<PAGE>
As filed with the Securities and Exchange Commission on August 1, 1995
Registration No. 33-___________
-------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FIBERCHEM, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 84-1063897
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1181 GRIER DRIVE, SUITE B
LAS VEGAS, NEVADA 89119
(702)361-9873
----------------------------------------------
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
FIBERCHEM, INC. 1995 EMPLOYEE STOCK OPTION PLAN
(Full Title of the Plan)
MELVIN W. PELLEY
CHIEF FINANCIAL OFFICER
FIBERCHEM, INC.
1181 GRIER DRIVE, SUITE B
LAS VEGAS, NEVADA 89119
(702)361-9873
-----------------------------------------
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
A copy of all communications,including communications sent to the agent for
service should be sent to:
ELLIOT H. LUTZKER, ESQ.
SNOW BECKER KRAUSS P.C.
605 THIRD AVENUE
NEW YORK, N.Y. 10158-0125
(212) 687-3860
CALCULATION OF REGISTRATION FEE
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Title of Each Proposed Maximum
Class of Offering Proposed Maximum Amount of
Securities to be Amount to be Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options(1) 1,000,000 -- -- (2)
------------------------------------------------------------------------------------------------------------------------
Common Stock, par
value $.0001 per
share 1,000,000(3) $.921875(4) $921,875 $317.89
------------------------------------------------------------------------------------------------------------------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $317.89
-------
-------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
<FN>
(1) Represents options granted or to be granted pursuant to the 1995
Employee Stock Option Plan (the "Plan") of FiberChem, Inc. (the
"Registrant"). Each option entitles the holder thereof to purchase
one share of the common stock, $.0001 par value (the "Common Stock"),
of the Registrant.
(2) No registration fee is required pursuant to Rule 457(h)(2).
(3) Includes an indeterminate number of shares of Common Stock which may
become issuable pursuant to the antidilution provisions of the Plan.
(4) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) based upon the average of the last bid and ask
prices for the Common Stock on July 26, 1995.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the registrant, FiberChem, Inc., a Delaware corporation
(the "Company" or the "Registrant") pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated by reference in this
registration statement.
(1) The Company's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 1994;
(2) The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended December 31, 1994 and the Company's Quarterly Report on Form 10-
QSB for the fiscal quarter ended March 31, 1995;
(3) The description of the common stock, par value $.0001 per share,
of the Company (the "Common Stock") contained in the Company's Registration
Statement on Form 8-A (File No. 0-17569), filed pursuant to Section 12(g) of the
Exchange Act, including any amendment or report filed for the purpose of
updating such information.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein 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 to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock registered hereby have been
passed upon for the Company by Snow Becker Krauss P.C.,
II-1
<PAGE>
605 Third Avenue, New York, New York 10158-0125. Snow Becker Krauss P.C. owns
50,000 shares of Common Stock of the Company and SBK Investment Partners, an
investment nominee of Snow Becker Krauss P.C., own options 6,250 Class D
Warrants.
Item 6. Indemnification of Directors and Officers.
The General Corporation Law of the State of Delaware (the "GCL") permits a
corporation organized thereunder to indemnify its directors and officers for
certain of their acts. The Certificate of Incorporation of FiberChem is framed
so as to conform to the GCL.
The Company's Certificate of Incorporation includes the following
provision:
SEVENTH: No director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director
shall be liable to the extent provided by applicable law (i) for breach of
the director's duty of loyalty to the Corporation or its stockholders; (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) pursuant to Section 174 of
the Delaware General Corporation Law; or (iv) for any transaction from
which the director derived an improper personal benefit.
Article Seventh of the Company's Certificate of Incorporation provides that
the Company shall to the full extent permitted by Section 145 of the GCL,
indemnify all persons whom may be indemnified pursuant thereto. This Section
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that he was or is a director, officer,
employee or agent of the corporation or serving another corporation in such
capacity at the request of the corporation, against expenses (which expenses,
including attorney's fees, may be advanced by the corporation when authorized
under certain circumstances), damages, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, or, with respect
to a criminal action, was not unlawful. In addition, should such person be
successful on the merits, Section 145 provides that such person shall be
indemnified against expenses incurred by him. In a suit, action or proceeding
against such person brought by or on behalf of the corporation in which such
person was found to be liable to the corporation, any indemnification must be
approved by the court in which such action is brought. Section 145 also
empowers corporations to purchase and maintain insurance on behalf of an
II-2
<PAGE>
officer or Director of the corporation against any liability, regardless of
whether the corporation could indemnify such person against such liabilities.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE SECURITIES ACT OF
1933 MAY BE PERMITTED TO DIRECTORS, OFFICERS OR PERSONS CONTROLLING THE
REGISTRANT PURSUANT TO THE FOREGOING PROVISIONS, THE REGISTRANT HAS BEEN
INFORMED THAT IN THE OPINION OF THE SECURITIES AND EXCHANGE COMMISSION SUCH
INDEMNIFICATION IS AGAINST PUBLIC POLICY AS EXPRESSED IN THE ACT AND IS
THEREFORE UNENFORCEABLE.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 FiberChem, Inc. 1995 Employee Stock Option Plan.
5.1 Opinion of Snow Becker Krauss P.C., as to the legality of the
securities being offered hereunder.
