SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THERMO-MIZER ENVIRONMENTAL CORP.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
22-2312917
(Employer Identification No.)
528 Oritan Avenue, Ridgefield, NJ 07657
(Address of principal executive offices)
NONQUALIFIED OPTIONS
(Full title of the plan)
Steven Schuster, Esq.
McLaughlin & Stern, LLP
260 Madison Avenue
New York, NY 10016
(212) 448-1100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
______________________________________________________________________________
Title of Amount Proposed maximum Proposed maximum
securities to be offering price aggregate
to be registered registered per share (1) offering price (1) Amount
of
Regist-
ration
fee
______________________________________________________________________________
Common Stock, 550,000 shares $ .90 $495,000 $ 170.68
par value
$.001 per share
Common Stock,
25,000 shares,
par value $.001 per share $1.16 $ 29,000 $ 10.00
Class B Warrants 1,150,000 $ .05 $ 55,500 $ 19.83
warrants
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Common Stock,
par value $.001,
underlying
Class B Warrants 1,150,000 Shares $3.00 $3,450,000 $1,189.56
Total $1,390.07
(1) Pursuant to Rule 457 (h) , the offering price of such shares is estimated
solely for the purpose of
determining the registration fee.
This Registration Statement, including all exhibits and
attachments, contains 37 pages. The
exhibit index may be found on page 7 of the consecutively numbered pages of
the Registration Statement.
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PART 1
INFORMATION REQUIRED IN THE SECTION 10 (A) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item will be sent
or given to individuals who
have been granted awards of nonqualified options by Thermo-Mizer Environmental
Corp., a Delaware
corporation (the "Registrant"), and are not being filed with, or included in,
this Registration Statement on Form
S-8 (the "Registration Statement") in accordance with the rules and regulations
of the Securities and Exchange
Commission (the "Commission").
The Board of Directors of the Registrant has authorized the issuance of
nonqualified stock options
covering up to 575,000 units, each unit consisting of one share of Common
Stock and two Class B Warrants. Options covering 550,000 units, with an
exercise price of $1.00 per unit, have been issued
to Solay, Inc. and Crystal Line Inc.
("collectively, "Consultant") in consideration for the performance of
sourcing merger and acquisition candidates,
financial public relations and other consulting services. Options covering
25,000 units, at an exercise price of $1.16 per unit, have been granted to
other consultants.
The options issued to the Consultant are exercisable at a price of
$1.00 per unit for a period of five years commencing
as follows:
(A) Options covering 260,000 units of the award are
exercisable upon filing of this Registration Statement.
(B) Options covering 40,000 units are exercisable within 90
days of the filing of this Registration Statement, and
(C) Options covering the remaining 250,000 units of the award
are exercisable on the earlier of (i) the consummation
of an acquisition, as defined or (ii) 18 months from the date of grant.
The options issued to other consultants are exercisable at a price of
$1.16 per unit for a period of five years commencing as follows:
(A) Options covering 25,000 units of the award are
exercisable upon filing of this Registration Statement.
The Class B Warrants included in the Units are exercisable at an
exercise price equal to the greater of
(i) $3.00 per share or (ii) 120% of the offering price of a share of the
Registrant's Common Stock in a public
offering by the Registrant which offering results in gross proceeds of not
less than $3,500,000. The Class B
warrants shall be exercisable for a period of five years commencing upon the
earlier of (i) the consummation of
an Acquisition, as defined, or (ii) one year from the date on which the
Options are granted. The Class B Warrants
shall otherwise be on substantially the same terms as the Redeemable Warrants
issued by the Registrant in its
initial public offering, including the antidilution provisions.
An Acquisition shall be deemed to include the purchase by the
Registrant (by cash or the issuance of
securities, or both) of a corporation, partnership or other entity introduced
to the Registrant by Consultant..
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will
be sent or given to individuals who
have been granted awards by the Registrant and are not being filed with,
or included in, this Registration
Statement in accordance with the rules and regulations of the Commission.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
1. The description of the shares of common stock, par value
$.001 per share ("the Common
Stock"), contained in the Registrant's Registration Statement on form 8-A
filed with the Commission on October
13, 1995 (File number O-26982) pursuant to Section 12 (g) of the Securities
Exchange Act of 1934, as amended
(the "Exchange Act"), which incorporates by reference the description of the
shares of Common Stock contained
in the Registration Statement on Form SB-2 (File Number 33-87284-NY) declared
effective by the Commission
on August 14, 1995.
2. The Registrant's Registration Statement on Form SB-2
(File Number 33-87284-NY)
3. The Registrant's annual report on Form 10-KSB for the fiscal
year ended June 30, 1995 filed
on October 10, 1995.
4. The Registrant's quarterly report on Form 10-QSB for the
quarter ended September 30, 1995.
5. The Registrant's quarterly report on Form 10-QSB for the
quarter ended December 31, 1995.
6. The Registrant's Registration Statement on Form SB-2
(File Number 33-80961-NY) declared
effective by the Commission on February 27, 1996.
7. The Registrant's quarterly report on Form 10-QSB for the
quarter ended March 31, 1996.
All documents filed by the Registrant with the Commission pursuant
to Sections 13 (a), 13 (c), 14 or 15
(d) of the Exchange Act subsequent to the date hereof and prior to the filing
of a post-effective amendment, which
indicate that all securities offered have been sold or which deregisters all
such securities then remaining unsold,
shall be deemed to be incorporated by reverence herein and to be a part hereof
from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated
or deemed to be incorporated be 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
The description of the shares of common stock, par value $.001 per
share ("the Common Stock"),
contained in the Registrant's Registration Statement on form 8-A filed with the
Commission on October 31, 1995
(File number O-26982) pursuant to Section 12 (g) of the Exchange Act of 1934,
as amended (the "Exchange
Act"), which incorporates by reference the description of the shares of
Common Stock contained in the
Registration Statement on Form SB-2 (File Number 33-87284-NY). Such shares
are traded on the NASDAQ
SmallCap Market under the symbol "THMZ" and the Boston Stock Exchange under
the symbol "THZ."
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The Class B Warrants included in the Units are exercisable at an
exercise price equal to the greater of
(i) $3.00 per share or (ii) 120% of the offering price of a share of the
Registrant's Common Stock in a public
offering by the Registrant which offering results in gross proceeds of not
less than $3,000,000. The Class B
warrants shall be exercisable for a period of five years commencing upon the
earlier of (i) the consummation of
an Acquisition, as defined, or (ii) one year from the date on which the
Options are granted. The Class B Warrants
shall otherwise be on substantially the same terms as the Redeemable Warrants
issued by the Registrant in its
initial public offering, including the antidilution provisions.
