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)
Shares Issued to a Consultant
(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 Amount
securities to be offering price aggregate of
to be registered registered per share offering price registration fee
Common Stock, 150,000 shares $.8125(1) $121,875 (1) $36.93
par value
$.001 per share
Common Stock, 100,000 shares $1.00(2) $100,000(2) $30.30
par value
$.001 per share
TOTAL $67.23
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1) The proposed maximum offering price and maximum aggregate offering price is
the assumed price of the shares of Common Stock available under the Consulting
Agreement between Thermo-Mizer Environmental Corp. and CCEC (the "1997
Consulting Agreement") being registered hereunder, in accordance with Rule
457(c) promulgated under the Securities Act of 1933.
2) The proposed maximum offering price and maximum aggregate offering price is
the assumed price of the shares of Common Stock available under the 1997 Option
Agreement between Thermo-Mizer Environmental Corp. and CCEC (the "1997 Option
Agreement") being registered hereunder, based upon the price at which the option
may be exercised, in accordance with Rule 457(g) promulgated under the
Securities Act of 1933.
This Registration Statement, including all exhibits and attachments,
contains 21 pages. The exhibit index may be found on page 6 of the consecutively
numbered pages of the Registration Statement.
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PART I
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 or will be granted awards
under the Plan 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 Registrant has authorized the issuance of 150,000 shares of common
stock to Continental Capital & Equity Corporation in consideration for certain
consulting services pursuant to a consulting agreement dated October 28, 1997.
The services to be rendered pursuant to the agreement in consideration for the
shares of Common Stock include, but are not limited to, a review and analysis of
the Registrant's goals, a mailing of 100,000 piece direct mail package, securing
additional exposure for the Registrant in the financial press and Internet and
general investor relations. Pursuant to the consulting agreement, the Registrant
also agreed to pay the consultant (a) an additional 150,000 free trading shares
of the Registrant's Common Stock and (b) an Option to purchase 100,000 free
trading shares, valued at $1.00 per share, with the term of the Option to expire
October 28, 1998. Such additional shares of Common Stock, which may be issued by
the Registrant, are not being registered pursuant to this registration
statement.
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent to the participant which has been granted the award 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
June 30, 1997 filed on September 30, 1997.
4. The Registrant's Quarterly Report on Form 10-QSB for the quarter
ended September 30, 1997 filed on November 14, 1997.
5. 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 registers all such
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing such documents.
Any statement contained herein or in a document incorporated or deemed to be
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, which incorporates by reference
the description of the shares of Common Stock contained in the Registration
Statement on Form SB-2 (File Number
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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."
Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock being offered hereby will be passed
upon for the Company by McLaughlin & Stern, LLP, New York, New York..
Item 6. Indemnification of Directors and Officers
Reference is made to Section 145 of the Delaware General Corporation
Law, as amended (the "GCL"), 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 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 such individual against the expenses that were
reasonably incurred.
Reference is also made to Section 102 (b) (7) of the GCL, which enables
a corporation in its certificate 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 GCL (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.
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Item 8. Exhibits
3(i) * Certificate of Incorporation
3(ii) *By-Laws
5 Opinion of McLaughlin & Stern, LLP regarding the legality of the securities
being registered.
10.20 Agreement with Continental Capital & Equity Corporation dated October 28,
1997.
10.21 Form of Option Agreement between the Company and Continental Capital &
Equity Corporation
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 of 1933, as amended, 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, as amended, each filing of the 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 indemnification for liabilities
arising under the Securities Act of 1933, as amended, may be permitted to
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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 of 1933, as amended, 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
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 of 1933, as amended, 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, as amended,
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 14th
day of November, 1997.
THERMO-MIZER ENVIRONMENTAL CORP.
By: /s/Jon J. Darcy
Jon J. Darcy
President
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 November 14, 1997
Jon J. Darcy Officer, Chief Financial Officer,
Director
/s/Edward A. Sundberg Chairman of the Board November 14, 1997
Edward A. Sundberg of Directors
/s/ Charles J. Garay Director November 14, 1997
Charles J. Garay
/s/ K. Ivan F. Gothner Director November 14, 1997
K. Ivan F. Gothner
/s/Edward A. Heil Director November 14, 1997
Edward A. Heil
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EXHIBIT 5
McLAUGHLIN & STERN, LLP
260 Madison Avenue
New York, New York 10016
(212) 448-1100
FAX (212) 448-0066
New Jersey Office Millbrook Office
411 Hackensack Avenue Franklin Avenue
Hackensack, NJ 07601 P.O. Box 1369
(201) 488-1105 Millbrook, NY 12545
FAX (201) 488-3679 (914) 677-5700
FAX (914) 677-0097
November 14, 1997
United States Securities &
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 150,000 shares of Common Stock, which are due to br sold
pursuant to the Registration Statement have been duly and validly authorized
and, when issued, will be validly issued, fully paid and non-assessable.
