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Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LIUSKI INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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Delaware 11-3065217
(State or other jurisdiction of incor- (I.R.S. Employer
poration or organization) Identification No.)
6585 Crescent Drive
Norcross, Georgia 30071
(770) 447-9454
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
LIUSKI INTERNATIONAL, INC.
1994 STOCK OPTION PLAN
(Full Title of Plan)
---------------
Hsing Yen Liu
Liuski International, Inc.
6585 Crescent Drive
Norcross, Georgia 30071
(770) 447-9454
(name and address, including zip code and telephone number,
including area code of agent for service)
---------------
Copies to:
Joseph L. Cannella, Esq.
Fischbein Badillo Wagner Harding
909 Third Avenue
New York, New York 10022
(212) 826-2000
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CALCULATION OF REGISTRATION FEE
-------------------------------
Proposed Proposed
Maximum Maximum
Title of Each Offering Aggregate
Class of Securities Amount to be Price Per Offering Amount of
to be Registered Registered Share Price Registration Fee
- ------------------- ------------ --------- --------- ----------------
Common Stock, $0.01
par value............ 650,000 $4.63 (1) $3,009,500 (1) $1,038
- -------------------
(1) As of the date hereof, options to purchase 465,600 shares of Common Stock
of the Registrant had been granted pursuant to the 1994 Stock Option Plan
(the "Plan") at the exercise price of $4.75 per share. The registration fee
for the 465,600 shares is based upon such exercise price. The registration
fee for the balance of the 650,000 shares of Common Stock which are
issuable upon exercise of options which may be granted pursuant to the Plan
is based upon the average of the high and low sales prices for the Common
Stock of $4.3125 on May 17, 1996, as prescribed by Rule 457(c).
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PART II
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Liuski International,
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission"), are hereby incorporated by reference in this Registration
Statement:
1. Annual Report on Form 10-K for the fiscal year ended December 31, 1995.
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 1996.
3. The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act, and any amendment or report filed for the purpose of updating
such description.
All documents filed by the Registrant pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the date
of the Registration Statement and prior to the filing of a post-effective
amendment, which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the respective dates of filing such documents.
The Registrant will provide without charge to any Plan participant, at
the request of such person, a copy of any or all of the foregoing documents
incorporated herein by reference (other than exhibits to such documents).
Requests should be directed to Mark Rafuse, Vice President - Finance, Chief
Financial Officer, Liuski International, Inc. 6585 Crescent Drive, Norcross,
Georgia 30071 (Tel. No.770-447-9454).
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the Common Stock offered
hereby will be passed upon for the Registrant by
Fischbein Badillo Wagner Harding, 909 Third Avenue, New York, New York.
Item 6. Indemnification of Directors and Officers.
The Certificate of Incorporation of the Registrant provides that the
Registrant shall indemnify officers and directors to the fullest extent allowed
by the Delaware General Corporation Law, as it now exists and as may be amended.
The Registrant maintains policies insuring the Company's directors and officers
against certain liabilities for actions taken in such capacities, including
liabilities under the Securities Act of 1933.
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Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The exhibits listed in the following Exhibit Index are filed as part
of the Registration Statement.
Incorporated
by Reference Exhibit
to Exhibit Nos. Description of Exhibit
- ------------ ------- ----------------------
* 4 Liuski International, Inc. 1994 Stock Option Plan
* 5 Opinion of Fischbein Badillo Wagner Harding
* 23.1 Consent of BDO Seidman, LLP
* 23.2 Consent of Fischbein Badillo Wagner Harding
(included in Exhibit 5)
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* Filed herewith.
Item 9. Undertakings.
1. 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
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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 of 1933 (the "Act") may be permitted to directors, officers or
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 hereunder, 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.
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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 Atlanta, State of Georgia, on the 21st day of May,
1996.
LIUSKI INTERNATIONAL, INC.
