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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON March 15, 2000
Registration No. 333- ___________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VIRAGEN (EUROPE) LTD.
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(Exact name of registrant as specified in its charter)
Delaware 11-2788282
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
865 S.W. 78th Avenue, Suite 100
Plantation, FL 33324
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(Address of Principal Executive Offices)
Viragen (Europe) Ltd. 1997 Stock Option Plan
Stock Option Agreement with a Key Executive
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(Full title of the plan)
Copies to:
Gerald Smith James M. Schneider, Esq.
Chairman of the Board Atlas, Pearlman, Trop & Borkson, P.A.
Viragen (Europe) Ltd. 350 East Las Olas Boulevard
865 SW 78th Avenue, Suite 100 Suite 1700
Plantation, Florida 33324 Fort Lauderdale, Florida 33301
(954) 233-8377 (954) 763-1200
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(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Proposed maximum maximum aggregate Amount of
Title of securities Amount to be offering price per offering price (1) registration
to be registered registered share (1) fee (1)
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<S> <C> <C> <C> <C>
VIRAGEN (EUROPE) LTD. 1997 STOCK OPTION PLAN
OPTIONS GRANTED
Common stock, $0.01
par value per share 75,000 $ 5.72 $ 429,000 $ 113
Common stock, $0.01
par value per share 149,000 0.84 125,160 33
Common stock, $0.01
par value per share 67,500 1.19 80,325 22
OPTIONS RESERVED FOR GRANT
Common stock, $0.01
par value per share 308,500 1.81 558,385 147
STOCK OPTION AGREEMENT WITH A KEY EXECUTIVE
Common stock, $0.01
par value per share 50,000 7.00 350,000 92
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650,000 $ 407
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</TABLE>
(1) The common shares are issuable upon exercise of options with fixed
exercise prices. Pursuant to Rule 457(h), the aggregate offering price
and fee have been calculated based on the price at which the options
may be exercised, except for options reserved for grant. The exercise
price for reserved options will be determined on the date of grant.
Accordingly, the aggregate offering price and fee on the reserved
options are based on the last sale price of the common stock on March
3, 2000, as quoted by the OTC Bulletin Board, pursuant to Rule 457 (h)
(1).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Viragen (Europe) Ltd. will provide the information specified in Item 1
by Rule 428 of the Securities Act of 1933 to each optionee. We are not filing
these documents as part of this registration statement or as prospectuses or
prospectus supplements, in accordance with the rules and regulations of the
Securities and Exchange Commission.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Viragen (Europe) will provide the information specified in Item 2 by
Rule 428(b) of the Securities Act of 1933 to each optionee. We are not filing
these documents as part of this registration statement or as prospectuses or
prospectus supplements, in accordance with the rules and regulations of the
Securities and Exchange Commission.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
We incorporate by reference the documents, which we filed previously
with the Securities and Exchange Commission, listed below:
o Quarterly report on Form 10-Q, for the quarterly period ended
December 31, 1999, filed February 14, 2000;
o Quarterly report on Form 10-Q, for the quarterly period ended
September 30, 1999, filed November 15, 1999; and
o Annual report on Form 10-K for the fiscal year ended June 30,
1999, filed September 29, 1999.
We also incorporate by reference any future filings we make with the Securities
and Exchange Commission when Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934.
ITEM 4. DESCRIPTION OF SECURITIES
COMMON STOCK
Common stockholders share dividends on a proportionate basis, as may be
declared by the board of directors. Upon liquidation, dissolution or winding up
of Viragen (Europe), after payment to creditors, Viragen (Europe)'s assets will
be divided proportionately on a per share basis among the holders of our common
stock.
Each share of our common stock has one vote. Holders of our common
stock do not have cumulative voting rights. This means that the holders of a
plurality of the shares voting for the election of directors can elect all of
the directors. In that event, the holders of the remaining shares will not be
able to elect any directors. Viragen (Europe)'s By-Laws provide that a majority
of the outstanding shares of our common stock are a quorum to transact business
at a stockholders' meeting. Our common stock has no preemptive, subscription or
conversion rights. Also, our common stock is not redeemable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
EXPERTS
Ernst & Young LLP, independent certified public accountants, have
audited our consolidated financial statements included in our Annual Report on
Form 10-K for the year ended June 30, 1999, as set forth in their report, which
is incorporated by reference in this prospectus and elsewhere in the
registration statement. Our financial statements are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
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LEGAL MATTERS
Atlas, Pearlman, Trop & Borkson, P.A. will review the validity of the
issuance of the shares of our common stock being offered. They are located at
350 East Las Olas Boulevard, Suite 1700, Fort Lauderdale, Florida 33301. Members
of that firm or members of their family own a total of 7,000 shares of our
common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of Delaware allows a
corporation to indemnify any person who was or is, or is threatened to be made a
party to any threatened, pending, or completed suit or proceeding. This applies
whether the matter is civil, criminal, administrative or investigative because
he or she is or was a director, officer, employee or agent of the corporation.
A corporation may indemnify against expenses, including attorney's
fees, and, except for an action by or in the name of the corporation, against
judgments, fines and amounts paid in settlement as part of this suit or
proceeding. This applies only if the person indemnified acted in good faith and
in a manner he or she reasonably believed to be in the best interest of the
corporation. In addition, with respect to any criminal action or proceeding, the
person had no reasonable cause to believe his or her conduct was unlawful.
In the case of an action by or in the name of the corporation, no
indemnification of expenses may be made for any claim, as to which the person
has been found to be liable to the corporation. The exception is if the court in
which this action was brought determines that the person is reasonably entitled
to indemnity for expenses.
Section 145 of the General Corporation Law of Delaware further provides
that if a director, officer, employee or agent of the corporation has been
successful in the defense of any suit, claim or proceeding described above, he
or she will be indemnified for expenses, including attorney's fees, actually and
reasonably incurred by him or her.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling
Viragen (Europe) pursuant to the foregoing provisions, Viragen (Europe) has been
informed that in the opinion of the Securities and Exchange Commission,
indemnification is against public policy and is, therefore, unenforceable. In
the event that a claim for indemnification against these liabilities, other than
the payment by Viragen (Europe) in the successful defense of any action, suit or
proceeding, is asserted, Viragen (Europe) 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 indemnification by it is
against public policy. Viragen (Europe) will be governed by the final
adjudication of this issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
4. Instruments defining the rights of security holders, including indentures.
4.1 Viragen (Europe) Ltd. 1997 Stock Option Plan *
4.2 Stock Option Agreement between Viragen (Europe) Ltd. and Donald Magnus
Nicolson dated April 1, 1996 *
5. Opinion of Atlas, Pearlman, Trop & Borkson, P.A. as to the validity of
securities being registered. *
23. Consents of experts and counsel.
23.1 Consent of Independent Certified Public Accountants. *
23.2 Consent of Atlas, Pearlman, Trop & Borkson, P.A. (included as part of
Exhibit 5).
*Filed herewith.
