As Filed With the Securities and Exchange Commission on October 13, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CompuMed, Inc.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
95-2860434
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(I.R.S. employer identification no.)
1230 Rosecrans Avenue, Suite 1000
Manhattan Beach, California 90266
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(Address of principal executive offices) (Zip code)
CompuMed, Inc. 1992 Stock Option Plan
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(Full title of the plan)
ROD N. RAYNOVICH
President
c/o CompuMed, Inc.
1230 Rosecrans Avenue, Suite 1000
Manhattan Beach, California 90266
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(Name and address of agent for service)
(310) 643-5106
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Telephone number, including area code, of agent for service
Copy to:
Bruce A. Rich, Esq.
Reid & Priest LLP
40 W. 57th Street
New York, NY 10019
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Proposed
securities maximum maximum Amount of
to be Amount to be offering price aggregate registration
registered registered(1) per share(2) offering price fee
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Common Stock,
$.01 par
value 360,000 shares $13.80 $4,968,000 $1,713.10
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of
1933, as amended, this registration statement also covers any additional
securities to be offered or issued in connection with a stock split, stock
dividend or similar transaction.
(2) Estimated for the sole purpose of calculating the registration
fee in accordance with Rule 457(h) under the Securities Act of 1933, as
amended.
<PAGE>
COMPUMED, INC.
COMPUMED, INC. 1992 STOCK OPTION PLAN
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement on Form S-8 is prepared pursuant to
General Instruction E to Form S-8.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The document listed below is hereby incorporated by reference into
this Registration Statement, and all documents subsequently filed by
CompuMed, Inc. (the "Company"), with the Securities and Exchange Commission
(the "Commission"), pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents:
(a) The Company's Registration Statement on Form S-8 (File No. 33
-57896), as filed with the Securities and Exchange Commission on
February 8, 1993, to register 1,200,000 shares of the Common
Stock, $.01 par value, underlying the Company's 1992 Stock Option
Plan.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of the
registration statement to the extent that a statement contained herein
modifies or replaces such statement. Any such statement shall not be
deemed to constitute a part of this registration statement except as so
modified or replaced.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article TENTH of the Certificate of Incorporation of the Company and
Article VI of the By-laws of the Company provide in part that the Company
shall indemnify its directors, officers, employees and agents to the
fullest extent permitted by the General Corporation Law of the State of
Delaware (the "DGCL").
Section 145 of the DGCL permits a corporation, among other things, to
indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the corporation), by reason of the fact that
he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
A corporation also may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation. However, in such an
action by or on behalf of a corporation, no indemnification may be made in
respect of any claim, issue or matter as to which the person is adjudged
liable to the corporation unless and only to the extent that the court
determines that, despite the adjudication of liability but in view of all
the circumstances, the person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
In addition, the indemnification and advancement of expenses provided
by or granted pursuant to Section 145 shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
ITEM 8. EXHIBITS.
Exhibit No. Description
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4(a)* Certificate of Incorporation
4(b)* Amendment to Certificate of Incorporation
4(c)** Amendment to Certificate of Incorporation
4(d)** Certificate of Correction of Certificate of
Amendment
4(e)* By-Laws of the Company
5*** Opinion of Reid & Priest LLP
10*** CompuMed, Inc. 1992 Stock Option Plan
23(a)*** Consent of Ernst & Young LLP
23(b)*** Consent of Reid & Priest LLP (included in
Exhibit 5).
24*** Power of Attorney (included on signature page of
this Registration Statement on Form S-8).
---------------------------
* Filed as exhibits to the Company's Registration Statement on Form S-1
(Commission File No. 33-46061), as amended and incorporated herein by
this reference.
** Filed as exhibits to Amendment No. 2 to Post Effective Amendment No. 1
to the Company's Registration Statement on Form SB-2 (Commission File
No. 33-46061) and incorporated herein by this reference.
*** Filed herewith.
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement;
(b) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(c) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission 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;
(d) 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;
provided, however, that paragraphs (b) and (c) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated by reference in
the registration statement;
(e) 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
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof;
(f) To remove from registration by means of a post-effective
amendment any of the securities that remain unsold at the end of the
offering;
(g) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in 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; and
(h) Insofar 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
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 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 Securities Act and will be governed by the final
adjudication of such issue.
<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 the City of Manhattan
Beach, State of California on the 29th day of September, 1995.
COMPUMED, INC.
