As filed with the Securities and
Exchange Commission on February 10, 1999 Reg. No. 333-
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)
1999 Consultant Stock Grant and Option Plan
1999 Director Stock Option Plan
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)
(973) 893-0500
--------------
(Telephone number including area code for agent for service)
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Each Amount to be Proposed Maximum Proposed Maximum Amount of
Class of Registered(1) Offering Price Aggregate Registration
Securities to Per Share (2) Fee (1)
be Registered
- -------------------------------------------------------------------------------
Offering Price (2)
- -------------------------------------------------------------------------------
Common Stock,
$.01 par value 5,520,000 $ 0.96875 $5,347,500 $ 1,620.29
===============================================================================
(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 1999 Consultant Stock Grant and Option Plan, 1999 Directors
Stock Option Plan and Stock Option Grants Pursuant to Written Agreements. (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
1999 Consultant Stock Grant and Option Plan
1999 Director Stock Option Plan
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 5,520,000 shares of
common stock, $.01 par value, ("Common Stock") of the Registrant in connection
with its (i) 1999 Consultant Stock Grant and Option Plan (the "Consultant
Plan"), (ii) 1999 Director Stock Option Plan (the "Director Plan") and (iii)
Option Grants Pursuant to Written Agreements (the "Option Grants"). Collectively
the Consultant Plan, Director Plan and Option Grants are referred to as the
"Plans").
Information required by Part I (Items 1 and 2) is included in documents
given or to be given to participants in the Plan 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/A2, containing audited financial
statements, for the fiscal year ended June 30, 1998.
(b) The Registrant's quarterly report on Form 10-Q for the fiscal quarter ended
September 30, 1998.
(c) The Registrant's Current Report on Form 8-K- Event Date January 29, 1999.
(d) 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
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.
2
<PAGE>
(e) The description of securities of the Registrant offered hereunder contained
in Registrant's Registration Statement on Form S-1 declared effective by the
Commission on December 30, 1998 (Commission File Number 333-62513).
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
50,000 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,
3
<PAGE>
whether civil, 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.
4
<PAGE>
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.
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
5
<PAGE>
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 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
February 8, 1999.
MARK SOLUTIONS, INC.
By: /s/ Carl Coppola
---------------------
Carl Coppola, President and
Chief Executive Officer
/s/ Michael Nafash
--------------------
Michael Nafash,
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 February 8, 1999
- ---------------------- Executive Officer
(Carl Coppola) and Director
/s/ Michael Nafash Chief Financial February 8, 1999
- ---------------------- Officer and Director
(Michael Nafash)
/s/ Richard Branca Director February 8, 1999
- ----------------------
(Richard Branca)
/s/ Yitz Grossman Director February 8, 1999
- ----------------------
(Yitz Grossman)
/s/ Ronald E. Olszowy Director February 8, 1999
- ----------------------
(Ronald E. Olszowy)
/s/ William Westerhoff Director February 8, 1999
- ----------------------
(William Westerhoff)
7
<PAGE>
EXHIBIT INDEX
-------------
Exhibit numbers are in accordance with the Exhibit Table in Item
601 of Regulation S-K.
Exhibit
Number Description
- ------ -----------
4.1 Mark Solutions, Inc. 1999 Consultant Stock
Grant and Option Plan
4.2 Mark Solutions, Inc. 1999 Director Stock
Option Plan
4.3 Form of Stock Option Grant Agreement
5.1 Opinion of Timothy J. McCartney, Esq.
re: legality
23.1 Consent of Holtz Rubenstein & Co., LLP
23.2 Consent of Timothy J. McCartney, Esq.
(included in Exhibit 5.1)
EXHIBIT 4.1
MARK SOLUTIONS, INC.