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 of 1933;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(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;
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Provided, however, that paragraphs (1)(i) and (1)(ii) 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
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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant'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 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.
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SIGNATURES
THE REGISTRANT. 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 Plantation, State of Florida on March 14, 2000.
VIRAGEN (EUROPE) LTD.
By: /s/ Gerald Smith
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Gerald Smith
Chairman of the Board of Directors
and President
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
Chairman of the Board Of Directors, President, and March 14, 2000
/s/ Gerald Smith Principal Executive Officer
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Gerald Smith
Director, Executive Vice President, and Principal March 14, 2000
/s/ Dennis W. Healey Financial Officer
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Dennis W. Healey
/s/ Dr. D. Magnus Nicolson Chief Operating Officer and Director March 14, 2000
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Dr. D. Magnus Nicolson
Director
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Dr. Peter Cooper
/S/ Dr. William H. Stimson Director March 14, 2000
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Dr. William H. Stimson
/s/ Dr. Peng Lee Yap Director March 14, 2000
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Dr. Peng Lee Yap
/s/ Jose I. Ortega Controller and Principal Accounting Officer March 14, 2000
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Jose I. Ortega
</TABLE>
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Exhibit 4.1
VIRAGEN (EUROPE) LTD.
1997 STOCK OPTION PLAN
1. GRANT OF OPTIONS; GENERALLY. In accordance with the provisions
hereinafter set forth in this stock option plan, the name of which is the
VIRAGEN (EUROPE) LTD. 1997 STOCK OPTION PLAN (the "Plan"), the Board of
Directors (the "Board") or, the Compensation Committee (the "Stock Option
Committee") of Viragen (Europe) Ltd. (the "Corporation") is hereby authorized to
issue from time to time on the Corporation's behalf to any one or more Eligible
Persons, as hereinafter defined, options to acquire shares of the Corporation's
$.01 par value common stock (the "Stock").
2. TYPE OF OPTIONS. The Board or the Stock Option Committee is
authorized to issue Incentive Stock Options ("ISOs") which meet the requirements
of Section 5422 of the Internal Revenue Code of 1986, as amended (the "Code"),
which options are hereinafter referred to collectively as ISOs, or singularly as
an ISO. The Board or the Stock Option Committee is also, in its discretion,
authorized to issue options which are not ISOs, which options are hereinafter
referred to collectively as Non Statutory Options ("NSOs"), or singularly as an
NSO. The Board or the Stock Option Committee is also authorized to issue "Reload
Options" in accordance with Paragraph 8 herein, which options are hereinafter
referred to collectively as Reload Options, or singularly as a Reload Option.
Except where the context indicates to the contrary, the term "Option" or
"Options" means ISOs, NSOs and Reload Options.
3. AMOUNT OF STOCK. The aggregate number of shares of Stock which may
be purchased pursuant to the exercise of options shall be 600,000 shares. Of
this amount, the Board or the Stock Option Committee shall have the power and
authority to designate whether any options so issued shall be ISOs or NSOs,
subject to the restrictions on ISOs contained elsewhere herein. If an Option
ceases to be exercisable, in whole or in part, the shares of Stock underlying
such Option shall continue to be available under this Plan. Further, if shares
of Stock are delivered to the Corporation as payment for shares of Stock
purchased by the exercise of an Option granted under this Plan, such shares of
Stock shall also be available under this Plan. If there is any change in the
number of shares of Stock due to of the declaration of stock dividends,
recapitalization resulting in stock split-ups, or combinations or exchanges of
shares of Stock, or otherwise, the number of shares of Stock available for
purchase upon the exercise of options, the shares of Stock subject to any Option
and the exercise price of any outstanding Option shall be appropriately adjusted
by the Board or the Stock Option Committee. The Board or the Stock Option
Committee shall give notice of any adjustments to each Eligible Person granted
an Option under this Plan, and such adjustments shall be effective and binding
on all Eligible Persons. If because
<PAGE> 2
of one or more recapitalizations, reorganizations or other corporate events, the
holders of outstanding Stock receive something other than shares of Stock then,
upon exercise of an Option, the Eligible Person will receive what the holder
would have owned if the holder had exercised the Option immediately before the
first such corporate event and not disposed of anything the holder received as a
result of the corporate event.
4. ELIGIBLE PERSONS.
(a) With respect to ISOs, an Eligible Person means any individual who
has been employed by the Corporation or by any subsidiary of the Corporation,
for a continuous period of at least sixty (60) days.
(b) With respect to NSOs, an Eligible Person means (i) any individual
who has been employed by the Corporation or by any subsidiary of the
Corporation, for a continuous period of at least sixty (60) days, (ii) any
director of the Corporation or any subsidiary of the Corporation or (iii) any
consultant of the Corporation or any subsidiary of the Corporation.
5. GRANT OF OPTIONS. The Board or the Stock Option Committee has the
right to issue the Options established by this Plan to Eligible Persons. The
Board or the Stock Option Committee shall follow the procedures prescribed for
it elsewhere in this Plan. A grant of Options shall be set forth in a writing
signed on behalf of the Corporation or by a majority of the members of the Stock
Option Committee. The writing shall identify whether the option being granted is
an ISO or an NSO and shall set forth the terms which govern the Option. The
terms shall be determined by the Board or the Stock Option Committee, and may
include, among other terms, the number of shares of Stock that may be acquired
pursuant to the exercise of the Options, when the Options may be exercised, the
period for which the Option is granted and including the expiration date, the
effect on the Options if the Eligible Person terminates employment and whether
the Eligible Person may deliver shares of Stock to pay for the shares of Stock
to be purchased by the exercise of the Option. However, no term shall be set
forth in the writing which is inconsistent with any of the terms of this Plan.
The terms of an Option granted to an Eligible Person may differ from the terms
of an Option granted to another Eligible Person, and may differ from the terms
of an earlier Option granted to the same Eligible Person.
6. OPTION PRICE. The option price per share shall be determined by the
Board or the Stock Option Committee at the time any Option is granted, and shall
be not less than (i) in the case of an ISO, the fair market value, (ii) in the
case of an ISO granted to a ten percent or greater stockholder, 110 percent of
the fair market value, or (iii) in the case of an NSO, not less than 55% of the
fair market value (but in no event less than the par
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value) of one share of Stock on the date the Option is granted, as determined by
the Board or the Stock Option Committee. Fair market value as used herein shall
be:
7. (a) If shares of Stock shall be traded on an exchange or
over-the-counter market, the mean between the high and low sales prices of Stock
on such exchange or over-the-counter market on which such shares shall be traded
on that date, or if such exchange or over-the-counter market is closed or if no
shares shall have traded on such date, on the last preceding date on which such
shares shall have traded.
(b) If shares of Stock shall not be traded on an exchange or
over-the-counter market, the value as determined by a recognized appraiser as
selected by the Board or the Stock Option Committee.
