-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AwidTB1GUjmHHfrPPS6wcVoOs6znfhYKMuGvgGYwq1JnlH5cxKsMaEUqe2gL0fCa kYteQaKj/Z24hEUKbC6q+Q== 0001144204-03-000107.txt : 20030114 0001144204-03-000107.hdr.sgml : 20030114 20030110171906 ACCESSION NUMBER: 0001144204-03-000107 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030110 EFFECTIVENESS DATE: 20030110 FILER: COMPANY DATA: COMPANY CONFORMED NAME: APPLIED DNA SCIENCES INC CENTRAL INDEX KEY: 0000744452 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROCESSING & DATA PREPARATION [7374] IRS NUMBER: 592262718 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-101294 FILM NUMBER: 03511242 BUSINESS ADDRESS: STREET 1: 211 WEST WALL CITY: MIDLAND STATE: TX ZIP: 79701 BUSINESS PHONE: 9156821761 MAIL ADDRESS: STREET 1: 211 WEST WALL CITY: MIDLAND STATE: TX ZIP: 79701 FORMER COMPANY: FORMER CONFORMED NAME: DATALINK SYSTEMS INC DATE OF NAME CHANGE: 19980306 FORMER COMPANY: FORMER CONFORMED NAME: DATALINK CAPITAL CORP/TX/ DATE OF NAME CHANGE: 19980306 FORMER COMPANY: FORMER CONFORMED NAME: DCC ACQUISITION CORP DATE OF NAME CHANGE: 19990211 FORMER COMPANY: FORMER CONFORMED NAME: PROHEALTH MEDICAL TECHNOLOGIES INC DATE OF NAME CHANGE: 20010504 S-8 POS 1 doc1.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8/POS REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 APPLIED DNA SCIENCES, INC. (Exact Name of Registrant as Specified in Its Charter) NEVADA (State or Other Jurisdiction of Incorporation or Organization) 59-2262718 (I.R.S. Employer Identification No.) (Address of Principal Executive Offices) (Zip Code) 2002 PROFESSIONAL/EMPLOYEE/CONSULTANT STOCK COMPENSATION PLAN FOR APPLIED DNA SCIENCES, INC., AS AMENDED 1/8/03 (Full Title of the Plan) Lawrence Lee President and Chief Executive Officer (Name and Address of Agent for Service) 9255 West Sunset Blvd. Suite 805, Los Angeles, CA 90699 310-860-1362 (Telephone Number, Including Area Code, of Agent for Service) ================================================================================ Calculation of Registration Fee ================================================================================ Proposed amount of Securities to be registered: 2,000,000 Amount of Title of Securities Amount To Be Aggregate Fee Aggregate To Be Registered Registered(1) Price Per Share(2) Registration Common $130,000 Par Value, $0.0001 2,000,000 $0.065 *** ================================================================================ 1 In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee and benefit plans described herein. 2 Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) based on the twenty day average of the high and low prices reported on the OTC-BB, which was $0.065 per share. *** This registration fee of $11.96 was paid at the time of the initial filing. This is an amendment of the S-8 filed on November 18, 2002. 1 PART I INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION. Applied DNA Sciences, Inc., formerly known as ProHealth Medical Technologies, Inc. (the Company, we, us or the Registrant) has previously registered total of 2,000,000 shares of its Common Stock to professionals, employees and consultants ("Participants" or "recipients") for service including legal, administrative, marketing, introductory, recruiting and other consulting services. The issuance of shares was made pursuant to the "2002 Professional/Consultant Stock Compensation Plan" ("the PEC Plan") adopted by the Board of Directors on or about November 5, 2002. On January 8, 2002, the Board elected to modify the PEC Plan to cover not only compensation shares, but also incentive stock options for eligible individuals under the Plan. The number or shares will remain the same, however up to 500,000 of the 2,000,000 shares have been allocated for the exercise of up to 500,000 APDN Stock Options at an exercise price of $1.00 per share. A copy of the revised Plan has been distributed to all eligible individuals or entities to date, and will be distributed to new eligible individuals as necessary. The Plan is not qualified under ERISA, nor is this Plan qualified under Section 401(a) of the Internal Revenue Code. Except for affiliates that receive shares or options under this Plan, there are no ongoing reporting obligations of Professionals, Employees or Consultants, nor are there any ongoing contributions from the Registrant. When affiliates are eligible recipients or Participants in the Plan, such affiliates will be required to file a Form 4 with the SEC disclosing acquisitions and/or dispositions of stock or options. The purpose of this Registration of securities on Form S-8, as amended, is to compensate individuals and/or entities that have performed and continue to perform services to the Registrant, and to provide incentive stock options to eligible recipients. The Board has authorized this registration statement and has written the amended Plan to satisfy present and future compensation obligations and incentives to professionals, employees and consultants. This registration statement is limited to 2,000,000 shares. The individuals or entities that are eligible for shares and/or options under the Plan have performed, or will perform in the future, services or activities for which shares may be issued under a Form S-8. Such individuals or entities may contact Lawrence Lee, the Plan Administrator and Director of the Registrant, with any questions at 310-860-1362. In addition to publishing the amended Plan, this Prospectus is being used in connection with the offering from time to time by certain shareholders of Applied DNA Sciences, Inc. ("Selling Shareholders") or their successors in interest of shares of the Common Stock ($.0001 par value) of Applied DNA Sciences, Inc. ("Common Stock") which will be issued as compensation to certain consultants of the Company. The Common Stock may be sold from time to time by the Selling Shareholder or by pledgees, donees, transferees, or other successors in interest. Such sales may be made in the over-the-counter market or otherwise at prices and at terms then prevailing or at prices related to the then current market price, or in negotiated transactions. The Common Stock may be sold by one or more of the following: (a) a block trade in which the broker or dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; (b) purchases by a broker or dealer as principal and resale by such broker or dealer for its account pursuant to this Prospectus; (c) an exchange distribution in accordance with the rules of such exchange; and (d) ordinary brokerage transactions and transactions in which the broker solicits purchases. In effecting sales, brokers, or dealers engaged 2 by the Selling Shareholder may arrange for other brokers or dealers to participate. Brokers or dealers will receive commissions or discounts from Selling Shareholders in amounts to be negotiated immediately prior to the sale. Such brokers or dealers and any other participating brokers or dealers may be deemed to be "underwriters" within the meaning of the Securities Act of 1933, as amended (the "Act") in connection with such sales. In addition, any securities covered by this Prospectus which qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this Prospectus. Applied DNA Sciences, Inc. will not receive any of the proceeds from the sale of these shares, although it has paid the expenses of preparing this Prospectus and the related Registration Statement. ___________________ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ___________________ The sale price of Applied DNA Sciences, Inc. Common Stock as reported by the OTC-Bulletin Board on the date of the initial registration statement as filed on November 18, 2002 was $0.065 per share. ___________________ The date of this Prospectus is January 8, 2003 NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE INFORMATION OR TO MAKE REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING CONTAINED HEREIN AND, IF GIVEN OR MADE INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFERING OF ANY SECURITIES OTHER THAN THOSE TO WHICH IT RELATES OR IN ANY STATE OR OTHER JURISDICTION IN WHICH SUCH OFFERING MAY NOT LAWFULLY BE MADE. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR SINCE THE DATES AS OF WHICH INFORMATION IS SET FORTH HEREIN. AVAILABLE INFORMATION The Company has filed a Registration Statement on Form S-8 under the Securities Act with respect to the Common Stock offered hereby. This Prospectus, which constitutes a part of the Registration Statement, omits certain of the information contained in the Registration Statement and the exhibits and schedules thereto on file with the commission pursuant to the Securities Act and the rules and regulations of the Commission thereunder. For further information with respect to the Company and its Common Stock, reference is made to the Registration Statement and the exhibits and schedules thereto. Statements contained in this Prospectus regarding the contents of any agreement or other document filed as an exhibit to the Registration Statement are not necessarily complete, and in each instance reference is made to the copy of such agreement filed as an exhibit to the Registration Statement, each such statement being qualified in all respects by such reference. The Registration Statement, including the exhibits and schedules thereto, can be inspected and copied at the Commission's offices as described above. 3 The Company is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files annual and quarterly reports, proxy statements and other information with the Commission. Such reports, proxy statements and other information filed by the Company with the Commission pursuant to the informational requirements of the Exchange Act may be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Judiciary Plaza, Washington, D.C. 20549, as well as at the Commission's Regional Office at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material may be obtained at prescribed rates from the Public Reference Room of the Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549. Information concerning the operation of the Public Reference Room may be obtained by calling the Commission at 1-800-SEC-0330. The Commission maintains an Internet site at http://www.sec.gov that contains reports, proxy and information statements and other information regarding registrants, including the Company, that file electronically with the Commission. The Company will provide without charge to each person to whom this Prospectus is delivered, upon written or oral request of such person, a copy of any and all of the information that has been or may be incorporated by reference in this Prospectus but is not delivered with this Prospectus (other than exhibits to such information unless such exhibits are incorporated by reference in this Prospectus). Such requests may be mailed to Applied DNA Sciences, Inc., 9255 West Sunset Blvd. Suite 805, Los Angeles, CA 90699 or may be made by telephone to Mr. Lee. ITEM 2. REGISTRANT INFORMATION. In addition to receiving a copy of the revised Plan, each eligible individual or entity shall have access, upon oral or written request, to any documentation regarding the revised Plan that may not be included in this Registration Statement. PART II ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, which are on file with the Securities and Exchange Commission, are incorporated herein by reference: (a) The Company's most recent annual report, filed on Form 10-KSB for the fiscal year 2001, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), which report contains audited financial statements for the Company's latest fiscal year for which such statements have been filed. The description of the Company's Common Stock is contained in the annual report incorporated by reference herein. (b) The Company's recent quarterly reports, filed on Form 10-QSB. (c) The Company's 8-K filed on 11/20/02 and 8-K/A filed on 12/24/02, which contains biographies of Management, a description of the Company's business, Financial Statements, Pro Forma Financial Information and Exhibits. 4 ITEM 4. DESCRIPTION OF SECURITIES. SELLING SHAREHOLDERS The following table sets forth the names of the Selling Shareholders, the number of shares of Common Stock owned by the Selling Shareholders, the number of shares of Common Stock to be offered by the Selling Shareholders and the number of shares of Common Stock the Selling Shareholders will own after the completion of this offering.
Name of Selling Shareholders(*) Beneficial Shares being sold in Percentage Percentage Ownership of this Offering as of After Unrestricted Shares 11/18/02(2) offering Prior to Offering of Shares(1) Lawrence Lee President, CEO, Director 160,000(3) 160,000 .72% 0% Rick Langley 160,000(3) 160,000 0.72% 0% Jaime Cardona, Secretary 60,000 60,000 .27 % 0% Michael Hill, CFO, VP of Business Development and Director 125,000 125,000 .56 % 0% Andrea Cataneo 60,000 60,000 .27.% .0%
1. This total includes unrestricted shares only, and these shares were authorized by the Board upon the registration statement being filed on November 18, 2002. 2. Based upon 22,096,640 shares of Common Stock issued and outstanding as of December 31, 2002. 3. Lawrence Lee and Rick Langley are beneficial holders of restricted shares. Lawrence Lee and RHL Management, Inc., of which Rick Langley is President and in constructive control, received 4,820,000 and 5,320,000 shares respectively as part of a reorganization with ProHealth Medical Technologies, Inc. ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS. Section 78.7502 of the Nevada General Corporation Law contains provisions authorizing indemnification by the Company of directors, officers, employees or agents against certain liabilities and expenses, which they may incur as directors, officers, employees, or agents of the Company or of certain other entities. Section 78.7502(3) provides for mandatory indemnification, including attorney's fees, if the director, officer, employee or agent has been successful on the merits or otherwise in defense of any action, suit or proceeding or in defense of any claim, issue or matter therein. Section 78.751 provides that such indemnification may include payment by the Company of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding upon receipt of an undertaking by the person indemnified to repay such payment if he shall be ultimately found not to be entitled to indemnification under the Section. Indemnification may be 5 provided even though the person to be indemnified is no longer a director, officer, employee or agent of the Company or such other entities. Section 78.752 authorizes the Company to obtain insurance on behalf of any such director, officer, employee or