-----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, JfA9VZtdpvuiQvTOO+d1xfUdUVDtr+sfUf+gOtz28iXrFrJQu6h0ELQRvJZnQ5CQ KK2GusHGjQ117L6GOYwcOQ== 0000889812-96-000028.txt : 19960117 0000889812-96-000028.hdr.sgml : 19960117 ACCESSION NUMBER: 0000889812-96-000028 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19960116 EFFECTIVENESS DATE: 19960204 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MARK SOLUTIONS INC CENTRAL INDEX KEY: 0000807397 STANDARD INDUSTRIAL CLASSIFICATION: PREFABRICATED METAL BUILDINGS & COMPONENTS [3448] IRS NUMBER: 112684481 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-00209 FILM NUMBER: 96503918 BUSINESS ADDRESS: STREET 1: 87 RTE 17 N CITY: MAYWOOD STATE: NJ ZIP: 07607 BUSINESS PHONE: 2013688118 MAIL ADDRESS: STREET 1: 87 ROUTE 17 NORTH CITY: MAYWOOD STATE: NJ ZIP: 07607 FORMER COMPANY: FORMER CONFORMED NAME: SHOWCASE COSMETICS INC DATE OF NAME CHANGE: 19920703 S-8 1 REGISTRATION STATEMENT As filed with the Securities and Page 1 of 30 Pages Exchange Commission on January 16, 1996 Reg. No. 33- - ------------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MARK SOLUTIONS, INC. (Exact name of Registrant as specified in its charter) Delaware 11-2864481 (State or other jurisdiction (IRS Employer of incorporation or organization) Identification No.) Parkway Technical Center 1515 Broad Street Bloomfield, New Jersey 07003 (Address of principal offices including zip code) 1993 Stock Option Plan and Consultant Stock Option Grants Pursuant to Written Agreements (Full Title of Plans) Carl Coppola, President Mark Solutions, Inc. 1515 Broad Street Bloomfield, New Jersey 07003 (Name and Address of agent for service) (201) 893-0500 (Telephone number including area code for agent for service) CALCULATION OF REGISTRATION FEE ============================================================================== Title of Each Amount to be Proposed Proposed Maximum Amount of Class of Registered(1) Maximum Aggregate of Registration Securities to Offering Offering Price (2) Fee (1) be Registered Price Per Share (2) - ------------------------------------------------------------------------------ Common Stock, $.01 par value 1,055,000 $ 5.75 $ 6,066,250 $ 2,091.81 ============================================================================== (1) Also registered hereby pursuant to Rule 416 are such additional indeterminate shares of Common Stock or other securities as may become issuable by reason of stock splits or other adjustments pursuant to antidilution provisions of the 1993 Stock Option Plan and Consultant Stock Option Grants. (2) Estimated solely for purposes of calculating registration fee pursuant to Rule 457 based upon the last sales price as reported on NASDAQ within the prior five days. Exhibit Index Appears on Page 8 MARK SOLUTIONS, INC. Form S-8 Registration Statement For 1993 Stock Option Plan and Consultant Stock Option Grants Pursuant to Written Agreements _______________________________________ PART I. Information Required in Section 10(a) Prospectus This Registration Statement is filed with the Securities and Exchange Commission (the "Commission") for the purpose of registering 1,055,000 shares of common stock, $.01 par value, ("Common Stock") of the Registrant in connection with its 1993 Stock Option Plan (the "Plan") and Consultant Stock Option Grants pursuant to written agreements (the "Option Grants"). Information required by Part I (Items 1 and 2) is included in documents sent or given to participants in the Plan and Option Grants pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). PART II. Information Required in Registration Statement Item 3- Incorporation of Documents by Reference. The following documents are incorporated by reference into this Registration Statement, and are made a part hereof: (a) The Registrant's Annual Report on Form 10-K, containing audited financial statements, for the fiscal year ended June 30, 1995. (b) The Registrant's quarterly report on Form 10-Q for the fiscal quarter ended September 30, 1995. (c) All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, after the date of this Registration Statement and prior to the filing of a post-effective amendment indicating that all of the securities offered hereby have been sold, or deregistering all such securities then remaining unsold, shall be deemed to be incorporated by reference and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is -2- incorporated or deemed incorporated by reference herein modifies or supersedes such statement. Any such document so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. (d) The description of securities of the Registrant offered hereunder contained in Registrant's Joint Proxy Statement/Prospectus on Form S-4 declared effective by the Commission on October 8, 1993 (Commission File Number 33-61176). Item 4- Description of Securities. Not applicable. Item 5- Interests of Named Experts and Counsel. Timothy J. McCartney, Esq., legal counsel to the Registrant, is rendering the opinion regarding the legality of the securities offered pursuant this Registration Statement. Mr. McCartney has been granted options to purchase up to 30,000 shares of the Registrant's Common Stock and such shares are being registered under this Registrant Statement. Item 6- Indemnification of Officers