SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
Novamed, Inc.
(Exact name of registrant as specified in its charter)
Nevada 77-0443643
-------- ----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
623 Hoover Street, Minneapolis, Minnesota 55413
-----------------------------------------------
(Address of principal executive offices)
2000 Stock Benefit Plan of Novamed, Inc.
----------------------------------------
(Full title of the plan)
(Name, address, including zip code, of agent for service)
Telephone number for Issuer: (612) 378-1437
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Securities to be Amounts to Proposed Maximum Proposed Maximum Amount of
Registered be Offering Price Per Aggregate Offering Registration
Registered Share(1) Price Fee
<S> <C> <C> <C> <C>
Common Stock, 0.001 par 1,315,000 $0.50 $657,500 $173.58
value
============================== ================ ====================== ======================= ==============
</TABLE>
(1) Bona Fide estimate of maximum offering price solely for calculating the
registration fee pursuant to Rule 457(h) of the Securities Act of 1933,
based on the average bid and asked price of the registrant's common
stock as of February 29, 2000 a date within five business days prior to
the date of filing of this registration statement. Pursuant to Rule
416(c) under the Securities Act of 1933, this Registration Statement
covers an indeterminate amount of interests to be offered or sold
pursuant to the Plan described herein.
1
<PAGE>
2000 Stock Benefit Plan of NovaMed, Inc.
Cross-Reference Sheet Pursuant to Rule 404(a)
Cross-reference between items of Part I of Form S-8 and the Section
10(a) Prospectus that will be delivered to each employee, consultant, or
director who participates in the Plan.
Registration Statement Item Numbers and Headings Prospectus Heading
1. Plan Information Section 10(a) Prospectus
2. Registrant Information and Section 10(a) Prospectus
Employee Plan Annual Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by NovaMed, Inc., a Nevada corporation
(the "Company"), with the Securities and Exchange Commission (the "Commission")
are hereby incorporated by reference:
1. The Company's General Form for Registration on Form 10SB/A-2 dated
November 29, 1999.
2. All reports filed by the Company with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act of 1934, as amended (the "Exchange
Act"), since the filing of the General Form for Registration on the initial Form
10SB filed on August 4, 1999.
Prior to the filing, if any, of a post-effective amendment that
indicates that all securities covered by this Registration Statement have been
sold or that de-registers all such securities then remaining unsold, all reports
and other documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such reports and documents.
Item 4. Description of Securities
The common stock of the Company being registered pursuant to this
Registration Statement is part of a class of securities registered under Section
12 of the Exchange Act. A description of such securities is contained in the
Company's Form 10SB filed with the Commission on August 4, 1999 and any
amendment or report filed for the purpose of updating such description. Said
description is incorporated herein by reference. (See "Item 3. Incorporation of
Documents by Reference.")
Item 5. Interests of Named Experts and Counsel
No expert is named as preparing or certifying all or part of the
registration statement to which this prospectus pertains, and no counsel for the
Company who is named in this prospectus as having given
2
<PAGE>
an opinion on the validity of the securities being offered hereby was hired on a
contingent basis or has or is to receive, in connection with this offering, a
substantial interest, direct or indirect, in the Company.
Item 6. Indemnification of Directors and Officers
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to members of
the board of directors, officers, employees, or persons controlling the Company
pursuant to the immediately subsequent provisions, the Company has been informed
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
The Company's Restated Articles of Incorporation, specifically Article
Eight, however, eliminate the personal liability of the officers and directors
to shareholders or the corporation for money damages to the extent permitted by
Nevada Revised Statutes ("NRS") Section 78.037. NRS Section 78.037 provides that
a corporation may limit or eliminate officers' and directors' personal liability
for breach of fiduciary duty so long as liability is not eliminated or limited
for acts or omissions involving intentional misconduct, fraud or a knowing
violation of law or the payment of unlawful distributions.
Section Eight of Article V of the Company's Bylaws provides that the
Company shall indemnify its officers and directors for any liability, including
reasonable costs of defense, arising out of any act or omission of any officer
or director on behalf of the Corporation to the fullest extent allowed by the
laws of the State of Nevada.
