<PAGE> 1
As filed with the Securities and Exchange Commission on May 8, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
FUISZ TECHNOLOGIES LTD.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 52-1579474
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
3810 CONCORDE PARKWAY, SUITE 100 22021
CHANTILLY, VA (Zip Code)
(Address of Principal Executive Offices)
</TABLE>
FUISZ TECHNOLOGIES LTD.
1991 STOCK OPTION PLAN,
1994 STOCK INCENTIVE PLAN,
1994 EMPLOYEE STOCK PURCHASE PLAN,
AND
1994 DIRECTOR STOCK OPTION PLAN
(Full Title of the Plans)
PATRICK D. SCRIVENS
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
FUISZ TECHNOLOGIES LTD.
3810 CONCORDE PARKWAY, SUITE 100
CHANTILLY, VA 22021
(Name and Address of Agent for Service)
(703) 803-3260
(Telephone Number, Including Area Code, of Agent for Service)
---------------
Copies to:
JOHN F. OLSON, ESQ.
GIBSON, DUNN & CRUTCHER LLP
1050 CONNECTICUT AVENUE, NW, SUITE 900
WASHINGTON, DC 20036
(202) 955-8500
-----------------
<TABLE>
<CAPTION>
========================================================================================================================
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) PRICE(2) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share. . . . . . 2,283,058 N/A $35,212,373.50 $12,142.20
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The shares of Common Stock being registered hereunder are reserved in the
aggregate for issuance pursuant to the Company's 1994 Stock Incentive
Plan, 1994 Employee Stock Purchase Plan and 1994 Director Stock Option
Plan (the "1994 Plans") and 1991 Stock Option Plan. Pursuant to Rule 416,
this Registration Statement also covers such number of additional shares
of Common Stock as may become available for issuance pursuant to the
foregoing plans in the event of certain changes in outstanding shares,
including reorganizations, recapitalizations, stock splits, stock
dividends and reverse stock splits.
(2) Estimated solely for the purpose of calculating the registration fee. The
registration fee has been calculated in accordance with Rule 457(h) under
the Securities Act of 1933 based (a) in the case of 695,682 shares
registered with respect to options that remained available for award under
the 1994 Plans on the date of filing of this Registration Statement, upon
the average price of the Common Stock on May 7, 1996, which was $27.25 and
(b) in the case of 1,587,376 shares registered with respect to options
outstanding under the various plans, with an aggregate exercise price of
$16,255,039, upon the price at which the options may be exercised, which
averages $10.24 per share.
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<PAGE> 2
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to
Note to Part 1 of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to
Note to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed
with the Securities and Exchange Commission (the "Commission") are hereby
incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report or latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "Securities Act"), that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have
been filed, or if no such report has been filed, its registration
statement on Form S-1, filed with the Commission on April 3, 1996,
File No. 333-3194, as amended;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year covered by Registrant's latest annual
report or prospectus referred to in (1) above;
(3) The description of the Common Stock set forth under the caption
"Description of Capital Stock" in the Registrant's registration
statement on Form S-1, filed with the Commission on April 3, 1996,
File No. 333-3194, together with any amendment or report filed with
the Commission for the purpose of updating such description.
All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all such
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 reports and documents.
II-1
<PAGE> 3
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 ("Section 145") of the Delaware General
Corporation Law, as amended, provides a detailed statutory framework covering
indemnification of officers and directors against liabilities and expenses
arising out of legal proceedings brought against them by reason of their being
or having been directors or officers. Section 145 generally provides that a
director or officer of a corporation (i) shall be indemnified by the
corporation for all expenses of such legal proceedings when he is successful on
the merits, (ii) may be indemnified by the corporation for the expenses,
judgments, fines and amounts paid in settlement of such proceedings (other than
a derivative suit), even if he is not successful on the merits, 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, and
(iii) may be indemnified by the corporation for the expenses of a derivative
suit (a suit by a stockholder alleging a breach by a director or officer of a
duty owed to the corporation), even if he is not successful on the merits, 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. No indemnification may be
made under clause (iii) above, however, if the director or officer is adjudged
liable for negligence or misconduct in the performance of his duties to the
corporation, unless a corporation determines that, despite such adjudication,
but in view of all the circumstances, he is entitled to indemnification. The
indemnification described in clauses (ii) and (iii) above may be made only upon
a determination that indemnification is proper because the applicable standard
of conduct has been met. Such a determination may be made by a majority of a
quorum of disinterested directors, independent legal counsel, the stockholders
or a court of competent jurisdiction.
