AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 9, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SIBONEY CORPORATION
(Exact name of registrant as specified in its charter)
Maryland 73-0629975
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8000 Maryland Avenue, Suite 1040
P.O. Box 16184
St. Louis, Missouri 63105
(Address of Principal Executive Offices) (Zip Code)
Siboney Corporation
1997 Incentive Stock Option Plan
(Full title of the Plan)
Timothy J. Tegeler
President and Chief Executive Officer
Siboney Corporation
8000 Maryland Avenue, Suite 1040
P.O. Box 16184
St. Louis, Missouri 63105
(Name and address of agent for service)
(314) 725-6141
(Telephone number, including area
code, of agent for service)
Copies of all correspondence to:
John P. Walsh, Esq.
Gallop, Johnson & Neuman, L.C.
Interco Corporate Tower
101 South Hanley Road
St. Louis, Missouri 63105
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share(2) price fee
- ---------- ---------- --------- ----------- ------------
Common Stock 800,000 $0.135 $108,000 $33
$.10 par
(1) Represents maximum number of shares available for issuance under the Plan.
(2) Estimated solely for the purpose of calculating the registration fee. Such
estimate has been calculated in accordance with Rule 457(h) under the
Securities Act of 1933, and is based upon the average of the bid and asked
price per share of the Registrant's Common Stock as reported on the Nasdaq
OTC Bulletin Board on September 8, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference:
(a) The Registrant's annual report filed on Form 10-K for the fiscal
year ended December 31, 1996 pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Registrant's quarterly reports filed on Form 10-Q for the three
month periods ended March 31, 1997 and June 30, 1997 pursuant to Section 13 or
15(d) of the Exchange Act; and
(c) The description of the Registrant's common stock which is contained
in the Registrant's registration statement filed under Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description;
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby 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 documents. Any statement
contained in a document incorporated by reference herein and filed prior to the
filing hereof shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein modifies
or supersedes such statement, and any statement contained herein or in any other
document 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 in any other subsequently filed document which also is
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the securities offered hereby is being passed on by
Gallop, Johnson & Neuman, L.C. Members of such firm are the beneficial owners of
200,000 shares of the Registrant's Common Stock. Mr. Alan G. Johnson, a member
of the firm, serves as a Director of the Registrant.
Item 6. Indemnification of Directors and Officers
Section 2-418 of the General and Business Corporation Law of the State
of Maryland permits indemnification by a corporation of certain officers,
directors, employees and agents. Consistent therewith, Article VII, Section 8 of
the Company's Bylaws requires that the Company indemnify such persons against
all cost and legal or other expenses, including cost or amounts of settlement,
reasonably incurred by or imposed upon them, or any of them, in connection with
II-1
<PAGE>
or resulting from any claim, action, suit or proceeding in which they, or any of
them, are made parties, or a party, by reason of being or having been directors
or officers or a director or officer of the Company. Such right of
indemnification shall not apply, however, in relation to matters as to which any
such person shall be finally adjudged in any action, suit or proceeding to be
liable for negligence or misconduct in the performance of his duty as such
Director or Officer, provided, however, that an entry of a judgment by consent
as part of a settlement shall not be deemed a final adjudication of liability
for negligence or misconduct in the performance of duty.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
registration statement (or the most recent
post-effective amendment hereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this registration statement or any
material change to such information in this
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference 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.
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<PAGE>
(b) 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 this
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.
(c)-(g) Not Applicable.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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.
(i) Not Applicable.
(j) Not Applicable.
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<PAGE>
SIGNATURES
----------
The Registrant. 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 County of St. Louis, State of Missouri, on September 9,
1997.
SIBONEY CORPORATION
By: /s/ Timothy J. Tegeler
Timothy J. Tegeler, President and
Chief Executive and Financial Officer
and Principal Accounting Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Siboney Corporation, Inc.,
hereby constitute and appoint Timothy J. Tegeler the true and lawful attorney
and agent of each of us to execute in the name, place and stead of each of us
(individually and in any capacity stated below) any and all amendments to this
Registration Statement on Form S-8 and all instruments necessary or advisable in
connection therewith and to file the same with the Securities and Exchange
Commission, to have the power to act and authority to do and perform in the name
and on behalf of each of the undersigned every act whatsoever necessary or
advisable to be done in the premises as fully and to all intents and purposes as
any of the undersigned might or could do in person, and we hereby ratify and
confirm our signatures as they may be signed by our said attorney and agent to
any and all such amendments and instruments.
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<PAGE>
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.