and Directors. Reference is made to Article Seven of the Certificate of Incorporation of the Registrant and Section 145 of the Delaware General Corporation Law. Article Seven of the Certificate of Incorporation of the Registrant provides for indemnification to the full extent permitted by Delaware law of all persons whom it shall have the power to indemnify thereunder. Section 145 of the General Corporation Law of the State of Delaware ("GCL") contains provisions entitling directors and officers of the Registrant to indemnification from judgments, fines, amounts paid in settlement and reasonable expenses, including attorney's fees, as the result of being or having been a director or officer of the Registrant provided said officers or directors acted in good faith. GCL Section 145 provides broad powers of indemnification of directors and officers by their corporation. For example, the board of directors, the shareholders, or independent legal counsel in some circumstances may authorize the corporation to indemnify any officer or director again expenses (including attorneys' fees), judgments, fines and amounts paid in settlement, actually and reasonable incurred by him in connection with any "threatened, pending or completed action, suit or proceeding other than an action by or in the right of the corporation, whether civil, -3- criminal, administrative or investigative -- by reason of the fact that he is or was a director or officer of the corporation, if such director or officer acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful". With respect to any threatened, pending or completed action or suit by or in the right of a Delaware corporation, the corporation may in like manner indemnify any officer or director against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such personal shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation, but only if and to the extent that the Court of Chancery or the court in which the action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Should a director or officer defend litigation arising out of his office and be successful on the merits or otherwise in defense of the action, GCL Section 145 provides that such officer or director shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. Finally, a corporation organized under the GCL shall have power to purchase and maintain insurance on behalf of any director or officer against any liability asserted against him and incurred by him in such capacity or arising out of his status as an officer or a director, whether or not the corporation would have the power to indemnify him against such liability under the before described provisions of Section 145 of the GCL. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors and officers, or persons controlling the Registrant, the Registrant has been informed that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. The Registrant has obtained insurance to protect its directors and officers against certain liabilities under a directors and officers policy providing customary coverage. -4- Item 7- Exemption From Registration Claimed. Not applicable. Item 8- Exhibits. Reference is made to the Exhibit Index which is included on page 8 of this Registration Statement. Item 9- Undertakings. 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 additional or changed material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (2) That, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be treated as a new registration statement relating to the securities offered herein, and shall treat the offering of such securities at that time as 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. (4) That for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, (and where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) 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 provisions set forth in Item 6 hereof 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, and is therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the -5- payment by 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 of the Registrant 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 of whether such indemnification by it is against public policy as expressed in the Securities Act of 1933, and will be governed by the final adjudication of such issue. -6- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing a registration statement 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 Bloomfield, State of New Jersey on January 15, 1996. MARK SOLUTIONS, INC. By: /s/ Carl Coppola ---------------------------------- Carl Coppola, President, Chief Executive Officer and Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date - --------- ----- ---- /s/ Carl Coppola President, Chief January 15, 1996 - --------------------- Executive Officer Carl Coppola Chief Financial Officer and Director /s/ Richard Branca Director January 15, 1996 - --------------------- (Richard Branca) /s/ Ronald E. Olszowy Director January 15, 1996 - --------------------- (Ronald E. Olszowy) /s/ William Westerhoff Director January 15, 1996 - --------------------- (William Westerhoff) /s/ Michael Nafash Director January 15, 1996 - --------------------- (Michael Nafash) -7- EXHIBIT INDEX ------------- Exhibit numbers are in accordance with the Exhibit Table in Item 601 of Regulation S-K. Exhibit Sequential Number Description Page No. - ------ ----------- -------- 4.1 Mark Solutions, Inc. 1993 Stock Option Plan 9 4.2 Form of Stock Option Grant Agreement 23 5.1 Opinion of Timothy J. McCartney, Esq. re: legality 29 23.1 Consent of Sax Macy Fromm & Co., P.C. 30 23.2 Consent of Timothy J. McCartney, Esq. (included in Exhibit 5.1) -8- EX-4.1 2 MARK SOLUTIONS, INC. 1993 STOCK OPTION PLAN Exhibit 4.1 MARK SOLUTIONS, INC. 1993 STOCK OPTION PLAN TABLE OF CONTENTS ----------------- Page ---- Section 1. PURPOSE................................. 