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)
BIOPHARMACEUTICS, INC.
1997 EMPLOYEE AND CONSULTANT 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)
6,500,000 $0.60 $3,900,000 $1,344.83
======================== ====================== ====================== ====================== ======================
<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 Employee and Consultants 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) 286-5900.
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 7: Not Applicable
ITEM 8: Exhibits.
4.1 1997 Employee and Consultant 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 Weiseberg
Barry Weissberg Director May 16, 1997
<PAGE>
EXHIBIT INDEX
Sequentially
Document Description of Document Numbered Page
4.1 1997 Employee and Consultant Stock Option Plan 10
4.2 Form of Stock Option Agreement
between Registrant and Grantee 16
5.1 Opinion of Alfred V. Greco, P.C. 18
23.1 Consent of Alfred V. Greco, P.C.
(contained in opinion) 18
23.2 Consent of Farber, Blicht & Eyerman 19
<PAGE>
Exhibit 4.1
BIOPHARMACEUTICS, INC.
1997 EMPLOYEE AND CONSULTANT STOCK OPTION PLAN
SECTION 1
PURPOSES.
BIOPHARMACEUTICS, INC. (the "Company") desires to afford certain of its
key employees, officers and consultants who are responsible for the continued
growth of the Company an opportunity to acquire a proprietary interest in the
Company, and thus to create in such individuals an increased in and greater
concern for the welfare of the Company and its subsidiaries.
The Company, by means of this Employee and Consultant Stock Option Plan
(the "Plan"), seeks to retain the services of persons now holding key positions
and to secure the services of persons capable of filling such positions.
The stock options offered pursuant to the Plan are a matter of separate
inducement and are not in lieu of any salary or other compensation for the
services of any key employee or consultant.
The stock options granted under the Plan are intended to be either
incentive stock options within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended, or options that do not meet the requirements
for incentive stock options.
SECTION 2
DEFINITIONS.
As used in the Plan, the following terms shall have the meanings set
forth below:
(a) "Affiliate" shall mean (i) any entity that, directly or indirectly
through one or more intermediaries, is controlled by the Company and (ii) any
entity in which the Company has a significant equity interest.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any regulations promulgated thereunder.
(c) "Committee" shall mean a committee of the Board of Directors of the
Company designated by such Board to administer the Plan, which shall consist of
not less than two (2) "Non-Employee Directors," as such term is defined in Rule
16b-3(b)(3)(i) promulgated under the Securities Exchange Act of 1934, as
amended, each having the requisite qualifications thereunder to satisfy the
requirements of Rule 16b-3.
(d) "Company" shall mean "BIOPHARMACEUTICS, INC.", a Delaware corporation.
(e) "Eligible Person" shall mean any employee, officer or consultant
providing services to the Company or any Affiliate who the Committee determines
to be an Eligible Person. A director of the Company who is not also an employee
of the Company or an Affiliate shall not be an Eligible Person.
(f) "Fair Market Value" shall mean the closing "bid" price of the Company's
Shares on the date in question as quoted on the Electronic Bulletin Board of the
National Association of Securities Dealers or its Automated Quotation System
("NASDAQ") or on any successor national stock exchange on which the Common Stock
is then traded, provided, however, that if on the date in question there is no
public market for the Company's Shares and they are neither quoted on "NASDAQ"
nor traded on a national securities exchange, then the Committee shall, in its
sole discretion and best judgment, determine the Fair Market Value.
(g) "Incentive Stock Option" shall mean an option granted under the Plan
that is intended to meet the requirements of Section 422 of the Code or any
successor provision.
(h) "Non-Qualified Stock Option" shall mean an option granted under the
Plan that is not intended to be an Incentive Stock Option.
(i) "Option" shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
(j) "Option Agreement" shall mean any written agreement, contract or
document evidencing any Option granted under the Plan.
(k) "Participant" shall mean an Eligible Person designated to be granted an
Option under the Plan.
(l) "Person" shall mean any individual, corporation, partnership,
association, limited liability company, association or trust.
(m) "Plan" shall mean this 1996 Employee and Consultant Stock Option Plan,
as amended from time to time.
(n) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended, or
any successor rule or regulation.
(o) "Shares" shall mean shares of Common Stock, $.001 par value, of the
Company.
SECTION 3
ADMINISTRATION.
