January 10, 1996
VIA EDGAR
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Biomerica, Inc.
Registration Statement on Form S-8
Gentlemen:
On behalf of Biomerica, Inc. (the "Registrant"), attached for filing via EDGAR
is the Registrant's Registration Statement on Form S-8, with the appropriate
exhibits, relating to its 1995 Stock Option and Restricted Stock Plan.
Please note that the Company previously filed a fee in the amount of $344.83 by
wire on December 12, 1995, and $53.88 on January 10, 1996. The requisite fee
for the present Form S-8 is $398.71.
If you have any questions, please contact the undersigned at 714-645-2111.
Sincerely,
Janet Moore
Controller
Biomerica, Inc.
<PAGE>
As filed with the Securities and Exchange Commission on January 11, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
Biomerica, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 95-2645573
(State or Other Jurisdiction
of Incorporation or Organization) (I.R.S. Employer Identification Number)
1533 Monrovia Avenue, Newport Beach, California 92663
(Address of Principal Executive Offices) (Zip Code)
Biomerica, Inc. 1995 Stock Option and Restricted Stock Plan
(Full Title of the Plan)
Joseph H. Irani, President
Biomerica, Inc.
1533 Monrovia Avenue
Newport Beach, California 92663
(Name and Address of Agent For Service)
714-645-2111
(Telephone Number, Including Area Code of Agent For Service)
<PAGE>
Calculation Of Registration Fee
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price(1) Fee (1)
Common Stock, 500,000 $2.3125 $1,156,250 $398.71
$.04 par value
per share, issuable
upon exercise of
Stock Options
(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the maximum number of securities issuable under the plan that are
covered by the registration statement, computed upon the average of the high and
low prices of the Company's Common Stock as reported on the NASDAQ on January 8,
1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which are on file with the Securities and
Exchange Commission, are incorporated in the Section 10(a) prospectus under the
Securities Act by reference.
(a) The Annual Report of Biomerica, Inc., a Delaware Corporation
(the "Registrant") filed on Form 10-KSB for the Registrant's fiscal year ended
May 31, 1995.
(b) The Quarterly Report of the Registrant, filed on Form 10-QSB
for the Registrant's Quarter ended August 31, 1995.
(c) The Form 10 filed with the Commission on September 12, 1978
describing the class of common stock contained in this Registration Statement.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to 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 herein and to
be part thereof 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 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under its Bylaws, the Registrant is required to indemnify its
directors and officers against expenses and other liabilities if such person
acted in good faith and for a purpose he reasonably believed to be in the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful;
provided, however, that if the action or proceeding is by or in the right of the
Registrant, indemnification shall not be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation for negligence or misconduct in the performance of his duty to the
Registrant. Under the General Corporation Law of Delaware (the "Delaware GCL"),
to the extent that an officer, director, employee or agent of a corporation is
successful on the merits in the defense of an action, the corporation must
indemnify such person for his actual and reasonable expenses incurred
<PAGE>
in connection with such defense. Under the Delaware GCL and the Bylaws, the
Registrant may advance expenses of an indemnifiable person in defending an
action; provided that such advancement of expenses may be made only if the
person provides an undertaking to reimburse the Registrant if it is ultimately
determined that the person is not entitled to be indemnified against such
expenses.
In certain circumstances, certain provisions of the General
Corporation Law of California (the "California GCL"), including provisions
relating to the indemnification of directors and officers, may be applicable to
the affairs of the Registrant to the exclusion of the Delaware GCL. The
requirements of the California GCL relating to the indemnification of directors
and officers are generally similar in material respects to the requirements of
the Bylaws and the Delaware GCL described above. Directors and officers of the
Registrant may not be able to take advantage, however, of additional provisions
of the California GCL which permit a corporation, through a provision in its
charter documents, to provide for indemnification for breaches of duty to the
Registrant and its stockholders, because the Registrant's Certificate of
Incorporation does not specifically permit such indemnification.
The provisions of the Bylaws, Delaware GCL and California GCL
relating to the indemnification of directors and officers are sufficiently broad
to permit the indemnification of such persons in certain circumstances against
liabilities (including reimbursement of expenses incurred) arising under the
Securities Act of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits attached is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes 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;
<PAGE>
(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; and
(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 paragraph (a)(1)(i) and (a)(1)(ii) shall 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.
The Registrant hereby agrees that, for the purposes of determining
any liability under said 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;
The Registrant hereby undertakes 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 Plan;
The Registrant hereby undertakes that, for purpose of determining
any liability under the Securities Act of 1933, each filing of the Company'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.
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 foregoing provisions, 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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
<PAGE>
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 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, in the City of Newport Beach, and State of California on December
26, 1995.
BIOMERICA, INC.
By: /S/ JOSEPH H. IRANI
---------------------
Joseph H. Irani, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph H. Irani and Janet Moore, or
either of them, jointly and severally, his true and lawful attorneys-in-fact and
agents, with full powers of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the same with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
/S/ JOSEPH H. IRANI Chairman of the December 26, 1995
- --------------------
Joseph H. Irani Board, Chief Executive
Officer and Chief Financial
Officer
/S/ P.B. KAPLAN, M.D. Director December 26, 1995
- ---------------------
P.B. Kaplan, M.D.
<PAGE>
Director December , 1995
- ------------------------ --
Robert Orlando, M.D., Ph.D.
/S/ JANET MOORE Director December 26, 1995
- ---------------
Janet Moore
<PAGE>
EXHIBIT INDEX
Item
- ----
4.1 Biomerica, Inc. 1995 Stock Option and Restricted Stock Plan
4.2 Form of Biomerica, Inc. Stock Option Agreement (Incentive)
4.3 Form of Biomerica, Inc. Stock Option Agreement (Non-Qualified)
4.4 Form of Biomerica, Inc. Stock Purchase Agreement
4.5 Certificate of Incorporation of Registrant filed with the Secretary of
the State of Delaware on September 22, 1971 (incorporated by reference
to Exhibit 3.1 filed with Amendment No. 1 to Registration Statement on
Form S-1, Commission File No. 2-83308).
4.6 Certificate of Amendment to Certificate of Incorporation of Registrant
filed with the Secretary of the State of Delaware on February 6, 1978
(incorporated by reference to Exhibit 3.1 filed with Amendment No. 1 to
Registration Statement on Form S-1, Commission File No. 2-83308).
4.7 Certificate of Amendment to Certificate of Incorporation of Registrant
filed with the Secretary of the State of Delaware on February 4, 1983
(incorporated by reference to Exhibit 3.1 filed with Amendment No. 1 to
Registration Statement on Form S-1, Commission File No. 2-83308).
4.8 Certificate of Amendment to Certificate of Incorporation of Registrant
filed with the Secretary of the State of Delaware on January 19, 1987
(incorporated by reference to Exhibit 3.4 filed with Form 8 Amendment
No. 1 to the Registrant's Annual Report on Form 10-K for the fiscal
year ended May 31, 1987).
4.9 Certificate of Amendment of Certificate of Incorporation of Registrant
filed November 4, 1987 with the Secretary of State of the State of
Delaware (incorporated by reference to Exhibit 3.1 filed with Amendment
No. 1 to Registration Statement on Form S-1, Commission File No. 2-
83308).