An Acquisition shall be deemed to include the purchase by the
Registrant (by cash or the issuance of
securities, or both) of a corporation, partnership or other entity introduced
to the Registrant by Consultant. The
Class B Warrants included in the Units are exercisable at an exercise price
equal to the greater of (i) $3.00 per
share or (ii) 120% of the offering price of a share of the Registrant's Common
Stock in a public offering by the
Registrant which offering results in gross proceeds of not less than
$3,000,000. The Class B warrants shall be
exercisable for a period of five years commencing upon the earlier of (i)
the consummation of an Acquisition, as
defined, or (ii) one year from the date on which the Options are granted.
The Class B Warrants shall otherwise
be on substantially the same terms as the Redeemable Warrants issued by the
Registrant in its initial public
offering, including the antidilution provisions.
An Acquisition shall be deemed to include the purchase by the
Registrant (by cash or the issuance of
securities, or both) of a corporation, partnership or other entity introduced
to the Registrant by Consultant.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Reference is made to Section 145 of the Delaware General Corporation
Law, as amended (the "DGCL"),
which provides that a corporation may indemnify any person who was or is a
party or is threatened to be made
a party to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation) by reason of the fact
that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the
request of such corporation in such capacity of another corporation or
business organization. The indemnity may
include expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and
reasonably incurred by such director, officer, employee or agent in connection
with such action, suit or proceeding
is such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the
best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause
to believe that such person's conduct was unlawful. A Delaware corporation
may indemnify officers and directors
in an action by or in the right of a corporation under the same conditions,
except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to
be liable to the corporation. Where
an officer or director is successful on the merits or otherwise in the defense
of any action referred to above, the
corporation must indemnify him against the expenses that such officer or
director actually and reasonably
incurred.
Reference is also made to Section 102 (b) (7) of the DGCL, which
enables a corporation in its certificate
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of incorporation to eliminate or limit the personal liability of a director
for monetary damages for violations of
a director's fiduciary duty, except for liability (I) for any breach of the
director's duty of loyalty to the corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (providing
for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions) or (iv) for
any transaction from which the
director derived an improper personal benefit.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
3,(I) * Certificate of Incorporation
3(ii) *By-Laws
4(iii) Form of Option issued to Consultant.
4(iv) Form of Option to be issued to Officers, Directors and Employees.
4(v) Form of Class B Warrant
5 Opinion of McLaughlin & Stern, LLP regarding the legality of the
securities being registered.
10(xi) Consulting Agreement between the Registrant and Consultant
24.2 Consent of McLaughlin & Stern, LLP (included in, and incorporated
by Exhibit 5 hereto).
*Included in, and incorporated by reference to, the Registrant's Registration
Statement on Form SB-2 (File
Number 33 87284-NY)..
Item 9. Undertakings.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this
Registration Statement to include any material information with respect to the
plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 hereby which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the
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Registrant's annual report pursuant to Section 13 (a) or Section 15 (d) of the
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
offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(5) 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 Registrant
of expenses incurred or paid by a
director, officer or controlling person of 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
settles 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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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 Town of Ridgefield, State of New Jersey, on this 20th
day of September, 1996.
THERMO-MIZER ENVIRONMENTAL CORP.
By: /s/Jon J. Darcy
Jon J. Darcy
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated.
Signature Title Date
/s/Jon J. Darcy President, Chief Executive September 20, 1996
Jon J. Darcy Officer, Director
__________________ Co-Chairman of the Board September , 1996
William Benack of Directors
/s/Prem Chopra Chief Financial Officer September 20, 1996
Prem Chopra
/s/Edward A. Sundberg. Co-Chairman of the Board September 20, 1996
Edward A. Sundberg of Directors
____________________ Director September , 1996
Carl R. Bruno
/s/K. Ivan F. Gothner Director September 20, 1996
K. Ivan F. Gothner
/s/Edward A. Heil Director September 20, 1996
Edward A. Heil
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EXHIBIT 4(iii)
OPTION AGREEMENT
OPTION AGREEMENT dated as of August _, l996 between
Thermo-Mizer
Environmental Corp., a Delaware corporation (the "Corporation"), and Solay Inc.
("Solay"), a
Florida Corporation, and Crystal Line Inc. ("Crystal")(Solay and Crystal are
collectively referred
to as the "Optionee or the Consultant").
R E C I T A L S
WHEREAS, the Corporation desires to grant to the Optionee the
right and option
to purchase up to the option (the "Option") to purchase up to 550,000 units
(the "Units"), each
Unit consisting of one share of the Corporation's common stock and two
Class B Warrants (the
"Warrants") at a price of $1.00 per Unit. (the "Option Securities"), on the
terms and subject to
the conditions hereinafter set forth;
WHEREAS, the Corporation is granting the Option in connection
with a certain
consulting agreement dated as of July 31, 1996 between the Corporation and the
Consultant. (the "Consulting Agreement");
NOW, THEREFORE, in consideration of the receipt o $1.00, and
other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby agree
as follows:
SECTION 1 Option To Purchase common stock.
(a) Subject to Section 12 hereof, the
Corporation grants to the
Optionee the right and option (collectively, the "Option") to purchase from
the Corporation
550,000 Units at a price of $1.00 per Unit (the "Option Price")..
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The Corporation shall use its best efforts to promptly register the 550,000
shares of Common
Stock, the 1,100,000 Warrants and the 1,100,000 shares of Common Stock
underlying the
Warrants (collectively the "Securities") on Form S-8 for the issuance and
resale thereof in
accordance with the Securities Act of 1933, as amended (the "Act") and shall
deliver evidence of
the foregoing to the Optionee. Within seven days following the effectiveness
of a Form S-8 with
respect to the Units, Solay shall exercise (including payment in full to the
Corporation) the Option
with respect to 260,000 Units for an aggregate of $260,000 (the "Initial
Units"), with $100,000
payable in cash and $160,000 by delivery of a promissory note. Within 90 days
following the effectiveness of a Form S-8 with respect to the Units, Solay
shall exercise (including payment in full to the Corporation) the Option with
respect to 40,000 additional Initial Units for an aggregate of $40,000.
