of Directors or the Committee of any
provision of the Plan or of any Option granted under it shall be final
and conclusive. The receipt of Options by Directors, or any members of
the Committee, shall not preclude their vote on any matters in connection
with the administration or interpretation of the Plan, except as otherwise
provided by law.
3. Shares Subject to the Plan. The stock subject to grant under
the Plan shall be shares of the Company's common stock, $.01 par value
(the "Common Stock"), whether authorized but unissued or held in the
Company's treasury or shares purchased from shareholders expressly for
use under the Plan. The maximum number of shares of Common Stock which
may be issued pursuant to Options granted under the Plan shall not exceed
one million (1,000,000) shares, subject to adjustment in accordance with
the provisions of Section 12 hereof. The Company shall at all times
while the Plan is in force reserve such number of shares of Common Stock
as will be sufficient to satisfy the requirements of all outstanding
Options granted under the Plan. In the event any Option granted under
the Plan shall expire or terminate for any reason without having been
exercised in full or shall cease for any reason to be exercisable in
whole or in part, the unpurchased shares subject thereto
shall again be available for Options under the Plan.
4. Participation. The class of persons which shall be eligible to
receive Options under the Plan shall be (i) with respect to Incentive
Stock Options described in Section 6 hereof, all key employees (including
officers) of either the Company or any subsidiary corporation of the Company,
and (ii) with respect to Nonstatutory Stock Options described in Section 7
hereof, any key employee (including any officer) of, any non-employee
Director of, or any non-employee consultant to, either the Company or any
subsidiary corporation of the Company. The Board of Directors or the
Committee, in its sole discretion, but subject to the provisions of the Plan,
shall determine the employees and non-employee Directors and non-employee
consultants to the Company or any subsidiary corporation of the Company to
whom Options shall be granted and the number of shares to be covered by each
Option taking into account the nature of the employment or services rendered
by the individuals being considered, their annual compensation, their present
and potential contributions to the success of the Company and such other
factors as the Board of Directors or the Committee may deem relevant.
5. Stock Option Agreement. Each Option granted under the Plan shall
be authorized by the Board of Directors or the Committee and shall be
evidenced by a Stock Option Agreement which shall be executed by the Company
and by the person to whom such Option is granted. The Stock Option Agreement
shall specify the number of shares of Common Stock as to which any Option is
granted, the period during which the Option is exercisable and the option
price per share thereof.
<PAGE>
6. Incentive Stock Options. The Board of Directors or the Committee
may grant Options under the Plan which are intended to meet the requirements
of Section 422A of the Internal Revenue Code of 1986 (the "Code") (such an
Option referred to herein as an "Incentive Stock Option"), and which are
subject to the following terms and conditions and any other terms and
conditions as may at any time be required by Section 422A of the Code:
(a) No Incentive Stock Option shall be granted to individuals other
than key employees of the Company or of a subsidiary corporation
of the Company.
(b) Each Incentive Stock Option under the Plan must be granted prior
to August 15, 2004, which is within ten years from the date
the Plan was adopted by the Board of Directors.
(c) The option price of the shares subject to any Incentive Stock
Option shall not be less than the fair market value of the
Common Stock at the time such Incentive Stock Option is granted;
provided, however, if an Incentive Stock Option is granted to an
individual who owns, at the time the Incentive Stock Option is
granted, more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company or of a subsidiary
corporation of the Company, the option price of the shares
subject to the Incentive Stock Option shall be at least one
hundred ten percent (110%) of the fair market value of the Common
Stock at the time the Incentive Stock Option is granted.
(d) No Incentive Stock Option granted under the Plan shall be
exercisable after the expiration of ten (10) years from the
date of its grant. However, if an Incentive Stock Option is
granted to an individual who owns, at the time the Incentive
Stock Option is granted, more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or
of a subsidiary corporation of the Company, such Incentive Stock
Option shall not be exercisable after the expiration of five years
from the date of its grant. Every Incentive Stock Option granted
under the Plan shall be subject to earlier termination as expressly
provided in Sections 10 and 12(c) hereof.