Name Title Date
---- ----- ----
/s/ Timothy J. Tegeler President and Chief Executive and September 9, 1997
Timothy J. Tegeler Financial Officer and Principal
Accounting Officer and Director
Director September 9, 1997
Thomas G. Keeton
/s/ Rebecca M. Braddock Director September 9, 1997
Rebecca M. Braddock
Director September 9, 1997
Alan G. Johnson
/s/ Ernest R. Marx Director September 9, 1997
Ernest R. Marx
<PAGE>
FORM S-8
SIBONEY CORPORATION
EXHIBIT INDEX
Exhibit
Number Description Page
- ------ ----------- ----
4.1 Siboney Corporation 1997 Incentive Stock Option Plan,
filed herewith
5.1 Opinion of Gallop, Johnson & Neuman, L.C.,
filed herewith
23.1 Consent of Rubin, Brown, Gornstein & Co., LLP, independent
auditors, filed herewith
23.2 Consent of Gallop, Johnson & Neuman, L.C.
(included in Exhibit 5.1)
24.1 Power of Attorney (included on signature
page of the registration statement)
SIBONEY CORPORATION
1997 INCENTIVE STOCK OPTION PLAN
1. Purpose of the Plan
The Siboney Corporation 1997 Incentive Stock Option Plan ("Plan") is
intended to provide additional incentive to certain valued and trusted employees
of Siboney Corporation, a Maryland corporation (the "Company"), by encouraging
them to acquire shares of the $.10 par value common stock of the Company (the
"Stock") through options to purchase Stock granted under the Plan ("Options").
The purpose for granting such Options and making the purchase of the Stock
possible is to increase the proprietary interest of such employees in the
business of the Company and provide them with an increased personal interest in
the continued success and progress of the Company. The intended result is to
promote the interests of both the Company and its shareholders.
Options granted under the Plan are intended to qualify as "incentive
stock options" ("ISOs") within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"). Each employee granted an Option
will receive and be required to accept a Stock Option Agreement with the Company
(the "Option Agreement"), which sets forth the terms and conditions of the
Option, in accordance with this Plan.
2. Administration of Plan
The Plan will be administered by the Board of Directors of the Company
(the "Board").
The Board shall have the sole power:
(a) subject to the provisions of the Plan, to determine the terms and
conditions of all Option Agreements; to construe and interpret the Plan and
Options granted under it; to determine the time or times an Option may be
exercised, the number of shares as to which an Option may be exercised at any
one time, and when an Option may terminate; to establish, amend and revoke rules
and regulations relating to the Plan and its administration; and to correct any
defect, supply any omission, or reconcile any inconsistency in the Plan, or in
any Option Agreement, in a manner and to the extent it shall deem necessary, all
of which determinations and interpretations made by the Board shall be
conclusive and binding on all Optionees and on their legal representatives and
beneficiaries; and
(b) to determine all questions of policy and expediency that may arise
in the administration of the Plan and generally exercise such powers and perform
such acts as are deemed necessary or expedient to promote the best interests of
the Company.
The Board may vary the terms and provisions of the individual Option
Agreements in its discretion.
<PAGE>
3. Shares Subject to the Plan
Subject to the provisions of paragraph 13, the Stock that may be issued
pursuant to Options granted under the Plan shall not exceed in the aggregate
Eight Hundred Thousand (800,000) shares of $.10 par value common stock of the
Company. If any Options granted under the Plan terminate, expire or are
surrendered without having been exercised in full, the number of shares of Stock
not purchased under such Options shall be available again for the purpose of the
Plan. The Stock to be offered for purchase upon the grant of an Option may be
authorized but unissued Stock or Stock previously issued and outstanding and
reacquired by the Company.
4. Persons Eligible for Options
All employees of the Company, including employees who are members of
the Board, shall be eligible to receive the grant of Options under the Plan. The
Board shall determine the employees to whom Options shall be granted, the time
or times such Options shall be granted, the number of shares to be subject to
each Option and the times when each Option may be exercised. The Board shall
seek information, advice and recommendations from management to assist the Board
in its independent determination as to the employees to whom Options shall be
granted. An employee who has been granted an Option (an "Optionee"), if he or
she is otherwise eligible, may be granted additional Options.
5. Purchase Price
The purchase price of each share of Stock covered by each Option
("Purchase Price") shall not be less than one hundred percent (100%) of the Fair
Market Value Per Share (as defined below) of the Stock on the date the Option is
granted. However, if and when an Option is granted the Optionee receiving the
Option owns or will be considered to own, by reason of Section 424(d) of the
Code, more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company, the purchase price of the Stock covered by the
Option shall not be less than one hundred and ten percent (110%) of the Fair
Market Value Per Share of the Stock on the date the Option is granted.