The indemnification of directors and officers is provided for
by Article SEVENTH of the Registrant's Certificate of Incorporation which
provides in substance that, to the fullest extent permitted by Delaware law as
it now exists or as amended, each director and officer shall be indemnified
against reasonable costs and expenses, including attorney's fees,
II-2
<PAGE> 4
and any liabilities which he may incur in connection with any action to which
he may be made a party by reason of his being or having been a director or
officer of the Registrant. The indemnification provided by the Registrant's
Certificate of Incorporation is not deemed exclusive of or intended in any way
to limit any other rights to which any person seeking indemnification may be
entitled.
Section 102(b)(7) of the Delaware General Corporation Law, as
amended, permits a corporation to provide in its Certificate of Incorporation
that a director of the 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.
Article NINTH of the Registrant's Certificate of Incorporation
provides for the elimination of personal liability of a director for breach of
fiduciary duty, as permitted by Section 102(b)(7) of the Delaware General
Corporation Law.
Section 7 of the underwriting agreement in connection with the
public offering of the Registrant's common stock pursuant to the Registrant's
registration statement on Form S-1 filed on April 3, 1996 provides for
indemnification by the underwriters under certain circumstances of directors,
officers and controlling persons of the Registrant against certain liabilities,
including liabilities under the Securities Act.
The Registrant maintains liability insurance in the amount of
$3.0 million insuring its officers and directors against liabilities that they
may incur in such capacities, including liabilities arising under the Federal
securities laws other than liabilities arising out of the filing of a
registration statement with the Securities and Exchange Commission.
The Second Amended and Restated Registration Rights Agreement
provides for cross-indemnification of certain stockholders of the Registrant
whose shares with registration rights are included in a registration under the
Securities Act, and of the Registrant, its officers and directors for certain
liabilities arising in connection with such registration.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-3
<PAGE> 5
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by
reference to another filing of the Company with the Commission, each of the
following exhibits is filed herewith:
10.1 The Fuisz Technologies Ltd. 1991 Stock Option Plan
dated October 17, 1991 is hereby incorporated by
reference to Exhibit 10.1 to the Registrant's
Registration Statement on Form S-1 (File No.
33-99092).
10.2 The amendment to the Fuisz Technologies Ltd. 1991
Stock Option Plan adopted on October 19, 1994 is
hereby incorporated by reference to Exhibit 10.1A to
the Registrant's Registration Statement on Form S-1
(File No. 33-99092).
10.3 The Fuisz Technologies Ltd. 1994 Stock Incentive
Plan, dated as of May 6, 1994, as amended on October
19, 1994, is hereby incorporated by reference to
Exhibit 10.2 to the Registrant's Registration
Statement on Form S-1 (File No. 33-99092).
10.4 The Fuisz Technologies Ltd. 1994 Director Stock
Option Plan, dated as of May 6, 1994, as amended on
October 19, 1994, is hereby incorporated by reference
to Exhibit 10.3 to the Registrant's Registration
Statement on Form S-1 (File No. 33-99092).
10.5 The Fuisz Technologies Ltd. 1994 Employee Stock
Purchase Plan, dated as of May 6, 1994, as amended on
October 19, 1994, is hereby incorporated by reference
to Exhibit 10.4 to the Registrant's Registration
Statement on Form S-1 (File No. 33-99092).
10.6 Form of Stock Option Agreement pursuant to the Fuisz
Technologies Ltd. Plans.
