As filed with the Securities and Exchange Commission on September 5, 1997
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
PROFORMIX SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware ____________________________ 75-2228828
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
50 Tannery Road
Branchburg, New Jersey 08876
(908) 534-6400
(Address and Telephone Number of Registrant's
Principal Executive Office)(Zip Code)
1997 Stock Option Plan
(1,000,000 shares of Common Stock)
(full title of the plans)
Michael G. Martin, President
50 Tannery Road
Branchburg, New Jersey 08876
(908) 534-6400
(Name, Address & Telephone number, including area code, of agent for service)
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Copies to:
Michael H. Freedman, Esq.
Silverman, Collura, Chernis & Balzano, P.C.
381 Park Avenue South - Suite 1601
New York, New York 10016
(212) 779-8600
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered per share (1) offering price (1) fee
- --------------------------------------------------------------------------------
Common Stock(1) 1,000,000 $6.5625 $6,562,500 $1,988.64
- --------------------------------------------------------------------------------
(1) Calculated in accordance with 457(c) using the average of the bid and asked
price for the Common Stock on August 28, 1997.
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PART I - INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I (plan
information and registrant information) will be sent or given to the consultants
as specified by Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this registration statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this registration
statement pursuant to Item 3 of Part II of this form taken together constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933.
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PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company with the
Commission and are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB for its fiscal year
ended December 31, 1996;
(b) The Company's Quarterly Report on Form 10-QSB for the periods ended
March 31, 1997 and June 30, 1997;
(c) All other reports filed by the Company pursuant to Section 13(a)
and 15(d) of the Exchange Act since the Company's fiscal year ended December 31,
1996.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent hereto, but
prior to the termination of the offering of securities made by this Prospectus
shall be deemed to be incorporated by reference herein and to be part hereof
from their respective dates of filing.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus, to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is 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 Prospectus.
Item 4. DESCRIPTION OF SECURITIES
The Company is authorized to issue 30,000,000 shares of Common Stock,
$.0001 par value ("Common Stock") and 3,000,000 shares of Preferred Stock, $.001
par value.
Holders of Common Stock are entitled to one vote per share on each
matter submitted to vote at any meeting of shareholders. Shares of Common Stock
do not carry cumulative voting rights and therefore, holders of a majority of
the outstanding shares of Common Stock will be able to elect the entire board of
directors of the Company. The Company's board of directors has authority,
without action by the Company's shareholders, to issue all or any portion of the
authorized but unissued shares of Common Stock, which would have the effect of
reducing the percentage of securities ownership of the Company's shareholders
and diluting the book value of the Common Stock.
Shareholders of the Company have no preemptive rights to acquire
additional shares of Common Stock. The Common Stock is not subject to redemption
and carries no subscription
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or conversion rights. In the event of liquidation of the Company, the holders of
shares of Common Stock are entitled to share equally in corporate assets after
the holders, if any, of Preferred Stock and after satisfaction of liabilities.
Holders of Common Stock are entitled to receive such dividends as the Company's
board of directors may from time to time declare out of funds legally available
for the payment thereof. The Company has never paid cash dividends on its Common
Stock and does not anticipate that it will pay such dividends in the future.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the shares offered hereby has been passed upon for the
Company by Silverman, Collura, Chernis & Balzano, P.C. ("SCCB"), 381 Park Avenue
South, Suite 1601, New York, New York 10016. Paul Chernis, a partner in SCCB, is
a director of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware and
Article 7 of the Company's Articles of Incorporation contain provisions for
indemnification of officers, directors, employees and agents of the Company. The
Articles of Incorporation require the Company to indemnify such persons to the
full extent permitted by Delaware law. Each person will be indemnified in any
proceeding if he acted in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interest of the Company.
Indemnification would cover expenses, including attorney's fees, judgments,
fines and amounts paid in settlement.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Company, the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expense
incurred or paid by a director, officer, or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person of the Company in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by a controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issues.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
4.1 1997 Stock Option Plan
5.1 Opinion of Silverman, Collura, Chernis & Balzano, P.C.
23.1 Consent of Silverman, Collura, Chernis & Balzano, P.C.
(included in Exhibit 5.1)
23.2 Consent of Feldman Radin & Company, P.C.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes;
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to the Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change of such information in the Registration Statement;
Provided however that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply to information contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, 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 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 Commission, such
indemnification is against public policy as expressed in the Securities 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 is against public policy
as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirement of the Securities Act, 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, therewith duly
authorized, on September 4, 1997.
