<PAGE> 1
As filed with the Securities and Exchange Commission on June 29, 1998
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INKINE PHARMACEUTICAL COMPANY, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 13-3754005
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
SENTRY PARK EAST
1720 WALTON ROAD
BLUE BELL, PA 19422
(Address of Principal Executive Offices) (Zip Code)
1997 CONSULTANT STOCK OPTION PLAN
(Full title of the plan)
LEONARD S. JACOB
CHIEF EXECUTIVE OFFICER
INKINE PHARMACEUTICAL COMPANY, INC.
SENTRY PARK EAST
1720 WALTON ROAD
BLUE BELL, PA 19422
(Name and address of agent for service)
(610) 260-9350
(Telephone number, including area code, of agent for service)
Copy to:
CHARLES C. ZALL, ESQUIRE
SAUL, EWING, REMICK & SAUL LLP
CENTRE SQUARE WEST
1500 MARKET STREET, 38TH FLOOR
PHILADELPHIA, PA 19102-2186
(215) 972-8660
See next page for calculation of registration fee.
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum Maximum
Title of Securities to Amount to be Offering Price Aggregate Amount of Registration Fee (2)
be Registered Registered (1) Per Share(2) Offering Price (2)
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
Common Stock, Par 2,500,000 $ 1.3125 $ 3,281,250 $967.97
Value $0.0001 Per
Share
</TABLE>
(1) The 1997 Consultant Stock Option Plan covers a total of 2,500,000
shares.
(2) The registration fee with respect to these shares has been computed
based on the average of the reported high and low sale prices of shares of
Common Stock on June 25, 1998.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.(1)
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.(1)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (c) below are incorporated by
reference in this registration statement; and all documents subsequently filed
by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, 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 in this registration statement and to be a part
thereof from the date of filing of such documents:
(a) The Registrant's annual report on Form 10-KSB for the fiscal
year ended June 30, 1997, as amended by Form 10-KSB/A, filed
on January 14, 1998.
(b) The Registrant's quarterly reports on Form 10-QSB for the
quarter ended September 30, 1997, as amended by Form 10-QSB/A,
filed on November 19, 1997, and for the quarters ended
December 31, 1997 and March 31, 1998. The Registrant's report
on Form 8-K, dated November 21, 1997, as amended by Form
8-K/A, dated December 3, 1997.
(c) The description of the Registrant's Common Stock which is
contained in any Registration Statement or report of the
Registrant filed under the Securities Exchange Act of 1934,
including any amendments or reports filed for the purposes of
updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
- ----------
(1) The information called for by Part I of Form S-8 is currently included
in the description of the Registrant's 1997 Consultant Stock Option
Plan (the "Plan") which is or will be delivered to each Participant
selected to participate in the Plan in accordance with Rule 428 under
the Securities Act of 1933, as amended. Pursuant to the Note to Part I
of Form S-8, this information is not being filed with this Form S-8.
1
<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721-726 of the New York General Corporation Law empower a
corporation to indemnify any person made, or threatened to be made, a party to
an action or proceeding, other than one by or in the right of the corporation,
whether civil or criminal, by reason of the fact that he or she was a director
or officer of the corporation or served such corporation in any capacity. A
corporation is empowered to indemnify such director or officer against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorney's fees, if such director or officer acted in good faith, for a purpose
which he or she reasonably believed to be in the best interest of the
corporation and, in criminal actions or proceedings, had no reasonable cause to
believe that his or her conduct was unlawful.
The Registrant's Certificate of Incorporation provides that the
directors of the Registrant shall not be liable for damages for any breach of
duty as directors, except that a director shall be liable if a judgment or other
final adjudication adverse to such director establishes that his acts or
omissions were in bad faith or involved intentional misconduct or knowing
violation of law or that he personally gained in fact a financial profit or
other advantage to which he was not legally entitled or that his acts violated
Section 719 of the New York Business Corporation Law.
The Registrant's Bylaws provide that the directors and officers of the
Registrant shall be indemnified and held harmless by the Corporation to the
fullest extent currently authorized by the New York Business Corporation Law.
