<PAGE>
As filed with the Securities and Page 1 of 30 Pages
Exchange Commission on January 16, 1996 Reg. No. 33-
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MARK SOLUTIONS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 11-2864481
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
Parkway Technical Center
1515 Broad Street
Bloomfield, New Jersey 07003
(Address of principal offices including zip code)
1993 Stock Option Plan
and
Consultant Stock Option Grants Pursuant to Written Agreements
(Full Title of Plans)
Carl Coppola, President
Mark Solutions, Inc.
1515 Broad Street
Bloomfield, New Jersey 07003
(Name and Address of agent for service)
(201) 893-0500
(Telephone number including area code for agent for service)
CALCULATION OF REGISTRATION FEE
==============================================================================
Title of Each Amount to be Proposed Proposed Maximum Amount of
Class of Registered(1) Maximum Aggregate of Registration
Securities to Offering Offering Price (2) Fee (1)
be Registered Price Per
Share (2)
- ------------------------------------------------------------------------------
Common Stock,
$.01 par value 1,055,000 $ 5.75 $ 6,066,250 $ 2,091.81
==============================================================================
(1) Also registered hereby pursuant to Rule 416 are such additional
indeterminate shares of Common Stock or other securities as may become issuable
by reason of stock splits or other adjustments pursuant to antidilution
provisions of the 1993 Stock Option Plan and Consultant Stock Option Grants.
(2) Estimated solely for purposes of calculating registration fee pursuant to
Rule 457 based upon the last sales price as reported on NASDAQ within the prior
five days.
Exhibit Index Appears on Page 8
<PAGE>
MARK SOLUTIONS, INC.
Form S-8 Registration Statement
For 1993 Stock Option Plan
and
Consultant Stock Option Grants
Pursuant to Written Agreements
_______________________________________
PART I.
Information Required in Section 10(a) Prospectus
This Registration Statement is filed with the Securities and Exchange
Commission (the "Commission") for the purpose of registering 1,055,000 shares of
common stock, $.01 par value, ("Common Stock") of the Registrant in connection
with its 1993 Stock Option Plan (the "Plan") and Consultant Stock Option Grants
pursuant to written agreements (the "Option Grants").
Information required by Part I (Items 1 and 2) is included in documents
sent or given to participants in the Plan and Option Grants pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
PART II.
Information Required in Registration Statement
Item 3- Incorporation of Documents by Reference.
The following documents are incorporated by reference into this
Registration Statement, and are made a part hereof:
(a) The Registrant's Annual Report on Form 10-K, containing audited financial
statements, for the fiscal year ended June 30, 1995.
(b) The Registrant's quarterly report on Form 10-Q for the fiscal quarter ended
September 30, 1995.
(c) All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, after the date of this
Registration Statement and prior to the filing of a post-effective amendment
indicating that all of the securities offered hereby have been sold, or
deregistering all such securities then remaining unsold, shall be deemed to be
incorporated by reference and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
-2-
<PAGE>
incorporated or deemed incorporated by reference herein modifies or supersedes
such statement. Any such document so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
(d) The description of securities of the Registrant offered hereunder contained
in Registrant's Joint Proxy Statement/Prospectus on Form S-4 declared effective
by the Commission on October 8, 1993 (Commission File Number 33-61176).
Item 4- Description of Securities.
Not applicable.
Item 5- Interests of Named Experts and Counsel.
Timothy J. McCartney, Esq., legal counsel to the Registrant, is rendering
the opinion regarding the legality of the securities offered pursuant this
Registration Statement. Mr. McCartney has been granted options to purchase up
to 30,000 shares of the Registrant's Common Stock and such shares are being
registered under this Registrant Statement.
Item 6- Indemnification of Officers and Directors.
Reference is made to Article Seven of the Certificate of Incorporation of
the Registrant and Section 145 of the Delaware General Corporation Law.
