<PAGE>
As filed with the Securities and Exchange Commission on March 1, 1996.
Registration No. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CRYENCO SCIENCES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-1471630
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
3811 JOLIET STREET
DENVER, COLORADO 80239
(Address of principal executive offices) (Zip Code)
1995 INCENTIVE AND
NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
ALFRED SCHECHTER
CHAIRMAN OF THE BOARD
CRYENCO SCIENCES, INC.
C/O CHARTERHOUSE GROUP INTERNATIONAL, INC.
535 MADISON AVENUE - 28TH FLOOR
NEW YORK, NEW YORK 10022
(Name and address of agent for service)
(212) 421-3125
(Telephone number, including area code, of agent for service)
Copy to:
JEFFREY N. SIEGEL, ESQ.
SHACK & SIEGEL, P.C.
530 FIFTH AVENUE
NEW YORK, NEW YORK 10036
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum offering Proposed maximum aggregate Amount of
to be registered registered price per share* offering price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $.01 per share 300,000 $3.75 $1,125,000 $388.00
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and 457(h) on the basis of the average of the
high and low prices reported on the NASDAQ National Market System for
the Registrant's Common Stock on February 27, 1996.
If any of the securities being registered pursuant to this form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, as amended, check the following box. /X/
===============================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified by this Part I will be
sent or given to eligible participants as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
and are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant's Annual Report on Form 10-K for the fiscal year ended
August 31, 1995, the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended November 30, 1995 and the description of the Registrant's Class A
Common Stock, par value $.01 per share, set forth in the Registrant's
Registration Statement No. 33-48738 on Form S-2 are incorporated herein by
reference and are deemed to be part hereof.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment indicating that all shares
of Class A Common Stock, par value $.01 per share (the "Shares"), offered by
the Registrant for purchase pursuant to options which may be granted under
the Registrant's 1995 Incentive and Non-Qualified Stock Option Plan have been
sold or deregistering all such Shares then remaining unsold, are deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
2
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(A) The Registrant's authority to indemnify its officers and directors is
governed by the provisions of Section 145 of the General Corporation Law of the
State of Delaware (the "GCL") and by the Certificate of Incorporation of the
Registrant. The Certificate of Incorporation of the Registrant provides that no
director of the Registrant shall be personally liable to the Registrant or to
any stockholder of the Registrant for monetary damages for breach of fiduciary
duty as a director, except that there is no limit on the liability of a director
(i) for any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the GCL, or (iv) for any transaction from which the director derived an improper
personal benefit.
(B) The Board of Directors of the Registrant authorized the Registrant to
enter into indemnity agreements with officers or directors of the Registrant
when and as determined by the Board of Directors. Pursuant to the foregoing
authority, the Registrant has entered into indemnity agreements with each of its
directors and certain of its officers.
The indemnity agreements obligate the Registrant to provide the maximum
protection allowed under the GCL. The indemnity agreements supplement and
increase the protection afforded to officers and directors under the Certificate
of Incorporation in the following respects:
1. The indemnity agreements establish the presumption that the officer or
director has met the standard of conduct required for indemnification, as
prescribed under the GCL. Indemnification will be made unless the Board of
Directors, independent legal counsel or the stockholders of the Registrant
determines that the applicable standard of conduct has not been met.
2. The indemnity agreements provide that litigation expenses shall be
paid promptly by the Registrant as they are incurred or shall be advanced on
behalf of the officer or director as may be appropriate against delivery of
invoices therefor in advance of indemnification, provided that if it is
ultimately determined that such officer or director is not entitled to
indemnification for such expenses he or she shall promptly repay such amounts to
the Registrant.
3. In the event of a determination by the Board of Directors, independent
legal counsel or the stockholders of the Registrant that an officer or director
did not meet the standard of conduct required for indemnification, the indemnity
agreements allow such officer or director to contest this determination by
petitioning a court to make an independent determination of whether such officer
or director is entitled to indemnification under the indemnity agreements.
4. The indemnity agreements explicitly provide for partial
indemnification of costs and expenses in the event that an officer or director
is not entitled to full indemnification under the terms of the indemnity
agreements.
3
<PAGE>
5. The indemnity agreements cannot be unilaterally modified or amended by
the Registrant, the Board of Directors or the stockholders of the Registrant.
(C) The Registrant maintains a $2,000,000 directors and officers liability
policy with a $2,000,000 excess coverage policy, both of which expire on
December 17, 1996. However, the scope of such insurance policies contain a
number of limitations with respect to the types of claims covered.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description
- -------------- -----------
4.1 1995 Incentive and Non-Qualified Stock Option Plan.
4.2 Form of Option Agreement under the 1995 Incentive and
Non-Qualified Stock Option Plan.
5 Opinion of Shack & Siegel, P.C. with respect to
the legality of the shares of Common Stock being
registered hereby.
23.1 Consent of Shack & Siegel, P.C. (contained in the
Opinion filed as Exhibit 5 hereto).
