As filed with the Securities and Exchange Commission on October
29, 1996
Registration No. 333-___________
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DIVERSIFAX, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-
3637458
(State
or other jurisdiction (I.R.S.
employer
of
incorporation or organization)
identification number)
39
Stringham Avenue
Valley Stream, New York
11580
(Address of principal executive offices) (Zip
code)
DiversiFax, Inc. 1995 Incentive Stock Option Plan
(Full title of the plan)
Irwin A. Horowitz
Chief Executive Officer
and President
DIVERSIFAX, INC.
39 Stringham Avenue
Valley Stream, New York 11580
(Name and address of agent for service)
(516) 872-0650
(Telephone number, including area code, of agent
for service)
COPY TO:
Gary T. Moomjian, Esq.
Breslow & Walker
875 Third Avenue
New York, New York 10022
(212) 832-1930
<TABLE>
<PAGE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
S
<PAGE>
Title of securities
to be registeredC
<PAGE>
Amount to be
registered (1)C
<PAGE>
Proposed maximum
offering price per
shareC
<PAGE>
Proposed maximum
aggregate offering
priceC
<PAGE>
Amount of
registration
fee<PAGE>
Common Stock,
par value $.001
per share<PAGE>
100,000(2)<PAGE>
$4.125<PAGE>
$412,500<PAGE>
$125.00
<PAGE>
Total Registration Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $125.00
<FN>
<F1>
(1) In addition to this amount, such additional shares as may be issuable in accordance with the
terms of the Diversifax, Inc. 1995 Incentive Stock Option Plan (the "Plan") as stock
dividends or in the event of a stock split, reorganization, merger, recapitalization or similar
event affecting the 100,000 shares being registered.
<F2>
(2) Represents one five-year incentive stock option granted to an officer of the Registrant.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
Item 1. Plan Information.
To be distributed to participants in
Registrant's 1995 Incentive Stock Option Plan.
Item 2. Registrant Information and Employee Plan
Annual Information.
To be distributed to participants in
Registrant's 1995 Incentive Stock Option Plan.
<PAGE>
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"), by DiversiFax, Inc., a Delaware
corporation (the "Registrant"), are incorporated herein
by reference:
(a) The Registrant's Annual Report on
Form 10-KSB for the year ended November
30, 1995, as amended, filed pursuant to the
Securities Exchange Act of 1934 (the
"Exchange Act").
(b) The Registrant's Quarterly Reports
on Form 10-QSB for the quarters ended
February 29, 1996 and May 31, 1996, as
amended, and for the quarter ended August
31, 1996 filed pursuant to the Exchange Act.
(c) The description of the Registrant's
Common Stock, par value $.001 per share
(the "Common Stock"), as set forth in the
Registrant's Registration Statement of
Securities on Form 8-A, dated December 8,
1992.
In addition, all documents filed by the
Registrant with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment
which indicates that all the securities offered hereby
have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated
herein by reference and to be a part hereof from the
date of the filing of such documents with the
Commission.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock
offered hereby is being passed upon for the Registrant
by Breslow & Walker.
The financial statements of the Registrant as
of November 30, 1995 and for each of the years in the
two-year period ended November 30, 1995, have been
incorporated by reference herein in reliance upon the
report of Hoberman, Miller & Co., P.C., independent
certified public accountants, and upon the authority of
said firm as experts in accounting and auditing.
<PAGE>
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General
Corporation Law, the Registrant may or shall, subject
to various exceptions and limitations, indemnify its
directors or officers and may purchase and maintain
insurance therefor.
Pursuant to Section 102(b)(7) of the
Delaware General Corporation Law, the Registrant has
included in its Certificate of Incorporation a provision
eliminating the personal liability of directors to the
Registrant or its stockholders for damages for breach
of fiduciary duty. The principal effect of this
provision in the Registrant's Certificate of
Incorporation is to eliminate potential monetary
damage actions against any director for breach of such
director's duties as director except (a) for any breach
of the director's duty of loyalty to the Registrant or its
stockholders, (b) for acts or omissions not in good
faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the
General Corporation Law, which relates to a willful or
negligent violation of Section 160 (regarding the illegal
purchase or redemption of stock by a corporation) or
Section 173 of the General Corporation Law regarding
a corporation's illegal declaration or payment of
dividends, or (d) for any transaction from which the
director derived an improper personal benefit. This
provision does not affect the liability of any director
for acts or omissions occurring prior to the date of
adoption of this provision. In addition, Section 145 of
the Delaware General Corporation Law empowers a
corporation (a) to grant indemnification to any officer
or director where it is determined that 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 (b) to advance to an officer or director
the expenses of defending claims upon receipt of his
undertaking to repay any amount to which it is later
determined he is not entitled.
