<PAGE> 1
As filed with the Securities and Exchange Commission on June 19, 1998.
Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
DYNAGEN, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3029787
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
840 Memorial Drive
Cambridge, Massachusetts 02139
(617) 491-2527
(Address of Principal Executive Offices) (Zip Code)
--------------------------
1998 Stock Option Plan
1998 Consultant Stock Plan
Stock Option dated June 1,1998
--------------------------
Dr. Indu A. Muni
President
DynaGen, Inc.
840 Memorial Drive
Cambridge, Massachusetts 02139
(617) 491-2527
(Name and address including zip code and telephone number,
including area code, of agent for service)
--------------------------
Copy to:
David A. Broadwin, Esq.
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate Amount of
securities to to be price offering registration
BE REGISTERED REGISTERED PER SHARE PRICE FEE
<S> <C> <C> <C> <C>
Common Stock S.01 par 4,200,000 $ .37 $1,554,000
value per share shares(1)
Common Stock S.01 par 2,800,000 $ .50 $1,400,000
value per share shares(2)
--------- ---------- -------
Total 7,000,000 --- $2,954,000 $871.43
========= ========== =======
</TABLE>
(1)Represents shares issuable pursuant to options granted under the
Company's 1998 Stock Option Plan and shares issuable pursuant to an
option granted to C. Robert Cusick, Chairman of the Board of Directors
of the Company. The price of $.37 per share is the weighted average
exercise price of the options and the warrant.
(2)Represents shares issuable pursuant to options that may be granted
under the Company's 1998 Stock Option Plan and shares issuable under
the Company's 1998 Consultant Plan. The price of $ .50 per share,which
is the average of the bid and ask price of the Common Stock reported on
the Nasd SmallCap Market on June 18, 1998, is set forth solely for
purposes of calculating the filing fee pursuant to Rule 457(c) and is
used only for those shares without a fixed exercise price.
-2-
<PAGE> 3
Item 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to plan participants and others as specified by Rule 428(b)(1).
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission") and the instructions for Form S-8, such documents
are not being filed with the Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K (as amended to date)
for the fiscal year ended December 31, 1997 filed pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(b) The Company's Proxy Statement for its Special Meeting of
Stockholders held on March 4, 1998.
(c) The Company's Quarterly Report on Form 10-Q for the three
months ended March 31, 1998.
(d) All other documents filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the annual report referred to in (a) above;
and
(e) The section entitled "Description of Securities" contained in
the Company's Registration Statement No. 33-71416 on Form S-1,
and incorporating by reference the information contained in
the Company's Final Prospectus dated March 16, 1994, filed
under Section 424(b) under the Securities Act of 1933, as
amended.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein have been sold or which deregister all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
-3-
<PAGE> 4
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. Interest of Named Expert and Counsel.
Not applicable.
Item 6. Indemnification of Officers and Directors.
(A) The Company is a Delaware corporation. Section 145 of the Delaware
General Corporation Law, as amended, provides in regard to indemnification of
directors and officers as follows:
"(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
4
<PAGE> 5
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in subsections
(a) and (b) of this section. Such determination shall be made, with respect to a
person who is a director or officer at the time of such determination, (1) by
the board of directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2) by a committee
of such directors designated by majority vote of such directors, even though
less than a quorum, or (3) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (included attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by former director or officers or employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such,
5
<PAGE> 6
whether or not the corporation would have the power to indemnify such person
against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents so that
any person who was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses."
(B) Article 9 of the Company's Certificate of Incorporation contains
the following provision relating to the indemnification of directors and
officers:
"To the maximum extent permitted by Section 102(b)(7) of the General
Corporation Law of Delaware, a director of this Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit."