1999 CONSULTANT STOCK GRANT AND OPTION PLAN
TABLE OF CONTENTS
-----------------
Page
----
Section 1. PURPOSE.........................................................2
Section 2. DEFINITIONS.....................................................2
Section 3. SHARES SUBJECT TO THE PLAN......................................3
Section 4. EFFECTIVE DATE..................................................3
Section 5. COMMITTEE AND ADMINISTRATION....................................3
Section 6. ELIGIBILITY.....................................................4
Section 7. GRANT OF OPTIONS................................................4
Section 8. GRANT OF RESTRICTED STOCK.......................................4
Section 9. STOCK AWARDS....................................................5
Section 10.SECURITIES REGISTRATION AND RESTRICTIONS........................6
Section 11. TERM OF PLAN .................................................6
Section 12. ADJUSTMENT....................................................7
Section 13. AMENDMENT OR TERMINATION......................................7
Section 14. MISCELLANEOUS.................................................7
1
<PAGE>
Section 1. PURPOSE
The purpose of the Plan is to attract and retain the services of independent
consultants and professionals who in the opinion of management will contribute
to the long-term growth of Mark in return for equity securities in lieu of cash
payment for such services.
Section 2. DEFINITIONS
Each term set forth in this Section 2 shall have the meaning set forth
opposite such term for purposes of the Plan and for any Award granted under the
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 the Plan.
2.1 Award means an award granted to a Participant pursuant to the Plan
including, but not limited to Stock Options, Restricted Stock, Stock Awards, or
any combination of the foregoing.
2.2 Award Agreement means the separate written agreement evidencing each Award
granted to a Participant under the Plan.
2.3 Board means the Board of Directors of the Corporation.
2.4 Committee means the committee appointed by the Board to administer the Plan
as contemplated by Section 5, or in the absence of such Committee, the Board as
a whole.
2.5 Corporation means Mark Solutions, Inc., a Delaware corporation, its
subsidiaries, and any successor to such corporation.
2.6 Exchange Act means the Securities Exchange Act of 1934, as amended.
2.7 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.
2.8 Grant Date means, as to any Award, the later of (i) the date the Committee
authorizes the grant of the Award or (ii) such other date as the Committee may
designate and as set forth in the Participant's Award Agreement.
2.9 Option means any option granted under the Plan to purchase Stock. Options
are not intended to meet the requirements of Section 422 of the Internal Revenue
Code of 1986, as now in effect or hereafter amended (the "Code").
2.10 Option Period means the period during which an Option may be exercised from
time to time, as established by the Committee and set forth in each Award
Agreement.
2.11 Option Price means the price which shall be paid to purchase one share of
stock upon the exercise of an Option granted under the Plan.
2
<PAGE>
2.12 Participant mean any consultant, whether a person or entity, who has been
granted an Award under the Plan and entered into an Award Agreement.
2.13 Plan means this Mark Solutions, Inc. 1999 Consultant Stock Grant and Option
Plan, as amended from time to time.
2.14 Restricted Stock means an Award under Section 8 of the Plan of shares of
Common Stock that are at the time of the Award subject to restrictions or
limitations as to the Participant's ability to sell, transfer, pledge or assign,
as the Committee, in its sole discretion shall establish and set forth in an
Award Agreement.
2.15 Restricted Period means the period commencing the Grant Date of the award
of Restricted Stock and ending on the date the Committee, in its sole
discretion, shall establish and set forth in an Award Agreement.
2.16 Securities Act means the Securities Act of 1933, as amended.
2.17 Stock means the Common Stock, $.01 par value per share, of the Corporation.
2.18 Stock Award means an Award of Stock under Section 9 of the Plan.
Section 3. SHARES SUBJECT TO THE PLAN
There shall be 1,000,000 shares of Stock reserved for issuance in
connection with the 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 and any Stock returned
to the Corporation under any Stock Award thereafter shall again become available
for use under the Plan.
Section 4. EFFECTIVE DATE
The effective date of the Plan shall be January 22, 1999, the date it was
originally approved and adopted by the Board of the Corporation.
Section 5. COMMITTEE AND ADMINISTRATION
The 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 the Plan. Furthermore, the Committee shall have the
power to interpret the Plan and to take such other action in the administration
and operation of the Plan as the Committee deems equitable under the
circumstances, which action shall be binding on the Corporation, on each
affected Participant and 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
Consultants, whether persons or entities, whose participation the
Committee has determined is in the best interest of the Corporation by
contributing to the long-term growth of the Corporation.