agent against liabilities, whether or not the Company would have the power to indemnify such person against such liabilities under the provisions of Section 78.7502. Under Section 78.751(e) the indemnification and advancement of expenses provided pursuant to Sections 78.7502 and 78.751 are not exclusive, and subject to certain conditions, the Company may make other or further indemnification or advancement of expenses of any of its directors, officers, employees or agents. Because neither the Articles of Incorporation, as amended, or By-Laws of our Company otherwise provide, notwithstanding the failure of the Company to provide indemnification and despite a contrary determination by the Board of Directors or its shareholders in a specific case, a director, officer, employee or agent of the Company who is or was a party to a proceeding may apply to a court of competent jurisdiction for indemnification or advancement of expenses or both, and the court may order indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses if it determines that the petitioner is entitled to mandatory indemnification pursuant to Section 78.7502(3) because he has been successful on the merits, or because the Company has the power to indemnify on a discretionary basis pursuant to Section 78.7502 or because the court determines that the petitioner is fairly and reasonably entitled to indemnification or advancement of expenses or both in view of all the relevant circumstances. ARTICLES OF INCORPORATION AND BY-LAWS - ------------------------------------- Our Articles of Incorporation and By-Laws empower us to indemnify current or former directors, officers, employees or agents of the Company or persons serving by request of the Company in such capacities in any other enterprise or persons who have served by the request of the Company in such capacities in any other enterprise to the full extent permitted by the laws of the State of Nevada. INDEMNITY AGREEMENTS - -------------------- To induce and encourage highly experienced and capable persons to serve as directors and officers, our Company has entered into an Indemnity Agreement with each director and officer presently serving the Company and will provide the same agreement to future directors and officers as well as certain agents and employees. The Agreement provides that we shall indemnify the director and/or officer, or other person, when he or she is a party to, or threatened to be made a party to, a proceeding by, or in the name of, the Company. Expenses incurred by the indemnified person in any proceeding are to be paid to the fullest extent permitted by applicable law. The Agreement may at some time require the Company to pay out funds that might otherwise be utilized to further the Company's business objectives, thereby reducing our ability to carry out our projected business plans. SEC POSITION ON INDEMNIFICATION FOR SECURITY ACT LIABILITY - ---------------------------------------------------------- Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, and is, therefore, unenforceable. If a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or 6 proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company 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 of whether such indemnification by it is against public policy expressed in the Securities Act of 1933, as amended, and will be governed by the final adjudication of such issue. OFFICERS AND DIRECTORS LIABILITY INSURANCE - ------------------------------------------ At present, we do not maintain Officers and Directors Liability Insurance and, because of the anticipated cost of such insurance, we have no present plans to obtain such insurance. Our intention, however, is to obtain such insurance within the fiscal year. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. Exhibits. Copies of the following documents are included as exhibits to this registration statement pursuant to Item 601 of regulation S-B. SEC Exhibit No. Description - ----------------------------------------------------------------------- 3.01 Articles of Incorporation.* 3.02 Bylaws.* 5.01 Letter opinion, including consent of Law Office of Andrea Cataneo Ltd. regarding legality of Common Stock to be issued Pursuant to the 2002 Professional/Employee/Consultant Stock Compensation Plan, as amended 1/8/03 10.9 2002 Professional/Employee/Consultant Stock Compensation Plan, as amended 1/8/03. 23.01 Consent of Law Office of Andrea Cataneo Ltd. (included in Opinion in Exhibit 5.1). 23.02 Consent of Russell Bedford Stefanou Mirchandani LLP, Certified Public Accountants, 1360 Beverly Road Suite 305 McLean, VA 22101-3621 * Filed previously ITEM 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in 7 the 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, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe it meets all the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles, State of California on this 7th day of November, 2002. APPLIED DNA SCIENCES, INC. By: --------------------------- Lawrence Lee, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Lawrence Lee, his true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments 8 (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, may lawfully do or cause to be done. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons as of the date indicated below. SIGNATURES DATE January 8, 2003 _______________ Lawrence Lee, President, CEO and Director ________________ Michael Hill, CFO and Director ________________ Jaime Cardona, Secretary and Plan Administrator 9 EX-5.01 3 doc2.txt Exhibit 5.01 LAW OFFICE OF ANDREA CATANEO LTD. 81 MEADOWBROOK ROAD RANDOLPH, NJ 07860 (973) 442-9944 (973) 442-9933 January 8, 2003 Board of Directors Applied DNA Sciences, Inc. 9255 West Sunset Blvd. Suite 805 Los Angeles, CA 90699 In re: Applied DNA Sciences, Inc. Amendment to Registration Statement on Form S-8 PROFESSIONAL/EMPLOYEE/CONSULTANT STOCK COMPENSATION PLAN FOR APPLIED DNA SCIENCES, INC, AS AMENDED 1/8/03 Gentlemen: We have acted as special counsel to Applied DNA Sciences, Inc., a Nevada Corporation, ("the Company") in connection with the preparation of a registration statement to be filed with the Securities and Exchange Commission on Form S-8/pos (Amended Registration Statement) on or about January 9, 2002, relating to the proposed issuance of up to 2,000,000 (Shares) of the Company's Common Stock, (par value of $0.0001 per share) pursuant to the terms of a 2002 Professional/Employee/Consultant Stock Compensation Plan for Applied DNA Sciences, Inc. (the "PEC Plan") dated January 8, 2003. In this connection, we have examined such documents, corporate records and other papers as we deemed necessary to examine for the purposes of this opinion. We have examined the Amended Registration Statement as well as such corporate records, documents, instruments and certificates of the Company, and have reviewed such other documents, as we have deemed relevant under the circumstances. In such examination, we have assumed without independent investigation the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all natural persons, and the conformity of any documents submitted to us as copies to their respective originals. As to certain questions of fact material to this opinion, we have relied without independent investigation upon statements or certificates of public officials and officers