By:/s/ Hsing Yen Liu
--------------------------
Hsing Yen Liu
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:
Signature Title Date
--------- ----- ----
/s/Hsing Yen Liu Chairman of the Board of Directors, May 21, 1996
- -------------------- Chief Executive Officer and Director
Hsing Yen Liu (Principal Executive Officer)
/s/Mark Rafuse Vice President - Finance and Chief May 21, 1996
- -------------------- Financial Officer (Principal
Mark Rafuse Financial and Accounting Officer)
and Director
/s/ Manuel C. Tan President, Chief Operating Officer, May 21, 1996
- -------------------- and Director
Manuel C. Tan
- -------------------- Director
Edwin J. Feinberg
/s/Paul J. Konigsberg Director May 21, 1996
- --------------------
Paul J. Konigsberg
- -------------------- Director
Kenny Liu
- -------------------- Director
Eric R. Bashford
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EXHIBIT INDEX
Exhibit No. Description of Exhibit Page No.
----------- ---------------------- --------
4 Liuski International, Inc. 1994 Stock Option
Plan
5 Opinion of Fischbein Badillo Wagner Harding
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Fischbein Badillo Wagner Harding
(included in Exhibit No. 5)
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EXHIBIT 4
LIUSKI INTERNATIONAL, INC.
1994 STOCK OPTION PLAN
(1) Purpose of the 1994 Stock Option Plan.
Liuski International, Inc. (the "Corporation") desires to attract and
retain the best available talent and to encourage the highest level of
performance. The 1994 Stock Option Plan (the "Stock Option Plan") is intended to
contribute significantly to the attainment of these objectives, by (i) providing
long-term incentives and rewards to all key employees of the Corporation
(including officers and directors who are key employees of the Corporation and
also including key employees of any subsidiary of the Corporation which may
include officers or directors of any subsidiary of the Corporation who are also
key employees of said subsidiary), and to non-employee directors, advisors and
independent consultants to the Corporation or to any of its subsidiaries
(together, "Eligible Individuals"), who are contributing or in a position to
contribute to the long-term success and growth of the Corporation or of any
subsidiary, (ii) assisting the Corporation and any subsidiary in attracting and
retaining Eligible Individuals with experience and ability and (iii) associating
more closely the interests of such Eligible Individuals with those of the
Corporation's stockholders.
(2) Scope and Duration of the Stock Option Plan.
Under the Stock Option Plan, options ("Options") to purchase common stock,
par value $0.01 per share ("Common Stock"), may be granted to Eligible
Individuals. Options granted to employees (including officers and directors who
are employees) of the Corporation or a subsidiary corporation thereof, may, at
the time of grant, be designated by the Corporation's Board of Directors as
incentive stock options ("ISOs"), with the attendant tax benefits as provided
for under Sections 421 and 422 of the Internal Revenue Code of 1986, as amended
(the "Code") (options not designated as ISOs are referred to as Non Qualified
Stock Options or "NQSOs"). The aggregate number of shares of Common Stock
reserved for grant from time to time under the Stock Option Plan is 650,000
shares of Common Stock which shares of Common Stock may be authorized but
unissued shares of Common Stock or shares of Common Stock which shall have been
or which may be reacquired by the Corporation, as the Board of Directors of the
Corporation shall from time to time determine. Such aggregate numbers shall be
subject to adjustment as provided in Paragraph 11. If an Option shall expire or
terminate for any reason without having been exercised in full, the shares of
Common Stock represented by the portion thereof not so exercised or surrendered
shall (unless the Stock Option Plan shall have been terminated) become available
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for other options under the Stock Option Plan. Subject to Paragraph 13, no
Option shall be granted under the Stock Option Plan after July 24, 2004. The
grant of an Option and/or a Right is sometimes referred to herein as an Award
thereof.
(3) Administration of the Stock Option Plan.
This Stock Option Plan will be administered by the Board of Directors
of the Corporation (the "Board of Directors").
The Board of Directors shall have authority in its discretion, subject
to and not inconsistent with the express provisions of the Stock Option Plan, to
direct the grant of Options, to determine the purchase price of the Common Stock
covered by each Option, the Eligible individuals to whom, and the time or times
at which, Options shall be granted and, subject to the limits set forth in
Paragraph 4 hereof, the number of shares of Common Stock to be covered by each
Option; to designate Options as ISOs; to interpret the Stock Option Plan; to
determine the time or times at which Options may be exercised; to prescribe,
amend and rescind rules and regulations relating to the Stock Option Plan,
including, without limitation, such rules and regulations as it shall deem
advisable so that transactions involving Options may qualify for exemption under
such rules and regulations as the Securities and Exchange Commission may
promulgate from time to time exempting transactions from Section 16(b) of the
Securities and Exchange Act of 1934; to determine the terms and provisions of
and to cause the Corporation to enter into, agreements with Eligible Individuals
in connection with (Awards) Options granted under the Stock Option Plan (the
"Agreements"), which Agreements may vary from one another as the Board of
Directors shall deem appropriate; and to make all other determinations it may
deem necessary or advisable for the administration of the Stock Option Plan.