8. PURCHASE OF SHARES. An Option shall be exercised by the tender to
the Corporation of the full purchase price of the Stock with respect to which
the Option is exercised and written notice of the exercise. The purchase price
of the Stock shall be in United States dollars, payable in cash, check,
Promissory Note secured by the Shares issued through exercise of the related
Options, or in property or Corporation stock, if so permitted by the Board or
the Stock Option Committee in accordance with the discretion granted in
Paragraph 5 hereof, having a value equal to such purchase price. The Corporation
shall not be required to issue or deliver any certificates for shares of Stock
purchased upon the exercise of an option prior to (i) if requested by the
Corporation, the filing with the Corporation by the Eligible Person of a
representation in writing that it is the Eligible Person's then present
intention to acquire the Stock being purchased for investment and not for
resale, and/or (ii) the completion of any registration or other qualification of
such shares under any government regulatory body, which the Corporation shall
determine to be necessary or advisable.
9. GRANT OF RELOAD OPTIONS. In granting an Option under this Plan, the
Board or the Stock Option Committee may include a Reload Option provision
therein, subject to the provisions set forth in Paragraphs 20 and 21 herein. A
Reload Option provision provides that if the Eligible Person pays the exercise
price of shares of Stock to be purchased by the exercise of an ISO, NSO or
another Reload Option (the "Original Option") by delivering to the Corporation
shares of Stock already owned by the Eligible Person (the "Tendered Shares") ,
the Eligible Person shall receive a Reload option which shall be a new Option to
purchase shares of Stock equal in number to the tendered shares. The terms of
any Reload option shall be determined by the Board or the Stock Option Committee
consistent with the provisions of this Plan.
10. STOCK OPTION COMMITTEE. The Stock Option Committee may be
appointed from time to time by the Corporation's Board of Directors. The Board
may from time to time remove members from or
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add members to the Stock Option Committee. The Stock Option Committee shall be
constituted so as to permit the Plan to comply in all respects with the
provisions set forth in Paragraph 20 herein. The members of the Stock Option
Committee may elect one of its members as its chairman. The Stock Option
Committee shall hold its meetings at such times and places as its chairman shall
determine. A majority of the Stock Option Committee's members present in person
shall constitute a quorum for the transaction of business. All determinations of
the Stock Option Committee will be made by the majority vote of the members
constituting the quorum. The members may participate in a meeting of the Stock
Option Committee by conference telephone or similar communications equipment by
means of which all members participating in the meeting can hear each other.
Participation in a meeting in that manner will constitute presence in person at
the meeting. Any decision or determination reduced to writing and signed by all
members of the Stock Option Committee will be effective as if it had been made
by a majority vote of all members of the Stock Option Committee at a meeting
which is duly called and held.
11. ADMINISTRATION OF PLAN. In addition to granting Options and to
exercising the authority granted to it elsewhere in this Plan, the Board or the
Stock Option Committee is granted the full right and authority to interpret and
construe the provisions of this Plan, promulgate, amend and rescind rules and
procedures relating to the implementation of the Plan and to make all other
determinations necessary or advisable for the administration of the Plan,
consistent, however, with the intent of the Corporation that Options granted or
awarded pursuant to the Plan comply with the provisions of Paragraph 20 and 21
herein. All determinations made by the Board or the Stock Option Committee shall
be final, binding and conclusive on all persons including the Eligible Person,
the Corporation and its stockholders, employees, officers and directors and
consultants. No member of the Board or the Stock Option Committee will be liable
for any act or omission in connection with the administration of this Plan
unless it is attributable to that member's willful misconduct.
12. PROVISIONS APPLICABLE TO ISOs. The following provisions shall
apply to all ISOs granted by the Board or the Stock Option Committee and are
incorporated by reference into any writing granting an ISO:
(a) An ISO may only be granted within ten (10) years from February 27,
1997, the date that this Plan was originally adopted by the Corporation's Board
of Directors.
(b) An ISO may not be exercised after the expiration of ten (10) years
from the date the ISO is granted.
(c) The option price may not be less than the fair market value of the
Stock at the time the ISO is granted.
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(d) An ISO is not transferrable by the Eligible Person to whom it is
granted except by will, or the laws of descent and distribution, and is
exercisable during his or her lifetime only by the Eligible Person.
(e) If the Eligible Person receiving the ISO owns at the time of the
grant stock possessing more than ten (10%) percent of the total combined voting
power of all classes of stock of the employer corporation or of its parent or
subsidiary corporation (as those terms are defined in the Code), then the option
price shall be at least 110% of the fair market value of the Stock, and the ISO
shall not be exercisable after the expiration of five (5) years from the date
the ISO is granted.
(f) The aggregate fair market value (determined at the time the ISO is
granted) of the Stock with respect to which the ISO is first exercisable by the
Eligible Person during any calendar year (under this Plan and any other
incentive stock option plan of the Corporation) shall not exceed $100,000.
(g) Even if the shares of Stock which are issued upon exercise of an
ISO are sold within one year following the exercise of such ISO so that the sale
constitutes a disqualifying disposition for ISO treatment under the Code, no
provision of this Plan shall be construed as prohibiting such a sale.
(h) This Plan was adopted by the Corporation on February 27, 1997, by
virtue of its approval by the Corporation's Board of Directors. Approval by the
stockholders of the Corporation is to occur prior to March 1, 1997.
13. DETERMINATION OF FAIR MARKET VALUE. In granting ISOs under this
Plan, the Board or the Stock Option Committee shall make a good faith
determination as to the fair market value of the Stock at the time of granting
the ISO.
14. RESTRICTIONS ON ISSUANCE OF STOCK. The Corporation shall not be
obligated to sell or issue any shares of Stock pursuant to the exercise of an
Option unless the Stock with respect to which the Option is being exercised is
at that time effectively registered or exempt from registration under the
Securities Act of 1933, as amended, and any other applicable laws, rules and
regulations. The Corporation may condition the exercise of an option granted in
accordance herewith upon receipt from the Eligible Person, or any other
purchaser thereof, of a written representation that at the time of such exercise
it is his or her then present intention to acquire the shares of Stock for
investment and not with a view to, or for sale in connection with, any
distribution thereof; except that, in the case of a legal representative of an
Eligible Person, "distribution" shall be defined to exclude distribution by will
or under the laws of descent and distribution. Prior to issuing any shares of
Stock
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pursuant to the exercise of an Option, the Corporation shall take such steps as
it deems necessary to satisfy any withholding tax obligations imposed upon it by
any level of government.
15. EXERCISE IN THE EVENT OF DEATH OF TERMINATION OR EMPLOYMENT.
(a) If an optionee shall die (i) while an employee of the Corporation
or a Subsidiary or (ii) within three months after termination OF his employment
with the Corporation or a Subsidiary because of his disability, or retirement or
otherwise, his options may be exercised, to the extent that the optionee shall
have been entitled to do so on the date of his death or such termination OF
employment, by the person or persons to whom the optionee's right under the
option pass by will or applicable law, or if no such person has such right, by
his executors or administrators, at any time, or from time to time. In the event
of termination of employment because of his death while an employee or because
of disability, his options may be exercised not later than the expiration date
specified in Paragraph 5 or one year after the optionee's death, whichever date
is earlier, or in the event of termination of employment because of retirement
or otherwise, not later than the expiration date specified in Paragraph 5 hereof
or one year after the optionee's death, whichever date is earlier.
