-----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, CJlbJRxr9bDpBIr+h7Um4ZqgPRw2wJX36PeGyeDC5PHpxQgvdL8xz4wV2Db5mCPx QSeZOHnkREVCCXMTe76hUQ== 0000921530-97-000162.txt : 19970929 0000921530-97-000162.hdr.sgml : 19970929 ACCESSION NUMBER: 0000921530-97-000162 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970926 EFFECTIVENESS DATE: 19970926 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: BIOSPECIFICS TECHNOLOGIES CORP CENTRAL INDEX KEY: 0000875622 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 113054851 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-36485 FILM NUMBER: 97686275 BUSINESS ADDRESS: STREET 1: 35 WILBUR ST CITY: LYNBROOK STATE: NY ZIP: 11563 BUSINESS PHONE: 5165937000 MAIL ADDRESS: STREET 1: 35 WILBUR STREET CITY: LYNBROOK STATE: NY ZIP: 11563 S-8 1 FORM S-8 RE BIOSPECIFICS TECHNOLOGIES CORP. As filed with the Securities and Exchange Commission on September 26, 1997 Registration No. 333-______ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 BioSpecifics Technologies Corp. (Exact Name of issuer as specified in its charter) Delaware 11-3054851 (State or Other Jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 35 Wilbur Street Lynbrook, New York 11563 (516) 593-7000 (Address of principal executive offices) -------------- BIOSPECIFICS TECHNOLOGIES CORP. 1997 STOCK OPTION PLAN (Full title of the plan) -------------- ALBERT HORCHER, Secretary BioSpecifics Technologies Corp. 35 Wilbur Street Lynbrook, New York 11563 (Name and address of agent for service) Telephone number, including area code, of agent for service: (516) 593-7000
CALCULATION OF REGISTRATION FEE ================================================================================================================================ Proposed Proposed Maximum Maximum Amount of Title of Shares Amount to be Offering Price Aggregate Registration to be Registered Registered Per Share(1) Offering Price(1) Fee - -------------------------------------------------------------------------------------------------------------------------------- Common Stock (par value $.001 per share).........................500,000 shares $4.625 $2,312,500 $701 ================================================================================================================================ (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 of the Securities Act of 1933, using the average of the high and low sale prices reported on the National Association of Securities Dealers Automated Quotation System on September 22, 1997. There are also registered hereunder such additional indeterminate number of shares as may be issued as a result of the antidilution provisions of the BioSpecifics Technologies Corp. 1997 Stock Option Plan.
PART I Item 1. PLAN INFORMATION. Not included pursuant to Form S-8 instructions. Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Not included pursuant to Form S-8 instructions. PART II Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. BioSpecifics Technologies Corp. (the "Company") hereby incorporates herein by reference the following documents: (1) The Company's annual report on Form 10-KSB for the year ended January 31, 1997; (2) All reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or after January 31, 1997, including the Company's Form 10-QSB for the period ended July 31, 1997; and (3) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A filed with the Securities and Exchange Commission (the "Commission") on February 21, 1992, including any amendments thereto and any reports filed for the purpose of updating such description (the "Registration Statement"). In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated herein by reference and to be a part hereof from the respective date of filing of each such document. Item 4. DESCRIPTION OF SECURITIES. Not applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law provides generally that a person sued as a director, officer, employee or agent of a corporation 2 may be indemnified by the corporation in nonderivative suits for expenses (including attorneys' fees), judgments, fines and amounts paid in settlement if such person acted in good faith and in a manner he or she reasonably believed to be in the best interest of the corporation. In the case of criminal actions and proceedings, such person must also have had no reasonable cause to believe his or her conduct was unlawful. Indemnification of expenses is authorized in stockholder derivative suits where such person in good faith and in a manner he or she reasonably believed to be in the best interests of the corporation and so long as he had not been found liable for negligence or misconduct in the performance of his duty to the corporation. Even in this latter instance, the court may determine that in view of all the circumstances such person is entitled to indemnification for such expenses as the court deems proper. The Company's By-laws authorize indemnification of directors, officers, employees and agents on the terms and conditions set forth in Section 145 of the Delaware General Corporation Law. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Act"), 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 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 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 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 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. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. Item 8. EXHIBITS. Exhibit No. Exhibit - ----------- ------- 3.1 Certificate of Amendment of Certificate of Incorporation of the Company (incorporated by reference from the Company's Registration Statement on Form S-18, filed with the Commission on November 14, 1991 (Registration No. 33-40850-NY (the "1991 Registration Statement")). 3.2 By-Laws of the Company, as amended (incorporated by reference from the 1991 Registration Statement). 4.1 BioSpecifics Technologies Corp. 1997 Stock Option Plan. 23.1 Consent of KPMG Peat Marwick LLP, independent accountants. 24.1 Power of Attorney (included on signature page of this Form S-8). 3 Item 9. UNDERTAKINGS. (a) The undersigned hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement; and (iii)To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the - -------- ------- information to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement. (2) that, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (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) The undersigned Company hereby undertakes that, for purposes of determining any liability under the Act, each filing of the Company's Annual Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's Annual Report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Act 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 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 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 proceeding) is 4 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 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. 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Lynbrook, State of New York on this day of September 26, 1997. BIOSPECIFICS TECHNOLOGIES CORP. /S/ EDWIN H. WEGMAN --------------------------------------- By: Edwin H. Wegman Chairman and President POWER OF ATTORNEY Each of the undersigned officers and directors of BioSpecifics Technologies Corp. hereby severally constitutes and appoints Albert Horcher and Thomas L. Wegman, and each of them severally, as attorney-in-fact for the undersigned, in any and all capacities, with full power of substitution, to sign this Registration Statement and any amendments to this Registration Statement (including post-effective amendments), and to file the same with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact full power and authority to do and perform each and every act requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
/S/ EDWIN H. WEGMAN Chairman of the Board, President and September 26, 1997 - ----------------------- Director (Principal Executive Officer) Edwin H. Wegman /S/ ALBERT HORCHER Secretary and Treasurer, Principal September 26, 1997 - ----------------------- Financial and Chief Accounting Officer Albert Horcher /S/ THOMAS L. WEGMAN Executive Vice President and Director September 26, 1997 - ----------------------- Thomas L. Wegman /S/ PAUL A. GITMAN Director September 26, 1997 - ----------------------- Paul A. Gitman, M.D. /S/ HENRY MORGAN Director September 26, 1997 - ----------------------- Henry Morgan Director September 26, 1997 - ----------------------- Sherman C. Vogel /S/ RAINER FRIEDEL Director September 26, 1997 - ----------------------- Rainer Friedel
INDEX TO EXHIBITS The following is a complete list of exhibits filed as part of this registration statement: Exhibit No. Exhibit - ----------- ------- 3.1 Certificate of Amendment of Certificate of Incorporation of the Company (incorporated by reference from the Company's Registration Statement on Form S-18, filed with the Commission on November 14, 1991 (Registration No. 33-40850-NY (the "1991 Registration Statement")). 3.2 By-Laws of the Company, as amended (incorporated by reference from the 1991 Registration Statement). 4.1 BioSpecifics Technologies Corp. 1997 Stock Option Plan. 23.1 Consent of KPMG Peat Marwick LLP, independent accountants. 24.1 Power of Attorney (included on signature page of this Form S-8). EX-4.1 2 1997 STOCK OPTION PLAN BIOSPECIFICS TECHNOLOGIES CORP. 1997 STOCK OPTION PLAN 1. Name and Purpose. The purpose of this Plan, which shall be known as the "BioSpecifics Technologies Corp. 1997 Stock Option Plan" (the "Plan"), is to advance the interests of BioSpecifics Technologies Corp. (the "Company") by providing a material incentive for the continued services of those key employees, independent agents, consultants, attorneys and directors of the Company or its Subsidiaries who made significant contributions toward the Company's success and development, by encouraging those key employees, independent agents, consultants, attorneys and directors to increase their proprietary interest in the Company and by attracting new, able executives to employment with the Company or its Subsidiaries. 