In actions, proceedings and suits involving an officer or director
because of their being or having been an officer or director, other than actions
by or in the right of the corporation, NRS Section 78.751 (the "Nevada Statute")
permits a corporation to indemnify directors or officers against actual and
reasonable expenses, including attorney fees, judgments, fines and amounts paid
in settlement. The Nevada Statute applies to actions, proceedings or suits
whether civil, criminal, administrative or arbitrative in nature. However,
unless a court directs otherwise, indemnification is permissible only if the
officer or director meets the applicable standard of conduct and indemnification
is proper under the circumstances. In civil cases, the standard of conduct
requires the officer or director to act in good faith and in a manner he or she
reasonably believes to be in or not opposed to the best interests of the
Company. In criminal cases, an officer or director meets the standard of conduct
if they had no reasonable cause to believe his or her conduct was unlawful. The
board of directors acting through a quorum of disinterested directors,
independent legal counsel designated by the board of directors, or the
shareholders shall determine whether indemnification is proper under the
circumstances. Termination of proceedings by judgment, order, settlement,
conviction or plea of no contest or its equivalent, does not of itself establish
a presumption that the officer or director did not meet the applicable standard
of conduct.
In actions by or in the right of the Company, the Company may indemnify
an officer or director against expenses provided he or she satisfies the
applicable standard of conduct. However, the Company cannot indemnify an officer
or director adjudged liable to the corporation on any claim, issue or matter
unless, and to the extent, the court determines that despite the adjudication of
liability, and in light of all the circumstances, the officer or director is
fairly and reasonably entitled to indemnity for expenses.
In all proceedings, whether by or in the right of the Company or
otherwise, the Nevada Statute requires indemnification to the extent the officer
or director is successful on the merits or otherwise in defense of the
proceeding or in defense of any claim, issue or matter therein. A Nevada
corporation may provide, either in its articles, bylaws or agreements, that the
corporation shall pay the expenses on behalf
3
<PAGE>
of a director or officer prior to the final disposition of the action upon
receipt of an undertaking by or on behalf of the director or officer to repay
those advancements if it is ultimately determined that the officer or director
is not entitled to indemnification. The Nevada Statute does not exclude other
indemnification rights to which a director or officer may be entitled under the
articles of incorporation, the bylaws, an agreement, a vote of shareholders or
disinterested directors, or otherwise; provided that those rights would not
indemnify an officer or director against a judgment or other final adjudication
adverse to the officer or director that establishes the officer's or director's
acts or omissions involved intentional misconduct, fraud or known violation of
the law and were material to the cause of action.
The foregoing discussion of indemnification merely summarizes certain
aspects of indemnification provisions and is limited by reference to the NRS
Section 78.751, Article VI, Section 8 of the Company's Bylaws, as amended, and
Article Eight of the Company's Restated Articles of Incorporation.
Item 7. Exemption from Registration Claimed
No restricted securities are being re-offered or resold pursuant to
this registration statement.
Item 8. Exhibits.
The exhibits attached to this Registration Statement are listed in the
Exhibit Index, which is found on page 8.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement.
(2) To treat, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment as a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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.
4
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
[THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK]
5
<PAGE>
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 Salt Lake City, Utah on February 29, 2000.
NovaMed, Inc.
By: /s/ Ruairidh Campbell
--------------------------------
Ruairidh Campbell as President and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ruairidh Campbell with power of
substitution, as his attorney-in-fact for him, in all capacities, to sign any
amendments to this registration statement and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorney-in-fact or his substitutes may 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 by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/Ruairidh Campbell President and Director February , 2000
- ------------------------- ---
Ruairidh Campbell
/s/Aydin Dogan Vice President and Director February , 2000
- ------------------------- ---
Dr. Aydin Dogan
/s/Howard Belllin Director February 29, 2000
- ------------------------- ---
Dr. Howard Bellin
/s/Franz Schain Director February , 2000
- ------------------------- ---
Dr. Franz Schain
6
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NovaMed, Inc.
(A Nevada corporation)
7
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit SEC Ref. No. Description of Exhibit Numbered Pages
- -------- ------------ ---------------------- --------------
A 4 2000 Stock Benefit Plan of
the Company 9
B 5, 23(b) Opinion and consent of Counsel
with respect to the legality
of the issuance of securities
being issued 14
C 4 Description and specimen
certificate of the Common Stock. 17
D 23(a) Consent of Accountant 18
E 19 Section 10(A) Prospectus of
Novamed, Inc. 19
8
THE 2000 STOCK BENEFIT PLAN
OF
NovaMed, Inc.