By: /s/ Rod N. Raynovich
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Rod. N. Raynovich, President
POWER OF ATTORNEY
Each director and/or officer of the Company whose signature
appears below hereby appoints Rod N. Raynovich as his attorney-in-fact
to sign in his name and behalf, in any and all capacities stated below
and to file with the Commission, any and all amendments, including
post-effective amendments, to this Registration Statement.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Rod N. Raynovich President, Chief September 29, 1995
---------------------- Executive Officer
Rod. N. Raynovich and Director
/s/ DeVere Pollom Vice President Finance, September 29, 1995
---------------------- Chief Financial
DeVere Pollom Officer, and Secretary
Chairman September 29, 1995
----------------------
Robert Funari
/s/ Robert Goldberg Director September 29, 1995
----------------------
Robert Goldberg
/s/ Howard Mark, M.D. Director September 29, 1995
----------------------
Howard Mark, M.D.
/s/ Winston Millet Director September 29, 1995
----------------------
Winston Millet
/s/ John Minnick Director September 29, 1995
----------------------
John Minnick
/s/ Robert Stuckelman Director September 29, 1995
----------------------
Robert Stuckelman
/s/ Russell Walker Director September 29, 1995
----------------------
Russell Walker
<PAGE>
INDEX TO EXHIBITS
COMPUMED, INC.
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Sequentially
Exhibit Numbered
No. Description Page
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5 Opinion of Reid & Priest LLP
10 CompuMed, Inc. 1992 Stock Option Plan
23(a) Consent of Ernst & Young LLP
23(b) Consent of Reid & Priest LLP
(included in Exhibit 5).
24 Power of Attorney (included on
signature page of this
Registration Statement on Form S-8).
Exhibit 5
REID & PRIEST LLP
A New York Registered Limited Liability Partnership
40 West 57th Street
New York, NY 10019-4097
Telephone 212 603-2000
Fax 212 603-2298
(212) 603-2526
New York, New York
October 13, 1995
CompuMed, Inc.
1230 Rosecrans Avenue, Suite 1000
Manhattan Beach, California 90266
Re: Registration Statement on Form S-8
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Gentlemen:
We have acted as counsel to CompuMed, Inc., a Delaware
corporation (the "Registrant"), in connection with the preparation and
filing of a Registration Statement on Form S-8 (the "Registration
Statement") with the Securities and Exchange Commission (the "Commission"),
with respect to the registration under the Securities Act of 1933, as
amended (the "Act"), of 360,000 shares (the "Shares") of the Registrant's
Common Stock, $.01 par value, issuable upon the exercise of options (the
"Options") granted or to be granted under the Registrant's 1992 Stock
Option Plan (the "Plan").
For purposes of this opinion we have examined the Registration
Statement, the Certificate of Incorporation, as amended and the By-Laws of
the Registrant, and such documents, records, agreements, proceedings and
legal matters as we have deemed necessary to examine. With respect to any
documents or other corporate records which we have examined, we have
assumed the genuineness of all signatures on, and the authenticity of, all
documents submitted to us as originals, and the conformity to the original
documents submitted to us as certified or photostatic copies.
Based upon the foregoing and subject to the qualifications stated
herein we are of the opinion that:
1. The Registrant is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2. The Shares included in the Registration Statement to be
issued upon the exercise of the Options will be duly authorized and validly
issued, and fully paid and non-assessable when the Options shall have been
properly exercised and the exercise price shall have been paid for the
Shares in accordance with the terms of the Plan.
We are members of the Bar of the State of New York and do not
hold ourselves out as experts concerning, or qualified to render opinions
with respect to any laws other than the laws of the State of New York, the
Federal laws of the United States and the General Corporation Law of the
State of Delaware.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. In giving the
foregoing consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Act or the rules
and regulations of the Commission thereunder.
Very truly yours,
/s/ Reid & Priest LLP
Reid & Priest LLP
Exhibit 10
COMPUMED, INC.
1992 STOCK OPTION PLAN
1. PURPOSE OF THE PLAN. The purpose of the CompuMed, Inc. 1992
Stock Option Plan ("Plan") is to encourage ownership of the Common Stock of
CompuMed, Inc., a Delaware corporation ("Company"), by eligible key
employees, directors and officers providing service to the Company and its
subsidiaries and to provide increased incentive for such employees and
other persons to render services to the Company and its subsidiaries in the
future and to exert maximum effort for the success of the business of the
Company and its subsidiaries.