1 Section 2. DEFINITIONS............................. 1 2.1 Board................................. 1 2.2 Code.................................. 1 2.3 Committee............................. 1 2.4 Corporation........................... 1 2.5 Exchange Act.......................... 1 2.6 Fair Market Value..................... 1 2.7 Key Employee.......................... 2 2.8 Option................................ 2 2.9 Option Certificate.................... 2 2.10 Option Price.......................... 2 2.11 Parent Corporation.................... 2 2.12 Plan.................................. 2 2.13 Principal Officer..................... 2 2.14 Securities Act........................ 2 2.15 Stock................................. 2 2.16 Subsidiary............................ 2 2.17 Ten Percent Shareholder............... 3 Section 3. SHARES SUBJECT TO OPTIONS............... 3 Section 4. EFFECTIVE DATE.......................... 3 Section 5. COMMITTEE............................... 3 Section 6. ELIGIBILITY............................. 4 Section 7. GRANT OF OPTIONS........................ 7.1 Committee Action.................... 4 7.2 $100,000 Limit...................... 4 Section 8. OPTION PRICE............................ 5 Section 9. EXERCISE PERIOD......................... 5 Section 10. NONTRANSFERABILITY...................... 6 Section 11. SECURITIES REGISTRATION AND RESTRICTIONS 7 i Section 12. LIFE OF PLAN............................ 7 Section 13. ADJUSTMENT.............................. 8 Section 14. SALE OR MERGER OF THE CORPORATION....... 8 Section 15. AMENDMENT OR TERMINATION................ 9 Section 16. MISCELLANEOUS........................... 9 16.1 No Shareholder Rights............... 9 16.2 No Contract of Employment........... 10 16.3 Withholding......................... 10 16.4 Construction........................ 10 ii Section 1. PURPOSE The purpose of this Plan is to promote the interests of the Corporation by granting Options to purchase Stock to Key Employees in order to (a) attract and retain Key Employees; (b) provide an additional incentive to each Key Employee to work to increase the value of the Stock; and (c) provide each such Key Employee with a stake in the future of the Corporation which corresponds to the stake of each of the Corporation's shareholders. Section 2. DEFINITIONS Each term set forth in this Section 2 shall have the meaning set forth opposite such term for purposes of this Plan and for any Option granted under this Plan. For purposes of such definitions, the singular shall include the plural and the plural shall include the singular. Unless otherwise expressly indicated, all Section references herein shall be construed to mean references to a particular Section of this Plan. 2.1 Board means the Board of Directors of the Corporation. 2.2 Code means the Internal Revenue Code of 1986, as amended. 2.3 Committee means the committee or either of the committees appointed by the Board to administer this Plan as contemplated by Section 5. 2.4 Corporation means Mark Solutions, Inc., a Delaware corporation, and any successor to such corporation. 2.5 Exchange Act means the Securities Exchange Act of 1934, as amended. 2.6 Fair Market Value means the price which the Committee acting in good faith determines through any reasonable valuation method that a share of Stock might change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of the relevant facts. -1- 2.7 Key Employee means any employee of the Corporation or a Subsidiary, who, in the judgment of the Committee acting in its absolute discretion, is a key to the success of the Corporation or a Subsidiary. 2.8 Option means any option granted under this Plan to purchase Stock which satisfies the requirements of Section 422 of the Code. 2.9 Option Certificate means the written agreement or instrument which sets forth the terms of an Option granted to a Key Employee under this Plan. 2.10 Option Price means the price which shall be paid to purchase one share of stock upon the exercise of an Option granted under this Plan. 2.11 Parent Corporation means any corporation which is a parent corporation of the Corporation within the meaning of Section 424(e) of the Code. 2.12 Plan means this Mark Solutions, Inc. 1993 Stock Option Plan, as amended from time to time. 2.13 Principal Officer means the Chairman of the Board (if the Chairman of the Board is a payroll employee), the Chief Executive Officer, the President, any Executive Vice President, any Senior Vice President, any Vice President and the Treasurer of the Corporation and any other person who is an "officer" of the Corporation as that term is defined in Rule 16a-1(f) under the Exchange Act or any successor rule thereunder. 