<PAGE>
4.10 Bylaws of the Registrant (incorporated by reference to Exhibit 3.2
filed with Amendment No. 1 to Registration Statement on Form S-1,
Commission File No. 2-83308).
4.11 Certificate of Amendment of Certificate of Incorporation of Registrant
filed with the Secretary of the State of Delaware on December 20, 1994
(incorporated by reference to Exhibit 3.7 filed with Form 10-KSB for
the fiscal year ended May 31, 1995, Commission File No. 0-8765).
5.0 Opinion of Solomon Ward Seidenwurm & Smith
23.1 Consent of Corbin & Wertz
23.2 Consent of Solomon Ward Seidenwurm & Smith (see Exhibit 5.0)
<PAGE>
Exhibit 4.1
BIOMERICA, INC.
1995 STOCK OPTION AND RESTRICTED STOCK PLAN
1. Purpose.
-------
The purpose of the Biomerica, Inc. 1995 Stock Option and Restricted Stock
Plan (the "Plan") is to enable Biomerica, Inc. (the "Company") and its
Subsidiaries (as defined below) to attract and retain employees who contribute
to the Company's success by their ability, ingenuity and industry, and to enable
such employees to participate in the long-term success and growth of the Company
by giving them an equity interest in the Company. For purposes of the Plan,
"Subsidiary" shall have the meaning set forth in Section 424(f) of the Internal
Revenue Code of 1986, as amended (the "Code").
2. Types of Awards.
---------------
Awards under the Plan may be in the form of (i) stock options ("Stock
Options") and/or (ii) restricted stock ("Restricted Stock").
3. Administration.
--------------
3.1. The Plan shall be administered by a Compensation Committee of
the Company's Board of Directors (the "Board") or such other committee of
directors as the Board shall designate, which shall consist of not less than two
disinterested persons (as such term is defined in Rule 16b-3 under the
Securities Exchange Act of 1934 or any successor rule) who shall serve at the
pleasure of the Board; provided, however, that if there are not at least two
directors who are disinterested persons and willing to serve on the Compensation
Committee or such other committee designated by the Board, the Plan shall be
administered by the Board (such Compensation Committee, other committee, or the
Board being hereinafter referred to as the "Committee").
3.2. The Committee shall have the authority to grant awards to
eligible employees under the Plan; to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall
deem advisable; to interpret the terms and provisions of the Plan and any award
granted under the Plan; and to otherwise supervise the administration of the
Plan. In particular, and without limiting its authority and powers, the
Committee shall have the authority:
3.2.1. to determine whether and to what extent any award or
combination of awards will be granted hereunder;
<PAGE>
3.2.2. to select the employees to whom awards will be
granted;
3.2.3. to determine the number of shares of the common stock
of the company (the "Stock") to be covered by each award granted hereunder;
3.2.4. to determine the terms and conditions of any award
granted hereunder, including, but not limited to, any vesting or other
restrictions based on performance and such other factors as the Committee may
determine, and to determine whether the terms and conditions of the award are
satisfied;
3.2.5. to determine the treatment of awards upon an
employee's retirement, disability, death, termination for cause or other
termination of employment;
3.2.6. to determine pursuant to a formula or otherwise the
fair market value of the Stock on a given date; provided, however, that if the
Committee fails to make such a determination, fair market value shall mean the
closing sale price (or closing bid quotation if there is no closing sale price
reported) of the Stock on a given date;
3.2.7. to determine what portions of any dividends declared
with respect to the number of shares covered by a Restricted Stock award (i)
will be paid to the employee currently or (ii) will be deferred and deemed to be
reinvested or (iii) will otherwise be credited to the employee, or that the
employee has no rights with respect to such dividends;
3.2.8. to amend the terms of any award, prospectively or
retroactively; provided, however, that no amendment shall impair the rights of
the award holder without his or her consent; and
3.2.9. to substitute new Stock Options for previously granted
Stock Options, or for options granted under other plans, in each case including
previously granted options having higher option prices.
3.3. Any action of the Committee with respect to the administration
of the Plan shall be taken by majority vote or by written consent of a majority
of its members.
3.4. All determinations 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.
<PAGE>
4. Stock Subject to Plan.
---------------------
4.1. The total number of shares of Stock reserved and available for
distribution under the Plan shall be 500,000, subject to the restriction in
Section 4.3 and the adjustment provisions in Section 10. Such shares may
consist of authorized but unissued shares or treasury shares.
4.2. To the extent an option terminates without having been
exercised or shares awarded are forfeited, the shares subject to such award
shall again be available for distribution in connection with future awards under
the Plan.
4.3. At no time during the term of the Plan shall the total number
of shares of Stock subject to outstanding options under the Plan, any other
stock option plan or any stock purchase plan, stock bonus or similar plan of the
Company in the aggregate exceed 30% of the total number of shares of Stock of
the Company outstanding on the date of the award of any option under the Plan.
5. Eligibility.
-----------
Non-Qualified Options (as defined in Section 6) and Restricted Stock may
be granted to any person who is or has agreed to become an officer or other
employee, consultant, adviser, independent contractor or agent (each of which
relationships shall constitute a "Relationship") of the Company or a Subsidiary.
Incentive Stock Options (as defined in Section 6) may be granted to any officer
or other employee of the Company or a Subsidiary. The participants under the
Plan shall be selected from time to time by the Committee, in its sole
discretion, from among those eligible.
6. Stock Options.
-------------
6.1. The Stock Options awarded under the Plan may be of two types:
(i) Incentive Stock Options within the meaning of Section 422 of the Code or any
successor provision thereto; and (ii) Non-Qualified Stock Options. To the
extent that any Stock Option does not qualify as an Incentive Stock Option, it
shall constitute a Non-Qualified Stock Option.
6.2. Subject to the following provisions, Stock Options awarded
under the Plan shall be in such form and shall have such terms and conditions as
the Committee may determine:
<PAGE>
6.2.1. Option Price. The option price per share of Stock
------------
purchasable under a Stock Option shall be determined by the Committee; provided,
however, that the option price shall not be less than 85% of the fair market
value of the Stock on the date of the award of the Stock Option.
6.2.2. Option Term. The term of each Stock Option shall be
-----------
fixed by the Committee, but shall not exceed 10 years from the date of award.
6.2.3. Exercisability. Stock Options shall be exercisable at
--------------
such time or times and subject to such terms and conditions as shall be
determined by the Committee, provided that each grant of Stock Options shall
vest at a rate of not less than 20% per year and, as a result, be exercisable in
full five years after the date such Stock Options are granted. If the Committee
provides that any Stock Option is exercisable only in installments, the
Committee may waive such installment exercise provisions at any time in whole or
in part.
6.2.4. 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,
accompanied by payment of the purchase price. Payment of the purchase price
shall be made in such manner as the Committee may provide in the award, which
may include cash (including cash equivalents), delivery of shares of Stock
already owned by the optionee or subject to awards hereunder, any other manner
permitted by law determined by the Committee, or any combination of the
foregoing. The Committee may provide that all or part of the shares received
upon the exercise of a Stock Option which are paid for using Restricted Stock
shall be restricted in accordance with the original terms of the award in
question.
6.2.5. No Stockholder Rights. An optionee shall have neither
---------------------
rights to dividends nor other rights of a stockholder with respect to shares
subject to a Stock Option until the optionee has given written notice of
exercise and has paid for such shares.