5 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5).
23.2 Consent of Coopers & Lybrand L.L.P.
II-4
<PAGE> 6
ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high and of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective 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 to such information in the
registration statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(b) 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.
(c) 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.
(2) 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 the
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<PAGE> 7
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.
(3) 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 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.
II-6
<PAGE> 8
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 the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, there-unto duly
authorized, in the City of Chantilly, State of Virginia, on this 29 day of
March, 1996.
FUISZ TECHNOLOGIES LTD.
By: /s/ RICHARD C. FUISZ
-----------------------------
Richard C. Fuisz
Chief Executive Officer
Each person whose signature appears below constitutes and appoints Richard C.
Fuisz, Patrick D. Scrivens and Ronald O. Mueller, and any of them, his true and
lawful attorney-in-fact, each with full power of substitution and
resubstitution, severally, for him and in his name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in 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 and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ RICHARD C. FUISZ Chief Executive Officer and Director March 29, 1996
- ----------------------------- (Principal Executive Officer)
Richard C. Fuisz
/s/ PATRICK D. SCRIVENS Executive Vice President and May 8, 1996
- ----------------------------- Chief Financial Officer
Patrick D. Scrivens (Principal Financial Officer)
/s/ LARS G. OKESON Controller May 8, 1996
- ----------------------------- (Principal Accounting Officer)
Lars G. Okeson
/s/ JOHN R. FUISZ Director March 29, 1996
- -----------------------------
John R. Fuisz
/s/ ANTONE J. LAZOS Director March 29, 1996
- ----------------------------
Antone J. Lazos
</TABLE>
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<PAGE> 9
<TABLE>
<S> <C> <C>
/s/ DONALD E. O'NEILL Director May 8, 1996
- -----------------------------
Donald E. O'Neill
/s/ JOHN PAPPAJOHN Director May 8, 1996
- -----------------------------
John Pappajohn
/s/ FREDRIK C. SCHREUDER Director May 8, 1996
- -----------------------------
Fredrik C. Schreuder
</TABLE>
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<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Sequentially
- --------- ------------------------------------------------------------ --------------------
Number Numbered Page
- ------ -------------
<S> <C>
10.1 The Fuisz Technologies Ltd. 1991 Stock Option Plan dated October 17, 1991
is hereby incorporated by reference to Exhibit 10.1 to the Registrant's
Registration Statement on Form S-1 (File No. 33-99092).
10.2 The amendment to the Fuisz Technologies Ltd. 1991 Stock Option Plan adopted
on October 19, 1994 is hereby incorporated by reference to Exhibit 10.1A to
the Registrant's Registration Statement on Form S-1 (File No. 33-99092).
10.3 The Fuisz Technologies Ltd. 1994 Stock Incentive Plan, dated as of May 6,
1994, as amended on October 19, 1994, is hereby incorporated by reference
to Exhibit 10.2 to the Registrant's Registration Statement on Form S-1
(File No. 33-99092).
10.4 The Fuisz Technologies Ltd. 1994 Director Stock Option Plan, dated as of
May 6, 1994, as amended on October 19, 1994, is hereby incorporated by
reference to Exhibit 10.3 to the Registrant's Registration Statement on
Form S-1 (File No. 33-99092).
10.5 The Fuisz Technologies Ltd. 1994 Employee Stock Purchase Plan, dated as of
May 6, 1994, as amended on October 19, 1994, is hereby incorporated by
reference to Exhibit 10.4 to the Registrant's Registration Statement on
Form S-1 (File No. 33-99092).
10.6 Form of Stock Option Agreement pursuant to the Fuisz Technologies Ltd.
Plans.
5 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5).
23.2 Consent of Coopers & Lybrand L.L.P.
</TABLE>
II-9
<PAGE> 1
FUISZ TECHNOLOGIES LTD.