(e) For purposes of determining stock ownership under this Section 6,
the attribution rules of Section 425(d) of the Code shall apply.
(f) For purposes of the Plan, fair market value shall be determined
by the Board of Directors or the Committee and, unless another
reasonable method for determining fair market value is specified
by the Committee, the closing market price of a share of Common
Stock as reported by NASDAQ for the trading date next preceding
the date in question.
7. Nonstatutory Stock Options. The Board of Directors or the
Committee may grant Options under the Plan which are not intended to meet
the requirements of Section 422A of the Code, as well as Options which are
intended to meet the requirements of Section 422A of the Code, but the
terms of which provide that they will not be treated as Incentive Stock
Options (referred to herein as a "Nonstatutory Stock Option"). Nonstatutory
Stock Options which are not intended to meet these requirements shall be
subject to the following terms and conditions:
(a) A Nonstatutory Stock Option may be granted to any person eligible
to receive an Option under the Plan pursuant to Section 4(ii)
hereof, except that no such Option may be granted to any person
who owns stock possessing more than 10% of the total combined
voting power or value of all classes of stock of the Company or
the parent corporation or any subsidiary corporation of the
Company.
(b) The option price of the shares subject to a Nonstatutory Stock
Option shall be determined by the Board of Directors or the
Committee, in its absolute discretion, at the time of the grant
of the Nonstatutory Stock Option.
<PAGE>
(c) A Nonstatutory Stock Option granted under the Plan may be of such
duration as shall be determined by the Board of Directors or the
Committee (not to exceed 10 years), and shall be subject to earlier
termination as expressly provided in Sections 10 and 12(c) hereof.
8. Rights of Option Holders. The holder of any Option granted under
the Plan shall have none of the rights of a stockholder with respect to
the shares covered by his Option until such shares shall be issued to him
upon the exercise of his Option.
9. Transferability. No Option granted under the Plan shall be
transferable by the individual to whom it was granted otherwise than by
Will or the laws of descent and distribution, and, during the lifetime of
such individual, shall not be exercisable by any other person, but only
by him.
10. Termination of Employment or Death.
(a) If the employment of an employee by, or the services of either
a non-employee Director of or a non-employee consultant to the Company or
a subsidiary corporation of the Company shall be terminated voluntarily
by the employee, the non-employee Director or the non-employee consultant
or for cause, then his Option shall expire forthwith. Except as provided
in subsections (b) and (c) of this Section 10, if such employment or
services shall terminate for any other reason, then such Option may be
exercised at any time within three months after such termination, subject
to the provisions of subparagraph (d) of this Section 10. For purposes
of the Plan, the retirement of an individual either pursuant to a pension
or retirement plan adopted by the Company or at the normal retirement date
prescribed from time to time by the Company shall be deemed to be termination
of such individual's employment other than voluntarily or for cause.
For purposes of this subparagraph, an employee who leaves the employ of
the Company to become an employee of (i) a subsidiary corporation of the
Company or (ii) of a corporation (or its parent or subsidiary) that has
assumed the Option of the Company as a result of a corporate reorganization,
etc., shall not be considered to have terminated his employment.
(b) If the holder of an Option under the Plan dies (i) while employed
by, or while serving as either a non-employee Director of or a non-employee
consultant to, the Company or a subsidiary corporation of the Company, or
(ii) within three months after the termination of his employment or his
services other than voluntarily or for cause, then such Option may, subject
to the provisions of subparagraph (d) of this Section 10, be exercised by
the estate of the employee, the non-employee Director or
the non-employee consultant or by a person who acquired the right to exercise
such Option by bequest or inheritance or by reason of the death of such
employee, non-employee Director or non-employee consultant at any time within
one year after such death.