2.14 Securities Act means the Securities Act of 1933, as amended. 2.15 Stock means the Common Stock, $.01 par value per share, of the Corporation. 2.16 Subsidiary means any corporation which is a subsidiary corporation of the Corporation within the meaning of Section 424(f) of the Code. -2- 2.17 Ten Percent Shareholder means a person who owns after taking into account the attribution rules of Section 424(d) of the Code more than ten percent (10%) of the total combined voting power of all classes of stock of either the Corporation, a Subsidiary or a Parent Corporation. Section 3. SHARES SUBJECT TO OPTIONS There shall be 1,000,000 shares of Stock reserved for issuance in connection with Options under this Plan. Such shares of Stock shall be reserved to the extent that the Corporation deems appropriate from authorized but unissued shares of Stock and from shares of Stock which have been reacquired by the Corporation. Any shares of Stock subject to an Option which remain after the cancellation expiration or exchange of such Option for another Option thereafter shall again become available for use under this Plan. Section 4. EFFECTIVE DATE The effective date of this Plan shall be the date it is originally approved and adopted by the Board of the Corporation, subject to approval by the shareholders of the Corporation acting at a duly called meeting of such shareholders or acting by unanimous written consent in lieu of a meeting, provided such shareholder approval occurs within twelve (12) months after the date the Board approves and adopts this Plan. Section 5. COMMITTEE This Plan shall be administered by the Committee. The Committee acting in its absolute discretion shall exercise such powers and take such action as expressly called for under this Plan. Furthermore, the Committee shall have the power to interpret this Plan and to take such other action in the administration and operation of this Plan as the Committee deems equitable under the circumstances, which action shall be binding on the Corporation, on each affected Key Employee, and on each other person directly or indirectly affected Key Employee, and on each other person directly or indirectly affected by such action. The Board may designate one Committee, all of the members of which are members of the Board. -3- Section 6. ELIGIBILITY Only Key Employees shall be eligible for the grant of Options under this Plan. Section 7. GRANT OF OPTIONS 7.1 Committee Action. The Committee in its absolute discretion shall grant Options to Key Employees under this Plan from time to time to purchase shares of Stock and, further, shall have the right to grant new Options in exchange for outstanding Options. Each grant of an Option shall be evidenced by an Option Certificate, and each Option Certificate shall: (a) specify that the Option is an "incentive stock option"; (b) incorporate such other terms and conditions as the Committee acting in its absolute discretion deems consistent with the terms of this Plan, including, without limitation, a limitation on the number of shares subject to the option which first became exercisable or subject to surrender during any particular period. In connection with the termination for any reason of employment by or service to the Corporation or any Subsidiary of any particular holder of any Option, the Committee may, in its discretion, determine to modify the number of shares of Stock as to which such Option first becomes exercisable during any particular period as provided in the related Option Certificate; provided, however, that the Committee may not extend any such period with respect to any shares of Stock subject to such Option. 7.2 $100,000 Limit. To the extent that the aggregate Fair Market Value of the stock with respect to which Options satisfying the requirements of Section 422 of the Code granted a Key Employee under this Plan and under any other stock option plan adopted by the -4- Corporation, a Subsidiary or a Parent Corporation first become exercisable in any calendar year exceeds $100,000 (based upon the Fair Market Value on the date of the grant), such Options shall be treated as non-qualified options. Section 8. OPTION PRICE The Option Price for each share of Stock subject to an Option shall not be less than the Fair Market Value of a share of Stock on the date the Option is granted, or if the Key Employee is a Ten Percent Shareholder, the Option Price for each share of Stock subject to such Option shall not be less than 110% of the Fair Market Value of a share of Stock on the date the Option is granted. The Option Price shall be payable in cash in full upon the exercise of any Option. Section 9. EXERCISE PERIOD Each Option granted under this Plan shall be exercisable in whole or in part at such time or times as set forth in the related Option Certificate, but no Option Certificate shall provide that: (a) an Option is exercisable before the date such Option is granted, or (b) an Option is exercisable after the date which is the tenth anniversary of the date such option is granted. If an Option is granted to a Key Employee who is a Ten Percent Shareholder the Option Certificate shall provide that the Option is not exercisable after the expiration of five years from the date the Option is granted. An Option Certificate may provide for the