Article Seven of the Certificate of Incorporation of the Registrant
provides for indemnification to the full extent permitted by Delaware law of all
persons whom it shall have the power to indemnify thereunder. Section 145 of
the General Corporation Law of the State of Delaware ("GCL") contains provisions
entitling directors and officers of the Registrant to indemnification from
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorney's fees, as the result of being or having been a director or officer of
the Registrant provided said officers or directors acted in good faith. GCL
Section 145 provides broad powers of indemnification of directors and officers
by their corporation. For example, the board of directors, the shareholders, or
independent legal counsel in some circumstances may authorize the corporation to
indemnify any officer or director again expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, actually and reasonable
incurred by him in connection with any "threatened, pending or completed action,
suit or proceeding other than an action by or in the right of the corporation,
whether civil,
-3-
<PAGE>
criminal, administrative or investigative -- by reason of the fact that he is or
was a director or officer of the corporation, if such director or officer acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful".
With respect to any threatened, pending or completed action or suit by or in
the right of a Delaware corporation, the corporation may in like manner
indemnify any officer or director against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such personal shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to the
corporation, but only if and to the extent that the Court of Chancery or the
court in which the action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Should a director or officer defend litigation arising out of his office
and be successful on the merits or otherwise in defense of the action, GCL
Section 145 provides that such officer or director shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Finally, a corporation organized under the GCL shall have power to
purchase and maintain insurance on behalf of any director or officer against any
liability asserted against him and incurred by him in such capacity or arising
out of his status as an officer or a director, whether or not the corporation
would have the power to indemnify him against such liability under the before
described provisions of Section 145 of the GCL.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors and officers, or persons controlling the
Registrant, the Registrant has been informed that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
The Registrant has obtained insurance to protect its directors and
officers against certain liabilities under a directors and officers policy
providing customary coverage.
-4-
<PAGE>
Item 7- Exemption From Registration Claimed.
Not applicable.
Item 8- Exhibits.
Reference is made to the Exhibit Index which is included on page 8 of this
Registration Statement.
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 to include any
additional or changed 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.
(2) That, for purposes of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be treated as a new registration
statement relating to the securities offered herein, and shall treat the
offering of such securities at that time as 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.
(4) 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.
(5) 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 provisions set forth in Item 6 hereof or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, and is therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
-5-
<PAGE>
payment by 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
of the Registrant 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 of whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933, 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 a registration statement 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 Town of Bloomfield, State of New Jersey on
January 15, 1996.
MARK SOLUTIONS, INC.
By: /s/ Carl Coppola
----------------------------------
Carl Coppola, President, Chief
Executive Officer and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
- --------- ----- ----
/s/ Carl Coppola President, Chief January 15, 1996
- --------------------- Executive Officer
Carl Coppola Chief Financial
Officer and Director
/s/ Richard Branca Director January 15, 1996
- ---------------------
(Richard Branca)
/s/ Ronald E. Olszowy Director January 15, 1996
- ---------------------
(Ronald E. Olszowy)
/s/ William Westerhoff Director January 15, 1996
- ---------------------
(William Westerhoff)
/s/ Michael Nafash Director January 15, 1996
- ---------------------
(Michael Nafash)
-7-
<PAGE>
EXHIBIT INDEX
-------------
Exhibit numbers are in accordance with the Exhibit Table in
Item 601 of Regulation S-K.
Exhibit Sequential
Number Description Page No.
- ------ ----------- --------
4.1 Mark Solutions, Inc. 1993 Stock
Option Plan 9
4.2 Form of Stock Option Grant
Agreement 23
5.1 Opinion of Timothy J. McCartney, Esq.
re: legality 29
23.1 Consent of Sax Macy Fromm & Co., P.C. 30
23.2 Consent of Timothy J. McCartney, Esq.
(included in Exhibit 5.1)
-8-
<PAGE>
Exhibit 4.1
<PAGE>
MARK SOLUTIONS, INC.
1993 STOCK OPTION PLAN
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
Section 1. PURPOSE................................. 1
Section 2. DEFINITIONS............................. 1
2.1 Board................................. 1
2.2 Code.................................. 1
2.3 Committee............................. 1
2.4 Corporation........................... 1
2.5 Exchange Act.......................... 1
2.6 Fair Market Value..................... 1
2.7 Key Employee.......................... 2
2.8 Option................................ 2
2.9 Option Certificate.................... 2
2.10 Option Price.......................... 2
2.11 Parent Corporation.................... 2
2.12 Plan.................................. 2
2.13 Principal Officer..................... 2
2.14 Securities Act........................ 2
2.15 Stock................................. 2
2.16 Subsidiary............................ 2
2.17 Ten Percent Shareholder............... 3
Section 3. SHARES SUBJECT TO OPTIONS............... 3
Section 4. EFFECTIVE DATE.......................... 3
Section 5. COMMITTEE............................... 3
Section 6. ELIGIBILITY............................. 4
Section 7. GRANT OF OPTIONS........................