(c) If the holder of an Option under the Plan ceases employment because
of permanent and total disability (within the meaning of Section 22(e)(3)
of the Code) while employed by, or while serving as a non-employee Director
of or a non-employee consultant to, the Company or a subsidiary corporation
of the Company, then such Option may, subject to the provisions of
subparagraph (d) of this Section 10, be exercised at any time within one
year after his termination of employment or termination of services due to
the disability.
<PAGE>
(d) An Option may not be exercised pursuant to this Section 10 except
to the extent that the holder was entitled to exercise the Option at the
time of termination of employment, termination of services, or death, and
in any event may not be exercised after the expiration of the Option.
(e) For purposes of this Section 10, the employment relationship of
an employee of the Company or of a subsidiary corporation of the Company
will be treated as continuing intact while he is on military or sick leave
or other bona fide leave of absence (such as temporary employment by the
Government) if such leave does not exceed ninety days, or, if longer, so
long as his right to reemployment is guaranteed either by statute or by
contract.
11. Exercise of Options.
(a) Unless otherwise provided in the Stock Option Agreement, any
Option granted under the Plan shall be exercisable in whole at any time,
or in part from time to time, prior to expiration. The Board of Directors
or the Committee, in its absolute discretion, may provide in any Stock Option
Agreement that the exercise of any Option granted under the Plan shall be
subject (i) to such condition or conditions as it may impose, including,
but not limited to, a condition that the holder thereof remain in the
employ or service of the Company or a subsidiary corporation of the Company
for such period or periods of time from the date of grant of the Option,
as the Board of Directors or the Committee, in its absolute discretion,
shall determine; and (ii) to such limitations as it may impose, including,
but not limited to, a limitation that the aggregate fair market value of
the Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by any employee during any calendar year
(under all plans of the Company and its parent and subsidiary corporations)
shall not exceed One Hundred Thousand Dollars ($100,000). In addition,
in the event that under any Stock Option Agreement the aggregate fair
market value of the Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by any employee during any
calendar year (under all plans of the Company and its parent and subsidiary
corporations) exceeds One Hundred Thousand Dollars ($100,000), the Board of
Directors or the Committee may, when shares are transferred upon exercise
of such Options, designate those shares which shall be treated as
transferred upon exercise of an Incentive Stock Option and those shares
which shall be treated as transferred upon exercise of a Nonstatutory Stock
Option.
(b) An Option granted under the Plan shall be exercised by the
delivery by the holder thereof to the Company at its principal office
(attention of the Secretary) of written notice of the number of shares with
respect to which the Option is being exercised. Such notice shall be
accompanied by payment of the full option price of such shares, and payment
of such option price shall be made by the holder's delivery of his check
payable to the order of the Company; provided, however, that notwithstanding
the foregoing provisions of this Section 11 or any other terms, provisions
or conditions of the Plan, at the written request of the optionee and upon
approval by the Board of Directors or the Committee, shares acquired
pursuant to the exercise of any Option may be paid for in full at the time
of exercise by the surrender of shares of Common Stock of the Company held
by or for the account of the optionee at the time of exercise to the extent
permitted by subsection (c)(5) of Section 422A of the Code and, with respect
to any person who is subject to the reporting requirements of Section 16(a)
of the Securities Exchange Act of 1934, to the extent permitted by Section
16(b) of that Act and the Rules of the Securities and Exchange Commission,
without liability to the Company. In such case, the fair market value of
the surrendered shares shall be determined by the Board of Directors or
the Committee as of the date of exercise in the same manner as such value
is determined upon the grant of an Incentive Stock Option.
<PAGE>
12. Adjustment Upon Change in Capitalization.
(a) In the event that the outstanding Common Stock is hereafter
changed by reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination of shares, stock dividends
or the like, an appropriate adjustment shall be made by the Board of
Directors or the Committee in the aggregate number of shares available
under the Plan and in the number of shares and option price per share
subject to outstanding Options. Any adjustment in the number of shares
shall apply proportionately to only the unexercised portion of the Option
granted hereunder. If fractions of a share would result from any such
adjustment, the adjustment shall be revised to the next lower whole number
of shares.