PROFORMIX SYSTEMS, INC.
By:/s/ Michael G. Martin
--------------------------------
Michael G. Martin, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints Michael G. Martin, his true and
lawful attorney-in-fact, with full power of substitution and resubstitution, for
his and in his name, place and stead, in any and all capacities, to sign any or
all amendments or supplements to this Registration Statement and to file the
same with all exhibits thereto and other documents in connection therewith, with
the Commission, granting unto said attorney-in-fact full power and authority to
do and perform each and every act and thing necessary or appropriate to be done
with respect to this Registration Statement or any amendments or supplements
hereto and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorney-in-fact, or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in their respective
capacities with Proformix Systems, Inc. and on the dates indicated.
SIGNATURES
Signature Title Date
- --------- ----- ----
/s/ Michael G. Martin
- ---------------------- Chief Executive Officer, September 4, 1997
Michael G. Martin President and Director
(Principal Executive Officer)
/s/ Joerg H. Klaube Chief Financial Officer September 4, 1997
- ---------------------- (Principal Financial and
Joerg H. Klaube Accounting Officer)
/s/ Paul Chernis
- ---------------------- Director September 4, 1997
Paul Chernis
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EMPLOYEE STOCK OPTION PLAN
PROFORMIX SYSTEMS, INC.
1997 STOCK OPTION PLAN
1. Purpose
The purpose of the 1997 Stock Option Plan ("Plan") is to provide a
method whereby selected key employees, selected key consultants, professionals
and non employee directors of ATEC Group, Inc. (the "Corporation") and its
subsidiaries may have the opportunity to invest in shares of the Corporation's
Common Stock ("Common Stock" or "Shares"), thereby giving them a proprietary and
vested interest in the growth and performance of the Corporation, and in
general, generating an increased incentive to contribute to the Corporation's
future success and prosperity, thus enhancing the value of the Corporation for
the benefit of shareholders. Further, the Plan is designed to enhance the
Corporation's ability to attract and retain individuals of exceptional
managerial talent upon whom, in large measure, the sustained progress, growth,
and profitability of the Corporation depends.
2. Administration
The Plan shall be administered by the Corporation's Board of Directors
("the Board") or if so designated by resolution of the Board by a Committee
composed of not less than two individuals ("Committee"). From time to time the
Board, or if so designated the Committee, may grant Common Stock or stock
options ("Stock Options" or "Options") to such eligible parties and for such
number of Shares as it in its sole discretion may determine. A grant in any year
to an eligible Employee (as defined in Section 3 below) shall neither guarantee
nor preclude a grant to such Employee in subsequent years. Subject to the
provisions of the Plan, the Board, shall be authorized to interpret the Plan, to
establish, amend and rescind any rules and regulations relating to the Plan, to
determine the terms and provisions of the Option agreements described in Section
5(h) thereof to make all other determinations necessary or advisable for the
administration of the Plan. The Board, or if so designated the Committee, may
correct any defect, supply any omissions or reconcile any inconsistency in the
Plan or in any Option in the manner and to the extent it shall deem desirable.
The determinations of the Board in the administration of the Plan, as described
herein, shall be final and conclusive. The validity, construction, and effect of
Plan and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Delaware.
3. Eligibility
The class of employees eligible to participate under the Plan shall
include, employees of the Corporation, key consultants or professionals and
non-employee directors of the Company and its subsidiaries (collectively and
individually, "Employees"). Nothing in the Plan or in any agreement thereunder
shall confer any right on an Employee or key vendor of goods and services to
continue in the employ of the Corporation or shall interfere in any way with the
right
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of the Corporation or its subsidiaries, as the case may be, to terminate his
employment at any time.
4. Shares Subject to the Plan
Subject to adjustment as provided in Section 7, an aggregate of
1,000,000 shares of Common Stock shall be available for issuance under the Plan.