7.1 Committee Action.................... 4
7.2 $100,000 Limit...................... 4
Section 8. OPTION PRICE............................ 5
Section 9. EXERCISE PERIOD......................... 5
Section 10. NONTRANSFERABILITY...................... 6
Section 11. SECURITIES REGISTRATION AND RESTRICTIONS 7
i
<PAGE>
Section 12. LIFE OF PLAN............................ 7
Section 13. ADJUSTMENT.............................. 8
Section 14. SALE OR MERGER OF THE CORPORATION....... 8
Section 15. AMENDMENT OR TERMINATION................ 9
Section 16. MISCELLANEOUS........................... 9
16.1 No Shareholder Rights............... 9
16.2 No Contract of Employment........... 10
16.3 Withholding......................... 10
16.4 Construction........................ 10
ii
<PAGE>
Section 1. PURPOSE
The purpose of this Plan is to promote the interests of the Corporation
by granting Options to purchase Stock to Key Employees in order to (a) attract
and retain Key Employees; (b) provide an additional incentive to each Key
Employee to work to increase the value of the Stock; and (c) provide each such
Key Employee with a stake in the future of the Corporation which corresponds to
the stake of each of the Corporation's shareholders.
Section 2. DEFINITIONS
Each term set forth in this Section 2 shall have the meaning set forth
opposite such term for purposes of this Plan and for any Option granted under
this Plan. For purposes of such definitions, the singular shall include the
plural and the plural shall include the singular. Unless otherwise expressly
indicated, all Section references herein shall be construed to mean references
to a particular Section of this Plan.
2.1 Board means the Board of Directors of the Corporation.
2.2 Code means the Internal Revenue Code of 1986, as amended.
2.3 Committee means the committee or either of the committees
appointed by the Board to administer this Plan as contemplated by Section 5.
2.4 Corporation means Mark Solutions, Inc., a Delaware corporation, and
any successor to such corporation.
2.5 Exchange Act means the Securities Exchange Act of 1934, as amended.
2.6 Fair Market Value means the price which the Committee acting in good
faith determines through any reasonable valuation method that a share of Stock
might change hands between a willing buyer and a willing seller, neither being
under any compulsion to buy or to sell and both having reasonable knowledge of
the relevant facts.
-1-
<PAGE>
2.7 Key Employee means any employee of the Corporation or a Subsidiary,
who, in the judgment of the Committee acting in its absolute discretion, is a
key to the success of the Corporation or a Subsidiary.
2.8 Option means any option granted under this Plan to purchase Stock
which satisfies the requirements of Section 422 of the Code.
2.9 Option Certificate means the written agreement or instrument which
sets forth the terms of an Option granted to a Key Employee under this Plan.
2.10 Option Price means the price which shall be paid to purchase one
share of stock upon the exercise of an Option granted under this Plan.
2.11 Parent Corporation means any corporation which is a parent
corporation of the Corporation within the meaning of Section 424(e) of the Code.
2.12 Plan means this Mark Solutions, Inc. 1993 Stock Option Plan, as
amended from time to time.
2.13 Principal Officer means the Chairman of the Board (if the Chairman
of the Board is a payroll employee), the Chief Executive Officer, the President,
any Executive Vice President, any Senior Vice President, any Vice President and
the Treasurer of the Corporation and any other person who is an "officer" of the
Corporation as that term is defined in Rule 16a-1(f) under the Exchange Act or
any successor rule thereunder.
2.14 Securities Act means the Securities Act of 1933, as amended.
2.15 Stock means the Common Stock, $.01 par value per share, of the
Corporation.
2.16 Subsidiary means any corporation which is a subsidiary corporation
of the Corporation within the meaning of Section 424(f) of the Code.
-2-
<PAGE>
2.17 Ten Percent Shareholder means a person who owns after taking into
account the attribution rules of Section 424(d) of the Code more than ten
percent (10%) of the total combined voting power of all classes of stock of
either the Corporation, a Subsidiary or a Parent Corporation.