NON-STATUTORY STOCK OPTION AGREEMENT
1. Grant of Option. Fuisz Technologies Ltd., a Delaware corporation (the
"Company"), hereby grants to __________________ (the "Optionee") an option,
pursuant to the Company's 1994 Stock Incentive Plan (the "Plan"), to purchase
an aggregate of_______________ shares of Common Stock, $0.01 par value ("Common
Stock"), of the Company at a price of ______. Such shares shall be purchasable
as set forth in, and subject to the terms and conditions of, this option and the
Plan. This option is not intended to qualify as an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"). Except where the context otherwise requires, the term
"Company" shall include the parent and all subsidiaries of the Company as
defined in Sections 424(e) and 424(f) of the Code.
2. Exercise of Option and Provisions for Termination.
(a) Vesting Schedule. Except as otherwise provided in this
Agreement, this option may be exercised prior to the tenth anniversary of the
Date of Grant set forth herein below (hereinafter the "Expiration Date") in
installments as to not more than the number of shares set forth in the table
below during the respective installment period set forth in the table below.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------
Exercise Period Total Number of Shares Exercisable
- -----------------------------------------------------------------------------
<S> <C>
Prior to______,1997 0
On or after______, 1997
but prior to______, 1998
On or after ______, 1998
but prior to _______, 1999
On or after_______, 1999
and until the Expiration Date
- -----------------------------------------------------------------------------
</TABLE>
The right of exercise shall be cumulative so that if the option is not
exercised to the maximum extent permissible, it shall be exercisable, in whole
or in part, with respect to all shares not so purchased at any time prior to
the Expiration Date or the earlier termination of this option.
FUISZ
TECHNOLOGIES LTD.
<PAGE> 2
Notwithstanding the foregoing, in the event of the death or disability
of the Optionee, as set forth herein, all shares of Common Stock that would
have vested under this Agreement as of the end of the twelve-month period
beginning on ______ of the year in which the death or disability of the Optionee
occurs, shall vest and be exercisable immediately pursuant to the terms of
subsection 2(e) hereof.
This option may not be exercised at any time on or after the
Expiration Date.
(b) Exercise Procedure. Subject to the conditions set forth
in this Agreement, this option shall be exercised by the Optionee's delivery of
written notice of exercise to the Treasurer of the Company specifying the number
of shares to be purchased and the purchase price to be paid therefor and
accompanied by payment in full in accordance with Section 3. Such exercise shall
be effective upon receipt by the Treasurer of the Company of such written notice
together with the required payment. The Optionee may purchase fewer than the
total number of shares covered hereby, provided that no partial exercise of this
option may be for any fractional share or for fewer than ten whole shares.
(c) Continuous Relationship Required. Except as otherwise
provided in this Section 2, this option may not be exercised unless the
Optionee, at the time he or she exercises this option, is, and has been at all
times since the Date of Grant of this option, an employee, consultant, officer
or director of the Company.
(d) Exercise Period Upon Termination of Relationship. If the
Optionee ceases to be employed by the Company for any reason other than death or
disability or a discharge for "cause", as provided below, the right to exercise
this option shall continue until the Expiration Date, provided that this option
shall be exercisable only to the extent that the Optionee was entitled to
exercise this option on the date of such cessation.
(e) Exercise Period Upon Death or Disability. If the Optionee
dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code or
any successor provision thereto) prior to the Expiration Date while he or she is
an employee, consultant, officer or director of the Company, or if the Optionee
dies within three months after the Optionee ceases to be an employee,
consultant, officer or director of the Company (other than as the result of a
discharge for "cause" as specified in paragraph (f) below), this option shall be
exercisable, within the period of one year following the date of death or
disability of the Optionee (but in no event after the Expiration Date), by the
Optionee or by the person to whom this option is transferred by will or the laws
of descent and distribution, provided that this option shall be exercisable only
to the extent that this option was exercisable by the Optionee on the date of
his or her death or disability, after giving effect to the provision in the
second to last paragraph in section 2(a). Except as otherwise
2
FUISZ
TECHNOLOGIES LTD.
