UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CURAEGIS TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
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New York |
16-1509512 |
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(State or other jurisdiction of incorporation or organization) |
(IRS Employer ID Number) |
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1999 Mount Read Blvd., Bldg. 3 |
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Rochester, New York |
14615 |
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(Address of Principal Executive Office) |
(Zip code) |
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2011 STOCK OPTION PLAN
2016 STOCK OPTION PLAN
NON-PLAN OPTION AGREEMENTS
(Full Title of the Plans)
RICHARD A. KAPLAN
Chief Executive Officer
1999 Mount Read Blvd. Bldg. 3
Rochester, NY 14615
(Name and address of agent for service)
585-254-1100
(Telephone number, including area code for agent of service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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(Do not check if a smaller reporting company) |
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Exchange Act.
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES
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AMOUNT TO BE REGISTERED (1) |
PROPOSED
MAXIMUM
PRICE
(5) |
PROPOSED
MAXIMUM
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AMOUNT OF
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Common Stock Par Value $0.01 per share |
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3,000,000 (2) shares |
$0.70 |
$2,100,000 |
$245.13 |
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Common Stock Par Value $0.01 per share |
3,000,000 (3) shares |
$0.70 |
$2,100,000 |
$245.13 |
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Common Stock Par Value $0.01 per share |
6,900,000 (4) shares |
$0.70 |
$4,830,000 |
$556.32 |
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Total: |
12,900,000 shares |
$9,030,000 |
$1,046.58 |
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(1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional shares of the Common Stock (the “Common Stock”) of CurAegis Technologies, Inc. (the “Registrant”) that may be offered or issued under (i) the Registrant’s 2011 Stock Option Plan (“2011 Plan”), (ii) the Registrant’s 2016 Stock Option Plan (“2016 Plan”), (iii) Non-Plan Nonqualified Stock Option Agreements and First Amendment to Non-Plan Nonqualified Stock Option Agreements (the “Non-Plan Director Options”), (iv) Non-Plan Stock Option Agreements (the “Non-Plan Supplemental Options”), (v) the Stock Option Agreement between the Registrant and Robert W. Fishback (“Fishback Option Agreement”), and (vi) the Stock Option Agreement between the Registrant and Richard A. Kaplan (“Kaplan Option Agreement” and, together with the Non-Plan Director Options, the Non-Plan Supplemental Options, and the Fishback Option Agreement, the “Non-Plan Option Agreements”). |
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(2) |
Represents 3,000,000 shares of $.01 par value common stock reserved for issuance upon the exercise of awards granted under the 2011 Plan. |
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(3) |
Represents 3,000,000 shares of $.01 par value common stock reserved for issuance upon the exercise of awards granted under the 2016 Plan. |
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(4) |
Represents (i) 1,350,000 shares of $.01 par value common stock issuable pursuant to the Non-Plan Director Options, (ii) 150,000 shares of $.01 par value common issuable pursuant to the Non-Plan Supplemental Options, (iii) 250,000 shares of $.01 par value common stock issuable pursuant to the Fishback Option Agreement, and (iv) 5,150,000 shares of $.01 par value common stock issuable pursuant to the Kaplan Option Agreement. |
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(5) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act, and based on the proposed maximum offering price of $0.70 per share, which is the average of the bid and asked price of the Registrant’s common stock, as of August 24, 2017. |
EXPLANATORY NOTE
The Registrant has prepared this registration statement (this “Registration Statement”) in accordance with the requirements of Form S-8 under the Securities Act, to register 12,900,000 shares of common stock issuable pursuant to the: (i) 2011 Plan, (ii) 2016 Plan, and (iii) Non-Plan Option Agreements, all of which were previously approved by the Registrant’s shareholders.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 to be contained in a prospectus meeting the requirements of Section 10(a) of the Securities Act is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. |
Incorporation of Documents by Reference |
The following documents, which were filed with the Commission, are incorporated herein by reference:
EXHIBITS
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(a) |
Annual Report on Form 10-K for the year ended December 31, 2016, filed with the Commission on March 20, 2017; |
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(b) |
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017, and June 30, 2017; |
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(c) |
Current Reports on Form 8-K filed with the Commission on January 25, 2017, March 17, 2017, May 30, 2017, June 15, 2017, July 14, 2017 and August 14, 2017; and |
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(d) |
The description of the Registrant’s Common Stock contained in “Item 8. Description of Securities” in Registrant’s registration statement on Form 10-SB, filed with the Commission on May 11, 1998 pursuant to Section 12(g) of the Exchange Act, including any subsequent amendment or any report filed for purposes of updating such description. |
All documents subsequently filed by the Registrant with the Commission pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents.