9
<PAGE>
The 2000 Stock Benefit Plan Of NovaMed, Inc.
NovaMed, Inc., a Nevada corporation (the "Company"), hereby adopts The
2000 Stock Benefit Plan of NovaMed, Inc. (the "Plan") this 18th day of February,
2000. Under the Plan, the Company may issue shares of the Company's common stock
or grant options to acquire the Company's common stock, par value $0.001 (the
"Stock"), from time to time to employees of the Company or its subsidiaries, all
on the terms and conditions set forth herein ("Options"). In addition, at the
discretion of the Board of Directors, shares of the Company's common stock or
Options to acquire shares of the Company's common stock may be granted under
this Plan to other individuals, including consultants or advisors who are not
employees of the Company or its subsidiaries, but contribute to the success of
the Company or its subsidiaries, provided that bona fide services shall be
rendered by consultants and advisors and such services must not be in connection
with the offer or sale of securities in a capital-raising transaction or in
conjunction with the promotion of the Company's stock.
1. Purpose of the Plan. The Plan is intended to aid the Company in maintaining
and developing a management team, attracting qualified officers and employees
capable of assuring the future success of the Company, and rewarding those
individuals who have contributed to the success of the Company. The Company has
designed this Plan to aid it in retaining the services of executives and
employees and in attracting new personnel when needed for future operations and
growth and to provide such personnel with an incentive to remain employees of
the Company, to use their best efforts to promote the success of the Company's
business, and to provide them with an opportunity to obtain or increase a
proprietary interest in the Company. It is also designed to permit the Company
to reward those individuals who are not employees of the Company but who
management perceives to have contributed to the success of the Company or who
are important to the continued business and operations of the Company. The above
goals will be achieved through the granting of stock and/or options. The plan is
not subject to the provision of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), nor qualified under Section 401(a) of the Internal
Revenue Code of 1986, as amended (the "Code").
2. Administration of this Plan. Administration of this Plan shall be determined
by the Company's Board of Directors (the "Board"). The address of the Board is
c/o NovaMed, Inc., 623 Hoover Street Minneapolis, Minnesota 55413, telephone
number (612) 378-1437. Subject to compliance with applicable provisions of the
governing law, the Board may delegate administration of this Plan or specific
administrative duties with respect to this Plan on such terms and to such
committees of the Board as it deems proper (hereinafter the Board or its
authorized committee shall be referred to as "Plan Administrators"). The
interpretation and construction of the terms of this Plan by the Plan
Administrators thereof shall be final and binding on all participants in this
Plan absent a showing of demonstrable error. No member of the Plan
Administrators shall be liable for any action taken or determination made in
good faith with respect to this Plan. Any Option approved by a majority vote of
those Plan Administrators attending a duly and properly held meeting shall be
valid. Any Option approved by the Plan Administrators shall be approved as
specified by the Board at the time of delegation.
3. Shares of Stock Subject to this Plan. A total of One Million Three Hundred
Fifteen Thousand (1,315,000) shares of Stock may be subject to, or issued
pursuant to this Plan. If any right to acquire Stock granted under this Plan is
exercised by the delivery of shares of Stock or the relinquishment of rights to
shares of Stock, only the net shares of Stock issued (the shares of stock issued
less the shares of Stock surrendered) shall count against the total number of
shares reserved for issuance under the terms of this Plan.
10
<PAGE>
4. Reservation of Stock on Granting of Option. At the time any Option is granted
under the terms of this Plan, the Company will reserve for issuance the number
of shares of Stock subject to such Option until it is exercised or expires. The
Company may reserve either authorized but unissued shares or issued shares
reacquired by the Company.
5. Eligibility. The Plan Administrators may grant shares of stock or Options to
employees, officers, and directors of the Company and its subsidiaries, as may
be existing from time to time, and to other individuals who are not employees of
the Company or its subsidiaries, including consultants and advisors, provided
that such consultants and advisors render bona fide services to the Company or
its subsidiaries and such services are not rendered in connection with the offer
or sale of securities in a capital-raising transaction. In any case, the Plan
Administrators shall determine, based on the foregoing limitations and the
Company's best interests, which employees, officers, directors, consultants and
advisors are eligible to participate in this Plan. Options shall be in the
amounts, and shall have the rights and be subject to the restrictions, as may be
determined by the Plan Administrators, under the provisions of this Plan.