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney (contained on the signature page
hereof).
4
<PAGE>
ITEM 9. UNDERTAKINGS.
A. 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;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section l3 or 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 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.
B. 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 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.
C. 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
5
<PAGE>
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.
6
<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 Denver, State of Colorado, on this 1st day of March,
1996.
CRYENCO SCIENCES, INC.
(Registrant)
By: /s/ Alfred Schechter
--------------------------------
Alfred Schechter,
Chairman of the Board
POWER OF ATTORNEY
Each person whose signature to this Registration Statement appears below
hereby appoints Alfred Schechter and Dale A. Brubaker, and each of them acting
singly, as his attorney-in-fact, to sign in his behalf individually and in the
capacity stated below and to file all amendments and post-effective amendments
to this Registration Statement, which amendment or amendments may make such
changes and additions to this Registration Statement as such attorney-in-fact
may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the capacity
and on the date indicated.
SIGNATURE DATE CAPACITY IN WHICH SIGNED
--------- ---- ------------------------
/s/ Alfred Schechter March 1, 1996 Chairman of the Board, Chief
- ------------------------- Executive Officer, President and
Alfred Schechter Director of the Company (Principal
Executive Officer)
/s/ Dale A. Brubaker March 1, 1996 President and Chief Operating
- ------------------------- Officer of Cryenco, Inc. and
Dale A. Brubaker Director of the Company
/s/ James A. Raabe March 1, 1996 Vice President, Treasurer, Chief
- ------------------------- Financial Officer and Secretary
James A. Raabe of the Company, Vice President,
Treasurer, Chief Financial Officer
and Secretary of Cryenco, Inc.
(Principal Financial and Accounting
Officer)
Director of the Company
- -------------------------
Jerome L. Katz
7
<PAGE>
Director of the Company
- -------------------------
William P. Phelan
/s/ Russell R. Haines March 1, 1996 Director of the Company
- -------------------------
Russell R. Haines
/s/ Burton J. Ahrens March 1, 1996 Director of the Company
- -------------------------
Burton J. Ahrens
/s/ Ajit G. Hutheesing March 1, 1996 Director of the Company
- -------------------------
Ajit G. Hutheesing
8
<PAGE>
EXHIBIT INDEX
Exhibit Number Description Page
-------------- ----------- ----
4.1 1995 Incentive and Non-Qualified Stock
Option Plan.
4.2 Form of Option Agreement under the
1995 Incentive and Non-Qualified Stock
Option Plan.
5 Opinion of Shack & Siegel, P.C. with
respect to the legality of the shares of
Common Stock being registered hereby.
23.1 Consent of Shack & Siegel, P.C.
(contained in the Opinion filed as
Exhibit 5 hereto).
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney (contained on the
signature page hereof).
<PAGE>
EXHIBIT A
CRYENCO SCIENCES, INC.
1995
INCENTIVE
AND
NON-QUALIFIED STOCK OPTION PLAN
Section 1. PURPOSE.
The purpose of the Incentive and Non-Qualified Stock Option Plan (the
"Plan") of Cryenco Sciences, Inc. (the "Company") is to encourage stock
ownership by directors, officers, employees, and consultants and advisors of the
Company and its subsidiaries by issuing options to purchase shares of the
Company's stock ("Options," and individually an "Option"), enabling such
directors, officers, employees, and consultants and advisors to acquire or
increase their proprietary interest in the Company and thereby encouraging them
to continue to provide their services to the Company and its subsidiaries and
generally, to promote the interests of the Company and all of its stockholders.
The Options issued pursuant to the Plan are intended to constitute either
incentive stock options within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), or non-qualified stock options,
at the discretion of the Committee (as defined in Section 2) at the time of
grant. The type of Options granted will be specified in the letter of grant to
the director, officer or employee who is granted the Options (the "Optionee").
The terms of this Plan shall be incorporated in the grant letter.
Section 2. ADMINISTRATION.
(a) The Plan shall be administered by the Compensation Committee of the
Board of Directors of the Company (the "Board") or such other committee as
appointed by the Board (the "Committee"). The Committee shall have at least two
members and each member shall be (i) a member of the Board, (ii) a
"disinterested person" within the meaning of Rule 16b-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or successor rule or
regulation and (iii) an "outside director" within the meaning of Section 162(m)
of the Code.
(b) All decisions, determinations or actions of the Committee made or taken
pursuant to grants of authority under the Plan shall be made or taken in the
sole discretion of the Committee and shall be final, conclusive and binding on
all persons for all purposes.
(c) The Committee shall have full power, discretion and authority to
interpret, construe and administer the Plan and any part thereof, and its
interpretations and constructions thereof and actions taken thereunder shall be
final, conclusive and binding on all persons for all purposes.
(d) The Committee's decisions and determinations under the Plan need not be
uniform and may be made selectively among employees or directors, whether or not
such individuals are similarly situated.
