Registration No.
As filed with the Securities and Exchange Commission on May 21, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BIOPHARMACEUTICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3186327
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
990 Station Road
Bellport, NY 11713
(516) 286-5900
(Address, including zip code, and telephone number,
including are code, or registrant's principal executive offices)
1997 BIOPHARMACEUTICS, INC.
NON-QUALIFIED STOCK COMPENSATION PLAN
(Full title of plan)
Edward Fine
President
Biopharmaceutics, Inc.
990 Station Road
Bellport, NY 11713
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Alfred V. Greco, P.C.
666 Fifth Avenue (14th Floor)
New York, NY 10103
(212) 246-6550
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================== ====================== ====================== ====================== ======================
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered(1) Offering Price Per Aggregate Offering Registration Fee
Registered Share(1) Price(1)
======================== ====================== ====================== ====================== ======================
<S> <C> <C> <C> <C>
Common Stock, par
value $.001 per
share(2)
720,000 $0.60 $432,000 $148,97
======================== ====================== ====================== ====================== ======================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) The shares registered pursuant to this Registration Statement are
available for grant as of the date of this Registration Statement under
the Company's 1997 Non-Qualified Stock Option Plan and available for
issuance pursuant to certain stock option agreements the forms of which
are attached as exhibits to this Registration Statement.
(3) Pursuant to General Instruction E, the registration fee paid in
connection herewith is based on the maximum aggregate price at which
securities covered by this registration statement are Proposed to be
offered.
</FN>
</TABLE>
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1: Plan Information.
The information required by Part I is included in documents to be sent
or given to the participants.
ITEM 2: Registration Information and Employee Plan Annual Information.
Upon written or oral request, Biopharmaceutics, Inc., a Delaware
corporation (the "Registrant") will provide, without charge, a copy of all
documents incorporated by reference in Item 3 of Part II of this Registration
Statement, which are incorporated by reference in the Section 10(a) Prospectus,
and all other documents required to be delivered to employees pursuant to Rule
428(b) promulgated under the Securities Act of 1933, as amended (the "Securities
Act"). All requests should be made to Biopharmaceutics, Inc., att: Edward Fine,
President, 990 Station Road, Bellport, NY 11713, tel no. (516) 286-5800.
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 (the "Commission"), are incorporated in this Registration
Statement by reference:
(a) Quarterly Report on Form 10-Q for the Quarterly Period Ended March 31,
1997.
(b) Annual Report on Form 10-K for the Fiscal Year Ended September 30,
1996.
(c) Quarterly Report on Form 10-Q for the Quarterly Period Ended December
31, 1996.
(d) Quarterly Report on Form 10-Q for the Quarterly Period Ended June 30,
1996.
(e) Quarterly Report on Form 10-Q for the Quarterly Period ended March
31, 1996.
(f) The description of the Common Stock which is contained in the
registration statements filed under the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 14 and
15(d) of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all shares offered hereby have been sold or which
deregisters all shares then remaining unsold, shall be deemed to be incorporated
in this Registration Statement by reference and to be a part hereof from the
date of filing of such documents.
ITEM 4: Description of Securities.
N/A
ITEM 5: Interests of Named Experts and Counsel.
N/A
ITEM 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation generally provide for the
maximum indemnification of a corporation's officers and directors as permitted
by law in the State of Delaware. Delaware law empowers a corporation to
indemnify any person who was or is a party or who is threatened to be made a
party to any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except in the case of
an action by or in the right of the corporation, by reason of the fact that he
or she is or was a director, officer, employee or agent of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise. Depending on the
character of the proceeding, a corporation may indemnify against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding if the person indemnified acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceedings, had no
reasonable cause to believe his or her conduct was unlawful.