Any statements contained in a document incorporated by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently filed document which also is incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement except as so modified or superseded.
You should rely only on the information provided or incorporated by reference in this Registration Statement or any related prospectus. The Registrant has not authorized anyone to provide you with different information. You should not assume that the information in this Registration Statement or any related prospectus is accurate as if any date other than the date on the front of the document.
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Item 4. |
Description of Securities |
Not applicable.
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Item 5. |
Interest of Named Expert and Counsel |
The validity of the issuance of the shares of common stock offered hereby and certain other legal matters in connection herewith have been passed upon for the Registrant by Woods Oviatt Gilman LLP.
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Item 6. |
Indemnification of Directors and Officers |
The Registrant, a New York corporation, is authorized under Sections 721-726 of the New York Business Corporation Law (“NYBCL”), subject to the procedures and limitations therein, to indemnify and hold harmless directors and officers against liabilities they may incur in such capacities, provided certain standards are met, including good faith and the reasonable belief that the particular action was in, or not opposed to, the best interests of the corporation.
The Registrant’s Certificate of Incorporation, as amended (the “Certificate of Incorporation”), and the Registrant’s Bylaws provide that the Registrant will indemnify any and all persons it has the power to indemnify under the NYBCL to the fullest extent permitted under the NYBCL, and provide that no director of the Registrant will be personally liable to the Registrant or its shareholders for damages for breach of his/her duties in such capacity, unless a judgment or other final adjudication adverse to that director establishes that his/her act or omission (i) was committed prior to the filing of the Certificate of Incorporation, (ii) committed in bad faith or involved intentional misconduct or a knowing violation of law, (iii) that he/she personally gained in fact a financial profit or other advantage to which he/she is not legally entitled, (iv) or that his/her acts violated Section 719 of the NYBCL.
In addition, the Registrant has entered into indemnification agreements with each of its executive officers and directors on terms that are consistent with the provisions described above. The Registrant believes that such agreements are necessary to attract and retain qualified persons as directors and officers.
In so far as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by such director, officer or controlling person in the successful defense of any actions, 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 counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnity by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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Item 7. |
Exemption from Registration Claimed |
Not applicable.
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Item 8. |
Exhibits |
The following exhibits are filed as part of this registration statement:
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Exhibit Number |
Description |
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4.1 |
Certificate of Correction dated March 22, 2002 (incorporated by reference to Form 10-KSB filed for fiscal year ended December 31, 2002). |
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4.2 |
Certificate of Amendment to the Certificate of Incorporation, dated October 21, 2004, setting forth terms and conditions of Class B Preferred (incorporated by reference to Form 10-QSB filed for fiscal quarter ended December 31, 2004). |
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4.3 |
Certificate of Amendment to the Certificate of Incorporation, dated September 21, 2011, setting forth terms and conditions of Class C Preferred (incorporated by reference to current report on Form 8-K, filed September 26, 2011). |
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4.4 |
Certificate of Amendment to the Certificate of Incorporation of the Registrant, dated March 28, 2014, setting forth terms and conditions of Series C-2 Preferred (incorporated by reference to current report on Form 8-K, filed March 28, 2014). |
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4.5 |
Certificate of Amendment to the Certificate of Incorporation of the Registrant, dated February 29, 2016, setting forth terms and conditions of Series C-3 Preferred (incorporated by reference to Exhibit 3.9 of Annual Report on Form 10-K, filed for the fiscal year ended December 31, 2015). |
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4.6 |
Form of Common Stock certificate of the Registrant (incorporated by reference to registration statement on Form 10-SB filed May 11, 1998). |
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4.7 |
2011 Stock Option Plan and template agreements to be used to grant options thereunder (incorporated by reference to Annual Report on Form 10-K, filed March 29, 2011). |
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4.8 |
First Amendment to the Registrant’s 2011 Stock Option Plan (incorporated by reference to Annual Report on Form 10-K, filed March 3, 2015). |
Item 9. Undertakings
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(a) |
The undersigned registrant hereby undertakes: |
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(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
to include any prospectus required by Section 10(a)(3) of the Securities Act; |
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(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 hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the SEC pursuant to Rule 424(b), if in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and |
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(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 the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement; |
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and |
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(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. |
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(b) |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit’s plan annual report pursuant to Section 15(d) of the Exchange Act) 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. |
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(c) |
Insofar as indemnification of liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event of a claim for indemnification against such liabilities (other than the payment of registrants 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 will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act 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 that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rochester, New York on this the 28th day of August 2017.