(e) The act of a majority of the members present at a meeting duly called
and held shall be the act of the Committee. Any decision or determination
reduced to writing and signed by all members of the Committee shall be fully as
effective as if made by unanimous vote at a meeting duly called and held.
(f) Notwithstanding anything else herein to the contrary, the Committee
shall not be required to direct the Company to grant any Options under this
Plan.
Section 3. ELIGIBILITY.
Directors (except members of the Committee), officers and employees of the
Company or its subsidiaries who are expected to make significant contributions
to the long-term success of the Company are eligible to receive incentive stock
options or non-qualified stock options under the Plan, as the Committee may
select from time to time. Consultants and advisors of the Company or its
A-1
<PAGE>
subsidiaries are eligible to receive non-qualified stock options under the Plan,
as the Committee may select from time to time. A director, officer, employee,
consultant or advisor who is granted an Option is an Optionee (which term also
includes the Optionee's Beneficiary under Section 14 hereof). An Optionee may be
granted more than one Option.
Directors who are not also employees of the Company or its subsidiaries
shall not be eligible to receive Options in the form of incentive stock options.
For purposes of determining employees eligible to receive incentive stock
options, the term subsidiary includes only an entity that qualifies as a
"subsidiary corporation" of the Company under Section 424(f) of the Code.
Section 4. STOCK.
The aggregate number of shares of the Company's common stock ("Shares" or
"Stock") which may be awarded under the Plan or subject to purchase by
exercising Options is 300,000 shares. Such shares shall be made available either
from authorized and unissued shares or shares held by the Company in its
treasury. If, for any reason, any shares of Stock subject to purchase or payment
by exercising an Option under the Plan are not delivered or are reacquired by
the Company, for reasons including, but not limited to, termination of
employment, termination of director status, termination of consultant or advisor
status or expiration or a cancellation with the consent of an employee,
director, consultant or advisor of an Option, such shares of Stock shall again
become available for award under the Plan. Further, the foregoing aggregate
number of shares shall be subject to a corresponding increase or decrease or
change in the event of an adjustment in the number or kind of shares subject to
Options pursuant to Section 5(h) hereto.
Section 5. TERMS AND CONDITIONS OF OPTIONS.
Each Option granted pursuant to the Plan will be authorized by the Committee
and will be evidenced by an agreement (the "Option Notice" or "Option
Agreement") in such form as the Committee may from time to time determine. Each
Option Notice will include the information required in subparagraphs (a), (b)
and (c) of this Section 5 and will be in conformity with and will incorporate by
reference all other terms and conditions of the Plan, including the following
terms and conditions:
(a) Number of Shares.
The number of Shares subject to the Option, which may include
fractional shares, will be stated in the Option Notice.
(b) Option Price.
The price per Share payable on the exercise of the Option will be
stated in the Option Notice and will be at a price, not less than the
greater of (i) 100 percent of the fair market value per share of the
outstanding shares of Stock of the Company on the date the Option is
granted or (ii) the par value per share of the Stock. Unless the Stock is
quoted on the National Association of Securities Dealers Automated
Quotation ("NASDAQ") System or listed on a recognized securities
exchange, the fair market value shall be determined, in good faith, by
the Committee for all purposes under the Plan. If the Company's Stock is
either quoted on NASDAQ or listed on a recognized securities exchange,
the fair market value for all purposes under the Plan shall be the
representative closing price of the Stock as obtained from NASDAQ or such
recognized securities exchange on the date of the grant (or other
relevant date) of the Option, or if there is no such quotation on the
date of the grant (or other relevant date) of the Option on the most
recent date on which selling prices were reported.
(c) Form of Option.
The Option Notice will state whether the Option granted is an
incentive stock option or a non-qualified stock option, or both, and will
constitute a binding determination as to the form of Option granted.
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<PAGE>
(d) Payment.
The price payable on the exercise of the Option in whole or in part
will be equal to the Option price multiplied by the number of Shares as
to which the Option is exercised, and shall be paid in full upon exercise
of any Option, either in cash or by delivering to the Company shares of
Stock having a fair market value equal to the aggregate exercise price of
the Stock being purchased on exercise of the Options, or by a combination
of such cash and shares. The Committee may, in its discretion, arrange
procedures for the payment of the exercise price with one or more stock
brokerage firms for the purpose of allowing the Optionee to make a
"cashless exercise" of his or her Option.
(e) Notwithstanding any other provision of this Plan:
(i) No Option shall be granted under this Plan after ten years after the
adoption date.
(ii) No Option granted under this Plan shall be exercisable later than
ten years from the date of grant.
(iii) No Option granted to any Optionee shall be treated as an incentive
stock option, to the extent such Option would cause the aggregate
fair market value (determined as of the date of grant of each such
Option) of the Shares with respect to which incentive stock options
are exercisable by such Optionee for the first time during any
calendar year to exceed $100,000. For purposes of determining
whether an incentive stock option would cause the aggregate fair
market value of the Shares to exceed the $100,000 limitation, such
incentive stock options shall be taken into account in the order
granted. For purposes of this subsection, incentive stock options
include all incentive stock options under all plans of the Company
that are incentive stock option plans within the meaning of Section
422 of the Code.