A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgement in its favor
by reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or other
enterprise, against expenses, including amounts paid in settlement and
attorney's fees actually and reasonably incurred by him or her in connection
with the defense or settlement of the action or suit if he or she acted in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the corporation. Indemnification may not be
made for any claim, issue or matter as to which such a person has been adjudged
by a court of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the corporation or for amounts paid in settlement to the
corporation unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to above, or in defense of any claim, issue
or matter therein, he or she must be indemnified by the corporation against
expenses, including attorney's fees, actually and reasonably incurred by him in
connection with the defense. Any indemnification under this section, unless
ordered by a court or advanced pursuant to this section, must be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made: (a) by the stockholders; (b) by
the board of directors by majority vote of a quorum consisting of directors who
were not parties to the action, suit or proceeding; (c) if a majority vote of a
quorum consisting of directors who were not parties to the action, suit or
proceeding so orders, by independent legal counsel in a written opinion; or (d)
if a quorum consisting of directors who were not parties to the action, suit or
proceeding cannot be obtained, by independent legal counsel in a written
opinion.
The certificate of incorporation, the bylaws or an agreement made by
the corporation may provide that the expenses of officers and directors incurred
in defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance o the final disposition of the
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he or she is not entitled to be indemnified
by the corporation. The provisions of this section do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
The indemnification and advancement of expenses authorized in or
ordered by a court pursuant to this section: (a) does not exclude any other
rights to which a person seeking indemnification or advancement of expenses may
be entitled under the articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, for either an action in
his or her official capacity or an action in another capacity while holding his
or her office, except that indemnification, unless ordered by a court pursuant
to this section or for the advancement of any director or officer if a final
adjudication establishes that his or her acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action; and (b) continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
ITEM 8: Exhibits.
4.1 1997 Non-Qualified Stock Option Plan.
4.2 Form of Stock Option Agreement between the Registrant and grantee.
5.1 Opinion of Alfred V. Greco, P.C.
23.1 Consent of Alfred V. Greco, P.C. (consent included in Exhibit 5.1).
23.2 Consent of Farber, Blicht & Eyerman
ITEM 9: Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a) (3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information in the
Registration Statement;
(iii) To include any additional or changed material information on the plan
of distribution; provided, however, that paragraphs (1)(i) and (1(ii) above do
not apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is incorporated by reference from periodic reports filed by the
Registrant under the Exchange Act.
(2) That, for determining liability under the Securities Act, to treat
each such post-effective amendment as a new registration statement of the
securities offered, and the offering of such securities at that time to be the
initial bona fide offering.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the end of the
offering.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, the Registrant has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person in the successful defense of any action, suit or
proceeding) is asserted by such director, officers 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 Securities
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 New York, New York, on this day of May 16,1997.
BIOPHARMACEUTICS, INC.
By: /s/ Edward Fine
Edward Fine
Principal Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity in Which Signed Date
/s/ Edward Fine
Edward Fine Chairman of the Board, May 16, 1997
Chief Executive Officer and
Director (Principal
Executive Officer)
/s/ William Kugler
William Kugler Vice President, May 16, 1997
Chief Financial Officer
(Chief Financial Officer
and Principal Accounting
Officer)
/s/ Russell Cleveland
Russell Cleveland Director May 16, 1997
/s/ Jonathan Rosen
Jonathan Rosen Director May 16, 1997
/s/ Barry Weissberg
Barry Weissberg Director May 16, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Edward Fine and William Kugler as his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
and supplements to this Registration Statement, and to file the same with the
Securities and Exchange Commission, granting until said attorneys-in-fact and
agent, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully 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 any of
them or their substitute or 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 by the following persons in the
capacities and on the dates indicated.
Signature Capacity in Which Signed Date
/s/ Edward Fine
Edward Fine Chairman of the Board, May 16, 1997
Chief Executive Officer and
Director (Principal
Executive Officer)
/s/ William Kugler
William Kugler Vice President, May 16, 1997
Chief Financial Officer
(Chief Financial
Officer and Principal
Accounting Officer)
/s/ Russell Cleveland
Russell Cleveland Director May 16, 1997
/s/ Jonathan Rosen
Jonathan Rosen Director May 16, 1997
/s/ Barry Weisberg
Barry Weissberg Director May 16, 1997
<PAGE>
EXHIBIT INDEX
Sequentially
Document Description of Document Numbered Page
4.1 1997 Non-Qualified Stock Option Plan 10
4.2 Form of Stock Option Agreement
between Registrant and Grantee 13
5.1 Opinion of Alfred V. Greco, P.C. 15
23.1 Consent of Alfred V. Greco, P.C. 15
(contained in opinion)
23.2 Consent of Farber, Blicht & Eyerman 16
<PAGE>
Exhibit 4.1
BIOPHARMACEUTICS, INC.