The shares of Common Stock issued, or Common Stock deliverable upon the exercise
of Options, may be made available from authorized but unissued Shares or Shares
reacquired by the Corporation, including Shares purchased in the open market or
in private transactions. If any Option granted under the Plan shall terminate
for any reason without having been exercised or settled in Common Stock or in
cash pursuant to related Common Stock appreciation rights, the Shares subject
to, but not delivered under, such Option shall be available for other Options.
5. Grant Term and Conditions of Options
The Board or if so designated the Committee, may from time to time
after consultation with management select employees to whom Common Stock or
Stock Options shall be granted. The Options granted may be incentive Stock
Options ("Incentive Stock Options") within the meaning of Section 422 of the
Internal Revenue Code, as amended (the "Code"), or non-statutory Stock Options
("Non-statutory Stock Options"), whichever the Board, or if so designated the
Committee, shall determine, subject to the following terms and conditions:
(a) Price. The purchase price per share of Common Stock deliverable
upon exercise of each Incentive Stock Option shall not be less than 100
percent of the Fair Market Value of the Common Stock on the date such
Option is granted. Provided, however, that if an Incentive Stock Option
is issued to an individual who owns, at the time of grant, more than
ten percent (10%) of the total combined voting power of all classes of
the Company's Common Stock, the exercise price of such Option shall be
at least 110% of the Fair Market Value of the Common Stock on the date
of grant and the term of the Option shall not exceed five years from
the date of grant. The Option price of Shares subject to Non-statutory
Stock Options shall be determined by the Board of Directors or
Committee in its absolute discretion at the time of grant of such
Option, provided that such price shall not be less than 85% of the Fair
Market Value of the Common Stock at the time of grant. For purposes of
this plan, Fair Market Value shall be: (i) the average of the closing
Bid and Ask prices for the Common Stock on the date in question.
(b) Payment. Options may be exercised only upon payment of the purchase
price thereof in full. Such payment shall be made in such form of
consideration as the Board or Committee determines and may vary for
each Option. Payment may consist of cash, check, notes, delivery of
shares of Common Stock having a fair market value on the date of
surrender equal to the aggregate exercise price, or any combination of
such methods or other means of payment permitted under the Delaware
General Corp. Law.
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(c) Term of Options. The term during which each Option may be exercised
shall be determined by the Board, or if so designated the Committee,
provided that an Incentive Stock Option shall not be exercisable in
whole or in part more than 10 years from the date it is granted. All
rights to purchase Common Stock pursuant to an Option shall, unless
sooner terminated, expire at the date designated by the Board or, if so
designated the Committee.
The Board, or if so designated the Committee, shall determine the date
on which each Option shall become exercisable and may provide that an
Option shall become exercisable in installments. The Shares comprising
each installment may be purchased in whole or in part at any time after
such installment becomes purchasable, except that the exercise of
Incentive Stock Options shall be further restricted as set forth
herein. The Board, or if so designated the Committee, may in its sole
discretion, accelerate the time at which any Option may be exercised in
whole or in part, provided that no Option shall be exercisable until
one year after grant.
(d) Limitations on Grants. The aggregate Fair Market Value (determined
at the time the Option is granted) of the Common Stock with respect to
which the Incentive Stock Option is exercisable for the first time by
an Optionee during any calendar year (under all plans of the Company
and its parent or any subsidiary of the Corporation) shall not exceed
$100,000. The foregoing limitation shall be modified from time to time
to reflect any changes in Section 422 of the Code and any regulations
promulgated thereunder setting forth such limitations.
(e) Termination of Employment.
(i) If the employment of an Employee by the Company or a
subsidiary corporation of the Company shall be terminated voluntarily
by the Employee or for cause by the Company, then his Option shall
expire forthwith. Except as provided in subparagraphs (ii) and (iii) of
this Paragraph (e), if such employment shall terminate for any other
reason, then such Option may be exercised at any time within three (3)
months after such termination, subject to the provisions of
subparagraph (iv) of this Paragraph (e). For purposes of this
subparagraph, an employee who leaves the employ of the Company to
become an employee of a subsidiary corporation of the Company or a
corporation (or subsidiary or parent corporation of the corporation)
which has assumed the Option of the Company as a result of a corporate
reorganization, etc., shall not be considered to have terminated his
employment.