The Board of Directors may by resolution, but need not, empower a
committee (the "Committee") of two or more directors, all of whom shall be
disinterested persons (as hereinafter defined), to administer the Stock Option
Plan and may similarly withdraw such power from the Committee. Members of the
Committee shall serve at the pleasure of the Board of Directors. The Committee
shall have and may exercise all of the powers of the Board of Directors under
the Stock Option Plan, other than the power to appoint a director to committee
membership. A majority of the Committee shall constitute a quorum, and acts of a
majority of the members present at any meeting at which a quorum is present
shall be deemed the acts of the Committee. The Committee may also act by
instrument signed by a majority of the members of the Committee.
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Every action, decision, interpretation or determination by the Board
of Directors with respect to the application or administration of this Stock
Option Plan shall be final and binding upon the Corporation and each person
holding any Option granted under this Stock Option Plan.
(4) Eligibility: Factors to be Considered in Granting
Options and Designating ISOs (Awards).
Options may be granted only to (i) key employees (including officers
and directors who are employees) of the Corporation or any subsidiary
corporation thereof on the date of grant (Options so granted may be designated
as ISOs) and (ii) directors or officers of the Corporation or a subsidiary
corporation thereof on the date of grant, without regard to whether they are
employees, and (iii) consultants or advisers to or agents or independent
representatives of the Corporation or a subsidiary thereof. In determining the
persons to whom Options (Awards) shall be granted and the number of shares of
Common Stock to be covered by each Award, the Board of Directors shall take into
account the nature of the duties of the respective persons, their present and
potential contributions to the Corporation's (including subsidiaries) successful
operation and such other factors as the Board of Directors in its discretion
shall deem relevant. Subject to the provisions of Paragraph 2, an Eligible
Individual may receive Options (Awards) on more than one occasion under the
Stock Option Plan. No person shall be eligible for an Option grant if he shall
have filed with the Secretary of the Corporation an instrument waiving such
eligibility; provided that any such waiver may be revoked by filing with the
Secretary of the Corporation an instrument of revocation, which revocation will
be effective upon such filing.
In the case of each ISO granted to an employee, the aggregate fair
market value (determined at the time the ISO is granted) of the Common Stock
with respect to which the ISO is exercisable for the first time by such employee
during any calendar year (under all plans of the Corporation and any subsidiary
corporation thereof) may not exceed $100,000.
(5) Option Price.
The purchase price per share of the Common Stock covered by each
Option shall be established by the Board of Directors but in no event shall it
be less than the fair market value of a share of the Common Stock on the date
the Option is granted with respect to an ISO or 75% of the fair market value on
the date the option is granted with respect to Options other than ISOs. If, at
the time an Option is granted, the Common Stock is publicly traded, such fair
market value shall be the closing price (or the mean of the latest bid and asked
prices) of a share of Common Stock on such date as reported in The Wall Street
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Journal (or a publication or reporting service deemed equivalent to The Wall
Street Journal for such purpose by the Board of Directors) for the
over-the-counter market or for any national securities exchange or other
securities market which at the time is included in the stock price quotations of
such publication. If, at the time an Option is granted, the Common Stock is not
publicly traded, the Board of Directors shall make a good faith attempt to
determine such fair market value.
In the case of an employee who at the time an ISO is granted owns
stock possessing more than 10% of the total combined voting power of all classes
of the stock of the employer corporation or of its parent or a subsidiary
corporation thereof (a "10% Holder"), the purchase price of the Common Stock
covered by an ISO shall in no event be less than 110% of the fair market value
of the Common Stock at the time the ISO is granted.
(6) Terms of Options.
The term of each Option shall be fixed by the Board of Directors, but
in no event shall it be less than 1 year or more than 10 years from the date of
grant, subject to earlier termination as provided in Paragraphs 9 and 10. The
term of an ISO granted to a 10% Holder shall be no more than 5 years from the
date of grant.
(7) Exercise of Options.