exercise of an Option after the employment of a Key Employee has terminated only as provided below. Upon the occurrence of the Key employee's ceasing for any reason to be employed by the Corporation (such occurrences being a "termination of employment"), the Option, the extent not previously exercised, shall terminate and become null and void immediately upon such termination of employment, except in a case where the termination of the -5- Key Employee's employment is by reason of retirement, disability or death. Upon a termination of employment by reason of retirement, disability or death, the Option may be exercised during the following periods, but only to the extent that the Option was outstanding and exercisable on any such date of retirement, disability or death: (i) the one-year period following the date of such termination of employment in the case of a disability (within the meaning of Section 22(e)(3) of the Code), (ii) the six-month period following the date of issuance of letters testamentary or letters of administration to the executor or administrator of a deceased Key Employee, in the case of death during his employment by the Corporation, but not later than one year after the Key Employee's death, and (iii) the three-month period following the date of such termination in the case of retirement on or after attainment of age 65, or in the case of disability other than as described in (i) above. In no event, however, shall any such period extend beyond the original exercise period. A transfer of the Key Employee's employment between the Corporation and any Subsidiary, or between any Subsidiaries, shall not be deemed to be a termination of the Key Employee's employment. Notwithstanding any other provisions set forth herein or in the Plan, if the Key Employee shall (i) commit any act of malfeasance of wrongdoing affecting the Corporation or any Subsidiary, (ii) breach any covenant not to compete, or employment contract, with the Corporation or any Subsidiary, or (iii) engage in conduct that would warrant the Key Employee's discharge for cause (excluding general dissatisfaction with the performance of the Key Employee's duties, but including any act of disloyalty or any conduct clearly tending to bring discredit upon the Corporation or any Subsidiary), any unexercised portion of the Option shall immediately terminate and be void. Section 10. NONTRANSFERABILITY No Option granted under this Plan shall be transferable by a Key Employee otherwise than by will or by the laws of descent and distribution, and such Option shall be exercisable during a Key Employee's lifetime only by the Key Employee. The person or persons to whom an Option is transferred by will or by the laws of descent and distribution -6- thereafter shall be treated as the Key Employee for purposes of this Plan. Section 11. SECURITIES REGISTRATION AND RESTRICTIONS Each Option Certificate shall provide that, upon the receipt of shares of Stock as a result of the exercise of an Option, the Key Employee shall, if so requested by the Corporation, hold such shares of Stock for investment and not with a view toward resale or distribution to the public and, if requested by the Corporation, shall delvier to the Corporation a written statement to that effect satisfactory to the Corporation. Each Option Certificate shall also provide that, if so requested by the Corporation, the Key Employee shall represent in writing to the Corporation that he or she will not sell or offer to sell any such shares of Stock unless a registration statement shall be in effect with respect to such Stock under the Securities Act and any applicable state securities law or unless he or she shall have furnished to the Corporation an opinion, in form and substance satisfactory to the Corporation, of legal counsel acceptable to the Corporation, that such registration is not required. Certificates representing the Stock transferred upon the exercise of an Option granted under this Plan may at the discretion of the Corporation bear a legend to the effect that such Stock has not been registered under the Securities Act or any applicable state securities law and that such Stock may not be sold or offered for sale in the absence of (i) an effective registration statement as to such Stock under the Securities Act and any applicable state securities law or (ii) an opinion, inform and substance satisfactory to the Corporation, of legal counsel acceptable to the Corporation, that such registration is not required. Furthermore, the Corporation shall have the right to require a Key Employee to enter into such shareholder or other related agreements as the Corporation deems necessary or appropriate under the circumstances as a condition to the issuance of any Stock under this Plan to a Key Employee. Section 12. LIFE OF PLAN No Option shall be granted under this Plan on or after the earlier of (a) the tenth anniversary of the original effective date of this Plan as determined under Section 4; provided, however, that after such anniversary date this Plan otherwise shall -7- continue in effect until all outstanding Options have been exercised in full or no longer are exercisable, or (b) the date on which all of the Stock reserved under Section 3 of this Plan has, as a result of the exercise of Options granted under