Section 7. GRANT OF OPTIONS
7.1 Committee Action. The Committee in its absolute discretion may grant
Options to Participants under the 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 Award
Agreement and each Award Agreement shall incorporate such terms and conditions
as the Committee acting in its absolute discretion deems consistent with the
terms of the Plan, including, without limitation, (i) the number of shares
subject to the Option, (ii) the Option Period, (iii) a limitation on the number
of shares subject to the Option during the Option Period, (iv) events of
surrender or termination (including continued retention as a consultant) and (v)
transferability.
7.2 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. The Option Price shall be payable in cash or in
exchange for other securities of the Corporation, or a combination thereof, upon
the exercise of any Option.
7.3 Exercise Period. Each Option granted under the Plan shall be
exercisable in whole or in part at such time or times as set forth in the
related Award Agreement, but no Award Agreement shall provide the Option is
exercisable after the date which is the tenth anniversary of the Grant Date.
Section 8. GRANT OF RESTRICTED STOCK
8.1 Committee Action. The Committee in its absolute discretion may grant
Restricted Stock to Participants under the Plan from time to time for past
services and as an incentive for future services that will contribute to the
successful operation of the Corporation, subject to the provisions of this
Section 8.
8.2 Terms and Conditions of Restricted Stock. The Committee in its absolute
discretion shall determine the terms and conditions of any Award of Restricted
Stock, which shall be set forth in the Award Agreement, including without
limitation, (i) the number of shares subject to the Restricted Stock Award, (ii)
the purchase price, if any and which may be zero, (iii) the duration of the
Restricted Period(s) and conditions thereof including events which may
accelerate or delay the end of the Restricted Period(s), (iv) repurchase rights
of the Corporation (including right of first refusal), (vi) performance goals,
(vii) dividend or distribution rights and (viii) forfeiture upon termination of
service.
4
<PAGE>
8.3 Acceptance. The Award of Restricted Stock must be accepted by the
prospective recipient within fifteen (15) days of the Grant Date (or such other
period as specified by the Committee) by executing the Award Agreement and
tendering the purchase price, if any. A prospective recipient shall not have any
rights with respect to the Award unless such recipient shall have executed an
Award Agreement, has delivered a fully executed copy to the Committee and has
otherwise satisfied the applicable terms and conditions of such Award.
8.4 Transferability. Unless otherwise determined by the Committee and
expressly set forth in the Award Agreement, the Restricted Stock shall not be
sold, exchanged, transferred, pledged, hypothecated or otherwise disposed of
during the Restricted Period.
8.5 Issuance of Certificates. Upon the Award of Restricted Stock to a
Participant certificate(s) representing the shares of Restricted Stock will be
issued and registered in the name of the Participant as soon as practicable.
Unless otherwise determined by the Committee and expressly set forth in the
Award Agreement, the certificate(s) issued pursuant to this Section 8 shall be
held in custody by the corporation (i) the Restricted Period expires and the
restrictions or limitations lapse or (ii) a prior forfeiture by the Participant
of the Restricted Stock, in which case the Corporation shall case the
certificate(s) to be cancelled and the shares represented retired. It shall be a
condition of the Restricted Stock Award that the Participant deliver a stock
power and other appropriate documents related to the Restricted Stock to be held
in custody by the Corporation.
8.6 Rights as a Shareholder. Except as expressly set forth in the Award
Agreement, a Participant receiving Restricted Stock shall have all the rights of
a shareholder, including the right to vote the shares and receive dividends or
distributions.
Section 9. STOCK AWARDS
9.1 Committee Action. The Committee in its absolute discretion may grant
Stock Awards to Participants under the Plan from time to time for past services
and as an incentive for future services that will contribute to the successful
operation of the Corporation, subject to the provisions of this Section 9.
9.2 Valuation of Stock Awards. I determining the value of a Stock Award,
all Stock subject to a Stock Award shall be valued at not less than the Fair
Market Value of the shares on the Grant Date, regardless of when the
certificate(s) representing the shares are issued and delivered to the
Participant. .