(iv) Options granted pursuant to this Plan may be exercised in any order
elected by the Optionee whether or not the Optionee holds any
unexercised Options under this Plan or any other Plan of the
Company.
(v) Notwithstanding any provision herein to the contrary, no incentive
stock option shall be granted under this Plan to any person who, at
the time of the grant of such Option, owns stock possessing more
than 10 percent of the total combined voting power of all classes of
the Company's Stock, unless the Option price at the time the Option
is granted is at least 110 percent of the fair market value of the
Stock, and subject to the condition that the Option expires no more
than five years from the option grant date.
(f) Term and Exercise of Options.
(i) Subject to the provisions of Section 5(e)(i), (ii) and (v) hereof,
Options granted hereunder may be exercisable in whole or in part at
such time or times and under such terms and conditions as the
Committee shall designate when granting such Options. The Committee
may provide that an Option that is not otherwise exercisable becomes
exercisable upon the death, disability or discharge without cause of
an employee or director.
(ii) Options granted hereunder may be exercised for fractional Shares.
(iii) Unless sooner terminated as provided in this Plan, each Option
shall expire no later than ten years from the date of grant and
shall be void and unexercisable thereafter. An Option may be
exercised only by the Optionee during his or her lifetime and may
not be exercised by any other person except as provided in Section
5(g) hereof.
A-3
<PAGE>
(g) Termination of Options.
(i) Except as provided herein, Options granted to directors, officers
and employees shall terminate when the Option holder ceases to be
employed by or a director of the Company or its subsidiaries.
(ii) Upon the death of an Optionee while in the employ of the Company or
its subsidiaries, while a director of the Company or its
subsidiaries, or upon death of a consultant or advisor to the
Company or its subsidiaries, Options held by such Optionee which
are exercisable on the date of his or her death shall be
exercisable by his or her Beneficiary for a period of one year (or
such other period as determined by the Committee and specified in
the Option Agreement) from the date of such Optionee's death.
(iii) Upon termination of an Optionee's employment with the Company or
its subsidiaries or if the Optionee is a director, upon termination
of the Optionee's term of office, for any reason other than "Cause"
as defined in Section 5(g)(iv), Options exercisable by such
Optionee on the date of termination shall be exercisable by the
Optionee (or in the case of the Optionee's death subsequent to
termination, by the Optionee's Beneficiary) for a period of one
year (or such other period as determined by the Committee and
specified in the Option Agreement) from the date of such Optionee's
termination of employment.
(iv) Upon the termination of an Optionee's employment (or if the Optionee
is a director, upon termination of the Optionee's term of office,
for "Cause," as defined in this Section 5(g)(iv) all Options held by
such Optionee shall terminate concurrently with receipt by the
Optionee of oral or written notice that his or her employment (or
membership on the Board) has been terminated. For the purposes of
this Plan, termination for "Cause" shall include termination by
reason of being convicted for any felony or committing willful and
gross negligence or willful and gross misconduct in carrying out
duties properly assigned to an Optionee by the Company.
(v) Options may be terminated at any time by agreement between the
Company and the Optionee.
(h) Recapitalization.
(i) Subject to Section 5(h)(ii), if the outstanding shares of Stock of
the Company are increased, decreased or exchanged for a different
number or kind of shares or other securities, or if additional
shares or new or different shares or other securities are
distributed with respect to such shares of Stock or other
securities, through merger, consolidation, sale of all or
substantially all of the property of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other distribution with respect to such
shares of Stock or other securities, then, to the extent permitted
by the Company, an appropriate and proportionate adjustment shall be
made in (i) the maximum number and kind of shares provided in
Section 4, (ii) the number and kind of shares or other securities
subject to the outstanding Options, if any, and (iii) the price for
each share or other unit of any other securities subject to
outstanding Options without change in the aggregate purchase price
or value as to which such Options remain exercisable or subject to
restrictions. Any adjustment under this Section 5(h) shall be made
by the Company, whose determination as to what adjustments shall be
made and the extent thereof will be final, binding and conclusive.
(ii) Notwithstanding anything else herein to the contrary, the Board, in
its sole discretion at the time of grant of an Option or otherwise
may, in an Option Agreement or otherwise, provide that, with an
employee's or director's consent, upon the occurrence of certain
events, including a change in control of the Company (as determined
by the Board) any
A-4
<PAGE>
outstanding Options not theretofore exercisable, shall immediately
become exercisable in their entirety and that any such Option may
be purchased by the Company for cash at a price to be determined by
the Board.
(i) Rights as a Stockholder.
The Optionee will have no rights as a stockholder of the Company with
respect to any Shares subject to an Option until such Option has been
exercised and a certificate with respect to the Shares purchased upon
exercise has been issued to him or her. Except as determined by the
Company pursuant to Section 5(h), no adjustment will be made for
dividends (ordinary or extraordinary, whether in cash, securities or
other property), distributions or other rights for which the record date
is prior to the date the Shares so purchased have been issued.