of the Company. Based upon and subject to the foregoing, we are of the opinion that the Shares, when issued in accordance with the Plans, will be legally issued, fully paid and non-assessable. In connection with this opinion, we have examined the Registration Statement, the Company's Articles of Incorporation and By-laws, and such other documents as we have deemed necessary to enable us to render the opinion hereinafter expressed. We render no opinion as to the laws of any jurisdiction other than the internal laws of the State of Nevada. We hereby consent to the use of this opinion as an exhibit. This opinion is conditioned upon the compliance by the Company with all applicable provisions of the Securities Act of 1933, as amended, and such state securities rules, regulations and laws as may be applicable. Very truly yours, LAW OFFICE OF ANDREA CATANEO LTD. /s/ Andrea Cataneo By: Andrea Cataneo, Esq. 10 EX-10.09 4 doc3.txt Exhibit 10.9 Applied DNA Sciences, Inc. 2002 PROFESSIONAL/EMPLOYEE/CONSULTANT STOCK COMPENSATION PLAN, AS AMENDED 1/8/03 1. Purpose The purpose of this Plan is to provide compensation in the form of Common Stock of the Company to eligible professionals, employees or consultants that have previously rendered services or that will render services during the term of this Professional/Employee/Consultant Stock Compensation Plan (hereinafter referred to as the Plan.) Additionally, the Plan is designed to provide for incentive stock options for eligible recipients 2. Definitions As used in the Plan, the following definitions apply to the terms indicated below: (a) "Board of Directors" shall mean the Board of Directors of Applied DNA Sciences, Inc., a Nevada corporation. (b) "Cause," when used in connection with the termination of a Participant's employment with the Company, shall mean the termination of the Participant's employment by the Company by reason of (i) the conviction of the Participant by a court of competent jurisdiction as to which no further appeal can be taken of a crime involving moral turpitude; (ii) the proven commission by the Participant of an act of Fraud upon the Company; (iii) the willful and proven misappropriation of any funds or property of the Company by the Participant; (iv) the willful, continued and unreasonable failure by the Participant to perform duties assigned to him and agreed to by him; (v) the knowing engagement by the Participant in any direct, material conflict of interest with the Company without compliance with the Company's conflict of interest policy, if any, then in effect; (vi) the knowing engagement by the Participant, without the written approval of the Board of Directors of the Company, in any activity which competes with the business of the Company or which would result in a material injury to the Company; or (vii) the knowing engagement in any activity which would constitute a material violation of the provisions of the Company's Policies and Procedures Manual, if any, then in effect. (c) "Cash Bonus" shall mean an award of a bonus payable in cash pursuant to 11 Section 10 hereof. (d) "Change in Control" shall mean: (1) a "change in control" of the Company, as that term is contemplated in the federal securities laws; or (2) the occurrence of any of the following events: (A) any Person becomes, after the effective date of this Plan, the "beneficial owner" (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company's then outstanding securities; provided, that the acquisition of additional voting securities, after the effective date of this Plan, by any Person who is, as of the effective date of this Plan, the beneficial owner, directly or indirectly, of 20% or more of the combined voting power of the Company's then outstanding securities, shall not constitute a "Change in Control" of the Company for purposes of this Section 2(d). (B) a majority of individuals who are nominated by the Board of Directors for election to the Board of Directors on any date, fail to be elected to the Board of Directors as a direct or indirect result of any proxy fight or contested election for positions on the Board of Directors, or (C) the Board of Directors determines in its sole and absolute discretion that there has been a change in control of the Company. (e) "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. (f) "Common Stock" shall mean the Company's Common Stock, par value $.0001 per share. (g) "Company" shall mean Applied DNA Sciences, Inc., a Nevada corporation, and each of its Subsidiaries, and its successors. (h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. (i) the "Fair Market Value" of a share of Common Stock on any date shall be (i) the closing sales price on the immediately preceding business day of a share of Common Stock as reported on the principal securities exchange on which shares of Common Stock are then listed or admitted to trading or (ii) if not so reported, the average of the closing bid and asked prices for a share of Common Stock on the immediately preceding business day as quoted on the National Association of Securities Dealers Automated Quotation System ("Nasdaq") or (iii)the Over the Counter Bulletin Board ("OTCBB") or (iv) if not quoted on Nasdaq, the average of the closing bid and asked prices for a share of Common Stock as quoted by the National Quotation Bureau's "Pink Sheets" or the National Association of Securities Dealers' OTC Bulletin Board System. If the price of a share of Common Stock shall not be so reported, the Fair Market Value of a share of Common Stock 12 shall be determined by the Board in its absolute discretion. (j) "Incentive Award" shall mean an Option, a share of Restricted Stock, a share of Phantom Stock, a share of unrestricted stock or Cash Bonus granted pursuant to the terms of the Plan. (k) "Incentive Stock Option" shall mean an Option which is an "incentive stock option" within the meaning of Section 422 of the Code and which is identified as an Incentive Stock Option in the agreement by which it is evidenced. (l) "Issue Date" shall mean the date established by the Board on which certificates representing shares of Restricted Stock shall be issued by the Company pursuant to the terms of Section 7(d) hereof. (m) "Non-Qualified Stock Option" shall mean an Option which is not an Incentive Stock Option and which is identified as a Non-Qualified Stock Option in the agreement by which it is evidenced. (n) "Option" shall mean an option to purchase shares of Common Stock of the Company granted pursuant to Section 6 hereof. Each Option shall be identified as either an Incentive Stock Option or a Non-Qualified Stock Option in the agreement by which it is evidenced. (o) "Participant" shall mean a Professional, Employee or Consultant of the Company who is eligible to participate in the Plan and to whom an Incentive Award is granted pursuant to the Plan, and, upon his death, his successors, heirs, executors and administrators, as the case may be, to the extent permitted hereby. (p) "Person" shall mean a "person," as such term is used in Sections 13(d) and 14(d) of the Exchange Act, and the rules and regulations in effect from time to time thereunder. (q) a share of "Phantom Stock" shall represent the right to receive in cash the Fair Market Value of a share of Common Stock of the Company, which right is granted pursuant to Section 8 hereof and subject to the terms and