9.3 Acceptance. The Stock Award must be accepted by the prospective
recipient within fifteen (15) days of the Grant Date (or such other period as
specified by the Committee) by executing the Award Agreement. A prospective
recipient shall not have any rights with respect to the Award unless such
recipient shall have executed an Award Agreement, has delivered a fully executed
copy to the Committee and has otherwise satisfied the applicable terms and
conditions of such Award.
9.4 Issuance of Certificates. Upon the grant of a Stock Award to a
Participant, certificate(s) representing the shares will be issued and
registered in the name of the Participant as soon as practicable.
5
<PAGE>
9.5 Rights as a Shareholder. A Participant receiving a Stock Award shall
have all the rights of a shareholder, including the right to vote the shares and
receive dividends or distributions.
Section 10. SECURITIES REGISTRATION AND RESTRICTIONS
Each Award Agreement shall provide that, upon the receipt of shares of Stock
pursuant to any Award, the Participant 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
deliver to the Corporation a written statement to that effect satisfactory to
the Corporation. Each Award Agreement shall also provide that, if so requested
by the Corporation, the Participant shall represent in writing to the
Corporation that the Participant 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
the Participant 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. Certificate(s) representing
Stock issued under an Award pursuant to the 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 Participant 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 the Plan.
Section 11. TERM OF PLAN
No Award shall be granted under the Plan on or after the earlier of (i) the
tenth anniversary of the Effective Date of the Plan; provided, however, that
after such anniversary date the Plan otherwise shall continue in effect until
all outstanding Options have been exercised in full or no longer are
exercisable, or (ii) the date on which all of the Stock reserved under Section 3
of the Plan has been issued or no longer is available for use under the Plan, in
which event the Plan also shall terminate on such date.
Section 12. ADJUSTMENT
The number of shares of Stock reserved under the Plan, and the number of
shares of Stock subject to Awards granted under the Plan and the Option Price,
if applicable shall be adjusted by the Committee 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. If any adjustment
under this Section 12 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 the Plan and the number subject
to any Options granted under the Plan shall be the next lower number of shares
of Stock, rounding all fractions downward. An adjustment made under this Section
12 by the Committee shall be conclusive and binding on all affected persons.
6
<PAGE>
Section 13. AMENDMENT OR TERMINATION
The Plan may be amended by the Board from time to time to the extent that
the Board deems necessary or appropriate.
Section 14. MISCELLANEOUS
14.1 Withholding. The acceptance of an Award granted under the Plan shall
constitute a Participant'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 Award or
exercise thereof.
14.2 ERISA and the Code. The Plan is not subject to the provisions of ERISA
or qualified under Section 401(a) of the Code.
14.3 No Corporate Restrictions. The grant of an Award under the Plan shall
not effect in any way the right or power of the Corporation to affect
adjustments, reclassifications, reorganizations, or changes of its business or
capital structure or to merge, consolidate, dissolve, liquidate or transfer all
or a part of its business or assets.
14.4 Awards Subject to Applicable Law. The Plan and the Awards shall be
subject to all applicable Federal and State laws, rules, regulations and
approvals.
14.5 Construction. The Plan and the Award Agreements shall be construed
under the laws of the State of New Jersey.
14.6 Successors and Assigns. Except as otherwise provided herein, the Plan
shall be binding and enforceable against the Corporation and its successors and
assigns.
14.7 Severability. Any provision of the Plan or an Award Agreement which is
prohibited or unenforceable in any jurisdiction, or would disqualify the Plan or
Award under any law deemed applicable by the Committee shall be construed or
deemed amended to conform to applicable laws or stricken in the sole
determination of the Committee, without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdictions.
7
<PAGE>
EXHIBIT 4.2
MARK SOLUTIONS, INC.