3. The 100,000 shares of Common Stock, which are due to be sold
pursuant to the Registration Statement have been duly and validly authorized
and, when issued, will be validly issued, fully
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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
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EXHIBIT 10.20
CLIENT SERVICE AGREEMENT
THIS AGREEMENT is made and entered into this 28th day of October, 1997 between
CONTINENTAL CAPITAL & EQUITY CORPORATION, located at 2301 Maitland Center
Parkway, Suite 100, Maitland, FL 32751, hereinafter sometimes referred to a
(CCEC) and THERMO-MIZER ENVIRONMENTAL CORP., located at 528 Oritan Avenue,
Ridgefield, NJ 07657, hereinafter sometimes referred to as (the "Company").
WITNESSETH:
WHEREAS, CCEC is a public relations and direct marketing advertising and
consulting firm, and
WHEREAS, the Company is publicly held with its common stock trading on one or
more stock exchanges and/or over the counter or on NASDAQ, and
WHEREAS, the Company desires to publicize itself with the intention of making
its name and business better known to its shareholders, investors, and brokerage
houses, and
WHEREAS, CCEC is willing to accept the Company as a client.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is
agreed:
1. ENGAGEMENT: The Company hereby engages CCEC to publicize the Company to
brokers, prospective investors and shareholders described in Section 2 of this
agreement, and subject to the further provisions of this Agreement. CCEC hereby
accepts the Company as a client and agrees to publicize it as described in
Section 2 of this agreement, but subject to the further provisions of this
Agreement.
2. MARKETING PROGRAM: Consists of the following components:
(A) CCEC will review and analyze all aspects of the Company's
goals, and make recommendations on feasibility and achievement of desired goals.
(B) CCEC will review all of the general information and recent
filings from the Company and produce and mail a 100,000 piece direct mail
package, to include an 11" x 17" self mailer and an ample number of corporate
profiles so as to allow for one profile for each respondent to the original
mailing. Profiles will be prepared in brokerage style format, both items to be
approved by the Company prior to circulation.
(C) CCEC will provide through their network, firms and brokers
interested in participating and schedule and conduct the necessary due diligence
and obtain the required approvals necessary for those firms to participate. CCEC
will also interview and make
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determinations on any firms or brokers referred by the Company with regard
to their participation.
(D) CCEC will be available to the Company to field any
calls from firms and brokers inquiring about the Company.
(E) CCEC will use its best efforts to obtain the Company
exposure on radio programming, in independent financial newsletters, and through
on-line fax and Internet broadcast services.
(F) CCEC will promote the Company on the Worldwide Internet
via CCEC's home web site (www.insidewallstreet.com). Further CCEC shall create
banner ads for placement on complementary financial web sites with hyperlinks
back to the Company's feature page on CCEC's home web site. The banner ads shall
run until such time as 500,000 impressions ("clicks" on the banner ads) has been
achieved.
(G) CCEC shall write, produce and assist the Company in
releasing all press announcements. The Company shall be solely responsible for
paying all fees associated with the actual release(s) through Business Wire,
P.R., Newswire, or any other comparable news dissemination source.
3. TIME OF PERFORMANCE: Services to be performed under this Agreement shall
commence upon execution of this Agreement and shall continue until June 30,
1998.
4. COMPENSATION AND EXPENSES: In consideration of the services to be performed
by CCEC, the Company agrees to pay compensation to CCEC as follows:
(A) 300,000 free trading shares of the Company's Common Stock
payable as follows: 150,000 free trading shares are due upon execution of this
agreement; 150,000 free trading shares due on or before December 12, 1997.
(B) An Option to purchase 100,000 free trading shares, valued
at $1.00 per share. The term of the Option shall expire 12 months from the day
this Agreement is executed.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY: The Company represents and
warrants to CCEC, each such representation and warranty being deemed to be
material that:
(A) The Company will cooperate fully and timely with CCEC to
enable CCEC to perform its obligations under this Agreement.