2. Definitions. For purposes of this Plan, the following terms, when capitalized, shall have the meanings designated herein unless a different meaning is plainly required by the context. (a) "Board" shall mean the Board of Directors of the Company. (b) "Code" shall mean the Internal Revenue Code of 1986, as amended. (c) "Committee" shall mean a Stock Option Committee of not less than two directors of the Company, each of whom is a "non-employee" director within the meaning of Rule 16b-3(c) under the Exchange Act and/or an "outside director" within the meaning of Section 162(m)(4)(c)(I) of the Code and the Treasury Regulations issued thereunder. (d) "Common Shares" shall mean the shares of the Company's common stock, par value $.001 per share. (e) "Consultant" shall mean any independent agent, consultant or attorney to or for the Company or a Subsidiary who, in the opinion of the Board, has demonstrated a capacity for contributing in a substantial measure to the success of the Company and its Subsidiaries. (f) "Effective Date" shall mean the date on which this Plan shall have been approved by the directors and shareholders of the Company. (g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (h) "Fair Market Value" of the Common Shares on a certain date shall mean, if the Common Shares are listed on the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), the average of the closing bid and ask prices as quoted on NASDAQ on the date specified, or if the Common Shares are not quoted on NASDAQ on such date, on the next preceding date on which the Common Shares are traded. If the Common Shares are not listed on NASDAQ, then "Fair Market Value" of the Common Shares on a certain date shall be that value which the Board or the Committee determines, in good faith, to be the fair market value of the Common Shares on such date. (i) "Key Employee" shall mean any employee of the Company or a Subsidiary who, in the opinion of the Board, has demonstrated a capacity for contributing in a substantial measure to the success of the Company and its Subsidiaries. (j) "Non-Qualified Stock Options" shall mean those options granted by the Company pursuant to this Plan which do not qualify for favorable tax treatment under Section 422 of the Code. (k) "Participant" shall mean a Key Employee, Participating Director or Consultant selected by the Board to receive options, whether Qualified Incentive Stock Options or Non-Qualified Stock Options, granted under this Plan. (l) "Participating Director" shall mean any director of the Company or any Subsidiary who, in the opinion of the Board, has demonstrated a capacity for contributing in a substantial measure to the success of the Company and its Subsidiaries. (m) "Qualified Incentive Stock Options" shall mean those options granted by the Company pursuant to this Plan which qualify for favorable tax treatment under Section 422 of the Code. (n) "Retirement" shall mean retirement (i) on or after age 55 with 20 or more years of service, (ii) on or after age 60 or (iii) with the consent of the Committee. (o) "Securities Act" shall mean the Securities Act of 1933, as amended. (p) "Subsidiary" shall mean a subsidiary corporation of the Company as defined in Section 424(f) of the Code. 3. Administration; Selection of Participants. (a) This Plan shall be administered by the Committee or, with respect to non-employee directors, the Board, which shall select the Participants and shall grant to the Participants stock options under, and in accordance with, the provisions of this Plan. If the Committee is administering 2 the Plan, it shall report all action taken by it to the Board which shall review and ratify or approve those actions which are required by law to be so reviewed and ratified or approved by the Board. To the extent the Committee administers this Plan, all references herein to the "Board" shall mean the "Committee." The stock options granted under this Plan may be either Qualified Incentive Stock Options or Non-Qualified Stock Options, within the discretion of the Board. Non-Qualified Stock Options may be granted to any Participant, including Key Employees, Consultants and Participating Directors. Qualified Incentive Stock Options may be awarded only to Key Employees (including directors who are Key Employees). (b) Subject to the express provisions of this Plan, the Board shall have authority to (i) adopt regulations and procedures which are consistent with the terms of this Plan; (ii) adopt and amend stock option agreements between the Company and a Participant as they deem advisable and to determine the terms and provisions of such stock option agreements, including the number of shares with respect to which options are granted to a Participant, the option price for such shares, and the date or dates when the option or parts of it may be exercised, the restrictions applicable thereto, which need not be identical, and which terms shall comply with any applicable requirements of Paragraph 5 below; (iii) construe and interpret such stock option agreements and to impose therein such limitations and restrictions as are deemed necessary or advisable by counsel for the Company so that compliance with the federal securities laws and with the securities laws of the various states may be assured; and (iv) make all other determinations necessary or advisable for administering this Plan. All decisions and interpretations made by the Board shall be binding and conclusive on all Participants, their legal representatives and beneficiaries. 