<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 31, 1996
REGISTRATION NO. ______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
BIODYNAMICS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 59-3100165
- ------------------------ ------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
10500 UNIVERSITY CENTER DRIVE
SUITE 130
TAMPA, FLORIDA 33567
(Address of Principal Executive Offices)
1996 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN
1996 MANAGEMENT INCENTIVE COMPENSATION PLAN
SPECIAL STOCK OPTIONS FOR PRESIDENT AND CHIEF EXECUTIVE OFFICER
(Full title of the plans)
KARL H. MEISTER, PRESIDENT
BIODYNAMICS INTERNATIONAL, INC.
10500 UNIVERSITY CENTER DRIVE, SUITE 130
TAMPA, FLORIDA 33612
813/979-0016
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
--------------------------------
COPY TO:
WILLIAM J. SCHIFINO, ESQ.
SCHIFINO & FLEISCHER, P.A.
ONE TAMPA CITY CENTER, SUITE 2700
TAMPA, FLORIDA 33602
--------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT
TITLE OF SECURITIES TO BE PRICE OFFERING OF REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE PRICE FEE (2)
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK,
$.01 PAR VALUE 3,250,000 SHS. $1.16 $3,770,000 $1,143
================================================================================
</TABLE>
-------------------------
(1) Pursuant to Rule 416, this Registration Statement also covers such
indeterminate number of additional shares as may hereinafter be offered or
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions effected without receipt of consideration as provided
by the Plan.
(2) Pursuant to Rule 457(h), the offering price is estimated solely for the
purpose of determining the registration fee and is based on the average of
the bid and ask prices of the common stock on the over-the-counter market
on October 25, 1996.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Biodynamics International, Inc. ("Biodynamics") hereby incorporates the
following documents, previously filed with the Securities and Exchange
Commission, by reference:
(a) The Company's latest Annual Report on Form 10-KSB for the fiscal
year ended September 30, 1995.
(b) The Company's Quarterly Reports on Form 10-QSB for the quarter
ended December 31, 1995, March 31, 1996 and June 30, 1996.
(c) The Company's Articles of Incorporation authorizes the issuance of
20,000,000 shares of Common Stock with a par value of $.01 per
share. The holders of the shares of Common Stock are entitled to
one vote for each share held of record on all matters on which
stockholders are entitled or permitted to vote. Such holders may
not cumulate votes in the election of directors. The holders of
Common Stock are entitled to receive such dividends as may
lawfully be declared by the Board of Directors out of funds
legally available therefor and to share pro rata in any other
distribution to the holders of Common Stock. The holders of
Common Stock are entitled to share ratably in the assets of the
Company remaining after the payment of liabilities in the event of
any liquidation, dissolution or winding up of the affairs of the
Company. There are no preemptive rights, conversion rights,
redemption or sinking fund provisions or fixed dividend rights
with respect to the Common Stock.
In addition, all documents subsequently filed by the Company pursuant to Section
13, and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post effective amendment which indicates that all securities have been sold or
which de-registers 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.
ITEM 4. DESCRIPTION OF SECURITIES.
The Company's shares of Common Stock are registered with the Securities
and Exchange Commission pursuant to Section 12 of the Securities
Exchange Act of 1934.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI, Sections B, C and D of the By-Laws of the Company provide
for the indemnification by the Company of each director, officer, and
employee of the Company against all costs, charges and expenses,
including an amount paid to settle an action or satisfy a judgement, to
which he or they are made a part by reason of his/her being or having
been a director of the Company or a director of such corporation,
including any action brought by the Company or any such corporation.
Each director of the Company on being elected or appointed shall be
deemed to have contracted with the Company on the terms of the
foregoing indemnity.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the
Company 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 therefor unenforceable.
<PAGE> 3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None
ITEM 8. EXHIBITS
The following are filed as Exhibits to this Registration Statement
Exhibits:
4.2 A copy of the 1996 Incentive and Non Statutory Stock Option Plan.
4.3 A copy of the 1996 Management Incentive Compensation Plan.
5. Opinion of Schifino & Fleischer, P.A. as to the shares of Common
Stock being registered.
23.1 Consent of Schifino & Fleischer, P.A. (filed as Exhibit 5).
23.2 Consent of Price Waterhouse LLP as the Company's independent
auditors.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) 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.
(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 for registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant, pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person, in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned thereunto duly
authorized, in the City of Tampa and State of Florida, on the 8th day of
October, 1996.
BIODYNAMICS INTERNATIONAL, INC.
By /s/ Karl M. Meister
----------------------------------------
Karl H. Meister, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Karl H. Meister Director and
- --------------------------- Chief Executive Officer October 8, 1996
Karl H. Meister
/s/ David P. Nichols Chief Financial and Accounting October 8, 1996
- --------------------------- Officer
David P. Nichols
/s/ Charles G. Dragone Director October 8, 1996
- ---------------------------
Charles C. Dragone
/s/ James Barry Director October 8, 1996
- ---------------------------
James Barry
/s/ Elroy G. Roelke Director October 9, 1996
- ---------------------------
Elroy G. Roelke
/s/ Laurie Rostron Director October 9, 1996
- ---------------------------
Laurie Rostron
</TABLE>
<PAGE> 1
EXHIBIT 4.2
BIODYNAMICS INTERNATIONAL, INC.