The Consultant's option to purchase all or a portion of the remaining
250,000 Units (the
"Acquisition Units") shall be exercisable by Crystal for a period of five years
commencing upon
earlier of (A) the consummation of an Acquisition, as hereinafter defined, or
(B) 18 months from
the date hereof . Upon exercise of the Option, the Corporation shall deliver
to Crystal certificates
representing the Shares and Warrants subject to such exercise. An Acquisition
shall be deemed
to include the purchase by the Corporation (by cash or the issuance of
securities, or both) of a
corporation, partnership or other entity introduced to the Corporation by
Consultant or the
acquisition of the Corporation by a corporation, partnership of other entity
introduced to the
Corporation by the Consultant, which Acquisition is consummated within six
months after the
termination of the Consulting Agreement. In the event that Consultant desires
to introduce
additional acquisition targets to the Corporation, it shall notify the
Corporation in writing of the
name of such entity whom the Consultant has previously contacted and such
entity shall be
deemed to have been introduced by the Consultant unless the Corporation
notifies the Consultant
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in writing within seven days after notification by Consultant that the
Corporation has previously
had contacts with such entity regarding an Acquisition.
The Class B Warrants shall be exercisable at an exercise price equal
to the greater of
$3.00 per share. or 120% of the offering price of a share of Common Stock of
the Corporation in
a public offering by the Corporation which offering results in gross proceeds
of a minimum of
$3,000,000. The Warrants shall be exercisable for a period of five years
commencing upon the
earlier of the consummation of an Acquisition or one year from the date hereof.
Except with
respect to the exercise price and the warrant solicitation fee, the Warrants
shall otherwise be on
the same terms as the warrants offered by the Corporation in the initial public
offering, including
the antidilution provisions. In addition, the Corporation, at its discretion ma
y elect not to utilize a
transfer agent.
(b) With respect to the Initial Units, a
closing will be held within
seven days of the filing of the Registration Statement on Form S-8, on a date
specified by the
holder of the Option, which date may be no later than the seventh day after the
filing of the
Registration Statement (the "Closing Date"). At the closing with respect the
Initial Units, the
Corporation shall be obligated to sell, and the holder of this Option shall be
obligated to purchase,
that number of Units
The Option may be exercised by the Consultant with respect
to the Acquisition
Units by delivery to the Corporation, of a written notice (the "Option
Notice"), which Option
Notice shall state such holder's intention to exercise the Option, the Closing
Date on which the
holder proposes to purchase the Option Shares (the "Closing Date") and the
number of Option
Shares to be purchased on the Closing Date, which Closing Date shall be no
later than 30 days
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nor earlier than l0 days following the date of the Option Notice. Upon
receipt by the Corporation
of an Option Notice from the holder of this Option, the Corporation shall be
obligated to sell, and
the holder of this Option shall be obligated to purchase, that number of Units
to be purchased on
the Closing Date set forth in the Option Notice.
(c) The purchase and sale of Units acquired
pursuant to the terms of this
Agreement shall be made on the Closing Date at the offices of the Corporation.
Delivery of the
stock certificate or other instruments registered in the name of Crystal or
Solay, as the case may
be, evidencing the Units being purchased on the Closing Date, shall be made by
the Corporation
to Crystal on the Closing Date against the delivery to the Corporation of a
check in the full
amount of the aggregate purchase price therefor.
SECTION 2. Reorganizations; Mergers; Sales; Etc.
If, at any time
during the Option Period, there shall be any capital reorganization,
reclassification 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 stock dividend or subdivision, split-up or
combination of shares), the
consolidation or merger of the Corporation with or into another corporation or
of the sale of all
or substantially all the properties and assets of the Corporation as an
entirety to any other
corporation or of the sale of all or substantially all the properties and
assets of the Corporation as
an entirety to any other corporation or person, this Option shall, after such
reorganization,
reclassification, consolidation, merger or sale, be exercisable for the kind
and number of shares of
stock or other securities or property of the Corporation or of the corporation
resulting from such
consolidation or surviving such merger or to which such properties and assets
shall have been sold
to which such holder would have been entitled if such holder would have been
entitled if such
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holder had held shares of common stock issuable upon the exercise hereof
immediately prior to
such reorganization, reclassification, consolidation, merger or sale. The
provisions of this Section
3 shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers and
sales.
SECTION 3. Adjustment of Units and Option Price.
(a) The number of Units subject to this
Option during the Option
Period shall be cumulative as to all prior dates of calculation and shall be
adjusted for any stock
dividend, subdivision, split-up or combination of common stock.
(b) The Option Price shall be subject to
adjustment from time to
time as follows:
(i) If, at any time during the
Option Period, the number of
shares of common stock outstanding is increased by a stock dividend payable in
shares of
common stock, then, immediately following the record date fixed for the
determination of holders
of shares of common stock entitled to receive such stock dividend, subdivision
or split-up, the
Option Price shall be appropriately decreased so that the number of Units
included in the Units
issuable upon the exercise hereof shall be increased in proportion to such
increase in outstanding
shares.
(ii) If, at any time during the
Option Period, the number of
shares of common stock outstanding is decreased by a combination of outstanding
shares of
common stock, then, immediately following the record date for such combination,
the Option
Price shall be appropriately increased so that the number of Units issuable
upon the exercise
hereof shall be decreased in outstanding shares.
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SECTION 4. Transfer of Option; Successors and
Assigns.
This Agreement and all the rights hereunder shal
be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns and transferees.
SECTION 5. Notices. All notices or other communications
which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally, by telecopy,
overnight courier or registered mail,, postage prepaid, return receipt
requested, addressed as
follows:
If to the Corporation, to:
Thermo-Mizer Environmental Corp.
528 Oritan Avenue
Ridgefield, New Jersey 06757
With a copy to:
McLaughlin & Stern LLP
260 Madison Avenue
New York, New York l0016
Attention: Steven W. Schuster, Esq.
If to the Optionee: to:
Solay Inc.
888 Prospect Street
Suite 225
La Jolla, California 92037
or to such other address as the party to whom notice is to be given may have
furnished to the
other party in writing in accordance herewith. If delivered personally, by
courier or telecopy,
such notice shall be deemed given when delivered. If mailed as aforesaid, any
such communication
shall be deemed to have been given on the third business day following the day
on which the piece
of mail containing such communication is posted.
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SECTION 6. Governing Law. This Agreement shall be
governed by,
and construed in accordance with, the laws of the State of New Jersey.
SECTION 7. Entire Agreement. This Agreement
contains the entire
agreement between the parties hereto with respect to the transactions
contemplated herein and
supersedes all previously written or oral negotiations, commitments,
representations and
agreements.
SECTION 8. Execution in Counterpart. This
Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original, but all of which
shall constitute one and the same instrument.