6. Term of Options and Certain Limitations on Right to Exercise.
-------------------------------------------------------------
a. Each Option shall have its term established by the Plan
Administrators at the time the Option is granted.
b. The term of the Option, once it is granted, may be reduced only as
provided for in this Plan and under the express written provisions of
the Option.
c. Unless otherwise specifically provided by the written provisions of
the Option or required by applicable disclosure or other legal
requirements promulgated by the Securities and Exchange Commission
("SEC"), no participant of this Plan or his or her legal
representative, legatee, or distributee will be, or shall be deemed to
be, a holder of any shares subject to an Option unless and until such
participant exercises his or her right to acquire all or a portion of
the Stock subject to the Option and delivers the required
consideration to the Company in accordance with the terms of this Plan
and then only as to the number of shares of Stock acquired. Except as
specifically provided in this Plan or as otherwise specifically
provided by the written provisions of the Option, no adjustment to the
exercise price or the number of shares of Stock subject to the Option
shall be made for dividends or other rights for which the record date
is prior to the date on which the Stock subject to the Option is
acquired by the holder.
d. Options shall vest and become exercisable at such time or times and
on such terms as the Plan Administrators may determine at the time of
the grant of the Option.
e. Options may contain other provisions, including further lawful
restrictions on the vesting and exercise of the Options as the Plan
Administrators may deem advisable.
f. An option may never be exercised after the expiration of its term.
g. Options shall be non-transferable, except by the laws of descent
and distribution.
7. Exercise Price. The Plan Administrators shall establish the exercise price
payable to the Company for shares to be obtained pursuant to Options which
exercise price may be amended from time to time as the Plan Administrators shall
determine.
11
<PAGE>
8. Payment of Exercise Price. The exercise of any Option shall be contingent on
receipt by the Company of the exercise price paid in either cash, certified or
personal check payable to the Company.
9. Withholding. If the grant or exercise of an Option is subject to withholding
or other trust fund payment requirements of the Internal Revenue Code of 1986,
as amended (the "Code"), or applicable state or local laws, the Company will
initially pay the Optionee's liability and will be reimbursed by Optionee no
later than six months after such liability arises and Optionee hereby agrees to
such reimbursement terms.
10. Dilution or Other Adjustment. The shares of Common Stock subject to this
Plan and the exercise price of outstanding Options are subject to proportionate
adjustment in the event of a stock dividend on the Common Stock or a change in
the number of issued and outstanding shares of Common Stock as a result of a
stock split, consolidation, or other recapitalization. The Company, at its
option, may adjust the Options, issue replacements, or declare Options void.
11. Options to Foreign Nationals. The Plan Administrators may, in order to
fulfill the purpose of this Plan and without amending this Plan, grant Options
to foreign nationals or individuals residing in foreign countries that contain
provisions, restrictions, and limitations different from those set forth in this
Plan and the Options made to United States residents in order to recognize
differences among the countries in law, tax policy, and custom. Such grants
shall be made in an attempt to give such individuals essentially the same
benefits as contemplated by a grant to United States residents under the terms
of this Plan.
12. Listing and Registration of Shares. Each Option shall be subject to the
requirement that if at any time the Plan Administrators shall determine, in
their sole discretion, that it is necessary or desirable to list, register, or
qualify the shares covered thereby on any securities exchange or under any state
or federal law, or obtain the consent or approval of any governmental agency or
regulatory body as a condition of, or in connection with, the granting of such
Option or the issuance or purchase of shares thereunder, such Option may not be
exercised in whole or in part unless and until such listing, registration,
consent, or approval shall have been effected or obtained free of any conditions
not acceptable to the Plan Administrators.
13. Expiration and Termination of this Plan. This Plan may be abandoned or
terminated at any time by the Plan Administrators except with respect to any
Options then outstanding under this Plan. This Plan shall otherwise terminate on
the earlier of the date that is five years from the date first appearing in this
Plan or the date on which the 1,315,000th share is issued hereunder.