(j) Modification, Extension and Renewal of Option.
Subject to the terms and conditions of the Plan, the Committee may
modify, extend or renew an Option, or accept the surrender of an Option
(to the extent not theretofore exercised), provided that no such action
which adversely affects the Optionee shall be made without the consent of
the Optionee.
(k) Purchase for Investment.
Each Option Agreement shall provide that unless at the time of
exercise of the Option there shall be, in the opinion of counsel for the
Company, a valid and effective registration statement under the
Securities Act of 1933, as amended ("the '33 Act"), and appropriate
qualification and registration under applicable state securities laws
relating to the Stock being acquired pursuant to the Option, the Optionee
shall upon exercise of the Option give a representation that he or she is
acquiring such shares for his or her own account for investment and not
with a view to, or for sale in connection with, the resale or
distribution of any such shares. In the absence of such registration
statement, the Optionee shall be required to execute a written
affirmation, in a form reasonably satisfactory to the Company, of such
investment intent and to further agree that he or she will not sell or
transfer any Stock acquired pursuant to the Option until he or she
requests and receives an opinion of the Company's counsel to the effect
that such proposed sale or transfer will not result in a violation of the
'33 Act, or a registration statement covering the sale or transfer of the
shares has been declared effective by the Securities and Exchange
Commission, or he or she obtains a no-action letter from the Securities
and Exchange Commission with respect to the proposed transfer.
(l) No Rights to Employment or Continuing Relationship.
Officers, employees or directors granted Options under this Plan
shall not have any right to continue in the employment of the Company or
its subsidiaries or as a member of the Board by nature of the existence
of such Options. An Optionee whose employment or membership on the Board
is terminated shall have no rights against the Company by reason of the
termination of such Option whether the termination of the employment be
with or without Cause, as defined in Section 5(g)(iv). Consultants or
advisors granted Options under this Plan shall not have any right to
continue in their relationship with the Company or its subsidiaries by
nature of the existence of such Options.
(m) Other Provisions.
The Option Notice may contain such other provisions as the Committee
in its sole discretion deems advisable and which are not inconsistent
with the provisions of this Plan, including, without limitation,
restrictions upon the exercise of the Option.
Section 6. TERM OF PLAN.
Options may be granted from time to time within a period of ten years from
the date the Plan is effective as described in Section 10 hereof.
A-5
<PAGE>
Section 7. AMENDMENT OF THE PLAN.
Insofar as permitted by law and the Plan, the Board may from time to time
amend or terminate the Plan in any respect whatsoever with respect to any Shares
at the time not subject to an Option; PROVIDED, HOWEVER, that no such action
shall, without approval by a majority of the Company's stockholders, (i) alter
the group of persons eligible to participate in the Plan, (ii) materially
increase the benefits provided under the Plan to the extent that stockholder
approval would then be required pursuant to Rule 16b-3 under the Exchange Act or
successor rule or regulation, (iii) increase the maximum number of shares of
Stock which are available for awards under the Plan or (iv) extend the period
during which Options may be granted under the Plan beyond the expiration of ten
years from the effective date of the Plan. No amendment or termination shall
retroactively impair the rights of any person with respect to an Option.
Section 8. APPLICATION OF FUNDS.
The proceeds received by the Company from the sale of Shares pursuant to the
exercise of Options will be used for general corporate purposes.
Section 9. NO OBLIGATION TO EXERCISE OPTION.
The granting of an Option will impose no obligation upon the Optionee to
exercise such Option.
Section 10. EFFECTIVE DATE AND APPROVAL OF STOCKHOLDERS.
The effective date of this Plan is November 16, 1995, subject to the
approval by a majority of the Company's stockholders within one year of such
effective date. Notwithstanding anything in the Plan to the contrary, if the
Plan shall have been approved by the Board prior to such stockholder approval,
Options may be granted by the Committee as provided herein subject to such
subsequent stockholder approval.
Section 11. WITHHOLDING TAXES.
The Company may take such steps as it may deem necessary or appropriate for
the withholding of any taxes which the Company is required by any law or
regulation or any governmental authority, whether federal, state or local,
domestic or foreign, to withhold in connection with the issuance of Stock. Such
steps include, but are not limited to, the withholding of all or any portion of
any payment, or the withholding of the issuance of shares of Stock to be issued
upon the exercise of any Option, until the Optionee reimburses the Company for
the amount required to be withheld, or cancelling any portion of such payment or
issuance in an amount sufficient to reimburse itself for the amount required to
be withheld.
Section 12. CERTIFICATES FOR SHARES OF STOCK.
(a) Each Optionee entitled to receive shares of Stock under the Plan shall
be issued a certificate for such shares. Such certificate shall be
registered in the name designated by the Optionee, and shall bear an
appropriate legend reciting the terms, conditions and restrictions, if
any, applicable to such shares and shall be subject to appropriate
stop-transfer orders.