23.1 Consent of Snow Becker Krauss P.C. (included in Exhibit 5.1
hereto).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a)(l) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in the registration
statement;
II-3
<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to any arrangement, provision or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
II-4
<PAGE>
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.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Las Vegas, Nevada, on July 28, 1995.
FIBERCHEM, INC.
BY: /s/ Scott J. Loomis
------------------------------
Scott J. Loomis, President
POWER OF ATTORNEY
Each person whose signature appears below, hereby constitutes and appoints
Melvin W. Pelley his true and lawful attorney-in-fact and agent, with power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying all that said attorney-in-fact and agent
or his substitute or substitutes, or any of them, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
/s/ Scott J. Loomis July 28, 1995
----------------------------------------
Scott J. Loomis, President
and a Director
(Principal Executive Officer)
/s/ Melvin W. Pelley July 28, 1995
----------------------------------------
Melvin W. Pelley, Chief Financial
Officer and Secretary
(Principal Financial Officer)
/s/ Leonard Chill July 28, 1995
----------------------------------------
Leonard Chill, Chairman of the
Board of Directors
/s/ Gerald T. Owens July 28, 1995
----------------------------------------
Gerald T. Owens, Director
/s/ Walter Haemmerli July 28, 1995
----------------------------------------
Walter Haemmerli, Director
/s/ Irwin J. Gruverman July 28, 1995
----------------------------------------
Irwin J. Gruverman, Director
II-6
<PAGE>
Exhibit 23.1
CONSENT OF COUNSEL
The consent of Snow Becker Krauss P.C. to the references to our firm under
the heading "Legal Opinion" in the Prospectus contained in this Registration
Statement is included in its opinion filed as Exhibit 5.1 to this Registration
Statement.
SNOW BECKER KRAUSS P.C.
New York, New York
July 28, 1995
II-7
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
FiberChem, Inc.:
We consent to the use of our report dated November 16, 1994 relating to the
consolidated balance sheets of FiberChem, Inc. and subsidiaries as of
September 30, 1994 and 1993 and the related consolidated statements of
operations, changes in stockholders' equity and cash flows for each of the
years in the two-year period ended September 30, 1994 incorporated herein by
reference and to the reference to our firm under the heading "Experts" in the
prospectus.
Our report refers to a change in the method of accounting for income taxes
to adopt the provisions of the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 109, ACCOUNTING FOR INCOME
TAXES.
/s/ KPMG Peat Marwick LLP
-------------------------
Las Vegas, Nevada
July 28, 1995
II-8
<PAGE>
PROSPECTUS
1,000,000 SHARES
FIBERCHEM, INC.
Common Stock
(par value $.0001)
This Prospectus has been prepared by FiberChem, Inc., a Delaware
corporation (the "Company"), for use upon resale of shares of common stock, par
value $.0001 per share, of the Company (the "Common Stock"), by certain
"Affiliates," as defined in Rule 405 under the Securities Act of 1933, as
amended (the "Act"), of the Company (the "Selling Stockholders") who have
acquired or may acquire such shares of Common Stock upon exercise of options
granted or to be granted under the FiberChem, Inc. 1995 Employee Stock Option
Plan (the "Plan"). The maximum number of shares which may be offered or sold
hereunder is subject to adjustment in the event of stock splits or dividends,
recapitalizations and other similar changes affecting the Common Stock. It is
anticipated that the Selling Stockholders will offer shares of Common Stock for
resale at prevailing prices on the Nasdaq system on the date of sale. See
"Plan of Distribution." The Company will receive none of the proceeds from the
sale of the Common Stock offered hereby. All selling and other expenses
incurred by individual Selling Stockholders will be borne by such Selling
Stockholders.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
The date of this Prospectus is August 1, 1995.
<PAGE>
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
any offer to sell or sale of the securities to which this Prospectus relates
and, if given or made, such information or representations must not be relied
upon as having been authorized. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, imply that there has been no
change in the facts herein set forth since the date hereof. This Prospectus does
not constitute an offer to sell to or a solicitation of any offer to buy from
any person in any state in which any such offer or solicitation would be
unlawful.
---------------------------
FiberChem, Inc. was incorporated under the laws of the State of Delaware in
1988. Its principal executive offices are located at 1181 Grier Drive, Suite B,
Las Vegas, Nevada 89119, and its telephone number is (702) 361-9873.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files
reports and other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information filed by the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Regional Offices of the Commission at Seven
World Trade Center, New York, New York 10048 and at 320 South Dearborn Street,
Chicago, Illinois 60604. Copies can be obtained from the Commission at
prescribed rates by writing to the Commission at 450 Fifth Street N.W.,
Washington, D.C. 20549.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company hereby incorporates by reference the documents listed below:
(1) The Company's Annual Report on Form 10-KSB for the fiscal year
ended September 30, 1994;
(2) The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended December 31, 1994 and the Company's Quarterly Report on Form 10-
QSB for the fiscal quarter ended March 31, 1995;
(3) The description of the common stock, par value $.0001 per share,
of the Company (the "Common Stock") contained in the Company's Registration
Statement on Form 8-A (File No. 0-17569), filed pursuant to Section 12(g) of the
Exchange Act, including any
-2-
<PAGE>
amendment or report filed for the purpose of updating such information.