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CURAEGIS TECHNOLOGIES, INC. |
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Date: August 28, 2017 |
/s/ Richard A. Kaplan |
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Richard A. Kaplan, Chief Executive Officer |
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Date: August 28, 2017 |
/s/ Kathleen A. Browne |
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Kathleen A. Browne, Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Richard A. Kaplan and Kathleen A. Browne, or either of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments or post-effective amendments to this registration statement, and to file same, with exhibits thereto and other documents in connection therewith or in connection with the registration of the shares of common stock under the Securities Act, with the SEC, granting unto said attorneys-in-fact and agents, 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 their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
In accordance with the Exchange Act, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
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Dated: August 28, 2017 |
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By: |
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/s/ Richard A. Kaplan
Richard A. Kaplan,
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Dated: August 28, 2017 |
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By: |
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/s/ Kathleen A. Browne Kathleen A. Browne Chief Financial and Accounting Officer |
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Dated: August 28, 2017 |
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By: |
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/s/ Keith E. Gleasman
Keith E. Gleasman,
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Dated: August 28, 2017 |
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By: |
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/s/ Thomas F. Bonadio Thomas F. Bonadio, Director |
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Dated: August 28, 2017 |
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By: |
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/s/ Asher J. Flaum
Asher J. Flaum, Director |
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Dated: August 28, 2017 |
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By: |
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/s/ John W. Heinricy John W. Heinricy, Director |
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Dated: August 28, 2017 |
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By: |
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/s/ Thomas J. Labus Thomas J. Labus, Director |
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EXHIBIT INDEX
Exhibit 4.10
FORM OF
NON-PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
This NONQUALIFIED STOCK OPTION AGREEMENT (this “ Option Agreement ”) is made effective as of the 27 th day of January (the “ Date of Grant ”), between Torvec, Inc., a New York corporation (the “ Company ”), and _________ (the “ Participant ”).
R E C I T A L S:
WHEREAS , on November 3, 2010 the Company’s Board of Directors (the “ Board ”) approved the grant of the Option set forth herein as an inducement for the Participant to join the Board and become a director of the Company;
WHEREAS , the grant of such Option was conditioned upon the approval of the Company’s shareholders at the annual meeting of shareholders held on January 27, 2011;
WHEREAS , the Company’s shareholders did approve the grant of said Option at such annual meeting;
NOW THEREFORE , in consideration of the mutual covenants hereinafter set forth, the parties agree as follows:
1. Option Grant .
(a) The Company hereby grants to the Participant the right and option (the “ Option ”) to purchase ________ Shares of the $.01 par value common stock of the Company (“Optioned Shares”), on the terms and conditions herein.
(b) The Option is intended to be a Nonqualified Stock Option and is intended to be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (“ Section 409A ”) and the accompanying Treasury Regulations under the short-term deferral exception. The Option shall be administered and interpreted in a manner that is consistent with Section 409A’s short-term deferral exception and the regulations thereunder. Notwithstanding the preceding sentence, neither the Company, nor the Board, nor the Committee, nor any person acting on behalf of any of them, shall be liable to the Participant by reason of any acceleration of income, or any tax or additional tax, asserted by reason of any failure of the Option or any portion thereof or this Option Agreement to satisfy the requirements for exemption from, or compliance with, Section 409A. Without limiting the foregoing, the Company makes no guarantees regarding the tax treatment of the Option or this Option Agreement.
(c) Neither the Company, nor the Board, nor the Committee, nor any person acting on behalf of any of them, shall be liable to the Participant by reason of any tax asserted under Section 4999 of the Code.
2. Option Price . The exercise price of the Optioned Shares subject to the Option shall be ninety cents ($0.90) per Share (the “ Option Price ”).
3. Option Term . The term of the Option shall, commence on the Date of Grant and unless earlier terminated pursuant to Sections 4(b) and 6 below, shall continue until 5:00 p.m., est. on March 15, 2016 (the “ Option Term ”).
4. Vesting of the Option and Exercise Period .
(a) The Option shall vest in equal installments of the Optioned Shares on January 27th in each of the following calendar years set forth below (each, a “ Vesting Date ”) so long as the Participant has served as a director of the Company from the Date of Grant and continuing through the Vesting Date. At any time, the portion of the Option which has become vested in accordance with the terms hereof shall be called the “ Vested Portion ”.