6
<PAGE> 7
(C) Article VII of the Company's By-laws contains the following
provisions relating to indemnification of officers and directors:
"Reference is made to Section 145 and any other relevant provisions of
the General Corporation Law of the State of Delaware. Particular reference is
made to the class of persons, hereinafter called "Indemnitees," who may be
indemnified by a Delaware corporation pursuant to the provisions of such Section
145, namely, any person or the heirs, executors, or administrators of such
person, who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact that such
person is or was a director, officer, employee, or agent of such corporation or
is or was serving at the request of such corporation as a director, officer,
employee, or agent of such corporation or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise. The
Corporation shall, and is hereby obligated to, indemnify the Indemnitees, and
each of them in each and every situation where the Corporation is obligated to
make such indemnification pursuant to the aforesaid statutory provisions. The
Corporation shall indemnify the Indemnitees, and each of them, in each and every
situation where, under the aforesaid statutory provisions, the Corporation is
not obligated, but is nevertheless permitted or empowered, to make such
indemnification, it being understood that, before making such indemnification
with respect to any situation covered under this sentence, (i) the Corporation
shall promptly make or cause to be made, by any of the methods referred to in
Subsection (d) of such Section 145, a determination as to whether each
Indemnitee acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Corporation, and, in the case of
any criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful, and (ii) that no such indemnification shall be made unless
it is determined that such Indemnitee acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, in the case of any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful."
The effect of these provisions would be to permit indemnification by
the Company of for, among other liabilities, liabilities arising under the
Securities Act of 1933 (the "Securities Act").
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
-7-
<PAGE> 8
Item 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Specimen certificate for the Common Stock (filed
as an exhibit to the Company's Registration
Statement on Form S-18,File No.33-31836-B, and
incorporated herein by reference).
4.2 1998 Stock Option Plan (filed as an appendix to
the Company's Definitive Proxy Statement for the
Special Meeting of Stockholders on March 4, 1998,
File No. 001-11352, and incorporated herein by
reference).
4.3 1998 Consultant Stock Plan (filed herewith).
4.4 Stock Option issued to C. Robert Cusick as of
June 1, 1998 (filed herewith).
5.1 Opinion of Foley, Hoag & Eliot LLP (filed
herewith).
23.1 Consent of Wolf & Company, P.C. (filed herewith).
23.2 Consent of Foley, Hoag & Eliot LLP (contained in
Exhibit 5.1).
24.1 Power of Attorney (contained on page 10 of the
Registration Statement).
-8-
<PAGE> 9
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 this registration statement 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 from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to section 13(a) or 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.
(b) 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 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
as 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.
-9-
<PAGE> 10
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 Cambridge, Massachusetts, on June 19, 1998.
DYNAGEN, INC.
By: /s/ Dr. Indu A. Muni
-----------------------
Dr. Indu A. Muni
President, Chief Executive
Officer and Treasurer
We, the undersigned officers and directors of DynaGen, Inc., hereby
severally constitute and appoint Dr. Indu A. Muni, Dhananjay G. Wadekar and
David Broadwin, and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all amendments (including post-effective amendments) to
said Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do all things in our names and on our behalf in our
capacities as officers and directors to enable DynaGen, Inc. to comply with the
provisions of the Securities Act of 1933, as amended, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURES TITLE(S) DATE
/s/ Dhananjay G. Wadekar Executive Vice President June 19, 1998
- -------------------------- and Director
Dhananjay G. Wadekar
/s/ Dr. F. Howard Schneider Senior Vice President- June 19, 1998
- --------------------------- Technology and Director
Dr. F. Howard Schneider
/s/ Dr. Indu A. Muni President, Chief Executive June 19, 1998
- --------------------------- Officer, Treasurer (principal
Dr. Indu A. Muni executive and accounting
officer) and Director
-10-
<PAGE> 11
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
4.1 Specimen certificate for the Common Stock (filed
as an exhibit to the Company's Registration
Statement on Form S-18,File No.33-31836-B, and
incorporated herein by reference).