These provision indemnify such persons against all expense, liability, and loss
reasonably incurred or suffered by such persons. Further, the Bylaws provide for
the advancement of expenses to persons eligible for indemnification under the
Bylaws. In addition, the Bylaws authorize the Corporation to maintain insurance
to protect itself and any director or officer of the Corporation against any
expense, liability, or loss, whether or not the Corporation would have the power
to indemnify such persons against such expense, liability, or loss under the New
York Business Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of the Registration
Statement:
5 Opinion of Saul, Ewing, Remick & Saul LLP
23.1 Consent of Richard A. Eisner & Company, LLP, independent
auditors
23.2 Consent of Saul, Ewing, Remick & Saul LLP (contained in
Exhibit No. 5)
24 Power of Attorney (included on signature page of the
Registration Statement)
99 1997 Consultant Stock Option Plan
2
<PAGE> 5
ITEM 9. UNDERTAKINGS
(1) The undersigned Registrant undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section
10(a)(3) of the Securities Act of 1933 ("Securities Act"), unless the
information required to be included in such post-effective amendment is
contained in a periodic report required to be filed by the Registrant or
plan pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 ("Exchange Act") that is incorporated herein by reference;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth
in the Registration Statement, unless the information required to be
included in such post-effective amendment is contained in a periodic
report filed by the Registrant or plan pursuant to Section 13 or 15(d) of
the Exchange Act that is incorporated herein by reference;
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the registration
statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to
be a new Registration Statement related to the securities offered herein,
and the offering of such securities at the time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(d) That, for the purposes of determining any liability under
the Securities Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(2) 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 provisions described in Item 6 above, 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 Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment of the Registrant of expenses incurred or paid by the 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.
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<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets 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 Blue Bell, Pennsylvania, on June 29, 1998.
InKine Pharmaceutical Company, Inc.
By: /s/ Dr. Leonard S. Jacob
---------------------------------
Dr. Leonard S. Jacob, M.D., Ph.D.
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dr. Leonard S. Jacob and Robert F. Apple,
or either of them, his true and lawful attorneys-in-fact, with power of
substitution and resubstitution, to execute in the name of such person, in his
capacity as a director or officer of InKine Pharmaceutical Company, Inc., any
and all amendments to this Registration Statement on Form S-8 and all
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact, or his substitute, may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on June 29, 1998, by the following
persons in the capacities indicated.
Signature Title Date
/s/ Dr. Leonard S. Jacob Chairman of the Board, and June 29, 1998
- ----------------------------- Chief Executive Officer
Dr. Leonard S. Jacob (Principal Executive Officer)
/s/ Taffy J. Williams, Ph.D. President, Chief Operating June 29, 1998
- ----------------------------- Officer and Director
Taffy J. Williams, Ph.D.
/s/ Robert F. Apple Vice President, Finance and June 29, 1998
- ----------------------------- Administration (Principal
Robert F. Apple Financial Officer)
/s/ J.R. Leshufy Director June 29, 1998
- -----------------------------
J.R. Leshufy
/s/ Steven Ratoff Director June 29, 1998
- -----------------------------
Steven Ratoff
/s/ Thomas P. Stagnaro Director June 29, 1998
- -----------------------------
Thomas P. Stagnaro
/s/ Jerry A. Weisbach, Ph.D. Director June 29, 1998
- -----------------------------
Jerry A. Weisbach, Ph.D.
4
<PAGE> 7
EXHIBIT INDEX
Exhibit
Number Name of Document
5 Opinion of Saul, Ewing, Remick & Saul LLP
23.1 Consent of Richard A. Eisner & Company, LLP, independent auditors
23.2 Consent of Saul, Ewing, Remick & Saul LLP (contained in Exhibit No. 5)
24 Power of Attorney (included on signature page of the Registration
Statement)
99 1997 Consultant Stock Option Plan
5
<PAGE> 1
EXHIBIT 5
[Saul, Ewing, Remick & Saul LLP Letterhead]
June 29, 1998
InKine Pharmaceutical Company, Inc.
Sentry Park East
1720 Walton Road
Blue Bell, PA 19422
Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") of InKine Pharmaceutical Company, Inc., a New York corporation (the
"Company"), to be filed with the Securities and Exchange Commission covering the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 2,500,000 shares of common stock, par value $0.0001 per share, of the
Company (the "Shares"), which Shares are to be issued under the Company's 1997
Consultant Stock Option Plan.
We have reviewed the Registration Statement, the Certificate of
Incorporation and By-laws of the Company and such records, certificates and
other documents as we have considered necessary or appropriate for the purposes
of this Opinion.
Based on the foregoing, it is our opinion that:
1. The Company is duly organized, validly existing and in good standing
under the laws of State of New York; and
2. The Shares to be issued in accordance with the terms described in
the Registration Statement have been duly authorized and, when issued in
accordance with the terms described in the Registration Statement, will be
validly issued, fully paid and non-assessable.