6.2.6. Non-transferability. No Stock Option shall be
-------------------
transferable by the optionee other than by will or by the laws of descent and
distribution. During the optionee's lifetime, all Stock Options shall be
exercisable only by the optionee.
<PAGE>
6.2.7. Termination of Employment. Upon the termination of an
-------------------------
optionee's Relationship with the Company or a Subsidiary by reason other than
death or disability, any options granted to him shall terminate 30 days from the
date on which such Relationship terminates unless such optionee has resumed or
initiated a Relationship and has a Relationship on such date. During such 30-
day period, the optionee may exercise any option granted to him to the extent
such option was exercisable on the date of termination of his Relationship and
provided that such option has not expired or otherwise terminated. Except as
the Committee may expressly determine otherwise, upon the termination of an
optionee's Relationship by reason of death or disability, any option granted to
him shall terminate six months after the date of termination of the Relationship
unless by its terms the option shall expire before such date, and shall only be
exercisable to the extent exercisable on the date of termination of the
Relationship. In the case of termination of the Relationship by reason of
death, the option may be exercised by the person to whom the optionee's rights
under the option shall pass by will or by the laws of descent and distribution.
6.3. Notwithstanding the provisions of Section 6.2, (A) no
Incentive Stock Option shall (i) have an option price which is less than 100% of
the fair market value of the Stock on the date of the award of the Stock Option;
provided, however, that if at the time an Incentive Stock Option is awarded the
optionee owns or would be considered to own by reason of Section 424(d) of the
Code more than 10% of the total combined voting power of all classes of stock of
the Company or a Subsidiary, the purchase price of the shares covered by such
Incentive Stock Option shall not be less than 110% of the fair market value of
the Stock on the date of the award of the Incentive Stock Option, (ii) be
exercisable more than five years after the date such Incentive Stock Option is
awarded if awarded to an optionee who owns or would be considered to own by
reason of Section 424(d) of the Code more than 10% of the total combined voting
power of all classes of stock of the Company or a Subsidiary or (iii) be awarded
more than 10 years after the effective date of the Plan, and (B) in no event
shall the aggregate fair market value (determined as of the time the Stock
Option is awarded) of the Stock with respect to which Incentive Stock Options
(granted under the Plan or any other plans of the Company or a Subsidiary) are
exercisable for the first time by an optionee in any calendar year exceed
$100,000.
7. Restricted Stock.
----------------
Subject to the following provisions, all awards of Restricted Stock shall
be in such form and shall have such terms and conditions as the Committee may
determine:
<PAGE>
7.1. The Restricted Stock award shall specify the number of shares
of restricted Stock to be awarded, the price, if any, to be paid by the
recipient of the Restricted Stock and the date or dates on which, or the
conditions upon the satisfaction of which, the Restricted Stock will vest. The
vesting of Restricted Stock may be conditioned upon one or more of the
completion of a specified period of service with the Company or a Subsidiary,
upon the attainment of specified performance goals or upon such other criteria
as the Committee may determine.
7.2. Stock certificates representing the Restricted Stock awarded
to an employee shall be registered in the employee's name, but the Committee may
direct that such certificates be held by the Company on behalf of the employee.
Except as may be permitted by the Committee, no shares of Restricted Stock may
be sold, transferred, assigned, pledged or otherwise encumbered by the employee
until such share has vested in accordance with the terms of the Restricted Stock
award. At the time Restricted Stock vests, a certificate for such vested shares
shall be delivered to the employee (or his or her designated beneficiary in the
event of death), free of all restrictions.
7.3. The Committee may provide that the employee shall have the
right to vote or receive dividends on Restricted Stock. The Committee may
provide that Stock received as a dividend on, or in connection with a stock
split of, Restricted Stock shall be subject to the same restrictions as the
Restricted Stock.
7.4. Except as may be provided by the Committee, in the event of
any employee's termination of employment before all of his or her Restricted
Stock has vested, or in the event any conditions to the vesting of Restricted
Stock have not been satisfied prior to any deadline for the satisfaction of such
conditions set forth in the award, the shares of Restricted Stock which have not
vested shall be forfeited, and the Committee may provide that (i) any purchase
price paid by the employee shall be returned to the employee or (ii) a cash
payment equal to the Restricted Stock's fair market value on the date of
forfeiture, if lower, shall be paid to the employee.
7.5. The Committee may waive, in whole or in part, any or all of
the conditions to receipt of, or restrictions with respect to, any or all of the
employee's Restricted Stock.
8. Tax Withholding.
---------------
8.1. Each employee shall, no later than the date as of which the
value of an award first becomes includible in the employee's gross income for
applicable tax purposes, pay to the Company, or make arrangements satisfactory
to the Committee regarding payment of, any federal, state, local or other taxes
<PAGE>
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, where applicable, any Subsidiary), 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 employee.
8.2. To the extent permitted by the Committee, and subject to such
terms and conditions as the Committee may provide, an employee may irrevocably
elect to have the withholding tax obligation, or any additional tax obligation
with respect to any awards hereunder, satisfied by (i) having the Company
withhold shares of Stock otherwise deliverable to the employee with respect to
the award or (ii) delivering to the Company shares of unrestricted Stock.
9. Amendments and Termination.
--------------------------
The Board may discontinue the Plan at any time and may amend it from time
to time. No amendment or discontinuation of the Plan shall adversely affect any
award previously granted without the employee's written consent. Amendments may
be made without stockholder approval except amendments which would (i)
materially increase the benefits accruing to participants under the Plan, (ii)
increase the number of shares of Stock which may be issued under the Plan,
except as permitted under the provisions of Section 10, or (iii) materially
modify the requirements as to eligibility for participation in the Plan;
provided, however, that the Board may amend the Plan without stockholder
approval as may be required to comply with state securities laws.
10. Adjustment.
----------
10.1. If the number of outstanding shares of Stock is increased or
decreased, or if such shares are exchanged for a different number or kind of
shares or securities of the Company through reorganization, merger,
recapitalization, reclassification, stock dividend, stock split, combination of
shares or other similar transaction, the aggregate number of shares of Stock
subject to the Plan as provided in Section 4 hereof and the shares of Stock
subject to issued and outstanding options under the Plan shall be appropriately
and proportionately adjusted by the Committee. Any such adjustment in the
outstanding options shall be made without change in the aggregate purchase price
applicable to the unexercised portion of the option but with an appropriate
adjustment in the price for each share or other unit of any security covered by
the option.
<PAGE>
10.2. Notwithstanding the provisions of Section 10.1, upon the
dissolution or liquidation of the Company or upon any reorganization, merger or
consolidation with one or more corporations as a result of which the Company is
not the surviving corporation, or upon a sale of all or substantially all of the
assets of the Company to another corporation or entity, the Plan and each
outstanding option shall terminate.
10.3. Adjustments under this Section 10 shall be made by the
Committee, whose determination as to which adjustments shall be made, and the
extent thereof, shall be final, binding and conclusive. No fractional shares of
stock shall be issued under the Plan or in connection with any such adjustment.
11. Information.
-----------
The Company will provide promptly to each optionee during the period in which
any of his options are outstanding copies of all financial and other reports
provided to shareholders of the Company generally.