(a) Power and Authority of the Committee. The Plan shall be administered by
the Committee. Subject to the express provisions of the Plan and to applicable
law, the Committee shall have full power and authority to: (i) designate
Participants; (ii) determine the types of Options (e.g., whether Incentive Stock
Options or Non-Qualified Stock Options) to be granted to each Participant under
the Plan; (iii) determine the number of Shares to be covered by each Option;
(iv) determine the terms and conditions of any Option Agreement; (v) amend the
terms and conditions of any Option Agreement and accelerate the exercisability
of Options covered thereunder; (vi) determine whether, to what extent and under
what circumstances Options may be exercised in cash, Shares or other property,
or canceled, forfeited or suspended; (vii) determine whether, to what extent and
under what circumstances Options shall be deferred either automatically or at
the election of the holder thereof or the Committee; (viii) interpret and
administer the Plan and any instrument or Option Agreement relating to, or
Option granted under the Plan; (ix) establish, amend, suspend or waive such
rules and regulations and appoint such agents as it shall deem appropriate for
the proper administration of the Plan; and (x) make any other determination and
take any other action that the Committee deems necessary or desirable for the
administration of the Plan. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations and other decisions under or with
respect to the Plan or any Option shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive and binding
upon any Participant, any holder or beneficiary of any Option granted under the
Plan and any employee of the Company or any Affiliate.
SECTION 4
AVAILABLE SHARES SUBJECT TO OPTION.
(a) Shares Available. The total number of Shares for which Options may be
granted pursuant to the Plan shall be 6,500,000 Shares of the Common Stock in
the aggregate, subject to adjustment as provided in Section 4(c). If any Shares
covered by an Option or to which an Option relates are not purchased or are
forfeited, or if an Option otherwise expires, then the number of Shares counted
against the aggregate number of Shares available under the Plan with respect to
such Option, to the extent of any such forfeiture or termination, shall again be
available for Options under the Plan.
(b) Accounting for Shares Covered by an Option. For purposes of this
Section 4, the number of Shares covered by an Option shall be counted on the
date of grant of such Option against the aggregate number of Shares available
for granting Options under the Plan.
(c) Adjustments. In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Shares, other
securities or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Shares or other securities of the Company, issuance of
warrants or other rights to purchase Shares or other securities of the Company
or other similar rights to purchase Shares or other securities of the Company or
other similar corporation transaction or event affects the Shares subject to
Option grants under the Plan such that an adjustment is determined by the
Committee to be appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan,
then the Committee shall, in such manner as it may deem equitable, adjust any or
all of (i) the number of Shares which may thereafter be made the subject of
Options; (ii) the number of Shares subject to outstanding Option awards; (iii)
the purchase or exercise price with respect to any Option, provided, however,
that the number of Shares covered by an Option or to which such Option relates
shall always be a whole number.
(d) Incentive Stock Options. Notwithstanding the foregoing, the number of
Shares available for granting Incentive Stock Options under the Plan shall not
exceed 5,000,000, subject to adjustment as provided in the Plan and Section 422
or 424 of the Code or any successor provisions.
SECTION 5
ELIGIBILITY.
Any Eligible Person shall be eligible to be designated a Participant. In
determining which Eligible Persons shall receive an Option and the terms of any
Option, the Committee may take into account the nature of the services rendered
by the respective Eligible Persons, their present and potential contributions to
the success of the Company or such other factors as the Committee, in its
discretion, shall deem relevant. Notwithstanding the foregoing, an Incentive
Stock Option may only be granted to fall or part-time employees (which term as
used herein includes, without limitation, officers and directors who are also
employees) and an Incentive Stock Option shall not be granted to an employee of
an Affiliate unless such Affiliate is also a "subsidiary corporation" of the
Company within the meaning of Section 424(f) of the Code or any successor
provision.
SECTION 6
OPTION AWARDS.