All documents subsequently filed by the Company after the date of this
Prospectus pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statement contained in a
previously filed document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement herein modifies or supersedes such statement; and any statement
contained herein shall be deemed to be modified or superseded to the extent that
a statement in any document subsequently filed, which is incorporated by
reference herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the information that has
been incorporated by reference in this Prospectus (not including exhibits to
such information, unless such exhibits are specifically incorporated by
reference into the information which this Prospectus incorporates). Requests for
copies of such information should be directed to the Company at 1181 Grier
Drive, Suite B, Las Vegas, Nevada 89119; Attention: Corporate Secretary.
SELLING STOCKHOLDERS
The shares of Common Stock to which this Prospectus relates are being
registered for reoffers and resales by Selling Stockholders of the Company who
may acquire such shares pursuant to the exercise of options granted or to be
granted under the Plan. The Selling Stockholders named below may resell all, a
portion, or none of such shares.
Participants under the Plan who are deemed to be "affiliates" of the
Company who acquire Common Stock under the Plan may be added to the Selling
Stockholders listed below from time to time by use of a prospectus supplement
filed pursuant to Rule 424(b) under the 1933 Act. An "affiliate" is defined in
Rule 405 under the Securities Act as a "person that directly, or indirectly,
through one or more intermediaries, controls, or is controlled by, or is under
common control with," the Company.
The following table sets forth certain information concerning the Selling
Stockholders as of the date of this Prospectus.
-3-
<PAGE>
SELLING STOCKHOLDERS
<TABLE>
<CAPTION>
Percentage of
Number Shares of Common
Number of Number of Stock Owned (2) (3)
Share of of Option ---------------------
Common Stock Shares Before After
Stock Options to be Offering Offering
Name Owned (1) Granted Sold *
<S> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------------------------------
Leonard Chill
309 Lafayette Rd.
Chickamauga, GA 30707 (4) 502,738 0 0 2.2% 2.2%
---------------------------------------------------------------------------------------------------------------
Scott J. Loomis
P.O. Box 35238
Tucson, AZ 85740 (5) 1,154,801 0 0 5.1% 5.1%
---------------------------------------------------------------------------------------------------------------
Walter Haemmerli
Manport AG
Basteiplatz 3, CH 8001
Zurich, Switzerland (6) 2,788,050 0 0 11.3% 11.3%
---------------------------------------------------------------------------------------------------------------
Gerald T. Owens
32 Los Robles Rd.
Carmel Valley, CA 93924 (7) 182,323 0 0 ** **
---------------------------------------------------------------------------------------------------------------
Irwin J. Gruverman
30 Ossipee Rd.
Newton, MA 02164 (8) 292,460 0 0 1.3% 1.3%
---------------------------------------------------------------------------------------------------------------
Melvin W. Pelley (9) (13) 165,000 0 0 ** **
---------------------------------------------------------------------------------------------------------------
Dale W. Conrad (10) (13) 715,822 0 0 3.2% 3.2%
---------------------------------------------------------------------------------------------------------------
Geoffrey F. Hewitt (11)(13) 375,000 0 0 1.6% 1.6%
---------------------------------------------------------------------------------------------------------------
David R. LeBlanc (12) (13) 105,000 0 0 ** **
---------------------------------------------------------------------------------------------------------------
Total (14): 6,281,194 0 0 24.0% 24.0%
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
<FN>
* Does not constitute a commitment to sell any or all of the stated number of
shares of Common Stock. The number of shares offered shall be determined
from time to time by each Selling Stockholder at his sole discretion.
** Represents less than 1%.
(1) Unless otherwise noted, all persons referred to above have sole voting and
sole investment power.
(2) Based on 22,401,644 shares outstanding as of July 31, 1995, including
2,164,620 shares issuable upon conversion of Preferred Stock.
-4-
<PAGE>
(3) Does not give effect to any currently outstanding warrants or options,
other than with respect to those set forth for the individual persons
listed in the above table, pursuant to Rule 13d-3 under the Exchange Act.
(4) Includes 118,367 Class D Common Stock Purchase Warrants and an aggregate of
73,617 shares of Common Stock issuable upon exercise of a like number of
options. Excludes 80,000 shares of Common Stock held by relatives of Mr.
Chill, of which, Mr. Chill does not have any power to direct the vote or
disposition and therefore disclaims any beneficial ownership. Mr. Chill is
the Chairman of the Board of the Company.
(5) Includes 32,353 Class D Common Stock Purchase Warrants and an aggregate of
44,375 shares of Common Stock issuable upon exercise of a like number of
options. Includes 368,161 shares of Common Stock held in escrow against
promissory notes for the exercise of options. Also includes 486,668 shares
of Common Stock, 151,590 Class D Common Stock Purchase Warrants and 65,736
shares of Common Stock issuable upon exercise of a like number of options
held by Agri Research and Development, Inc., of which Mr. Loomis is a
Director and principal stockholder. Mr. Loomis is the President and a
Director of the Company.