We hereby consent to use of our name in the Registration Statement as
counsel who will pass upon the legality of the Shares for the Company and as
having prepared this Opinion as an exhibit to the Registration Statement. In
giving the foregoing consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ SAUL, EWING, REMICK & SAUL LLP
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
InKine Pharmaceutical Company, Inc.:
We consent to the incorporation by reference in the Registration
Statement on Form S-8 (1997 Consultant Stock Option Plan) of our report dated
July 24, 1997 on the financial statements of InKine Pharmaceutical Company, Inc.
(formerly Panax Pharmaceutical Company Ltd.) included in the 1997 Annual Report
on Form 10-KSB.
/s/ Richard A. Eisner & Company, LLP
New York, New York
June 29, 1998
<PAGE> 1
EXHIBIT 99
INKINE PHARMACEUTICAL COMPANY, INC.(1)
1997 CONSULTANT STOCK OPTION PLAN.
1. Purpose of Plan. The InKine Pharmaceutical Company, Inc. 1997
Consultant Stock Option Plan (the "Plan") is intended as an incentive to attract
and retain persons of training, experience and ability as consultants and
advisors to InKine Pharmaceutical Company, Inc. (the "Company") and its
subsidiaries, to encourage the sense of proprietorship of such persons, and to
stimulate the active interest of such persons in the development and financial
success of the Company and its subsidiaries.
2. Administration of Plan. The Board of Directors of the Company (the
"Board") or a Stock Option Committee (the "Committee") appointed and maintained
by the Board shall have the power to administer the Plan. The Committee shall
consist of at least two members who shall serve at the pleasure of the Board.
The Board or the Committee shall have full power and authority: (i) to designate
participants; (ii) to determine the terms and provisions of respective Option
Agreements (which need not be identical) including, but not limited to,
provisions concerning the time or times when and the extent to which the Options
may be exercised and the nature and duration of restrictions as to
transferability or restrictions constituting substantial risk of forfeiture;
(iii) to accelerate the right of an optionee to exercise in whole or in part any
previously granted Option; and (iv) to interpret the provisions and supervise
the administration of the Plan.
The Board or the Committee shall also have the authority to grant
Options in its discretion to the holder of an outstanding Option, in addition to
or in exchange for the surrender and cancellation of the outstanding Option,
which additional or new Option may have a purchase price lower than provided in
the outstanding Option and containing such other terms and conditions as the
Board or the Committee may prescribe in accordance with the provisions of the
Plan and as agreed to by the Optionee.
All decisions and selections made by the Board or the Committee
pursuant to the provisions of the Plan shall be made by a majority of its
members except that no member of the Board or Committee shall vote on, or be
counted for quorum purposes, with respect to any proposed action of the Board or
Committee relating to any Option to be granted to that member. Any decision
reduced to writing and signed by a majority of the members who are authorized to
make such decision shall be fully effective as if it had been made by a majority
at a meeting duly held.
Each member of the Board or Committee shall be indemnified and held
harmless by the Company against any cost or expense (including counsel fees)
reasonably incurred by him or liability (including any sum paid in settlement of
a claim with the approval of the Company) arising out of any act or omission to
act in connection with the Plan unless arising out of such member's own fraud or
bad faith, to the extent permitted by applicable law. Such indemnification shall
be in addition to any rights of indemnification the member may have as director
or otherwise under the by-laws of the Company, any agreement, vote of
stockholders or disinterested directors, or otherwise.
- ----------
(1) On November 6, 1997, the Corporation's name was changed from Panax
Pharmaceutical Company Ltd. to InKine Pharmaceutical Company, Inc.
1
<PAGE> 2
3. Designation of Participants. The persons eligible for participation
in the Plan as recipients of Options shall include only consultants and advisors
to the Company or any of its subsidiaries; and provided that eligible
consultants and advisors shall be only those who render bona fide services to
the Company or any subsidiary, which services may not be in connection with the
offer or sale of securities in a capital-raising transaction. Employees of the
Company are not eligible to participate in the Plan.