(b) Shares of Stock shall be made available under the Plan either from
authorized and unissued shares, or shares held by the Company in its
treasury. The Company shall not be required to issue or deliver any
certificates for shares of Stock prior to (i) the listing of such shares
on any recognized securities exchange on which the Stock may then be
listed, (ii) the completion of any registration or qualification of such
shares under any federal or state law, or any ruling or regulation of any
governmental body, which the Committee shall, in its sole discretion,
determine to be necessary or advisable and (iii) the recipient's
execution of a stockholders agreement providing such terms and conditions
as the Committee may determine in its sole discretion.
(c) All certificates for shares of Stock delivered under the Plan shall also
be subject to such stop-transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any
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<PAGE>
securities exchange upon which the Stock is then listed and any
applicable federal or state securities laws, and the Committee may cause
a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions. The foregoing provisions of
this Section 12(c) shall not be effective if and to the extent that the
shares of Stock delivered under the Plan are covered by an effective and
current registration statement under the '33 Act, or if, and so long as,
the Committee determines that application of such provisions is no longer
required or desirable. In making such determination, the Committee may
rely upon an opinion of counsel for the Company.
Section 13. LOANS.
(a) The Committee may provide for loans to the Optionee at such time and in
such manner as the Committee may determine in connection with the
exercise of an Option.
(b) Any such loan shall be evidenced by a written loan agreement or other
instrument in such form and shall contain such terms and conditions,
including without limitation, provisions for interest, payment schedules,
collateral, forgiveness, events of default or acceleration of such loans
or parts thereof, as the Committee shall specify; PROVIDED, HOWEVER, that
in the case of an incentive stock option, the interest rate set by the
Committee under such an arrangement shall be no lower than that required
to avoid the imputation of unstated interest under the Code and the
Committee shall specify no such term or condition that would result in
such Option failing to qualify as an incentive stock option.
Section 14. BENEFICIARY.
(a) Each Optionee shall file with the Company a written designation of one
or more persons as the Beneficiary who shall be entitled to receive the
Option, if any, awarded under the Plan upon his or her death. An Optionee
may from time to time revoke or change his or her Beneficiary designation
without the consent of any prior Beneficiary by filing a new designation
with the Company. The last such designation received by the Company shall
be controlling; PROVIDED, HOWEVER, that no designation, or change or
revocation thereof, shall be effective unless received by the Company
prior to the Optionee's death, and in no event shall it be effective as
of a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time of an
Optionee's death, or if no designated Beneficiary survives the Optionee
or if such designation conflicts with law, the Optionee's estate shall be
entitled to receive the Option, if any, awarded under the Plan upon his
or her death. If the Company is in doubt as to the right of any person to
receive such Option, the Company may retain such Option, without
liability for any income thereon, until the Company determines the rights
thereto, or the Company may transfer such Option into any court of
appropriate jurisdiction and such payment shall be a complete discharge
of the liability of the Company therefor.
Section 15. COMPLIANCE WITH RULE 16B-3.
(a) Unless an Optionee could otherwise transfer shares issued upon exercise
of an Option without incurring liability under Section 16(b) of the
Exchange Act, at least six months must elapse from the date of an Option
grant to the date of disposition of the shares issued upon exercise of
the Option.
(b) It is the intent of the Company that this Plan comply in all respects
with applicable provisions of Rule 16b-3 under the Exchange Act in
connection with any grant of Options or other payment to a person who is
subject to Section 16 of that Act. Accordingly, if any provision of this
Plan or any agreement relating to an Option does not comply with the
requirements of Rule 16b-3 as then applicable to any such person, such
provision will be construed or deemed amended to the extent necessary to
conform to such requirements with respect to such person.
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<PAGE>
Section 16. MISCELLANEOUS.
(a) No Option granted under the Plan shall be transferable other than by
will or by the laws of descent and distribution.
(b) No employee, director, consultant or advisor shall have any claim to an
Option until it is actually granted under the Plan. To the extent that
any person acquires a right to receive payments from the Company under
this Plan, such right shall be no greater than the right of an unsecured
general creditor of the Company.
(c) If the Committee shall find that any person to whom any Option, or
portion thereof, is awarded to under the Plan is unable to care for his
or her affairs because of illness or accident, or is a minor, then any
payment due him or her (unless a prior claim therefor has been made by a
duly appointed legal representative) may, if the Committee so directs the
Company, be paid to his or her spouse, a child, a relative, an
institution maintaining or having custody of such person, or any other
person deemed by the Committee to be a proper recipient on behalf of such
person otherwise entitled to payment. Any such payment shall be a
complete discharge of the liability of the Company therefor.