(6) Includes 32,000 Class D Common Stock Purchase Warrants, an aggregate of
10,000 shares of Common Stock issuable upon exercise of a like number of
options and 3,586 shares of Convertible Preferred Stock convertible into
35,860 shares of Common Stock. Also includes 602,056 shares of Common
Stock, 433,830 Class D Common Stock Purchase Warrants, 165,286 shares of
Convertible Preferred Stock convertible into 1,652,860 shares of Common
Stock and an aggregate of 21,444 shares of Common Stock issuable upon
exercise of a like number of options, all held by Privatbank Vermag A.G.,
Chur, Switzerland, as custodian for certain customers, of which company Mr.
Haemmerli is Vice-Chairman. Mr. Haemmerli is a Director of the Company.
(7) Includes 39,965 Class D Common Stock Purchase Warrants and an aggregate of
37,500 shares of Common Stock issuable upon exercise of a like number of
options. Includes 26,866 shares of Common Stock held in escrow against
promissory notes for the exercise of options. Mr. Owens is a Director of
the Company.
(8) Includes 180,000 shares of Common Stock issuable upon exercise of a like
number of options. Also includes 2,500 shares of Common Stock held by G&G
Diagnostics, L.P. I, 40,000 shares of Common Stock held by G&G Diagnostics,
L.P. II, and 6,996 shares of Convertible Preferred Stock
-5-
<PAGE>
convertible into 69,960 shares of Common Stock held by G&G Diagnostics,
L.P. III, all of which Mr. Gruverman is a principal. Mr. Gruverman is a
Director of the Company.
(9) Includes an aggregate of 62,777 shares of Common Stock issuable upon
exercise of a like number of options. Includes 80,000 shares of Common
Stock held in escrow against promissory notes for the exercise of options.
Mr. Pelley is the Chief Financial Officer of the Company.
(10) Includes an aggregate of 253,559 shares of Common Stock issuable upon
exercise of a like number of options. Includes 402,477 shares of Common
Stock held in escrow against promissory notes for the exercise of options.
Mr. Conrad is the Chairman of the Board and Chief Executive Officer of FCI
Environmental, Inc. ("Environmental"), a wholly-owned subsidiary of the
Company.
(11) Includes an aggregate of 351,281 shares of Common Stock issuable upon
exercise of a like number of options. Mr. Hewitt is the President, Chief
Operating Officer and a Director of Environmental.
(12) Includes an aggregate of 100,274 shares of Common Stock issuable upon
exercise of a like number of options. Mr. LeBlanc is the Vice President -
Sales and Marketing of Environmental.
(13) The address of this person is c/o the Company, 1181 Grier Drive, Suite B,
Las Vegas, Nevada 89119.
(14) Includes 808,105 Class D Common Stock Purchase Warrants, an aggregate of
1,200,563 shares of Common Stock issuable upon exercise of a like number of
options, and 175,868 shares of Convertible Preferred Stock convertible into
1,758,680 shares of Common Stock. Excludes up to 1,000,000 shares issuable
upon exercise of a like number of options which may be issued to Officers
and Directors pursuant to the Employee Plan.
</TABLE>
PLAN OF DISTRIBUTION
The shares are being sold by the Selling Stockholders for their own
accounts. The shares may be sold or transferred for value by the Selling
Stockholders, or by pledgees, donees, transferees or other successors in
interest to the Selling Stockholders, in one or more transactions on the Nasdaq
System, in negotiated transactions or in a combination of such methods of sale,
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at prices otherwise negotiated. The Selling
Stockholders may effect such transactions by selling the
-6-
<PAGE>
shares to or through brokers-dealers, and such broker-dealers may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Stockholders and/or the purchasers of the shares for whom such
broker-dealers may act as agent (which compensation may be less than or in
excess of customary commissions). The Selling Stockholders and any
broker-dealers that participate in the distribution of the shares may be deemed
to be "underwriters" within the meaning of Section 2(11) of the Securities Act
and any commissions received by them and any profit on the resale of the Shares
sold by them may be deemed to be underwriting discounts and commissions under
the Securities Act.
There can be no assurance that any of the Selling Stockholders will sell
any or all of the shares of Common Stock offered by them hereunder.
USE OF PROCEEDS
The Company will not realize any proceeds upon the sale of the shares of
Common Stock issuable upon the exercise of the stock options.
LEGAL MATTERS
The validity of the shares of Common Stock registered hereby have been
passed upon for the Company by Snow Becker Krauss P.C., 605 Third Avenue, New
York, New York 10158-0125. Snow Becker Krauss P.C. owns 50,000 shares of
Common Stock of the Company and SBK Investment Partners, an investment nominee
of Snow Becker Krauss P.C., own options 6,250 Class D Warrants.
EXPERTS
The financial statements of the Company appearing in the Company's Annual
Report on Form 10-KSB for the year ended September 30, 1994, have been audited
by KPMG Peat Marwick LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
-7-
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page
----------- ---------------------- ----
4.1 FiberChem, Inc. 1995 Employee Stock Option Plan.
5.1 Opinion of Snow Becker Krauss P.C.
23.1 Consent of Snow Becker Krauss P.C. (included in Exhibit 5.1
hereto).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
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EXHIBIT 4.1
FIBERCHEM, INC.