4.2 1998 Stock Option Plan (filed as an appendix to
the Company's Definitive Proxy Statement for the
Special Meeting of Stockholders on March 4, 1998,
File No. 001-11352, and incorporated herein by
reference).
4.3 1998 Consultant Stock Plan (filed herewith).
4.4 Stock Option issued to C. Robert Cusick as of
June 1, 1998 (filed herewith).
5.1 Opinion of Foley, Hoag & Eliot LLP (filed herewith).
23.1 Consent of Wolf & Company, P.C. (filed herewith).
23.2 Consent of Foley, Hoag & Eliot LLP (contained
in Exhibit 5.1).
24.1 Power of Attorney (contained on page 10 of the
Registration Statement.
<PAGE> 1
EXHIBIT 4.3
DYNAGEN, INC.
1998 CONSULTANT STOCK PLAN
SECTION 1. PURPOSE
This 1998 Consultant Stock Plan (the "PLAN") of DynaGen, Inc. a Delaware
corporation (the "COMPANY"), is designed to provide additional incentive to
certain non-employee consultants and others providing services to the Company
and its subsidiaries. The Company intends that this purpose will be effected by
affording such "Qualified Participants" (as hereinafter defined), an opportunity
to acquire or increase their proprietary interest in the Company through the
acquisition of shares of its common stock, $0.01 par value ("COMMON STOCK").
SECTION 2. ADMINISTRATION
The Plan shall be administered by the Board of Directors. The Board shall
have the power to issue shares of Common Stock under the Plan to Qualified
Participants for such consideration, and such on terms and conditions, as may be
determined by the Board from time to time.
SECTION 3. STOCK
The stock issued under the Plan shall be shares of the Company's
authorized but unissued Common Stock, or shares of the Company's Common Stock
held in treasury. The total number of shares that may be issued under the Plan
shall not exceed an aggregate of 2,500,000 shares of Common Stock; provided,
however, that the class and aggregate number of shares which may be issued under
the Plan shall be subject to adjustment as provided in Section 6 hereof.
SECTION 4. ELIGIBILITY
Common Stock may be issued hereunder to non-employee consultants or other
persons who render services to the Company, other than any such person who
renders services to the Company in connection with any offer or sale of
securities or any capital-raising transaction ("QUALIFIED PARTICIPANTS").
SECTION 5. TERMS OF AGREEMENTS
Each agreement with a Qualified Participant providing for the issuance of
Common Stock under the Plan shall be in writing and shall contain such terms,
conditions, restrictions, if any, and provisions as the Board shall from time to
time deem appropriate. Such provisions or conditions may include without
limitation restrictions on transfer, repurchase rights, or such other provisions
as shall be determined by the Board; PROVIDED THAT such additional provisions
shall not be inconsistent with any other term or condition of the Plan. Such
agreements need not contain identical terms.
<PAGE> 2
SECTION 6. CHANGES IN COMPANY'S CAPITAL STRUCTURE
The existence of the Plan or of outstanding obligations to issue Common
Stock under the Plan shall not affect in any way the right or power of the
Company or its stockholders to make or authorize, without limitation, any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or any issue of Common Stock, or any issue of bonds, debentures,
preferred or prior preference stock or other capital stock ahead of or affecting
the Common Stock or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise. If the Company shall effect a subdivision or consolidation of shares
or other capital readjustment, the payment of a stock dividend, or other
increase or reduction of the number of shares of the Common Stock outstanding,
in any such case without receiving compensation therefor in money, services or
property, then (i) the aggregate number of shares of Common Stock issuable
hereunder shall be adjusted accordingly and (ii) the number, class, and price
per share of shares of stock subject to an agreement to issue Common Stock to a
Qualified Participant hereunder, which shares have not then been issued, shall
be appropriately adjusted in such a manner as to entitle the Qualified
Participant to purchase, for the same aggregate consideration, the same total
number and class of shares as he or she would have received as a result of the
event requiring the adjustment had he or she held such stock immediately prior
to such event. Adjustments under this Section 6 shall be determined by the
Board, and such determinations shall be conclusive. No fractional shares of
Common Stock shall be issued under the Plan on account of any adjustment
specified above.