1996 STOCK OPTION PLAN
ARTICLE I
General
Section 1.01. Purpose. It is the purpose of the Plan to promote the
interests of the Company and its shareholders by attracting, retaining and
stimulating the performance of selected Employees, Directors and Consultants
by giving such Employees, Directors and Consultants the opportunity to acquire
a proprietary interest in the Company and an increased personal interest in its
continued success and progress.
Section 1.02. Definitions. As used herein the following terms have the
following meanings:
(a) "Affiliate" means any parent or subsidiary corporation of the Company
within the meaning of Section 424(e) and (f) of the Code.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means the Compensation and Stock Option Committee described
in Article II hereof.
(e) "Common Stock" means the $0.01 par value Common Stock of the Company.
(f) "Company" means Biodynamics International, Inc., a Florida
corporation.
(g) "Consultant" means any consultant or advisor of the Company or an
Affiliate who is not an Employee or Director, provided that bona fide
services are rendered by the consultant or advisor and such services
are not in connection with the offer or sale of securities in a
capital-raising transaction.
(h) "Director" means a member of the Board.
(i) "Employee" means any employee of the Company or an Affiliate.
(j) "Employee-Director" means an Employee who is a Director.
(k) "Fair Market Value" means (A) the closing sale price of the Common
Stock on the date in question (or, of there is no reported sale on such
date, then on the last preceding date on which a reported sale
occurred), as reported on the NASDAQ Market (if the Common Stock is not
listed on a national securities exchange and sales of the Common
<PAGE> 2
Stock are regularly reported on such market), or as reported on a
national securities exchange (if the Common Stock is listed for trading
on such exchange), or (B) the mean between the bid and ask prices of
the Common Stock on the date in question (or, if there is no report of
such prices on such date, then on the last preceding date on which such
prices were reported), as reported by the National Association of
Securities Dealers, Inc.
(l) "Option" means any option to purchase shares of Common Stock granted
pursuant to the provisions of the Plan.
(m) "Optionee" means an Employee, Outside Director or Consultant who has
been granted an Option under the Plan.
(n) "Outside Director" means a Director who is not an Employee.
(o) "Plan" means this Biodynamics International, Inc., 1996 Stock Option
Plan.
Section 1.03. Number of Shares. Options may be granted by the Company
from time to time under the Plan to purchase an aggregate of 2,000,000 shares
of the authorized Common Stock. If any Option expires or terminates for any
reason without having been exercised in full, the unpurchased shares subject to
such expired or terminated Option shall be available for purposes of the Plan.
ARTICLE II
Administration
The Plan shall be administered by a Compensation and Stock Option
Committee which shall consist of two or more Outside Directors, each of whom
shall be a disinterested person within the meaning of Rule 16b-3 under the
Securities Exchange Act of 1934, as amended ("Rule 16b-3"), or any similar rule
or regulation promulgated thereunder; provided, however, that the Committee
shall have no authority to administer or interpret the provisions of the Plan
relating to the grant of Options to Outside Directors. Each member of the
Committee shall be appointed by and shall serve at the pleasure of the Board.
The Board shall have the sole continuing authority to appoint members of the
Committee both in substitution for members previously appointed and to fill
vacancies however caused. The following provisions shall apply to the
administration of the Plan:
(a) The Committee shall designate one of its members as Chairman
and shall hold meetings at such time and places as it may determine. Each
member of the Committee shall be notified in writing of the time and
place of any meeting of the Committee at least two days prior to such
meeting, provided that such notice may be waived by a Committee member. A
majority of the members of the Committee shall constitute a quorum, and
any action taken by a majority of the members of the Committee present at
any duly called meeting at which a quorum is present (as well as any
action unanimously approved in writing) shall constitute action by the
Committee.
(b) The Committee may appoint a Secretary (who need not be a
member of the Committee) who shall keep minutes of its meetings. The
Committee may make such rules and regulations for the conduct of its
business as it may determine.
<PAGE> 3
(c) The Committee shall have full authority, subject to the
express provision of the Plan, to interpret the Plan as it relates to
options granted or to be granted to Employees and Consultants under the
Plan, to provide, modify and rescind rules and regulations relating
thereto, to determine the terms and provisions of each Option granted to
an Employee or Consultant and the form of each option agreement
evidencing an Option granted to an Employee or Consultant under the Plan
and to make all other determinations and perform such actions as the
Committee deems necessary or advisable to administer the Plan as it
relates to Options granted or to be granted to Employees or Consultants
under the Plan. In addition, the Committee shall have full authority,
subject to the express provisions of the Plan, to determine the Employees
and Consultants to whom Options shall be granted, the time or date of
grant of each such Option, the number of shares subject thereto, and the
price at which such shares may be purchased. In making such
determinations, the Committee may take into account the nature of the
services rendered by the Employee or Consultant, his present and
potential contributions to the success of the Company's business and such
other facts as the Committee in its discretion shall deem appropriate to
carry out the purposes of the Plan.