conditions contained therein. (r) "Plan" shall mean the 2002 PROFESSIONAL/EMPLOYEE/CONSULTANT STOCK COMPENSATION PLAN, AS AMENDED 1/8/03, and it may be amended from time to time. (s) "Qualified Domestic Relations Order" shall mean a qualified domestic relations order as defined in the Code, in Title I of the Employee Retirement Income Security Act, or in the rules and regulations as may be in effect from time to time thereunder. (t) a share of "Restricted Stock" shall mean a share of Common Stock which is granted pursuant to the terms of Section 7 hereof and which is subject to the restrictions set forth in Section 7 (c) hereof for so long as such restrictions continue to apply to such share. (u) "Securities Act" shall mean the Securities Act of 1933, as amended from time to time. 13 (v) "Stock compensation" shall mean a grant of a bonus payable in shares of Common Stock pursuant to Section 9 hereof. (w) "Subsidiary" or "Subsidiaries" shall mean any and all corporations in which at the pertinent time the Company owns, directly or indirectly, stock vested with 50% or more of the total combined voting power of all classes of stock of such corporations within the meaning of Section 424(f) of the Code. (x) "Vesting Date" shall mean the date established by the Board on which a share of Restricted Stock or Phantom Stock may vest. Administration (a) This Plan shall be administered by the Board of Directors who may from time to time issue orders or adopt resolutions, not inconsistent with the provisions of this Plan, to interpret the provisions and supervise the administration of this Plan. The Company's Secretary, Jaime Cardona, shall act as Plan Administrator, and will make initial determinations as to which consultants, employees, professionals or advisors will be considered eligible to receive shares under this Plan, and will provide a list to the Board of Directors. All final determinations shall be by the affirmative vote of a majority of the members of the Board of Directors at a meeting called for such purpose, or reduced to writing and signed by a majority of the members of the Board. Subject to the Corporation's Bylaws, all decisions made by the Directors in selecting eligible professionals, employees and consultants, establishing the number of shares, and construing the provisions of this Plan shall be final, conclusive and binding on all persons including the Corporation, shareholders, professionals, employees and consultants. (b) The Board of Directors may from time to time appoint a PEC Plan Committee, consisting of at least one Director and one officer, none of whom shall be eligible to participate in the Plan while members of the Board. The Board of Directors may delegate to such Board power to select the particular Consultants that are to receive shares, and to determine the number of shares to be allocated to each such eligible party. (c) If the SEC Rules and or regulations relating to the issuance of Common Stock under a Form S-8 should change during the terms of this Plan, the Board of Directors shall have the power to alter this Plan to conform to such changes. 3. Eligibility (a) Shares shall be granted only to Professionals, Employees and Consultants that are within that class for which Form S-8 is applicable. (b) No individual or entity shall be granted more than 500,000 shares of unrestricted Common Stock under this Plan. 4. Shares Subject to the Plan The total number of shares of Common Stock to be subject to this Plan is 14 2,000,000. The shares subject to the Plan were registered with the SEC on or about November 7, 2002 in a Form S-8 Registration, and the amended Plan will be filed on or about January 9, 2003 3. Stock Subject to the Plan Under the Plan, the Board may grant to Participants (i) Options, (ii) shares of Restricted Stock, (iii) shares of Phantom Stock, (iv) Unrestricted Stock Compensation and (v) Cash Bonuses. The Board may grant Options, shares of Restricted Stock, shares of Phantom Stock and Unrestricted stock compensation under the Plan with respect to a number of shares of Common Stock that in the aggregate at any time does not exceed 10% of that number of shares of Common Stock which equals 10% of the total number of Shares of Common Stock outstanding immediately after the completion of the first business combination transaction between the Company and a third party acquisition candidate. The grant of a Cash Bonus shall not reduce the number of shares of Common Stock with respect to which Options, shares of Restricted Stock, shares of Phantom Stock or Unrestricted stock compensation may be granted pursuant to the Plan. If any outstanding Option expires, terminates or is canceled for any reason, the shares of Common Stock subject to the unexercised portion of such Option shall again be available for grant under the Plan. If any shares of Restricted Stock or Phantom Stock, or any shares of Common Stock granted in a Stock compensation are forfeited or canceled for any reason, such shares shall again be available for grant under the Plan. Shares of Common Stock issued under the Plan may be either newly issued or treasury shares, at the discretion of the Board. 4. Options The Board may grant Options pursuant to the Plan, which Options shall be evidenced by agreements in such form as the Board shall from time to time approve. Options shall comply with and be subject to the following terms and conditions: (a) Identification of Options All Options granted under the Plan shall be clearly identified in the agreement evidencing such Options as either Incentive Stock Options or as Non-Qualified Stock Options. (b) Exercise Price The exercise price of any Non-Qualified Stock Option granted under the Plan shall be such price as the Board shall determine on the date on which such Non-Qualified Stock Option is granted; provided, that such price may not be less than the minimum price required by law. Except as provided in Section 6(d) hereof, the exercise price of any Incentive Stock Option granted under the Plan shall be not less than 100% of the Fair Market Value of a share of Common Stock on the date on which such Incentive Stock Option is granted. As of the effective date of this amendment, or January 8, 2003, the exercise price for Incentive Stock Options granted under the Plan shall be $1.00 per share. 