2. DEFINITIONS. As used herein, and in any Option granted
hereunder, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of CompuMed, Inc.
(b) "Common Stock" shall mean the Common Stock of CompuMed, Inc.
(c) "Committee" shall mean the Committee appointed by the Board in
accordance with paragraph (a) of Section 3 of the Plan. If no
Committee is appointed, the term "Committee" shall refer to the
Board.
(d) "Continuous Employment" or "Continuous Status as an Employee"
shall mean the absence of any interruption or termination of
employment by the Company or any Subsidiary. Continuous Employment
shall not be considered interrupted in the case of sick leave,
military leave or any other leave of absence approved by the Company,
or in the case of transfers between locations of the Company or
between the Company, its Subsidiaries or its successor.
(e) "Employee" shall mean any person, including officers, directors,
employees and consultants, employed by the Company or any
Subsidiary on either a full-time or part-time basis.
(f) "Incentive Stock Option" shall mean any Option granted under this
Plan, or any other option granted to an Employee, which complies with
the provision of Section 422A of the Internal Revenue Code of 1986, as
amended from time to time (herein called the "Code").
(g) "Non-Qualified Stock Option" shall mean any Option granted under
this Plan which does not qualify in whole or in part as an incentive
stock option" under the provision of Section 422A of the Code.
(h) "Option" shall mean a stock option granted pursuant to the Plan.
(i) "Optioned Shareholders" shall mean the Common Stock subject to an
Option granted pursuant to the Plan.
(j) "Optionee" shall mean a person who receives an Option under the
Plan.
(k) "Plan" shall mean this 1992 Stock Option Plan.
(l) "Share" shall mean a share of the Common Stock, as adjusted in
accordance with Section 6(i) of the Plan.
(m) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the
time of the granting of the Option, each of the corporations other
than the last corporation in the unbroken chain owns stock possessing
50 percent or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain.
3. ADMINISTRATION OF THE PLAN.
(a) Procedure. The Plan shall be administered by the Board. The
Board may appoint a Committee consisting of not less than two members of
the Board to administer the Plan on behalf of the Board, subject to such
terms and conditions as the Board may prescribe. Once appointed, the
Committee shall continue to serve until otherwise directed by the Board.
From time to time, the Board may increase the size of the Committee and
appoint additional members thereof, fill vacancies, however caused, and
remove all members of the Committee and thereafter, directly administer the
Plan.
Members of the Board or Committee who are either eligible for Options
or have been granted Options may vote on any matters affection the
administration of the Plan or the grant of any Options pursuant to the
Plan; PROVIDED THAT no such member shall act upon the granting, amendment
or modification of an Option to himself, but any such member may be counted
in determining the existence of a quorum at any meeting of the Board or the
Committee during which action is taken with respect to the granting of an
Option to him.
(b) POWERS OF THE COMMITTEE. Subject to the provisions of the Plan,
the Committee shall have the authority: (i) to determine, upon review of
relevant information, the fair market value of the Common; (ii) to
determine the exercise price of Options to be granted (which price, in the
case of Incentive Stock Options, shall be not less than the minimum
specified in Section 6(b) hereof), the Employees to whom and the time or
times at which Options shall be granted, and the number of Shares to be
represented by each Option: (iii) to interpret the Plan; (iv) to prescribe,
amend and rescind rules and regulations relating to the Plan, (v) to
determine the terms and provisions of each Option granted under the Plan
(which need not be identical) and, with the consent of the holder thereof,
to modify or amend any Option; (vi) to authorize any person to execute on
behalf of the Company any instrument required to effectuate the grant of an
Option previously granted by the Committee, and (vii) to make all other
determinations deemed necessary or advisable for the administration of the
Plan.
(c) EFFECT OF COMMITTEE'S DECISION. All decisions, determinations
and interpretations of the Committee shall be final and binding on
all Optionees and any other holders of any Options granted under the
Plan.
4. STOCK RESERVED FOR THE PLAN. Subject to adjustment as provided
in paragraph 6(h) and 6(i) hereof and to the provisions of Section 9
hereof, a total of 1,200,000 shares of Common Stock shall be subject to the
Plan. The Shares subject to the Plan shall consist of unissued shares or
previously issued shares reacquired and held by the Company, and such
amount of shares shall be and is hereby reserved for sale for such purpose.