1995 EMPLOYEE STOCK OPTION PLAN
1. Purposes.
The FIBERCHEM, INC. 1995 EMPLOYEE STOCK OPTION PLAN (the "Plan") is
intended to provide the employees, directors, independent contractors and
consultants of FiberChem, Inc. (the "Company") with an added incentive to
continue their services to the Company and to induce them to exert their maximum
efforts toward the Company's success. By thus encouraging employees, directors,
independent contractors and consultants and promoting their continued
association with the Company, the Plan may be expected to benefit the Company
and its Stockholders. The Plan allows the Company to grant Incentive Stock
Options ("ISOs") (as defined in Section 422(b) of the Internal Revenue Code of
1986, as amended [the "Code"]), Non-Qualified Stock Options ("NQSOs") not
intended to qualify under Section 422(b) of the Code and Stock Appreciation
Rights ("SARs") (collectively the "Options").
2. Shares Subject to the Plan.
The total number of Common Stock of the Company, $.0001 par value per share
(the "Common Stock"), that may be subject to Options granted under the Plan
shall be 1,000,000 (subject to recapitalization of the Company) in the
aggregate, subject to adjustment as provided in Paragraph 8 of the Plan;
however, the grant of any NQSO to an employee together with a tandem SAR shall
only require one share of Common Stock available subject to the Plan to satisfy
such joint Option. The Company shall at all times while the Plan is in force
reserve such number of shares of Common Stock as will be sufficient to satisfy
the requirement of outstanding Options granted under the Plan. In the event any
Option granted under the Plan shall expire or terminate for any reason without
having been exercised in full or shall cease for any reason to be exercisable in
whole or in part, the unpurchased shares subject thereto shall again be
available for granting of Options under the Plan.
3. Eligibility.
ISO's may be granted from time to time under the Plan to one or more
employees of the Company or of a subsidiary" or "parent" of the Company, as the
quoted terms are defined within Section 424 of the Code. An Officer is an
employee for the above purposes. However, a director of the Company who is not
otherwise an employee is not deemed an employee for such purposes. Options,
other than ISO's, may be granted from time to time under the Plan to one or more
employees of the Company, Officers, members of the Board of Directors,
independent contractors, consultants and other individuals who are not employees
of, but are involved in the continuing development and success of the Company
and/or of a
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subsidiary of the Company, including persons who have previously been granted
Options under the Plan.
4. Administration of the Plan.
(a) The Plan shall be administered by the Board of Directors of the
Company as such Board of Directors may be composed from time to time or by a
Stock Option Committee (the "Committee") comprised of at least two disinterested
persons (the term "disinterested" having the meaning ascribed to it by Rule
16b-3 of the Securities Exchange Act of 1934 the "1934 Act"]) appointed by such
Board of Directors of the Company. As and to the extent authorized by the Board
of Directors of the Company, the Committee may exercise the power and authority
vested in the Board of Directors under the Plan. Within the limits of the
express provisions of the Plan, the Board of Directors or committee shall have
the authority, in its discretion, to determine the individuals to whom, and the
time or times at which, Options shall be granted, the character of such Options
(whether ISO, NQSO and/or SAR in tandem with a NQSO) and the number of shares of
Common Stock to be subject to each Option, and to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to the Plan, to
determine the terms and provisions of Option agreements that may be entered into
in connection with Options (which need not be identical), subject to the
limitation that agreements granting ISOs must be consistent with requirements
for the ISOs being qualified as "incentive stock options" as provided in Section
422 of the Code, and to make all other determinations and take all other actions
necessary or advisable for the administration of the Plan. In making such
determinations, the Board of Directors may take into account the nature of the
services rendered by such individuals, their present and potential contributions
to the Company's success, and such other factors as the Board of Directors, in
its discretion, shall deem relevant. The Board of Directors' determinations on
the matters referred to in this paragraph shall be conclusive.
(b) Notwithstanding anything contained herein to the contrary, the
Committee shall have the exclusive right to grant Options to persons subject to
Section 16 of the 1934 Act and set forth the terms and conditions thereof. With
respect to persons subject to Section 16 of the 1934 Act, transactions under the
Plan are intended to comply with all applicable conditions of Rule 16b-3 for its
successors under the 1934 Act. To the extent any provision of the Plan or
action by the Board of Directors or Committee fails to so comply, it shall be
deemed null and void, to the extent permitted by law and deemed advisable by the
Board of Directors.
5. Terms of Options.
Within the limits of the express provisions of the Plan, the Board or the
Committee may grant either ISOs or NQSOs and/or SARs in tandem with NQSOs. An
ISO or an NQSO enables the optionee to
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purchase from the Company, at any time during a specified exercise period, a
specified number of shares of Common Stock at a specified price (the "Option
Price"). The optionee, if granted a SAR in tandem with a NQSO, may receive from
the Company, in lieu of exercising his option to purchase shares pursuant to his
NQSO, at one of the certain specified times during the exercise period of the
NQSO as set by the Board or the Committee, the excess of the fair market value
upon such exercise (as determined in accordance with subparagraph (b) of this
Paragraph 5) of one share of Common Stock over the Option Price per share
specified upon grant of the NQSO/SAR multiplied by the number of shares of
Common Stock covered by the SAR so exercised. The character and terms of each
Option granted under the Plan shall be determined by the Board of Directors
consistent with the provisions of the Plan, including the following:
(a) An Option granted under the Plan must be granted within 10 years from
the date the Plan is adopted, or the date the Plan is approved by the
Stockholders of the Company, whichever is earlier.