4. Stock Reserved for Plan. Subject to adjustment as provided in
paragraph 6 hereof, a total of 2,500,000 shares of the Common Stock, $0.0001 par
value, of the Company ("Stock") shall be subject to the Plan. The Stock subject
td the Plan shall consist of unissued shares, and such number of shares shall
be, and hereby is, reserved for sale for such purpose. Any of such Stock which
may remain unsold and which are not subject to outstanding Options at the
termination of the Plan shall cease to be reserved for the purpose of the Plan,
but until termination of the Plan the Company shall at all times reserve a
sufficient number of shares of Stock to meet the requirements of the Plan.
Should any Option for any reason expire or be canceled prior to its exercise or
relinquishment in full, the Stock theretofore subject to such Option may again
be subjected to an Option under the Plan.
5. Option Price.
(a) The purchase price of each share subject to an Option
shall be determined by the Board of Directors but shall not be less than the par
value of the shares.
(b) The option price shall be payable upon the exercise of the
Option in cash, by check, or, at the option of the Board or the Committee or as
otherwise permitted by the Option Agreement, shares of the Company's stock
(valued at their Fair Market Value) or other form or value satisfactory to the
Board or the Committee.
(c) Fair Market Value on the date of the exercise shall be:
(i) If the shares of Common Stock are listed or
admitted for on a national securities exchange or if not listed or trading on an
exchange, on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ"), the closing sales price of shares of the Common Stock on such
date; or
(ii) If no sales have been effected on such date, the
average of the closing sale prices on the most recent three trading days
preceding the date of exercise on the national securities exchange on which it
is listed or admitted or on NASDAQ if not listed or admitted on an exchange or,
if no such sales were effected on any of such markets during such three trading
days, the Fair Market Value shall be the mean between the high bid and low asked
prices on the exchange or NASDAQ on the date of exercise, as the case may be; or
(iii) If the shares are traded in the
over-the-counter market and not listed or admitted on NASDAQ, the mean between
the high bid and low asked prices as quoted on the date of exercise on the
Over-The-Counter Bulletin Board by the National Association of Securities Dealer
Inc. or, if no bid prices are quoted on such date, the next preceding date to
the date of grant for which a bid price is quoted.
(d) The proceeds of the sale of the Stock subject to an Option
are to be added to the general funds of the Company and used for its corporate
purposes.
2
<PAGE> 3
6. Adjustments.
(a) In the case of any reorganization of the Company or
reclassification or recapitalization of the outstanding shares of Common Stock
(other than a change in par value, or from par value to no par value,, or from
no par value to par value, or as a result of a subdivision of combination) or in
the case of any consolidation of the Company with, or merger of the Company into
another corporation, or in the case of any sale, lease, transfer or conveyance
of all, or substantially all, of the assets of the Company, then, as a part of
such reorganization, reclassification, recapitalization, consolidation, merger,
sale, lease, transfer or conveyance, provision shall be made so that the
Optionee shall thereafter be entitled to receive upon exercise hereof the number
of shares of stock, warrants, or other securities, property or other assets of
the Company, or of the successor corporation resulting from such reorganization,
reclassification, recapitalization, consolidation, merger, sale, lease, transfer
or conveyance, to which a holder of that number of shares of Stock deliverable
upon the exercise of Options previously granted hereunder would be entitled on
such reorganization, reclassification, recapitalization, consolidation, merger,
sale, lease, transfer or conveyance as if such Options had been exercised in
full immediately prior to the effectiveness of such reorganization,
reclassification, recapitalization, consolidation, merger, sale, lease, transfer
or conveyance, subject to further adjustment as provided for in such Option
agreements; provided, however, that any unexercised Options may be exercised in
full by the Optionees at any time prior to the effective date of any such
reorganization, reclassification, recapitalization, consolidation, merger, sale,
lease, transfer or conveyance, by giving written notice to the Company.
(b) In case, prior to the expiration of the Options by
exercise or by their terms, the Company shall at any time make any distribution
of its assets to holders of its Common Stock as a liquidating or partial
liquidating dividend by way of return of capital or otherwise (other than as
either a cash dividend payable out of any surplus legally available for the
payment of dividends under the laws of the State of New York or as a stock
dividend) or the Company is dissolved, then upon receipt of any Stock upon
exercise of such Option after the date of record for the determination of
holders of Common Stock entitled to such distribution of assets, the Optionee
shall also be entitled to receive, in addition to the Stock, the amount of such
assets or dividend which the Optionee would have received had it been the holder
of record on the record date for the determination of those entitled to such
distribution of such assets, provided that any unexercised Options may be
exercised in full by the Optionee at any time prior to the effective date of any
such liquidating dividend or dissolution by giving written notice to the
Company.