12. General Provisions.
------------------
12.1. Each award under the Plan shall be subject to the requirement
that, if at any time the Committee shall determine that (i) the listing,
registration or qualification of the Stock subject or related thereto upon any
securities or exchange or under any state or federal law, or (ii) the consent or
approval of any government regulatory body or (iii) an agreement by the
recipient of an award with respect to the disposition of Stock is necessary or
desirable (in connection with any requirement or interpretation of any federal
or state securities law, rule or regulation) as a condition of, or in connection
with, the granting of such award or the issuance, purchase or delivery of Stock
thereunder, such award shall not be granted or exercised, in whole or in part,
unless such listing, registration, qualification, consent, approval or agreement
shall have been effected or obtained free of any conditions not acceptable to
the Committee.
12.2. Nothing set forth in this Plan shall prevent the Board from
adopting other or additional compensation arrangements. Neither the adoption of
the Plan nor any award hereunder shall confer upon any employee of the Company,
or of a Subsidiary, any right to continued employment.
12.3. Determinations by the Committee under the Plan relating to
the form, amount and terms and conditions of awards need not be uniform, and may
be made selectively among persons who receive or are eligible to receive awards
under the Plan, whether or not such persons are similarly situated.
<PAGE>
12.4. No member of the Board or the Committee, nor any officer or
employee of the Company acting on behalf of the Board or the Committee, shall be
personally liable for any action, determination or interpretation taken or made
with respect to the Plan, and all members of the Board or the Committee and all
officers or employees of the Company acting on their behalf shall, to the extent
permitted by law, be fully indemnified and protected by the Company in respect
of any such action, determination or interpretation.
13. Effective Date and Term of Plan.
-------------------------------
The Plan shall become effective upon approval by the Company's
Stockholders and shall terminate 10 years thereafter.
<PAGE>
Exhibit 4.2
BIOMERICA, INC.
1995 STOCK OPTION AND RESTRICTED STOCK PLAN
INCENTIVE STOCK OPTION AGREEMENT
Date Option Granted:
------------------------- ----------------
Name of Optionee
No:
------------------------- ----------------
Residence Address
-------------------------
City, State and Zip Code
THIS AGREEMENT is made as of the date set forth above between Biomerica,
Inc., a Delaware corporation (the "Company"), and the optionee named above (the
"Optionee").
RECITAL
-------
The Board of Directors of the Company, or a duly appointed Compensation
Committee or other committee (in any such case, the "Committee") thereof, has
determined that it is to the advantage and in the interest of the Company and
its stockholders to grant the option provided for herein to the Optionee as an
inducement to remain in the service of the Company or any of its subsidiaries
and as an incentive for increased effort during such service. In consideration
of the mutual covenants herein contained, the parties hereto agree as follows:
1. Grant of Option.
---------------
(a) Pursuant to and subject to the terms and conditions of the
Biomerica, Inc. 1995
(b) Stock Option and Restricted Stock Plan, as amended (the
"Plan"), the Company grants to the Optionee the right and option (the "Option")
to purchase on the terms and conditions hereinafter set forth all or any part of
an aggregate of shares (the "Shares") of the presently
----------------
authorized and unissued Common Stock, $.04 par value (the "Common Stock"), of
the Company at the purchase price of $ per share. The Option shall be
-------
exercisable as follows:
(i) From , 19 to and including
------------ ---
, 19 , % of the Shares;
-------------- --- ----
(ii) From , 19 to and including
------------ ---
, 19 , % of the Shares;
-------------- --- ----
(iii) From , 19 to and including
------------ ---
, 19 , % of the Shares;
-------------- --- ----
<PAGE>
(iv) From , 19 to and including
------------ ---
, 19 , % of the Shares;
-------------- --- ----
(v) From , 19 to and including
------------ ---
, 19 , % of the Shares;
-------------- --- ----
but in no event at a rate of less than 20% per year from the date of grant.
(c) Nothing contained herein shall be construed to limit or restrict
the right of the Company or any of its subsidiaries to terminate the Optionee's
Relationship (as defined in the Plan) with the Company or any subsidiary at any
time, with or without cause, or to increase or decrease the Optionee's
compensation from the rate in existence at the time the Option is granted.
2. Exercise. The right to exercise the Option granted hereunder, to the
--------
extent unexercised, shall remain in effect until the 10th anniversary of the
granting of this Option, unless an earlier date is specified in Section 1(a)
above.
3. Method of Exercise. To the extent that the right to purchase Shares
------------------
has accrued hereunder, the Option may be exercised from time to time by written
notice to the Company stating the number of Shares with respect to which the
Option is being exercised (the "Notice of Exercise"), together with payment in
full of the purchase price for the number of Shares being exercised. Payment of
the purchase price may be made in such manner as the Committee has designated in
the award of the Option, and if not so designated, in cash or by certified or
cashier's check payable to the order of the Company. If requested by the
Committee, prior to the delivery of any Shares, the Optionee, or any other
person entitled to exercise the Option, shall supply the Committee with a
representation that the Shares are not being acquired with a view to
distribution and will be sold or otherwise disposed of only in accordance with
applicable federal and state statutes, rules and regulations. As soon after the
Notice of Exercise as the Company is reasonably able to comply, the Company
shall, without transfer or issue tax to the Optionee or other person entitled to
exercise the Option, deliver to the Optionee or such other person, at the main
office of the Company or such other place as shall be mutually acceptable, a
certificate or certificates for the shares being exercised.
In the Committee's sole discretion, payment of the purchase price for the
number of Shares to be delivered, but not of the amount of any withholding
taxes, may be made in whole or in part with shares of the Common Stock,
including restricted shares owned or awarded but not vested under the Plan. If
payment is made with restricted shares of the Common Stock owned or awarded
<PAGE>
but not vested under the Plan, the Optionee, or other person entitled to
exercise the Option, shall deliver to the Company with the Notice of Exercise
certificates representing the number of shares of the Common Stock in payment
for the Shares, duly endorsed for transfer to the Company. If requested by the
Committee, prior to the acceptance of such certificates in payment for the
Shares, the Optionee, or any other person entitled to exercise the Option, shall
supply the Committee with a written representation and warranty that such
Optionee has good and marketable title to the shares represented by the
certificate(s), free and clear of liens and encumbrances. The Committee may
provide that all or part of the shares received upon the exercise of the Option
which are paid for using restricted shares of Common Stock shall be restricted
in accordance with the terms of the award of the restricted shares of Common
Stock. The value of the shares of the Common Stock tendered in payment for the
Shares being purchased shall be their fair market value on the date of the
Optionee's Notice of Exercise. For purposes hereof, the "fair market value" of
the Common Stock shall mean the average of the closing bid and asked prices of
the Common Stock for the preceding 20 trading days as quoted in the National
Association of Securities Dealers Automated Quotation System.
Notwithstanding the foregoing, the Company shall have the right to postpone
the time of delivery of the Shares for such period as may be required for it
with reasonable diligence to comply with any applicable listing requirements of
any national securities exchange or any federal, state or local law. The
Optionee may exercise the Option for less than the total number of Shares for
which the option is exercisable, provided that a partial exercise shall not
include any fractional shares.