SECTION 9. Amendments and Modifications. This
Agreement, or any
provision hereof, may not be amended, changed or modified without the prior
written consent of
each of the parties hereto.
SECTION 10. Termination. In addition to the
termination provisions
set forth in Section 1 hereof, the Option shall terminate and the Option
shall no longer be
exercisable on the date five (5) years from the commencement of the Option
Period.
IN WITNESS WHEREOF, the parties hereto have caused
this Option
Agreement to be executed and delivered as of the date first above written.
THERMO-MIZER ENVIRONMENTAL CORP..
By:____________________
Jon Darcy
President
SOLAY INC..
By:_________________________
CRYSTAL LINE INC.
By:__________________________
opttion,final
<PAGE>
Exhibit 4(iv)
OPTION AGREEMENT
OPTION AGREEMENT dated as of ________, l996 between
Thermo-Mizer
Environmental Corp., a Delaware corporation (the "Corporation"), and
___________________,
an individual residing at ______________________________ (the "Optionee").
R E C I T A L S
WHEREAS, the Corporation desires to grant to the Optionee
the right and option
to purchase up to the option (the "Option") to purchase up to _______ units
(the "Units"), each
Unit consisting of one share of the Corporation's common stock and two
Class B Warrants (the
"Warrants") at a price of $1.16 per Unit. (the "Option Securities"), on the
terms and subject to
the conditions hereinafter set forth;
WHEREAS, the Option evidences the plan to issue
non-qualified stock options
to officers, directors and employees adopted by the Board of Directors of the
Corporation in
September 1996.
NOW, THEREFORE, in consideration of the receipt of$1.00,
and other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby agree
as follows:
SECTION 1 Option To Purchase Units.
(a) Subject to Section 10 hereof, the
Corporation grants to the
Optionee the right and option (collectively, the "Option") to purchase from
the Corporation
500,000 Units at a price of $1.16 per Unit (the "Option Price")..
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The Corporation has registered the __________ shares of Common Stock, the
_________
Warrants and the _________ shares of Common Stock underlying the Warrants
(collectively the
"Securities") on Form S-8 for the issuance and resale thereof in accordance
with the Securities
Act of 1933, as amended (the "Act").
The Option may be exercised with respect to _______ Units for a
period commencing
upon the date hereof and terminating five years from the date hereof. The
Option with respect to
the remaining _______ of the Units (the "Acquisition Units") shall be
exercisable
by Optionee for a
period of five years commencing upon earlier of (A) the consummation of an
Acquisition, as
hereinafter defined, or (B) 18 months from the date hereof. Upon exercise of
the Option, the
Corporation shall deliver to Optionee certificates representing the Shares and
Warrants subject to
such exercise. An Acquisition shall be deemed to include the purchase by the
Corporation (by
cash or the issuance of securities, or both) of a corporation, partnership or
other entity introduced
to the Corporation by Consultant or the acquisition of the Corporation by a
corporation,
partnership of other entity introduced to the Corporation by the Solay Inc.,
which Acquisition is
consummated within six months after the termination of the Consulting
Agreement between the
Corporation and Solay.
The Class B Warrants shall be exercisable at an exercise price equal
to the greater of
$3.00 per share. or 120% of the offering price of a share of Common Stock of
the Corporation in
a public offering by the Corporation which offering results in gross proceeds
of a minimum of
$3,000,000. The Warrants shall be exercisable for a period of five years
commencing upon the
earlier of the consummation of an Acquisition or one year from the date hereof.
Except with
respect to the exercise price and the warrant solicitation fee, the Warrants
shall otherwise be on
2
<PAGE>
the same terms as the warrants offered by the Corporation in the initial
public offering, including
the antidilution provisions. In addition, the Corporation, at its discretion
may elect not to utilize a
transfer agent.
(b) The Option may be exercised by
the Optionee with respect
to the Units by delivery to the Corporation, of a written notice (the "Option
Notice"), which
Option Notice shall state such holder's intention to exercise the Option, the
Closing Date on
which the holder proposes to purchase the Option Shares (the "Closing Date")
and the number of
Units to be purchased on the Closing Date, which Closing Date shall be no later
than 30 days nor
earlier than l0 days following the date of the Option Notice. Upon receipt by
the Corporation of
an Option Notice from the holder of this Option, the Corporation shall be
obligated to sell, and
the holder of this Option shall be obligated to purchase, that number of Units
to be purchased on
the Closing Date set forth in the Option Notice.
(c) The purchase and sale of Units acquired
pursuant to the terms of this
Agreement shall be made on the Closing Date at the offices of the Corporation.
Delivery of the
stock certificate or other instruments registered in the name of Optionee
evidencing the Units
being purchased on the Closing Date, shall be made by the Corporation to
Optionee on the
Closing Date against the delivery to the Corporation of a check in the full
amount of the
aggregate purchase price therefor.
SECTION 2. Reorganizations; Mergers; Sales; Etc.
If, at any time
during the Option Period, there shall be any capital reorganization,
reclassification 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 stock dividend or subdivision, split-up or
combination of shares), the
3
<PAGE>
consolidation or merger of the Corporation with or into another corporation
or of the sale of all
or substantially all the properties and assets of the Corporation as an
entirety to any other
corporation or of the sale of all or substantially all the properties and
assets of the Corporation as
an entirety to any other corporation or person, this Option shall, after such
reorganization,
reclassification, consolidation, merger or sale, be exercisable for the kind
and number of shares of
stock or other securities or property of the Corporation or of the corporation
resulting from such
consolidation or surviving such merger or to which such properties and assets
shall have been sold
to which such holder would have been entitled if such holder would have been
entitled if such
holder had held shares of common stock issuable upon the exercise hereof
immediately prior to
such reorganization, reclassification, consolidation, merger or sale. The
provisions of this Section
3 shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers and
sales.
SECTION 3. Adjustment of Units and Option Price.
(a) The number of Units subject to this
Option during the Option
Period shall be cumulative as to all prior dates of calculation and shall be
adjusted for any stock
dividend, subdivision, split-up or combination of common stock.
(b) The Option Price shall be subject to
adjustment from time to
time as follows:
(i) If, at any time during the
Option Period, the number of
shares of common stock outstanding is increased by a stock dividend payable in
shares of
common stock, then, immediately following the record date fixed for the
determination of holders
of shares of common stock entitled to receive such stock dividend, subd
ivision or split-up, the
4
<PAGE>
Option Price shall be appropriately decreased so that the number of Units
included in the Units
issuable upon the exercise hereof shall be increased in proportion to such
increase in outstanding
shares.