14. Amendment of this Plan. This Plan may not be amended more than once during
any six month period, other than to comport with changes in the Code or the
Employee Retirement Income Security Act or the rules and regulations promulgated
thereunder. The Plan Administrators may modify and amend this Plan in any
respect; provided, however, that to the extent such amendment or modification
would cause this Plan to no longer comply with the applicable provisions of the
Code governing incentive stock options as they may be amended from time to time,
such amendment or modification shall also be approved by the shareholders of the
Company.
12
<PAGE>
ATTEST:
Ruairidh Campbell, President and Director
/s/ Ruairidh Campbell
- -----------------------
Feb. 29, 2000
- -----------------------
Date
[THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK]
13
RICHARD D. SURBER
ATTORNEY- AT- LAW
268 West 400 South, Suite 300
Salt Lake City, Utah 84101
Telephone - (801) 575-8073 Ext. 106
Facsimile - (801) 575-8092
February 29, 2000
Board of Directors
NovaMed, Inc.
623 Hoover Street N.E.
Minneapolis, Minnesota 55413
Re: Form S-8 Registration Statement
Gentlemen:
I have acted as a special counsel for NovaMed, Inc., a Nevada corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission ("the Commission") under the Securities Act of 1933, as
amended, ("the Act") of a registration statement on Form S-8 (the "Registration
Statement"). The Company is registering a Benefit Plan entitled "The 2000 Stock
Benefit Plan of NovaMed, Inc." (the "Benefit Plan") pursuant to which the
Company has authorized the issuance of 1,315,000 shares of the Company's common
stock, par value $.001. In connection with the Company's filing of the
Registration Statement, you have requested my opinion regarding the validity of
the issuance of the aforementioned Shares.
This opinion letter (this "Opinion") is governed by, and shall be interpreted in
accordance with the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications and limitations, all as more particularly described in the
Accord, and this Opinion should be read in conjunction therewith.
In connection with the preparation of this Opinion, I have examined the
following:
1. The Company's Articles of Incorporation and Bylaws;
2. The Registration Statement herein referenced;
3. The authorization and approval, dated February 18, 2000, by the
Company's Board of Directors of the Company's 2000 Stock Benefit Plan
concerning the Shares and Registration Statement; 4. The Company's Section
10(a) Prospectus for the Registration Statement; 5. The Company's General
Registration Statement filed on a Form 10SB file on August 4, 1999 and all
subsequent amendments and any of the Company's Form 10-QSB for the
quarterly period ended September 31, 1999; 6. Such other documents as I
have deemed necessary for the purposes of this Opinion.
14
<PAGE>
Additionally, I have made such investigations of federal law as I have
considered necessary and appropriate to form a basis for this opinion. My
opinion is qualified by the scope of the document review specified herein and I
make no representations as to the sufficiency of my investigation for this
opinion. I further expressly exempt from this opinion any representations as to
the completeness, adequacy, accuracy or any other aspect of the financial
statements incorporated in the Registration Statement.
The documentation and representations provided to me for this opinion by the
Company and its duly authorized representatives indicate that the Company is
validly organized under the laws of the State of Nevada; the Company is current
in its filings with the Commission; the Company's Board of Directors has
authorized the Benefit Plan; the Company's Board of Directors has authorized the
filing of the Registration Statement; and that the number of shares to be
included in the Registration Statement are available for issuance based upon
corporate documentation and on the amount of shares actually issued and
outstanding.
As such, I am of the opinion that the Shares herein referenced have been duly
and validly authorized and that subject to compliance with all provision of the
Plan, the Shares will bd validly issued as fully paid and non- assessable shares
of common stock in the Company.
This opinion is based upon and subject to the qualifications and limitations
specified below:
(A) Certain of the remedial provisions of the 2000 Stock Benefit Plan may
be further limited or rendered unenforceable by other applicable laws and
interpretations.
(B) In rendering the opinion that the shares of the Common Stock to be
registered pursuant to the Registration Statement and issued under the Benefit
Plan will be validly issued, fully paid and nonassessable, I assumed that: (1)
the Company's Board of Directors has exercised good faith in establishing the
value paid for the Shares; (2) all issuances and cancellations of the capital
stock of the Company will be fully and accurately reflected in the Company's
Stock Records as provided by the Company's transfer agent; and (3) the
consideration, as determined by the Company's Board of Directors, to be received
in exchange for each issuance of common stock of the Company, has been paid in
full and actually received by the Company.