Section 3. SHARES SUBJECT TO OPTIONS
There shall be 1,000,000 shares of Stock reserved for issuance in
connection with Options under this Plan. Such shares of Stock shall be reserved
to the extent that the Corporation deems appropriate from authorized but
unissued shares of Stock and from shares of Stock which have been reacquired by
the Corporation. Any shares of Stock subject to an Option which remain after
the cancellation expiration or exchange of such Option for another Option
thereafter shall again become available for use under this Plan.
Section 4. EFFECTIVE DATE
The effective date of this Plan shall be the date it is originally
approved and adopted by the Board of the Corporation, subject to approval by the
shareholders of the Corporation acting at a duly called meeting of such
shareholders or acting by unanimous written consent in lieu of a meeting,
provided such shareholder approval occurs within twelve (12) months after the
date the Board approves and adopts this Plan.
Section 5. COMMITTEE
This Plan shall be administered by the Committee. The Committee acting
in its absolute discretion shall exercise such powers and take such action as
expressly called for under this Plan. Furthermore, the Committee shall have the
power to interpret this Plan and to take such other action in the administration
and operation of this Plan as the Committee deems equitable under the
circumstances, which action shall be binding on the Corporation, on each
affected Key Employee, and on each other person directly or indirectly affected
Key Employee, and on each other person directly or indirectly affected by such
action. The Board may designate one Committee, all of the members of which are
members of the Board.
-3-
<PAGE>
Section 6. ELIGIBILITY
Only Key Employees shall be eligible for the grant of Options under this
Plan.
Section 7. GRANT OF OPTIONS
7.1 Committee Action. The Committee in its absolute discretion shall
grant Options to Key Employees under this Plan from time to time to purchase
shares of Stock and, further, shall have the right to grant new Options in
exchange for outstanding Options. Each grant of an Option shall be evidenced by
an Option Certificate, and each Option Certificate shall:
(a) specify that the Option is an "incentive stock option";
(b) incorporate such other terms and conditions as the
Committee acting in its absolute discretion deems
consistent with the terms of this Plan, including, without
limitation, a limitation on the number of shares subject
to the option which first became exercisable or subject
to surrender during any particular period.
In connection with the termination for any reason of employment by or
service to the Corporation or any Subsidiary of any particular holder of any
Option, the Committee may, in its discretion, determine to modify the number of
shares of Stock as to which such Option first becomes exercisable during any
particular period as provided in the related Option Certificate; provided,
however, that the Committee may not extend any such period with respect to any
shares of Stock subject to such Option.
7.2 $100,000 Limit. To the extent that the aggregate Fair Market Value
of the stock with respect to which Options satisfying the requirements of
Section 422 of the Code granted a Key Employee under this Plan and under any
other stock option plan adopted by the
-4-
<PAGE>
Corporation, a Subsidiary or a Parent Corporation first become exercisable in
any calendar year exceeds $100,000 (based upon the Fair Market Value on the
date of the grant), such Options shall be treated as non-qualified options.
Section 8. OPTION PRICE
The Option Price for each share of Stock subject to an Option shall not
be less than the Fair Market Value of a share of Stock on the date the Option is
granted, or if the Key Employee is a Ten Percent Shareholder, the Option Price
for each share of Stock subject to such Option shall not be less than 110% of
the Fair Market Value of a share of Stock on the date the Option is granted.
The Option Price shall be payable in cash in full upon the exercise of any
Option.
Section 9. EXERCISE PERIOD
Each Option granted under this Plan shall be exercisable in whole or in
part at such time or times as set forth in the related Option Certificate, but
no Option Certificate shall provide that:
(a) an Option is exercisable before the date such Option is
granted, or
(b) an Option is exercisable after the date which is the tenth
anniversary of the date such option is granted.
If an Option is granted to a Key Employee who is a Ten Percent Shareholder
the Option Certificate shall provide that the Option is not exercisable after
the expiration of five years from the date the Option is granted. An Option
Certificate may provide for the exercise of an Option after the employment of a
Key Employee has terminated only as provided below.
Upon the occurrence of the Key employee's ceasing for any reason to be
employed by the Corporation (such occurrences being a "termination of
employment"), the Option, the extent not previously exercised, shall terminate
and become null and void immediately upon such termination of employment, except
in a case where the termination of the
-5-
<PAGE>
Key Employee's employment is by reason of retirement, disability or death.