this Plan, been issued or no longer is available for use under this Plan, in which event this Plan also shall terminate on such date. Section 13. ADJUSTMENT The number of shares of Stock reserved under Section 3 of this Plan, and the number of shares of Stock subject to Options granted under this Plan and the Option Price of such Options shall be adjusted by the Board in an equitable manner to reflect any change in the capitalization of the Corporation, including, but not limited to, such changes as stock dividends or stock splits. Furthermore, the Board shall have the right to adjust in a manner which satisfies the requirements of Section 424(a) of the Code the number of shares of Stock reserved under Options granted under this Plan and the Option Price of such Options in the event of any corporate transaction described in Section 424(a) of the Code that provides for the substitution or assumption of such Options. If any adjustment under this Section 13 would create a fractional share of Stock or a right to acquire a fractional share of Stock, such fractional share shall be disregarded and the number of shares of Stock reserved under this Plan and the number subject to any Options granted under this Plan shall be the next lower number of shares of Stock, rounding all factions downward. An adjustment made under this Section 13 by the Board shall be conclusive and binding on all affected persons and, further, shall not constitute an increase in "the number of shares reserved under Section 3" within the meaning of Section 15(a) of this Plan. Section 14. SALE OR MERGER OF THE CORPORATION If the Corporation agrees to sell all or substantially all of its assets for cash or property or for a combination of cash and property or agrees to any merger, consolidation, reorganization, division or other corporate transaction in which Stock is converted into another security or -8- into the right to receive securities or property and such agreement does not provide for the assumption or substitution of the Options granted under this Plan, each then outstanding Option at the direction and discretion of the Board may be canceled unilaterally by the Corporation as of the effective date of such transaction in exchange for the same net consideration which each Key Employee would have received if each such Option had been exercisable in full on such date and each Key Employee had exercised each such Option for Stock under Section 11 on such date and then sold such Stock on such date. Section 15. AMENDMENT OR TERMINATION This Plan may be amended by the Board from time to time to the extent that the Board deems necessary or appropriate; provided, however, that no such amendment shall be made absent the approval of the shareholders of the Corporation (a) to increase the aggregate number of shares reserved under Section 3, (b) to extent the maximum life of the Plan under Section 12 or the maximum exercise period under Section 9, (c) to decrease the minimum option price under Section 8, (d) to change the class of persons eligible for Options under Section 6 or to otherwise materially modify the requirements as to eligibility for participation in this Plan, or (e) to otherwise materially increase the benefits accruing under this Plan. The Board also may suspend the granting of Options under this Plan at any time and may terminate this Plan at any time; provided, however, that the Corporation shall not have the right unilaterally to cancel or, in a manner which would materially adversely affect the holder, amend or modify any Option granted before such suspension or termination unless (i) the Key Employee consents in writing to such modification, amendment or cancellation or (ii) there is a dissolution or liquidation of the Corporation or a transaction described in Section 13 or Section 14 of this Plan. Section 16. MISCELLANEOUS 16.1 No Shareholder Rights. No Key Employee shall have any rights as a shareholder of the Corporation as a result of the grant of an Option to him or to her under this Plan or his or her exercise of such Option pending the actual delivery of Stock subject to such Option to such Key Employee. -9- 16.2 No Contract of Employment. The grant of an Option to a Key Employee under this Plan shall not constitute a contract of employment and shall not confer on a Key Employee any rights upon his or her termination of employment or service in addition to those rights, if any, expressly set forth in the Option Certificate which evidences his or her Option. 16.3 Withholding. The exercise of any Option granted under this Plan shall constitute a Key Employee's full and complete consent to whatever action the Committee elects to satisfy the federal and state tax withholding requirements, if any, which the Committee in its discretion deems applicable to such exercise or surrender. 