4. Termination of Option. The Option shall terminate and expire upon the
---------------------
earlier of:
(a) the last date for exercise of the Option as specified in
Section 2 of this Agreement;
(b) the expiration of 30 days from the date of the termination of the
Optionee's Relationship with the Company or any of its subsidiaries other than
by reason of death or disability, unless the Optionee has resumed or initiated a
Relationship with the Company or any subsidiary and has a Relationship with the
Company or any subsidiary on such date;
(c) the expiration of six months from the date of the Optionee's
termination of his Relationship with the Company or any of its subsidiaries by
reason of death or disability;
(d) the termination of the Option pursuant to Section 6 hereof; or
<PAGE>
(e) the expiration of five years from the date hereof if, as of the
date hereof, the Optionee owns or is considered to own by reason of
Section 424(d) of the Internal Revue Code of 1986, as amended (the "Code"), more
than 10% of the total combined voting power of all classes of stock of the
Company or any subsidiary.
A termination of Relationship by reason of the death, retirement or disability
of the Optionee or otherwise shall not accelerate or otherwise affect the number
of shares with respect to which the Option may be exercised, and the Option may
only be exercised with respect to the number of shares for which it was
exercisable at the date of such termination of Relationship. In the event of
the Optionee's death, the Option may be exercised prior to its expiration or
termination by the Optionee's heir or legatee.
Termination of a Relationship (other than by reason of death or disability)
for purposes hereof shall be deemed to take place upon the earliest to occur of
the following: (i) the date of the Optionee's retirement under the normal
retirement policies of, or with the approval of, the Company or any subsidiary;
(ii) the date the Optionee receives notice or advice that his Relationship is
terminated; or (iii) the date the Optionee ceases to render services to the
Company or any subsidiary (absences for temporary illness, emergencies,
vacations or leaves of absence of not more than 90 days' duration and approved
in writing by the Committee excepted). The fact that the Optionee may receive
payment from the Company or any subsidiary after termination for vacation pay,
for services rendered prior to termination, for salary in lieu of notice or for
other benefits shall not affect the termination of employment with the Company
or any subsidiary of the Company with the consent of the Company or such
subsidiary by reason of permanent and total disability within the meaning of
Section 22(e)(3) of the Code.
5. Adjustments. If there is any change in the capitalization of the
-----------
Company affecting in any manner the number or kind of outstanding shares of the
Common Stock, whether by stock dividend, stock split, reclassification or
recapitalization of such stock, or because the Company has merged or
consolidated with one or more other corporations (and provided the Option does
not thereby terminate pursuant to Section 6 hereof), then the number and kind of
shares then subject to the Option and the price to be paid therefor shall be
appropriately adjusted by the Committee, provided, however, that in no event
shall any such adjustment result in the Company being required to sell or issue
any fractional shares.
<PAGE>
6. Cessation of Corporate Existence. Upon the dissolution or liquidation
--------------------------------
of the Company, the reorganization, merger or consolidation of the Company with
one or more corporations as a result of which the Company is not the surviving
corporation, or the sale of all or substantially all of the assets of the
Company to another corporation or entity, the Option granted hereunder shall
terminate.
7. Non-Transferability. The Option is not assignable or transferable by
-------------------
the Optionee, either voluntarily or by operation of law, otherwise than by will
or by the laws of descent and distribution, and is exercisable, during the
Optionee's lifetime, only by the Optionee.
8. No Stockholder Rights. The Optionee or other person entitled to
---------------------
exercise the Option shall have no rights or privileges as a stockholder with
respect to any Shares subject hereto until the Optionee or such person has
become the holder of record of such Shares, and no adjustment (except such
adjustments as may be effected pursuant to the provisions of Section 5 hereof)
shall be made for dividends or distributions of rights in respect of such Shares
if the record date is prior to the date on which the Optionee or such person
becomes the holder of record.
9. Amendment. The Committee may from time to time amend the terms of the
---------
grant hereunder in accordance with the terms of the Plan in effect at the time
of such amendment, but no amendment which is unfavorable to the Optionee can be
made without the Optionee's prior written consent (except for amendments or
updates to this Agreement to reflect changes in the law that apply to the
Option). No amendment, termination or discontinuance of the Plan may be made if
it will unfavorably affect any of the Options previously granted to the
Optionee.
10. Plan Controls. The Option shall be subject to and governed by the
-------------
provisions of the Plan (a copy of which is available for inspection at the
Company's executive offices) which the Committee alone shall have the authority
to interpret and construe. In the event of any conflict between the provisions
of this Agreement and the Plan, the Plan shall govern. All determinations and
interpretations thereof made by the Committee shall be conclusive and binding on
all parties hereto and upon their successors and assigns. All capitalized terms
not otherwise defined herein shall have the same meaning as set forth in the
Plan. The Option is intended to meet the requirements of an incentive stock
option within the meaning of Section 422 of the Code.
<PAGE>
11. Conditions to Issuance of Shares. THE COMPANY'S OBLIGATION TO ISSUE
--------------------------------
SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE OPTION IS EXPRESSLY CONDITIONED
UPON THE COMPLETION BY THE COMPANY OF ANY REGISTRATION OR OTHER QUALIFICATION OF
SUCH SHARES UNDER ANY STATE AND/OR FEDERAL LAW OR RULINGS OR REGULATIONS OF ANY
GOVERNMENT REGULATORY BODY OR THE MAKING OF SUCH INVESTMENT REPRESENTATIONS OR
OTHER REPRESENTATIONS AND AGREEMENTS BY THE OPTIONEE OR ANY PERSON ENTITLED TO
EXERCISE THE OPTION IN ORDER TO COMPLY WITH THE REQUIREMENTS OF ANY EXEMPTION
FROM ANY SUCH REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES WHICH THE
COMMITTEE SHALL, IN ITS SOLE DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH
REQUIRED REPRESENTATIONS AND AGREEMENTS INCLUDE REPRESENTATIONS AND AGREEMENTS
THAT THE OPTIONEE, OR ANY OTHER PERSON ENTITLED TO EXERCISE THE OPTION, (A) IS
NOT PURCHASING SUCH SHARES FOR DISTRIBUTION AND (B) AGREES TO HAVE PLACED UPON
THE FACE AND REVERSE OF ANY CERTIFICATES FOR SUCH SHARES A LEGEND SETTING FORTH
ANY REPRESENTATIONS AND AGREEMENTS WHICH HAVE BEEN GIVEN TO THE COMMITTEE, OR A
REFERENCE THERETO, AND STATING THAT, PRIOR TO MAKING ANY SALE OR OTHER
DISPOSITION OF ANY SUCH SHARES, THE OPTIONEE, OR ANY OTHER PERSON ENTITLED TO
EXERCISE THE OPTION, WILL GIVE THE COMPANY NOTICE OF INTENTION TO SELL OR
DISPOSE OF THE SHARES NOT LESS THAN FIVE DAYS PRIOR TO SUCH SALE OR DISPOSITION.
12. Method of Acceptance. This Agreement is addressed to the Optionee in
--------------------
duplicate and shall not be effective until the Optionee executes the acceptance
below and returns one copy to the Company, thereby acknowledging that the
Optionee has read and agreed to all the terms and conditions of this Agreement
and the Plan.
EXECUTED this day of , 19 .
---- ------------- ---
BIOMERICA, INC.