(C) I have made no independent verification of the facts asserted to be
true and accurate by authorized representatives of the Company and have assumed
that no person or entity has engaged in fraud or misrepresentation regarding the
inducement relating to, or the execution or delivery of, the documents reviewed
(D) In rendering this opinion I have assumed that all signature are
genuine, that all documents submitted to me as copies conform substantially to
the originals, that all documents have been duly executed on or as of the date
represented on the documents, that execution and delivery of the documents was
duly authorized on the part of the parties, that all documents are legal, valid
and binding on the parties and that all corporate records are complete.
(E) I have assumed that the Company is satisfying the substantive
requirements of Form S-8 and I expressly disclaim any opinion regarding the
Company's compliance with such requirements, whether they are of federal or
state origin, or any opinion as to the subsequent tradeability of any Shares
issued pursuant to the Benefit Plan.
(F) I am admitted to practice law in the State of California. I am not
admitted to practice law in the State of Nevada or in any other jurisdiction
where the Company may own property or transact business. This opinion is with
respect to federal law only and I have not consulted legal counsel from any
other jurisdiction
15
<PAGE>
for the purpose of the opinion contained herein. I expressly except from this
opinion any opinion as to whether or to what extent a Nevada court or any other
court would apply Nevada law, or the law of any other state or jurisdiction, to
any particular aspect of the facts, circumstance and transactions that are the
subject of this opinion.
(G) This opinion is strictly limited to the parameters contained and
referenced herein and is valid only as to the signature date with respect to the
same. I assume no responsibility to advise you of any subsequent changes or
developments which might affect any aspect to this opinion.
I, hereby, consent to the use of this opinion as an exhibit to the Registration
Statement. This opinion may not be used, relied upon, circulated, quoted or
otherwise referenced in whole or in part for any purpose without my written
consent.
Sincerely,
/s/ Richard D. Surber
- ----------------------
Richard D. Surber
Attorney at Law
16
EXHIBIT C - SPECIMEN CERTIFICATE
NOT VALID UNLESS COUNTERSIGNNED BY TRANSFER AGENT
INCORPORTAED UNDER THE LAWS OF THE STATE OF NEVADA
Certificate No. Number of Shares
- VOID - NOVAMED, INC. XXXXX
AUTHORIZED COMMON STOCK: 50,000,000 SHARES
PAR VALUE: $.001
THIS CERTIFIES THAT ----------SPECIMEN---------
IS THE RECORD HOLDER OF -----------VOID----------
-Shares of NOVAMED, INC. Common Stock-
tranferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed. This Certificate
is not valid until countersigned by the Transfer Agent and registered by the
Registrar.
Witness the facsiile seal of the Corportion and facsimile
signatures of its duly authorized officers.
Dated:
----------------
/s/ D. Wareham /s/ Ruairidh Campbell
- -------------------------- [Corporate Seal] ------------------------
Secretary President
INTERWEST TRANSFER CO. INC. P.O. BOX 17136/SALT LAKE CITY, UTAH 84117
COUNTERSIGNED & REGISTERED
--------------------------
COUNTERSIGNED Transfer Agent-Authorized Signature
17
[Letterhead of Tanner+Co.]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 our report dated February 18, 1999, which
appears on page F-2 of the 1999 Annual Report on Form 10K of NovaMed, Inc., and
the references to our firm under the caption "Experts" in the Registration
Statement.
/s/ TANNER + CO.
Salt Lake City, Utah
March 1, 2000
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SECTION 10(A) PROSPECTUS OF
NOVAMED, INC.
February 18, 2000: This document constitutes part of a prospectus
covering securities of NovaMed, Inc., a Nevada corporation (the "Company"), that
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"). This document, a Section 10(a) Prospectus, contains and
constitutes four sections: First, the "General Plan Information;" second, the
"Registrant Information and Employee Plan Annual Information;" third, the
Company's Form 10SB and subsequent amendments and the Company's Form 10QSB for
the quarter ended September 31, 1999, which are incorporated herein by this
reference, and thereby constructively provided to offerees; and fourth, a Stock
Option Agreement and Notice of Exercise, which is to be completed and submitted
within the time allowed along with tender of the appropriate consideration for
those who wish to exercise their options.