SECTION 7. GENERAL RESTRICTIONS
7.1 INVESTMENT REPRESENTATIONS. The Company may require any person to whom
any shares of Common Stock are issued hereunder, as a condition of such
issuance, to give written assurances in substance and form satisfactory to the
Company to the effect that such person is acquiring such Common Stock for his or
her own account for investment and not with any present intention of selling or
otherwise distributing the same, and to such other effects as the Company deems
necessary or appropriate in order to comply with federal and applicable state
securities laws.
7.2 COMPLIANCE WITH SECURITIES LAWS. The Company shall not be required to
sell or issue any shares if the issuance of such shares shall constitute a
violation by the purchaser or by the Company of any provisions of any law or
regulation of any governmental authority. In addition, in connection with the
Securities Act of 1933, as now in effect or hereafter amended (the "ACT"), the
Company shall not be required to issue such shares unless the Board has received
evidence satisfactory to it to the effect that the holder will not transfer such
shares except pursuant to a registration statement in effect under such Act or
unless an opinion of counsel satisfactory to the Company has been received by
the Company to the effect that such registration is not required. Any
determination in this connection by the Board shall be final, binding and
conclusive. In the event the shares issued hereunder are not registered under
the Act, the Company may imprint upon any certificate representing shares so
issued the following legend or any other legend which
<PAGE> 3
counsel for the Company considers necessary or advisable to comply with the Act
and with applicable state securities laws:
The shares of stock represented by this certificate have been
acquired for investment and have not been registered under the
Securities Act of 1933. Such securities may not be sold,
transferred, pledged or hypothecated unless the registration
provisions of said Act have been complied with or unless the
Corporation has received an opinion of its counsel that such
registration is not required, except upon such registration or
upon receipt by the Corporation of an opinion of counsel
satisfactory to the Corporation, in form and substance
satisfactory to the Corporation, that registration is not
required for such sale or transfer.
The Company may, but shall in no event be obligated to, register any
securities covered hereby pursuant to the Act; and in the event any shares are
so registered the Company may remove any legend on certificates representing
such shares. The Company shall not be obligated to take any other affirmative
action in order to cause the issuance of shares pursuant thereto to comply with
any law or regulation of any governmental authority.
SECTION 8. AMENDMENT OR TERMINATION OF PLAN
The Board may terminate the Plan and may amend the Plan at any time, and
from time to time.
SECTION 9. PROVISIONS OF GENERAL APPLICATION
9.1 SEVERABILITY. The invalidity or unenforceability of any provision of
the Plan shall not affect the validity or enforceability of any other provision
of the Plan, each of which shall remain in full force and effect.
9.2 CONSTRUCTION. The headings in the Plan are included for convenience
only and shall not in any way effect the meaning or interpretation of the Plan.
Any term defined in the singular shall include the plural, and vice versa. The
words "herein," "hereof" and "hereunder" refer to the Plan as a whole and not to
any particular part of the Plan. The word "including" as used herein shall not
be construed so as to exclude any other thing not referred to or described.
9.3 GOVERNING LAW. The Plan shall be governed by the laws of the State of
Delaware.
<PAGE> 1
STOCK OPTION
GRANTED BY
DYNAGEN, INC.
(hereinafter called the "Company")
TO
C. ROBERT CUSICK
(hereinafter called the "Holder")
For valuable consideration, the receipt of which is hereby
acknowledged, the Company hereby grants to the Holder the following option:
FIRST: Subject to the terms and conditions hereinafter set forth, the
Holder is hereby given the right and option to purchase from the Company shares
of the common stock, $.01 par value per share, ("Common Stock"), of the Company.