Name
------------------------
Title
------------------------
ACCEPTED
Signature of Optionee Date
----------------------- -------------
<PAGE>
Exhibit 4.3
21
BIOMERICA, INC.
1995 STOCK OPTION AND RESTRICTED STOCK PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
Date Option Granted:
------------------------- ----------------
Name of Optionee
No:
------------------------- ----------------
Residence Address
-------------------------
City, State and Zip Code
THIS AGREEMENT is made as of the date set forth above between Biomerica,
Inc., a Delaware corporation (the "Company"), and the optionee named above (the
"Optionee").
RECITAL
-------
The Board of Directors of the Company, or a duly appointed Compensation
Committee or other committee (in any such case, the "Committee") thereof, has
determined that it is to the advantage and in the interest of the Company and
its stockholders to grant the option provided for herein to the Optionee as an
inducement to remain in the service of the Company or any of its subsidiaries
and as an incentive for increased effort during such service. In consideration
of the mutual covenants herein contained, the parties hereto agree as follows:
1. Grant of Option.
---------------
(a) Pursuant to and subject to the terms and conditions of the
Biomerica, Inc. 1995 Stock Option and Restricted Stock Plan, as amended (the
"Plan"), the Company grants to the Optionee the right and option (the "Option")
to purchase on the terms and conditions hereinafter set forth all or any part of
an aggregate of shares (the "Shares") of the presently authorized
--------------
and unissued Common Stock, $.04 par value (the "Common Stock"), of the Company
at the purchase price of $ per share. The Option shall be exercisable as
-------
follows:
(i) From , 19 to and including
------------ ---
, 19 , % of the Shares;
-------------- --- ----
(ii) From , 19 to and including
------------ ---
, 19 , % of the Shares;
-------------- --- ----
(iii) From , 19 to and including
------------ ---
, 19 , % of the Shares;
-------------- --- ----
<PAGE>
(iv) From , 19 to and including
------------ ---
, 19 , % of the Shares;
-------------- --- ----
(v) From , 19 to and including
------------ ---
, 19 , % of the Shares;
-------------- --- ----
but in no event at a rate of less than 20% per year from the date of grant.
(b) Nothing contained herein shall be construed to limit or restrict
the right of the Company or any of its subsidiaries to terminate the Optionee's
Relationship (as defined in the Plan) with the Company or any subsidiary at any
time, with or without cause, or to increase or decrease the Optionee's
compensation from the rate in existence at the time the Option is granted.
2. Exercise. The right to exercise the Option granted hereunder, to the
--------
extent unexercised, shall remain in effect until the day after the 10th
anniversary of the granting of this Option, unless an earlier date is specified
in Section 1 hereof.
3. Method of Exercise. To the extent that the right to purchase Shares
------------------
has accrued hereunder, the Option may be exercised from time to time by written
notice to the Company stating the number of Shares with respect to which the
Option is being exercised (the "Notice of Exercise"), together with payment in
full of the purchase price for the number of Shares being exercised. Payment of
the purchase price may be made in such manner as the Committee has designated in
the award of the Option, and if not so designated, in cash or by certified or
cashier's check payable to the order of the Company. If requested by the
Committee, prior to the delivery of any Shares, the Optionee, or any other
person entitled to exercise the Option, shall supply the Committee with a
representation that the Shares are not being acquired with a view to
distribution and will be sold or otherwise disposed of only in accordance with
applicable federal and state statutes, rules and regulations. As a condition to
the exercise of the Option, in whole or in part, the Committee may, in its sole
discretion, require the Optionee to pay, in addition to the purchase price for
the Shares being exercised, an amount equal to any federal, state or local taxes
that the Committee has determined are required to be paid in connection with the
exercise of the Option in order to enable the Company to claim a deduction in
connection with the exercise of the Option or otherwise. As soon after the
Notice of Exercise as the Company is reasonably able to company, the Company
shall, without transfer or issue tax to the Optionee or other person entitled to
exercise the Option, deliver to the Optionee or such other person, at the main
office of the Company or such other place as shall be mutually acceptable, a
certificate or certificates for the shares being exercised.
<PAGE>
In the Committee's sole discretion, payment of the purchase price for the
number of Shares to be delivered, but not of the amount of any withholding
taxes, may be made in whole or in part with shares of the Common Stock,
including restricted shares owned or awarded but not vested under the Plan. If
payment is made with restricted shares of the Common Stock owned or awarded but
not vested under the Plan, the Optionee, or other person entitled to exercise
the Option, shall deliver to the Company with the Notice of Exercise
certificates representing the number of shares of the Common Stock in payment
for the Shares, duly endorsed for transfer to the Company. If requested by the
Committee, prior to the acceptance of such certificates in payment for the
Shares, the Optionee, or any other person entitled to exercise the Option, shall
supply the Committee with a written representation and warranty that such
Optionee has good and marketable title to the shares represented by the
certificate(s), free and clear of liens and encumbrances. The Committee may
provide that all or part of the shares received upon the exercise of the Option
which are paid for using restricted shares of Common Stock shall be restricted
in accordance with the terms of the award of the restricted shares of Common
Stock. The value of the shares of the Common Stock tendered in payment for the
Shares being purchased shall be their fair market value on the date of the
Optionee's Notice of Exercise. For purposes hereof, the "fair market value" of
the Common Stock shall mean the average of the closing bid and asked prices of
the Common Stock for the preceding 20 trading days as quoted in the National
Association of Securities Dealers Automated Quotation System.
<PAGE>
Notwithstanding the foregoing, the Company shall have the right to postpone
the time of delivery of the Shares for such period as may be required for it
with reasonable diligence to comply with any applicable listing requirements of
any national securities exchange or any federal, state or local law. The
Optionee may exercise the Option for less than the total number of Shares for
which the option is exercisable, provided that a partial exercise shall not
include any fractional shares.
4. Termination of Option. The Option shall terminate and expire upon the
---------------------
earlier of:
(a) the last date for exercise of the Option as specified in
Section 2 of this Agreement;
(b) the expiration of 30 days from the date of the termination of the
Optionee's Relationship with the Company or any of its subsidiaries other than
by reason of death or disability, unless the Optionee has resumed or initiated a
Relationship with the Company or any subsidiary and has a Relationship with the
Company or any subsidiary on such date;
(c) the expiration of six months from the date of the termination of
the Optionee's Relationship with the Company or any of its subsidiaries by
reason of death or disability; or
(d) the termination of the Option pursuant to Section 6 hereof.
A termination of Relationship by reason of the death, retirement or disability
of the Optionee or otherwise shall not accelerate or otherwise affect the number
of shares with respect to which the Option may be exercised, and the Option may
only be exercised with respect to the number of shares for which it was
exercisable at the date of such termination of Relationship. In the event of
the Optionee's death, the Option may be exercised prior to its expiration or
termination by the Optionee's heir or legatee.
Termination of a Relationship (other than by reason of death or disability)
for purposes hereof shall be deemed to take place upon the earliest to occur of
the following: (i) the date of the Optionee's retirement under the normal
retirement policies of, or with the approval of, the Company or any subsidiary;
(ii) the date the Optionee receives notice or advice that his Relationship is
terminated; or (iii) the date the Optionee ceases to render services to the
Company or any subsidiary (absences for temporary illness, emergencies,
vacations or leaves of absence of not more than 90 days' duration and approved
in writing by the Committee excepted). The fact that the Optionee may receive
payment from the Company or any subsidiary after termination for vacation pay,
for services rendered prior to termination, for salary in lieu of notice or for
other benefits shall not affect the termination of employment with the Company
<PAGE>
or any subsidiary of the Company with the consent of the Company or such
subsidiary by reason of permanent and total disability within the meaning of
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the "Code").