"Fair Market Value Per Share" of the Stock shall mean: (i) if the Stock
is traded only otherwise than on a securities exchange and is quoted on the
National Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ"), the closing quoted selling price of the Stock on the date of grant
of the Option, as reported by the Wall Street Journal; (ii) if the Stock is
admitted to trading on a securities exchange, the closing quoted selling price
of the Stock on the date of grant of the Option, as reported in the Wall Street
Journal; or (iii) if the Stock is traded only otherwise than on a securities
exchange and is not quoted on NASDAQ, the closing quoted price of the Stock on
the date of grant of the Option as quoted on the NASDAQ OTC Bulletin Board. In
any case, if there were no sales or quoted market of the Stock on the date of
the grant of an Option, the Fair Market Value Per Share shall be determined by
the Board in accordance with Section 20.2031-2 of the Federal Estate Tax
Regulations.
6. Duration of Options
Any outstanding Option and all unexercised rights thereunder shall
expire and terminate automatically upon the earliest of: (i) the cessation of
the employment or engagement of the Optionee by the Company for any reason other
than retirement (under normal Company policies), death or disability; (ii) the
date which is three months following the effective date of the Optionee's
<PAGE>
retirement from the Company's service; (iii) the date which is one year
following the date on which the Optionee's service with the Company ceases due
to death or disability; (iv) the date of expiration of the Option determined by
the Board at the time the Option is granted and specified in such Option; or (v)
the tenth (10th) annual anniversary date of the granting of the Option, or, if
when an Option is granted the Optionee owns (or would be considered to own by
reason of Section 424(d) of the Code) more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company, then on the fifth
(5th) such anniversary. However, the Board shall have the right, but not the
obligation, to extend the expiration of the Options held by an Optionee whose
service with the Company has ceased for any reason to the end of their original
terms, notwithstanding that such Options may no longer qualify as ISOs under the
Code.
7. Exercise of Options
(a) An Option may be exercisable in installments or otherwise upon such
terms as the Committee shall determine when the Option is granted. In the event
that an Option is exercisable only in installments and the Optionee has been
employed by the Company for five or more years as of the date such Option was
granted, such Option shall become fully exercisable upon the termination of
employment of the Optionee by reason of death or disability.
(b) No Option will be exercisable (and any attempted exercise will be
deemed null and void) if such exercise would create a right of recovery for
"short-swing profits" under Section 16(b) of the Securities Exchange Act of
1934.
(c) No Option will become exercisable if the exercisability of such
Option would cause the aggregate fair market value (as determined at the time of
grant in accordance with the provisions of paragraph 5 hereof) of the Stock with
respect to which Option issued by the Company are first exercisable during such
calendar year to exceed $100,000. If the grant of an Option hereunder would
cause a violation of the foregoing limitation, the exercisability of the portion
of the Option granted hereunder shall be reduced to the extent necessary such
that no violation of the foregoing limitation will occur. Any Option with
respect to which exercisability has been deferred shall become first exercisable
on the first day of the calendar year in which such exercisability would not
cause a violation of the limitations contained in Section 422(b)(7) of the Code;
provided, however, if the exercisability is required to be deferred beyond the
expiration of such Option, the grant of such Option shall be null and void.
8. Method of Exercise
(a) When the right to purchase shares accrues, Options may be exercised
by giving written notice to the Company stating the number of shares for which
the Option is being exercised, accompanied by payment in full by cash or its
equivalent, as is acceptable to the Company, of the purchase price for the
shares being purchased. The Company shall issue a separate certificate or
certificates of Stock for each Option exercised by an Optionee.
(b) In the Board's discretion, determined at the time an Option is
granted, payment of the purchase price for shares may be made to the Company:
(i) in cash or by check payable and acceptable to the Company; (ii) subject to
the approval of the Board, by tendering to the Company shares of Stock owned by
the Optionee having an aggregate Market Value Per Share as of the date of
exercise that is not greater than the full Purchase Price for the shares with
respect to which the Option is being exercised and by paying any remaining
amount of the Purchase Price as provided in (i) above; or (iii) subject to the
<PAGE>
approval of the Board and to such instructions as the Board may specify, at the
Optionee's written request the Company may deliver certificates for the shares
of Stock for which the Option is being exercised to a broker for sale on behalf
of the Optionee, provided that the Optionee has irrevocably instructed such
broker to remit directly to the Company on the Optionee's behalf the full amount
of the Purchase Price from the proceeds of such sale. In the event that the
Optionee elects to make payment as allowed under clause (ii) above, the Board
may, upon confirming that the Optionee owns the number of shares of Stock being
tendered, authorize the issuance of a new certificate for the number of shares
being acquired pursuant to the exercise of the Option less the number of shares
being tendered upon the exercise and return to the Optionee (or not require
surrender of) the certificate for the shares of Stock being tendered upon the
exercise. Payment instruments will be received subject to collection.