<PAGE> 3
indicated by the context, the term "Optionee", as used in this option, shall be
deemed to include the estate of the Optionee or any person who acquires the
right to exercise this option by bequest or inheritance or otherwise by reason
of the death of the Optionee.
(f) Discharge for Cause. If the Optionee, prior to the
Expiration Date, ceases his or her employment or other relationship with the
Company because he or she is discharged for "cause" (as defined below), the
right to exercise this option shall terminate immediately upon such cessation of
employment or relationship. "Cause" shall mean willful misconduct in connection
with the Optionee's duties or willful failure to perform his or her
responsibilities in the best interests of the Company (including, without
limitation, breach by the Optionee of any provision of any employment,
non-disclosure, non-competition or other similar agreement between the Optionee
and the Company), as determined by the Company, which determination shall be
conclusive. "Willful" shall mean an act or failure to act done intentionally or
on purpose and not accidentally.
3. Payment of Purchase Price.
(a) Method of Payment. Payment of the purchase price for
shares purchased upon exercise of this option shall be made (i) by delivery to
the Company of cash or a check to the order of the Company in an amount equal to
the purchase price of such shares, (ii) by delivery to the Company of shares of
Common Stock of the Company then owned by the Optionee having a fair market
value equal in amount to the purchase price of such shares, (iii) by any other
means (including, without limitation, by delivery of a promissory note of the
Optionee payable on such terms as are specified by the Board of Directors) which
the Board of Directors determines are consistent with the purpose of the Plan
and with applicable laws and regulations (including, without limitation, the
provisions of Rule 16b-3 under the Securities Exchange Act of 1934 and
Regulation T promulgated by the Federal Reserve Board) or (iv) by any
combination of such methods of payment.
(b) Valuation of Shares Tendered in Payment of Purchase Price.
For the purposes hereof, the fair market value of any share of the Company's
Common Stock which may be delivered to the Company in exercise of this option
shall be the closing price of the Company's Common Stock as quoted on the NASDQ
stock exchange, for the last trading day immediately preceeding the date of
exercise.
(c) Delivery of Shares Tendered in Payment of Purchase Price.
If the Company permits the Optionee to exercise options by delivery of shares of
Common Stock of the Company, the certificate or certificates representing the
shares of Common Stock of the Company to be delivered shall be duly executed in
blank by the Optionee or shall be accompanied by a stock power duly executed in
blank suitable
3
FUISZ
TECHNOLOGIES LTD.
<PAGE> 4
for purposes of transferring such shares to the Company. Fractional shares of
Common Stock of the Company will not be accepted in payment of the purchase
price of shares acquired upon exercise of this option.
(d) Restrictions Upon Use of Option Stock. Notwithstanding the
foregoing, no shares of Common Stock of the Company may be tendered in payment
of the purchase price of shares purchased upon exercise of this option if the
shares to be so tendered were acquired within twelve (12) months before the
date of such tender, through the exercise of an option granted under the Plan
or any other stock option or restricted stock plan of the Company.
4. Delivery of Shares; Compliance With Securities Law, Etc.
(a) General. The Company shall, upon payment of the option
price for the number of shares purchased and paid for, make prompt delivery of
such shares to the Optionee, provided that if any law or regulation requires
the Company to take any action with respect to such shares before the issuance
thereof, then the date of delivery of such shares shall be extended for the
period necessary to complete such action.
(b) Listing, Qualification, Etc. This option shall be subject
to the requirement that if, at any time, counsel to the Company shall determine
that the listing, registration or qualification of the shares subject hereto
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental or regulatory body, is necessary as a condition
of, or in connection with, the issuance or purchase of shares hereunder, this
option may not be exercised, in whole or in part, unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained on conditions acceptable to the Board of Directors. Nothing herein
shall be deemed to require the Company to apply for or to obtain such listing,
registration or qualification.