Upon a termination of employment by reason of retirement, disability or
death, the Option may be exercised during the following periods, but only to the
extent that the Option was outstanding and exercisable on any such date of
retirement, disability or death: (i) the one-year period following the date of
such termination of employment in the case of a disability (within the meaning
of Section 22(e)(3) of the Code), (ii) the six-month period following the date
of issuance of letters testamentary or letters of administration to the executor
or administrator of a deceased Key Employee, in the case of death during his
employment by the Corporation, but not later than one year after the Key
Employee's death, and (iii) the three-month period following the date of such
termination in the case of retirement on or after attainment of age 65, or in
the case of disability other than as described in (i) above. In no event,
however, shall any such period extend beyond the original exercise period.
A transfer of the Key Employee's employment between the Corporation and
any Subsidiary, or between any Subsidiaries, shall not be deemed to be a
termination of the Key Employee's employment.
Notwithstanding any other provisions set forth herein or in the Plan, if
the Key Employee shall (i) commit any act of malfeasance of wrongdoing affecting
the Corporation or any Subsidiary, (ii) breach any covenant not to compete, or
employment contract, with the Corporation or any Subsidiary, or (iii) engage in
conduct that would warrant the Key Employee's discharge for cause (excluding
general dissatisfaction with the performance of the Key Employee's duties, but
including any act of disloyalty or any conduct clearly tending to bring
discredit upon the Corporation or any Subsidiary), any unexercised portion of
the Option shall immediately terminate and be void.
Section 10. NONTRANSFERABILITY
No Option granted under this Plan shall be transferable by a Key Employee
otherwise than by will or by the laws of descent and distribution, and such
Option shall be exercisable during a Key Employee's lifetime only by the Key
Employee. The person or persons to whom an Option is transferred by will or by
the laws of descent and distribution
-6-
<PAGE>
thereafter shall be treated as the Key Employee for purposes of this Plan.
Section 11. SECURITIES REGISTRATION AND RESTRICTIONS
Each Option Certificate shall provide that, upon the receipt of shares of
Stock as a result of the exercise of an Option, the Key Employee shall, if so
requested by the Corporation, hold such shares of Stock for investment and not
with a view toward resale or distribution to the public and, if requested by the
Corporation, shall delvier to the Corporation a written statement to that effect
satisfactory to the Corporation. Each Option Certificate shall also provide
that, if so requested by the Corporation, the Key Employee shall represent in
writing to the Corporation that he or she will not sell or offer to sell any
such shares of Stock unless a registration statement shall be in effect with
respect to such Stock under the Securities Act and any applicable state
securities law or unless he or she shall have furnished to the Corporation an
opinion, in form and substance satisfactory to the Corporation, of legal counsel
acceptable to the Corporation, that such registration is not required.
Certificates representing the Stock transferred upon the exercise of an Option
granted under this Plan may at the discretion of the Corporation bear a legend
to the effect that such Stock has not been registered under the Securities Act
or any applicable state securities law and that such Stock may not be sold or
offered for sale in the absence of (i) an effective registration statement as to
such Stock under the Securities Act and any applicable state securities law or
(ii) an opinion, inform and substance satisfactory to the Corporation, of legal
counsel acceptable to the Corporation, that such registration is not required.
Furthermore, the Corporation shall have the right to require a Key Employee to
enter into such shareholder or other related agreements as the Corporation deems
necessary or appropriate under the circumstances as a condition to the issuance
of any Stock under this Plan to a Key Employee.
Section 12. LIFE OF PLAN
No Option shall be granted under this Plan on or after the earlier of
(a) the tenth anniversary of the original effective date of this
Plan as determined under Section 4; provided, however, that
after such anniversary date this Plan otherwise shall
-7-
<PAGE>
continue in effect until all outstanding Options have been
exercised in full or no longer are exercisable, or
(b) the date on which all of the Stock reserved under Section 3
of this Plan has, as a result of the exercise of Options
granted under this Plan, been issued or no longer is
available for use under this Plan, in which event this Plan
also shall terminate on such date.
Section 13. ADJUSTMENT
The number of shares of Stock reserved under Section 3 of this Plan, and
the number of shares of Stock subject to Options granted under this Plan and the
Option Price of such Options shall be adjusted by the Board in an equitable
manner to reflect any change in the capitalization of the Corporation,
including, but not limited to, such changes as stock dividends or stock splits.