(c) Notwithstanding the foregoing, the Company shall have the right to
postpone the time of delivery of any shares for such period as may be required
for the Company, with reasonable diligence, to comply with any applicable
listing requirements of any securities exchange or the National Association of
Securities Dealers, Inc. or any federal, state or local law. If the Optionee, or
other person entitled to exercise an Option, fails to timely accept delivery of
and pay for the shares specified in such notice, the Option Committee shall have
the right to terminate the Option and the exercise thereof with respect to such
shares.
9. Nontransferability of Options
No Option granted under the Plan shall be assignable or transferable by
the Optionee, either voluntarily or by operation of law, other than by will or
the laws of descent and distribution, and, during the lifetime of the Optionee,
shall be exercisable only by the Optionee.
10. Continuance of Employment
Nothing contained in the Plan or in any Option granted under the Plan
shall confer upon any Optionee any rights with respect to the continuation of
employment by the Company or interfere in any way with the right of the Company
(subject to the terms of any separate employment agreement to the contrary) at
any time to terminate such employment or to increase or decrease the
compensation of the Optionee from the rate in existence at the time of the
granting of any Option.
11. Restrictions on Shares
If the Company shall be advised by counsel that certain requirements
under federal or state securities laws must be met before Stock may be issued
under the Plan, the Company shall notify all persons who have been issued
Options, and the Company shall have no liability for the failure to issue Stock
under any exercise of Options because of any delay while such requirements are
being met or the inability of the Company to comply with such requirements.
12. Privilege of Stock Ownership
No person entitled to exercise any Option granted under the Plan shall
have the rights or privileges of a stockholder of the Company for any shares of
Stock issuable upon exercise of such Option until such person has become the
holder of record of such shares. No adjustment shall be made for dividends or
other rights for which the record date is prior to the date on which such person
becomes the holder of record, except as provided in paragraph 13.
<PAGE>
13. Adjustment
(a) If the number of outstanding shares of Stock are increased or
decreased, or such shares are exchanged for a different number or kind of shares
or securities of the Company, through reorganization, merger, recapitalization,
reclassification, stock dividend, stock split, combination of shares, or other
similar transaction, the aggregate number of shares of Stock subject to the
Plan, as provided in paragraph 3, and the shares of Stock subject to issued and
outstanding Options under the Plan shall be appropriately and proportionately
adjusted by the Board. Any such adjustment in an outstanding Option shall be
made without change in the aggregate purchase price applicable to the
unexercised portion of the Option but with an appropriate adjustment in the
price for each share or other unit of any security covered by the Option.
(b) Notwithstanding paragraph (a), upon: (i) the dissolution or
liquidation of the Company, (ii) a reorganization, merger or consolidation of
the Company with one or more corporations in which the Company is not the
surviving corporation, (iii) a sale of substantially all of the assets of the
Company or (iv) the transfer of more than 80% of the then outstanding Stock of
the Company to another entity or person, in a single transaction or series of
transactions, the Board shall accelerate the time in which any outstanding
Options granted under the Plan may be exercised to a time prior to the
consummation of the transaction, and the Plan shall terminate upon such
consummation of the transaction. However, the acceleration of the time of
exercise of such Options and the termination of the Plan shall not occur if
provision is made in writing in connection with the transaction, in a manner
acceptable to the Board, for: (A) the continuance of the Plan and assumption of
outstanding Options, or (B) the substitution for such Options of new options to
purchase the stock of a successor corporation (or parent or subsidiary thereof),
with appropriate adjustments as to number and kind of shares and option price.
The Board shall have the authority to amend this paragraph to provide for a
requirement that a successor corporation assume any outstanding Options.
(c) Adjustments under this paragraph 13 shall be made by the Board,
whose determination as to what adjustments shall be made, and the extent thereof
shall be final, binding and conclusive. No fractional shares of Stock shall be
issued under the Plan or in connection with any such adjustment.