(d) Notwithstanding the authority hereby delegated to the
Committee to grant Options to Employees and Consultants under the Plan,
the Board also shall have full authority, subject to the express
provisions of the Plan, to grant Options to Employees and Consultants
under the Plan, to interpret that Plan, to provide, modify and rescind
rules and regulations relating to it, to determine the terms and
provisions of Options granted to Employees, Consultants and Outside
Directors under the Plan and to make all other determinations and perform
such actions as the Board deems necessary or advisable to administer the
Plan; provided, however that (i) the Board shall not grant any Option to
any Employee-Director or officer (as defined in Rule 16b-3) of the
Company, and (ii) the Board shall have no authority, discretion or power
to select the Outside Directors who will receive Options under the Plan,
to set the number of shares to be covered by any Option granted to an
Outside Director, to set the exercise price or the period within which
such Options may be exercised, or to alter any other terms or conditions
specified herein relating to such Options except in accordance with the
express provisions of the Plan, including Section 6.02 of Article VI
hereof.
(e) No member of the Committee or the Board shall be liable for
any action taken or determination made in good faith with respect to the
Plan or any Option granted hereunder.
(f) No member of the Committee shall be eligible to receive an
Option, except Options granted in accordance with the terms of Article
III of the Plan.
ARTICLE III
Grants of Options to Outside Directors
Section 3.01. Grants of Options. Beginning with the year 1996, Options
shall be granted by the Company to its Outside Directors in the terms and
conditions herein described. The Options granted under this Article III shall
not be incentive stock options under Section 422 of the Code.
(a) Initial Grant. An Option to purchase 10,000 shares of Common
Stock shall be granted automatically to each Outside Director who is
newly elected to the Board, irrespective of whether such Outside Director
is elected by the Board or by the shareholders. The date of grant of
such Option shall be the effective date of such Outside Director's
election to the Board, unless such date is not a business
<PAGE> 4
day, in which case the date of grant shall be the next business day
immediately following such effective date. For purposes of this Section
3.01, the term "newly elected to the Board" shall mean that the Outside
Director was not serving as a Director or an Outside Director immediately
prior to the time of his election in respect of which such Option is
granted.
(b) Annual Grant. An option to purchase 2,500 shares of Common
Stock shall be granted automatically, on the date of each annual meeting
of shareholders of the Company (or, if such date is not a business day,
on the next business day immediately following the date of such annual
meeting), to each person who (I) is an Outside Director on the date of
such grant and immediately following such annual meeting and (ii) has
served in that capacity for at least six months immediately preceding the
date of such grant.
Section 3.02 Declination. Any Outside Director may decline to accept
any Option granted to him pursuant to this Article III by giving written notice
to the Company of his election to decline to accept such Option or by refusing
to execute a stock option agreement relating to such Option.
Section 3.03 Price. The purchase price per share of Common Stock under
each Option granted under this Article III shall be the Fair Market Value per
share of Common Stock on the date of grant of such Option.
Section 3.04 Option Period and Terms of Exercise of Options. Except as
otherwise provided for herein, each Option granted to an Outside Director under
the Plan shall be exercisable in whole or in part during the four-year period
commencing on the date of grant of such Option. Any Option granted to an
Outside Director shall remain effective during its entire term regardless of
whether the Optionee continues to serve as a Director; provided, however, that
the otherwise unexpired portion of any Option granted hereunder to an Outside
Director shall expire and become null and void immediately upon the termination
of such Outside Director's Board membership if such Outside Director ceases to
serve on the Board by reason of such Outside Director's (a) fraud or intentional
misrepresentation, or (b) embezzlement, misappropriation or conversion of assets
or opportunities of the Company or any Affiliate. Nothing in the Plan or in any
option agreement evidencing an Option granted under the Plan to an Outside
Director shall confer upon such Director any right to continue as a Director of
the Company.
ARTICLE IV
Grant of Options to Employees
Section 4.01 Grant of Options. At any time and from time to time during
the term of the Plan and subject to the express provisions hereof, Options may
be granted by the Committee to any Employee for such number of shares of Common
Stock as the Committee in its discretion shall deem to be in the best interest
of the Company and which will serve to further the purposes of the Plan. The
Committee, in its discretion, may designate any Option granted to an Employee as
an incentive stock option intended to qualify under Section 422 of the Code;
provided, however, that the aggregate Fair Market Value of the Common Stock with
respect to which incentive stock options granted to an Employee under the Plan
(including all options qualifying as incentive stock options pursuant to Section
422 of the Code granted to such Employee under any other plan of the Company or
any Affiliate) are exercisable for the first time by such Employee during any
calendar year shall not exceed $100,000, determined as of the date the incentive
stock option is granted. If an Option that is intended to be an incentive stock
option shall be granted and such Option does not comply with the proviso of the
immediately
<PAGE> 5
preceding sentence, such Option shall not be void but shall be deemed to be an
incentive stock option to the extent it does not exceed the limit established
by such proviso and shall be deemed a nonqualified stock option to the extent
it exceeds that limit.
The aggregate number of shares of Common Stock for which any Employee may
be granted Options under the Plan during any one calendar year shall not exceed
75,000. The aggregate number of shares for which Options are granted under the
Plan to Employee-Directors shall not exceed 40% of the total number of shares
covered by the Plan; provided, however, that if any Option granted to an
Employee-Director terminates without being exercised in full, the shares as to
which such Option was not exercised shall not be deemed to have been granted to
an Employee-Director for purposes of determining compliance with this
restriction.