Furthermore, the Board shall have the right to adjust in a manner which
satisfies the requirements of Section 424(a) of the Code the number of shares of
Stock reserved under Options granted under this Plan and the Option Price of
such Options in the event of any corporate transaction described in Section
424(a) of the Code that provides for the substitution or assumption of such
Options. If any adjustment under this Section 13 would create a fractional
share of Stock or a right to acquire a fractional share of Stock, such
fractional share shall be disregarded and the number of shares of Stock
reserved under this Plan and the number subject to any Options granted under
this Plan shall be the next lower number of shares of Stock, rounding all
factions downward. An adjustment made under this Section 13 by the Board shall
be conclusive and binding on all affected persons and, further, shall not
constitute an increase in "the number of shares reserved under Section 3" within
the meaning of Section 15(a) of this Plan.
Section 14. SALE OR MERGER OF THE CORPORATION
If the Corporation agrees to sell all or substantially all of its assets
for cash or property or for a combination of cash and property or agrees to any
merger, consolidation, reorganization, division or other corporate transaction
in which Stock is converted into another security or
-8-
<PAGE>
into the right to receive securities or property and such agreement does not
provide for the assumption or substitution of the Options granted under this
Plan, each then outstanding Option at the direction and discretion of the
Board may be canceled unilaterally by the Corporation as of the effective
date of such transaction in exchange for the same net consideration which each
Key Employee would have received if each such Option had been exercisable
in full on such date and each Key Employee had exercised each such Option
for Stock under Section 11 on such date and then sold such Stock on such date.
Section 15. AMENDMENT OR TERMINATION
This Plan may be amended by the Board from time to time to the extent that
the Board deems necessary or appropriate; provided, however, that no such
amendment shall be made absent the approval of the shareholders of the
Corporation (a) to increase the aggregate number of shares reserved under
Section 3, (b) to extent the maximum life of the Plan under Section 12 or the
maximum exercise period under Section 9, (c) to decrease the minimum option
price under Section 8, (d) to change the class of persons eligible for Options
under Section 6 or to otherwise materially modify the requirements as to
eligibility for participation in this Plan, or (e) to otherwise materially
increase the benefits accruing under this Plan. The Board also may suspend the
granting of Options under this Plan at any time and may terminate this Plan at
any time; provided, however, that the Corporation shall not have the right
unilaterally to cancel or, in a manner which would materially adversely affect
the holder, amend or modify any Option granted before such suspension or
termination unless (i) the Key Employee consents in writing to such
modification, amendment or cancellation or (ii) there is a dissolution or
liquidation of the Corporation or a transaction described in Section 13 or
Section 14 of this Plan.
Section 16. MISCELLANEOUS
16.1 No Shareholder Rights. No Key Employee shall have any rights as a
shareholder of the Corporation as a result of the grant of an Option to him or
to her under this Plan or his or her exercise of such Option pending the actual
delivery of Stock subject to such Option to such Key Employee.
-9-
<PAGE>
16.2 No Contract of Employment. The grant of an Option to a Key Employee
under this Plan shall not constitute a contract of employment and shall not
confer on a Key Employee any rights upon his or her termination of employment or
service in addition to those rights, if any, expressly set forth in the Option
Certificate which evidences his or her Option.
16.3 Withholding. The exercise of any Option granted under this Plan
shall constitute a Key Employee's full and complete consent to whatever action
the Committee elects to satisfy the federal and state tax withholding
requirements, if any, which the Committee in its discretion deems applicable to
such exercise or surrender.
16.4 Construction. This Plan and the Option Certificates shall be
construed under the laws of the State of New Jersey.
-10-
<PAGE>
Exhibit 4.2
<PAGE>
WARRANT TO PURCHASE COMMON STOCK
VOID AFTER ************
MARK SOLUTIONS, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
NUMBER PURCHASE WARRANTS
**** --*****--
PURCHASE WARRANT CERTIFICATE
THIS CERTIFIES that:
***********************
is the owner of **************** (******) Warrants, and is entitled to
purchase from MARK SOLUTIONS, INC., a corporation incorporated under the laws of
the State of Delaware (the "Company") fully paid and non-assessable shares of
Common Stock, $ .01 par value, of the Company, ("Common Stock"), upon
presentation and surrender of this Warrant with the Subscription Form duly
executed, on or before ************* (the "Expiration Date") at the offices of
the Company and upon payment thereof of the purchase price, in lawful money of
the United States of America. The purchase price shall be $ **** per share,
subject to adjustment as herein provided (the "Exercise Price").