Item 1. General Plan Information
The Company's board of directors (the "Board") has adopted a stock
option plan for its employees and others entitled "The 2000 Stock Benefit Plan
of NovaMed, Inc." (the "Plan"). Pursuant to the Plan, the Board can authorize
the issuance of, or options to purchase, up to four million (1,315,000) shares
of common stock of the Company, par value $0.001 per share (the "Common Stock").
The Plan is intended to aid the Company in maintaining and continuing
its development of a quality management team, in attracting qualified employees,
consultants, and advisors who can contribute to the future success of the
Company, and in providing such individuals with an incentive to use their best
efforts to promote the growth and profitability of the Company.
The Plan is not subject to the provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), nor qualified under Section
401(a) of the Internal Revenue Code of 1986, as amended (the "Code").
Administration of the Plan is the exclusive province of the Board. Board members
are elected at each annual meeting of shareholders. The term each Board member
serves is therefore one year. If an annual meeting is not held the member shall
serve until the next submission of matters to a vote of Company's shareholders.
As ultimate administrators of the Plan, the Board should be contacted
with requests for additional Plan information. Alternatively, the Board may
appoint a committee to administer the Plan (hereinafter the Board or its duly
authorized committee shall be referred to as "Plan Administrators"). As no
committee has been authorized by the Board, the current Board members are the
Plan Administrators. This group includes Ruairidh Campbell, Dr. Aydin Dogan, Dr.
Howard Bellin, and Franz Schain. The address of the Board is c/o NovaMed, Inc.
623 Hoover Street, Minneapolis, Minnesota 55413, Telephone number (612)
378-1437.
In the event a vacancy in the Board arises, the vote of a majority of
remaining directors may select a successor, or, if the vacancy is not filled by
the remaining Board, the vote of shareholders may also elect a successor to fill
such vacancy. Board members may be removed from office by the vote of
shareholders representing not less than a simple majority of the shares entitled
to vote on such removal. Plan Administrators who are not Board members can be
removed or appointed at any time for any reason by the majority vote of Board
members.
The Plan Administrators shall interpret the Plan (which interpretation
is binding on the participants absent demonstrable error), determine which
employees or others shall receive options,
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decide the number of shares subject to such options and establish other terms of
the options not already established in the Company's Plan. Information
concerning changes in the Plan Administrators will be provided in the future
either in the Company's proxy statements, annual or other reports, or in
amendments to this document.
Securities to be Offered
Shares or options to purchase shares, up to a maximum of four million
(1,315,000) shares of Common Stock may be granted under the Plan. All options
under the Plan are "non-qualified" stock options. The number of shares of Common
Stock issuable under the Plan is subject to adjustment in the event of changes
in the outstanding shares of Common Stock resulting from stock dividends, stock
splits, or recapitalizations.
Employees Who May Participate in the Plan
The Board shall determine which of the Company's employees are eligible
to receive options under the Plan. The term "Employee" includes any employee,
director, officer, or consultant or advisor of the Company or any of its
subsidiaries, provided that bona fide services shall be rendered by consultants
and advisors and such services must not be in connection with the offer or sale
of securities in a capital-raising transaction.
Purchase of Securities Pursuant to the Plan and Payment for Securities Offered
The Plan Administrators shall determine which employees shall receive
options. The Plan is not subject to ERISA and the securities are being issued by
the Company and not purchased on the open market or otherwise.
Options granted under the Plan shall be exercisable as determined by
the Plan Administrators. If an option granted under the Plan should expire or
terminate for any reason without having been exercised in full, the unpurchased
shares subject to that option will again be available for grant under the Plan.
The exercise price payable to the Company for Option Shares shall be as
set forth from time to time by the Plan Administrator. The exercise of any
Option shall be contingent on receipt by the Company of the exercise price paid
in either cash, certified or personal check payable to the Company.
The shares of Common Stock subject to the Plan and the exercise price
of outstanding options are subject to proportionate adjustment in the event of a
stock dividend on the Common Stock or a change in the number of issued and
outstanding shares of Common Stock as a result of a stock split, consolidation,
or other recapitalization. Options and all other interests under the plan shall
be non-transferable, except by means of a will or the laws of descent and
distribution.