Schedule A hereto, the provisions of which are incorporated by reference herein,
sets forth (a) the maximum number of shares that the Holder may purchase upon
exercise of this Option, (b) the exercise price per share of Common Stock
purchasable hereunder, (c) the expiration date of this Option, (d) the vesting
rate and (e) certain other terms and conditions applicable to this Option.
This Option shall be exercised in whole or in part by the Holder's
delivery to the Company of written notice (the "Notice of Exercise") setting
forth the number of shares with respect to which this Option is to be exercised,
together with (a) cash in an amount, or a check, bank draft or postal or express
money order payable in an amount, equal to the aggregate exercise price for the
shares being purchased, (b) with the consent of the Board, shares of Common
Stock having a fair market value equal to such aggregate exercise price; (c)
with the consent of the Board, a personal recourse note issued by the Holder to
the Company in a principal amount equal to such aggregate exercise price and
with such other terms, including interest rate and maturity, as the Board may
determine in its discretion, provided that the interest rate borne by such note
shall not be less than the lowest applicable federal rate, as defined in Section
1274(d) of the Internal Revenue Code of 1986, as amended; (d) with the consent
of the Board, such other consideration that is acceptable to the Board and that
has a fair market value, as determined by the Board, equal to such aggregate
exercise price; or (e) with the consent of the Board, any combination of the
foregoing. The "fair market value" of the Common Stock shall equal (i) the
closing price per share on the date of grant of the Option as reported by a
national stock exchange, (ii) if the Common Stock is not listed on such an
exchange, as reported by the National Market System or another automated
quotation system of the National
<PAGE> 2
Association of Securities Dealers, Inc., or (iii) if the Common Stock is not
quoted on any such system, the fair market value as determined by the Board.
SECOND: The Company, in its discretion, may file a registration
statement on Form S-8 under the Securities Act of 1933, as amended, to register
shares of Common Stock reserved for issuance hereunder. At any time at which
such a registration statement is not in effect, it shall be a condition
precedent to any exercise of this Option that the Holder shall deliver to the
Company a customary "investment letter" satisfactory to the Company and its
counsel in which, among other things, the Holder shall (a) state that he is
acquiring shares of Common Stock subject to the Option for his or her own
account for investment and not with a view to the resale or distribution thereof
and (b) acknowledge that those shares are not freely transferable except in
compliance with federal and state securities laws.
THIRD: In order to exercise this option in whole or in part, the Holder
shall deliver to the Company the Notice of Exercise and related investment
letter, if required, and payment of the exercise price pursuant to Paragraphs
First and Second hereof. As promptly as practicable after receipt by the
Company, such materials, the Company shall deliver to the Holder (or if any
other individual or individuals are exercising this Option, to such individual
or individuals) a certificate registered in the name of the Holder (or the names
of the other individual or individuals exercising this Option) and representing
the number of shares with respect to which this Option is then being exercised;
provided, however, that if any law or regulation or order of the Securities and
Exchange Commission or any other body having jurisdiction in the premises shall
require the Company or the Holder (or the individual or individuals exercising
this Option) to take any action in connection with the shares then being
purchased, the date for the delivery of the certificate for such shares shall be
extended for the period necessary to take and complete such action. The Company
may imprint upon said certificate a legend to the following effect:
The shares of stock represented by this certificate have been
acquired for investment and have not been registered under the
Securities Act of 1933. Such securities may not be sold,
transferred, pledged or hypothecated unless the registration
provisions of said Act have been complied with or unless the
Corporation has received an opinion of its counsel that such
registration is not required, except upon such registration or
upon receipt by the Corporation of an opinion of counsel
satisfactory to the Corporation, in form and substance
satisfactory to the Corporation, that registration is not
required for such sale or transfer.
and such other legends as counsel for the Company may consider appropriate.
Delivery by the Company of the certificates for such shares shall be deemed
effected for all purposes when the Company or a stock transfer agent of the
Company shall have deposited such certificates in the United States mail,
addressed to the Holder, at the address specified in the Notice. The Company
will pay all fees or expenses necessarily incurred by the Company in connection
with the issuance and delivery of shares pursuant to the exercise of this
Option.