1. Transferability and Divisibility. Subject to the restrictions set forth in
this Section, this Warrant may not be divided and is not transferable.
2. Exercise. The Holder may exercise the Warrant with respect to all or any
part of the number of shares of Common Stock then exercisable hereunder by
giving the Secretary of the Company written notice of intent to exercise. The
notice of exercise shall specify the number of shares as to which the Warrant is
to be exercised and the date of exercise thereof.
On the exercise date or as soon thereafter as is practicable, the Company shall
cause to be delivered to the Holder, a certificate or certificates for the
shares then being purchased upon full payment for such shares.
-1-
<PAGE>
3. Registration Rights. If applicable, the Holder of the Warrant shall be
entitled to include the Common Stock underlying the Warrant in any registration
statement with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (other than as to Common Stock issued pursuant to a
Registration Statement on Form S-8 or S-4 or their successor form) during the
term of this Warrant, provided, however, if the registration statement is being
filed in connection with a firm commitment underwriting, such registration of
the underlying Common Stock shall be subject to the approval of the underwriter.
The Company shall give the Warrant holders at least ten (10) days prior notice
of any such filing of a registration statement. All fees, disbursements and out
of pocket expenses (other than the warrant holders brokerage fees and
commissions, applicable transfer taxes and counsel fees and disbursements) in
connection with the registration statement, including compliance with applicable
securities and "blue sky" laws shall be borne by the Company.
4. Anti-dilution Provisions. The Exercise Price and the number and kind of
securities purchasable upon the exercise of this Warrant shall be subject to
adjustment from time to time upon the happening of certain events as hereinafter
provided. The Exercise Price in effect at any time and the number and kind of
securities purchasable upon exercise of each Warrant shall be subject to
adjustment as follows:
(a) In case the Company shall (i) pay a dividend or make a distribution
on its share of Common Stock in shares of Common Stock, (ii) subdivide or
reclassify its outstanding Common Stock into a greater number of shares, or (ii)
combine or reclassify its outstanding Common stock into a smaller number of
shares, the Exercise Price in effect at the time of the record date for such
dividend or distribution or of the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
Holder of this Warrant exercised after such date shall be entitled to receive
the aggregate number and kind of shares which, if this Warrant had been
exercised by such Holder immediately prior to such date, he would have owned
upon such exercise and been entitled to receive upon such dividend, subdivision,
combination or reclassification. Such adjustment shall be made successively
whenever any event listed above shall occur.
(b) Whenever the Exercise Price payable upon exercise of each Warrant is
adjusted pursuant to Subsection (a) above, the number of Shares purchasable upon
exercise of this Warrant shall simultaneously be adjusted by multiplying the
number of Shares initially issuable upon exercise of this Warrant by the
Exercise Price in effect on the date hereof and dividing the product so obtained
by the Exercise Price, as adjusted.
-2-
<PAGE>
(c) No adjustment shall be made by reason of the issuance in exchange for
cash, property or services, of shares of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock or carrying the
right to purchase any of the foregoing. There are no other anti-dilution
provisions.
(d) In the event that at any time, as a result of an adjustment made
pursuant to Subsection (a) above, the Holder of this Warrant thereafter shall
become entitled to receive any shares of the Company, other than Common Stock,
thereafter the number of such other shares so receivable upon exercise of this
Warrant shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained herein.
(e) Irrespective of any adjustments in the Exercise Price or the number
or kind of shares purchasable upon exercise of this Warrant, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the similar Warrants initially
issuable pursuant to this Agreement.
5. Consolidations and Mergers. If prior to the Expiration Date, the Company
shall consolidate with, or merge into another company (except for a merger or
consolidation in which the Company is the continuing corporation), the holder of
this Warrant will thereafter be entitled to receive, upon the exercise thereof,
the securities or property to which the holder of the number of shares of Common
Stock then deliverable upon the exercise hereof would have owned or have been
entitled to receive upon such consolidation or merger, and the Company shall
take such steps in connection with such consolidation or merger as may be
necessary to assure that the provisions of this Warrant shall thereafter be
applicable as nearly as reasonably may be, in relation to any securities and
property thereafter deliverable upon the exercise of this Warrant. A sale,
conveyance or lease to another corporation of the assets of the Company as an
entirety or substantially as an entirety, in connection which the Company is
dissolved, shall be deemed a consolidation or merger for the foregoing purposes.