(ii) If, at any time during the
Option Period, the number of
shares of common stock outstanding is decreased by a combination of
outstanding shares of
common stock, then, immediately following the record date for such
combination, the Option
Price shall be appropriately increased so that the number of Units issuable
upon the exercise
hereof shall be decreased in outstanding shares.
SECTION 4. Transfer of Option; Successors and Assigns.
This Agreement and all the rights hereunder shall
be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns and transferees.
SECTION 5. Notices. All notices or other communications
which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally, by telecopy,
overnight courier or registered mail,, postage prepaid, return receipt
requested, addressed as
follows:
If to the Corporation, to:
Thermo-Mizer Environmental Corp.
528 Oritan Avenue
Ridgefield, New Jersey 06757
With a copy to:
McLaughlin & Stern LLP
260 Madison Avenue
New York, New York l0016
Attention: Steven W. Schuster, Esq.
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<PAGE>
If to the Optionee: to:
or to such other address as the party to whom notice is to be given may have
furnished to the
other party in writing in accordance herewith. If delivered personally, by
courier or telecopy,
such notice shall be deemed given when delivered. If mailed as aforesaid, any
such communication
shall be deemed to have been given on the third business day following the day
on which the piece
of mail containing such communication is posted.
SECTION 6. Governing Law. This Agreement shall be
governed by,
and construed in accordance with, the laws of the State of New Jersey.
SECTION 7. Entire Agreement . This Agreement
contains the entire
agreement between the parties hereto with respect to the transactions
contemplated herein and
supersedes all previously written or oral negotiations, commitments,
representations and
agreements.
SECTION 8. Execution in Counterpart. This
Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original, but all of which
shall constitute one and the same instrument.
SECTION 9. Amendments and Modifications. This
Agreement, or any
provision hereof, may not be amended, changed or modified without the prior
written consent of
each of the parties hereto.
SECTION 10. Termination. In addition to the
termination provisions
set forth in Section 1 hereof, the Option shall terminate and the Option
shall no longer be
exercisable on the date five (5) years from the commencement of the Option
Period.
IN WITNESS WHEREOF, the parties hereto have caused
this Option
Agreement to be executed and delivered as of the date first above written.
THERMO-MIZER ENVIRONMENTAL CORP..
By:____________________
Jon Darcy President
_________________________
Optionee
opton,dirl.fnl
6
<PAGE>
Exhibit 4(v)
No. W _____
VOID AFTER_______________, 2001
WARRANTS
WARRANT CERTIFICATE TO
PURCHASE ONE SHARE OF COMMON STOCK
THERMO-MIZER ENVIRONMENTAL CORP.
THIS CERTIFIES THAT, FOR VALUE RECEIVED
or registered assigns (the "Registered Holder") is the owner of
the number of Warrants (the
"Warrants") specified above. Each Warrant initially entitles the
Registered Holder to purchase,
subject to the terms and conditions set forth in this Certificate and the
Warrant Agreement (as
hereinafter defined), one fully paid and nonassessable share of Common Stock,
$.001 par value, of
Thermo-Mizer Environmental Corp., a Delaware corporation (the "Company"), at
any time
between ____________, 1996, (the "Initial Warrant Exercise Date"),
and the Expiration Date (as
hereinafter defined) upon the presentation and surrender of this Warrant
Certificate with the
Subscription Form on the reverse hereof duly executed, at the corporate
office of the Company ,
528 Oritan Avenue, Ridgefield, New Jersey 07657, accompanied by payment of
$3.00 subject to
adjustment (the "Purchase Price"), in lawful money of the United States of
America in cash or by
certified or bank check made payable to the Company.
This Warrant Certificate and each Warrant represented hereby are
issued pursuant to and
are subject in all respects to the anti-dilution provisions set forth in the
Warrant Agreement (the
"Warrant Agreement"), dated March 7, 1996, by and between the Company and
American Stock
Transfer & Trust Company..
In the event of certain contingencies provided for in the Warrant
Agreement, the Purchase
Price and the number of shares of Common Stock subject to purchase upon the
exercise of each
Warrant represented hereby are subject to modification or adjustment.
Each Warrant represented hereby is exercisable at the option of the
Registered Holder, but
no fractional interests will be issued. In the case of the exercise of less
than all of the Warrants
represented hereby, the Company shall cancel this Warrant Certificate upon the
surrender hereof
and shall execute and deliver a new Warrant Certificate or Warrant Certificates
of like tenor, for
the balance of such Warrants.
The term "Expiration Date" shall mean 4:00 p.m. (New York time) on
____________,
1
<PAGE>
2001. If such date shall in the State of New York be a holiday or a day on
which the banks are
authorized to close, then the Expiration Date shall mean 5:00 p.m. (New York
time) the next
following day which in the State of New York is not a holiday or a day on which
banks are
authorized to close. The Company shall not extend the Expiration Date nor
reduce the Purchase
Price.
The Company shall not be obligated to deliver any securities pursuant
to the exercise of
this Warrant unless a registration statement under the Securities Act of 1933,
as amended (the
"Act"), with respect to such securities is effective or an exemption thereunder
is available. This
Warrant shall not be exercisable by a Registered Holder in any state where such
exercise would be
unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof by
the Registered
Holder at the corporate office of the Company, for a new Warrant Certificate or
Warrant
Certificates of like tenor representing an equal aggregate number of Warrants,
each of such new
Warrant Certificates to represent such number of Warrants as shall be
designated by such
Registered Holder at the time of such surrender. Upon due presentment and
payment of any tax
or other charge imposed in connection therewith or incident thereto, for
registration of transfer of
this Warrant Certificate at such office, a new Warrant Certificate or Warrant
Certificates
representing an equal aggregate number of Warrants will be issued to the
transferee in exchange
therefor, subject to the limitations provided in the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the
Registered Holder shall not
be entitled to any rights of a stockholder of the Company, including, without
limitation, the right
to vote or to receive dividends or other distributions, and shall not be
entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant
Agreement.
Prior to due presentment for registration of transfer hereof, the
Company and the Warrant
Agent may deem and treat the Registered Holder as the absolute owner hereof
and of each
Warrant represented hereby (notwithstanding any notations of ownership or
writing hereon made
by anyone other than a duly authorized officer of the Company or the Warrant
Agent) for all
purposes and shall not be affected by any notice to the contrary, except as
provided in the
Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the laws
of the State of New York without giving effect to conflicts of laws.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly
executed, manually or in facsimile by two of its officers thereunto duly
authorized and a facsimile
of its corporate seal to be imprinted hereon.