1997 NON-QUALIFIED STOCK OPTION PLAN
1 . Purpose. The purpose of the Biopharmaceutics, Inc. 1997 Non-Qualified
Stock Option Plan (the "Plan"), is to attract and/or retain and to provide an
incentive to, certain independent contractors and consultants of
Biopharmaceutics, Inc. (the "Company"), a Delaware corporation, in connection
with providing services to the Company and to continue to contribute to its
success. As used in the Plan, the term "Code" shall mean the Internal Revenue
Code of 1986, as amended, and any successor statute, and the terms "Parent" and
"Subsidiary" shall have the meanings set forth in Code Sections 424(e) and (f).
This Plan was adopted by the Board of Directors as of March 12,1997.
2. Administration. The Plan shall be administered by a Plan Committee which
shall be established by the Board of Directors of the Company (the "Board").
Members of the Plan Committee shall be appointed, both initially and as
vacancies occur, by the Board. The Board, at any time it so desires, may
increase or decrease, but not below two, the number of members of the Plan
Committee, may remove from membership on the Plan Committee all or any portion
of its members, and may appoint such person or persons as it desires to fill any
vacancy existing on the Plan Committee, whether by removal, resignation or
otherwise. The provisions of the Plan and all option agreements executed
pursuant thereto, and its decisions shall be conclusive and binding upon all
interested persons. Subject to the provisions of the Plan Committee shall have
the sole authority to determine:
(a) The persons (hereinafter, "optionees") to whom options to purchase
shares of Common Stock of the Company ("Stock") shall be granted;
(b) The number of options to be granted to each optionee;
(c) The price to be paid for each share of Stock upon the exercise of each
option;
(d) The period within which each option shall be exercised and, with the
consent of the optionee, any extensions of such period (provided however, that
the original period and all extensions shall not exceed the maximum period under
the Plan).
(e) The terms and conditions of each stock option agreement entered into
between the Company and persons to whom the Company has granted options and of
any amendments thereto (provided that the optionee consents to each such
amendment).
The Plan Committee shall meet at such times and places as it determines,
including by means of a telephone conference call. A majority of the members
shall constitute a quorum, and a decision of a majority of those present at any
meeting at which a quorum is present shall constitute the decision of the Plan
Committee. A memorandum signed by all of the members of the Plan Committee shall
constitute the decision of the Plan Committee without the necessity, in such
event, for holding an actual meeting.
3. Eligibility. Independent contractors, consultants and other persons
providing significant services to the Company shall be eligible to receive
grants of options under the Plan, provided however, that no person shall be
eligible to receive grants of options under the Plan at any time when such
grantee is subject to the provisions of Section 16 of the Securities Exchange
Act of 1934, as amended.
4. Stock Subject to Plan. There shall be reserved for issue, upon the
exercise of options to purchase shares under the Plan, a total of 720,000 shares
of Stock or the number of shares of Stock, which, in accordance with the
provisions of Section 8 hereof, shall be substituted therefor. Such shares may
be treasury shares. If an option granted under the Plan shall expire or
terminate for any reason without having been exercised in full, unpurchased
shares subject thereto shall again be available.