4. Shares Subject to the Plan. (a) The Shares to be issued and delivered by the Company upon exercise of options granted under this Plan (whether Qualified Incentive Stock Options or Non-Qualified Stock Options) are the Common Shares, which may be either authorized but unissued shares, or treasury shares, in the discretion of the Board. (b) The aggregate number of the Common Shares which may be issued under this Plan shall be 500,000; subject, however, to the adjustments provided in Paragraphs 10 and 18 after the Effective Date. The Board may, from time to time, increase the number of Shares available for grant under this Plan. (c) Shares covered by an option which is no longer exercisable with respect to such shares shall again be available for issuance in connection with other options granted under this Plan. 3 (d) During any calendar year, no Participant may be granted options pursuant to this Plan on more than 350,000 Common Shares subject to the adjustments provided in Paragraphs 10 and 18 after the Effective Date. 5. Terms of Options. Options granted under this Plan shall be evidenced by stock option agreements authorized by the Board and executed by a duly authorized officer of the Company. Such stock option agreements shall contain such terms as the Board shall determine, subject to the following limitations and requirements: (a) Option Price: The option price per Common Share shall be not less than 100% of the Fair Market Value of the Common Shares on the date of grant of such option; provided, however, that the option price of any Qualified Incentive Stock Options granted to any stockholder of the Company who owns at least 10% of the Common Shares shall not be less than 110% of such Fair Market Value. (b) Period within which option may be exercised: In general, options granted under this Plan will become exercisable in four equal, annual installments commencing one year after the date the option is granted, although the Board, in its discretion, may provide for different vesting schedules. Each option granted under this Plan shall terminate (become non-exercisable) after the expiration of ten years from the date of grant of such option; provided, however, that Qualified Incentive Stock Options granted to any stockholder of the Company who owns, at the time of grant, at least 10% of the Common Shares, shall terminate after the expiration of five years from the date of grant of such option. (c) Termination of option by reason of termination of employment, consultancy or directorship: Upon termination of a Key Employee's employment with the Company or a Subsidiary, all options granted under this Plan to such Participant which are not exercisable on the date of such termination shall immediately terminate, and any remaining exercisable options shall terminate if not exercised before the expiration of the applicable period specified below, or at such earlier time as may be applicable under subparagraph 5(b) above: (i) No later than thirty (30) days following such termination of employment if such termination was not a result of death or retirement of the Participant. (ii) No later than six (6) months following such termination of employment if such termination was because of death, or because of retirement under the provisions of any retirement plan of the Company or any Subsidiary, or with the consent of the Company. Whether time spent on leave of absence granted by the Company or any Subsidiary shall contribute continued employment for purposes of this Plan shall be determined by the Board in its sole discretion. 