16.4 Construction. This Plan and the Option Certificates shall be construed under the laws of the State of New Jersey. -10- EX-4.2 3 FORM OF STOCK OPTION GRANT AGREEMENT Exhibit 4.2 WARRANT TO PURCHASE COMMON STOCK VOID AFTER ************ MARK SOLUTIONS, INC. (INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE) NUMBER PURCHASE WARRANTS **** --*****-- PURCHASE WARRANT CERTIFICATE THIS CERTIFIES that: *********************** is the owner of **************** (******) Warrants, and is entitled to purchase from MARK SOLUTIONS, INC., a corporation incorporated under the laws of the State of Delaware (the "Company") fully paid and non-assessable shares of Common Stock, $ .01 par value, of the Company, ("Common Stock"), upon presentation and surrender of this Warrant with the Subscription Form duly executed, on or before ************* (the "Expiration Date") at the offices of the Company and upon payment thereof of the purchase price, in lawful money of the United States of America. The purchase price shall be $ **** per share, subject to adjustment as herein provided (the "Exercise Price"). 1. Transferability and Divisibility. Subject to the restrictions set forth in this Section, this Warrant may not be divided and is not transferable. 2. Exercise. The Holder may exercise the Warrant with respect to all or any part of the number of shares of Common Stock then exercisable hereunder by giving the Secretary of the Company written notice of intent to exercise. The notice of exercise shall specify the number of shares as to which the Warrant is to be exercised and the date of exercise thereof. On the exercise date or as soon thereafter as is practicable, the Company shall cause to be delivered to the Holder, a certificate or certificates for the shares then being purchased upon full payment for such shares. -1- 3. Registration Rights. If applicable, the Holder of the Warrant shall be entitled to include the Common Stock underlying the Warrant in any registration statement with the Securities and Exchange Commission under the Securities Act of 1933, as amended (other than as to Common Stock issued pursuant to a Registration Statement on Form S-8 or S-4 or their successor form) during the term of this Warrant, provided, however, if the registration statement is being filed in connection with a firm commitment underwriting, such registration of the underlying Common Stock shall be subject to the approval of the underwriter. The Company shall give the Warrant holders at least ten (10) days prior notice of any such filing of a registration statement. All fees, disbursements and out of pocket expenses (other than the warrant holders brokerage fees and commissions, applicable transfer taxes and counsel fees and disbursements) in connection with the registration statement, including compliance with applicable securities and "blue sky" laws shall be borne by the Company. 4. Anti-dilution Provisions. The Exercise Price and the number and kind of securities purchasable upon the exercise of this Warrant shall be subject to adjustment from time to time upon the happening of certain events as hereinafter provided. The Exercise Price in effect at any time and the number and kind of securities purchasable upon exercise of each Warrant shall be subject to adjustment as follows: (a) In case the Company shall (i) pay a dividend or make a distribution on its share of Common Stock in shares of Common Stock, (ii) subdivide or reclassify its outstanding Common Stock into a greater number of shares, or (ii) combine or reclassify its outstanding Common stock into a smaller number of shares, the Exercise Price in effect at the time of the record date for such dividend or distribution or of the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the Holder of this Warrant exercised after such date shall be entitled to receive the aggregate number and kind of shares which, if this Warrant had been exercised by such Holder immediately prior to such date, he would have owned upon such exercise and been entitled to receive upon such dividend, subdivision, combination or reclassification. Such adjustment shall be made successively whenever any event listed above shall occur. (b) Whenever the Exercise Price payable upon exercise of each Warrant is adjusted pursuant to Subsection (a) above, the number of Shares purchasable upon exercise of this Warrant shall simultaneously be adjusted by multiplying the number of Shares initially issuable upon exercise of this Warrant by the Exercise Price in effect on the date hereof and dividing the product so obtained by the Exercise Price, as adjusted. -2- (c) No adjustment shall be made by reason of the issuance in exchange for cash, property or services, of shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or carrying the right to purchase any of the foregoing. There are no other anti-dilution provisions. (d) In the event that at any time, as a result of an adjustment made pursuant to Subsection (a) above, the Holder of this Warrant thereafter shall become entitled to receive any shares of the Company, other than Common Stock, thereafter the number of such other shares so receivable upon exercise of this Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Stock contained herein. (e) Irrespective of any adjustments in the Exercise Price or the number or kind of shares purchasable upon exercise of this Warrant, Warrants theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the similar Warrants initially issuable pursuant to this Agreement. 