6. Fractional Interests. The Company shall not issue fractions of shares of
Common Stock upon exercise of this Warrant but in lieu thereof make payment in
cash based on the Exercise Price in effect at that time or (ii) issue scrip
certificates evidencing such fractional interests which when presented with
other like certificates representing in the aggregate least one whole share, may
be exchanged for whole shares of Common Stock. Such scrip certificates may
become void and of no effect after a reasonable period as specified in such
scrip certificate. The computation of any fractional interest shall be made to
the first two decimal points without rounding.
-3-
<PAGE>
7. Reservation of Shares; Issuance. The Company shall reserve a sufficient
number of shares of Common Stock to satisfy the requirements of this Warrant.
The Company will take all action necessary to insure that all shares issued upon
exercise of this arrant will be duly and validly authorized and issued and fully
paid and non-assessable.
8. Notices. Any notices required under this Warrant shall be deemed given on
the date mailed if sent by certified mail, return receipt requested or on the
date of actual receipt by facsimile or other means. All notices to the holder
of this Warrant shall be sent to the address indicated on the Warrant register.
9. Miscellaneous. This Warrant will be governed by the substantive laws of the
State of New Jersey. This Warrant shall be binding upon the successors or
assigns of the Company.
Dated: *****************
MARK SOLUTIONS, INC.
By:_________________________
Carl Coppola, President
-4-
<PAGE>
SUBSCRIPTION FORM
To Be Executed By The Holder in Order
To Exercise The Warrant
To: MARK SOLUTIONS, INC.
The undersigned irrevocably elects to exercise the right of
purchase represented by the within Warrant for, and to purchase
thereunder ____________________________________________________
shares of the stock provided for therein and tenders payment
herewith to the order of MARK SOLUTIONS, INC. in the amount of
$ __________________ in accordance with the terms of the Warrant.
The undersigned requests that the certificates for such shares be
issued in the name of
_____________________________________________
Insert Social Security Number
or Other Identifying Number
of Designated Stockholder _____________________
Dated __________________
________________________________
Warrantholder
-5-
<PAGE>
Exhibit 5.1
TIMOTHY J. McCARTNEY*
Attorney-at-Law
9 Elsa Way
Richboro, Pennsylvania 18954
_________
Telephone (215) 396-7156
Facsimile (215) 396-7157
* Member of N.Y. Bar
January 15, 1996
Mark Solutions, Inc.
1515 Broad Street
Bloomfield, New Jersey 07003
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
I have acted as counsel for Mark Solutions, Inc. (the "Company") in connection
with the registration of 1,055,000 shares of Common Stock, $ .01 par value, of
the Company (the "Shares") under the Securities Act of 1933, as amended on a
Form S-8 registration statement (the "Registration Statement") to be filed on
January 16, 1996 with the Securities and Exchange Commission.
I have examined originals or copies, certified or otherwise identified to my
satisfaction, of such corporate records, agreements and other instruments and
based upon such documents and other investigation as I have deemed necessary I
am of the opinion that:
1. The Company has been duly organized and is validly existing as a
business corporation in good standing under the laws of the State of Delaware.
2. Upon effectiveness of the Registration Statement and the delivery and
issuance of the Shares as described therein, such Shares will be validly issued,
fully paid and non-assessable.
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement and the related prospectus and further consent to the use of my name
in the Registration Statement.
Very Truly Yours,
Timothy J. McCartney
<PAGE>
Exhibit 23.1
SAX MACY FROMM & CO., P.C.
INDEPENDENT AUDITORS' CONSENT
As independent certified public accountants, we hereby consent to the
incorporation by reference in the Registration Statement on Form S-8 of our
report dated September 7, 1995 included in Mark Solution, Inc.'s Annual Report
on Form 10-K including financial statements for the fiscal year ended June 30,
1995 and to all references to this accounting firm included in the Registration
Statement.
Sax Macy Fromm & Co., P.C.
Clifton, New Jersey
January 15, 1996