14. Investment Purpose
Each Option granted hereunder may be issued on the condition that any
purchase of Stock by the exercise of an Option which is not the subject of a
registration statement permitting the sale or other distribution thereof shall
be for investment purposes and not with a view to resale or distribution (the
"Restricted Stock"). If requested by the Company, each Optionee must agree, at
the time of the purchase of any Restricted Stock, to execute an "investment
letter" setting forth such investment intent in the form acceptable to the
Company and must consent to any stock certificate issued to him thereunder
bearing a restrictive legend setting forth the restrictions applicable to the
further resale, transfer or other conveyance thereof without registration under
the Securities Act of 1933, as amended, and under the applicable securities or
blue sky laws of any other jurisdiction (together, the "Securities Laws"), or
the availability of exemptions from registration thereunder and to the placing
of transfer restrictions on the records of the transfer agent for such stock. No
Restricted Stock may thereafter be resold, transferred or otherwise conveyed
unless:
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(1) an opinion of the Optionee's counsel is received, in form and
substance satisfactory to counsel for the Company, that
registration under the Securities Laws is not required; or
(2) such Stock is registered under the applicable Securities Laws;
or
(3) A "no action" letter is received from the staff of the
Securities and Exchange Commission and from the administrative
agencies administering all other applicable securities or blue
sky laws, based on an opinion of counsel for Optionee, in form
and substance reasonably satisfactory to counsel for the
Company, advising that registration under the Securities Laws
is not required.
15. Amendment and Termination of Plan
(a) The Board may, from time to time, with respect to any shares at the
time not subject to Options, suspend or terminate the Plan or amend or revise
the terms of the Plan; provided that any amendment to the Plan shall be approved
by a majority of the shareholders of the Company if the amendment would: (i)
materially increase the benefits accruing to participants under the Plan; (ii)
increase the number of shares of Stock which may be issued under the Plan,
except as provided under the provisions of paragraph 13; or (iii) materially
modify the requirements as to eligibility for participation in the Plan.
(b) Subject to the provisions of paragraph 13, the Plan shall terminate
ten (10) years from the earlier of the adoption of the Plan by the Board or its
approval by the shareholders.
(c) Subject to the provisions of paragraph 13, no amendment, suspension
or termination of this Plan shall, without the consent of each Optionee, alter
or impair any rights or obligations under any Option granted to such Optionee
under the Plan.
16. Effective Date of Plan
The Plan shall become effective upon adoption by the Board and approval
by the Company's shareholders; provided, however, that prior to approval of the
Plan by the Company's shareholders but after adoption by the Board, Options may
be granted under the Plan subject to obtaining such approval.
17. Term of Plan
No Option shall be granted under the Plan after ten (10) years from the
earlier of the date of adoption of the Plan by the Board or the date of approval
by the Company's shareholders.
September 9, 1997
Board of Directors
Siboney Corporation
8000 Maryland Avenue, suite 1040
St. Louis, Missouri 63105
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as counsel to Siboney Corporation (the "Company") in
connection with the various legal matters relating to the filing of a
registration statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, and the Rules and Regulations promulgated
thereunder, relating to 800,000 shares of common stock of the Company, par value
$0.01 per share (the "Shares"), reserved for issuance in accordance with Siboney
Corporation 1997 Incentive Stock Option Plan (the "Plan").
We have examined such corporate records of the Company, such laws and
such other information as we have deemed relevant, including the Company's
Articles of Incorporation, as amended, Bylaws, certain resolutions adopted by
the Board of Directors of the Company relating to the Plan and certificates
received from state officials and from officers of the Company. In delivering
this opinion, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
the originals of all documents submitted to us as certified, photostatic or
conformed copies, and the correctness of all statements submitted to us by
officers of the Company.
Based upon the foregoing, the undersigned is of the opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Maryland.
2. The Common Stock being offered by the Company, if issued in
accordance with the Plan, will be validly issued and
outstanding and will be fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the use of our name in the Registration Statement. We also
consent to your filing copies of this opinion as an exhibit to the Registration
Statement with agencies of such states as you deem necessary in the course of
complying with the laws of such states regarding the issuance of the Shares
pursuant to the Plan.
Very truly yours,
/s/GALLOP, JOHNSON & NEUMAN, L.C.
Independent Auditors' Consent
We consent to the incorporation by reference in this Registration Statement of
Siboney Corporation and subsidiaries on Form S-8 of our report dated February
14, 1997, appearing in the Annual Report on Form 10-K of Siboney Corporation and
subsidiaries for the year ended December 31, 1996.
/s/ Rubin, Brown, Gornstein & Co. LLP
RUBIN, BROWN, GORNSTEIN & CO. LLP
St. Louis, Missouri
September 9, 1997