15 (c) Term and Exercise of Options (1) Each Option shall be exercisable on such date or dates, during such period and for such number of shares of Common Stock as shall be determined by the Board on the day on which such Option is granted and set forth in the agreement evidencing the Option; provided, however, that no Option shall be exercisable after the expiration of ten years from the date such Option was granted; and, provided, further, that each Option shall be subject to earlier termination, expiration or cancellation as provided in the Plan. (2) Each Option shall be exercisable in whole or in part with respect to whole shares of fully paid and nonassessable Common Stock. The partial exercise of an Option shall not cause the expiration, termination or cancellation of the remaining portion thereof. Upon the partial exercise of an Option, the agreement evidencing such Option shall be returned to the Participant exercising such Option together with the delivery of the certificates described in Section 6(c)(5) hereof. (3) An Option shall be exercised by delivering notice to the Company's principal office, to the attention of its Secretary, no fewer than five business days in advance of the effective date of the proposed exercise. Such notice shall be accompanied by the agreement evidencing the Option, shall specify the number of shares of Common Stock with respect to which the Option is being exercised and the effective date of the proposed exercise, and shall be signed by the Participant. The Participant may withdraw such notice at any time prior to the close of business on the business day immediately preceding the effective date of the proposed exercise, in which case such agreement shall be returned to the Participant. Payment for shares of Common Stock purchased upon the exercise of an Option shall be made on the effective date of such exercise either (i) in cash, by certified check, bank cashier's check or wire transfer or (ii) subject to the approval of the Board, in shares of Common Stock owned by the Participant and valued at their Fair Market Value on the effective date of such exercise, or (iii) partly in shares of Common Stock with the balance in cash, by certified check, bank cashier's check or wire transfer. Any payment in shares of Common Stock shall be effected by the delivery of such shares to the Secretary of the Company, duly endorsed in blank or accompanied by stock powers duly executed in blank, together with any other documents and evidences as the Secretary of the Company shall require from time to time. (4) Any Option granted under the Plan may be exercised by a broker-dealer acting on behalf of a Participant if (i) the broker-dealer has received from the Participant or the Company a duly endorsed agreement evidencing such Option and instructions signed by the Participant requesting the Company to deliver the shares of Common Stock subject to such Option to the broker-dealer on behalf of the Participant and specifying the account into which such shares should be deposited, (ii) adequate provision has been made with respect to the payment of any withholding taxes due upon such exercise and (iii) the broker-dealer and the Participant have otherwise complied with Section 220.3(e)(4) of Regulation T, 12 CFR Part 220. (5) Certificates for shares of Common Stock purchased upon the 16 exercise of an Option shall be issued in the name of the Participant and delivered to the Participant as soon as practicable following the effective date on which the Option is exercised; provided, however, that such delivery shall be effected for all purposes when a stock transfer agent of the Company shall have deposited such certificates in the United States mail, addressed to the Participant. (6) During the lifetime of a Participant each Option granted to him shall be exercisable only by him. No Option shall be assignable or transferable otherwise than by will or by the laws of descent and distribution. (d) Limitations on Grant of Incentive Stock Options (1) The aggregate Fair Market Value of shares of Common Stock with respect to which "incentive stock options" (within the meaning of Section 422, without regard to Section 422(d) of the Code) are exercisable for the first time by a Participant during any calendar year under the Plan (and any other stock option plan of the Company, or any subsidiary of the Company shall not exceed $100,000. Such Fair Market Value shall be determined as of the date on which each such Incentive Stock Option is granted. If such aggregate Fair Market Value of shares of Common Stock underlying such Incentive Stock Options exceeds $100,000, then Incentive Stock Options granted hereunder to such Participant shall, to the extent and in the order required by Regulations promulgated under the Code (or any other authority having the force of Regulations), automatically be deemed to be Non-Qualified Stock Options, but all other terms and provisions of such Incentive Stock Options shall remain unchanged. In the absence of such Regulations (and authority), or if such Regulations (or authority) require or permit a designation of the options which shall cease to constitute Incentive Stock Options, Incentive Stock Options shall, to the extent of such excess and in the order in which they were granted, automatically be deemed to be Non-Qualified Stock Options, but all other terms and provisions of such Incentive Stock Options shall remain unchanged. (2) No Incentive Stock Option may be granted to an individual if, at the time of the proposed grant, such individual owns, directly or indirectly (based on the attribution rules in Section 424(d) of the Code) stock possessing more than ten percent of the total combined voting power of all classes of stock of the Company or any of its subsidiaries, unless (i) the exercise price of such Incentive Stock Option is at least 110% of the Fair Market Value of a share of Common Stock at the time such Incentive Stock Option is granted and (ii) such Incentive Stock Option is not exercisable after the expiration of five years from the date such Incentive Stock Option is granted. (e) Acceleration of Exercise Date Upon Change in Control Upon the occurrence of a Change in Control, each Option granted under the Plan and outstanding at such time shall become fully and immediately exercisable and shall remain exercisable until its expiration, termination or cancellation pursuant to the terms of the Plan. 5. Death of Professional, Employee or Consultant 17 If a Professional, Employee or Consultant dies while he is a Professional Employee or Consultant of the Corporation or of any subsidiary, or within 90 days after such termination, the shares, to the extent that the Professional, Employee or Consultant was to be issued shares under the plan, may be issued to his personal representative or the person or persons to whom his rights under the plan shall pass by his will or by the applicable laws of descent and distribution. 6. Termination of Professional, Employee or Consultant, Retirement or Disability If a Professional, Employee or Consultant shall cease to be retained by the Corporation for any reason (including retirement and disability) other than death after he shall have continuously been so retained for his specified term, he may, but only within the three-month period immediately following such termination, request his pro-rata number of shares for his services already rendered. 7. Leak out provision: For the benefit of the Company's shareholders, all shares issued from the PEC PLAN will subject to a leak out provision as defined herein, and in the employment agreement or consultant contract of each Professional, Employee or Consultant. The Plan Administrator, at its sole discretion, can increase the maximum number of shares to be released into the marketplace by each recipient, but cannot go below the threshold amount of the lower of 2,500 shares per recipient per month, or 25% of the recipient's total holdings. The discretional increase can be made by the Plan Administrator to up to no more than 20,000 shares per recipient per month. As shares under the PEC PLAN shall be earned out, and placed in Escrow to be released to recipients in accordance with their contracts or agreements with the company and at the direction of the Plan Administrator. 8. Escrow Agent. The escrow agent for the PEC PLAN shares is the Law Office of Andrea Cataneo Ltd. located at 81 Meadowbrook Road, Randolph, NJ 07969. 