Any of such shares which may remain unsold and which are not subject to
outstanding Options at the termination of the Plan shall cease to be
reserved for the purpose of the Plan, but until termination of the Plan the
Company shall at all times reserve a sufficient number of shares to meet
the requirements of the Plan. Should any Option expire or be canceled
prior to its exercise in full, the shares theretofore subject to such
Option may again be made subject to an Option under the Plan.
5. ELIGIBILITY
(a) Incentive Stock Options under the Plan may be granted only
to Employees for a reason connected with their employment by the Company or
any Subsidiary. Non-Qualified Stock Options may be granted under the Plan
to Employees for a reason connected with their employment or other service
to the company or any Subsidiary. An Employee who has been granted an
Incentive Stock Option or a Non-Qualified Stock Option, if he or she is
otherwise eligible, may be granted additional Incentive Stock Options or
Non-Qualified Stock Options.
(b) The aggregate fair market value (determined at the time an
Incentive Stock Option is granted) of the Common Stock with respect to
which any Incentive Stock Option may be exercisable for the first time by
an Optionee during any calendar year (under this Plan and any other Stock
Option Plans of the Company and its Subsidiaries) shall not exceed
$100,000.
The Plan shall not confer upon any Optionee any right with respect to
continuation of employment by the Company, nor shall it interfere in any
way with his right or the Company's right to terminate his employment or
other position at any time.
6. TERMS AND CONDITIONS. Each Option granted under the Plan shall
be evidenced by an agreement, in a form approved by the Committee, which
shall be subject to the following express terms and conditions and to such
other terms and conditions as the Committee may deem appropriate.
(a) Option Period. Each option agreement shall specify the
period for which the Option thereunder is granted (which in no event shall
exceed ten years from the date of grant) and shall provide that the Option
shall expire at the end of such period. In the case of Incentive Stock
Options, if the Optionee owns more than ten percent (10%) of the
outstanding stock of the Company (determined in accordance with Section
425(d) of the Code) on the date the Incentive Stock Option is granted to
him, the option period shall not exceed five years from the date of grant.
(b) Option Price. The purchase price of each share of Common
Stock subject to each Option granted pursuant to the Plan shall be
determined by the Committee at the time the Option is granted. In the case
of Incentive Stock Options, such purchase price shall not be less than the
fair market value of a share of Common Stock on the date the Option is
granted, as determined by the Committee; provided, however, that in the
case of an Incentive Stock Option granted to an Optionee who owns more than
ten percent (10%) of the outstanding stock of the Company (determined in
accordance with Section 425(d) of the Code) on the date the Option is
granted to him, the option price shall not be less than 110% of the fair
market value of a share of Common Stock on such date.
(c) Exercise Period. No part of any Option may be exercise
until the Optionee shall have remained in the employ of the Company or any
of its Subsidiaries for such period after the date on which the Option is
granted as the Committee may specify in the option agreement.
(d) Procedure for Exercise. Options shall be exercised by the
delivery of written notice to the Company setting forth the number of share
with respect to which the Option is to be exercise. An Option may not be
exercised for fractional shares. Unless stock of the Company is used to
acquire such shares in accordance with paragraph 6(k), such notice shall be
accompanied by cash or certified check, bank draft, or postal or express
money order payable to the order of the Company for an amount equal to the
Option price of such shares and specifying the address to which the
certificates for such shares are to be mailed. As promptly as practicable
after receipt of such written notification and payment, the Company shall
deliver to the Optionee certificates for the number of shares with respect
to which such Option has been so exercised, issued in the Optionee's name;
provided, however, that such delivery shall be deemed effected for all
purposes when a stock transfer agent of the Company shall have deposited
such certificates in the United States mail, addressed to the Optionee, at
the address specified pursuant to paragraph 6(d). Until the issuance of
the stock certificates, no right to vote or receive dividends or any other
rights as a stockholder shall exist with respect to the optioned shares.
(e) Termination of Employment. If an Optionee to whom an Option
has been granted ceases to be employed by the Company or any of its
Subsidiaries for any reason other than death or disability, the Options
granted to him shall thereupon terminate. Any Options which are
exercisable on the date of such termination may be exercised during a three
month period beginning on such date.