The foregoing statement is subject to the
detailed provisions of Sections 102 and 145 of the
Delaware General Corporation Law.
Item 7. Exemption from registration claimed.
Not applicable.
<TABLE>
<PAGE>
Item 8. Exhibits.
INDEX TO EXHIBITS
<CAPTION>
<C>Sequentially
Numbered Page
<S>Exhibit <C>Description Where Located
4(a) DiversiFax, Inc. 1995 Incentive Stock Option Plan 7
4(b) Form of Incentive Stock Option Agreement 14
4(c) Restated Certificate of Incorporation* --
4(d) By-laws* --
5 Opinion of Breslow & Walker, LLP, counsel to the 17
Company, as to the legality of the shares being
registered.
23(a) Consent of Hoberman, Miller & Co., P.C. 18
23(b) Consent of Breslow & Walker, LLP (contained in --
Exhibit 5).
<FN>
<F1>
*Incorporated by reference to the Registrant's Registration Statement on Form S-1 (Registration No.
33-46580)
</FN>
</TABLE>
<PAGE>
Item 9. Undertakings.
(a) The Registrant hereby undertakes that it
will:
(1) File, during any period in which it
offers or sells securities, a post-effective
amendment to this Registration Statement to
include any additional or changed material
information on the plan of distribution.
(2) For determining liability under the
Securities Act of 1933, as amended (the
"Securities Act"), treat each post-effective
amendment as a new registration statement
of the securities offered, and the offering of
the securities at that time to be the initial
bona fide offering.
(3) File a post-effective amendment to
remove from registration any of the
securities that remain unsold at the end of
the offering.
(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 Commission such indemnification is
against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection
with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as
expressed in the Securities Act and will be governed
by the final adjudication of such issue.
<PAGE>
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 Valley
Stream, and the State of New York on the 25th day of
October, 1996.
DIVERSIFAX, INC.
By: /s/ Irwin
A. Horowitz
Irwin A.
Horowit
z,
Preside
nt
(Principal
Executive, Financial
and
Accounting Officer)
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>
S>Signature<C
<PAGE>
Title<C> Date
<PAGE>
/s/ Irwin A. Horowitz
Irwin A. Horowitz
<PAGE>
Director<PAGE>
October 25, 1996<PAGE>
/s/ Kenneth Ross Wolfe
Kenneth Ross Wolfe<PAGE>
Director October 25, 1996
/s/ Eugene Bilotti
Eugene Bilotti <PAGE>
Director<PAGE>
October 25, 1996<PAGE>
/s/ Mario DiNatale
Mario DiNatale <PAGE>
Director<PAGE>
October 25, 1996<PAGE>
Exhibit 4(a)
DIVERSIFAX, INC.
1995 Incentive Stock Option Plan
(as amended through September 9, 1996)
1. Purpose of the
Plan. The purpose of the DiversiFax, Inc. 1995
Incentive Stock Option Plan (the "Plan") is to promote
the success of DiversiFax, Inc. (the "Company"), to
attract and retain the best available personnel for
positions of responsibility, and to provide additional
incentives to the officers and other employees of the
Company and any present or future Parent or
Subsidiary of the Company. Pursuant to the Plan,
such persons will be given the opportunity to acquire
common stock of the Company, par value $0.001 per
share (the "Common Stock"), through the grant of
incentive stock options. The Plan and the options to
be granted hereunder (the "Options") are intended to
be "incentive stock options" as defined in Section 422
of the Internal Revenue Code of 1986, as amended (the
"Code").
2. Definitions.
In addition to other terms defined elsewhere herein, the
following capitalized terms used herein have the
following definitions:
"Board" means the Board of Directors of the
Company.
"Employee" means any person (who may be an
officer or a director of the Company) employed by the
Company (within the meaning of Section 3401(c) of
the Code and the regulations promulgated thereunder),
any successor corporation by merger or consolidation,
or a Parent or Subsidiary of the Company.