(a) Subject to the provisions of the Stock Option Plan, an Option
granted to an employee under the Stock Option Plan shall become fully
exercisable at the earlier of (A) employee's actual retirement date, unless such
retirement is without the consent of the Board of Directors and is prior to the
employee's normal retirement date as determined under any qualified retirement
plan maintained by the Corporation at such time or, if no such plan is then in
effect, age 65 (but in no event prior to the first anniversary of the date of
grant), or (B) at such time or times as the Board of Directors in its sole
discretion shall determine at the time of the granting of the Option, except
that in no event shall any such Option be exercisable earlier than one year or
later than 10 years after its grant. Notwithstanding anything in this Stock
Option Plan to the contrary, NQSOs may be exercised in such manner and at such
time or times as the Board of Directors in its sole discretion shall determine,
except that in no event shall any such Option be exercisable earlier than one
year or later than 10 years after its grant.
(b) An Option may be exercised as to any or all full shares of Common
Stock as to which the Option is then exercisable.
(c) The purchase price of the shares of Common Stock as to which an
Option is exercised shall be paid in full in cash at the time of exercise;
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provided that, if permitted by the related Option Agreement or by the Board of
Directors, the purchase price may be paid, in whole or in part, by surrender or
delivery to the Corporation of securities of the Corporation having a fair
market value on the date of the exercise equal to the portion of the purchase
price being so paid. Fair market value shall be determined as provided in
Paragraph 5 for the determination of such value on the date of the grant.
(d) Except as provided in Paragraphs 9 and 10, no Option may be
exercised unless the original grantee thereof is then an Eligible Individual,
and unless the original grantee has remained in the continuous employ, or been a
director, officer, consultant, adviser, agent or independent representative of
the Corporation or any such subsidiary corporation or any combination thereof
for one year from the date of its grant.
(e) The Option holder shall have the rights of a stockholder with
respect to shares of Common Stock covered by an Option only upon becoming the
holder of record of such shares of Common Stock.
(f) Notwithstanding any other provision of this Stock Option Plan, the
Corporation shall not be required to issue or deliver any share of stock upon
the exercise of an Option prior to the admission of such share to listing on any
stock exchange or automated quotation system on which the Corporation's Common
Stock may then be listed.
(8) Nontransferability of Options.
No Options granted under the Stock Option Plan shall be transferable
other than by will or by the laws of descent and distribution, except that NQSOs
may be transferred to or for the benefit of (by trust) the spouse or lineal
descendants of a grantee while such grantee is entitled to exercise the Options,
subject to restrictions on transfer imposed by federal and state securities
laws, and if prior thereto the transferee agrees to be bound by the terms of the
Stock Option Plan and the Options, as the case may be ("Permitted Transferee").
Options may be exercised, during the lifetime of the holder, only by the holder,
or by his guardian or legal representative.
(9) Termination of Relationship to the Corporation.
(a) In the event that any original grantee shall cease to be an
Eligible Individual of the Corporation (or any subsidiary thereof), except as
set forth in Paragraph 10, such Option may (subject to the provisions of the
Stock Option Plan) be exercised (to the extent that the original grantee was
entitled to exercise such Option at the termination of his employment or service
as a director, officer, consultant, adviser, agent or independent
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representative, as the case may be) at any time within 90 days after such
termination, but not more than 10 years (five years in the case of a 10% Holder)
after the date on which such Option was granted or the expiration of the Option,
if earlier. In its sole and absolute discretion, the Board of Directors may
extend such 90 day time period with respect to a particular Optionee and amend
the relevant Agreement accordingly.
Notwithstanding the foregoing, if the position of an original grantee
shall be terminated by the Corporation or any subsidiary thereof for cause or if
the original grantee terminates his employment or position voluntarily and
without the consent of the Corporation or any subsidiary corporation thereof, as
the case may be (which consent shall be presumed in the case of normal
retirement), the Options granted to such person, whether held by such person or
by a Permitted Transferee, shall, to the extent not theretofore exercised,
forthwith terminate immediately upon such termination. The holder of any ISO may
not exercise such Option unless at all times during the period beginning with
the date of grant of the ISO and ending on the day 90 days before the date of
exercise he is an employee of the Corporation granting such Option, a subsidiary
thereof, or a corporation or a subsidiary corporation issuing or assuming a
stock option in a transaction to which Section 425(a) of the Code applies.