(b) If an optionee's employment by the Corporation or a Subsidiary
shall terminate because of his disability and such optionee has not died within
the following three months, he may exercise his options, to the extent that he
shall have been entitled to do so at the date of the termination of his
employment, at any time, or from time to time, but not later than the expiration
date specified in Paragraph 5 hereof or one year after termination of
employment, whichever date is earlier.
(c) if an optionee's employment shall terminate by reason of his
retirement in accordance with the terms of the Corporation's tax-qualified
retirement plans if any, or with the consent of the Board or the Stock Option
Committee or involuntarily other than by termination for cause, and such
optionee has not died within the following three months, he may exercise his
Option to the extent he shall have been entitled to do so at the date of the
termination of his employment, at any time and from to time, but not later than
the expiration date specified in Paragraph 5 hereof or thirty (30) days after
termination of employment, whichever date is earlier. For purposes of this
Paragraph 14, termination for cause shall mean; (i) termination of employment
for cause as defined in the optionee's Employment Agreement or (ii) in the
absense of an Employment Agreement for the optionee, termination of employment
by reason of the optionee's commission of a felony, fraud or willful misconduct
which has resulted, or is likely to result, in substantial and material damage
to the Corporation or a Subsidiary, all as the Board or the Stock Option
Committee in its sole
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discretion may determine.
(d) If an optionee's employment shall terminate for any reason other
than death, disability, retirement or otherwise, all right to exercise his
Option shall terminate at the date of such termination of employment absent
specific provisions in the optionee's Option Agreement.
16. CORPORATE EVENTS. In the event of the proposed dissolution or
liquidation of the Corporation, a proposed sale of all or substantially all of
the assets of the Corporation, a merger or tender for the Corporation's shares
of Common Stock the Board of Directors may declare that each Option granted
under this Plan shall terminate as of a date to be fixed by the Board of
Directors; provided that not less than thirty (30) days written notice of the
date so fixed shall be given to each Eligible Person holding an option, and each
such Eligible Person shall have the right, during the period of thirty (30) days
preceding such termination, to exercise his Option as to all or any part of the
shares of Stock covered thereby, including shares of Stock as to which such
Option would not otherwise be exercisable. Nothing set forth herein shall extend
the term set for purchasing the shares of Stock set forth in the Option.
17. NO GUARANTEE OF EMPLOYMENT. Nothing in this Plan or in any writing
granting an Option will confer upon any Eligible Person the right to continue in
the employ of the Eligible Person's employer, or will interfere with or restrict
in any way the right of the Eligible Person's employer to discharge such
Eligible Person at any time for any reason whatsoever, with or without cause.
18. NONTRANSFERABILITY. No Option granted under the Plan shall be
transferable other than by will or by the laws of descent and distribution.
During the lifetime of the optionee, an Option shall be exercisable only by him.
19. NO RIGHTS AS STOCKHOLDER. No optionee shall have any rights as a
stockholder with respect to any shares subject to his Option prior to the date
of issuance to him of a certificate or certificates for such shares.
20. AMENDMENT AND DISCONTINUANCE OF PLAN. The Corporation's Board of
Directors may amend, suspend or discontinue this Plan at any time. However, no
such action may prejudice the rights of any Eligible Person who has prior
thereto been granted Options under this Plan. Further, no amendment to this Plan
which has the effect of (a) increasing the aggregate number of shares of Stock
subject to this Plan (except for adjustments pursuant to Paragraph 3 herein), or
(b) changing the definition of Eligible Person under this Plan, may be effective
unless and until approval of the stockholders of the Corporation is obtained in
the same manner as approval of this Plan is required. The Corporation's Board of
7
<PAGE> 8
Directors is authorized to seek the approval of the Corporation's stockholders
for any other changes it proposes to make to this Plan which require such
approval, however, the Board of Directors may modify the Plan, as necessary, to
effectuate the intent of the Plan as a result of any changes in the tax,
accounting or securities laws treatment of Eligible Persons and the Plan,
subject to the provisions set forth in this Paragraph 19, and Paragraphs 20 and
21.
21. COMPLIANCE WITH RULE 16b-3. This Plan is intended to comply in all
respects with Rule 16b-3 ("Rule 16b-311) promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with respect to participants who are subject to Section 16 of
the Exchange Act, and any provision(s) herein that is/are contrary to Rule 16b-3
shall be deemed null and void to the extent appropriate by either the Stock
Option Committee or the Corporation's Board of Directors.
22. COMPLIANCE WITH CODE. The aspects of this Plan on ISOs is intended
to comply in every respect with Section 422 of the Code and the regulations
promulgated thereunder. In the event any future statute or regulation shall
modify the existing statute, the aspects of this Plan on ISOs shall be deemed to
incorporate by reference such modification. Any stock option agreement relating
to any Option granted pursuant to this Plan outstanding and unexercised at the
time any modifying statute or regulation becomes effective shall also be deemed
to incorporate by reference such modification and no notice of such modification
need be given to optionee.
If any provision of the aspects of this Plan on ISOs is determined to
disqualify the shares purchasable pursuant to the Options granted under this
Plan from the special tax treatment provided by Code Section 422, such provision
shall be deemed null and void and to incorporate by reference the modification
required to qualify the shares for said tax treatment.
23. COMPLIANCE WITH OTHER LAWS AND REGULATIONS. The Plan, the grant
and exercise of options thereunder, and the obligation of the Corporation to
sell and deliver Stock under such options, shall be subject to all applicable
federal and state laws, rules, and regulations and to such approvals by any
government or regulatory agency as may be required. The Corporation shall not be
required to issue or deliver any certificates for shares of Stock prior to (a)
the listing of such shares on any stock exchange or over-the-counter market on
which the Stock may then be listed and (b) the completion of any registration or
qualification of such shares under any federal or state law, or any ruling or
regulation of any government body which the Corporation shall, in its sole
discretion, determine to be necessary or advisable. Moreover, no option may be
exercised if its exercise or the receipt of Stock pursuant thereto would be
contrary to applicable laws.
8
<PAGE> 9
24. DISPOSITION OF SHARES. In the event any share of Stock acquired by
an exercise of an option granted under the Plan shall be transferable other than
by will or by the laws of descent and distribution within two years of the date
such Option was granted or within one year after the transfer of such Stock
pursuant to such exercise, the optionee shall give prompt written notice thereof
to the Corporation or the Stock Option Committee.
25. Name. The Plan shall be known as the "Viragen (Europe) Ltd. 1997
Stock Option Plan."