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Year |
Vested Percentage |
Vested Portion of Options Shares |
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2012 |
25% |
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2013 |
25% |
_____ |
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2014 |
25% |
_____ |
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2015 |
25% |
_____ |
(b) The Vested Portion will be forfeited if not otherwise exercised by the Participant by March 15 th following the end of the Company’s taxable year in which the Vesting Date occurs. The Company’s taxable year is a calendar year (January 1 st to December 31 st ).
5. Termination of Service as a Director of the Company .
(a) Upon a termination of the Participant’s service as a director of the Company for any reason (including resignation, removal, failure to be elected as a director of the Company at any Annual Meeting of Shareholders) other than death, then any unvested portion of the Option shall immediately terminate and be forfeited without consideration and the Vested Portion shall continue to be exercisable for the earlier to occur of (i) the ninetieth (90 th ) day following such termination of service or (ii) the March 15th following the end of the Company’s taxable year in which the Vesting Date occurred with respect to such Vested Portion.
(b) Upon a termination of the Participant’s service as a director of the Company due to death, then any unvested portion of the Option shall immediately terminate and be forfeited without consideration and the Vested Portion shall continue to be exercisable until March 15th following the end of the Company’s taxable year in which the Vesting Date occurred with respect to such Vested Portion.
6 . Exercise Procedures .
(a) Notice of Exercise . To the extent exercisable, the Participant or the Participant’s legal representative may exercise the Vested Portion or any part thereof prior to the expiration of the applicable Option Term corresponding to the Vested Portion by giving written notice to the Company in the form attached hereto as Exhibit A (the “ Notice of Exercise ”). The Notice of Exercise shall be signed by the person exercising such Option. In the event that such Option is being exercised by the Participant’s legal representative, the Notice of Exercise shall be accompanied by proof (satisfactory to the Company) of such legal representative’s right to exercise such Option on behalf of the Participant’s estate.
(b) Method of Exercise . The Participant or the Participant’s legal representative shall deliver to the Company at the time the Notice of Exercise is delivered, payment of the aggregate Option Price due with respect to the Optioned Shares being purchased by payment in cash, cashier’s check or certified check or other appropriate form approved by the Committee, which may include the application of a cashless exercise feature.
(c) Issuance of Optioned Shares . Provided the Company receives a properly completed and executed Notice of Exercise and payment for the full amount of the aggregate Option Price, the Company shall promptly cause the Optioned Shares underlying the exercised Option to be issued in the name of the Person exercising the Option. Until certificates for the Optioned Shares have actually been issued and registered in such Person’s name on the books of the Company or its registrar upon the due exercise of the Option, such Person shall not have any of the rights of a shareholder with respect to the Optioned Shares being purchased. The Company shall be allowed a reasonable time following delivery of a properly executed Notice of Exercise and payment of the Option Price in which to accomplish the issuance and registration.
7. Electronic Delivery of Documents . The Participant agrees that the Company may deliver by e-mail all documents relating to this Option (including, without limitation, prospectuses required by the Securities and Exchange Commission) and all other documents that the Company is required to deliver to its security holders (including, without limitation, annual reports and proxy statements). The Participant also agrees that the Company may deliver these documents by posting them on a web site maintained by the Company or by a third party under contract with the Company. If the Company posts these documents on a web site, it will notify the Participant by e-mail.
8. Securities Trading Policy . The Participant agrees to comply with the Company’s Securities Trading Policy when selling Optioned Shares.
9. Adjustment of Optioned Shares . In the event of any corporate event or transaction (as described in Article 12 of the Company’s 2011 Stock Option Plan), the terms of this Option Agreement (including, without limitation, the number and kind of Optioned Shares subject to this Option Agreement and the Option Price) shall be adjusted as set forth in Article 12 of the Company’s 2011 Stock Option Plan and such Article of said Plan is hereby made a part hereof with respect to the subject of adjustments of Optioned Shares.
10. No Right to Continued Service as Director of Company . The granting of the Option evidenced hereby and this Option Agreement shall impose no obligation on the Company or any Affiliate to continue the Participant as a director of the Company and shall not lessen or affect any right that the Company may have to remove him as a director.