"Optionee" means an Employee to whom an
Option has been granted.
"Parent" means any present or future
corporation which would be a "parent corporation" as
defined in Subsections (e) and (g) of Code Section 424.
When the context requires, such determination shall be
made as if the Company were the employer
corporation.
"Share" means one share of Common Stock,
adjusted if applicable in accordance with paragraph 8
of the Plan.
"Subsidiary shall mean any present or future
corporation which would be a "subsidiary
corporation" as defined in Subsections (f) and (g) of
Code Section 424. When the context requires, such
determination shall be made as if the Company were
the employer corporation.
"Underlying Stock" shall mean the Shares
issuable upon the exercise of an Option.
3. Shares
Subject to the Plan. The aggregate number of Shares
which may be issued upon the exercise of all Options
granted pursuant to the Plan shall not exceed
500,000 Shares, unless adjusted in accordance with
paragraph 8. Such Shares may be either authorized
but unissued Shares or treasury shares. If an Option
shall expire without having been exercised in full,
then, unless the Plan theretofore shall have been
terminated, the unpurchased Underlying Shares
which were subject thereto shall be available again
for issuance under the Plan.
4.
Administration.
(a) The
Plan shall be administered by a committee (the
"Option Committee") comprised of either the entire
Board or, at the Board's discretion, a committee
thereof appointed by the Board and consisting of two
or more members of the Board who are
"disinterested persons". The term "disinterested
person" shall mean an administrator of the Plan who,
at any time within one year prior to his/her service
as administrator of the Plan, has not received, and
who, during the term of his/her service, will not
receive, a discretionary grant or award of a stock
option or stock appreciation right under the Plan or
any other plan or practice of the Company or any of
its affiliates. Any such person otherwise shall
comply with the requirements of Rule 16b-3
promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as from
time to time in effect. Any standing or other
committee of the Board which otherwise satisfies the
requirements of the Option Committee may be
authorized by the Board to serve as the Option
Committee, whether or not the name of such
committee includes the term "Option Committee".
(b) The
Option Committee shall be authorized (but only to
the extent not contrary to the express provisions of
the Plan or to resolutions adopted by the Board) to
interpret the Plan, to prescribe, amend, and rescind
rules and regulations relating to the Plan, to
determine the recipients, terms, form, and content of
Options to be granted under the Plan, and to make
other determinations which it deems necessary or
appropriate for the proper administration of the Plan,
and shall have and may exercise such other powers
and authority as may be delegated to it by the Board
from time to time. A majority of the entire Option
Committee shall constitute a quorum, and the action
of a majority of the Option Committee members
present at any meeting at which a quorum is present
shall be the action of the Option Committee. All
decisions, determinations, and interpretations of the
Option Committee shall be final and conclusive on
all persons affected thereby and shall be consistent
with Code Section 422.
(c) No
member of the Option Committee shall be liable for
any action or determination made in good faith with
respect to the Plan or any Option.
(d) The
President or such other officers of the Company as
the Option Committee may designate, or a Secretary
of the Option Committee designated by majority
resolution of the Option Committee, shall execute
such certificates, option agreements, and other
documents as may be necessary to evidence the
decisions of the Option Committee and/or implement
and carry out the Plan. The President or other
officers of the Company, when so acting, shall be
deemed to be acting solely in a ministerial capacity,
and the acts of such officers of the Company shall
not be construed as giving them any discretionary
authority over the granting of Options or the
administration of the Plan.
5. Eligibility.
Options may be granted to any Employee who, in the
opinion of the Option Committee, has or is expected
to make contributions to the success of the Company.
An Employee who has been granted an Option or
any other options or rights, under any other plan or
otherwise, may be granted additional Options if
otherwise eligible. No Options may be granted to a
member of the Board if such member is not a full-
time Employee. In addition, no Option may be
granted to an Employee if, as the result of such
grant, the $100,000 per year limitation set forth in
Section 422(d) of the Code would be exceeded.
6. Terms and
Conditions of Options. Options granted pursuant to
the Plan shall be evidenced by written agreements in
such form as the Option Committee from time to
time shall determine, which agreements shall comply
with and be subject to the following terms and
conditions:
(a) Option
Exercise Price. The price per Share at which any
Option may be exercised shall not be less than the
Fair Market Value (as defined below) of the
Underlying Stock at the time such Option is granted.