5. Consolidations and Mergers. If prior to the Expiration Date, the Company shall consolidate with, or merge into another company (except for a merger or consolidation in which the Company is the continuing corporation), the holder of this Warrant will thereafter be entitled to receive, upon the exercise thereof, the securities or property to which the holder of the number of shares of Common Stock then deliverable upon the exercise hereof would have owned or have been entitled to receive upon such consolidation or merger, and the Company shall take such steps in connection with such consolidation or merger as may be necessary to assure that the provisions of this Warrant shall thereafter be applicable as nearly as reasonably may be, in relation to any securities and property thereafter deliverable upon the exercise of this Warrant. A sale, conveyance or lease to another corporation of the assets of the Company as an entirety or substantially as an entirety, in connection which the Company is dissolved, shall be deemed a consolidation or merger for the foregoing purposes. 6. Fractional Interests. The Company shall not issue fractions of shares of Common Stock upon exercise of this Warrant but in lieu thereof make payment in cash based on the Exercise Price in effect at that time or (ii) issue scrip certificates evidencing such fractional interests which when presented with other like certificates representing in the aggregate least one whole share, may be exchanged for whole shares of Common Stock. Such scrip certificates may become void and of no effect after a reasonable period as specified in such scrip certificate. The computation of any fractional interest shall be made to the first two decimal points without rounding. -3- 7. Reservation of Shares; Issuance. The Company shall reserve a sufficient number of shares of Common Stock to satisfy the requirements of this Warrant. The Company will take all action necessary to insure that all shares issued upon exercise of this arrant will be duly and validly authorized and issued and fully paid and non-assessable. 8. Notices. Any notices required under this Warrant shall be deemed given on the date mailed if sent by certified mail, return receipt requested or on the date of actual receipt by facsimile or other means. All notices to the holder of this Warrant shall be sent to the address indicated on the Warrant register. 9. Miscellaneous. This Warrant will be governed by the substantive laws of the State of New Jersey. This Warrant shall be binding upon the successors or assigns of the Company. Dated: ***************** MARK SOLUTIONS, INC. By:_________________________ Carl Coppola, President -4- SUBSCRIPTION FORM To Be Executed By The Holder in Order To Exercise The Warrant To: MARK SOLUTIONS, INC. The undersigned irrevocably elects to exercise the right of purchase represented by the within Warrant for, and to purchase thereunder ____________________________________________________ shares of the stock provided for therein and tenders payment herewith to the order of MARK SOLUTIONS, INC. in the amount of $ __________________ in accordance with the terms of the Warrant. The undersigned requests that the certificates for such shares be issued in the name of _____________________________________________ Insert Social Security Number or Other Identifying Number of Designated Stockholder _____________________ Dated __________________ ________________________________ Warrantholder -5- EX-5.1 4 OPINION OF TIMOTHY J. MCCARTNEY, ESQ. Exhibit 5.1 TIMOTHY J. McCARTNEY* Attorney-at-Law 9 Elsa Way Richboro, Pennsylvania 18954 _________ Telephone (215) 396-7156 Facsimile (215) 396-7157 * Member of N.Y. Bar January 15, 1996 Mark Solutions, Inc. 1515 Broad Street Bloomfield, New Jersey 07003 Re: Form S-8 Registration Statement Ladies and Gentlemen: I have acted as counsel for Mark Solutions, Inc. (the "Company") in connection with the registration of 1,055,000 shares of Common Stock, $ .01 par value, of the Company (the "Shares") under the Securities Act of 1933, as amended on a Form S-8 registration statement (the "Registration Statement") to be filed on January 16, 1996 with the Securities and Exchange Commission. I have examined originals or copies, certified or otherwise identified to my satisfaction, of such corporate records, agreements and other instruments and based upon such documents and other investigation as I have deemed necessary I am of the opinion that: 1. The Company has been duly organized and is validly existing as a business corporation in good standing under the laws of the State of Delaware. 2. Upon effectiveness of the Registration Statement and the delivery and issuance of the Shares as described therein, such Shares will be validly issued, fully paid and non-assessable. I hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and the related prospectus and further consent to the use of my name in the Registration Statement. Very Truly Yours, Timothy J. McCartney EX-23.1 5 CONSENT OF SAX MACY FROMM & CO., P.C. Exhibit 23.1 SAX MACY FROMM & CO., P.C. INDEPENDENT AUDITORS' CONSENT As independent certified public accountants, we hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of our report dated September 7, 1995 included in Mark Solution, Inc.'s Annual Report on Form 10-K including financial statements for the fiscal year ended June 30, 1995 and to all references to this accounting firm included in the Registration Statement. Sax Macy Fromm & Co., P.C. Clifton, New Jersey January 15, 1996 -----END PRIVACY-ENHANCED MESSAGE-----