The Company will, at all times while any portion of this Option is
outstanding, reserve and keep available, out of shares of its authorized and
unissued Common Stock or shares of Common
-2-
<PAGE> 3
Stock held in treasury, a sufficient number of shares of its Common Stock to
satisfy the requirements of this Option.
FOURTH: If the Company shall effect any subdivision or consolidation of
shares of its stock or other capital readjustment, the payment of a stock
dividend, or other increase or reduction of the number of shares outstanding, in
any such case without receiving compensation therefor in money, services or
property, then the number, class and per share price of shares of stock subject
to this Option shall be appropriately adjusted in such a manner as to entitle
the Holder to receive upon exercise of this Option, for the same aggregate cash
consideration, the same total number and class of shares as he or she would have
received as a result of the event requiring the adjustment had he or she
exercised this Option in full immediately prior to such event.
If the Company shall be a party to a reorganization or merger with one
or more other corporations (whether or not the Company is the surviving or
resulting corporation), shall consolidate with or into one or more other
corporations, shall be liquidated, or shall sell or otherwise dispose of
substantially all of its assets to another corporation (each a "Transaction"),
then:
(a) subject to the provisions of clauses (b) and (c) below,
after the effective date of the Transaction, the Holder of this Option
shall be entitled, upon exercise hereof and at no additional cost, to
receive shares of Common Stock or, if applicable, shares of such other
stock or other securities, cash or property as the holders of shares of
Common Stock received pursuant to the terms of the Transaction;
(b) the Board may accelerate the time for exercise of this
Option to a date prior to the effective date of the Transaction, as
specified by the Board; or
(c) this Option may be canceled by the Board as of the
effective date of the Transaction, provided that (i) notice of such
cancellation shall have been given to the Holder and (ii) the Holder
shall have the right to exercise this Option to the extent the same is
then exercisable or, if the Board shall have accelerated the time for
exercise of this Option, in full during the thirty-day period preceding
the effective date of the Transaction.
Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor or services, either upon direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock then
subject to this Option.
FIFTH: Neither the Holder nor any other person shall, by virtue of the
granting of this Option, be deemed for any purpose to be the owner of any shares
of Common Stock subject to this Option or to be entitled to the rights or
privileges of a holder of such shares unless and until this Option has been
exercised pursuant to the terms hereof with respect to such shares and the
Company has issued and delivered the shares to the Holder.
-3-
<PAGE> 4
SIXTH: This Option is not transferable by the Holder or by operation of
law, otherwise than by will or under the laws of descent and distribution. This
Option is exercisable, during the Holder's lifetime, only by the Holder.
SEVENTH: If the Company in its discretion determines that it is
obligated to withhold tax with respect to shares of Common Stock received on
exercise of this Option, the Holder agrees that the Company may withhold from
the Holder's wages, if and to the extent that the Holder is then employed by the
Company and subject to such withholding, the appropriate amount of federal,
state or local withholding taxes attributable to the Holder's exercise of such
Option. At the Company's discretion, the amount required to be withheld may be
withheld in cash from such wages or (with respect to compensation income
attributable to the exercise of this Option) in kind from the Common Stock
otherwise deliverable to the Holder on exercise of this Option. The Holder
further agrees that, if the Company does not withhold an amount from the
Holder's wages sufficient to satisfy the Company's withholding obligation, the
Holder will remit to the Company on demand, in cash, the amount estimated by the
Company to be underwithheld.
EIGHTH: Any notice to be given to the Company hereunder shall be deemed
sufficient if addressed to the Company and delivered at the office of the Chief
Financial Officer of the Company, or such other address as the Company may
hereafter designate, or when deposited in the mail, postage prepaid, addressed
to the attention of the Chief Financial Officer of the Company at such office or
other address.