Dated: ____________, 1996
[SEAL] THERMO-MIZER ENVIRONMENTAL CORP.
By:_______________________________________
Jon J. Darcy, President
By:_______________________________________
Steven Schuster, Secretary
3
<PAGE>
SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrants
The undersigned Registered Holder hereby irrevocably elects to
exercise _________
Warrants represented by this Warrant Certificate, and to purchase the
securities issuable upon the
exercise of such Warrants, and requests that certificates for such securities
shall be issued in name
of
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
____________________
____________________
____________________
____________________
(please print or type name and address)
and be delivered to
____________________
____________________
____________________
____________________
(please print or type name and address)
and if such number of Warrants shall not be all the Warrants evidenced by
this Warrant
Certificate, that a new Warrant Certificate for the balance of such Warrants
be registered in the
name of, and delivered to, the Registered Holder at the address stated below.
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<PAGE>
ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
FOR VALUE RECEIVED, ___________________, hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
____________________
____________________
____________________
____________________
(please print or type name and address)
_______________________of the Warrants represented by this Warrant Certificate,
and hereby
irrevocably constitutes and appoints _________________________ Attorney to
transfer this
Warrant Certificate on the books and records of the Company, with full power
of substitution in
the premises.
Dated:__________________
X_______________________________________
Signature Guaranteed
______________________________________
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST
CORRESPOND TO THE NAME AS WRITTEN UPON THE FACE OF THIS
WARRANT CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER AND MUST BE GUARANTEED
BY A COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE
AMERICAN STOCK EXCHANGE, PACIFIC STOCK EXCHANGE, MIDWEST
STOCK EXCHANGE OR BOSTON STOCK EXCHANGE.
warrant.cer
5
<PAGE>
Exhibit 5
McLaughlin & Stern, LLP
260 Madison Avenue
New York, New York 10016
(212) 448-1100
September 26, 1996
United States Securities and
Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Thermo-Mizer Environmental Corp.
Gentlemen:
Reference is made to the Registration Statement on Form S-8
( the "Registration Statement"), filed
with the Securities and Exchange Commission by Thermo-Mizer Environmental Corp
(the "Company").
We hereby advise you that we have examined originals or copies certified
to our satisfaction of the
Certificate of Incorporation and amendments thereto and the By-Laws of the
Company, minutes of the
meetings of the Board of Directors and Shareholders and such other documents
and instruments, and we have
made such examination of law as we have deemed appropriate as the basis for
the opinions hereinafter
expressed.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is
validly existing and in good
standing under the laws of the State of Delaware.
2. The 575,000 shares of Common Stock, 1,150,000
Class B Warrants, and the
1,150,000 shares of Common Stock underlying the Class B Warrants which are
due to be sold pursuant to the
Registration Statement have been duly and validly authorized and, when issued
and paid for, will be validly
issued, fully paid, and non-assessable.
In addition, we hereby consent to the reference to our firm under the
caption "Legal Matters" in the
prospectus forming part of such Registration Statement and to the filing of
this opinion as an exhibit to the
Registration Statement.
Very truly yours,
McLAUGHLIN & STERN, LLP
<PAGE>
Exhibit 10xi
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made as of the 31st day of
July,
1996, by and between Thermo-Mizer Environmental Corp., a Delaware corporation,
with a
principal executive office at 528 Oritan Avenue, Ridgefield, New Jersey 07657
(the "Company"),
and Solay, Inc. ("Solay"), a Florida corporation, with a principal executive
office at 888 Prospect
Street Suite 225, La Jolla California, 92037, and Crystal Line, Inc.
("Crystal"), a Florida
corporation with a principal executive office at 888 Prospect Street,
Suite 225, La Jolla,
California 92037 (Solay and Crystal are referred to collectively as the
"Consultant").
RECITALS
WHEREAS, the Company desires to engage the Consultant to provide
certain consulting
services with respect to the Company's business;
WHEREAS, the Consultant represents that it has considerable knowledge
and experience
in advising regarding mergers and acquisitions and desires to provide those
services to the
Company, all as more specifically set forth below;
WHEREAS, the Consultant agrees to provide the services of Brett
Salter; and
WHEREAS, the Company designs, produces and markets products which
monitor a wide
variety of environmental conditions.
NOW, THEREFORE, in consideration of the premises and the respective
covenants and
agreements of the parties herein contained, the parties hereby agree as follows:
1. Consulting Engagement. The Company hereby engages the
Consultant and the
Consultant hereby accepts such engagement by the Company as a consultant and
advisor with
respect to the matters specifically set forth herein for a term of one year.
2. Consulting Services. During the term of the Agreement, the
Consultant shall
undertake for and on behalf of and to the extent specifically requested in
writing by the Company
to advise the Company with respect to such business matters as may be
reasonably requested by
the Company, including, without limitation, the following:
(a) financial public relations
(b) source mergers and acquisitions, including the
negotiation of
documentation;
(c) combinations of products that are compatible with
the Company's business;
(d) restructuring of the capitalization of the Company;
and
(e) consulting on other financial and business matters.
1
<PAGE>
The Consultant shall be required to render on a monthly basis a written
report, within ten days of
the end of each month, to the Company with respect to the foregoing services
and documenting
its activities and contacts.
The parties understand and agree that the Consultant is not required
to spend all of its
time and efforts with respect to the foregoing services, provided, however,
the Consultant
represents and warrants to the Company that it is able to provide such
services in a professional
manner consistent with this type of engagement. The parties understand and
further agree that
during the term of this Agreement, the Consultant is not restricted from
providing similar
consulting services to other companies, provided that any such other
activities shall not materially
interfere with the services required to be provided hereunder.
3. Compensation. In consideration of the consulting services
to be rendered as set
forth herein, and subject to the terms and conditions set forth herein, the
Company shall pay
Crystal: $105,000.00 upon signing of this agreement. All payments by Company
to Consultant
shall be at San Diego, California or such other place as Consultant may request.
As additional consideration for the consulting services to be
rendered as set forth herein,
and subject to the terms and conditions set forth herein, the Company hereby
grants Consultant
the option (the "Option") to purchase up to 550,000 units
(the "Units"), each Unit consisting of
one share of the Company's common stock and two Class B Warrants
(the "Warrants") at a price
of $1.00 per Unit.