1999 DIRECTOR STOCK OPTION PLAN
TABLE OF CONTENTS
Page
Section 1. PURPOSE..........................................................2
Section 2. DEFINITIONS......................................................2
Section 3. SHARES SUBJECT TO OPTIONS........................................3
Section 4. EFFECTIVE DATE...................................................3
Section 5. COMMITTEE AND ADMINISTRATION ....................................3
Section 6. ELIGIBILITY......................................................3
Section 7. GRANT OF OPTIONS.................................................3
Section 8. NONTRANSFERABILITY...............................................4
Section 9. SECURITIES REGISTRATION AND RESTRICTIONS.........................4
Section 10. TERM OF PLAN...................................................4
Section 11. ADJUSTMENT.....................................................5
Section 12. AMENDMENT OR TERMINATION.......................................5
Section 13. MISCELLANEOUS..................................................5
1
<PAGE>
Section 1. PURPOSE
The purpose of the Plan is to promote the interests of the Corporation by
granting Options to purchase Stock to business and professional individuals to
attract and retain qualified directors who would contribute to the long-term
growth of the Corporation.
Section 2. DEFINITIONS
Each term set forth in this Section 2 shall have the meaning set forth
opposite such term for purposes of the Plan and for any Option granted under the
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 the Plan.
2.1 Board means the Board of Directors of the Corporation.
2.2 Committee means the committee appointed by the Board to administer the Plan
as contemplated by Section 5, or in the absence of such Committee, the Board as
a whole.
2.3 Corporation means Mark Solutions, Inc., a Delaware corporation, its
subsidiaries, and any successor to such corporation.
2.4 Exchange Act means the Securities Exchange Act of 1934, as amended.
2.5 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.
2.6 Grant Date means the date the Committee authorizes the grant of the Option
or such other date as the Committee may designate and as set forth in the
Participant's Option Agreement.
2.7 Option means any option granted under the Plan to purchase Stock. Options
are not intended to meet the requirements of Section 422 of the Internal Revenue
Code of 1986, as now in effect or hereafter amended (the "Code").
2.8 Option Period means the period during which an Option may be exercised from
time to time, as established by the Committee and set forth in each Option
Agreement.
2.9 Option Price means the price which shall be paid to purchase one share of
Stock upon the exercise of an Option granted under the Plan.
2.10 Participant mean any person who has been granted an Option under the Plan
and entered into an Option Agreement for serving on the Board or agreeing to
serve on the Board. 2.11 Plan means this Mark Solutions, Inc. 1999 Director
Stock Option Plan, as amended from time to time.
2
<PAGE>
2.12 Securities Act means the Securities Act of 1933, as amended.
2.13 Stock means the Common Stock, $.01 par value per share, of the Corporation.
Section 3. SHARES SUBJECT TO OPTIONS
There shall be 1,500,000 shares of Stock reserved for issuance in
connection with Options under the 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 the Plan.
Section 4. EFFECTIVE DATE
The effective date of the Plan shall be January 22, 1999, the date it was
originally approved and adopted by the Board of the Corporation.
Section 5. COMMITTEE AND ADMINISTRATION
The 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 the Plan. Furthermore, the Committee shall have the
power to interpret the Plan and to take such other action in the administration
and operation of the Plan as the Committee deems equitable under the
circumstances, which action shall be binding on the Corporation, on each
affected Participant and 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.
Section 6. ELIGIBILITY
Only Participants, who are serving or agree to serve as a member of the
Board, shall be eligible for the grant of Options under the Plan.
Section 7. GRANT OF OPTIONS
7.1Committee Action. The Committee in its absolute discretion shall grant
Options to Participants under the 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
Agreement, and each Option Agreement shall incorporate such terms and conditions
as the Committee acting in its absolute discretion deems consistent with the
terms of the Plan, including, without limitation, (i) the number of shares
subject to the Option, (ii) the Option Period, (iii) a limitation on the number
of shares subject to the Option during the Option Period, (iv) events of
surrender or termination (including continued retention as a director) and (v)
transferability.
3
<PAGE>
7.2 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. The Option Price shall be payable in cash or in
exchange for other securities of the Corporation, or a combination thereof, upon
the exercise of any Option.
7.3 Exercise Period. Each Option granted under the Plan shall be
exercisable in whole or in part at such time or times as set forth in the
related Award Agreement, but no Award Agreement shall provide the Option is
exercisable after the date which is the tenth anniversary of the Grant Date.