11. Securities Laws/Legend on Certificates .
(a) The issuance and delivery of Optioned Shares shall comply with all applicable requirements of law, including, without limitation, the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Optioned Shares may then be listed and/or traded. If the Company deems it necessary to ensure that the issuance of Optioned Shares is not required to be registered under any applicable securities laws, the Participant shall deliver to the Company an agreement or certificate containing such representations, warranties and covenants as the Company may deem necessary to satisfy such requirements. The exercise of the Option may be temporarily suspended by the Company without liability to the Company during times when no registration statement with respect to the Optioned Shares to be acquired pursuant to the Option is currently effective, or during times when, in the reasonable opinion of the Committee, such suspension is necessary to preclude violation of any requirements of applicable law or regulatory bodies having jurisdiction over the Company. If the Option would expire for any reason except the end of the Option Term during such a suspension, then if exercise of the Option is duly tendered before its expiration, the Option shall be exercisable and exercised (unless the attempted exercise is withdrawn) as of the first day after the end of such suspension. The Company shall have no obligation to file any registration statement covering resales of Optioned Shares acquired pursuant to the exercise of the Option.
(b) The Participant will furnish to the Company a copy of each Form 4 or Form 5 filed by him pursuant to Section 16(a) of the Securities Exchange Act of 1934 and will timely file all reports required under federal securities laws with respect to the Optioned Shares he acquires pursuant to the exercise of the Option. The Participant will report all sales of Optioned Shares to the Company in writing on the form prescribed from time to time by the Company. The certificates representing the Optioned Shares shall be subject to such stop transfer orders and other restrictions as the Company may deem reasonably advisable, and the Company may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
12. Transferability . The Option may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant other than by will or by the laws of descent and distribution, and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate; provided, that, the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance. During the Participant’s lifetime, the Option is exercisable only by the Participant.
13. Taxation upon Exercise . The Participant agrees to report income from this Option in accordance with then applicable law and to cooperate with Company in establishing the amount of such income and corresponding deduction to the Company for its income tax purposes. The Participant agrees that the Company may elect (but it shall not be obligated to) withhold Optioned Shares issuable upon exercise of the Option or require the Participant to pay to the Company, upon demand, when due a cash payment for the withholding for federal or state income and employment tax purposes associated with this Option.
14. Relationship . The Option shall not be deemed to be salary or other compensation to the Participant for purposes of any pension, thrift, profit sharing, stock purchase or other employee benefit plan now maintained or hereafter adopted by the Company.
15. Notices . Any notification required by the terms of this Option Agreement shall be given in writing and shall be deemed effective upon personal delivery or within three (3) days of deposit with the United States Postal Service, by registered or certified mail, with postage and fees prepaid. A notice shall be addressed to the Company, Attention: General Counsel, at its principal executive office and to the Participant at the address that he or she most recently provided to the Company.
16. Entire Agreement . This Option Agreement and constitute the entire contract between the parties hereto with regard to the subject matter hereof. This Option Agreement supersedes any other agreements, representations or understandings (whether oral or written and whether express or implied) which relate to the subject matter hereof.
17. Waiver . No waiver of any breach or condition of this Option Agreement shall be deemed to be a waiver of any other or subsequent breach or condition whether of like or different nature.
18. Successors and Assigns . The provisions of this Option Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the Participant’s estate, whether or not any such person shall have become a party to this Option Agreement and have agreed in writing to be joined herein and be bound by the terms hereof.
19. Choice of Law . This Option Agreement shall be governed by the law of the State of New York (regardless of the laws that might otherwise govern under applicable New York principles of conflicts of law) as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies.
20. Amendment . This Option Agreement and the Option granted hereunder may be amended at any time in accordance with Article 10 of the Company’s 2011 Stock Option Plan and such Article of said Plan is hereby made a part hereof with respect to the subject of amendments of this Agreement..
21. Severability . The provisions of this Option Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
22. Signature in Counterparts . This Option Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
[ Signature Page Follows ]
IN WITNESS WHEREOF , the parties hereto have entered into this Option Agreement.
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TORVEC, INC. |
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By: |
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Name: Tile: |
Acknowledged as of the
date first written above:
PARTICIPANT:
EXHIBIT A
NOTICE OF EXERCISE
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Torvec, Inc. |
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1999 Mt. Read Blvd., Building #3 |
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Rochester, NY 14615 |
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Attn: |
Date of Exercise: ______________________ |
Gentlemen:
1. Exercise of Option . This constitutes notice to Torvec, Inc. (the “ Company ”) that pursuant to my Nonqualified Stock Option Agreement (the “ Option Agreement ”) under the Company’s 2010 Equity Incentive Plan (the “ Plan ”) I elect to purchase the number of Optioned Shares of Company common stock set forth below and for the price set forth below. By signing and delivering this notice to the Company, I hereby acknowledge that I am the holder of the stock option (the “ Option ”) exercised by this notice and have full power and authority to exercise the same.