26. Notices. Any notice hereunder shall be in writing and sent by
certified mail, return receipt requested or by facsimile transmission (with
electronic or written confirmation of receipt) and when addressed to the
Corporation shall be sent to it at its office, 2343 West 76th Street, Hialeah,
Florida 33016, and when addressed to the Committee shall be sent to it at 2343
West 76th Street, Hialeah, Florida 33016, subject to the right of either party
to designate at any time hereafter in writing some other address, facsimile
number or person to whose attention such notice shall be sent.
27. HEADINGS. The headings preceding the text of Sections and
subparagraphs hereof are inserted solely for convenience of reference, and shall
not constitute a part of this Plan nor shall they affect its meaning,
construction or effect.
28. EFFECTIVE DATE. This Plan, the Viragen (Europe) Ltd. 1997 Stock
Option Plan, was adopted by the Board of Directors of the Corporation on
February 27, 1997. The effective date of the Plan shall be the same date.
Dated as of February 27, 1997.
VIRAGEN (EUROPE) LTD.
By: /s/ Gerald Smith
--------------------------------
Its: President
9
<PAGE> 10
[NSO GRANT FORM]
VIRAGEN (EUROPE) LTD.
2343 West 76th Street
Hialeah, Florida 33016
Date:
-----------------
- -----------------
- -----------------
- -----------------
Dear :
-----------
The Board of Directors of Viragen (Europe) Ltd. (the "Corporation") is
pleased to award you an Option pursuant to the provisions of the 1997 Stock
Option Plan (the "Plan") . This letter will describe the Option granted to you.
Attached to this letter is a copy of the Plan. The terms of the Plan also set
forth provisions governing the Option granted to you. Therefore, in addition to
reading this letter you should also read the Plan. Your signature on this letter
is an acknowledgement to us that you have read and under-stand the Plan and that
you agree to abide by its terms. All terms not defined in this letter shall have
the same meaning as in the Plan.
1. TYPE OF OPTION. You are granted an NSO. Please see in particular
Section 11 of the Plan.
2. RIGHTS AND PRIVILEGES. Subject to the conditions hereinafter set
forth, we grant you the right to purchase shares of Stock at $ per share,the
current fair market value of a share of Stock. The right to purchase the shares
of Stock accrues in installments over the time periods described below:
The right to acquire _____________________ shares accrues on
The right to acquire _____________________ shares accrues on
3. TIME OF EXERCISE. The option may be exercised at any time and
from time to time beginning when the right to purchase the shares of Stock
accrues and ending when they terminate as provided in Section 5 of this letter.
4. METHOD OF EXERCISE. The Options shall be exercised by written
notice to the Chief Financial Officer at the Corporation's principal place of
business. The notice shall set forth the number of shares of Stock to be
acquired and shall contain a check payable
<PAGE> 11
to the Corporation in full payment for the Stock or that number of already owned
shares of Stock equal in value to the total Exercise Price of the Option. We
shall make delivery of the shares of Stock subject to the conditions described
in Section 13 of the Plan.
5. TERMINATION OF OPTION. To the extent not exercised, the Option shall
terminate upon the first to occur of the following dates:
(a) __________, 199__, being ____ years from the date of grant
pursuant to the provisions of Section 2 of this Agreement; or
(b) The expiration of three months following the date your
employment terminates with the Corporation and any of its subsidiaries included
in the Plan for any reason, other than by reason of death or permanent
disability. As used herein, "permanent disability" means your inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than 12 months; or
(c) The expiration of 12 months following the date your
employment terminates with the Corporation and any of its subsidiaries included
in the Plan, if such employment termination occurs by reason of your death or by
reason of your permanent disability (as defined above).
6. SECURITIES LAWS.
The option and the shares of Stock underlying the Option have
not been registered under the Securities Act of 1933, as amended (the "Act").
The Corporation has no obligations to ever register the option or the shares of
Stock underlying the Option. All shares of Stock acquired upon the exercise of
the Option shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificate representing the shares shall bear an
appropriate legend restricting their transfer. Such shares cannot be sold,
transferred, assigned or otherwise hypothecated without registration under the
Act or unless a valid exemption from registration is then available under
applicable federal and state securities laws and the Corporation has been
furnished with an opinion of counsel satisfactory in form and substance to the
Corporation that such registration is not required.
7. BINDING EFFECT. The rights and obligations described in this
letter shall inure to the benefit of and be binding upon both of us, and our
respective heirs, personal representatives, successors and assigns.
2
<PAGE> 12
8. Date OF GRANT. The Option shall be treated as having been granted
to you on the date of this letter even though you may sign it at a later date.
Very truly yours,
By:
---------------------------------
President
AGREED AND ACCEPTED:
- -----------------------------------
3
<PAGE> 13
Date:
---------------
VIRAGEN (EUROPE) LTD.
2343 West 76th Street
Hialeah, Florida 33016
Dear :
--------------
The Board of Directors of Viragen (Europe) Ltd. (the "Corporation") is
pleased to award you an Option pursuant to the provisions of the 1997 Stock
Option Plan (the "Plan") . This letter will describe the Option granted to you.
Attached to this letter is a copy of the Plan. The terms of the Plan also set
forth provisions governing the option granted to you. Therefore, in addition to
reading this letter you should also read the Plan. Your signature on this letter
is an acknowledgement to us that you have read and understand the Plan and that
you agree to abide by its terms. All terms not defined in this letter shall have
the same meaning as in the Plan.
1. TYPE OF OPTION. You are granted an ISO. Please see in particular
Section 11 of the Plan.
2. RIGHTS AND PRIVILEGES. Subject to the conditions hereinafter set
forth, we grant you the right to purchase shares of Stock at ________________
$_________ per share, the current fair market value of a share of Stock. The
right to purchase the shares of Stock accrues in _____ installments over the
time periods described below:
The right to acquire ____________________ - ____________________________.
The right to acquire ____________________ - ____________________________.
The right to acquire ____________________ - ____________________________.
The right to acquire ____________________ - ____________________________.
The right to acquire ____________________ - ____________________________.
The right to acquire ____________________ - ____________________________.
3. TIME OF EXERCISE. The Option may be exercised at any time and
from time to time beginning when the right to purchase the shares of Stock
accrues and ending when they terminate as provided
<PAGE> 14
in Section 5 of this letter.
4. METHOD OF EXERCISE. The Options shall be exercised by written
notice to the Chief Financial Officer at the Corporation's principal place of
business. The notice shall set forth the number of shares of Stock to be
acquired and shall contain a check payable to the Corporation in full payment
for the Stock or that number of already owned shares of Stock equal in value to
the total Exercise Price of the Option. We shall make delivery of the shares of
Stock subject to the conditions described in Section 13 of the Plan.