(B) The execution and performance of this Agreement by the
Company has been duly authorized by the Board of Directors of the Company in
accordance with applicable law, and, to the extent required, by the requisite
number of shareholders of the Company.
(C) The performance by the Company of this Agreement will not
violate any applicable court decree, law or regulation, nor will it violate any
provisions of the organizational documents of the Company or any contractual
obligation by which the Company may be bound.
(D) The Company will promptly deliver to CCEC a complete due
diligence package to include latest 10K, latest 10Q, last 6 months of press
releases and all other relevant materials, including but not limited to
corporate reports, brochures, etc.
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(E) The Company will promptly deliver to CCEC a list of names
and addresses of all shareholders of the Company which it is aware.
(F) The Company will promptly deliver to CCEC a list of
brokers and market makers of the Company's securities which have been following
the Company.
(G) Because CCEC will rely on such information to be supplied
it by the Company, all such information shall be true, accurate, complete and
not misleading, in all respects to the best of the Company's knowledge and
belief.
(H) The Company will act diligently and promptly in reviewing
materials submitted to it by CCEC to enhance timely distribution of the
materials and will inform CCEC of any inaccuracies contained therein prior to
the projected publication date.
6. DISCLAIMER BY CCEC: CCEC WILL BE THE PREPARER OF CERTAIN PROMOTIONAL
MATERIALS. CCEC MAKES NO REPRESENTATION THAT (A) ITS SERVICE WILL RESULT IN ANY
ENHANCEMENT TO THE COMPANY (B) THE PRICE OF THE COMPANY'S PUBLICLY TRADED
SECURITIES WILL INCREASE, (C) ANY PERSON WILL PURCHASE SECURITIES IN THE
COMPANY, OR (D) ANY INVESTOR WILL LEND MONEY TO OR INVEST IN OR WITH THE
COMPANY.
7. EARLY TERMINATION: If the Company fails to cooperate with CCEC, or fails to
make timely payment of the compensation set forth in section 4 of this Agreement
CCEC shall have the right to terminate any further performance under this
Agreement. In such event all compensation shall become immediately due and
payable and/or deliverable, and CCEC shall be entitled to receive and retain the
same as liquidated damages, and not as a penalty, in lieu of all other remedies,
the parties acknowledging and agreeing that it would be too difficult currently
to determine the exact extent of CCEC's damage, but that the receipt and
retention of such compensation is reasonable present estimate of such damage.
8. LIMITATION OF CCEC LIABILITY: If CCEC fails to perform its services
hereunder, its entire liability to the Company shall not exceed the lesser of
(a) the amount of cash compensation CCEC has received from the Company under
Section 4 of this Agreement or (b) the actual damage to the Company as a result
of such non-performance. IN NO EVENT WILL CCEC BE LIABLE FOR ANY INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES NOR FOR ANY CLAIM AGAINST THE COMPANY BY ANY
PERSON OR ENTITY ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT, UNLESS
SUCH DAMAGES RESULT FROM THE USE, BY CCEC, OF INFORMATION NOT AUTHORIZED BY THE
COMPANY.
9. OWNERSHIP OF MATERIALS: All right, title and interest in and to materials to
be produced by CCEC in connection with the contract and other services to be
rendered under this Agreement shall be and remain the sole and exclusive
property of CCEC, except that if the Company performs fully and timely its
obligations hereunder, it shall be entitled to receive upon written request, one
hundred (100) copies of all such materials.
10. CONFIDENTIALITY: Until such time as the same may become publicly known,
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CCEC agrees that any confidential nature will not be revealed or disclosed to
any person or entity, except in the performance of this Agreement, and upon
completion of its services and upon written request of the Company all
materials, original documentation provided by the Company will be returned to
it. CCEC will, however, require Confidentiality Agreements from its own
employees and from contractors CCEC reasonably believes will come in contact
with confidential material.
11. NOTICES: All notices hereunder shall be in writing and addressed to the
party at the address herein set forth, or at such other address as to which
notice pursuant to this section may be given, and shall be given by personal
delivery, by certified mail, express mail or by national overnight courier
services. Notices will be deemed given upon the earlier of actual receipt or
three (3) business days after being mailed or delivered to such courier service.