The Company shall use its best efforts to promptly register the
550,000 shares of Common
Stock, the 1,100,000 Warrants and the 1,100,000 shares of Common Stock
underlying the
Warrants (collectively the "Securities") on Form S-8 for the
issuance and resale thereof in
accordance with the Securities Act of 1933, as amended (the "Act") and shall
deliver evidence of
the foregoing to the Consultant. Within seven days following the effectiveness
of a Form S-8 with
respect to the Units, Solay shall exercise (including payment in full to the
Company) the Option
with respect to 260,000 Units for an aggregate of $260,000. The $260,000
payment shall be
payable as follows: (i) $100,000 shall be payable in cash and (ii) $160,000
by a promissory note
in the form annexed hereto as Exhibit A. The Company shall issue and deliver
the underlying
shares of Common Stock and Warrants issued and registered in the name of Solay.
Solay acknowledges that upon its exercise of the Option with respect
to the 260,000 Units, the Company is authorized to deliver 20,000 shares to
Western Bankers Capital. Solay will exercise the Option with respect to an
additional 40,000 Units within ninety (90) days at $1.00 per Unit.
The Consultant's option to purchase all or a portion of the balance
of the 250,000 Units
shall be exercisable by Crystal for a period of five years commencing upon
earlier of (A) the
consummation of an Acquisition, as hereinafter defined, or (B) 18 months from
the date hereof .
Upon exercise of the Option, the Company shall deliver to Crystal certificates
representing the
Shares and Warrants subject to such exercise. An Acquisition shall be
deemed to include the
purchase by the Company (by cash or the issuance of securities, or both) of a
corporation,
partnership or other entity introduced to the Company by Consultant or the
acquisition of the
Company by a corporation, partnership of other entity introduced to the
Company by the
Consultant, which Acquisition is consummated within six months after the
termination of this
2
<PAGE>
Agreement. In the event that Consultant desires to introduce additional
acquisition targets to the
Company, it shall notify the Company in writing of the name of such entity whom
the Consultant
has previously contacted and such entity shall be deemed to have been
introduced by the
Consultant unless the Company notifies the Consultant in writing within seven
days after
notification by Consultant that the Company has previously had contacts with
such entity
regarding an Acquisition.
The Class B Warrants shall be exercisable at an exercise price equal
to the greater of
$3.00 per share. or 120% of the offering price of a share of Common Stock of
the Company in a successful secondary
public offering by the Company which offering results in gross proceeds of a
minimum of
$3,000,000. The Warrants shall be exercisable for a period of five years (and
shall not be cancelable under any conditions)
commencing upon the
earlier of the consummation of an Acquisition or one year from the date
hereof. The Warrants
shall otherwise be on substantially the same terms as the warrants offered
by the Company in the
initial public offering, including the antidilution provisions.
4. Expenses. Consultant shall account to the Company for
the $115,000 fee which
shall include all ordinary and necessary expenses such as overhead, postage,
telephone and other
communications expenses paid or incurred together with travel, lodging, meals,
etc.. Consultant
shall not be obligated to return any amounts of the $115,000 fee not expended.
5. Representations and Warranties of the Company.
(a) The Company hereby represents and warrants that it
has full power
and legal right and authority to execute, deliver and perform under
this Agreement,
and that the officers executing this Agreement on behalf of the
Company have full
power and authority to do so.
(b) The Company hereby represents and warrants that
this Agreement
has been duly authorized by all necessary corporate action, executed
and delivered
by the Company and constitutes the legal, valid and binding obligation
of the
Company enforceable against the Company in accordance with its terms,
subject
only to applicable bankruptcy, in solvency, reorganization or other
similar laws
relating to or affecting the rights of creditors generally and to
principles of equity.
(c) The Company hereby covenants and agrees to indemnify
and hold
harmless the Consultant from and against and in respect of (I) any
and all losses
and damages resulting from any misrepresentation or breach of any
warranty,
covenant or agreement by the Company made or contained in this
Agreement and
(ii) any and all actions, suits proceedings, claims, demands,
judgments, costs, and
expenses, incident to the foregoing.
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<PAGE>
6. Representations, Warranties and Covenants of Consultant.
(a) Consultant hereby represents and warrants that
it has full power
and legal right and authority to execute, deliver and perform under
this Agreement,
and that the officers and individuals executing this Agreement on
behalf of the
Consultant shall have full power and authority to do so.
(b) Consultant hereby represents and warrants
(i) This Agreement has been duly authorized by all
necessary
corporate and individual action, executed and delivered by the
Consultant and constitutes the legal, valid and binding
obligation of
the Consultant, enforceable against the Consultant in
accordance
with its terms, subject only to applicable bankruptcy,
insolvency,
reorganization or other similar laws relating to or affecting
the
rights of creditors generally and to general principles of
equity.
(ii) Consultant, nor any affiliate shall be engaged,
directly or
indirectly, in capital-raising transactions in connection
with the
services to be rendered hereunder.
(iii) Consultant is an accredited investor as that term is
defined
in Securities Act of 1933.
(iv) Brett Salter will perform substantially all of the
consulting
tasks to be performed by the Consultant hereunder.
(v) No petition under any Federal or State bankruptcy or
insolvency law has been filed by or against them.
(vi) Neither Consultant nor Brett Salter has been the
subject of
any order, judgment or decree, not subsequently reversed,
suspended or vacated, which permanently or temporarily
enjoined
them from any of the following activities:
(A) acting as a futures commission merchant, introducing
broker, commodity trading advisor, commodity pool operator,
floor
broker, leverage transaction merchant or any other person
regulated
by the Commodity Futures Trading Commission; or as an
associated person of any of ;the foregoing; or as an
investment
advisor, underwriter, broker or dealer in securities, or as an
affiliated person, director or employee of an investment
company,
bank, savings and loan association or insurance company or any
4
<PAGE>
other person regulated by the Securities and Exchange
Commission; or engaging in or continuing any conduct or
practice
in connection with such activities;
(B) engaging in any type of business practice;
(c) engaging in any activity in connection with th
purchase or
sale of any security or commodity in connection with any
violation
of Federal or State securities laws or Federal Commodities
laws;
(vii) Neither Consultant nor Brett Salter has been the
subject of
any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any Federal or State authority
barring,
suspending or otherwise limiting for more than thirty (30)
days their
right to engage in any of the activities described above or
their right
to be associated with persons engaged in any of such
activities.
(viii) Neither Consultant nor Brett Salter has been found
by a
court in a civil or criminal action or by the Securities and
Exchange
Commission or the Commodity Futures Trading Commission to
have violated any Federal or State securities law, or any
Federal
commodities law, where such judgment has not subsequently been
reversed, suspended or vacated.