5. TERMINATION OF OPTION. To the extent not exercised, the Option
shall terminate upon the first to occur of the following dates:
(a) _____________________ 199__, being _____________________
years from the date of grant pursuant to the provisions of Section 2 of this
Agreement; or
(b) The expiration of thirty (30) days following the date
your employment terminates with the Corporation and any of its subsidiaries
included in the Plan for any reason, other than by reason of death or permanent
disability. As used herein, "permanent disability" means your inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than 12 months; or
(c) The expiration of 12 months following the date your
employment terminates with the Corporation and any of its subsidiaries included
in the Plan, if such employment termination occurs by reason of your death or by
reason of your permanent disability (as defined above).
6. SECURITIES LAWS.
The option and the shares of Stock underlying the option have
not been registered under the Securities Act of 1933, as amended (the "Act").
The Corporation has no obligations to ever register the Option or the shares of
Stock underlying the Option. All shares of Stock acquired upon the exercise of
the Option shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificate representing the shares shall bear an
appropriate legend restricting their transfer. Such shares cannot be sold,
transferred, assigned or otherwise hypothecated without registration under the
Act or unless a valid exemption from registration is then available under
applicable federal and state securities laws and the Corporation has been
furnished with an opinion of counsel satisfactory in form and substance to the
Corporation that such registration is not required.
2
<PAGE> 15
7. BINDING EFFECT. The rights and obligations described in this
letter shall inure to the benefit of and be binding upon both of us, and our
respective heirs, personal representatives, successors and assigns.
8. Date OF GRANT. The Option shall be treated as having been granted to
you on the date of this letter even though you may sign it at a later date.
Very truly yours,
By:
-------------------------------------
President
AGREED AND ACCEPTED:
- ------------------------------------
3
<PAGE> 16
[NSO GRANT FORM
WITH RELOAD OPTIONS]
VIRAGEN (EUROPE) LTD.
2343 West 76th Street
Hialeah, Florida 33016
Date:
------------------
- --------------------
- --------------------
- --------------------
Dear :
----------------
The Board of Directors of Viragen (Europe) Ltd. (the "Corporation") is
pleased to award you an option pursuant to the provisions of the 1993 Stock
Option Plan (the "Plan") . This letter will describe the Option granted to you.
Attached to this letter is a copy of the Plan. The terms of the Plan also set
forth provisions governing the Option granted to you. Therefore, in addition to
reading this letter you should also read the Plan. Your signature on this letter
is an acknowledgement to us that you have read and under-stand the Plan and that
you agree to abide by its terms. All terms not defined in this letter shall have
the same meaning as in the Plan.
1. TYPE OF OPTION. You are granted an NSO. Please see in particular
Section 11 of the Plan.
2. RIGHTS AND PRIVILEGES.
(a) Subject to the conditions hereinafter set forth, we grant
you the right to purchase ___________ shares of Stock at $__________ per share,
the current fair market value of a share of Stock. The right to purchase the
shares of Stock accrues in ________________ installments over the time periods
described below:
The right to acquire ________________ - ________________________.
The right to acquire ________________ - ________________________.
(b) In addition to the Option granted hereby (the "Underlying
Option"), the Corporation will grant you a reload option (the "Reload Option")
as hereinafter provided. A Reload option is hereby granted to you if you acquire
shares of Stock pursuant to the exercise of the Underlying Option and pay for
such shares of Stock with shares of Common Stock already owned by you
<PAGE> 17
(the "Tendered Shares"). The Reload Option grants you the right to purchase
shares of Stock equal in number to the number of Tendered Shares. The date on
which the Tendered Shares are tendered to the Corporation in full or partial
payment of the purchase price for the shares of Stock acquired pursuant to the
exercise of the Underlying Option is the Reload Grant Date. The exercise price
of the Reload Option is the fair market value of the Tendered Shares on the
Reload Grant Date. The fair market value of the Tendered Shares shall be the low
bid price per share of the Corporation's Common Stock on the Reload Grant Date.
The Reload Option shall vest equally over a period of _____________ (___) years,
commencing on the first anniversary of the Reload Grant Date, and on each
anniversary of the Reload Grant Date thereafter; however, no Reload Option shall
vest in any calendar year if it would allow you to purchase for the first time
in that calendar year shares of Stock with a fair market value in excess of
$100,000, taking into account ISOs previously granted to you. The Reload Option
shall expire on the earlier of (i) _______________ (___) years from the Reload
Grant Date, or (ii) in accordance with Paragraph 5(b), or (iii) in accordance
with Paragraph 5(c) as set forth herein. If vesting of the Reload Option is
deferred, then the Reload Option shall vest in the next calendar year, subject,
however, to the deferral of vesting previously provided. Except as provided
herein the Reload Option is subject to all of the other terms and provisions of
this Agreement governing Options.
3. TIME OF EXERCISE. The Option may be exercised at any time and from
time to time beginning when the right to purchase the shares of Stock accrues
and ending when they terminate as provided in Section 5 of this letter.
4. METHOD OF EXERCISE. The Options shall be exercised by written
notice to the Chief Financial Officer at the Corporation's principal place of
business. The notice shall set forth the number of shares of Stock to be
acquired and shall contain a check payable to the Corporation in full payment
for the Stock or that number of already owned shares of Stock equal in value to
the total Exercise Price of the Option. We shall make delivery of the shares of
Stock subject to the conditions described in Section 13 of the Plan.
5. TERMINATION OF OPTION. To the extent not exercised, the option
shall terminate upon the first to occur of the following dates:
(a)____________________, 199__ being _________________ years
from the date of grant pursuant to the provisions of Section 2 of this
Agreement; or
(b) The expiration of three months following the date your
employment terminates with the Corporation and any of its subsidiaries included
in the Plan for any reason, other than by reason of death or permanent
disability. As used herein,
2
<PAGE> 18
"permanent disability" means your inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months; or
(c) The expiration of 12 months following the date your
employment terminates with the Corporation and any of its subsidiaries included
in the Plan, if such employment termination occurs by reason of your death or by
reason of your permanent disability (as defined above).
6. SECURITIES LAWS.
The Option and the shares of Stock underlying the option have
not been registered under the Securities Act of 1933, as amended (the "Act").
The Corporation has no obligations to ever register the option or the shares of
Stock underlying the Option. All shares of Stock acquired upon the exercise of
the option shall be "restricted securities" as that term is defined in Rule 144
promulgated under the Act. The certificate representing the shares shall bear an
appropriate legend restricting their transfer. Such shares cannot be sold,
transferred, assigned or otherwise hypothecated without registration under the
Act or unless a valid exemption from registration is then available under
applicable federal and state securities laws and the Corporation has been
furnished with an opinion of counsel satisfactory in form and substance to the
Corporation that such registration is not required.
7. BINDING EFFECT. The rights and obligations described in this letter
shall inure to the benefit of and be binding upon both of us, and our respective
heirs, personal representatives, successors and assigns.
8. DATE OF GRANT. The Option shall be treated as having been granted to
you on the date of this letter even though you may sign it at a later date.
Very truly yours,
By:
-------------------------------
President
AGREED AND ACCEPTED:
- -------------------------------------
3
<PAGE> 1
Exhibit 4.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of April 1, 1996 (the "Effective Date") between
Viragen (Europe) Ltd., a Delaware Corporation (the "Company") and Donald Magnus
Nicolson ("Optionee").