(b) Other than as provided in Paragraph 9(a), Options granted under
the Stock Option Plan shall not be affected by any change of duties or position
so long as the holder remains an Eligible Individual.
(c) Any Option Agreement may contain such provisions as the Board of
Directors shall approve with reference to the determination of the date
employment or other position or when the relationship terminates for purposes of
the Stock Option Plan and the effect of leaves of absence, which provisions may
vary from one another.
(d) Nothing in the Stock Option Plan or in any Option granted pursuant
to the Stock Option Plan shall confer upon any Eligible Individual or other
person any right to continue in the employ of the Corporation or any subsidiary
corporation thereof (or the right to be retained by, or have any continued
relationship with the Corporation or any subsidiary corporation thereof), or
affect the right of the Corporation or any such subsidiary corporation, as the
case may be, to terminate his employment, retention or relationship at any time.
The grant of any option pursuant to the Stock Option Plan shall be entirely in
the discretion of the Board of Directors and nothing in the Stock Option Plan
shall be construed to confer on any Eligible Individual any right to receive any
Option under the Stock Option Plan.
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(10) Death or Disability of Holder.
(a) If a person to whom an Option has been granted under the Stock
Option Plan shall die (and the conditions in subparagraph (b) below are met) or
become permanently and totally disabled (as such term is defined below) while
serving as an Eligible Individual and if the Option was otherwise exercisable
immediately prior to the happening of such event then the period for exercise
provided in Paragraph 9 shall be extended to six months after the date of death
of the original grantee, or in the case of the permanent and total disability of
the original grantee, to six months after the date of permanent and total
disability of the original grantee, but, in either case, not more than 10 years
(five years in the case of a 10% Holder) after the date such Option was granted,
or the expiration of the Option, if earlier, as shall be prescribed in the
original grantee's Option Agreement. An Option may be exercised as set forth
herein in the event of the original grantee's death, by a Permitted Transferee
or by the person or persons to whom the holder's rights under the Option pass by
will or applicable law, or if no such person has such right, by his executors or
administrators; or in the event of the original grantee's permanent and total
disability, by the holder or his guardian.
(b) In the case of death of a person to whom an Option was originally
granted, the provisions of subparagraph (a) apply if such person dies (i) while
in the employ of the Corporation or a subsidiary corporation thereof or while
serving as an Eligible Individual of the Corporation or a subsidiary corporation
thereof or (ii) within ninety days after the termination of such position other
than termination for cause, or voluntarily on the original grantee's part and
without the consent of the Corporation or a subsidiary corporation thereof,
which consent shall be presumed in the case of normal retirement.
(c) The term "permanent and total disability" as used above shall have
the meaning set forth in Section 22(e)(3) of the Code.
(11) Adjustments upon Changes in Capitalization.
Notwithstanding any other provision of the Stock Option Plan, each
Agreement may contain such provisions as the Board of Directors shall determine
to be appropriate for the adjustment of the number and class of shares of Common
Stock covered by such Option, the Option prices and the number of shares of
Common Stock as to which Options shall be exercisable at any time, in the event
of changes in the outstanding Common Stock of the Corporation by reason of stock
dividends, split-ups, split-downs, reverse splits, recapitalizations, mergers,
consolidations, combinations or exchanges of shares, spin-offs, reorganizations,
liquidations and the like. In the event of any such change in the outstanding
Common Stock of the Corporation, the aggregate number of shares of Common Stock
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as to which Options may be granted under the Stock Option Plan to any Eligible
Individual shall be appropriately adjusted by the Board of Directors, whose
determination shall be conclusive. In the event of (i) the dissolution,
liquidation, merger or consolidation of the Corporation or a sale of all or
substantially all of the assets of the Corporation, or (ii) the disposition by
the Corporation of substantially all of the assets or stock of a subsidiary of
which the original grantee is then an employee, officer or director, consultant,
adviser, agent or independent representative or (iii) a change in control (as
hereinafter defined) of the Corporation has occurred or is about to occur, then,
if the Board of Directors shall so determine, each Option under the Stock Option
Plan, if such event shall occur with respect to the Corporation, or each Option
granted to an employee, officer, director, consultant, adviser, agent or
independent representative of a subsidiary respecting which such event shall
occur, shall (x) become immediately and fully exercisable or (y) terminate
simultaneously with the happening of such event, and the Corporation shall pay
the optionee in lieu thereof an amount equal to (a) the excess of the fair
market value over the exercise price of one share on the date on which such
event occurs, multiplied by (b) the number of shares subject to the Option,
without regard to whether the Option is then otherwise exercisable.