Section 4.02. Price. The purchase price per share of Common Stock under
each Option granted under this Article IV shall be determined by the Committee
but in no event shall be less than 100% of the Fair Market Value per share of
Common Stock at the time the Option is granted; provided, however, that the
purchase price per share of Common Stock under any incentive stock option
granted to an Optionee who, at the time such incentive stock option is granted,
owns stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any Affiliate shall be at least 110% of the
Fair Market Value per share of Common Stock at the date of grant.
Section 4.03 Option Period and Terms of Exercise of Employee Options.
Except as otherwise provided for herein, each Option granted to an Employee
under the Plan shall be exercisable during such period as the Committee shall
determine; unless expressly determined otherwise, the unexpired portion of any
Option granted to an Employee shall expire and become null and void no later
than upon the first to occur of (I) the expiration of ten years from the date
such Option was granted, (ii) the expiration of 30 days from the date of
termination of the Optionee's employment with the Company or an Affiliate for
any reason other than his retirement, death or disability, (iii) the expiration
of one year from the date of termination of the Optionee's employment with the
Company or an Affiliate by reason of his death or disability, (iv) the
expiration of three years from the date of termination of such Optionee's
employment with the Company or an Affiliate by reason of his retirement, or (v)
the expiration of two years from the date of such Optionee's death following
the termination of his employment with the Company or an Affiliate by reason of
his retirement.
Anything herein to the contrary notwithstanding, the otherwise unexpired
portion of any Option granted to an Employee hereunder shall expire and become
null and void immediately upon the termination of such Employee's employment
with the Company or an Affiliate by reason of such Employee's fraud, dishonesty
or performance of other acts detrimental to the Company or an Affiliate, or if,
following the termination of the Employee's employment with the Company or an
Affiliate, the Company determines that there is good cause to cancel such
Option.
Any incentive stock option granted to an Optionee who, at the time such
incentive stock option is granted, owns stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company or any
Affiliate shall not be exercisable after the expiration of five years from the
date of its grant.
<PAGE> 6
Under the provisions of any option agreement evidencing an Option granted
to an Employee, the Committee may limit the number of shares purchasable
thereunder in any period or periods of time during which the Option is
exercisable and may impose such other terms and conditions upon the exercise of
an Option as are not inconsistent with the terms of the Plan; provided,
however, that the Committee, in its discretion, may accelerate the exercise
date of any such Option.
Section 4.04. Termination of Employment. A transfer of employment among
the Company and any of its Affiliates shall not be considered to be a
termination of employment for the purposes of the Plan. Nothing in the Plan or
in any option agreement evidencing an Option granted under the Plan to an
Employee, including an Employee-Director, shall confer upon any Optionee any
right to continue in the employ of the Company or any Affiliate or in any way
interfere with the right of the Company or any Affiliate to terminate the
employment of the Optionee at any time, with or without cause.
ARTICLE V
Grant of Options to Consultants
Section 5.01. Grant of Options. At any time and from time to time during
the term of the Plan and subject to the express provisions hereof, Options may
be granted by the Committee to any Consultant for such number of shares of
Common Stock as the Committee in its discretion shall deem to be in the best
interest of the Company and which will serve to further the purposes of the
Plan. The Options granted under this Article V shall not be incentive stock
options under Section 422 of the Code.
Section 5.02 Price. The purchase price per share of Common Stock under
each Option granted under this Article V shall be determined by the Committee
but in no event shall be less than 100% of the Fair Market Value per share of
Common Stock at the time the Option is granted.
Section 5.03. Option Period and Terms of Exercise of Consultant Options.
Except as otherwise provided for herein, each Option granted to a Consultant
under the Plan shall be exercisable during such period as the Committee shall
determine; provided, however, that the otherwise unexpired portion of any
Option granted to a Consultant shall expire and become null and void no later
than upon the first to occur of (i) the expiration of ten years from the date
such Option was granted or (ii) the expiration of one year from the date of the
Consultant's death. Anything herein to the contrary notwithstanding, the
otherwise unexpired portion of any Option granted to a Consultant hereunder
shall expire and become null and void immediately upon the termination of the
Consultant's services to the Company or an Affiliate by reason of the
Consultant's fraud, dishonesty or performance of other acts detrimental to the
Company or an Affiliate, or if, at any time during or after the performance of
the Consultant's services to the Company or an Affiliate, the Company determines
that there is good cause to cancel such Option.
Under the provisions of any option agreement evidencing an Option granted
to a Consultant, the Committee may limit the number of shares purchasable
thereunder in any period or periods of time during which the Option is
exercisable and may impose such other terms and conditions upon the exercise of
an Option as are not inconsistent with the terms of the Plan; provided,
however, that the Committee, in its discretion, may accelerate the exercise
date of any such Option.
<PAGE> 7
Section 5.04. Termination of Consulting Services. Nothing in the Plan or
in any option agreement evidencing an Option granted under the Plan to a
Consultant shall confer upon any Consultant any right to continue as a
consultant or advisor of the Company or any Affiliate or in any way interfere
with the right of the Company or any Affiliate to terminate the services of the
Consultant at any time, with or without cause.