(ii) If the holder of an Option under the Plan dies (a) while
employed by, or while serving as a non-employee Director for, the
Company or a subsidiary corporation of the Company, or (b) within three
(3) months after the termination of his employment or services other
than voluntarily by the employee or non-employee Director, or for
cause, then such Option may, subject to the provisions of subparagraph
(iv) of this Paragraph (e), be exercised by the estate of the employee
or non-employee Director or by a person
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who acquired the right to exercise such Option by bequest or
inheritance or by reason of the death of such employee or non-employee
Director at any time within one (1) year after such death.
(iii) If the holder of Option under the Plan ceases employment
because of permanent or total disability (within the meaning of Section
22 (e) (3) of the Code) while employed by the Company or a subsidiary
corporation of the Company, then such Option may, subject to the
provisions of subparagraph (iv) of this paragraph e, be exercised at
any time within one year after his termination of employment due to
disability.
(iv) An Option may not be exercised pursuant to this Paragraph
(e), except to the extent that the holder was entitled to exercise the
Option at the time of termination of employment, termination of
Directorship, or death, and in any event may not be exercised after the
expiration of the Option. For purpose of this Paragraph (e), the
employment relationship of an employee of the Company or of a
subsidiary corporation of the company will be treated as continuing
intact while he is on military or sick leave or other bona fide leave
of absence (such as temporary employment by the Government) if such
leave does not exceed ninety (90) days, or, if longer, so long as his
right to reemployment is guaranteed either by statute or by contract.
(f) Nontransferability of Options. No Option shall be transferable by a
Holder otherwise than by will or the laws of descent and distribution,
and during the lifetime of the Employee to whom an Option is granted it
may be exercised only by the employee, his guardian or legal
representative if permitted by Section 422 and related sections of the
Code and any regulations promulgated thereunder.
(g) Listing and Registration. Each Option shall be subject to the
requirement that if at any time the Board, or if so designated the
Committee, shall determine, in its discretion, the listing,
registration or qualification of the Common Stock subject to such
Option upon any securities exchange or under any state or federal law,
or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the
granting of such Option or the issue or purchase of Shares thereunder,
no such Option may be exercised in whole or in part unless such
listing, registration, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the
Board, or if so designated the Committee.
(h) Option Agreement. Each Employee to whom an Option is granted shall
enter into an agreement with the Corporation which shall contain such
provisions, consistent with the provisions of the Plan, as may be
established by the Board, or if so designated the Committee.
(i) Withholding. Prior to the delivery of certificates for shares of
Common Stock, the Corporation or a subsidiary shall have the right to
require a payment from an Employee to cover any applicable withholding
or other employment taxes due upon the
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exercise of an Option. An Optionee may make such payment either (i) in
cash, (ii) by authorizing the Company to withhold a portion of the
stock otherwise issuable to the Optionee, (iii) by delivering
already-owned Common Stock, or (iv) by any combination of these means.
6. Stock Appreciation Rights
The Board or Committee may grant stock appreciation rights ("SARs") in
connection with all or any part of an Option granted under the Plan, either
concurrently with the grant of the Option or at any time thereafter, and may
also grant SARs independently of Options.
(a) SARs Granted in Connection with an Option. An SAR granted in
connection with an Option entitles the Optionee to exercise the SAR by
surrendering to the Company, unexercised, the underlying Option. The Optionee
receives in exchange from the Company an amount equal to the excess of (x) the
Fair Market Value on the date of surrender of the underlying Option (y) the
exercise price of the Common Stock covered by the surrendered portion of the
Option.
When an SAR is exercised, the underlying Option, to the extent
surrendered, ceases to be exercisable, and the number of Shares available for
issuance under the Plan is reduced correspondingly.
An SAR is exercisable only when and to the extent the underlying Option
is exercisable and expires no later than the date on which the underlying Option
expires. Notwithstanding the foregoing, neither an SAR nor a related Option may
be exercised during the first six (6) months of its respective term: provided,
however, that this limitation will not apply if the Optionee dies or is disabled
within such six (6) month period.