5. Terms of Options.
Nonqualified stock options may be granted under the Plan to consultants,
independent contractors and other persons who provide substantial services to
The Company. Each nonqualified stock option granted under the plan shall be
evidenced by a stock option agreement between the person to whom such option is
granted and the Company. Such stock option agreement shall provide that the
option is subject to the following terms and conditions and to such other terms
and conditions not inconsistent therewith as the Plan Committee may deem
appropriate in each case:
(a) Option Price. The price to be paid for each share of Stock upon the
exercise of an option shall be determined by the Plan Committee at the time the
option is granted, but in no event at a price less than 20% of the fair market
value for the Company's shares on the date the option is granted. As used in
this Plan, the term "date the option is granted" means the date on which the
Plan Committee authorized the grant of an option hereunder or any later date
specified by the Plan Committee.
(b) Period. The periods, during which an option to purchase shares may be
exercised, shall be determined by the Plan Committee at the time the option is
granted, but in no event shall such period exceed 5 years from the date this
Plan is adopted.
(c) Payment for Stock. The option exercise price for each share of Stock
purchased hereunder shall be paid in full at the time of purchase. The Plan
committee may provide that the purchase price be payable at the election of the
optionee, with the consent of the Plan Committee, in whole or in part either in
cash or by cancellation of all or part of any outstanding indebtedness of the
Company to the optionee on the date on which the option is exercised. No share
of Stock shall be issued until full payment therefor has been made, and no
optionee shall have any rights as an owner of shares of Stock until the date of
issuance to him of the stock certificate evidencing such Stock.
6. Non-Transferability of Option. The options granted pursuant to the Plan
are non-transferable except by will or the laws of descent and distribution of
the state or country of the optionee's domicile at time of death.
7. Termination of Relationship. Unless otherwise specified in the
applicable option agreement upon termination of the optionee's other
relationship with the Company, his rights to exercise options then held by him
shall be only as follows (in no case do the time periods referred to below
extend the terms specified in any option):
8. Adjustment of Shares.
(a) In the event of changes in the outstanding Stock by reason of stock
dividends, split-ups, consolidations, recapitalizations, reorganizations or like
events (as determined by the Plan Committee), an appropriate adjustment shall be
made by the Plan Committee in the number of shares reserved under the Plan, in
the number of shares set forth in Section 4 hereof. The determination of the
Plan committee as to what adjustments shall be made shall be conclusive. The
Plan Committee shall give prompt notice to all grantees of any adjustment
pursuant to this Section.
(b) Termination of Options on Merger, Reorganization or Liquidation of the
Company. Notwithstanding anything to the contrary in this Plan, in the event of
any merger, consolidation or other reorganization of the Company in which the
Company is not the surviving or continuing corporation (as determined by the
Plan Committee) or in the event of the liquidation or dissolution of the
Company, all options granted hereunder shall terminate on the effective date of
the merger, consolidation, reorganization, liquidation or dissolution unless
there is an agreement with respect thereto which expressly provides for the
assumption of such options by the continuing or surviving corporation.
9. Securities Law Requirements. The Company's obligation to issue shares of
its Stock upon grant 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 and regulations of any government regulatory body or the
making of such investment representations or other representations and
undertakings by the grantee (or his legal representative, heir or legatee, as
the case may be) in order to comply with the requirements of any exemption from
any such registration or other qualification of such shares which the Company in
its sole discretion shall deem necessary or advisable. The Company may refuse to
permit the sale or other disposition of any shares acquired pursuant to any such
representation until it is satisfied that such sale or other disposition would
not be in contravention of applicable state or federal securities law.
10. Tax Withholding. As a condition to the exercise of an option or
otherwise, the Company may require an optionee to pay over the Company all
applicable federal, state and local taxes which the Company is required to
withhold with respect to the exercise of an option granted hereunder. At the
discretion of the Plan Committee and upon the request of an optionee, the
minimum statutory statutory withholding tax requirements may be satisfied by the
withholding of shares of Stock otherwise issuable to the optionee upon the
exercise of an option.
11. Amendment. The Board may amend the Plan at any time.
12. Effective Date. The Plan shall be effective upon the date of its
adoption by the Board.
13. Termination. The Plan shall terminate automatically as of the close
of business on the day preceding the fifth anniversary date of its effectiveness
or earlier by resolution of the Board, or upon consummation of any merger,
consolidation or other reorganization in which the options granted hereunder
terminate, all as described in Section 9(b) hereof.