The Committee is hereby authorized to grant Options to Participants with
the following terms and conditions and with such additional terms and conditions
not inconsistent with the provisions of the Plan as the Committee shall
determine:
(i) Exercise Price. The purchase price per Share purchasable under an
Option shall be determined by the Committee, provided, however, that such
purchase price shall not be less than 100% of the Fair Market Value of a Share
on the date of grant of such Option, provided further, however, that in the case
of an Incentive Stock Option granted to a Participant who, at the time such
Option is granted, owns Shares of the Company or shares of any subsidiary
corporation or parent corporation of the Company which possesses more than ten
percent (10%) of the total combined voting power of all classes of shares of the
Company or of any subsidiary corporation or parent corporation of the Company
(hereinafter, a "10% Shareholder), the purchase price for each Share shall be
such amount as the Committee in its best judgment shall determine to be not less
than one hundred ten percent (110%) of the Fair Market Value per Share at the
date the Incentive Stock Option is granted. In determining stock ownership of a
Participant for any purposes under the Plan, the rules of Section 424(d) of the
Code shall be applied, and the Committee may rely on representations of fact
made to it by Participant and believed by it to be true.
(ii) Option Term. The term of each Option shall be fixed by the
Committee which in any event shall not exceed a term of ten (10) years from the
date of the grant, provided, however, that the term of any Incentive Stock
Option granted to any 10% Shareholder shall not be exercisable after the
expiration of five (5) years from the date such Incentive Stock option was
granted.
(iii) Maximum Grant of Incentive Stock Options. The aggregate Fair
Market Value (determined on the date the Incentive Stock Option is granted) of
Shares subject to an Incentive Stock Option (when first exercisable) granted to
a Participant by the Committee in any calendar year shall not exceed $ .
(iv) Time and Method of Exercise. Subject to the provisions of the
Plan, the Committee shall determine the time or times at which an Option may be
exercised in whole or in part and the method or methods by which, and the form
or forms (including, without limitation, cash, Shares, promissory notes, other
securities, other property, or any combination thereof, having a Fair Market
Value on the exercise date equal to the relevant exercise price) in which,
payment of the exercise price with respect thereto may be made or deemed to have
been made.
(v) Limits on Transfer of Options. No Option shall be transferable by a
Participant otherwise than by will or by the laws of descent and distribution;
provided, however, that, if so determined by the Committee, a Participant may,
in the manner established by the Committee, designate a beneficiary or
beneficiaries to exercise the rights of the Participant and receive any Shares
purchased with respect to any Option upon the death of the Participant. Each
Option shall be exercisable during the Participant's lifetime only by the
Participant or, if permissible under applicable law, by the Participant's
guardian or legal representative. No Option or Shares underlying any Option
shall be pledged, alienated, attached or otherwise encumbered, and any purported
pledge, alienation, attachment or encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.
(vi) Restrictions; Securities Exchange Listing. All certificates for
Shares delivered upon the exercise of Options under the Plan shall be subject to
such stop transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations and other requirements of the
Securities and Exchange Commission and any applicable federal or state
securities laws, and the Committee may cause a legend or legends to be placed on
such certificates to make appropriate reference to such restrictions. If the
Shares or other securities are traded on a national securities exchange, the
Company shall not be required to deliver any Shares covered by an Option unless
and until such Shares have been admitted for trading on such securities
exchange.
(vii) Termination of Employment.
(A) Upon termination of the employment or consultancy, as the case may be,
of any Participant, an Option previously granted to the Participant, unless
otherwise specified by the Committee in the Option, shall, to the extent not
theretofore exercised, terminate and become null and void, provided that:
(a) if the Participant shall die while in the employ of the Company or
during either the three (3) month or one (1) year period, whichever is
applicable, specified in clause (b) below and at a time when such
Participant was entitled to exercise an Option as herein provided, the
legal representative of such Participant, or such Person who acquired
such Option by bequest or inheritance or by reason of the death of the
Participant, may, not later than one (1) year from the date of death,
exercise such Option, to the extent not theretofore exercised, in
respect of any or all of such number of Shares as specified by the
Committee in such Option; and
(b) with respect to Participants who are employees, if the employment
of any employee to whom such Option shall have been granted shall
terminate by reason of the Employee's retirement (at such age or upon
such conditions as shall be specified by the Board of Directors),
disability (as described in Section 22(e)(3) of the Code) or dismissal
by the employer other than for cause (as defined below), and while such
employee Participants entitled to exercise such option as herein
provided, such employee Participant shall have the right to exercise
such Option so granted, to the extent not theretofore exercised, in
respect of any or all of such number of Shares as specified by the
Committee in such Option, at any time up to and including (i) three (3)
months after the date of such termination of employment in the case of
termination by reason of retirement or dismissal other than for cause
and (ii) one (1) year after the date of termination of employment in
the case of termination by reason of disability.