(f) Disability or Death of Optionee. In the event of the
disability or death of the holder of an Option under the Plan while he is
employed by the Company or any of its Subsidiaries, the Options previously
granted to him may be exercised (to the extent he would have been entitled
to do so at the date of his disability or death) at any time and from time
to time, within a period of one year after his disability or death, by the
Optionee, by the executor or administrator of his estate or by the person
or persons to whom his rights under the Option shall pass by will or the
laws of descent and distribution, but in no event may the Option be
exercised after its expiration. An employee shall be deemed to be disabled
if, in the opinion of a physician selected by the Committee, he is
incapable of performing services for the Company or any of its subsidiaries
by reason of any medically determinable physical or mental impairment which
can be expected to result in death or to be of long, continued and
indefinite duration lasting not less than 12 months.
(g) No Rights as Stockholder. No Optionee shall have any rights
as a stockholder with respect to shares covered by an Option until the date
of issuance of a stock certificate for such shares; except as provided in
paragraphs 6(h) or 6(i), no adjustment for dividends, or otherwise, shall
be made if the record date therefore is prior to the date of issuance of
such certificate.
(h) Extraordinary Corporate Transactions; Adjustment for
Recapitalizations, Merger, etc. If the Company is dissolved or liquidated,
or is merged or consolidated into or with another corporation, other than
by a merger or consolidation in which the Company is the surviving
corporation, the then exercisable but unexercised Options granted under the
Plan shall not be exercisable after the date of such dissolution,
liquidation, merger or consolidation, unless such other surviving
corporation makes provision for adoption of the Plan and the assumption of
the Company's obligations thereunder.
Notwithstanding any provision of this Plan, the Committee is
authorized to take such action as it determines to be necessary or
advisable, and fair and equitable to Optionees, with respect to Options
held by Optionees int he event of a sale or transfer of all or
substantially all of the Company's assets, or merger or consolidation
(other than a merger or consolidation in which the Company is the surviving
corporation and no shares are converted into or exchanged for securities,
cash or any other thing of value). Such action may include (but is not
limited to) the following:
(A) Accelerating the exercisability of any Option to permit its
exercise in full during such period as the Committee in its sole
discretion shall prescribe following the public announcement or a sale
or transfer of assets or merger or consolidation.
(B) Permitting an Optionee, at any time during such period
as the Committee in its sole discretion shall prescribe following the
consummation of such a merger, consolidation or sale or transfer of
assets, to surrender any Option (or any portion thereof) to the
Company for cancellation.
(C) Requiring any Optionee, at any time following the
consummation of such a merger, consolidation or sale or transfer of
assets, if required by the terms of the agreements relating thereto,
to surrender any Option (or any portion thereof) to the Company in
return for a substitute Option which is issued by the corporation
surviving such merger or consolidation or the Committee, in it sole
discretion, determines to have a value to the Optionee substantially
equivalent to the value to the Optionee of the Option (or portion
thereof) so surrendered.
Subject to any action which the Committee may take pursuant to the
provisions of this paragraph 6(h) and paragraph 6(i), in the event of any
merger, consolidation or sale or transfer of assets referred to in this
paragraph 6(h) or paragraph 6(i), upon any exercise thereafter of an
Option, and Optionee shall, at no additional cost other than payment of the
exercise price of the Option, be entitled to receive in lieu of Shares,
(1) the number and class of Shares or other security, or (2) the amount of
cash, or (3) property, or (4) a combination of the foregoing, to which the
Optionee would have been entitled pursuant to the terms of such merger,
consolidation or sale or transfer of assets, if immediately prior thereto
the Optionee has been the holder of record of the number of Shares for
which such Option shall be so exercised.
(i) Changes in Company's Capital Structure. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalization, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company,
or any issuance of Common Stock or subscription rights thereto, or any
issuance of bonds, debentures, preferred or prior preference stock ahead of
or affecting the Common Stock or the rights thereof, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act of proceeding, whether
of a similar character or otherwise. Provided, however, that it the
outstanding shares of Common Stock of the Company shall at any time be
changed or exchanged by declaration of a stock dividend, stock split,
combination of shares, or recapitalization, the number and kind of shares
subject to the Plan or subject to any Options theretofore granted, and the
option prices, shall be appropriately and equitably adjusted so as to
maintain the proportionate number of shares without changing the aggregate
option price.
(j) Investment Representation. Each option agreement shall
contain an agreement that, upon demand by the Committee for such a
representation, the Optionee [or any person acting under paragraph 6(f)]
shall deliver to the Committee at the time of any exercise of an Option a
written representation that the shares to be acquired upon such exercise
are to be acquired for investment and not for resale or with a view to the
distribution thereof. Upon such demand, delivery of such a representation
prior to the delivery of any shares issued upon exercise of an Option and
prior to the expiration of the option period shall be a condition precedent
to the right of the Optionee or such other person to purchase any shares.