The exercise price of an Option granted to an
Optionee who owns (within the meaning of Section
424(d) of the Code) more than 10% of the total
combined voting power of all classes of stock of the
Company, or of any of its Parent or Subsidiary
corporations, at the time such Option is granted shall
not be less than 110% of the Fair Market Value of
the Underlying Stock at the time the Option is
granted. No Option may be granted at a price per
Share which is less than the par value of the
Underlying Stock. As used herein, Fair Market
Value shall mean fair market value determined in
good faith by the Option Committee on a basis
consistent with the provisions of Section 422 of the
Code.
(b) Option
Term. The term of each Option shall be established
by the Option Committee, but in no event shall
exceed five (5) years from the date of grant of the
Option.
(c)
Nontransferability of Options. By their terms,
Options shall not be transferable except by will or by
the laws of descent and distribution and shall be
exercisable during an Optionee's lifetime only by the
Optionee.
(d) Time of
Exercise. Any Option granted pursuant to the Plan
shall be exercisable under such conditions as are
determined by the Option Committee at the time of
grant, including performance criteria with respect to
the Company and/or the Optionee, and as are
permissible under the terms of the Plan.
(e) Other
Provisions. The written agreements evidencing
Options granted pursuant to the Plan shall contain
such other provisions not inconsistent with the terms
of the Plan as the Option Committee shall deem
advisable, including, without limitation, restrictions
upon the exercise of the Option. Options may
contain other terms or restrictions as determined by
the Option Committee in its discretion.
7. Exercise of
Options.
(a)
Procedure for Exercise. Options may be exercised
in whole or in part by written notice, delivered by
hand or mailed by prepaid registered or certified
mail, addressed to the President, Treasurer, or
Secretary of the Company at the Company's
executive offices, which notice shall specify the date
the Option to be exercised was granted and the
number of whole Shares to which such exercise
applies. No Option may be exercised to any extent
until all conditions set forth in the Plan and in such
Option shall have been satisfied.
(b)
Payment. Payment for all Shares purchased by the
exercise of an Option shall be made in cash, by
delivery of Shares owned by the Optionee having an
aggregate Fair Market Value on the date of exercise
equal to the aggregate exercise price of the portion
of the Option being exercised, or, to the extent
permitted by law, some combination of the foregoing
as may be fixed by the Option Committee. Payment
shall be made at the time that an Option or any part
thereof is exercised, and no Shares shall be issued
until full payment therefor has been made. Until
such issuance, no right to vote, receive dividends, or
any other rights as a stockholder of the Company
shall exist with respect to such Shares,
notwithstanding the exercise of such Option.
(c)
Termination of Employment of an Optionee.
(1)
Except as otherwise provided below, if an Optionee
shall cease to be employed by the Company or its
Parent or Subsidiary, then the Optionee shall have
the right to exercise his Option at any time within
three months after such cessation of employment, but
only as to such number of Shares as to which his
Option was exercisable at the date of such cessation
of employment. The time of cessation of
employment and whether an authorized leave of
absence or absence on military of government
service shall constitute cessation of employment, for
the purpose of the Plan, shall be determined by the
Option Committee, which determination shall be
final and conclusive on all persons affected thereby.
(2) If an
Optionee's termination of employment with the
Company or its Parent or Subsidiary shall be by
reason of his permanent and total disability (within
the meaning of Section 22(e)(3) of the Code), the
three month period referenced in paragraph 7(c)(1)
above shall be extended to twelve (12) months, and
his Option may be exercised by a conservator,
guardian, or other fiduciary ("Legal Representative")
duly appointed to act on behalf of the Optionee. The
Company may require such Legal Representative to
furnish such proof of his or her authority, including
a bond or indemnity agreement, as the Company
may reasonably require. The cost of any such bond
shall be the responsibility of the persons seeking to
exercise the Options.
(3) If an
Optionee's employment is terminated by the
Company for "cause", the Optionee's right to
exercise his Option shall terminate at the time notice
of termination of employment is given by the
Company to such Optionee. For purposes of this
provision, "cause" shall include committing a
criminal act against, or in derogation of the interests
of the Company; divulging confidential information
about the Company; interfering with the relationship
between the Company and any supplier, client,
customer or similar person; or performing any
similar action that the Option Committee, in its sole
discretion, may deem to be sufficiently injurious to
the interests of the Company to constitute "cause"
for termination.