(B) If a Participant voluntarily terminates his or her employment or
consultancy, as the case may be, or is discharged for cause, any Option granted
hereunder shall, unless otherwise specified by the Committee in the Option,
forthwith terminate with respect to any unexercised portion thereof.
(C) If an Option granted hereunder shall be exercised by the legal
representative of a deceased or disabled Participant, or by a person who
acquired an Option granted hereunder by bequest or inheritance or by reason of
death of any such person, written notice of such exercise shall be accompanied
by a certified copy of letters testamentary or equivalent proof of the right of
such legal representative or other person to exercise such Option.
(D) For all purposes of the Plan, the term "for cause" shall mean, (i) with
respect to a Participant who is a party to a written employment or consultancy
agreement with the Company, as the case may be, which contains a definition of
"for cause" or "cause" (or words of like import) for purposes of termination of
employment or consultancy thereunder by the Company, "for cause" or "cause" as
defined in the most recent of such agreements, or (ii) in all other cases, as
determined by the Committee, in its sole discretion, that one or more of the
following has occurred: (W) any failure by a Participant to substantially
perform his or her employment or consultancy duties, as the case may be, which
shall not have been corrected within thirty (30) days following written notice
thereof, (X) any engaging by such Participant in misconduct or, in the case of
an officer Participant, any failure or refusal by such officer Participant to
follow the directions of the Company's Board of Directors or Chief Executive
Officer of the Company which, in either case, is injurious to the Company or any
Affiliate, (Y) any breach by a Participant of any covenant contained in the
instrument pursuant to which an Option is granted, or (Z) such Participant's
conviction of or entry of a plea of nolo contendere in respect of any felony, or
of a misdemeanor which results in or is reasonably expected to result in
economic or reputational injury to the Company or any of its Affiliates.
SECTION 7
AMENDMENT AND TERMINATION; ADJUSTMENTS.
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Option Agreement or in the Plan:
(a) Amendments to the Plan. The Board of Directors of the Company may
amend, alter, suspend, discontinue or terminate the Plan; provided, however,
that, notwithstanding any other provision of the Plan or any Option Agreement,
without the approval of the stockholders of the Company, no such amendment,
alteration, suspension, discontinuation or termination shall be made that,
absent such approval:
(i) would cause Rule 16b-3 to become unavailable with respect to the Plan;
(ii) would violate the rules or regulations of any national securities
exchange on which the Shares of the Company are traded or the rules or
regulations of the National Association of Securities Dealers, Inc. that are
applicable to the Company; or
(iii) would cause the Company to be unable, under the Code, to grant
Incentive Stock Options under the Plan.
(b) Amendments to Option Grants. The Committee may waive any conditions
or rights of the Company under any outstanding Option grant, prospectively or
retroactively. The Committee may not amend, alter, suspend, discontinue or
terminate any outstanding Option grant, prospectively or retroactively, without
the consent of the Participant or holder or beneficiary thereof, except as
otherwise herein provided.
(c) Correction of Defects, Omissions and Inconsistencies. The Committees
may correct any defect, supply any omission or reconcile any inconsistency in
the Plan or any Option in the manner and to the extent it shall deem desirable
to carry the Plan into effect.
SECTION 8
INCOME TAX WITHHOLDING; TAX BONUSES.
(a) Withholding. In order to comply with all applicable federal or state
income tax laws or regulations, the Company may take such action as it deems
appropriate to ensure that all applicable federal or state payroll, withholding,
income or other taxes, which are the sole and absolute responsibility of a
Participant, are withheld or collected from such Participant. In order to assist
a Participant in paying all or a portion of the federal and state taxes to be
withheld or collected upon exercise of any Option, the Committee, in its
discretion and subject to such additional terms and conditions as it may adopt,
may permit the Participant to satisfy such tax obligation by (i) electing to
have the Company withhold a portion of the Shares otherwise to be delivered upon
exercise of any Option with a Fair Market Value equal to the amount of such
taxes or (ii) delivering to the Company Shares other than the Shares issuable
upon exercise of the applicable Option with a Fair Market Value equal to the
amount of such taxes. The election, if any, must be made on or before the date
that the amount of tax to be withheld is determined.