ARTICLE VI
Miscellaneous
Section 6.01. Adjustments Upon Changes in Common Stock. In the event the
Company shall effect a split of the Common Stock or a dividend payable in
Common Stock, or in the event the outstanding Common Stock shall be combined
into a smaller number of shares, the maximum number of shares as to which
Options may be granted under the Plan shall be decreased or increased
proportionately. In the event that, before delivery by the Company of all of
the shares of Common Stock for which any Option has been granted under the
Plan, the Company shall have effected such a split, dividend or combination,
the shares still subject to such Option shall be increased or decreased
proportionately and the purchase price per share shall be decreased or
increased proportionately so that the aggregate purchase price for all of the
shares then subject to such Option shall remain the same as immediately prior
to such split, dividend or combination.
Subject to Article VI, Section 6.02 of the Plan, and notwithstanding any
indication to the contrary in the preceding paragraphs of this Section 6.01,
upon the occurrence of a "Change in Control" (as hereinafter defined) of the
Company, the maturity of all Options then outstanding under the Plan (other
than Options granted under Article V hereof) shall be accelerated
automatically, so that all such Options shall become exercisable in full with
respect to all shares as to which they shall not have previously been exercised
or become exercisable; provided, however, that no such acceleration shall occur
with respect to Options held by optionees whose employment with the Company or
an Affiliate shall have terminated prior to the occurrence of such Change in
Control.
For purposes of the Plan, a "Change in Control" of the Company shall be
deemed to have occurred if:
(a) the shareholders of the Company shall approve:
(i) any merger, consolidation of reorganization of the Company
(a "Transaction") in which the shareholders of the Company immediately
prior to the Transaction would not, immediately after the Transaction,
beneficially own, directly or indirectly, shares representing in the
aggregate more than 50% of all votes to which all shareholders of the
corporation issuing cash or securities in the Transaction (or of its
ultimate parent corporation, if any) would be entitled under ordinary
circumstances in the election of directors, or in which the members of the
Company's Board immediately prior to the Transaction would not, immediately
after the Transaction, constitute a majority of the board of directors of
the corporation issuing cash or securities in the Transaction (or of its
ultimate parent corporation, if any),
(ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions contemplated or arranged by
any party as a single plan) of all or substantially all of the Company's
assets, or
(iii) any plan or proposal for the liquidation or dissolution of
the Company;
<PAGE> 8
(b) individuals who constitute the Company's Board as of February
28, 1996 (the "Incumbent Directors") cease for any reason to constitute
at least a majority of the Board; provided, however, that for purposes of
this subparagraph (b), any individual who becomes a Director of the
Company subsequent to February 28, 1996, and whose election, or
nomination for election by the Company's shareholders, is approved by a
vote of at least a majority of the Incumbent Directors who are Directors
at the time of such vote, shall be considered an Incumbent Director; or
(c) any "person," as that term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(other than the Company, any of its subsidiaries, any employee benefit
plan of the Company or and of its subsidiaries, or any entity organized,
appointed or established by the Company for or pursuant to the terms of
such plan), together with all "affiliates" and "associates" (as such
terms are defined in Rule 12b-2 under the Exchange Act) of such person,
shall become the "beneficial owner" or "beneficial owners" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
securities of the Company representing in the aggregate 20% or more of
either (i) the then outstanding shares of Common Stock or (ii) the
combining voting power of all then outstanding securities of the Company
having the right under ordinary circumstances to vote in an election of
the Company's Board ("Voting Securities"), in either such case other than
as a result of acquisitions of such securities directly from the Company.
Notwithstanding the foregoing, a "Change in Control" of the
Company shall not be deemed to have occurred for purposes of subparagraph (c) of
this Section 5.01 solely as the result of an acquisition of securities by the
Company which, by reducing the number of shares of Common Stock or other Voting
Securities outstanding, increases (i) the proportionate number of shares of
Common Stock beneficially owned by any person to 20% or more of the shares of
Common Stock then outstanding or (ii) the proportionate voting power represented
by the Voting Securities beneficially owned by any person to 20% or more of the
combined voting power of all then outstanding Voting Securities; provided,
however, that if any person referred to in clause (I) or (ii) of this sentence
shall thereafter become the beneficial owner of any additional shares of Common
Stock or other Voting Securities (other than as a result of a stock split, stock
dividend or similar transaction), then a "Change in Control" of the Company
shall be deemed to have occurred for purposes of subparagraph (c) of this
Section 5.01.
Section 6.02. Amendment and Termination of the Plan. Subject to the right
of the Board to terminate the Plan prior thereto, the Plan shall terminate at
the expiration of ten years from February 28, 1996. No Options may be granted
after termination of the Plan. The Board may alter or amend the Plan but may
not, without the approval of the shareholders of the Company, make any
alteration or amendment thereof which operates to (I) abolish the Committee,
change the qualifications of its members or withdraw the administration of the
Plan from its supervision, (ii) increase the total number of shares of Common
Stock which may be granted under the Plan (other than as provided in Section
6.01 of this Article VI), (iii) extend the term of the Plan or the maximum
exercise periods provided in Section 3.04 of Article III, Section 4.03 of
Article IV and Section 5.03 of Article V hereof, (iv) decrease the minimum
purchase price for Common Stock under the Plan, (v) materially increase the
benefits accruing to participants under the Plan, or (vi) materially modify the
requirements as to eligibility for participation in the Plan. Notwithstanding
any other provisions of this Section, the provisions of the Plan governing (A)
the number of Options to be awarded to Outside Directors, (B) the number of
shares of Common Stock to be covered by each such Option, (C) the exercise price
per share under each such Option, (D) when and under what circumstances each
such Option will be granted and (E) the period within which each such Option may
be exercised, shall not be amended or altered more than once every six months,
other than to comport with changes in the Code or the rules promulgated
thereunder.