Amendments and Termination
The Plan may be abandoned or terminated at any time by the Plan
Administrators except with respect to any Options then outstanding under the
Plan. The Plan shall otherwise terminate on the earlier of the date that is five
years from the date first appearing in the Plan or the date on which an option
for the four-millionth share is either granted under the Plan or on which the
One Million Fifteenth thousandth share is issued or deregistered on a
post-effective amendment on Form S-8 filed with the Securities and Exchange
Commission (the "SEC"). No options may be granted under the terms of the Plan
after it has been terminated. The Board may alter or amend the Plan only once
during any six month period, except as to comply with changes to the Code. No
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termination, suspension, alteration or amendment may adversely affect the rights
of a holder of a previously issued option without the consent of that holder.
Resale of Common Stock
Shares of Common Stock purchased on exercise of options granted under
the Plan will have been initially registered pursuant to a Form S-8 Registration
Statement filed by the Company. Subsequent resales of shares obtained pursuant
to the Plan may be eligible for immediate resale depending on whether an
exemption from registration is available or whether the shares are in fact
registered. The Company makes no statement as to subsequent salability of
specific shares obtained pursuant to the Plan and urges any persons seeking to
sell shares so obtained to seek counsel from independent attorneys.
As may be applicable for subsequent resale of shares obtained from the
Plan, the Board believes that the Company has filed all reports and other
materials required to be filed during the preceding twelve months under the
Securities Exchange Act of 1934 as of February 21, 2000.
Tax Effects of Plan Participation & Nonstatutory Options
The following discussion of the federal income tax consequences of
participation in the Plan is only a summary, does not purport to be complete,
and does not cover, among other things, state and local tax consequences.
Additionally, differences in participants' financial situations may cause
federal, state, and local tax consequences of participation in the Plan to vary.
Therefore, each participant in the Plan is urged to consult his or her own
accountant, legal or other advisor regarding the tax consequences of
participation in the Plan. This discussion is based on the provisions of the
Code as presently in effect.
Under the current provisions of the Code, if shares of Common Stock are
issued to the original holder of a non-qualified option granted and exercised
under the Plan (assuming there is not an active trading market for options of
the Company), (i) the option holder ("Holder") will not recognize income at the
time of the grant of the option; (ii) on exercise of the option the Holder will
recognize ordinary income in an amount equal to the excess of the fair market
value of the shares of Common Stock acquired at the time of exercise over the
exercise price; (iii) upon the sale of the shares of Common Stock the Holder
will recognize a short term or long term capital gain, or loss, as may be, in an
amount equal to the difference between the amount he or she receives from the
sale of those shares and the Holder's tax basis in the shares (as described
below); and (iv) the Company will be entitled to expense as compensation the
amount of ordinary income that the holder recognized, as set forth in Clause
(ii) above.
If the Holder pays the exercise price entirely in cash, the tax basis
of the shares of Common Stock will be equal to the amount of the exercise price
paid plus the ordinary income recognized by the Holder from exercising the
options. This basis should equal the fair market value of the shares of Common
Stock acquired on the date of exercise. The holding period will begin on the day
after the tax basis of the shares is determined.
The ordinary income received by the Holder on exercise of the option is
considered to be compensation from the Company. As with other forms of
compensation, withholding tax and other trust fund payments will be due with
respect to the exercise of the options. The Company will initially pay the
Optionee's liability and will be reimbursed by Optionee no later than six months
after such liability arises.
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Item 2. Registrant Information and Employee Plan Annual Information The Company
will provide to any Employee upon request a copy, without charge, of the
Company's periodic reports filed with the SEC, including its Form 10SB
Registration Statement and the latest annual report on Form 10-KSB, if
applicable and its quarterly reports on Form 10-QSB. The Company will also
provide any Employee upon written or oral request a copy, without charge, of the
documents incorporated by reference in Item 3 of Part II of the Form S-8
registration statement. These documents are also incorporated by reference into
the Section 10(a) prospectus, of which this document is a part. Requests for
such information should be directed to the Company at 623 Hoover Street,
Minneapolis. Minnesota 55413, telephone number (612) 378-1437.
ATTESTED:
/s/ Ruairidh Campbell
- ----------------------------------
Ruairidh Campbell, President and Director
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