5. Adjustments. If there is any change in the capitalization of the
-----------
Company affecting in any manner the number or kind of outstanding shares of the
Common Stock, whether by stock dividend, stock split, reclassification or
recapitalization of such stock, or because the Company has merged or
consolidated with one or more other corporations (and provided the Option does
not thereby terminate pursuant to Section 6 hereof), then the number and kind of
shares then subject to the Option and the price to be paid therefor shall be
appropriately adjusted by the Committee, provided, however, that in no event
shall any such adjustment result in the Company being required to sell or issue
any fractional shares.
6. Cessation of Corporate Existence. Upon the dissolution or liquidation
--------------------------------
of the Company, the reorganization, merger or consolidation of the Company with
one or more corporations as a result of which the Company is not the surviving
corporation, or the sale of all or substantially all of the assets of the
Company to another corporation or entity, the Option granted hereunder shall
terminate.
7. Non-Transferability. The Option is not assignable or transferable by
-------------------
the Optionee, either voluntarily or by operation of law, otherwise than by will
or by the laws of descent and distribution, and is exercisable, during the
Optionee's lifetime, only by the Optionee.
8. No Stockholder Rights. The Optionee or other person entitled to
---------------------
exercise the Option shall have no rights or privileges as a stockholder with
respect to any Shares subject hereto until the Optionee or such person has
become the holder of record of such Shares, and no adjustment (except such
adjustments as may be effected pursuant to the provisions of Section 5 hereof)
shall be made for dividends or distributions of rights in respect of such Shares
if the record date is prior to the date on which the Optionee or such person
becomes the holder of record.
9. Amendment. The Committee may from time to time amend the terms of the
---------
grant hereunder in accordance with the terms of the Plan in effect at the time
of such amendment, but no amendment which is unfavorable to the Optionee can be
made without the Optionee's prior written consent (except for amendments or
updates to this Agreement to reflect changes in the law that apply to the
Option). No amendment, termination or discontinuance of the Plan may be made if
it will unfavorably affect any of the Options previously granted to the
Optionee.
<PAGE>
10. Plan Controls. The Option shall be subject to and governed by the
-------------
provisions of the Plan (a copy of which is available for inspection at the
Company's executive offices) which the Committee alone shall have the authority
to interpret and construe. In the event of any conflict between the provisions
of this Agreement and the Plan, the Plan shall govern. All determinations and
interpretations thereof made by the Committee shall be conclusive and binding on
all parties hereto and upon their successors and assigns. All capitalized terms
not otherwise defined herein shall have the same meanings as set forth in the
Plan. The Option is designated a non-qualified option that is not an incentive
stock option within the meaning of Section 422 of the Code.
11. Conditions to Issuance of Shares. THE COMPANY'S OBLIGATION TO ISSUE
--------------------------------
SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE OPTION IS EXPRESSLY CONDITIONED
UPON THE COMPLETION BY THE COMPANY OF ANY REGISTRATION OR OTHER QUALIFICATION OF
SUCH SHARES UNDER ANY STATE AND/OR FEDERAL LAW OR RULINGS OR REGULATIONS OF ANY
GOVERNMENT REGULATORY BODY OR THE MAKING OF SUCH INVESTMENT REPRESENTATIONS OR
OTHER REPRESENTATIONS AND AGREEMENTS BY THE OPTIONEE OR ANY PERSON ENTITLED TO
EXERCISE THE OPTION IN ORDER TO COMPLY WITH THE REQUIREMENTS OF ANY EXEMPTION
FROM ANY SUCH REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES WHICH THE
COMMITTEE SHALL, IN ITS SOLE DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH
REQUIRED REPRESENTATIONS AND AGREEMENTS INCLUDE REPRESENTATIONS AND AGREEMENTS
THAT THE OPTIONEE, OR ANY OTHER PERSON ENTITLED TO EXERCISE THE OPTION, (A) IS
NOT PURCHASING SUCH SHARES FOR DISTRIBUTION AND (B) AGREES TO HAVE PLACED UPON
THE FACE AND REVERSE OF ANY CERTIFICATES FOR SUCH SHARES A LEGEND SETTING FORTH
ANY REPRESENTATIONS AND AGREEMENTS WHICH HAVE BEEN GIVEN TO THE COMMITTEE, OR A
REFERENCE THERETO, AND STATING THAT, PRIOR TO MAKING ANY SALE OR OTHER
DISPOSITION OF ANY SUCH SHARES, THE OPTIONEE, OR ANY OTHER PERSON ENTITLED TO
EXERCISE THE OPTION, WILL GIVE THE COMPANY NOTICE OF INTENTION TO SELL OR
DISPOSE OF THE SHARES NOT LESS THAN FIVE DAYS PRIOR TO SUCH SALE OR DISPOSITION.
12. Method of Acceptance. This Agreement is addressed to the Optionee in
--------------------
duplicate and shall not be effective until the Optionee executes the acceptance
below and returns one copy to the Company, thereby acknowledging that the
Optionee has read and agreed to all the terms and conditions of this Agreement
and the Plan.
<PAGE>
EXECUTED this day of , 19 .
---- ------------- ---
BIOMERICA, INC.
Name
------------------------
Title
-----------------------
ACCEPTED
Signature of Optionee Date
----------------------- -------------
<PAGE>
Exhibit 4.4
BIOMERICA, INC.
1995 STOCK OPTION AND RESTRICTED STOCK PLAN
RESTRICTED STOCK AGREEMENT
Date of Award:
------------------------ --------------
Name of Recipient
No.:
------------------------ --------------------------
Residence Address
------------------------
City, State and Zip Code
THIS AGREEMENT is made as of the date set forth above between Biomerica,
Inc., a Delaware corporation (the "Company"), and the recipient named above (the
"Recipient").
RECITAL
-------
The Board of Directors of the Company, or a duly appointed Compensation
Committee or other committee (in any such case, the "Committee") thereof, has
determined that it is to the advantage and in the interest of the Company and
its stockholders to grant the award provided for herein to the Recipient as an
inducement to remain in the service of the Company or any of its subsidiaries
and as an incentive for increased effort during such service. In consideration
of the mutual covenants herein contained, the parties hereto agree as follows:
1. Grant and Vesting of Restricted Shares.
--------------------------------------
(a) Pursuant to and subject to the terms and conditions of the
Biomerica, Inc. 1995 Stock Option and Restricted Stock Plan, as amended (the
"Plan"), and this Agreement, the Company grants to the Recipient an aggregate
of restricted shares (the "Restricted Shares") of the presently
-------
authorized and issued Common Stock, $.04 par value (the "Common Stock"), of the
Company. No purchase price is payable in connection with the grant of the
Restricted Shares. The Restricted Shares granted pursuant hereto will vest as
follows:
Date Percentage of Restricted
Shares to Vest
%
---------------- ------
%
---------------- ------
%
---------------- ------
<PAGE>
The Committee may accelerate the vesting of the Restricted Shares at any time in
its discretion.