The Company, hereby grants to Optionee a Non-Statutory Option ("NSO") to acquire
Common Stock, par value $.01 per share, of the Company (the "Common Stock"),
subject to the following terms and conditions:
1. GRANT OF OPTION. The Company hereby grants to Optionee an NSO (the
"Option") to purchase up to 50,000 shares of Common Stock (the "Shares"), to be
transferred upon the exercise thereof, fully paid and nonassessable.
2. EXERCISE PRICE. The exercise price of the Shares subject to the
Option shall be the lesser of (i) 70% of the opening bid price of the common
shares on the OTC Electronic Bulletin Board when such shares next commence
trading (adjusted for a planned 1:14 reversal stock split) or (ii) $7.00. The
Company shall pay all original issue or transfer taxes upon the exercise of the
Option by Optionee.
3. EXERCISABILITY OF OPTION; RIGHTS AND PRIVILEGES. Subject to the
provisions of Paragraph 6 hereof, the Option shall be exercisable by Optionee in
whole or in part: one-half upon the Effective Date and one-half upon the first
anniversary of the Effective Date.
All granted but unexercised Options shall continue to be fully exercisable in
accordance with the provisions herein:
(i) if there occurs any corporate transaction that
has the result that shareholders of the Company immediately before such
transaction cease to own at least 66 2/3 percent of the voting stock of the
Company in a (a) reorganization, (b) consolidation, (c) merger, (d) liquidation
or (e) a similar of corporate transaction;
(ii) if the shareholders of the Company shall approve
a plan of merger, consolidation, reorganization,
liquidation or dissolution in which the Company does not survive (unless the
approved merger, consolidation, reorganization, liquidation or dissolution is
subsequently abandoned); or
(iii) if the shareholders of the Company shall
approve a plan for the sale, lease, exchange or other
disposition of all or substantially all the property and assets of the Company
(unless such plan is subsequently abandoned).
<PAGE> 2
4. NON-ASSIGNABILITY OF OPTION. The Option shall not be given, granted,
sold, exchanged, transferred, pledged, encumbered, assigned or otherwise
disposed of by Optionee, other than by will or the laws of descent and
distribution, and during the lifetime of Optionee, shall not be exercisable by
any other person, but only by Optionee.
5. METHOD OF EXERCISE OF OPTION. Optionee shall notify the Company by
written notice, in the form of the Notice of Exercise attached hereto
(Attachment A), delivered to the Company's principal office, attention: Chief
Financial Officer. At the Optionee's option, the payment for the Shares may be
made either by Optionee's check payable to the order to the Company in full
payment for the total exercise price of the number of Shares purchased or by
execution and delivery by the Optionee to the Company of a Note(s), in similar
form and content as Notes previously used by the Company for similar purposes
("Note(s)"), dated as of each Notice of Exercise. As soon as practicable after
the receipt of such Notice of Exercise and accompanying payment for the purchase
of Shares, the Company shall, at its principal office, tender to Optionee a
certificate or certificates issued in Optionee's name evidencing the Shares
purchased by Optionee hereunder.
6. TERMINATION OF OPTION. To the extent exercisable but not exercised,
the Option shall terminate upon the first to occur of the following dates:
(a) five (5) years from the Exercise Date as defined herein;
or
(b) the expiration of ninety (90) days following the date
Optionee's employment terminates with the Company and/or any of its subsidiaries
included in the Plan with Cause, as defined in Optionee's Employment Agreement.
Subject to the provisions of this paragraph, in the event of Optionee's death,
the exercisable but unexercised portion of the Option may be exercised by the
estate of Optionee, or by the person who acquired the right to exercise the
Option by bequest or inheritance or by reason of the death of Optionee.
In the event of Optionee's termination without Cause, all granted but
unexercised Options shall continue to be fully exercisable in accordance with
the provisions herein. Additionally, in the event this Optionee's Service
Agreement dated April 1, 1996, is not renewed at the end of the Optionee's
Employment Term, then all granted but unexercised Options shall continue to be
fully exercisable in accordance with the provisions herein.
7. PLEDGE OF SHARES. If payment for the purchase of Shares under this
Option is made through execution and delivery of a Note(s), effective upon
Optionee's purchase(s) of the Shares and the delivery of the Note(s), in order
to secure the Company's obligations under the Note(s), Optionee hereby pledges,
assigns and sets over to the Company, and grants to the Company a security
interest in, the Shares. The Shares pledged pursuant hereto shall be maintained
in escrow with Atlas, Pearlman, Trop &
2
<PAGE> 3
Borkson, P.A. pursuant to the terms of a Pledge and Escrow Agreement previously
used by the Company for similar purposes, which shall be executed by Optionee
and the Company upon delivery of a Note(s). As long as any Shares remain subject
to the lien of the Pledge, such Shares may not be further pledged or encumbered
in any manner, and shall not be sold, transferred or otherwise disposed of. The
Escrow Agent shall not be required to relinquish the Pledge or the Escrow
Agent's possession of the certificates evidencing the Shares, unless no later
than concurrently with the sale of the Shares pursuant to an S-8 registration,
all Notes which are secured by such Shares are paid in full. In the event any of
the Shares are to be titled in the name of an immediate family member of
Optionee or a trust pursuant to the terms herein, as a condition thereto the
designated title holder(s) of such Shares shall execute and deliver to the
Company a pledge and escrow agreement, in form and content reasonably
satisfactory to the Company and its counsel, consistent with the terms herein.
No transfer of Shares to, or designation by Optionee of (for the purposes of
owning Shares) any person or entity shall relieve Optionee of any of his
obligations under the Note(s) or this Agreement. With respect to each Note under
which a voluntary prepayment is made by Optionee, provided that interest
payments on such Note are current through the date of prepayment and such Note
is not in default and has not been accelerated, the Optionee may pay principal
to release no fewer than 5,000 shares and such shares pledged to secure such
Note shall be released from the lien of the Pledge. As long as no event of
default has occurred with respect to a Note and no event giving right to
accelerate such Note has occurred, Optionee shall retain all voting rights with
respect to all Shares securing such Note. Following an event of default or an
acceleration event, the Company shall have and may exercise all voting rights
with respect to such Shares. Optionee hereby irrevocably appoints the Company
Optionee's attorney-in-fact for such purpose, it being acknowledged that such
appointment is coupled with an interest. Any dividends or distributions payable
in respect of any Shares subject to the Pledge shall automatically be applied to
pay down the Note(s) in inverse order of their respective maturity date(s). In
the event of a default under any Note, in addition to and not in limitation or
lieu of any other rights or remedies the Company may have against Optionee as a
result of such default, the Company may exercise all of its rights at law and in
equity as a secured party, including without limitation under the Uniform
Commercial Code, with respect to all Shares then securing the Note with respect
to which the default has occurred. Upon a default, without limiting any of the
Company's other rights and remedies, the Company may conduct a public or private
foreclosure sale of the Shares securing the Note with respect to which the
default has occurred. Optionee agrees that 10 days notice to him of any private
sale is fair and reasonable. The Company may be the purchaser at any public
foreclosure sale, and may bid any commercially reasonable amount at such sale.