14. Stock Option Agreement. Each option granted under the Plan shall be
evidenced by a written agreement executed by the Chief Executive Officer of the
Corporation and accepted by the optionee, which (i) shall contain each of the
provisions and agreements herein specifically required to be contained therein,
(ii) may contain the agreement of the optionee to render services to the
Corporation or any Subsidiary for a period of time to be determined by the Plan
Committee, and (iii) may contain such other terms and conditions as the Plan
Committee deems desirable and which are not inconsistent with the Plan.
15. No Right to Perform Services. Nothing in this Plan shall confer upon
any optionee any right to continue to perform services for the Company, or shall
interfere with or restrict in any way the rights of the Company to discharge or
terminate any employee, independent contractor or consultant at any time for any
reason whatsoever, with or without good cause.
Executed and dated as of the date first written above at New York, New York.
BIOPHARMACEUTICS, INC.
By: /s/ Edward Fine
Edward Fine
Chief Executive Officer
<PAGE>
Exhibit 4.2
BIOPHARMACEUTICS, INC.
a Delaware corporation
NON-QUALIFIED STOCK OPTION AGREEMENT
Name of Optionee Date Option Granted
Address No. __________
This Agreement ("Agreement") is made as of the date set forth above between
Biopharmaceutics, Inc., a Delaware corporation (hereinafter the "Company"), and
the optionee named above (hereinafter "Optionee"). The option granted by this
Agreement is designated a "Non-Qualified Option" granted pursuant to the
Biopharmaceutics, Inc., 1997 Non-Qualified Stock Option Plan dated March 12,
1997 (the "Plan").
1. Grant of Option. Pursuant to and subject to the terms and conditions of
the Agreement, the Company grants to the Optionee, a consultant to the Company,
the right and option (the "Option") to purchase at $._____ per share on the
terms and conditions hereinafter set forth all or any part of an aggregate of
__________ shares (the "Shares") of the currently authorized and unissued Common
Stock, par value $.001 per share. The Option shall be exercisable, in whole or
in part, during the period commencing with the date on which it is granted and
ending on December 31, 1997. Nothing contained herein shall be construed to
limit or restrict the right of the Company or a parent or subsidiary corporation
of the Company to terminate the Optionee's services for the Company.
2. Method of Exercise. The Option may be exercised pursuant thereto by
written notice to the Company stating the number of shares with respect to which
the option is being exercised, together with payment in full, or by written
acknowledgment, duly executed by the Optionee, of cancellation of indebtedness
for services rendered to the Company, of the purchase price for the number of
Shares being purchased. Optionee hereby acknowledges that, as of the date of
this Agreement, the aggregate exercise price for the Options reflects the full
amount owing by the Company for services rendered or otherwise, and that these
Options represent satisfaction in full of all amounts owing by the Company to
Optionee. If requested by the Board of Directors, prior to the delivery of any
Shares, the Optionee shall supply the Board of Directors 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 payment of any transfer or issue tax by the
Optionee, deliver to the Optionee or any 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 purchased upon exercise of the
Option. 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 then exercisable, provided that a partial
exercise may not be for fewer than 100 Shares, unless the remaining shares
exercisable under the Option is for less than 100 Shares. The Option may be
exercisable for whole shares only.
3. Termination of Option. The Option shall terminate and expire immediately
and in total upon the earlier of:
(a) The expiration date of the Option as specified in Section 1 of this
Agreement; or
(b) The date of termination of the Option pursuant to Section 5
hereof.
This Option shall survive and be exercisable notwithstanding that Optionee
shall (i) terminate its relationship with the Company, (ii) cease to provide
services to the Company or (iii) otherwise be subject to the provisions of
Section 7(a)-(d) of the Plan, and shall terminate only as provided in Section
3(a) or (b) of this Agreement.