(b) Tax Bonuses. The Committee, in its discretion, shall have the
authority, at the time of grant of any Option under this Plan or at any time
thereafter, to approve cash bonuses to designated Participants to be paid upon
their exercise in order to provide funds to pay all or a portion of federal and
sate taxes due as a result of such exercise. The Committee shall have full
authority in its discretion to determine the amount of any such tax bonus.
SECTION 9
GENERAL PROVISIONS.
(a) No Rights to Option Grants. No Eligible Person, Participant or other
Person shall have any claim to be granted an Option under the Plan, and there is
no obligation for uniformity of treatment of Eligible Persons, Participants or
holders or beneficiaries of Options granted under the Plan. The terms and
conditions of Options need not be the same with respect to any Participant or
with respect to different Participants.
(b) Option Agreements. No Participant will have rights under an Option
granted to such Participant unless and until an Option Agreement shall have been
duly executed on behalf of the Company. Each Option Agreement shall set forth
the terms and conditions of any Option granted to a Participant consistent with
the provisions of this Plan.
(c) No Limit on Other Compensation Arrangements. Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or continuing in
effect other or additional compensation arrangements, and such arrangements may
be either generally applicable or applicable only in specific cases.
(d) No Right to Employment. The grant of an Option shall not be construed
as giving a Participant the right to be retained in the employ of the Company or
any Affiliate, nor will it affect in any way the right of the Company or an
Affiliate to terminate such employment at any time, with or without cause. In
addition, the Company or an Affiliate may at any time dismiss a Participant from
employment free from any liability or any claim under the Plan, unless otherwise
expressly provided in the Plan or in any Option Agreement.
(e) Governing Law. The validity, construction and effect of the Plan or any
Option granted hereunder, and any rules and regulations relating to the Plan or
any Option granted hereunder, shall be determined in accordance with the laws of
the State of Connecticut except to the extent preempted by Federal law.
(f) Severability. If any provision of the Plan or any Option is or becomes
or is deemed to be invalid, illegal or unenforceable in any jurisdiction or
would disqualify the Plan or any Option under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be so construed or deemed amended without, in
the determination of the Committee, materially altering the purpose or intent of
the Plan or the Option, such provision shall be stricken as to such jurisdiction
or Option, and the remainder of the Plan or any Option shall remain in full
force and effect.
(g) Section Headings. The section headings included herein are only for
convenience, and they shall have no effect on the interpretation of the Plan.
SECTION 10
EFFECTIVE DATE OF THE PLAN.
The Plan shall be effective on March 12, 1997 (the "Plan Effective Date"),
subject to approval by the Company's stockholders within one (1) year
thereafter.
SECTION 11
TERM OF THE PLAN.
Unless the Plan shall have been discontinued or terminated as provided
in Section 7(a), the Plan shall terminate on March 12, 2007. No Option shall be
granted after the termination of the Plan. However, unless otherwise expressly
provided in the Plan or in an applicable Option Agreement, any Option
theretofore granted may extend beyond the termination of the Plan, and the
authority of the Committee provided for hereunder with respect to the Plan and
any Option grants, and the authority of the Board of Directors of the Company to
amend the Plan, shall extend beyond the termination of the Plan.
IN WITNESS WHEREOF, this Plan has been executed at Bellport, New York, on
this day of March 12, 1997.
BIOPHARMACEUTICS, INC.
By /s/ Edward Fine
President and
Chief Executive Officer
<PAGE>
Exhibit 4.2
Stock Option Agreement
The Board of Directors of Biopharmaceutics, Inc. (the "Company") has
authorized and approved, and the Company's stockholders have approved, the 1997
Employee and Consultant Stock Option Plan (the "Plan"). The Plan provides for
the grant of Options to employees including officers and directors and
consultants of the Company. Unless otherwise provided herein all defined terms
shall have the respective meanings ascribed to them under the Plan.
1.Grant of Option. Pursuant to authority granted to it by the Board of
Directors and under the Plan, the Committee responsible for administering the
Plan hereby grants to you,__________________ as an employee of the Company and
as of____________ , 1997 (the "Grant Date"), the following
Options____________________________________________________ Each Option permits
you to purchase one share of the Company's Common Stock, $.001 par value per
share.