9. Termination of the Plan This Plan shall terminate one year after its adoption by the Board of Directors. At such time, any shares which remain unsold shall be removed from registration by means of a post-effective amendment to the Form S-8. 10. Effective Date of the Plan This Plan shall become effective upon its adoption by the Board of Directors. 11. Stock compensation The Board may, in its absolute discretion, grant stock compensation, without restrictions on resale, in such amounts as it shall determine from time to time. Unrestricted stock shall be paid at such time and subject to such conditions as the Board shall determine at the time of the grant of such stock compensation. Certificates for shares of Common Stock granted as a stock compensation shall be issued in the name of the Participant to whom such grant was made and delivered to such Participant as soon as practicable after the date on which such Stock compensation is required to be paid. 18 12. Cash Bonuses The Board may, in its absolute discretion, grant in connection with any grant of Restricted Stock or stock compensation or at any time thereafter, a cash bonus, payable promptly after the date on which the Participant is required to recognize income for federal income tax purposes in connection with such Restricted Stock or Stock Bonus, in such amounts as the Board shall determine from time to time; provided, however, that in no event shall the amount of a Cash Bonus exceed the Fair Market Value of the related shares of Restricted Stock or Stock compensation on such date. A Cash Bonus shall be subject to such conditions as the Board shall determine at the time of the grant of such Cash Bonus. 13. Adjustment Upon Changes in Common Stock (a) Outstanding Restricted Stock and Phantom Stock Unless the Board in its absolute discretion otherwise determines, if a Participant receives any securities or other property (including dividends paid in cash) with respect to a share of Restricted Stock, the Issue Date with respect to which occurs prior to such event, but which has not vested as of the date of such event, as a result of any dividend, stock split recapitalization, merger, consolidation, combination, exchange of shares or otherwise, such securities or other property will not vest until such share of Restricted Stock vests, and shall be held by the Company pursuant to Paragraph 7 (d)(2) hereof. The Board may, in its absolute discretion, adjust any grant of shares of Restricted Stock, the Issue Date with respect to which has not occurred as of the date of the occurrence of any of the following events, or any grant of shares of Phantom Stock, to reflect any dividend, stock split, recapitalization, merger, consolidation, combination, exchange of shares or similar corporate change as the Board may deem appropriate to prevent the enlargement or dilution of rights of Participants under the grant. (b) Outstanding Options, Increase or Decrease in Issued Shares Without Consideration Subject to any required action by the shareholders of the Company, in the event of any increase or decrease in the number of issued shares of Common Stock resulting from a subdivision or consolidation of shares of Common Stock or the payment of a stock dividend (but only on the shares of Common Stock), or any other increase or decrease in the number of such shares effected without receipt of consideration by the Company, the Board shall proportionally adjust the number of shares and the exercise price per share of Common Stock subject to each outstanding Option. (c) Outstanding Options, Certain Mergers Subject to any required action by the shareholders of the Company, if the Company shall be the surviving corporation in any merger or consolidation (except a merger of consolidation as a result of which the holders of shares of Common Stock receive securities of another corporation), each Option outstanding on the date of such merger or consolidation shall entitle the 19 Participant to acquire upon exercise the securities which a holder of the number of shares of Common Stock subject to such Option would have received in such merger or consolidation. (d) Outstanding Options, Certain Other Transactions In the event of a dissolution or liquidation of the Company, a sale of all or substantially all of the Company's assets, a merger or consolidation involving the Company in which the Company is not the surviving corporation or a merger or consolidation involving the Company in which the Company is the surviving corporation but the holders of shares of Common Stock receive securities of another corporation and/or other property, including cash, the Board shall, in its absolute discretion, have the power to: (1) cancel, effective immediately prior to the occurrence of such event, each Option outstanding immediately prior to such event (whether or not then exercisable), and, in full consideration of such cancellation, pay to the Participant to whom such Option was granted an amount in cash, for each share of Common Stock subject to such Option equal to the excess of (A) the value, as determined by the Board in its absolute discretion, of the property (including cash) received by the holder of a. share of Common Stock as a result of such event over (B) the exercise price of such Option; or (2) provide for the exchange of each Option outstanding immediately prior to such event (whether or not then exercisable) for an option on some or all of the property for which such Option is exchanged and, incident thereto, make an equitable adjustment as determined by the Board in its absolute discretion in the exercise price of the option, or the number of shares or amount of property subject to the option or, if appropriate, provide for a cash payment to the Participant to whom such Option was granted in partial consideration for the exchange of the Option. (e) Outstanding Options. Other Changes In the event of any change in the capitalization of the Company or corporate change other than those specifically referred to in Sections 11(b), (c) or (d) hereof, the Board may, in its absolute discretion, make such adjustments in the number and class of shares subject to Options outstanding on the date on which such change occurs and in the per share exercise price of each such Option as the Board may consider appropriate to prevent dilution or enlargement of rights. (f) No Other Rights Except as expressly provided in the Plan, no Participant shall have any rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend, any increase or decrease in the number of shares of stock of any class or any dissolution, liquidation, merger or consolidation of the Company or any other corporation. Except as expressly provided in the Plan, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number of shares of Common Stock subject to 20 an Incentive Award or the exercise price of any Option. 12. Rights as a Shareholder No person shall have any rights as a shareholder with respect to any shares of Common Stock covered by or relating to any Incentive Award granted pursuant to this Plan until the date of the issuance of a stock certificate with respect to such shares. Except as otherwise expressly provided in Section 11 hereof, no adjustment to any Incentive Award shall be made for dividends or other rights for which the record date occurs prior to the date such stock certificate is issued. 