Notices shall be addressed to CCEC at: Suite 100
2301 Maitland Center Parkway
Maitland, FL 32751
and to the Company at: 528 Oritan Avenue
Ridgefield, NJ 07657
Any notices to be given hereunder will be effective if executed by and sent by
the attorneys for the parties giving such notice, and in connection therewith
the parties and their respective counsel agree that in giving such notice such
counsel may communicate directly in writing with such parties to the extent
necessary to give such notice.
12. SEPARABILITY: If one or more of the provisions of this Agreement shall be
held invalid, illegal, or unenforceable in any respect, such provision, to the
extent invalid, illegal, or unenforceable, and provided that such provision is
not essential to the transaction provided for by this Agreement, shall not
affect any other provision hereof, and the Agreement shall be construed as if
such provision had never been contained herein.
13. ARBITRATION: Any controversy or claim arising out of or relating to the
Agent Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the commercial arbitration rules of the American Arbitration
Association, and judgement upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
14. MISCELLANEOUS:
(A) EFFECTIVE DATE OF REPRESENTATIONS: Shall be no later than
the date CCEC is prepared to distribute letters and/or brochures pursuant to the
contract.
(B) GOVERNING LAW: This Agreement shall be governed by and
interpreted under the laws of the State of Florida where CCEC has been organized
and this Agreement has been accepted by CCEC:
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(C) CURRENCY: In all instances, references to dollars shall be
deemed to be United States Dollars.
(D) MULTIPLE COUNTERPARTS: This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original.
All parties agree that signatures sent by facsimile transmission are legally
binding. Executed as a sealed instrument as of the last day and year shown
hereunder.
CONFIRMED AND AGREED ON THE 6th DAY OF NOVEMBER, 1997
CONTINENTAL CAPITAL & EQUITY CORP.
By: /s/Andrea Strittmatter /s/Pam Brecia
CCEC Representative CCEC Officer
/s/ Frank O'Brian /s/Mary Brasseur
Witness Witness
CONFIRMED AND AGREED ON THE ______ DAY OF , 1997
THERMO-MIZER ENVIRONMENTAL CORP.
By: /s/Jon J. Darcy, Pres. /s/Bridget Owens
Duly Authorized Witness
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Exhibit 20.21
OPTION AGREEMENT
OPTION AGREEMENT dated as of October 28, l997 between
Thermo-Mizer Environmental Corp., located; at 528 Oritan Avenue, Ridgefield, NJ,
07657, (the "Corporation"), and Continental Capital & Equity Corporation,
located at 2301 Maitland Center Parkway, Suite 100, Maitland, FL 32751 (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
100,000 shares (the "Shares"), at a price of $1.00 per Share, on the terms and
subject to the conditions hereinafter set forth;
WHEREAS, the Option evidences the plan to issue non-qualified
stock options to the Optionee pursuant to a consulting agreement dated October
28, 1997.
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 Shares.
(a) The Corporation grants to the Optionee the right and option
(collectively, the "Option") to purchase from the Corporation 100,000 Shares at
a price of $1.00 per Share (the "Option Price"). The Corporation will register
the 100,000 shares of Common Stock (collectively the "Securities") on Form S-8
for the issuance and
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resale thereof in accordance with the Securities Act of 1933, as amended
(the "Act").
The Option may be exercised with respect to 100,000 Shares for a period
commencing upon the date hereof and terminating 12 months from the date hereof.
Upon exercise of the Option, the Corporation shall deliver to Optionee
certificates representing the Shares subject to such exercise.
(b) The Option may be exercised by the Optionee with respect to the Shares
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 Shares to be purchased on the Closing Date,
which Closing Date shall be no later than 30 days nor earlier than 10 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 Shares to be purchased on the Closing Date set forth in the Option
Notice.
(c) The purchase and sale of Shares 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 Shares 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.
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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 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 2 shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers and sales.
SECTION 3. Adjustment of Shares and Option Price.
(a) The number of Shares 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:
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(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 Shares included in the Shares 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 Shares
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
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With a copy to:
McLaughlin & Stern LLP
260 Madison Avenue
New York, New York 10016
Attention: Steven W. Schuster, Esq.
If to the Optionee: to:
Continental Capital & Equity Corporation
2301 Maitland Center Parkway, Suite 100
Maitland, FL 32751
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.
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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
CONTINENTAL CAPITAL & EQUITY CORPORATION
By: ________________________
Optionee
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