(b) If the Company shall be reorganized, consolidated or merged with
another corporation, or if all or substantially all of the assets of the
Company shall be sold or exchanged, the holder of an Option shall be
entitled to receive upon the exercise of his Option (the timing of which,
as set forth in Section 11, is in the discretion of the Board of Directors
or the Committee) the same number and kind of shares of stock or the same
amount of property, cash or securities as he would have been entitled to
receive upon the happening of any such corporate event as if he had been,
immediately prior to such event, the holder of the number of shares covered
by his Option; provided, however, that in such event the Board of Directors
or the Committee shall have the discretionary power to take any action
necessary or appropriate to prevent any Incentive Stock Option granted
hereunder from being disqualified as an "incentive stock option" under
the then existing provisions of the Code or any law amendatory thereof or
supplemental thereto.
(c) Notwithstanding the provisions of subsection (b) of this Section
12, if the Common Stock of the Company shall cease to be publicly traded
at any time prior to August 15, 2004, then upon the occurrence of such event,
any Options theretofore granted under the Plan that shall have not as yet
vested shall thereupon automatically lapse in their totality.
13. Further Conditions of Exercise.
(a) Unless prior to the exercise of the Option the shares issuable
upon such exercise have been registered with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, the notice
of exercise shall be accompanied by a representation or agreement of the
individual exercising the Option to the Company to the effect that such
shares are being acquired for investment and not with a view to the resale
or distribution thereof or such other documentation as may be required by
the Company unless in the opinion of counsel to the Company such
representation, agreement or documentation is not necessary to comply
with such Act.
<PAGE>
(b) The Company shall not be obligated to deliver any Common Stock
until it has been listed on each securities exchange on which the Common
Stock may then be listed or until there has been qualification under or
compliance with such state or federal laws, rules or regulations as the
Company may deem applicable. The Company shall use reasonable efforts to
obtain such listing, qualifications and compliance.
14. Effectiveness of the Plan. The Plan was originally adopted by
the Board of Directors on August 16, 1994. The Plan shall be subject to
approval by the affirmative vote of a majority of the outstanding shares
of capital stock of the Company present in person or by proxy at a meeting
of stockholders of the Company convened for such purpose prior to August 15,
1995, which is within one year of adoption of the Plan by the Board of
Directors. In the event such stockholder approval is withheld or otherwise
not received on or before the latter date, the Plan and all Options which
may have been granted thereunder shall become null and void.
15. Termination, Modification and Amendment.
(a) The Plan (but not Options previously granted under the Plan)
shall terminate on August 15, 2004, which is within ten years of the date
of its adoption by the Board of Directors, or sooner as hereinafter provided,
and no Option shall be granted after the termination of the Plan.
(b) The Plan may from time to time be terminated, modified or amended
by the affirmative vote of the holders of a majority of the outstanding
shares of capital stock of the Company present in person or by proxy at a
meeting of stockholders of the Company convened for such purpose.
(c) The Board of Directors may at any time, on or before the termination
date referred to in Section 15(a) hereof, terminate the Plan, or from time
to time make such modifications or amendments to the Plan as it may deem
advisable; provided, however, that the Board of Directors shall not, without
approval by the affirmative vote of the holders of a majority of the
outstanding shares of capital stock of the Company present in person or
by proxy at a meeting of stockholders of the Company convened for such
purpose, increase (except as provided by Section 12 hereof) the maximum
number of shares as to which Incentive Stock Options may be granted, or
change the designation of the employees or class of employees eligible to
receive Options or make any other change which would prevent any Incentive
Stock Option granted hereunder which is intended to be an "incentive stock
option" from disqualifying as such under the then existing provisions of
the Code or any law amendatory thereof or supplemental thereto.
(d) No termination, modification or amendment of the Plan may, without
the consent of the individual to whom an Option shall have been previously
granted, adversely affect the rights conferred by such Option.