In all events, in the event of a public or private foreclosure sale, Optionee
shall be liable for any deficiency. All of the Company's rights and remedies
under the Note(s), the Pledge and this Agreement, and at law or in equity, are
cumulative, and none is intended to be in substitution or in lieu of, nor is the
exercise of one intended to be a waiver of, any other. The Company shall have no
obligation to proceed against the Shares before proceeding against Optionee with
respect to any default under any of the Notes.
3
<PAGE> 4
8. ADJUSTMENT OF SHARES. If at any time prior to the expiration or
exercise in full of the Option, there shall be any increase or decrease in the
number of issued and outstanding shares of the Common Stock through the
declaration of a stock dividend or through any recapitalization resulting in a
stock split-up, combination or exchange of the Common Stock, then and in such
event:
(i) appropriate adjustment shall be made in the maximum number
of Shares available for grant, so that the same percentage of the Company's
issued and outstanding Shares shall continue to be subject to being so optioned;
and
(ii) appropriate adjustment shall be made in the number of
Shares, and the exercise price per Share thereof, that remain unexercised under
the Option, so that the same percentage of the Company's issued and outstanding
shares of Common Stock shall remain subject to purchase at the same aggregate
exercise price.
Except as otherwise expressly provided herein, the issuance by the Company of
shares of its capital stock of any class, or securities convertible into shares
of capital stock of any class, either in connection with a direct sale of upon
the exercise of rights or warrants to subscribe therefore, or upon conversions
of shares or obligations the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be made
with respect to, the number of exercise price of the Shares that remain
unexercised under the Option.
Without limiting the generality of the foregoing, the existence of unexercised
Shares under the Option shall not affect in any manner the right or power of the
Company to make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business; (ii) any merger or consolidation of the Company;
(iii) any issue by the Company of debt securities, or preferred or preference
stock that would rank above the Shares issuable upon exercise of the Option;
(iv) the dissolution or liquidation of the Company; (v) any sale, transfer or
assignment of all or any part of the assets or business of the Company; or (vi)
any other corporate act or proceeding, whether of a similar character or
otherwise.
9. NO RIGHTS AS STOCKHOLDER. Optionee shall have no rights as a
stockholder of the Company in respect of the Shares as to which the Option shall
not have been exercised and payments made therefore as herein provided.
10. BINDING EFFECT. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties hereto, their
heirs, legal representatives, successors and permitted assigns.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
conflict of laws principles thereof.
4
<PAGE> 5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
VIRAGEN (EUROPE) LTD.
/s/ Patricia Zambrano By: /s/ Dennis W. Healey
- ---------------------------------- --------------------------------
Patricia Zambrano Dennis W. Healey
Witness Executive Vice President
OPTIONEE
/s/ Donald Magnus Nicolson
--------------------------------
Donald Magnus Nicolson
5
<PAGE> 6
ATTACHMENT A
NOTICE OF EXERCISE
The undersigned hereby irrevocably elects to exercise the within Option to the
extent of purchasing __________ shares of Common Stock of Viragen (Europe) Ltd.,
a Delaware Corporation, and hereby makes payments of $________ in payment
therefor.
--------------------------
Signature
--------------------------
Date
INSTRUCTIONS FOR ISSUANCE OF STOCK AND CORPORATE RECORDS
Name:
-------------------------------------------
(Please type or print in block letters)
Address: -------------------------------------------
-------------------------------------------
Social Security #:
---------------------------------------
Phone #: ( )
---------------------------------------
Fax #: ( )
---------------------------------------
6
<PAGE> 1
Exhibit 5
==============
ATLAS PEARLMAN
==============
P.A.
ATTORNEYS AT LAW
Jan Douglas Atlas Joel D. Mayersohn of Counsel
Michael W. Baker William Nortman Jon A. Sale
Alan H. Baseman Charles B. Pearlman Benedict P. Kuehne
Stephen W. Bazinsky James M. Schneider Sergio Vivanco A.**
Roxanne K. Beilly Wayne H. Schwartz
Elliot P. Borkson Douglas Paul Solomon
Robin Corwin Campbell Michael L. Trop Director of
Eric Lee Kenneth P. Wurtenberger Marketing and Development
Scott I. Cowan*
Deborah Ann Byles Matthew W. Miller
Rebecca G. DiStefano Brian A. Pearlman
April I. Halle Jonathan S. Robbins
Kip O. Lassner Samantha Nicole Tesser *not licensed to practice law
Andrew Lockwood Steven I. Weinberger **not admitted in Florida
March 14, 2000
Viragen (Europe) Ltd.
865 S.W. 78th Avenue, Suite 100
Plantation, Florida 33324
RE: REGISTRATION STATEMENT ON FORM S-8 - VIRAGEN (EUROPE) LTD. - COMMON
STOCK ISSUED PURSUANT TO COMMON STOCK PURCHASE OPTIONS
Gentlemen:
This opinion is submitted pursuant to the applicable rules of the
Securities and Exchange Commission (the "Commission") with respect to the
registration by Viragen, Inc. (the "Company") of an aggregate of 650,000 shares
of Common Stock, par value $.01 per share (the "Common Stock"), to be issued
pursuant to the Company's 1997 Stock Option Plan (the "Plan") and Common Stock
purchase option (the "Option") with Donald Magnus Nicolson.
In our capacity as special counsel to the Company, we have examined the
original, certified, conformed, photostat or other copies of the Plan, the
Option, the Company's Certificate of Incorporation (as amended), By-Laws and
corporate minutes provided to us by the Company. In all such examinations, we
have assumed the genuineness of all signatures on original documents, and the
conformity to originals or certified documents of all copies submitted to us as
conformed, photostat or other copies. In passing upon certain corporate records
and documents of the Company, we have necessarily assumed the correctness and
completeness of the statements made or included therein by the Company and we
express no opinion thereon.
Based upon and in reliance of the foregoing, we are of the opinion that the
shares of Common Stock when issued in accordance with the terms of the Plan and
the Option will be, validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion in the Registration Statement
on Form S-8 filed with the Commission and the reference to this firm under the
heading "Legal Matters" in the Registration Statement on Form S-8.
Very truly yours,
ATLAS PEARLMAN, P.A.
/s/ Atlas Pearlman, P.A.
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8 No. 333- _______) pertaining to the Stock
Option Agreement with a Key Executive and the 1997 Stock Option Plan of Viragen
(Europe) Ltd. and to the incorporation by reference therein of our report dated
September 17, 1999, with respect to the consolidated financial statements of
Viragen (Europe) Ltd. included in its Annual Report (Form 10-K) for the year
ended June 30, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Miami, Florida
March 14, 2000