(12) Effectiveness of the Stock Option Plan.
Options may be granted under the Stock Option Plan, subject to its
authorization and adoption by stockholders of the Corporation, at any time or
from time to time after its adoption by the Board of Directors. The exercise of
the Options shall be expressly subject to the condition that at the time of
exercise a registration statement under the Securities Act of 1933, as amended
(the "Act") shall be effective, or other provision satisfactory to the Board of
Directors shall have been made without violation of such Act, and such other
qualification under any state or federal law, rule or regulation as the
Corporation shall determine to be necessary or advisable shall have been
effected. If the shares of Common Stock issuable upon exercise of an Option are
not registered under such Act, and if the Board of Directors shall deem it
advisable, the Optionee may be required to represent and agree in writing (i)
that any shares of Common Stock acquired pursuant to the Stock Option Plan will
not be sold except pursuant to an effective registration statement under such
Act or an exemption from the registration provisions of the Act and (ii) that
such Optionee will be acquiring such shares of Common Stock for his own account
and not with a view to the distribution thereof and (iii) that the holder
accepts such restrictions on transfer of such shares, including, without
limitation, the affixing to any certificate representing such shares of an
appopriate legend restricting transfer as the Corporation may reasonably impose.
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(13) Termination and Amendment of the Stock Option Plan.
The Board of Directors of the Corporation may, at any time prior to
the termination of the Stock Option Plan, suspend, terminate, modify or amend
the Stock Option Plan; provided that any increase in the aggregate number of
shares of Common Stock reserved for issue upon the exercise of Options, any
increase in the maximum number of shares of Common Stock for which Options may
be granted to any Eligible Individual during any period, any reduction in the
purchase price of the Common Stock covered by any Option, any extension of the
period during which Options may be granted or exercised, or any material
modification in the requirements as to eligibility for participation in the
Stock Option Plan, and, if the Stock Option Plan is submitted to and approved by
stockholders of the Company, shall be subject to the approval of stockholders in
the manner provided by the laws of the State of Delaware, except that any such
increase, reduction or change that may result from adjustments authorized by
Paragraph 11 or adjustments based on revisions to the Code or regulations
promulgated thereunder (to the extent permitted by such authorities) shall not
require such approval. No suspension, termination, modification or amendment of
the Stock Option Plan may, without the express written consent of the Eligible
Individual (or his Permitted Transferee) to whom an Option shall theretofore
have been granted, adversely affect the rights of such Eligible Individual (or
his Permitted Transferee) under such Option.
(14) Financing for Investment in Stock of the Corporation.
The Board of Directors may cause the Corporation or any subsidiary to
give or arrange for financing, including direct loans, secured or unsecured, or
guaranties of loans by banks which loans may be secured in whole or in part by
assets of the Corporation or any subsidiary, to any Eligible Individual under
the Stock Option Plan as an incentive to the optionee becoming a new employee of
the Corporation, who shall have been so employed or so served for a period of at
least six months at the end of the fiscal year ended immediately prior to
arranging such financing; but the Board of Directors may, in any specific case,
authorize financing for an Eligible Individual who shall not have served for
such a period. Such financing shall be for the purpose of providing funds for
the purchase by the Eligible Individual of shares of Common Stock pursuant to
the exercise of an Option and/or for payment of taxes incurred in connection
with such exercise, and/or for the purpose of otherwise purchasing or carrying a
stock investment in the Corporation. The maximum amount of liability incurred by
the Corporation and its subsidiaries in connection with all such financing
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outstanding shall be determined from time to time in the discretion of the Board
of Directors. Each loan shall bear interest at a rate not less than that
provided by the Code and other applicable law, rules, and regulations in order
to avoid the imputation of interest at a higher rate. Each recipient of such
financing shall be personally liable for the full amount of all financing
extended to him. Such financing shall be based upon the judgment of the Board of
Directors that such financing may reasonably be expected to benefit the
Corporation, and that such financing as may be granted shall be consistent with
the Certificate of Incorporation and By-Laws of the Corporation or such
subsidiary, and applicable laws.