4 Notwithstanding the foregoing, the Board may, in its sole discretion, impose more restrictive conditions on the exercise of an option granted under this Plan, including, without limitation, restrictions relating to length of service, corporate performance, attainment of individual or group performance objectives, resale restrictions, federal or state securities laws and providing for no exercise of any option after termination of a Key Employee's employment. Any and all such conditions shall be specified in the stock option agreement limiting and defining such option. The Board may, in its sole discretion, impose similar conditions upon the exercise of any options granted to Consultants or to Participating Directors (who are not Key Employees), but is not required to do so. (d) Non-transferability: No option under this Plan shall be assignable or transferable except, in the event of the death of a Participant, by his or her will or by the laws of descent and distribution. In the event of the death of a Participant, the representative or representatives of his or her estate, or the person or persons who acquired (by bequest or inheritance) the rights to exercise his or her stock options granted under this Plan, may exercise any of the unexercised options or part thereof prior to the expiration of the applicable exercise period, as specified in sub-paragraphs 5(b) and 5(c) above, or in the stock option agreement relating to such options. No transfer of an option by a participant by will or by laws of descent and distribution shall be effective to bind the Company unless the Company shall have been furnished with written notice thereof and a copy of the will and such other evidence as the Company may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions of such option. (e) More than one option granted to a Participant: More than one option, and more than one form of option, may be granted to a Participant under this Plan. (f) Partial exercise: Unless otherwise provided in the stock option agreement, any exercise of an option granted under this Plan may be made in whole or in part. (g) Limitation on Amount of Qualified Incentive Stock Options: The aggregate fair market value (determined at the time the option is granted) with respect to which Qualified Incentive Stock Options become exercisable by a Participant for the first time during any calendar year (including all such plans of the Company and its Subsidiaries) shall not exceed $100,000. 6. Period of Granting Options. No option shall be granted under this Plan subsequent to ten years after the Effective Date. 5 7. No Effect Upon Employment Status. The fact that an employee, independent agent, consultant, attorney or director has been selected as a Participant shall not limit or otherwise qualify the right of his or her employer to terminate his or her employment, engagement or directorship at any time. 8. Method of Exercise. Any option granted under this Plan may be exercised by written notice to the Secretary of the Company, signed by the Participant, or by such other person as is entitled to exercise such option. The notice of exercise shall state the number of shares in respect of which the option is being exercised, and shall be accompanied by the payment, in cash, and/or, as provided below, in the Common Shares, of the full option price for such shares. At the written request of the Participant and upon approval by the Board, shares acquired pursuant to the exercise of any option may be paid for at the time of exercise by the surrender of Common Shares held by or for the account of the Participant at the time of exercise (for Qualified Incentive Stock Options only to the extent permitted by subsection (c) (4) of Section 422 of the Code, without liability to the Company). In such case, the fair market value of the surrendered shares shall be determined by the Board as of the date of exercise in the same manner as such value is determined upon the grant of an option. A certificate or certificates for the Common Shares purchased through the exercise of an option shall be issued in the regular course after the exercise of the option and payment therefor. The Company shall be afforded reasonable opportunity after exercise of any option to comply with any requirements for stock exchange listing, for registration under applicable securities or other laws and for compliance with other laws and regulations, if any, before issuance of the shares being purchased on such exercise. During the option period, no person entitled to exercise any option granted under this Plan shall have any of the rights or privileges of a shareholder with respect to any shares issuable upon exercise of such option until certificates representing such shares shall have been issued and delivered. 9. Implied Consent of Participants. Every Participant, by his or her acceptance of an option under this Plan, shall be deemed to have consented to be bound, on his or her own behalf and on behalf of his or her heirs, assigns, and legal representatives, by all of the terms and conditions of this Plan. 10. Share Adjustments. In the event there is any change in the Common Shares resulting from stock splits, stock dividends of more than 5% in any year, combinations or exchanges of shares, or other similar capital adjustments, equitable proportionate adjustments shall be made by the Board in (1) the number of shares available for option under this Plan, (2) the number of shares subject to options granted under this Plan, and (3) the option price of optioned shares. 