(b) Independent SARs. The Board or the Committee may grant SARs without
related Options. Such an SAR will entitle the Optionee to receive from the
company on exercise of the SAR an amount equal to the excess of (x) the fair
market value of the Common Stock covered by the exercised portion of the SAR, as
of the date of such exercise, over (y) the fair market value of the Common Stock
covered by the exercised portion of the SAR as of the date on which the SAR was
granted.
SARs shall be exercisable in whole or in part at such times as the
Board or the Committee shall specify in the Optionee's SAR grant or agreement.
Notwithstanding the foregoing, an SAR may not be exercised during the first six
(6) months of its term: provided, however, that this limitation will not apply
if the Optionee dies or is disabled within such six (6) month period.
(c) Payment on Exercise. The Company's obligations arising upon the
exercise of an SAR may be paid in cash or Common Stock, or any combination of
the same, as the Board
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or the Committee may determine. Shares issued on the exercise of an SAR are
valued at their fair market value as of the date of exercise.
(d) Limitation on Amount paid on SAR Exercise. The Board or the
Committee may in its discretion impose a limit on the amount to be paid on
exercise of an SAR. In the event such a limit is imposed on an SAR granted in
connection with an Option, the limit will not restrict the exercisability of the
underlying Option.
(e) Persons Subject to 16(b). An Optionee subject to Section 16(b) of
the Securities Exchange Act of 1934, may only exercise an SAR during the period
beginning on the third and ending on the twelfth business day following the
Company's public release of quarterly or annual summary statements of sales and
earnings and in accordance with all other provisions of Section 16(b).
(f) Non-Transferability of SARs. An SAR is non-transferable by the
Optionee other than by will or the laws of descent and distribution, and is
exercisable during the Optionee's lifetime only by the Optionee, or, in the
event of death, by the Optionee's estate or by a person who acquires the right
to exercise the Option by bequest or inheritance.
(g) Effect on Shares in Plan. When an SAR is exercised, the aggregate
number of shares of Common Stock available for issuance under the Plan will be
reduced by the number of underlying shares of Common Stock as to which the SAR
is exercised.
7. Adjustment of and Changes in Common Stock
In the event of a reorganization, recapitalization, stock split, stock
dividend, combination of Shares, merger, consolidation, distribution of assets,
or any other changes in the corporate structure or Shares of the Corporation,
the Board, or if so designated the Committee, shall make such adjustments as it
deems appropriate in the number and kind of Shares and SARs authorized by the
Plan, in the number and kind of Shares covered by the Options granted and in the
exercise price of outstanding Options and SARs.
8. Mergers, Sales and Change of Control
In the case of (i) any merger, consolidation or combination of the
Corporation with or into another corporation (other than a merger, consolidation
or combination in which the Corporation is the continuing corporation and which
does not result in its outstanding Common Stock being converted into or
exchanged for different securities, cash or other property, or any combination
thereof) or a sale of all or substantially all of the business or assets of the
Corporation or (ii) a Change in Control (as defined below) of the Corporation,
each Option or SAR then outstanding for one year or more shall (unless the
Board, or if so designated the Committee, determines otherwise), receive upon
exercise of such Option or SAR an amount equal to the excess of the Fair Market
Value on the date of such exercise of (a) the securities, cash or other
property, or combination thereof, receivable upon such merger, consolidation or
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combination in respect of a share of Common Stock, in the cases covered by
clause (i) above, or (b) the final tender offer price in the case of a tender
offer resulting in a Change in Control or (c) the value of the Common Stock
covered by the Option or SAR as determined by the Board, or if so designated the
Committee, in the case of a Change in Control by reason of any other event, over
the exercise price of such Option, multiplied by the number of shares of Common
Stock with respect to which such Option or SAR shall have been exercised
provided that in each event the amount payable in the case of an Incentive Stock
Option shall be limited to the maximum permissible amount necessary to preserve
the Incentive Stock Option status. Such amount may be payable fully in cash,
fully in one or more of the kind or kinds or property payable in such merger,
consolidation or combination, or partly in cash and partly in one or more such
kind or kinds of property, all in the discretion of the Board or if so
designated the Committee.