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Date of Grant: |
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Number of Optioned Shares as to which the Option is exercised: |
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Shares to be issued in name of: |
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Total exercise price: |
$ |
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Cash Exercise |
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Cash payment delivered herewith: |
$ |
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2. Form of Payment . Forms of payment other than cash or its equivalent (e.g. by cashier’s check) are limited by the Plan and are permissible only to the extent approved by the compensation committee of the Board of Directors of the Company (the “Committee”) or any committee designated thereby, in its sole discretion.
3. Delivery of Payment . With this notice, I hereby deliver to the Company the full purchase price of the Optioned Shares and any and all withholding taxes due in connection with the exercise of my Option.
4. Rights as Shareholder . While the Company will endeavor to process this notice in a timely manner, I acknowledge that until the issuance of the shares underlying the Optioned Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to such shares, notwithstanding the exercise of my option(s). No adjustment shall be made for a dividend or other right for which the record date is prior to the date of issuance of the optioned stock.
5. Interpretation . Any dispute regarding the interpretation of this notice shall be submitted promptly by me or by the Company to the Committee, which shall review such dispute at its next regular meeting. The resolution of such a dispute by such administrator of the Plan shall be final and binding on all parties.
6. Governing Law; Severability . This notice is governed by the internal substantive laws but not the choice of law rules, of New York. In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this notice will continue in full force and effect without said provision.
7. Entire Agreement . The Plan and the Option Agreement under which the Optioned Shares were granted are incorporated herein by reference, and together with this notice constitute the entire agreement of the parties with respect to the subject matter hereof.
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Very truly yours,
____________________________ Name:
_________________(social security number)
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A-2
Exhibit 4.11
FORM OF
FIRST AMENDMENT
To
NON-PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
THIS FIRST AMENDMENT to that certain Nonqualified Stock Option Agreement dated January 27, 2011 (“Agreement”) by and between Torvec, Inc. (the “Company”) and ___________ (the “Participant”) is effective as of March 20, 2012.
WHEREAS, on January 27, 2011, the Company’s shareholders approved the grant to the Participant of options for 250,000 shares of the $.01 par value common stock of the Company at an exercise price of $.90 per common share exercisable for the first time in a series of tranches at the rate of 25% of such options on each of the four successive anniversary dates of such shareholder approval on a cumulative basis (“vested tranche”); and,
WHEREAS, under the Agreement, each vested tranche was forfeited unless such vested tranche were exercised within two and one-half months after the end of the calendar year in which such tranche became vested; and,
WHEREAS, on March 20, 2012, the closing price for the Company’s common stock on the over-the-counter market was $.90 per share; and,
WHEREAS, on March 20, 2012, the board of directors of the Company voted to materially modify the Agreement to remove the requirement that each such vested tranche be exercised within two and one-half calendar months after the end of the calendar year of vesting; and,
WHEREAS, the board of directors voted to extend the term of the Agreement to provide that such Agreement expires as of the close of business on the tenth anniversary date of shareholder approval.
NOW THEREFORE, the parties to the Agreement hereby agree to the following material modifications to the Agreement:
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1. |
Sections 1(b) and 4(b) of the Agreement and each of them is deleted in their entirety and Section 1(c) is renumbered as Section 1(b); |
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2. |
Section 3 of the Agreement, “Option Term”, is deleted and replaced by the following: |
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“The term of the Option shall commence on the date of Grant and unless earlier terminated pursuant to Section 5 below, shall continue until 5:00 p.m., Rochester, New York time, on January 27, 2021 (“Option Term”).” |
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The heading of Section 4 of the Agreement is amended by striking “and Exercise Period.” |
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Sections 5(a) and (b) of the Agreement and each of them is amended to conform the language of such sections to the extension of the option term to the close of business on January 27, 2021 as amended, each of said subsections shall read as follows: |
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| “(a) Upon a termination of the Participant’s service as a director of the Company for any reason (including resignation, removal, failure to be elected as a director of the Company at any Annual Meeting of Shareholders) other than death, then any unvested portion of the Option shall immediately terminate and be forfeited without consideration and the Vested Portion shall continue to be exercisable for a period not to exceed ninety (90) calendar days from the date of termination. | ||
| (b) Upon a termination of the Participant’s service as a director of the Company due to death, then any unvested portion of the Option shall immediately terminate and be forfeited without consideration and the Vested Portion shall continue to be exercisable in the hands of the Participant’s heirs and/or beneficiaries until the expiration of the Option Term.” |
In all other respects, the provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Participant has executed this First Amendment, and the Company has caused the First Amendment to be executed in its name and on its behalf, all as of March 20, 2012.