Any notice to be given to the Holder hereunder shall be deemed
sufficient if addressed to and delivered in person to the Holder at his address
furnished to the Company or when deposited in the mail, postage prepaid,
addressed to the Holder at such address.
NINTH: This Option is subject to all laws, regulations and orders of
any governmental authority which may be applicable thereto and, notwithstanding
any of the provisions hereof, the Holder agrees that he will not exercise the
Option granted hereby nor will the Company be obligated to issue any shares of
stock hereunder if the exercise thereof or the issuance of such shares, as the
case may be, would constitute a violation by the Holder or the Company of any
such law, regulation or order or any provision thereof.
-4-
<PAGE> 5
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed in its name and on its behalf as of the effective date.
DYNAGEN, INC.
[SEAL]
By:______________________________________________
Dhananjay G. Wadekar
Executive Vice President
Acknowledgment
The undersigned Holder acknowledges receipt of this Stock Option
Agreement, including Schedule A hereto, and agrees to be bound by all
obligations of the Holder as set forth in such Stock Option Agreement.
HOLDER
_________________________________________________
Name
<PAGE> 6
SCHEDULE A
DYNAGEN, INC.
STOCK OPTION
<TABLE>
<S> <C>
Date of Grant: June 1, 1998
Name of Holder: C. Robert Cusick
Address: ________________________
________________________
Maximum number of shares for which
this Option is exercisable: 2,000,000
Exercise (purchase) price per share: $.33
Expiration date of this Option: June 1, 2005
Vesting rate: Option becomes exercisable in equal installments at
the end of each fiscal quarter of the Company over
two years, beginning with the fiscal quarter ending
June 30, 1998; provided, that if the Holder resigns
or is removed as Chairman of the Board of Directors
of the Company at any time prior to March 1, 1999,
then only the portion of this Option then vested
shall be exercisable thereafter, and if the Holder
resigns or is removed from such position at any time
on or after March 1, 1999, then the entire Option
shall become fully exercisable.
Other terms and conditions: None
</TABLE>
<PAGE> 1
EXHIBIT 5.1
June 18, 1998
DynaGen, Inc.
840 Memorial Drive
Cambridge, MA 02139
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 (the "S-8
Registration Statement") filed today with the Securities and Exchange Commission
by DynaGen, Inc., a Delaware corporation (the "Company") relating to 7,000,000
shares of the Company's common stock $0.01 par value per share (the "Common
Stock"), issuable pursuant to the Company's 1998 Stock Option Plan and the
Company's 1998 Consultant Stock Plan (collectively, the "Plans")and a Stock
Option granted to the Chairman of the Company's Board of Directors as of June
1,1998 (the "Executive Option").
We are familiar with the Company's Certificate of Incorporation, as
amended to date and its By-Laws, as amended to date. We have examined such
records of meetings and consents of the Company's Board of Directors and of its
stockholders, stock records and other records and documents as we deemed
necessary or appropriate for purposes of rendering this opinion.
Based upon the foregoing, we are of the opinion that:
With respect to the Common Stock (a) the Company has corporate
power adequate for the issuance of such Common Stock to be issued
pursuant to the Plans and the Executive Option, (b) the Company has
taken all necessary corporate action required to authorize the issuance
and sale of such Common Stock and (c) when certificates for such Common
Stock have been duly executed and countersigned, and delivered against
due receipt of the purchase price or exercise price for such Common
Stock as described in the Plans and the Executive Option, such Common
Stock will be validly and legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as part of the S-8
Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By: /s/ David A. Broadwin
-----------------------
A Partner
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of DynaGen, Inc. on Form S-8 of our report dated April 14, 1998
appearing in DynaGen, Inc.'s Report on Form 10-K for the fiscal year ended
December 31, 1997, as amended to date, which included an explanatory paragraph
about the Company's ability to continue as a going concern.
/s/ Wolf & Co., P.C.
Boston, Massachusetts
June 18, 1998