(b) The Option Price of the shares of Common Stock subject to each ISO
shall not be less than the fair market value of such shares of Common Stock at
the time such ISO is granted. Such fair market value shall be determined by the
Board of Directors and, if the Common Stock is listed on a national securities
exchange or traded on the over-the-counter market, the fair market value shall
be the closing price on such exchange, or the mean of the closing bid and asked
prices of the Common Stock on the over-the-counter market, as reported by the
National Association of Securities Dealers Automated Quotation System (NASDAQ),
the National Association of Securities Dealers OTC Bulletin Board or the
National Quotation Bureau, Inc., as the case may be, on the day on which the
Option is granted or, if there is no closing price or bid or asked price on that
day, the closing price or mean of the closing bid and asked prices on the most
recent day preceding the day on which the Option is granted for which such
prices are available. If an ISO is granted to any individual who, immediately
before the ISO is to be granted, owns (directly or through attribution) more
than 10% of the total combined voting power of all classes of capital stock of
the Company or a subsidiary or parent of the Company, the Option Price of the
Common Stock subject to such ISO shall not be less than 110% of the fair market
value per share of the Common Stock at the time such ISO is granted.
(c) The Option Price of the Common Stock subject to an NQSO or a SAR in
tandem with a NQSO granted pursuant to the Plan shall be determined by the Board
of Directors or the Committee, in its sole discretion.
(d) In no event shall any Option granted under the Plan have an expiration
date later than 10 years from the date of its grant, and all Options granted
under the Plan shall be subject to earlier
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<PAGE>
termination as expressly provided in Paragraph 6 hereof. If an ISO is granted to
any individual who, immediately before the ISO is granted, owns (directly or
through attribution) more than 10% of the total combined voting power of all
classes of capital stock of the Company or of a subsidiary or parent of the
Company, such ISO shall by its terms expire and shall not be exercisable after
the expiration of five (5) years from the date of its grant.
(e) An SAR may be exercised at any time after six months of the date of
the grant thereof during the exercise period of the NQSO with which it is
granted in tandem and prior to the exercise of such NQSO, but only within the
specified 10 business day period referred to in subsection (e)(3) of Rule 16b-3
of the 1934 Act (generally, the 10 business days immediately following the
publication of the Company's quarterly financial information). The exercise of
an SAR granted in tandem with an NQSO shall be deemed to cancel such number of
shares subject to the unexercised Option as were subject to the exercised SAR.
The Board of Directors or the Committee also has the discretion to alter the
terms of the SARs if necessary to comply with Federal or state securities law.
Amounts to be paid by the Company in connection with an SAR may, in the Board's
or the Committee's discretion, be made in cash, Common Stock or a combination
thereof. An NQSO granted in tandem with an SAR may not be exercised within six
months of the grant thereof.
(f) Unless otherwise provided in any Option agreement under the Plan, an
Option granted under the Plan shall become exercisable, in whole at any time or
in part from time to time, but in no case may an Option (i) be exercised as to
less than one hundred (100) shares of Common Stock at any one time, or the
remaining Common Stock covered by the Option if less than one hundred (100), and
(ii) become fully exercisable more than five years from the date of its grant
nor shall less than 20% of the Option become exercisable in any of the first
five years of the Option.
(g) An Option granted under the Plan shall be exercised by the delivery by
the holder thereof to the Company at its principal office (to the attention of
the Secretary) of written notice of the number of full shares of Common Stock
with respect to which the Option is being exercised, accompanied by payment in
full, which payment at the option of the optionee shall be in the form of (i)
cash or certified or bank check payable to the order of the Company, of the
Option Price of such shares of Common Stock, or, (ii) if permitted by the
Committee or the Board of Directors, as determined by the Committee or the Board
of Directors in its sole discretion at the time of the grant of the Option with
respect to an ISO and at or prior to the time of exercise with respect to a
NQSO, by the delivery of shares of Common Stock having a fair market value equal
to the Option Price or the delivery of an interest-bearing promissory note
having an original principal balance equal to the Option Price and an interest
rate not below
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the rate which would result in inputed interest under the Code (provided, in
order to qualify as an ISO, more than one year shall have passed since the date
of grant and one year from the date of exercise), or (iii) at the option of the
Committee or the Board of Directors, determined by the Committee or the Board of
Directors in its sole discretion at the time of the grant of the Option with
respect to an ISO and at or prior to the time of exercise with respect to a
NQSO, by a combination of cash, promissory note and/or such shares of Common
Stock (subject to the restriction above) held by the employee that have a fair
market value together with such cash and principal amount of any promissory
note that shall equal the Option Price, and, in the case of a NQSO, at the
discretion of the Committee or Board of Directors by having the Company withhold
from the shares of Common Stock to be issued upon exercise of the Option that
number of shares having a fair market value equal to the exercise price and/or
the tax withholding amount due, or otherwise provide for withholding as set
forth in Paragraph 9(c) hereof, or in the event an employee is granted a NQSO in
tandem with an SAR and desires to exercise such SAR, such written notice shall
so state such intention. The Option Price may also be paid in full by a
broker-dealer to whom the optionee has submitted an exercise notice consisting
of a fully endorsed Option, or through any other medium of payment as the Board
of Directors and/or the Committee, in its discretion, shall authorize.