If any such financing is authorized by the Board of Directors, such
financing shall be administered by the Board of Directors.
(15) Severability.
In the event that any one or more provisions of the Stock Option Plan
or any Agreement, or any action taken pursuant to the Stock Option Plan or such
Agreement, should, for any reason, be unenforceable or invalid in any respect
under the laws of the United States, any state of the United States or any other
government, such unenforceability or invalidity shall not affect any other
provision of the Stock Option Plan or of such or any other Agreement but in such
particular jurisdiction and instance the Stock Option Plan and the affected
Agreement shall be construed as if such unenforceable or invalid provision had
not been contained therein or if the action in question had not been taken
thereunder.
(16) Applicable Law.
The Stock Option Plan shall be governed and interpreted, construed and
applied in accordance with the laws of the State of Delaware.
(17) Withholding.
A holder shall, upon notification of the amount due and prior to or
concurrently with delivery to such holder of a certificate representing such
shares of Common Stock, pay promptly any amount necessary to satisfy applicable
federal, state, local or other tax requirements.
(18) Miscellaneous.
1. The terms "parent," "subsidiary" and "subsidiary corporation" shall
have the meanings set forth in Sections 425(e) and (f) of the Code,
respectively.
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2. The term "disinterested person" shall mean a person who is not at
the time he exercises discretion in administering the Stock Option Plan eligible
and has not at any time within one year prior thereto been eligible for
selection as a person to whom stock may be allocated or to whom stock options
may be granted pursuant to the Stock Option Plan or any other plan of the
Corporation or any of its affiliates entitling the participants therein to
acquire stock or stock options of the Corporation or any of its affiliates.
3. The term "terminated for cause" shall mean termination by the
Corporation (or a subsidiary thereof) of the employment of or other relationship
with, the original grantee by reason of the grantee's (i) willful refusal to
perform his obligations to the Corporation (or a subsidiary thereof), (ii)
willful misconduct, contrary to the interests of the Corporation (or a
subsidiary thereof), or (iii) commission of a serious criminal act, whether
denominated a felony, misdemeanor or otherwise. In the event of any dispute
whether a termination for cause has occurred, the Board of Directors may by
resolution resolve such dispute and such resolution shall be final and
conclusive on all parties.
4. The term "change in control" shall mean an event or series of
events that would be required to be described as a change in control of the
Corporation in a proxy or information statement distributed by the Corporation
pursuant to Section 14 of the Securities Exchange Act of 1934 in response to
Item 6(e) of Schedule 14A promulgated thereunder, or any substitute provision
which may hereafter be promulgated thereunder or otherwise adopted. The
determination whether and when a change in control has occurred or is about to
occur shall be made by the Board of Directors in office immediately prior to the
occurrence of the event or series of events constituting such change in control.
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EXHIBIT 5
May 21, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Liuski International, Inc.
Registration Statement on Form S-8
1994 Stock Option Plan
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Dear Sirs:
As counsel to Liuski International, Inc., a Delaware corporation (the
"Company"), we have been requested to render this opinion for filing as Exhibit
5 to the Company's Registration Statement on Form S-8 (the "Registration
Statement"). Each term used herein that is defined in the Registration Statement
and not otherwise defined herein, shall have the meaning specified in the
Registration Statement.
The Registration Statement covers 650,000 shares of Common Stock, par
value $.01 per share, which are issuable upon the exercise of options
("Options") granted pursuant to the Company's 1994 Stock Option Plan.
We have examined the originals or photocopies or certified copies of
such records of the Company, certificates of officers of the Company and other
documents as we have deemed necessary or appropriate for the purpose of this
opinion. In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to originals of all documents submitted to us as certified copies or photocopies
and the authenticity of the originals of such latter documents.
Based on our examination mentioned above, and such other
investigations as we have deemed necessary, we are of the opinion that the
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May 21, 1996
Page 2
shares of Common Stock which are issuable upon exercise of Options will be, when
issued and paid for in the manner contemplated by such options, legally and
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
Fischbein Badillo Wagner Harding
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Liuski International, Inc.
Atlanta, Georgia
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our reports dated March 1, 1996, relating
to the consolidated financial statements and schedules of Liuski International,
Inc. included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
BDO Seidman, LLP
Atlanta, Georgia
May 21, 1996