Section 8. NONTRANSFERABILITY
Except as expressly set forth in an Option Agreement, no Option granted
under the Plan shall be transferable by a Participant otherwise than by will or
by the laws of descent and distribution, and such Option shall be exercisable
during a Participant's lifetime only by the Participant.
Section 9. SECURITIES REGISTRATION AND RESTRICTIONS
Each Option Agreement shall provide that, upon the receipt of shares of
Stock as a result of the exercise of an Option, the Participant 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 deliver to the Corporation a written statement to that effect
satisfactory to the Corporation. Each Option Agreement shall also provide that,
if so requested by the Corporation, the Participant 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 the 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 Participant 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 the Plan.
Section 10. TERM OF PLAN
No Option shall be granted under the Plan on or after the earlier of (i) the
tenth anniversary of the Effective Date of the Plan; provided, however, that
after such anniversary date the Plan otherwise shall continue in effect until
all outstanding Options have been exercised in full or no
4
<PAGE>
longer are exercisable, or (ii) the date on which all of the Stock reserved
under Section 3 of the Plan has, as a result of the exercise of Options granted
under the Plan, been issued or no longer is available for use under the Plan, in
which event the Plan also shall terminate on such date.
Section 11. ADJUSTMENT
The number of shares of Stock reserved under Section 3 of the Plan, and the
number of shares of Stock subject to Options granted under the Plan and the
Option Price of such Options shall be adjusted by the Committee 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.
If any adjustment under this Section 11 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 the Plan and the
number subject to any Options granted under the Plan shall be the next lower
number of shares of Stock, rounding all factions downward. An adjustment made
under this Section 11 by the Committee shall be conclusive and binding on all
affected persons.
Section 12. AMENDMENT OR TERMINATION
The Plan may be amended by the Board from time to time to the extent that
the Board deems necessary or appropriate.
Section 13. MISCELLANEOUS
13.1 Withholding. The acceptance of an Option granted under the Plan shall
constitute a Participant'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 Option or
exercise thereof.
13.2 ERISA and the Code. The Plan is not subject to the provisions of ERISA
or qualified under Section 401(a) of the Code.
13.3 No Corporate Restrictions. The grant of an Option under the Plan shall
not effect in any way the right or power of the Corporation to affect
adjustments, reclassifications, reorganizations, or changes of its business or
capital structure or to merge, consolidate, dissolve, liquidate or transfer all
or a part of its business or assets.
13.4 Options Subject to Applicable Law. The Plan and the Options shall be
subject to all applicable Federal and State laws, rules, regulations and
approvals.
13.5 Construction. The Plan and the Option Agreements shall be construed
under the laws of the State of New Jersey.
13.6 Successors and Assigns. Except as otherwise provided herein, the Plan
shall be binding and enforceable against the Corporation and its successors and
assigns.
5
<PAGE>
13.7 Severability. Any provision of the Plan or an Option Agreement which
is prohibited or unenforceable in any jurisdiction, or would disqualify the Plan
or Option under any law deemed applicable by the Committee shall be construed or
deemed amended to conform to applicable laws or stricken in the sole
determination of the Committee, without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdictions.
6
<PAGE>
EXHIBIT 4.3
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
<PAGE>
cause to be delivered to the Holder, a certificate or certificates for the
shares then being purchased upon full payment for such shares.
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
<PAGE>
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.
(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
----------------------
<PAGE>
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.
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 warrant 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.
<PAGE>
Dated: *****************
MARK SOLUTIONS, INC.
By:_________________________
Carl Coppola, President
<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
<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
February 8, 1999
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 5,520,000 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
February 10, 1999 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
Exhibit 23.1
HOLTZ RUBENSTEIN & CO., LLP
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 August 25, 1998 included in Mark Solution, Inc.'s Annual Report on
Form 10-K including financial statements for the fiscal year ended June 30, 1998
and to all references to this accounting firm included in the Registration
Statement.
Holtz Rubenstein & Co., LLP
Melville, New York
February 4, 1999
<PAGE>