2.Character of Options. Pursuant to the Plan, Options granted herein may be
Incentive Stock Options or Non-Qualified Stock Options, or both. To the extent
permitted under the Plan and by law, such Options shall first be considered
Incentive Stock Options.
3.Exercise Price. The Exercise Price for each Non-Qualified Stock Option
granted herein shall be $____ per Share, and the exercise price for each
Incentive Stock Option granted herein shall be $____ per Share. It is agreed and
determined by the Committee that the Fair Market Value of the Company's Common
Stock subject to the Options herein on the date of grant is $______ per Share.
4. Payment of Exercise Price. Options represented hereby may be exercised
in whole or in part by you by delivering to the Company your payment of the
Exercise Price of the Option(s) so exercised in cash, Shares, or in such form
permitted under the Plan, or any combination thereof, having a Fair Market Value
on the exercise date equal to the relevant exercise price of the relevant
Options being exercised.
5. Term of Options. The term of each Option granted herein shall be for a
term of ten (10) years from the Grant Date, provided, however, that the term of
any Incentive Stock Option granted herein shall not be exercisable after the
expiration of five (5) years from the Grant Date.
6. Limits on Transfer of Options. The Options granted herein shall not be
transferable by you otherwise than by will or by the laws of descent and
distribution; provided, however, that you may designate a beneficiary or
beneficiaries to exercise your rights and receive any Shares purchased with
respect to any Option upon your death. Each Option shall be exercisable during
your lifetime only by you or, if permissible under applicable law, by your legal
representative. No Option herein granted or Shares underlying any Option shall
be pledged, alienated, attached or otherwise encumbered, and any purported
pledge, alienation attachment or encumbrance thereof shall be void and
unenforceable against the Company or any Affiliate.
7. Termination of Employment. (A) Upon the termination of your employment
with the Company, and to the extent not theretofore exercised, your Options
shall continue to be valid, provided, however, that:
(a) if you die while in the employ of the Company or during either the
three (3) month or one (1) year period, whichever is applicable,
specified in clause (b) below and at a time when you otherwise would
have been entitled to exercise Options as herein provided, your legal
representative, or any Person who acquires such Options by bequest or
inheritance or by reason of your death, may, not later than one (1)
year from the date of death, exercise such Options, to the extent not
theretofore exercised, in respect of any or all of such number of
Shares; and
(b) if your employment shall terminate by reason of retirement (at such
age or upon such conditions as shall be specified by the Board of
Directors), disability (as described in Section 22(c)(3) of the Code)
or dismissal by the Company other than for cause (as defined below),
and while you are entitled to exercise such Options as herein provided,
you shall have the right to exercise such Options so granted, to the
extent not theretofore exercised, in respect of any or all of such
number of Shares, at any time up to and including (i) three (3) months
after the date of such termination of employment in the case of
termination by reason of retirement or dismissal other than for cause
and (ii) one (1) year after the date of termination of employment in
the case of termination by reason of disability.
(B) If you voluntarily terminate your employment, or are
discharged for cause, any Options granted hereunder shall forthwith terminate
with respect to any unexercised portion thereof.
(C) If any Options granted hereunder shall be exercised by your
legal representative of you should die or become disabled, or by any person who
acquired any Options granted hereunder by bequest or inheritance or by reason of
death of any such person written notice of such exercise shall be accompanied by
a certified copy of letters testamentary or equivalent proof of the night of
such legal representative or other person to exercise such Options.
(D) For all purposes of the Plan, the term "for cause" shall mean
"cause" as defined in your employment agreement with the Company.
8. Restrictions, Securities Exchange Listing. All certificates for
Shares delivered upon the exercise of Options granted herein shall be subject to
such stop transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations and other requirements of the
Securities and Exchange Commission ("SEC") and any applicable federal or state
securities laws, and the Committee may cause a legend or legends to be placed on
such certificates to make appropriate reference to such restrictions. If the
Shares or other securities are traded on a national securities exchange, the
Company shall not be required to deliver any Shares covered by an Option unless
and until such Shares have been admitted for trading on such securities
ex
<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 6,520,000 shares pursuant to the
Company's 1997 Employeee and Consultant 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 6,500,000 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 Employee and Consultant 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 Employee and Consultant Stock Option Plan.
/s/ Farber, Blicht & Eyerman, LLP
Plainview, New York
May 20, 1997