5. Nontransferability of Option. Except as provided in paragraph (e) of
Section 2, this option is personal and no rights granted hereunder may be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) nor shall any such rights be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of this option or of such rights contrary to
the provisions hereof, or upon the levy of any attachment or similar process
upon this option or such rights, this option and such rights shall, at the
election of the Company, become null and void.
6. Rights as a Shareholder. The Optionee shall have no rights as a
shareholder with respect to any shares which may be purchased by exercise of
this option unless and until a certificate representing such shares is duly
issued and delivered to the
4
FUISZ
TECHNOLOGIES LTD.
<PAGE> 5
Optionee. No adjustment shall be made for dividends or other rights for which
the record date is prior to the date such stock certificate is issued.
7. Recapitalization.
(a) General. If, as a result of a merger, consolidation, sale
of all or substantially all of the assets of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other distribution with respect to the outstanding shares of Common
Stock or other securities, the outstanding shares of Common Stock are increased
or decreased, or are exchanged for a different number or kind of shares or
other securities, or if additional shares or new or different shares or other
securities are distributed with respect to such shares of Common Stock or other
securities, an appropriate and proportionate adjustment may be made in (i) the
number and kind of shares or other securities subject to this option and (ii)
the price for each share subject to this option, without changing the aggregate
purchase price as to which this option remains exercisable.
(b) Board Authority to Make Adjustments. Adjustments under this
Section 7 will be made by the Board of Directors, whose determination as to
what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive. No fractional shares will be issued under this option
on account of any such adjustments.
8. Mergers. Etc. In the event of a merger or consolidation in which the
Company is not the surviving corporation, or which results in the acquisition
of substantially all of the Company's outstanding Common Stock by a single
person, entity or group of persons or entities acting in concert, or in the
event of the sale or transfer of all or substantially all of the assets of the
Company, or in the event of a reorganization or liquidation of the Company,
prior to the Expiration Date or termination of this option, the Optionee shall,
with respect to this option or any unexercised portion hereof, be entitled to
the rights and benefits, and be subject to the limitations, set forth in 5(b)
and 10(f) of the Plan.
9. Withholding Taxes. The Company's obligation to deliver shares upon
the exercise of this option shall be subject to the Optionee's satisfaction of
all applicable federal, state and local income and employment tax withholding
requirements.
10. Investment Representations; Legend.
(a) Representations. The Optionee represents, warrants and
covenants that:
(i) Any shares purchased upon exercise of this option shall
be acquired for the Optionee's account for investment only,
and not with a view to, or for sale in connection with, any
distribution of the shares in violation
5
FUISZ
TECHNOLOGIES LTD.
<PAGE> 6
of the Securities Act of 1933 (the "Securities Act"), or
any rule or regulation under the Securities Act.
(ii) The Optionee has had such opportunity as he or she has
deemed adequate to obtain from representatives of the
Company such information as is necessary to permit the
Optionee to evaluate the merits and risks of his or her
investment in the Company.
(iii) The Optionee is able to bear the economic risk of
holding such shares acquired pursuant to the exercise of
this option for an indefinite period.
(iv) The Optionee understands that (A) the shares acquired
pursuant to the exercise of this option will not be
registered under the Securities Act and are "restricted
securities" within the meaning of Rule 144 under the
Securities Act; (B) such shares cannot be sold, transferred
or otherwise disposed of unless they are subsequently
registered under the Securities Act or an exemption from
registration is then available; and (C) in any event, the
exemption from registration under Rule 144 will not be
available for at least two years from the date of exercise
of the option and even then will not be available unless a
public market then exists for the Common Stock, adequate
information concerning the Company is then available to the
public, and other terms and conditions of Rule 144 are
complied with.
By making payment upon exercise of this option, the Optionee shall be
deemed to have reaffirmed, as of the date of such payment, the representations
made in this Section 10.
(b) Legend on Stock Certificate. All stock certificates
representing shares of Common Stock issued to the Optionee upon exercise of
this option shall have affixed thereto a legend substantially in the following
form, in addition to any other legends required by applicable state law:
"The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933 and may not be transferred, sold
or otherwise disposed of in the absence of an effective registration statement
with respect to the shares evidenced by this certificate, filed and made
effective under the Securities Act of 1933, or an opinion of counsel
satisfactory to the Company to the effect that registration under such Act is
not required."