(h) The holder of an Option shall have none of the rights of a Stockholder
with respect to the Common Stock covered by such holder's Option until such
Common Stock shall be issued to such holder upon the exercise of the Option.
(i) All Options granted under the Plan shall not be transferable otherwise
than by will or the laws of descent and distribution, and any ISO granted under
the Plan may be exercised during the lifetime of the holder thereof only by the
holder. No Option granted under the Plan shall be subject to execution,
attachment or other process.
(j) The aggregate fair market value, determined as of the time any ISO is
granted and in the manner provided for by subparagraph (b) of this Paragraph 5,
of the Common Stock with respect to which ISOs granted under the Plan are
exercisable for the first time during any calendar year and under incentive
stock options qualifying as such in accordance with Section 422 of the Code
granted under any other Incentive Stock Option plan maintained by the Company or
its parent or subsidiary corporations, shall not exceed $100,000. Any grant of
Options in excess of such amount shall be deemed a grant of a NQSO.
6. Death or Termination of Employment.
(a) If the employment of a holder of an ISO under the Plan shall be
terminated for any reason other than cause or the death or
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the disability of the holder, such holder's ISO shall expire within three (3)
months after such termination, subject to the provisions of subparagraph (d) of
this Paragraph 6. If such employment shall terminate for cause, then any such
ISO, NQSO, and/or SAR in tandem with a NQSO granted to a holder may be exercised
at any time within thirty (30) days after such termination, subject to the
provisions of subparagraph (d) of this Paragraph 6. If the employment of a
holder of an Option (exclusive of his ISOs) shall be terminated for any reason
other than cause or the death or the disability of the holder, such holder's
Options, other than his ISOs, may be exercised during the respective terms
thereof, subject to the provisions of subparagraph (d) of this Paragraph 6.
(b) If the holder of an Option under the Plan dies (i) while employed by
the Company or a subsidiary or parent corporation or (ii) within three (3)
months after the termination of such holder's employment other than voluntarily
by the employee or for cause, such Option may, subject to the provisions of
subparagraph (d) of this Paragraph 6, be exercised by a legatee or legatees of
such Option under such individual's last will or by such individual's personal
representatives or distributees at any time within one year after the
individual's death.
(c) If the holder of an Option under the Plan becomes disabled within the
definition of section 22(e)(3) of the Code while employed by the Company or a
subsidiary or parent corporation, such Option may, subject to the provisions of
subparagraph (d) of this Paragraph 6, be exercised at any time within one year
after such holder's termination of employment due to the disability.
(d) An Option may not be exercised pursuant to this Paragraph 6 except to
the extent that the holder was entitled to exercise the Option at the time of
termination of employment or death, and in any event may not be exercised after
the original expiration date of the Option.
7. Leave of Absence.
For the purposes of the Plan, an individual who is on military or sick
leave or other bona fide leave of absence (such as temporary employment by the
Government) shall be considered as remaining in the employ of the Company or of
a subsidiary or parent corporation for ninety (90) days or such longer period as
such individual's right to reemployment is guaranteed either by statute or by
contract.
8. Adjustment Upon Changes in Capitalization.
(a) In the event that the outstanding shares of Common Stock are hereafter
changed by reason of recapitalization, reclassification, stock split-up,
combination or exchange of Common
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Stock or the like, or by the issuance of dividends payable in shares of Common
Stock, an appropriate adjustment shall be made by the Board of Directors in the
aggregate number of shares of Common Stock available under the Plan and in the
number of shares of Common Stock and price per share subject to outstanding
Options. In the event of the proposed dissolution, liquidation, merger or sale
of substantially all of the assets of the Company, all outstanding Options
under the Plan will automatically terminate, unless otherwise provided by the
Board of Directors. The Board of Directors or the Committee may in its
discretion make provision for accelerating the exercisability of Options under
the Plan in such circumstances.
(b) Any adjustment in the number of shares of Common Stock shall apply
proportionately to only the unexercised portion of the Options granted
hereunder. If fractions of shares of Common Stock would result from any such
adjustment, the adjustment shall be revised to the next lower whole number of
shares of Common Stock.
9. Further Conditions of Exercise.
(a) Unless the shares of Common Stock issuable upon the exercise of an
Option under the Plan have been registered with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, prior to the
exercise of the Option, the notice of exercise shall be accompanied by a
representation or agreement of the individual exercising the Option to the
Company to the effect that such shares of Common Stock are being acquired for
investment and not with a view to the resale or distribution thereof or such
other documentation as may be required by the Company, unless in the opinion of
counsel to the Company such representation, agreement or documentation is not
necessary to comply with said Act.
(b) The Company shall not be obligated to deliver any shares of Common
Stock until they have been listed on each securities exchange on which the
shares of Common Stock may then be listed or until there has been qualification
under or compliance with such state or federal laws, rules or regulations as the
Company may deem applicable. The Company shall use reasonable efforts to obtain
such listing, qualification and compliance.