2. Restrictions on the Restricted Shares. Until the Restricted Shares
-------------------------------------
have vested (as provided in paragraph 1), the Recipient may not sell, transfer,
assign, or pledge them. Stock certificates representing the Restricted Shares
will be registered in the Recipient's name as of the date of this Agreement, but
will be held by the Company on the Recipient's behalf until such shares vest.
When a portion of the Restricted Shares vests, a certificate representing such
shares will be delivered to the Recipient (or, in the event of the Recipient's
death, to the Recipient's beneficiary), free of all restrictions.
3. Dividends and Voting. From the date of this Agreement, all cash
--------------------
dividends payable with respect to the Restricted Shares will be paid directly to
the Recipient at the same time dividends are paid with respect to all other
shares of Common Stock. The Recipient will have the right to vote the
Restricted Shares.
4. Termination of Relationship.
---------------------------
(a) Any Restricted Shares which have not vested prior to or as a
result of the termination of the Recipient's Relationship (as defined in the
Plan) with the Company or any subsidiary will be forfeited upon such
termination. Termination of a Relationship for purposes hereof shall be deemed
to take place upon the earliest to occur of the following:
(i) the date of the Recipient's retirement under the normal
retirement policies of, or with the approval of, the Company
or any subsidiary;
(ii) the date the Recipient receives notice or advice that his
Relationship is terminated;
(iii)the date the Recipient ceases to render services to the
Company or any subsidiary (absences for temporary illness,
emergencies, vacations or leaves of absence of not more than
90 days' duration and approved in writing by the Committee
excepted); or
(iv) the death or disability of the Recipient.
The fact that the Recipient may receive payment from the Company or any
subsidiary after termination for vacation pay, for services rendered prior to
termination, for salary in lieu of notice or for other benefits shall not affect
the Recipient's termination date.
<PAGE>
For purposes hereof, "disability" means termination of employment with the
Company or any subsidiary of the Company with the consent of the Company or such
subsidiary by reason of permanent and total disability within the meaning of
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended.
(b) Nothing contained herein shall be construed to limit or restrict
the right of the Company or any of its subsidiaries to terminate the Recipient's
Relationship with the Company or any subsidiary at any time, with or without
cause, or to increase or decrease the Recipient's compensation from the rate in
existence at the time the Restricted Stock is granted.
5. Amendment. The Committee may from time to time amend the terms of the
---------
grant hereunder in accordance with the terms of the Plan in effect at the time
of such amendment, but no amendment which is unfavorable to the Recipient can be
made without the Recipient's prior written consent (except for amendments or
updates to this Agreement to reflect changes in the law that apply to the
Restricted Shares). No amendment, termination or discontinuance of the Plan may
be made if it will unfavorably affect any of the Restricted Shares previously
granted to the Recipient.
6. Plan Controls. The award of Restricted Stock hereunder shall be
-------------
subject to and governed by the provisions of the Plan (a copy of which is
available for inspection at the Company's executive offices) which the Committee
alone shall have the authority to interpret and construe. In the event of any
conflict between the provisions of this Agreement and the Plan, the Plan shall
govern. All determinations and interpretations thereof made by the Committee
shall be conclusive and binding on all parties hereto and upon their successors
and assigns. All capitalized terms not otherwise defined herein shall have the
same meanings as set forth in the Plan.
<PAGE>
7. Conditions to Issuance of Shares. THE COMPANY'S OBLIGATION TO ISSUE
--------------------------------
RESTRICTED SHARES IS EXPRESSLY CONDITIONED UPON THE COMPLETION BY THE COMPANY OF
ANY REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES UNDER ANY STATE AND/OR
FEDERAL LAW OR RULINGS OR REGULATIONS OF ANY GOVERNMENT REGULATORY BODY OR THE
MAKING OF SUCH INVESTMENT REPRESENTATIONS OR OTHER REPRESENTATIONS AND
AGREEMENTS BY THE RECIPIENT OR ANY PERSON ENTITLED TO RECEIVE THE RESTRICTED
SHARES IN ORDER TO COMPLY WITH THE REQUIREMENTS OF ANY EXEMPTION FROM ANY SUCH
REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES WHICH THE COMMITTEE SHALL, IN
ITS SOLE DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED REPRESENTATIONS
AND AGREEMENTS INCLUDE REPRESENTATIONS AND AGREEMENTS THAT THE RECIPIENT, OR ANY
OTHER PERSON ENTITLED TO RECEIVE THE RESTRICTED SHARES, (A) IS NOT PURCHASING
SUCH SHARES FOR DISTRIBUTION AND (B) AGREES TO HAVE PLACED UPON THE FACE AND
REVERSE OF ANY CERTIFICATES FOR SUCH SHARES A LEGEND SETTING FORTH ANY
REPRESENTATIONS AND AGREEMENTS WHICH HAVE BEEN GIVEN TO THE COMMITTEE OR A
REFERENCE THERETO AND STATING THAT, PRIOR TO MAKING ANY SALE OR OTHER
DISPOSITION OF ANY SUCH SHARES, THE RECIPIENT, OR ANY OTHER PERSON ENTITLED TO
RECEIVE THE RESTRICTED SHARES, WILL GIVE THE COMPANY NOTICE OF INTENTION TO SELL
OR DISPOSE OF THE SHARES NOT LESS THAN FIVE DAYS PRIOR TO SUCH SALE OR
DISPOSITION.
<PAGE>
8. Method of Acceptance. This Agreement is addressed to the Recipient in
--------------------
duplicate and shall not be effective until the Recipient executes the acceptance
below and returns one copy to the Company, thereby acknowledging that the
Recipient has read and agreed to all the terms and conditions of this Agreement
and the Plan.
EXECUTED this day of , 19 .
---- ------------- ---
BIOMERICA, INC.
Name
-------------------------
Title
------------------------
ACCEPTED
Signature of Optionee Date
----------------------- -------------
<PAGE>
Exhibit 5.0
January 3, 1996
Biomerica, Inc.
1533 Monrovia Avenue
Newport Beach, California 92663
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
We are delivering this opinion and consent to you in connection with the
proposed issuance of up to 500,000 shares of common stock, $.04 par value (the
"Plan Shares"), of Biomerica, Inc. (the "Company"), to be issued pursuant to the
Company's 1995 Stock Option and Restricted Stock Plan (the "Plan") and to be
registered with the Securities and Exchange Commission on Form S-8 (the
"Registration Statement").
We have examined such documents and have reviewed such questions of law as we
have considered necessary and appropriate for the purposes of this opinion and,
based thereon, we advise you that, in our opinion, the Plan Shares have been
duly authorized by the Company and, when paid for and delivered in accordance
with the terms of the Plan and the terms of the agreements evidencing the grants
of the options or the awards of the restricted stock, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the above-
referenced Registration Statement.
Very truly yours,
/S/ MIGUEL A. SMITH
Miguel A. Smith
SOLOMON WARD SEIDENWURM & SMITH
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Shareholders
Biomerica, Inc.:
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 21, 1995 appearing in the Annual
Report on Form 10-KSB of Biomerica, Inc. and subsidiaries for the year ended May
31, 1995.
CORBIN & WERTZ
Irvine, California
January 9, 1995