6
FUISZ
TECHNOLOGIES LTD.
<PAGE> 7
11. Miscellaneous.
(a) Except as provided herein, this option may not be amended or
otherwise modified unless evidenced in writing and signed by the Company and
the Optionee.
(b) All notices under this option shall be mailed or delivered
by hand to the parties at their respective addresses set forth beneath their
names below or at such other address as may be designated in writing by either
of the parties to one another.
(c) This option shall be governed by and construed in accordance
with the laws of the State of Delaware.
Date of Grant:
- --------------
FUISZ TECHNOLOGIES LTD.
-----------------------------
Richard C. Fuisz, M.D.
President and CEO
3810 Concorde Parkway
Suite 100
Chantilly, VA 22021
OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof. The undersigned hereby acknowledges receipt of a copy of
the Company's 1994 Stock Incentive Plan.
OPTIONEE
--------------------
------------
7
FUISZ
TECHNOLOGIES LTD.
<PAGE> 1
[GIBSON, DUNN & CRUTCHER LLP LETTERHEAD]
May 8, 1996
Our File Number
C 30501-00007
Fuisz Technologies, Ltd.
3810 Concorde Parkway, Suite 100
Chantilly, VA 22021
Re: Proposed Offering of up to 2,283,058 Shares of Common Stock
Ladies and Gentlemen:
We refer to an aggregate of 2,283,058 shares of Common Stock,
par value $.01 per share, of Fuisz Technologies Ltd., a Delaware corporation
(the "Company"), which are the subject of a registration statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"). The shares of Common Stock (the "Shares") subject to the Registration
Statement are to be issued in the aggregate under the Company's 1991 Stock
Option Plan, 1994 Stock Incentive Plan, 1994 Employee Stock Purchase Plan, and
1994 Director Stock Option Plan, each as amended on October 19, 1994 (together,
the "Plans").
We have examined the original, or a photostatic or certified
copy, of such records of the Company, certificates of officers of the Company
and of public officials and such other documents as we have determined relevant
and necessary as the basis for the opinion set forth below. In such
examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies.
Based upon our examination mentioned above, we are of the
opinion that the Shares have been validly authorized for issuance and, when
issued and sold in accordance with the terms set forth in the Registration
Statement and the relevant Plan, and, when (a) the Registration Statement has
become effective under the Act, (b) the pertinent provisions of any applicable
state
<PAGE> 2
GIBSON, DUNN & CRUTCHER LLP
Fuisz Technologies, Ltd.
May 8, 1996
Page 2
securities law have been complied with, and (c) in the case of options issued
under the Plans, the Shares have been paid for, the Shares so issued will be
legally issued and will be fully paid and nonassessable.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm appearing on the cover
of the Registration Statement. In giving this consent, we do not admit that we
are within the category of persons whose consent is required under Section 7 of
the Act or the General Rules and Regulations of the Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
GIBSON, DUNN & CRUTCHER LLP
HBA/ROM/LML
WA961170.115/5+
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Fuisz Technologies Ltd. on Form S-8, regarding the Fuisz Technologies Ltd. 1991
Stock Option Plan, 1994 Stock Incentive Plan, 1994 Employee Stock Purchase Plan
and 1994 Director Stock Option Plan, of our report dated February 1, 1996 on
our audits of the financial statements of Fuisz Technologies Ltd. as of
December 31, 1994 and 1995, for the years ended December 31, 1993, 1994 and
1995, and for the period June 9, 1988 (inception) to December 31, 1995, which
report is included in the Fuisz Technologies Ltd. registration statement on
Form S-1, File No. 333-3194.
/s/ COOPERS & LYBRAND L.L.P.
Coopers & Lybrand L.L.P.
Rockville, Maryland
May 8, 1996