4. Adjustments. If there is any change in the capitalization of the Company
affecting in any manner the number or kind of outstanding shares of Common Stock
of the Company, 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 5 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 Board of Directors; provided, however, that in no
event shall any such adjustment result in the Company's being required to sell
or issue any fractional shares. Any such adjustment shall be made without change
in the aggregate purchase price applicable to the unexercised portion of the
Option, but with an appropriate adjustment to the price of each Share or other
unit of security covered by this Option.
5. Cessation of Corporate Existence. Notwithstanding any other provision of
this Option, 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 substantially all the assets of the Company or of more than 50%
of the then outstanding stock of the Company to another corporation or other
entity, the Option granted hereunder shall terminate; provided, however, that:
(i) each Option for which no option has been tendered by the surviving
corporation in accordance with all of the terms of provision (ii) immediately
below shall, within five days before the effective date of such dissolution or
liquidation, merger or consolidation or sale of assets in which the Company is
not the surviving corporation or sale of stock, become fully exercisable; or
(iii) in its sole and absolute discretion, the surviving corporation may, but
shall not be so obligated to, tender to any Optionee, an option to purchase
shares of the surviving corporation, and such new option or options shall
contain such terms and provisions as shall be required substantially to preserve
the rights and benefits of this Option.
6. 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. Upon any attempted transfer of this
Option contrary to the provisions hereof, the Board of Directors may, at its
discretion, terminate this option.
7. No Stockholder Rights. The Optionee or other person entitled to exercise
this 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 adjustment as
may be effected pursuant to the provisions of Section 4 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.
8. Method of Acceptance. This Agreement is addressed to the optionee in
duplicate and shall not be effective until the Optionee has executed the
acceptance below and returned one copy to the Company, thereby acknowledging
that he has read and agreed to all the terms and conditions of this Agreement.
Executed by the Company as of this _____ date of _______________, 1997.
BIOPHARMACEUTICS, INC.
a Delaware corporation
By: _______________________
ACCEPTED:
("Optionee")
By: __________________________ __________________________
Date
<PAGE>
Exhibit 5.1
ALFRED V. GRECO,P.C. 23.1
A Professional Corporation
666 Fifth Avenue (14th Floor)
New York, N.Y. 10108
Alfred V. Greco Tel.212-246-6550
Attorney At Law Fax 212-582-0176
May 19, 1997
Securities and Exchange Commission
450 Fifth Street,N.W.
Washington, D.C. 20549
Re: Biopharmaceutics, Inc. (the "Company")
Form S-8 Registration Statement
Gentlemen:
The undersigned is required to render an opinion concerning the filing of a
Form s-8 Registration statement registering 720,000 shares pursuant to the
Company's 1997 Non-Qualified Stock Option Plan (the "Plan"). In this
connection the undersigned has among other things, reviewed the Plan,the
Form S-8 Registration Statement, Prospectus, Form of Option, the minutes and
by-laws of the corporation, corporate records and other filings with the
Securities and Exchange Commission, consulted with the principals of the
Company and engaged in such other research and review as deemed applicable and
pertinent hereto.
Based upon the results of such inguiry and knowledge and information gleaned
from the various documentation, the undersigned is of the opinion that the
720,000 shares which are the subject of the registration statement,have been
properly and duly reserved for issuance pursuant to the Company's Plan and
such shares, issuable upon exercise of options granted pursuant to the Plan by
the Company's Board of Directors, when issued upon receipt of payment
therefor,will be validly issued, fully paid and nonassessable.
The undersigned hereby consents to the use of its name and all references to
this firm in the Form S-8 Registration Statement covering shares reserved
under its 1997 Non-Qualified Stock Option Plan.
Very truly yours,
Alfred V. Greco, P.C.
/s/ Alfred V. Greco
Alfred V. Greco
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors of
Biopharmaceutics, Inc.
Bellport, New York
We hereby consent to the inclusion of our report on the
consolidated financial statements and schedules of Biopharmaceutics,
Inc. for the year ended September 30, 1996 in the Form S-8 Registration
Statement covering shares reserved under its 1997 Non-qualified Stock
Option Plan.
/s/ Farber, Blicht & Eyerman, LLP
Plainview, New York
May 20, 1997