(d) The right of any employee, director, consultant, advisor or other person
to any Option, or Stock under the Plan may not be assigned, transferred,
pledged or encumbered, either voluntarily or by operation of law, except
with respect to the designation of a Beneficiary or as may otherwise be
required by law. If, by reason of any attempted assignment, transfer,
pledge, or encumbrance or any bankruptcy or other event happening at any
time, any amount payable under the Plan would be made subject to the
debts or liabilities of the Optionee or his or her Beneficiary or would
otherwise devolve upon anyone else and not be enjoyed by the Optionee or
his or her Beneficiary, then the Committee may terminate such person's
interest in any such payment and direct that the same be held and applied
to or for the benefit of the Optionee, his or her Beneficiary or any
other persons deemed to be the natural objects of his or her bounty,
taking into account the expressed wishes of the Optionee (or, in the
event of his or her death, those of his or her Beneficiary) in such
manner as the Committee may deem proper.
(e) Copies of the Plan and all amendments, administrative rules and
procedures and interpretations shall be made available to all employees
and directors (and to any consultant or advisor who is also an Optionee)
at all reasonable times at the Company's headquarters.
(f) The Plan and the grant of 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.
(g) All elections, designations, requests, notices, instructions and other
communications from an employee, director, consultant, advisor,
Beneficiary or other person to the Committee, required or permitted under
the Plan, shall be in such form as is prescribed from time to time by the
Committee and shall be mailed by first class mail or delivered to such
location as shall be specified by the Committee.
(h) The terms of the Plan shall be binding upon the Company and its
successors and assigns.
(i) Captions preceding the sections hereof are inserted solely as a matter
of convenience and in no way define or limit the scope or intent of any
provision hereof.
(j) The Company shall have the right to require an Optionee to remit to the
Company an amount sufficient to satisfy any federal, state or local
withholding tax requirements prior to the delivery of any certificate or
certificates for Stock.
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<PAGE>
1995 INCENTIVE AND NON-QUALIFIED
STOCK OPTION AGREEMENT
Cryenco Sciences, Inc., a Delaware corporation (the "Company"), hereby
grants to ___________ ("Optionee"), options to purchase a total of ___________
shares of Class A common stock ($.01 par value) of the Company ("Shares" or
"Stock"), at the price determined as provided herein, and in all respects
subject to the terms, definitions and provisions of the Company's 1995 Incentive
and Non-Qualified Stock Option Plan (the "Plan") incorporated herein by
reference. Unless otherwise stated, the terms which are defined in the Plan
shall have the same meanings when used herein.
1. NATURE OF THE OPTION.
This Option is a(n) __________ stock option.
2. OPTION PRICE.
The option price shall be $_____ for each Share (the "Option Price").
3. EXERCISE OF OPTION.
Subject to Section 6, 7 and 8 hereof, this Option shall be exercisable
during its term as follows:
(a) RIGHT TO EXERCISE.
i) This Option shall be exercisable, in whole or in part,
during its term at any time commencing on or after
__________, ____.
ii) This Option may be exercised for fractional Shares.
iii) In the event the Optionee dies or becomes disabled (as
determined by the Committee in its sole discretion) before
__________, ____ and while an employee of the Company or its
subsidiaries, or a consultant or advisor to the Company or
its subsidiaries, or a director of the Company, this Option
shall become exercisable.
(b) METHOD OF EXERCISE.
This Option shall be exercisable by written notice which shall
state the number of Shares, including fractional Shares, in
respect of which this Option is being exercised, and which shall
contain or be accompanied by such other representations and
agreements as to the holder's investment
<PAGE>
intent with respect of such Shares as may be required by the
Company pursuant to the provisions of the Plan. Such written
notice shall be signed by Optionee and shall be delivered in
person or by certified mail to the Secretary of the Company.
Except as may otherwise be specified by the Committee, the
written notice shall be accompanied by payment of the Option
Price.
No Shares will be issued pursuant to the exercise of this Option
unless such issuance and such exercise shall comply with all
relevant provisions of law and the requirements of any stock
exchange upon which the Shares may then be listed.
(c) ADJUSTMENTS.
In the event of any change in the Stock of the Company by reason
of any stock dividend, recapitalization, reorganization, merger,
consolidation, split-up, combination or exchange of shares, or
any rights offering to purchase Stock at a price substantially
below fair market value, or of any similar change affecting the
Stock, the number and kind of shares subject to this Option and
their purchase price per share shall be appropriately adjusted
consistent with such change in such manner as the Company may
deem equitable to prevent substantial dilution or enlargement of
the rights granted to the Optionee hereunder. Any adjustment so
made shall be final and binding upon Optionee.
4. OPTIONEE'S REPRESENTATIONS.
In the event the Shares which may be purchased pursuant to the
exercise of this Option have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), at the time this Option is exercised,
Optionee shall, concurrently with the exercise of all or any portion of this
Option, deliver to the Company a statement representing his intent to invest in
the Company in such form as the Company in its sole discretion may provide.
5. METHOD OF PAYMENT.
Payment of the Exercise Price, shall be in either of the following
forms, or a combination thereof, in the discretion of the Committee:
(a) Check; or
(b) Such other method as determined by the Committee.