(4) If an
Optionee dies while in the employ of the Company
or its Parent or Subsidiary, or within three months
after cessation of such employment, his estate,
personal representative, or the person that acquires
his Option by bequest or inheritance or by reason of
his death shall have the right to exercise his Option
at any time within twelve months from the date of
his death, but only as to the number of Shares as to
which his Option was exercisable on the date of his
death. In any such event, unless so exercised within
the period as aforesaid, the Option shall terminate at
the expiration of said period.
(5)
Notwithstanding the provisions of the foregoing
subparagraphs of this paragraph 7(c) or any other
provisions of the Plan, in no event may an Option be
exercised by anyone after five (5) years from the
date it was granted.
(6)
Nothing in the Plan or in any Option shall confer
upon any Optionee the right to continue in the
employ of the Company or any Parent or Subsidiary
of the Company or shall interfere in any way with
the right of the Company or such Parent or
Subsidiary to terminate the employment of an
Optionee at any time.
8. Changes in
Capital. If the outstanding Common Stock shall at
any time be changed or exchanged by declaration of
a stock dividend, stock split, combination of shares,
recapitalization, merger, consolidation or other
corporate reorganization in which the Company is
the surviving corporation, then the number and kind
of Shares subject to the Plan and the Option exercise
prices shall be appropriately and equitably adjusted.
In the event of a dissolution or liquidation of the
Company or a merger, consolidation, sale of all or
substantially all of its assets, or other corporate
reorganization in which the Company is not the
surviving corporation, or any merger in which the
Company is the surviving corporation but the holders
of the Common Stock receive securities of another
corporation, any outstanding Options hereunder shall
terminate; provided; however, in such event, if no
provision has been made for a substitution pursuant
to the following sentence, then immediately prior to
such dissolution, liquidation, merger, consolidation,
sale of assets, or reorganization, or such merger in
which the Company is the surviving corporation but
the holders of its Common Stock receive securities of
another corporation, each Optionee shall have the
right to exercise any unexpired Option in whole or in
part without regard to the date on which the Option
otherwise would be first exercisable. Nothing herein
contained shall prevent the substitution of a new
option by the surviving corporation. The existence
of the Plan or Options hereunder shall not in any
way prevent any transaction described herein and no
holder of an Option shall have the right to prevent
any such transaction.
9. Time of
Granting Options. For all purposes, the date of
grant of an Option under the Plan shall be the date
specified in such grant. Notice shall be given to
each Employee to whom an Option has been granted
within a reasonable time after the date of such grant.
10. Effective
Date; Approval of Stockholders. The Plan was
adopted by the Board on September 5, 1995, the
effective date of the Plan. The Plan shall be
presented to stockholders of the Company for
approval, or may be approved by a consent of
stockholder(s), for purposes of obtaining favorable
treatment under Section 16(b) of the Exchange Act.
11. Modification
of Options. At any time and from time to time the
Board may authorize the Option Committee to direct
execution of an instrument providing for the
modification, extension, or renewal of any
outstanding Option; provided, however, no such
modification, extension, or renewal shall confer on
the Optionee any right or benefit which could not
then be conferred on him by the grant of a new
Option nor shall it impair such Option without the
consent of the Optionee.
12. Amendment
and Termination of the Plan. The Board may alter,
suspend, or discontinue the Plan, except that no
action of the Board may increase (other than as
provided in paragraph 8 hereof) the maximum
number of Shares subject to Options or available for
the grant of Options under the Plan, reduce the
applicable minimum Option exercise price, extend
the maximum period within which Options may be
exercised under the Plan, or change the designation
of persons eligible to receive Options under the Plan,
unless such action of the Board shall be subject to
approval or ratification by the stockholders of the
Company. Without the consent of the Optionee, no
action of the Board shall impair any then outstanding
Option. Unless sooner terminated by the Board, the
right to grant options under the Plan shall terminate
on the earlier of October 28, 1996 or the issuance of
all Shares reserved for issuance under the Plan.