(k) Payment with Stock. Subject to approval of the Committee,
an employee may pay for any shares of Common Stock with respect to which an
Option has been exercised by tendering to the Company other shares of
Common Stock at the time of the exercise of such Option, provided, however,
that at the time of such exercise, the Company shall have a Committee
consisting of two(2) or more disinterested directors who shall approve the
payment for option shares with other shares. The certificates representing
such other shares of Common Stock must be accompanied by stock power duly
executed with signature guaranteed. The value of Common Stock must be
accompanied by a stock power duly executed with signature guaranteed . The
value of Common Stock so tendered shall be determined by the committee in
its sole discretion. The Committee may, in its sole and absolute
discretion, refuse any tender of shares of Common Stock in which case it
shall deliver the tendered shares of Common Stock back to the employee and
notify the employee of such refusal.
(l) Options Not Transferable. No Option or interest or right
therein or part thereof shall be liable for the debts, contracts or
engagements of the Optionee or his successors in interest or shall be
subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be
voluntary or involuntary or by operation of law by judgement, levy,
attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy) and any attempted disposition thereof shall be null
and void and of no effect; provided, however, that nothing in this Section
6(l) shall prevent transfers by will or by the applicable laws of descent
and distribution.
7. AMENDMENTS OR TERMINATION. The Board of Directors may amend,
alter or discontinue the Plan, but no amendment or alteration shall be made
which would impair the rights of any participant under any Option
theretofore granted without his consent, or which without the approval of
the shareholders, would: (i) except as its provided in paragraphs 6(h) and
6(i) of the Plan, increase the total number of shares reserved for the
purposes of the Plan or decrease the option price provided for in paragraph
6(a) of the Plan or (iv) extend the expiration date of this Plan set forth
in paragraph 9 of the Plan.
8. COMPLIANCE WITH OTHER LAWS AND REGULATIONS. The Plan, the grant
and exercise of Options thereunder, and the obligation of the Company to
sell and deliver shares under such Options, shall be subject to all
applicable federal and state laws, rules and regulations and to such
approvals by the governmental or regulatory agency as may be required. The
Company shall not be required to issue or deliver any certificates for
shares of Common Stock prior to the completion of any registration or
qualification of such shares under any federal or state law, or any ruling
or regulation of any governmental body which the Company shall, in its sold
discretion, determine to be necessary or advisable. Further, it is the
intention of the Company that the Plan comply in all respects with the
provisions of Rule 16b-3 of the United States Securities and Exchange Act
of 1934, as amended. If any Plan provision is found or determined not to
be in compliance with such Rule 16b-3, the provision shall be deemed null
and void.
9. EFFECTIVENESS AND EXPIRATION OF PLAN. The Plan shall be
effective on March 27, 1992, subject to the express condition that
stockholders of the Company shall have approved and ratified the Plan
within one year thereafter. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET
FORTH IN THE PLAN OR ANY OPTION AGREEMENT PURSUANT TO THE PLAN, NO OPTION
UNDER THE PLAN MAY BE EXERCISED UNLESS STOCKHOLDERS OF THE COMPANY SHALL
HAVE APPROVED AND RATIFIED THE PLAN WITHIN ONE YEAR OF ITS EFFECTIVE DATE.
For the purpose of granting Options hereunder, this Plan shall expire on
March 22, 2002, ten years after the effective date of the Plan and
thereafter no Option shall be granted pursuant to the Plan.
10. CANCELLATION AND ISSUANCE. The Committee may, at its sole
discretion, subject to the provisions of the Plan, cancel outstanding
Options and issue replacement Options under the Plan under terms and at
exercise prices it deems beneficial to the Company and the Optionees, to
further the purposes of the Plan. Notwithstanding this paragraph 10, no
Options may be canceled, or otherwise amended or modified, without the
written consent of the Optionee.
Exhibit 23(a)
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the CompuMed, Inc. 1992 Stock
Option Plan of our report dated December 5, 1994, except for Note J as
to which the date is December 29, 1994, with respect to the
consolidated financial statements of CompuMed, Inc. included in its
Annual Report (Form 10-K) for the year ended September 30, 1994,
filed with the Securities and Exchange Commission.
Los Angeles, California /s/ Ernst & Young LLP
October 12, 1995