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Participant
[Name of Participant]
TORVEC, INC.
Robert W. Fishback, Secretary |
Exhibit 4.12
FORM OF
NON-PLAN
STOCK OPTION AGREEMENT
THIS AGREEMENT, entered into as of the Grant Date (as defined in Section 1), by and between _______________ (“Participant”) and Torvec, Inc. (the “Company”);
WITNESSETH THAT :
WHEREAS, the Participant is a former director of the Company; and
WHEREAS, as a condition of his retiring as a member of the board, effective __________, the Company agreed to grant the Participant a stock option for _________ shares of the $.01 par value common stock of the Company.
NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:
1. Terms of Award . The following terms used in this Agreement shall have the meanings set forth in this Section 1:
(a) The “Participant” is ______________.
(b) The “Grant Date” is _____________.
(c) The number of “Covered Shares” shall be ___________ shares of the $.01 par value common stock of Torvec, Inc.
(d) The “Initial Exercise Date” is the Grant Date.
(e) The “Exercise Price” is $___ per share.
Other terms used in this Agreement are defined elsewhere in this Agreement.
2. Award and Exercise Price . The Participant is hereby granted an option (the “Option”) to purchase the number of Covered Shares of Stock at the Exercise Price per share as set forth in Section 1. The Option is not intended to qualify as an “Incentive Stock Option,” as defined in Section 422(b) of the Code.
3. Date of Exercise . Except as otherwise provided in this Agreement, the Option will vest and be exercisable immediately in full.
4. Expiration . The Option, to the extent not theretofore exercised, shall not be exercisable on or after the Expiration Date. The “Expiration Date” shall be ___________.
5. Method of Option Exercise . The Option may be exercised in whole or in part by filing a written notice with the Secretary of the Company at its corporate headquarters prior to the Expiration Date. Such notice shall (a) specify the number of shares of Stock which the Participant elects to purchase; provided, however, that not less than 1,000 shares of Stock may be purchased at any one time unless the number purchased is the total number of shares available for purchase at that time under the Option, and (b) be accompanied by payment of the Exercise Price for such shares of Stock indicated by the Participant’s election. Payment shall be by cash or by check payable to the Company. The Participant may also exercise the Option, in whole or in part, by way of a “cashless exercise” by having the Company withhold shares of common stock issuable upon exercise of this Option equal in value to the aggregate Exercise Price as to which the Option is so exercised based on the “Market Price” of the Common Stock on the trading day immediately prior to the date on which this Option and the notice of exercise are delivered to the Company. The “Market Price” of the Common Stock on any date means the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a national or regional securities exchange, the closing sale price, or, if no closing sales price is reported, the last reported sale price of the shares of Common Stock on the principal U.S. national or regional securities exchange on which the Common Stock is so listed or quoted; (b) if the Common Stock is listed on the OTC Bulletin Board, the volume weighted average price per share of such Common Stock for such date (or the nearest preceding date) on the OTC Bulletin Board, (c) if prices for the Common Stock are then reported in the “Pink Sheets” published by Pink OTC Markets, Inc. (or similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported.
6. Withholding . All distributions under this Agreement are subject to withholding of all applicable taxes. At the election of the Participant, and subject to such rules as may be established by the Committee, such withholding obligations may be satisfied through the surrender of shares of Stock which the Participant already owns, or to which the Participant is otherwise entitled under the Plan.
7. Transferability . The Option is not transferable other than as designated by the Participant by will or by the laws of descent and distribution, and during the Participant’s life, may be exercised only by the Participant or the Participant’s guardian or legal representative.
8. Heirs and Successors . This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company’s assets and business. In the event of the Participant’s death prior to exercise of this Award, the Award may be exercised by the estate of the Participant to the extent such exercise is otherwise permitted by the Agreement. Subject to the terms of the Plan, any benefits distributable to the Participant under this Agreement that are not paid at the time of the Participant’s death shall be paid at the time and in the form determined in accordance with the provisions of this Agreement to the beneficiary designated by the Participant in writing filed with the Committee in such form and at such time as the Committee shall require. If a deceased Participant fails to designate a beneficiary, or if the designated beneficiary of the deceased Participant dies before the Participant or before complete payment of the amounts distributable under this Agreement, the amounts to be paid under this Agreement shall be paid to the legal representative or representatives of the estate of the last to die of the Participant and the beneficiary.