Any determination by the Board, or if so designated the Committee, made
pursuant to this Section 8 may be made as to all outstanding Options and SARs or
only as to certain Options and SARs specified by the Board, or if so designated
the Committee and any such determination shall be made (a) in cases covered by
clause (i) above, prior to the occurrence of such event, (b) in the event of a
tender or exchange offer, prior to the purchase of any Common Stock pursuant
thereto by the offeror and (c) in the case of a Change in Control by reason of
any other event, just prior to or as soon as practicable after such Change in
Control.
A "Change in Control" shall be deemed to have occurred if (a) any
person, or any two or more persons acting as a group, and all affiliates of such
person or persons, shall own beneficially 25% or more of the Common Stock
outstanding, or (b) if following (i) a tender or exchange offer for voting
securities of the Corporation, or (ii) a proxy contest for the election of
directors of the Corporation, the persons who were directors of the Corporation
immediately before the initiation of such event cease to constitute a majority
of the Board of Directors of the Corporation upon the completion of such tender
or exchange offer or proxy contest or within one year after such completion.
9. No Rights of Shareholders
Neither an Employee nor the Employee's legal representative shall be,
or have any of the rights and privileges of, a shareholder of the Corporation in
respect of any Shares purchasable upon the exercise of any Option, in whole or
in part, unless and until certificates for such Shares shall have been issued.
10. Plan Amendments
The plan may be amended by the Board, as it shall deem advisable or to
conform, to any change in any law or regulation applicable thereto; provided,
that the Board may not, without the authorization and approval of shareholders:
(i) increase the aggregate number of Shares available for Options except as
permitted by Section 7; (ii) Materially increase the benefits accruing to
participants under this Plan; (iii) extend the maximum period during which an
Option
7
<PAGE>
may be exercised; or (iv) change the Plan's eligibility requirements. Any
discrepancy between the Board and any committee regarding this Plan shall be
decided in any manner directed by the Board.
11. Term of Plan
The Plan shall become effective upon its approval by the Corporation
shareholders. No Options or SARs shall be granted under the Plan after the date
which is ten years after the date on which the Plan was approved by the
Corporation shareholders.
8
[LETTERHEAD OF SILVERMAN, COLLURA, CHERNIS & BALZANO, P.C.]
September 5, 1997
Proformix Systems, Inc.
50 Tannery Road
Branchburg, New Jersey 08876
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Proformix Systems, Inc. ("Company"), a
Delaware corporation, pursuant to a Registration Statement on Form S-8, as filed
with the Securities and Exchange Commission on September 5, 1997 (the
"Registration Statement"), covering an 1,000,000 shares of the Company's Common
Stock, $.0001 par value (the "Common Stock") pursuant to the Company's 1997
Stock Option Plan.
In acting as counsel for the Company and arriving at the opinions as
expressed below, we have examined and relied upon originals or copies, certified
or otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination we have assumed the genuineness of
all signatures, the authenticity of all documents tendered to us as originals,
the legal capacity of natural persons and the conformity to original documents
of all documents submitted to us as certified or photostated copies.
Based on the foregoing, and subject to the qualifications and
limitations set forth herein, it is our opinion that:
1. The Company has authority to issue the Common Stock in the
manner and under the terms set forth in the Registration Statement.
2. The Common Stock has been duly authorized and when issued,
delivered and paid for by recipients in accordance with their respective terms,
will be validly issued, fully paid and non-assessable.
<PAGE>
SILVERMAN, COLLURA & CHERNIS, P.C.
Proformix Systems, Inc.
September 5, 1997
Page 2
We express no opinion with respect to the laws other than those of the
State of New York and Federal Laws of the United States of America, and we
assume no responsibility as to the applicability or the effect of the laws of
any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and its use as part of the Registration Statement.
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement. It is not to be used, circulated,
quoted or otherwise referred to for any other purpose. Other than the Company,
no one is entitled to rely on this opinion.
Very truly yours,
/s/ SILVERMAN, COLLURA & CHERNIS, P.C.
--------------------------------------
SILVERMAN, COLLURA & CHERNIS, P.C.
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated July 8, 1997, relating to the
financial statements of Proformix Systems, Inc. (formerly Whitestone Industries,
Inc.) for the year ended December 31, 1996.
/s/ FELDMAN RADIN & CO., P.C.
FELDMAN RADIN & CO., P.C.
Certified Public Accountants
New York, New York
September 4, 1997