13. No Special Employment Rights; No Right to Incentive Award Nothing contained in the Plan or any Incentive Award shall confer upon any Participant any right with respect to the continuation of his employment by the Company or interfere in any way with the right of the Company, subject to the terms of any separate employment agreement to the contrary, at any time to terminate such employment or to increase or decrease the compensation of the Participant from the rate in existence at the time of the grant of an Incentive Award. No person shall have any claim or right to receive an Incentive Award hereunder. The Board's granting of an Incentive Award to a Participant at any time shall neither require the Board to grant an Incentive Award to such Participant or any other Participant or other person at any time nor preclude the Board from making subsequent grants to such Participant or any other Participant or other person. 14. Securities Matters (a) The Company shall be under no obligation to effect the registration pursuant to the Securities Act of any shares of Common Stock to be issued hereunder or to effect similar compliance under any state laws. Notwithstanding anything herein to the contrary, the Company shall not be obligated to cause to be issued or delivered any certificates evidencing shares of Common Stock pursuant to the Plan unless and until the Company is advised by its counsel that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations of governmental authority and the requirements of any securities exchange on which shares of Common Stock are traded. The Board may require, as a condition of the issuance and delivery of certificates evidencing shares of Common Stock pursuant to the terms hereof, that the recipient of such shares make such covenants, agreements and representations, and that such certificates bear such legends, as the Board, in its sole discretion, deems necessary or desirable. (b) The exercise of any Option granted hereunder shall only be effective at such time as counsel to the Company shall have determined that the issuance and delivery of shares of Common Stock pursuant to such exercise is in compliance with all applicable laws, regulations of governmental authorities and the requirements of any securities exchange on which shares of Common Stock are traded. The Company may, in its sole discretion, defer the effectiveness of any exercise of an Option granted hereunder in order to allow the issuance of shares of Common Stock pursuant thereto to be 21 made pursuant to registration or an exemption from registration or other methods for compliance available under federal or state securities laws. The Company shall inform the Participant in writing of its decision to defer the effectiveness of the exercise of an Option granted hereunder. During the period that the effectiveness of the exercise of an Option has been deferred, the Participant may, by written notice, withdraw such exercise and obtain the refund of any amount paid with respect thereto. 15. Withholding Taxes Whenever shares of Common Stock are to be issued upon the exercise of an Option, the occurrence of the Issue Date or Vesting Date with respect to a share of Restricted Stock or the payment of a Stock compensation, the Company shall have the right to require the Participant to remit to the Company in cash an amount sufficient to satisfy federal, state and local withholding tax requirements, if any, attributable to such exercise, occurrence or payment prior to the delivery of any certificate or certificates for such shares. In addition, upon the grant of a Cash Bonus or the making of a payment with respect to a share of Phantom Stock, the Company shall have the right to withhold from any cash payment required to be made pursuant thereto an amount sufficient to satisfy the federal, state and local withholding tax requirements, if any, attributable to such exercise or grant. 16. Amendment of the Plan The Board of Directors may at any time suspend or discontinue the Plan or revise or amend it in any respect whatsoever, provided, however, that without approval of the shareholders no revision or amendment shall (i) except as provided in Section 11 hereof, increase the number of shares of Common Stock that may be issued under the Plan, (ii) materially increase the benefits accruing to individuals holding Incentive Awards granted pursuant to the Plan or (iii) materially modify the requirements as to eligibility for participation in the Plan. 17. No Obligation to Exercise The grant to a Participant of an Option shall impose no obligation upon such Participant to exercise such Option. 18. Transfers Upon Death Upon the death of a Participant, outstanding Incentive Awards granted to such Participant may be exercised only by the executors or administrators of the Participant's estate or by any person or persons who shall have acquired such right to exercise by will or by the laws of descent and distribution. No transfer by will or the laws of descent and distribution of any Incentive Award, or the right to exercise any Incentive Award, shall be effective to bind the Company unless the Board shall have been furnished with (a) written notice thereof and with a copy of the will and/or such evidence as the Board may deem necessary to establish the validity of the transfer and (b) an agreement by the transferee to comply with all the terms and conditions of the Incentive Award that are or would have been applicable to the Participant and to be bound by the acknowledgments made by the Participant in 22 connection with the grant of the Incentive Award. 19. Expenses and Receipts The expenses of the Plan shall be paid by the Company. Any proceeds received by the Company in connection with any Incentive Award will be used for general corporate purposes. 20. Failure to Comply In addition to the remedies of the Company elsewhere provided for herein, failure by a Participant to comply with any of the terms and conditions of the Plan or the agreement executed by such Participant evidencing an Incentive Award, unless such failure is remedied by such Participant within ten days after having been notified of such failure by the Board, shall be grounds for the cancellation and forfeiture of such Incentive Award, in whole or in part as the Board, in its absolute discretion, may determine. CERTIFICATION OF ADOPTION (By the Board of Directors) The undersigned, being the President and CEO of Applied DNA Sciences, Inc. hereby certifies that the foregoing Plan was adopted by a unanimous vote of the Board of Directors on January 8, 2003. _______________________________ Lawrence Lee, President and CEO 23 EX-23.02 5 doc4.txt Exhibit 23.02 CONSENT OF ACCOUNTANTS CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS As independent certified public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8, of our report, which includes an explanatory paragraph regarding the substantial doubt about the Company`s ability to continue as a going concern, dated December 14, 2002, included in Applied DNA Sciences, Inc. Current Report on Form 8-K, as amended, dated October 21, 2002 for this period ended September 30, 2002, and to all reference to our firm included in this Registration Statement. RUSSELL BEDFORD STEFANOU MIRCHANDANI LLP McLean, Virginia January 10, 2003 -----END PRIVACY-ENHANCED MESSAGE-----