13. Conditions
Upon Issuance of Shares. No Shares shall be
delivered pursuant to the exercise of any Option
unless the delivery of such Shares shall comply (in
the opinion of counsel to the Company) with all
relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended
(the "Act"), the rules and regulations promulgated
thereunder, any applicable state securities laws, and
the requirements of any stock exchange upon which
the Common Stock may then be listed. As a
condition to the exercise of an Option, the Company
may require the exercising Optionee to make such
written representations and warranties as may be
necessary to assure the availability of an exemption
from any registration requirements of federal or state
securities laws. Certificates representing Shares
issued upon the exercise of any Option may bear a
legend restricting transfer of the Shares except in
compliance with federal and state securities statutes
or an exemption therefrom, if available; failure of
any certificates to contain such a legend shall not
constitute a waiver by the Company of any such
registration requirements. The Company, in its
discretion, may require any Optionee to bear (a) his
or her proportionate share of the Company's costs of
the registration of his Underlying Shares under the
Act or any other federal or state securities laws, or
(b) the Company's cost of obtaining the opinion of
its legal counsel as to the availability of any
exemption from the Act or any other applicable
federal or state securities laws. The foregoing shall
not be construed to obligate the Company to effect
any registration under the Act or other securities
laws.
14. Gender and
Number.
(a) The use
of any gender herein shall be construed to include all
other genders, unless the context clearly indicates
that less than all the genders is intended.
(b) The use
of the singular or of the plural herein shall be
construed to include both the singular and the plural,
unless the context clearly indicates that only the
singular or only the plural is intended.<PAGE>
Exhibit 4(b)
Optionee:
Certificate No. ISO-
Effective Date:
OPTION TO PURCHASE SHARES OF COMMON
STOCK
OF
DIVERSIFAX, INC.
Option to Purchase
Shares Of Common Stock
VOID AFTER 5:00 P.M., , , AS
PROVIDED HEREIN
DiversiFax, Inc. (the "Company"),
intending to be legally bound, hereby grants to the
Optionee named above an option (this "Option") to
purchase all or any part of an aggregate of
shares (the "Shares") of the Company's common stock,
par value $0.001 per share (the "Common Stock"),
subject to the terms and conditions of the Company's
1995 Incentive Stock Option Plan (the "Plan"), and as
hereinafter set forth. Any conflict between the terms
hereof and the Plan shall be resolved in accordance
with the Plan. Capitalized terms not otherwise defined
herein shall have the meaning ascribed to the them in
the Plan.
1. Option Exercise Price. The Shares
may be purchased pursuant to this Option at a price of
$ per Share (the "Option Exercise Price"),
subject to adjustment as hereinafter provided.
2. Time of Exercise. This Option
shall not be exercisable before 9:00 a.m. Eastern Time
on , and shall expire at 5:00 p.m.,
Eastern Time on , .
3. Option Exercise. To exercise this
Option, or any part hereof, the Optionee shall (a)
surrender this Option certificate to the Company at its
principal office; (b) deliver a notice to the President,
Treasurer, or Secretary of the Company specifying the
number of whole Shares to be purchased; (c) pay the
full exercise price for the Shares to be purchased; and
(d) furnish to the Company such other instruments or
documents as its legal counsel reasonably may require.
Payment for the Shares purchased upon the exercise of
this Option shall be made in cash, by delivery of
Shares owned by the Optionee having an aggregate
Fair Market Value on the date of exercise equal to the
aggregate exercise price of the portion of the Option
being exercised, or some combination of the foregoing
as may be fixed by the Option Committee. Payment
shall be made at the time that an Option or any part
thereof is exercised, and no Shares shall be issued until
full payment therefor has been made. If less than all
Shares are purchased, then the Company shall issue, in
addition to the Shares, a certificate evidencing the
number of Shares still covered by this Option, or shall
mark a notation on this Option certificate setting forth
the number of Shares remaining unexercised.
4. Changes in Capital.
a. If the outstanding Common
Stock shall at any time be changed or exchanged by
declaration of a stock dividend, stock split,
combination of shares, recapitalization, merger,
consolidation or other corporate reorganization in
which the Company is the surviving corporation, then
the number and kind of Shares and the Option Exercise
Price shall be appropriately and equitably adjusted.
b. In the event of a dissolution
or liquidation of the Company or a merger,
consolidation, sale of all or substantially all of its
assets, or other corporate reorganization in which the
Company is not the surviving corporation, or any
merger in which the Company is the surviving
corporation but the holders of the Common Stock
receive securities of another corporation, this Option
shall terminate; provided, however, in such event, if
no provision has been made for a substitution of a new
option by the surviving corporation, then immediately
prior to such dissolution, liquidation, merger,
consolidation, sale of assets, or reorganization, or such
merger in which the Company is the surviving
corporation but the holders of its Common Stock
receive securities of another corporation, the Optionee
shall have the right to exercise this Option, in whole or
in part, without regard to the date on which this Option
otherwise would be first exercisable.