(c) If the outstanding shares of Common Stock shall at any
time be changed or exchanged by declaration of a stock dividend, stock split,
combination or exchange of shares, extraordinary dividend payable in stock of a
corporation other than the Company, or otherwise in cash, or any like event by
or of the Company, and as often as the same shall occur, then the number, class
and kind of Stock subject to this Plan and subject to any outstanding Options
theretofore granted, and the option prices, shall be appropriately and equitably
adjusted so as to maintain the proportionate number of shares of Stock without
changing the aggregate option price; provided, however, that no adjustment shall
be made by reason of the distribution of a subscription right on outstanding
stock.
(d) The Board of Directors or the Committee may provide in the
Option Agreement for other adjustments.
3
<PAGE> 4
7. Term and Exercise of Options.
(a) The Option Agreement evidencing the Option shall set forth
the terms of the Option, including the period during which it must be exercised,
except that no qualifies as an "incentive stock option" under the applicable
provision of the Internal Revenue Code (the "Code") may be exercisable after the
period, if any, prescribed in the Code.
(b) Options granted under the Plan shall not be transferable
by optionees other than by will or the laws of descent and distribution, and
during an optionee's lifetime shall be exercisable only by that optionee.
(c) An Option which is still in force and unexpired on the
date of such person's death may be exercised by such person's legal
representative in whole or in part during the period designated in the Option
Agreement.
(d) The holders of options shall not be or have any of the
rights or privileges of stockholders of the Company in respect of any shares
purchasable upon the exercise of any part of an Option unless and until,
following exercise, certificates representing such shares shall have been issued
by the Company to such holders.
(e) Any form of Option Agreement authorized by the Plan may
contain such other provisions as the Board or the Committee may, from time to
time, deem advisable. Without limiting the foregoing, the Board or the Committee
may, with the consent of the optionee, from time to time cancel all or any
portion of any Option then subject to exercise, and the Company's obligation in
respect of such Option may be discharged by (i) payment to the optionee of an
amount in cash equal to the excess, if any, of the Fair Market Value of the
Stock at the date of such cancellation subject to the portion of the Option so
canceled over the aggregate exercise price of such shares, (ii) the issuance or
transfer to the optionee of shares of Stock with a Fair Market Value at the date
of such transfer equal to any such excess, or (iii) a combination of cash and
shares with a combined value equal to any such excess, all as determined by the
Board or the Committee in its sole discretion.
(f) Options shall be exercised by the optionee by giving
written notice to the Company, which exercise shall be effective upon receipt of
such notice by the Secretary of the Company at its principal office or as
otherwise provided in the Option Agreement. The notice shall specify the number
of shares with respect to which the Option is being exercised.
8. Purchase for Investment. Unless shares of Stock covered by the plan
have been registered under the Securities Act of 1933, as amended (the "1933
Act"), or the Company has determined that such registration is, unnecessary,
each person exercising an Option under the Plan may be required by the Company
to give a representation in writing that such person is acquiring such shares
for his or her own account, for investment and not with a view to, or for sale
in connection with, the distribution of any part thereof. The Company reserves
the right appropriately to legend certificates evidencing the shares of Stock
issuable upon exercise, that the such Stock may not be sold or transferred until
they are registered under the 1933 Act or transferred in a transaction exempt
from registration thereunder and to place stop transfer orders on their records
as to such shares.
9. Termination of Plan. The Plan shall be effective as of February
14,1997 and shall terminate on a date 10 years thereafter. The termination of
the Plan shall not affect any Option previously granted under the Plan.
4
<PAGE> 5
10. Amendments. The Board may amend or alter the Plan, except that no
amendment or alteration shall be made which would impair the rights of the
holder of any Option theretofore granted without his consent, and except that no
amendment or alteration shall be made which, without the approval of the
stockholders of the Company, would increase the total number of shares reserved
for the purposes of the Plan, except as is provided in Section 6.
11. Government Regulations. The Plan, and the granting and exercise of
Options hereunder, and the obligation of the Company to sell and deliver shares
or cash under such Options, shall be subject to all applicable laws, rules, and
regulations, including the registration of the shares under the 1933 Act, and to
such approvals by any governmental agencies or national securities exchanges as
may be required.
12. Governing Law. This Plan shall be deemed made in the State of New
York and shall be governed by and construed and enforced in accordance with the
laws of such State applicable to contracts made and to be performed in such
State, without giving effect to the principles of conflict of laws.
5