<PAGE> 9
No termination or amendment of the Plan shall adversely affect the
rights of an Optionee under an Option, except with the consent of such Optionee.
Section 6.03. Payment of Purchase Price; Application of Funds: Upon
exercise of an Option, the purchase price shall be paid in full in cash or by
check; provided, however, that at the request of an Optionee and to the extent
permitted by applicable law, the Company shall approve reasonable arrangements
with Optionees who are Outside Directors and may, in its sole and absolute
discretion, approve reasonable arrangements with one or more Optionees who are
Employees or Consultants and their respective brokerage firms, under which such
an Optionee may exercise his Option by delivering to the Company an irrevocable
notice of exercise, together with such other documents as the Company shall
require, and the Company shall, upon receipt of full payment in cash or by
check of the purchase price and any other amounts due in respect of such
exercise, deliver to such Optionee's brokerage firm one or more certificates
representing the shares of Common Stock issued in respect of such exercise.
The proceeds of any sale of Common Stock covered by Options shall constitute
general funds of the Company. Upon exercise of an Option, the Optionee will be
required to pay to the Company the amount of any federal, state or local taxes
required by law to be withheld in connection with such exercise.
Section 6.04. Requirements of Law. The granting of Options and the
issuance of Common Stock upon the exercise of an Option shall be subject to all
applicable laws, rules and regulations and to such approval by governmental
agencies as may be required.
Section 6.05. Nontransferability of Options. An Option granted under the
Plan shall not be transferable by the Optionee except by will or by the laws of
descent and distribution and shall be exercisable during the lifetime of the
Optionee only by the Optionee.
Section 6.06 Date of Adoption and Effective Date of the Plan. The Plan
shall be deemed adopted by the Board of February 28, 1996. The Plan shall be
deemed effective as of such date, provided it is duly approved by the holders
of a majority of the shares of Common Stock present or represented and entitled
to vote at the 1996 annual meeting of shareholders of the Company. If the
Plan is not so approved, the Plan shall terminate and any Option granted
hereunder shall be null and void.
Section 6.07. Gender. Words of any gender used in the Plan shall be
construed to include any other gender, unless the context requires otherwise.
<PAGE> 1
EXHIBIT 4.3
BIODYNAMICS INTERNATIONAL, INC.
MANAGEMENT INCENTIVE COMPENSATION PLAN
1996
- - The Objectives of the Management Incentive Compensation Plan ("Plan") are
as follows:
- Reward for superior results obtained by Biodynamics
International, Inc. (the "Company") and individually
- Attract and retain superior executive talent
- Obtain commitment to the long-term success of the Company
- - Administration:
- This Plan shall be administered by the Compensation and Stock
Option Committee of the Board of Directors of the Company (the
"Committee"), which shall be constituted so as to permit this Plan
to comply with Rule 16b-3 under the Securities Exchange Act of
1934. The Committee shall have full authority to interpret this
Plan, to establish rules and regulations relating to the operation
of this Plan, to determine the management employees eligible to
receive bonuses under this Plan, to set Bonus Criteria, to
determine whether and to what extent the Bonus Criteria or other
results have been met, and to make all other determinations and
take all other actions as the Committee deems necessary, advisable
or appropriate for the proper administration of this Plan. The
Committee's interpretation of this Plan, and all actions taken
within the scope of its authority, shall be final and binding on
the Company and its subsidiaries and their respective employees
and all other interested persons. No member of the Committee
shall be eligible to participate in this Plan.
- - Eligibility:
- The persons who shall be eligible to receive bonuses under
this Plan shall be management employees ("Management") of the
Company or one or more of its subsidiaries who were selected to
participate in this Plan by the Committee.
- - Shares Subject to this Plan:
- The total number of shares of common stock of the Company
that may be issued pursuant to this Plan shall not exceed a
maximum of 500,000 in the aggregate. In the event the Company
shall effect a split of its common stock or a dividend payable in
common stock, or in the event the outstanding common stock of the
Company shall be combined into a smaller number of shares, the
maximum number of shares that may be issued under this Plan shall
be decreased or increased proportionately.
<PAGE> 2
- - This Plan is comprised of two parts:
- Base Salary
- Incentive Compensation
- Short-Term: Bonus paid annually, 50% cash and 50%
Company common stock
- Long-Term: Stock Options
- - Compensation Policy:
- Base Salary: Competitive with the industry and at the mean
of companies with whom the Company competes
for executives
- Incentive
Compensation: Same as for Base Salary
- - Criteria for Incentive Compensation:
- Bonus:
- Corporate Results: exceeding budgeted corporate sales and
profits and meeting annual Corporate
Bonus Criteria
- Individual Results: achieving respective functional and
individual goals of the Bonus Criteria
- Stock Options: as established in the 1996 Stock
Option Plan of the Company
- - Definitions:
- Bonus Criteria: measurable major objectives to be achieved
during a given year and agreed upon by Management and the Board
of Directors. They are the key elements of the Annual Goals
established for each function and individually. Note:
individual goals not included in the Bonus Criteria are
considered part of the job, and performance is rewarded by the
Base Salary.