5. Nontransferability of Option.
During the lifetime of the Optionee, this Option shall
be exercisable only by the Optionee. This Option is
not assignable or transferable, except by will or by the
laws of descent and distribution.
6. Termination of Employment. If
the Optionee shall cease to be employed by the
Company, then the Optionee shall have the right,
subject to the provisions of the Plan, to exercise this
Option at any time within three months after such
cessation of employment, but only as to such number
of Shares as to which this Option was exercisable at
the date of such cessation of employment.
Notwithstanding the provisions of the preceding
sentence, (a) if cessation of employment occurs by
reason of permanent and total disability, such three
month period shall be extended to twelve months; (b)
if the Optionee is terminated for "cause" (as defined in
the Plan), then the Optionee's right to exercise this
Option shall terminate at the time notice of termination
of employment is given by the Company to the
Optionee; and (c) if the Optionee dies while in the
employ of the Company or within three months after
cessation of such employment, then his estate, personal
representative, or the person that acquires this Option
by bequest or inheritance or by reason of his death
shall have the right, subject to the provisions of the
Plan, to exercise this Option at any time within twelve
months from the date of his death, but only as to the
number of Shares as to which this Option was exer-
cisable on the date of his death. In any such event,
unless so exercised within the period as aforesaid, this
Option shall terminate at the expiration of said period.
Notwithstanding the foregoing, in no event may this
Option be exercised after five (5) years from the date
it was granted.
7. Binding Effect. This Option shall
be binding upon the heirs, executors, administrators
and successors of the parties hereto.
8. Issuance of Certificates Upon
Exercise of Option. Certificates representing the
Shares for which payment is made upon exercise of
this Option shall be issued as soon as practicable
thereafter. The Company, however, shall not be
required to issue or deliver a certificate for any Shares
until it has complied with all requirements of the
Securities Act of 1933, as amended (the "Act"), the
Securities Exchange Act of 1934, as amended, each
national securities exchange and/or automated quotation
system, if any, on which the Common Stock is then
listed or included, and all applicable state laws in
connection with the issuance or sale of such Shares.
Until the issuance of the certificate for such Shares, the
Optionee shall have no rights of a stockholder with
respect to the Shares. The certificate to be issued may
include any legends which the Company deems
appropriate.
9. Nature of Shares Issuable Upon
Exercise of Option. The Shares are not presently
registered under the Act and must be held indefinitely
unless they are subsequently registered under the Act
or an exemption from such registration is available.
The Company has not covenanted to file a registration
statement under the Act covering the Shares nor to take
such action as may be necessary to permit sales under
Rule 144 of the Act. The Optionee is advised to
inquire of the appropriate officer of the Company at
any time that the Optionee may wish to sell any Shares
obtained from the exercise of this Option.
DIVERSIFAX, INC.
By:
Irwin
A.
Horo
witz,
Presid
ent
and
Chief
Execu
tive
Office
r
<PAGE>
EXHIBIT 5
October 25, 1996
Board of Directors
DiversiFax, Inc.
39 Stringham Avenue
Valley Stream, New York 11580
Gentlemen:
It is our opinion that the securities being
registered with the Securities and Exchange
Commission pursuant to the Registration Statement of
DiversiFax, Inc. on Form S-8 will, when issued, be
legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an
exhibit to the aforesaid Registration Statement and
further consent to the reference made to us under the
caption "Interests of Named Experts and Counsel" in
such Registration Statement.
Very truly yours,
/s/ Breslow & Walker, LLP
Breslow & Walker, LLP
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement of DiversiFax, Inc. and
Subsidiaries on Form S-8 relating to the DiversiFax,
Inc. 1995 Incentive Stock Option Plan, of our report
dated March 7, 1996, appearing in the Annual Report
on Form 10-KSB of DiversiFax, Inc. and Subsidiaries
for the year ended November 30, 1995, and the use of
our name, and the statements with respect to us, under
the heading "Experts" in the Prospectus.
HOBERMAN,
MILLER & CO., P.C.
October 29, 1996
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