(c) The Board or Committee may make such provisions and take such steps as
it may deem necessary or appropriate for the withholding of any taxes that the
Company is required by any law or regulation of any governmental authority,
whether federal, state or local, domestic or foreign, to withhold in connection
with the exercise of any Option, including, but not limited to, (i) the
withholding of payment of all or any portion of such Option and/or SAR until the
holder reimburses the Company for the amount the Company is required to withhold
with respect to such taxes, or (ii) the cancelling of any number of shares of
Common Stock issuable
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upon exercise of such Option and/or SAR in an amount sufficient to reimburse the
Company for the amount it is required to so withhold, (iii) the selling of any
property contingently credited by the Company for the purpose of exercising
such Option, in order to withhold or reimburse the Company for the amount it is
required to so withhold, or (iv) withholding the amount due from such employee's
wages if the employee is employed by the Company or any subsidiary thereof.
10. Termination, Modification and Amendment.
The Plan (but not Options previously granted under the Plan) shall
terminate ten (10) years from the earliest of the date of its adoption by the
Board of Directors, or the date the Plan is approved by the Stockholders of the
Company, or such date of termination, as hereinafter provided, and no Option
shall be granted after termination of the Plan.
The Plan may from time to time be terminated, modified or amended by the
affirmative vote of the holders of a majority of the outstanding shares of
capital stock of the Company entitled to vote thereon.
The Board of Directors of the Company may at any time, prior to ten (10)
years from the earlier of the date of the adoption of the Plan by such Board of
Directors or the date the Plan is approved by the Stockholders, terminate the
Plan or from time to time make such modifications or amendments of the Plan as
it may deem advisable; provided, however, that the Board of Directors shall not,
without approval by the affirmative vote of the holders of a majority of the
outstanding shares of capital stock of the Company entitled to vote thereon,
increase (except as provided by Paragraph 8) the maximum number of shares of
Common Stock as to which Options may be granted under the Plan, materially
change the standards of eligibility under the Plan or materially increase the
benefits which may accrue to participants under the Plan. Any amendment to the
Plan which, in the opinion of counsel to the Company, will be deemed to result
in the adoption of a new Plan, will not be effective until approved by the
affirmative vote of the holders of a majority of the outstanding shares of
capital stock of the Company entitled to vote thereon.
No termination, modification or amendment of the Plan may adversely affect
the rights under any outstanding Option without the consent of the individual to
whom such Option shall have been previously granted.
11. Effective Date of the Plan.
The Plan shall become effective upon adoption by the Board of Directors of
the Company. The Plan shall be subject to approval by the affirmative vote of
the holders of a majority of the
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outstanding shares of capital stock of the Company entitled to vote thereon
within one year before or after adoption of the Plan by the Board of Directors.
12. Not a Contract of Employment.
Nothing contained in the Plan or in any option agreement executed pursuant
hereto shall be deemed to confer upon any individual to whom an Option is or may
be granted hereunder any right to remain in the employ of the Company or of a
subsidiary or parent of the Company or in any way limit the right of the
Company, or of any parent or subsidiary thereof, to terminate the employment of
any employee.
13. Other Compensation Plans.
The adoption of the Plan shall not affect any other stock option plan,
incentive plan or any other compensation plan in effect for the employees of the
Company, nor shall the Plan preclude the Company from establishing any other
form of stock option plan, incentive plan or any other compensation plan for
employees of the Company.
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EXHIBIT 5.1
July 28, 1995
Board of Directors
FiberChem, Inc.
1181 Grier Drive, Suite B
Las Vegas, Nevada 89119
Re: Registration Statement on Form S-8 Relating to 1,000,000 Shares
of Common Stock, Par Value $.0001 Per Share, of FiberChem, Inc.
Issuable Under 1995 Employee Stock Option Plan
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Gentlemen:
We are acting as counsel to FiberChem, Inc., a Delaware corporation (the
"Company"), in connection with the filing by the Company with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), of a registration statement on Form S-8 (the "Registration
Statement") relating to 1,000,000 shares (the "Shares") of the Company's common
stock, par value $.0001 per share (the "Common Stock"), issuable upon the
exercise of options to be granted pursuant to the Company's 1995 Employee Stock
Option Plan (the "Plan").
We have examined and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of the Certificate of Incorporation,
as amended, and By-Laws of the Company, as each is currently in effect, the
Registration Statement, the Plan, resolutions of the Board of Directors of the
Company relating to the adoption of the Plan and the proposed registration and
issuance of the Shares and such other corporate documents and records and other
certificates, and we have made such investigations of law as we have deemed
necessary or appropriate in order to render the opinions hereinafter set forth.
<PAGE>
FiberChem, Inc.
July 28, 1995
Page 2
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon statements and representations of
officers and other representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
Shares to be issued upon exercise of any options duly granted pursuant to the
terms of the Plan have been duly and validly authorized and, when the Shares
have been paid for in accordance with the terms of the Plan and certificates
therefore have been duly executed and delivered, such Shares will be duly and
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference in the Registration Statement to
this firm under the heading "Interests of Named Experts and Counsel." In
addition, we hereby consent to the reference to this firm in the Prospectus
(accompanying this Registration Statement) for resales by affiliates of the
Company under the heading "Legal Matters." In giving this consent, we do not
hereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act, or the rules and regulations of
the Securities and Exchange Commission thereunder.
This firm owns 50,000 shares of Common Stock of the Company and SBK
Investment Partners, an investment nominee of this firm, owns 6,250 Class D
Warrants.
Very truly yours,
SNOW BECKER KRAUSS P.C.