(ix) Neither Consultant nor Brett Salter has been the
subject of
any professional disciplinary proceeding.
(x) No administrative sanctions have been levied against
Consultant or Brett Salter.
(c) The Consultant is purchasing the Units for its own
account and not with
the intention of dividing or allowing others to participate in this investment
or of reselling or
otherwise participating, directly or indirectly, in a distribution of the
Securities, and shall not
transfer any of the Securities to any broker-dealer who is involved in the
purchase or sale of the
Company's securities and shall not make any sale, transfer, or pledge thereof
without registration
under the Act and any applicable securities laws of any state or unless the
Consultant provides the
Company with an opinion of counsel acceptable to the Company that an
exemption from
registration is available.
(d) The Consultant hereby grants the President of the
Company an irrevocable
proxy, coupled with an interest, to vote all Shares purchased by Consultant
pursuant to the
Option or the exercise of the Warrants. In the event such proxy is revoked
for any reason, such
shares of Common Stock shall be voted in favor of the nominees of the Board
of Directors of the
5
<PAGE>
Company of directors be elected at any meeting of shareholders of the Company.
The proxy and
the all other restrictions on the voting of the shares of Common Stock shall
terminate upon the
sale of the shares, exclusive of any transfer pursuant to a pledge of the
Shares..
(e) The Consultant hereby covenants and agrees to
indemnify and hold
harmless the Company from and against and in respect of any and all losses
and damages
resulting from any misrepresentation or breach of any warranty, covenant or
agreement by the
Consultant made or contained in this Agreement.
7. Independent Contractor . It is expressly
understood and agreed that this
is a consulting services agreement only and does not constitute an
employer/employee
relationship. Accordingly, the Consultant agrees that the Consultant shall be
solely responsible
for the payment of its own taxes or sums due to the federal, state or loca
governments, office
overhead, worker's compensation, fringe benefits, pension
contributions and other expenses,
except as otherwise specifically provided herein to the contrary. It is
further understood and
agreed that the Consultant is an independent contractor and that the Company
shall have no right
to control the activities of the Consultant other than to require the
Consultant to provide its
consulting services in a professional manner pursuant to the terms and
conditions of this
Agreement. Moreover, the Consultant shall have no authority to obligate
the Company.
8. Miscellaneous Provisions.
(a) Notices. Any notice, request, demand or other
communications required
or permitted pursuant to this Agreement shall be in writing and shall be
deemed to have been
properly given if delivered in person or by courier or other overnight carrier,
by facsimile
transmission or by certified or registered mail, postage prepaid and return
receipt requested, to
each party hereto at the address indicated below or at any other address as
may be designated
from time to time by written notice to each party. Such notice shall be
deemed given upon
delivery.
If to Consultant:
Brett Salter
Solay, Inc.
888 Prospect Street, Suite 225
La Jolla, CA 92037
with a copy to:
Martin Licht, Esq./Mark Rosenberg, Esq.
37th Floor
12 East 49th Street
New York, New York
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If to the Company:
Mr. Jon J. Darcy
Thermo-Mizer Environmental Corp.
528 Oritan Avenue
Ridgefield, NJ 07657
with a copy to:
Steven W. Schuster, Esq.
McLaughlin & Stern, LLP
260 Madison Avenue
New York, NY 10016
(b) Entire Agreement. This agreement constitutes the entire
agreement between the
parties hereto relating to the subject matter hereof, and supersedes all prior
written or oral
agreements, commitments or understandings with respect to the matters provided
for herein, and
no modification shall be binding unless set forth in writing and duly executed
by each party
hereto.
(c) Expenses. Each of the parties hereto shall bear its own
expenses in connection
with the preparation of this Agreement.
(d) Binding Effects This Agreement shall be binding upon and
inure to the benefit of
the parties hereto, their respective heirs, executors, administrators and
successors, including any
corporation with which or into which either party may be merged or which may
succeed to its
assets or business. Notwithstanding the foregoing, the consulting services to
be rendered by the
Consultant are not assignable without the express written consent of the
Company.
(e) Headlines. The headings or captions of this Agreement are
inserted only as a
matter of convenience and for reference and in no way define, limit, extend or
describe the scope
of this Agreement or the intent of any provisions hereof.
(f) Language. Whenever required by the context of this
Agreement, the singular
number shall include the plural, the masculine gender shall include the
feminine and the neuter
genders and the word "person" or "party" shall include a corporation, firm,
partnership,
proprietorship or other form of association.
(g) Waiver. The waiver by any party to this Agreement of a
breach of any provision
of this Agreement shall not be deemed a continuing waiver or a waiver of any
subsequent breach
of that or any other provision of this Agreement.
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(h) Remedies. In the event litigation shall be necessary to
enforce, interpret or rescind
either the provisions of this Agreement or matters relating thereto, the
prevailing party shall be
entitled to recover from the adverse party, in addition to such other relief
as the court deems
proper, the prevailing party's reasonable attorney's fees for
services before trial, on trial and on
any appeal therefrom.
(i) Counterparts. For the convenience of the parties hereto,
this Agreement may be
executed in one or more counterparts, which shall each be considered an
original. All of the other
counterparts shall constitute one and the same agreement.
(j) Severability. If any provision of this Agreement shall be
declared invalid or
unenforceable, the remainder of this Agreement will continue in full force and
effect so far as the
intent of the parties hereto can be carried out.
(k) Specific Performance. In the event of any breach of this
Agreement, the non-
breaching party hereto may maintain an action for specific performance against
the other party
hereto who is alleged to have breached any of the terms, conditions,
representations, warranties
or agreements herein contained, and it is hereby further agreed that no
objection to the form of
action in any proceeding for specific performance of this Agreement shall be
raised by any party
hereto so that such specific performance of this Agreement may not be obtained
by the aggrieved
party. Notwithstanding anything contained in this Agreement to the contrary,
the foregoing
sentences shall not be constructed to limit in any manner whatsoever any of
the rights and
remedies an aggrieved party may have by virtue of any breach of this Agreement.
(l) The validity, interpretation, and performance of this
Agreement shall be governed
by the laws of the State of New Jersey, with respect to contracts entered into
and performed in
the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as a
sealed instrument as of the day and year first above written.
Thermo-Mizer Environmental Corp. Solay , Inc.
By: \s\ Jon Darcy By: \s\ Brett Salter
Title: President Title: President
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Crystal Line, Inc.
By: Brett Salter
Title:President____________________________
\s\ Brett Salter
Brett Salter, Individually
consexe..
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