- Amount of Bonus: the amount of the Bonus consists of a TARGET
BONUS multiplied by a PERFORMANCE COMPONENT. The TARGET BONUS
is determined as a percentage of salary and ranges from 20% to
35% depending on the individual position as follows:
<TABLE>
Target Bonus
Position (% of Base Salary)
-------- ----------------
<S> <C>
CEO 35%
Managing Director 30%
Vice President 25%
Director 20%
</TABLE>
<PAGE> 3
The PERFORMANCE COMPONENT is a percentage rate measuring excess results
achieved in comparison to the Annual Operating Budget. Performance will
be judged on basis of three scenarios:
a. Sales at Annual Operating Budget
Pay for excess profits
b. Profit at Annual Operating Budget
Pay for excess sales
c. Achieving remaining Bonus Criteria and Individual Goals
Profit is defined as Income before Taxes.
<TABLE>
<CAPTION>
Excess Results Performance Component
(Sales or Profits) (Percent of Target Bonus)
------------------ -------------------------
<S> <C>
2.5 to 4.9% above Annual Operating Budget 100%
5.0% above Annual Operating Budget 105%
6.0% above Annual Operating Budget 106%
</TABLE>
And upward in the same relationship. If both sales and profits are in
excess of Annual Operating Budget, the PERFORMANCE COMPONENT will be
determined by the higher of the two results.
The PERFORMANCE COMPONENT can be adjusted upward or downward based on
individual performance, upon approval by the Committee.
- - Payment of Bonus: As soon as practicable, but not later than 45 days
after the close of each fiscal year of the Company, the Committee shall
determine with respect to each participant in this Plan whether and the
extent to which the terms of this Plan (including the Bonus Criteria)
relating to bonus payments with respect to such fiscal year have been
satisfied and shall present to the Board of Directors of the Company for
approval the bonus amounts payable, if any, to participants with respect to
such fiscal year. Subject to the limitations of this Plan, as soon as
practicable after the amount of such participant's bonus for a fiscal year
has been approved by the Board of Directors, as provided above, 50% of the
bonus will be paid in cash and 50% in Company common stock.
The number of shares will be determined by dividing 50% of the total bonus
by the Fair Market Value (as defined in the Company's 1996 Stock Option
Plan) of the stock on the date of approval of the bonus by the Board of
Directors.
No participant shall have the right to receive payment of any bonus unless
the participant remains in the employ of the Company or one or more of its
subsidiaries through the date of approval of such bonus by the Committee;
provided, however, that the Committee may, in its sole discretion,
authorize payment of all or part of a bonus to any participant whose
employment with the Company or its subsidiaries is terminated prior to such
date of certification for any
<PAGE> 4
reason. In addition, the Committee may, in its sole discretion,
increase or decrease any bonus payable to any participant hereunder to
reflect the individual performance and contribution of, and other
factors relating to, such participant.
- Sample Calculation:
Position: Vice President Target Bonus: 25%
Base Salary: $80,000
Results: Sales 105% of Annual Operating Budget, Profit 110% of Annual
Operating Budget, Bonus Criteria and Individual Goals achieved
Target Bonus: $20,000 (25% of $80,000)
Performance Component: 110% (the higher of the two results
against Annual Operating Budget)
Bonus: $22,000 ($20,000 x 110%)
Stock Award: Base: $22,000 / 2 = 11,000
- Stock price on day of
award $1/share
- Number of shares:
11,000 (11,000 / 1)
- Designation of Beneficiary:
A participant may designate a beneficiary or beneficiaries who, in
the event of the participant's death prior to the payment of any
bonus earned hereunder, shall receive such payment when due under
this Plan. If the participant does not designate a beneficiary or
the designated beneficiary dies prior to the payment of any bonus,
any amounts remaining to be paid shall be paid to the
participant's estate.
- - Adjustments:
- If any Bonus Criteria or other criteria upon which bonuses
for any fiscal year is based shall have been affected by special
factors (including material changes in accounting policies or
practices, material acquisitions or dispositions of property, or
other unusual or unplanned items) which in the Committee's
judgment should or should not be taken into account, in whole or
in part, in the equitable administration of this Plan, the
Committee may, for any purpose of this Plan, adjust such criterion
for such fiscal year and make credits, payments and reductions
accordingly under this Plan.
Amendment and Termination:
- Subject to the right of the Board of Directors of the Company
to terminate this Plan prior thereto, this Plan shall terminate at
the expiration of five years from February 28, 1996, the date of
adoption of this Plan by the Board; provided, however, that any
bonus payment determined and certified pursuant to this Plan but
not yet paid as of the date of such termination shall be paid as
soon practicable, but in no event later than 30 days after the
date of such termination. The Board of Directors of the Company
may alter or amend this Plan but may not, without the approval of
the shareholders of the Company, make any alteration or amendment
thereof which operates to (i) increase the total number of shares
of common stock of the Company which may
<PAGE> 5
be issued under this Plan (other than as expressly provided above),
(ii) extend the term of this Plan, (iii) materially increase the
benefits accruing to participants under this Plan, or (iv)
materially modify the requirements as to eligibility for
participation in this Plan.