16. Not a Contract of Employment. Nothing contained in the Plan or
in any Stock Option Agreement executed pursuant hereto shall be deemed to
confer upon any individual to whom an Option is or may be granted hereunder
any right to remain in the employ or service of the Company or a subsidiary
corporation of the Company.
17. Use of Proceeds. The proceeds from the sale of shares pursuant
to Options granted under the Plan shall constitute general funds of the
Company.
<PAGE>
18. Indemnification of Board of Directors or Committee. In addition
to such other rights of indemnification as they may have, the members of
the Board of Directors or the Committee, as the case may be, shall be
indemnified by the Company to the extent permitted under applicable law
against all costs and expenses reasonably incurred by them in connection
with any action, suit or proceeding to which they or any of them may be a
party by reason of any action taken or failure to act under or in connection
with the Plan or any rights granted thereunder and against all amounts paid
by them in settlement thereof or paid by them in satisfaction of a judgment
of any such action, suit or proceeding, except a judgment based upon a
finding of bad faith. Upon the institution of any such action, suit or
proceeding, the member or members of the Board of Directors or the
Committee, as the case may be, shall notify the Company in writing, giving
the Company an opportunity at its own cost to defend the same before such
member or members undertake to defend the same on their own behalf.
19. Definitions. For purposes of the Plan, the terms "parent
corporation" and "subsidiary corporation" shall have the same meanings
as set forth in Sections 425(e) and 425(f) of the Code, respectively,
and the masculine shall include the feminine and the neuter as the context
requires.
20. Governing Law. The Plan shall be governed by, and all questions
arising hereunder shall be determined in accordance with, the laws of the
State of New Jersey.
EXHIBIT 5
[ Letterhead of Parker Duryee Rosoff & Haft
A Professional Corporation ]
July 11, 1995
Purepac, Inc.
200 Elmora Avenue
Elizabeth, New Jersey 07207
Re: Registration of 1,000,000 shares of Common Stock, par value
$.01 per share, under the Securities Act of 1933, as amended
------------------------------------------------------------
Ladies and Gentlemen:
In our capacity as counsel to Purepac, Inc. a Delaware corporation
(the "Company"), we have been asked to render this opinion in connection
with a Registration Statement on Form S-8 being filed contemporaneously
herewith by the Company with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Registration Statement"),
covering an aggregate of 1,000,000 shares of Common Stock, par value $.01
per share, of the Company (the "Stock") to be issued upon the exercise of
options heretofore granted or which may be granted subsequent hereto to
acquire shares of Common Stock under the Company's 1994 Stock Option Plan
(the "Plan").
In that connection, we have examined the Certificate of Incorporation,
as amended, and the By-Laws, as amended, of the Company, the Registration
Statement, the Plan, corporate proceedings of the Company relating to the
issuance of the Stock pursuant to the Plan, and such other instruments and
documents as we deemed relevant under the circumstances.
In making the aforesaid examinations, we have assumed the genuineness
of all signatures and the conformity to original documents of all copies
furnished to us as photostatic copies. We have also assumed that the
corporate records furnished to us by the Company include all corporate
proceedings taken by the Company to date.
Based upon and subject to the foregoing, we are of the opinion that
the Stock has been duly and validly authorized and, when issued and paid
for as described in the Plan, will be duly and validly issued, fully paid
and non-assessable.
We hereby consent to the use of our opinion as herein set forth as
an exhibit to the Registration Statement.
Very truly yours,
PARKER DURYEE ROSOFF & HAFT
By: /s/ William R. Griffith
------------------------
A Member of the Firm
Exhibit 23(b)
Deloitte & Touche LLP
2 Hilton Court
Parsippany, New Jersey 07054
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation be reference in this Registration
Statement of Purepac, Inc. on Form S-8 of our report dated August 12, 1994,
appearing in the Annual Report on Form 10-K of Purepac, Inc. for the year
ended June 30, 1994.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
Dated: July 11, 1995