11. Merger, Consolidation, or Sale of Assets. In the event the Company shall consolidate with, merge into, or transfer all or substantially all of its assets to another corporation or corporations (herein referred to as "successor employer corporation"), such successor employer corporation may obligate itself to continue this Plan and to assume all obligations under this Plan (for Qualified Incentive Stock Options, in a manner consistent with the provisions of Section 424(a) of the Code, or the provisions of that Section as it may be hereafter amended or as it may be replaced by any other section or sections of the Code of like intent or purpose). In the event that such successor employer corporation does not obligate itself to continue this Plan as above provided, 6 this Plan shall terminate upon such consolidation, merger or transfer, and any option previously granted hereunder shall terminate. If practical, the Company shall give each Participant twenty (20) days' prior notice of any possible transaction which might terminate this Plan and the options previously granted hereunder. 12. Conflicting Provisions. In case of any conflict between the provisions of this Plan and the provisions of a stock option agreement entered into pursuant to this Plan, the provisions of this Plan shall control. 13. Company Responsibility. All expenses of this Plan, including the cost of maintaining records, shall be borne by the Company. The Company shall have no responsibility or liability for any act or thing done or left undone with respect to the price, time, quality, or other conditions and circumstances of the purchase of shares under the terms of this Plan, so long as the Company acts in good faith. 14. Use of Proceeds. The proceeds received by the Company from the sale of stock under this Plan shall be added to the general funds of the Company and shall be used for such corporate purposes as the Board shall direct. 15. Tax Treatment. With respect to Qualified Incentive Stock Options, this Plan is intended to comply with the provisions of Section 422 of the Code. Any provisions of this Plan which conflict with the provisions of Section 422 shall be deemed to be hereby amended so as to comply therewith. 16. Law Governing. This Plan and the rights of all persons hereunder shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. 17. Securities Laws. The Board shall take all necessary or appropriate actions to ensure that all option grants and all exercises thereof under this Plan are in full compliance with all federal and state securities laws. 18. Withholding and Deductions. Notwithstanding anything to the contrary contained herein, if at any time specified herein for the making of any payment of cash or any delivery of Option stock to any person, by reason of the grant of an option, the exercise thereof, or otherwise, any law or regulation of any governmental authority having jurisdiction in the premises shall require the Company to withhold, or to make any deduction for any taxes or take any other action in connection with the payment or delivery then to be made, such payment or delivery, as the case may be, shall be deferred until such withholding or deduction shall have been adequately provided for, in the opinion of the Board. 18. 7 19. Amendment and Termination. The Board may alter, amend or terminate this Plan at any time, or from time to time, without obtaining any approval of the Company's shareholders; except that this Plan may not be amended to (a) change the option price of optioned shares (excepting proportionate adjustments made under Paragraph 10); (b) change the requirement that the option price per Common Share not be less than 100% of the Fair Market Value of the Common Shares on the date the option is granted (or less than 110% in the case of 10% stockholders being issued Qualified Incentive Stock Options); (c) to extend the time within which options may be granted or the time within which a granted option may be exercised; or (d) to change, without the consent of the Participant, any option previously granted to him or her under this Plan, except as provided herein. If this Plan is terminated, any unexercised option shall continue to be exercisable in accordance with its terms, except as provided in paragraph 11 above. 20. Variations in Pronouns. Whenever used in this Plan, unless the context otherwise requires, words used in the singular shall also include the plural, and words used in the masculine gender shall also include the feminine or neuter gender. 21. Captions and Headings. The Paragraph and subparagraph headings and captions are for reference purposes only and shall not in any way affect the meaning or interpretation of any such Paragraph or subparagraph of this Plan. 8 EX-23.1 3 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT KPMG PEAT MARWICK LLP Independent Auditors' Consent ----------------------------- Board of Directors Biospecifics Technologies Corp.: We consent to the use of our report dated April 18, 1997 incorporated herein by reference. /S/ KPMG PEAT MARWICK LLP ---------------------------------- KPMG PEAT MARWICK LLP Jericho, New York September 22, 1997 -----END PRIVACY-ENHANCED MESSAGE-----