- - Effective Date:
- This Plan shall become effective, as of the date of its
adoption by the Board of Directors of the Company, when it has
been duly approved by the holders of a majority of the shares of
common stock of the Company present or represented and entitled to
vote at the 1996 annual meeting of shareholders of the Company.
If this Plan is not so approved, this Plan shall terminate, and no
bonuses shall be paid hereunder.
- - Miscellaneous Provisions:
- This Plan is not a contract between the Company and any
participant or other employee. No participant or other employee
shall have any claim or right to be paid a bonus under this Plan
until the amount of such bonus shall have been determined and
approved in accordance with this Plan. Selection of an employee
to participate in this Plan with respect to any fiscal year or
years shall not confer upon such employee the right to continue to
participate in this Plan with respect to any future fiscal years.
Neither the establishment of this Plan, nor any action taken
hereunder, shall be construed as giving any participant or other
employee any right to remain in the employ of the Company or its
subsidiaries for any period. Nothing contained in this Plan shall
limit the ability of the Company to make payments or awards to
employees under any other plan, agreement or arrangement.
- A participant's right and interest in any bonus under this
Plan may not be assigned or transferred, except as provided in
"Designation of Beneficiary" above, and any attempted
assignment or transfer shall be null and void and shall permit the
Committee, in its sole discretion, to extinguish the Company's
obligation under this Plan to pay any bonus with respect to such
participant.
- This Plan shall be unfunded. The Company shall not be
required to establish any special segregation of assets to assure
payment of bonuses.
- The Company shall have the right to deduct at the time of
payment of any bonus, and to require the employee or beneficiary
to remit to the Company as a condition of such payment, any
amounts required by law to be withheld for the payment of taxes or
otherwise.
- If the Company for any reason fails to make payment of a
bonus at the time such bonus becomes payable, the Company shall
not be liable for any interest or other charges thereon.
- A recipient of a bonus shall have no rights as a shareholder
with respect to any shares issuable to such recipient until the
date a stock certificate is issued to such recipient representing
such shares.
- Except where federal law is applicable, the provisions of
this Plan shall be governed by and construed in accordance with
the laws of the State of Florida.
<PAGE> 6
- - If any provision of this Plan is found to be illegal or
invalid, the Committee shall have discretion to sever that
provision from this Plan and, thereupon, such provision shall not
be deemed to be a part of this Plan.
- - No member of the Board of Directors of the Company or the
Committee, and no officer, employee or agent of the Company or its
subsidiaries, shall be liable for any act or action hereunder,
whether of commission or omission, taken by any other member, or
by any officer, agent, or employee, for anything done or omitted
to be done in the administration of this Plan.
<PAGE> 1
SCHIFINO & FLEISCHER, P.A.
ATTORNEYS AT LAW
WILLIAM J. SCHIFINO ONE TAMPA CITY CENTER
FRANK N. FLEISCHER SUITE 2700
CYNTHIA C. ELLIS 201 NORTH FRANKLIN STREET
TAMPA, FLORIDA 33602
TELEPHONE (813) 223-1535
TELECOPIER (813) 223-3070
October 31, 1996 EXHIBIT 5.0
Biodynamics International, Inc.
10500 University Center Drive, Suite 130
Tampa, Florida 33567
Re: Form S-8 Registration
Gentlemen:
We are acting as counsel for Biodynamics International, Inc., a Florida
corporation (the "Company"), in connection with the registration by the Company
with the Securities and Exchange Commission (the "Commission") of 3,250,000
shares of the Company's Common Stock (the "Shares") pursuant to the Company's
1996 Incentive and Non-statutory Stock Option Plan, the 1996 Management
Incentive Compensation Plan and the Special Stock Options for President and
Chief Executive Officer (the "Plans"). We are rendering this opinion as of
the date hereof.
We have examined, among other things, the Certificate of Incorporation and
By-laws, as amended, of the Company, the records of corporate proceedings of
the Company which have occurred prior to the date hereof with respect to such
offering, the Registration Statement, the Plan and such other documents and
representations as we deemed necessary in order to render the opinion expressed
herein.
Based upon the foregoing, it is our opinion that:
(1) the Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Florida; and
(2) the Shares have been validly authorized for issuance and,
upon the issuance and delivery thereof in accordance with the
provisions of the Plans and as set forth in the Registration
Statement, will be validly issued, fully paid and non-assessable.
We hereby consent to the statements with respect to us under the heading
"Legal Matters" in the prospectus forming a part of the Registration Statement
and to the filing of this opinion as an exhibit to the Registration Statement.
Yours truly,
SCHIFINO & FLEISCHER, P.A.
/s/ William J. Schifino
--------------------------
William J. Schifino
For the Association
WJS/fy
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference of this Registration
Statement on Form S-8 of our report dated January 11, 1996 appearing on page 16
of Biodynamics International, Inc.'s Annual Report on Form 10-KSB for the year
ended September 30, 1995.
/s/ Price Waterhouse LLP
- ------------------------
PRICE WATERHOUSE LLP
October 25, 1996
Tampa, Florida