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<PAGE>
6. RESTRICTIONS ON EXERCISE.
This Option may not be exercised if the issuance of such Shares upon
such exercise or the method of payment of consideration for such Shares would
constitute a violation of any applicable federal or state securities or other
law or regulation. As a condition to the exercise of this Option, the Company
may require the Optionee to make any representation and warranty to the Company
as may be required by any applicable law or regulation.
7. DEATH OF OPTIONEE.
Upon the death of Optionee while in the employ of the Company or its
subsidiaries, while a director of the Company or its subsidiaries, or upon death
of a consultant or advisor to the Company or its subsidiaries, this Option shall
be exercisable by his or her Beneficiary for a period of one year from the date
of such Optionee's death.
8. TERMINATION OF EMPLOYMENT.
Upon the termination of the Optionee's employment with the Company and its
subsidiaries (or if the Optionee is a director, upon termination of the
Optionee's term of office) for any reason other than death, this Option shall
terminate concurrently with receipt by the Optionee of oral or written notice
that his or her employment (or term of office) has been so terminated, PROVIDED,
HOWEVER, that if this Option is exercisable on the date of termination, the
Company shall have the right, but not the obligation, at its sole discretion, to
provide the Optionee (or in the case of the Optionee's death subsequent to
termination, the Optionee's Beneficiary) an additional period of up to three
months from the date of the Optionee's termination to exercise this Option.
9. NON-TRANSFERABILITY OF OPTION.
This Option may not be sold, pledged, assigned, hypothecated,
transferred or disposed of in any manner other than by the laws of descent and
distribution and may be exercised during the lifetime of the Optionee only by
him or her. The terms of this Option shall be binding upon the Beneficiary,
executors, administrators, heirs and successors of the Optionee.
10. TERM OF OPTION.
The term of this Option shall be the period beginning __________, ____
and ending __________, ____. Notwithstanding anything else herein to the
contrary, this Option may not be exercised after __________, ____, and may be
exercised during its term only in accordance with the terms and provisions of
the Plan and this Option.
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<PAGE>
11. ACKNOWLEDGMENT.
The Optionee acknowledges receipt of a copy of the Plan. The Optionee
represents that he or she has read the terms and provisions of the Plan and
accepts this Option subject to all of the terms and provisions thereof. The
Optionee hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Committee and the Company upon any questions arising
under the Plan.
12. ENTIRE AGREEMENT.
This Agreement, together with the exhibits attached hereto, represents
the entire agreement between the parties.
13. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of
Delaware.
14. AMENDMENT.
This Agreement may only be amended by a writing signed by each of the
parties hereto.
DATE OF GRANT: CRYENCO SCIENCES, INC.
By:
-------------------------------
Name:
Title:
Agreed to as of the ____ day of __________, ____ .
-------------------------------
"Optionee"
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<PAGE>
SHACK & SIEGEL, P.C.
530 FIFTH AVENUE
NEW YORK, NEW YORK 10036
(212) 782-0700
March 1, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Form S-8 Registration Statement
300,000 shares of Class A common stock of
Cryenco Sciences, Inc.
-----------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Cryenco Sciences, Inc., a Delaware
corporation (the "Company"), in connection with the filing with the Securities
and Exchange Commission of a registration statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to 300,000 shares of the Company's Class A common
stock, par value $.01 per share ("Common Stock"), which may be issued and sold
pursuant to the Company's 1995 Incentive and Non-Qualified Stock Option Plan
(the "1995 Plan").
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of (i) the 1995 Plan; (ii) the Registration Statement; (iii) the
Certificate of Incorporation, as amended, of the Company; (iv) the By-Laws of
the Company; and (v) such other documents as we have deemed necessary or
appropriate as a basis for the opinion set forth below. In our examination, we
have assumed the genuineness of all signatures, the legal capacity of all
natural persons, the authenticity of all documents submitted to us as originals,
the conformity to the original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of the originals of such
latter documents. As to any facts material to this opinion that we did not
independently establish or verify, we have relied upon statements and
representations of officers and other representatives of the Company and others.
<PAGE>
Based upon and subject to the foregoing, we are of the opinion
that the shares of Common Stock reserved for issuance upon the exercise of
options have been duly authorized and that such shares of Common Stock, when
issued and delivered upon exercise of the options granted in accordance with the
terms of the 1995 Plan, and assuming full payment for the shares of Common Stock
thereby issued, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
The law covered by the opinions expressed herein is limited to
the corporate laws of the State of Delaware.
Very truly yours,
SHACK & SIEGEL, P.C.
By: /s/ Jeffrey N. Siegel
-----------------------------
Jeffrey N. Siegel
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<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1995 Incentive and Non-Qualified Stock Option
Plan of Cryenco Sciences, Inc. of our reports dated November 22, 1995, with
respect to the consolidated financial statements and schedule of Cryenco
Sciences, Inc. included in the Annual Report (Form 10-K) for the year ended
August 31, 1995.
ERNST & YOUNG LLP
Denver, Colorado
February 29, 1996