9. Certain Adjustments . With respect to any rights that the Participant has to exercise this Option and convert into shares of Common Stock, the Participant will be entitled to the following adjustments:
(a) Merger or Consolidation. If at any time there shall be a merger or consolidation of the Company with or into another entity when the Company is not the surviving entity, then, as part of such merger or consolidation, lawful provision shall be made so that the holder hereof shall thereafter be entitled to receive upon exercise of this Option, during the period specified herein and upon payment of the aggregate Exercise Price then in effect, the number of shares of stock or other securities or property (including cash) of the successor entity resulting from such merger or consolidation, to which the holder hereof as the holder of the stock deliverable upon exercise of this Option would have been entitled in such merger or consolidation if this Option had been exercised immediately before such transaction. In any such case, appropriate adjustment shall be made in the application of the provisions of this Option with respect to the rights and interests of the Participant hereof as the holder of this Option after the merger or consolidation.
(b) Reclassification, Recapitalization, etc. If the Company at any time shall, by subdivision, combination or reclassification of securities, recapitalization, automatic conversion, or other similar event affecting the number or character of outstanding shares of Common Stock, or otherwise change any of the securities as to which purchase rights under this Option exist into the same or a different number of securities of any other class or classes, this Option shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the purchase rights under this Option immediately prior to such subdivision, combination, reclassification or other change.
(c) Split or Combination of Common Stock and Stock Dividend. In case the Company shall at any time subdivide, re-divide, recapitalize, split (forward or reverse) or change its outstanding shares of Common Stock into a greater number of shares or declare a dividend upon its Common Stock payable solely in shares of Common Stock, the Exercise Price shall be proportionately reduced and the number of Option Shares proportionately increased. Conversely, in case the number of outstanding shares of Common Stock of the Company shall be combined into a smaller number of shares, the Exercise Price shall be proportionately increased and the number of Option Shares proportionately reduced.
10. Amendment . This Agreement may be amended by written Agreement of the Participant and the Company, without the consent of any other person.
IN WITNESS WHEREOF, the Participant has executed this Agreement, and the Company has caused these presents to be executed in its name and on its behalf, all as of the Grant Date.
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Participant
_______________________ [Name of Participant]
TORVEC, INC.
_______________________ Name: Title:
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Exhibit 5.1
[Letterhead of Woods Oviatt Gilman LLP ]
August 28, 2017
CurAegis Technologies, Inc.
1999 Mount Red Blvd., Bldg. 3
Rochester, New York 14615
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the “ Registration Statement ”) to be filed by CurAegis Technologies, Inc., a Delaware corporation (the “ Registrant ” or “ you ”), with the Securities and Exchange Commission on or about August 28, 2017, in connection with the registration under the Securities Act of 1933, as amended (the “ Securities Act ”), of (a) an aggregate of up to 3,000,000 shares of Common Stock, $0.001 par value, of CurAegis Technologies, Inc. (the “ Shares ”) issuable pursuant to the CurAegis Technologies, Inc. 2011 Stock Option Plan (the “ 2011 Plan ”), (b) an aggregate of up to 3,000,000 Shares issuable pursuant to the CurAegis Technologies, Inc. 2016 Stock Option Plan (the “ 2016 Plan ”), and (c) an aggregate of up to 6,900,000 Shares issuable pursuant to the Non-Plan Option Agreements (as defined in the Registration Statement).
As your counsel, we have examined such certificates, instruments, documents, and corporate records that we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the following: (a) the authenticity of original documents and the genuineness of all signatures, (b) the conformity to the originals of all documents submitted to us as copies, and (c) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed. Upon the basis of such examination, it is our opinion that, when the Registration Statement has become effective under the Securities Act, and when the Shares have been duly issued and sold in the manner described in the 2011 Plan, the 2016 Plan, and the Non-Plan Option Agreements, the Shares will be duly authorized, legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Securities and Exchange Commission issued thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit or otherwise.
Very truly yours,
/ s / Woods Oviatt Gilman LLP
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement (No. 333-______) on Form S-8 of our report dated March 20, 2017, relating to our audits of the consolidated financial statements of CurAegis Technologies, Inc. (formerly Torvec, Inc.) as of and for the years ended December 31, 2016 and 2015, which appears in the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 20, 2017.
/s/ Freed Maxick CPAs, P.C.
Rochester, New York
August 28, 2017