<PAGE> 1
As filed with the Securities and Exchange Commission on June 29, 1995
Registration No. 33-
-------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
HEALTH IMAGES, INC.
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
DELAWARE 58-1485618
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8601 DUNWOODY PLACE, BUILDING 200, ATLANTA, GEORGIA 30350
- --------------------------------------------------------------------------------
(Address of principal executive offices and zip code)
HEALTH IMAGES, INC.
EMPLOYEE STOCK PURCHASE PROGRAM
- --------------------------------------------------------------------------------
(Full Title of the Plan)
ROBIN EUBANKS MURRAY, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
HEALTH IMAGES, INC.
8601 DUNWOODY PLACE, BUILDING 200
ATLANTA, GEORGIA 30350
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(404) 587-5084
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copy to:
GABRIEL DUMITRESCU, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY
191 PEACHTREE STREET, N.E., 16TH FLOOR
ATLANTA, GEORGIA 30303
(404) 572-6600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock, $.01 1,000,000 $5.69 (2) $5,690,000 (3) $1,963
par value shares(1)
- ------------------------------------------------------------------------------------------------------
</TABLE>
(1) Representing shares to be distributed by the Registrant in connection
with the Registrant's Employee Stock Purchase Program (the "Stock Purchase
Plan"). This Registration Statement also covers such indeterminable number of
additional shares as may become issuable to prevent dilution in the event of a
stock split, stock dividend, reclassification or other similar transaction, as
well as certain rights which are attached to each share of stock distributed
under the Stock Purchase Plan.
(2) The average of the high and low prices of the Registrant's Common
Stock as reported on the New York Stock Exchange for June 26, 1995.
(3) The Proposed Maximum Aggregate Offering Price is calculated solely for
the purpose of determining the registration fee pursuant to Rule 457(h)(1)
under the Securities Act of 1933, as amended.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
Instructions to the Registration Statement on Form S-8 will be sent or given to
employees of the Registrant as required by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994 (File No. 1-11654);
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995 (File No. 1-11654);
(3) The Registrant's Current Report on Form 8-K, date of event
reported April 14, 1995 (File No. 1-11654);
(4) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement filed on Form 8-A pursuant to Section 12 of
the Securities Exchange Act of 1934 (the "Exchange Act") on January 27, 1993
(File No. 1-11654).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such 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 of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
empowers the Registrant to, and the Restated Bylaws (the "Bylaws") of the
Registrant provide that it shall, 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 (other than an action, suite or proceeding by or in
the right of the Registrant) by reason of the fact that he or she is or was a
director or officer of the Registrant, or is or was serving at the request of
the Registrant as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him or her
in connection with such action, suite or proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the Registrant, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful; except that, in the case of an action or a suit by or in the right of
the Registrant, no indemnification may be made in respect of any
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<PAGE> 4
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Registrant unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suite
was brought shall determine that such person is fairly and reasonably entitled
to indemnity for proper expenses.
The Registrant's Restated Certificate of Incorporation contains a
provision which eliminates, to the fullest extent permitted by law, director
liability for monetary damages for breaches of fiduciary duty of care.
The Registrant has entered into an Indemnification Agreement (the
"Indemnification Agreement") with each of its directors and officers. The
Indemnification Agreement sets forth certain procedural matters relating to
indemnification, including the manner in which an indemnified party may make a
claim and the right of an indemnified party to adjudicate his or her claim if
indemnification is denied by the Company.
The Registrant maintains an insurance policy insuring the Registrant and
directors and officers of the Registrant against certain liabilities, including
liabilities under the Securities Act of 1933.
The above discussion of the Registrant's Bylaws, Restated Certificate of
Incorporation, the Indemnification Agreement and of Section 145 of the General
Corporation Law of the State of Delaware is not intended to be exhaustive and
is qualified in its entirety by reference to such Bylaws, Restated Certificate
of Incorporation, Indemnification Agreement and statute.
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<PAGE> 5
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
Exhibit
No. Description
- ------- -----------
4(a) Restated Certificate of Incorporation of the Registrant,
as filed with the Secretary of State of Delaware on March
9, 1990 (Incorporated herein by reference to Exhibit 4(a)
to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1989 (File No. 0-14746)).
4(b) Restated Bylaws of the Registrant. (Incorporated herein
by reference to Exhibit 4(a) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December
31, 1989 (File No. 0-14746)).
4(c) Form of Indenture between the Registrant and The
Provident Bank, Cincinnati, Ohio, as trustee.
(Incorporated herein by reference to Exhibit 4(d) to
Amendment No. 2 to the Registrant's Registration
Statement on form S-2 filed June 14, 1990 (Reg. No.
33-34161)).
4(d) Successor Rights Agreement between the Registrant and
First Union National Bank of North Carolina as Successor
Rights Agent dated as of September 1, 1992.
(Incorporated herein by reference to Exhibit 4(e) to the
Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1992 (File No. 0-14746)).
4(e)+ Health Images, Inc. Employee Stock Purchase Program
23+ Consent of Joseph Decosimo and Company.
24 Power of Attorney (see signature pages to this
Registration Statement).
+ Filed herewith
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<PAGE> 6
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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) 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;
(iii) 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 (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 and 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 Section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) 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.
(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, 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.
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<PAGE> 7
(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 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 Securities Act and will be governed
by the final adjudication of such issue.
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<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Atlanta, State of Georgia, on this the 2nd day of
June, 1995.
HEALTH IMAGES, INC.
By: /s/ Robert D. Carl, III
-----------------------------------
Robert D. Carl, III
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert D. Carl, III and Robin Eubanks Murray,
or either of them, as his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, or either of them, full power and authority to do
and perform each and every act and thing required or necessary to be done in
and about the premises, 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 either of them, or their substitutes or
substitute, could lawfully do or cause to be done by virtue hereof.
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<PAGE> 9
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
<TABLE>
<S> <C> <C>
/s/ Robert D. Carl, III Chairman of the Board and Date: June 2, 1995
- -------------------------------------- Chief Executive Officer
Robert D. Carl, III (Principal Executive and
Financial Officer)
/s/ W. A. Wilson President, Chief Administrative Date: June 2, 1995
- -------------------------------------- Officer and Director
W. A. Wilson
/s/ Ron L. Clark, Jr. Treasurer and Controller Date: June 2, 1995
- -------------------------------------- (Principal Accounting Officer)
Ron L. Clark, Jr.
/s/ Marc I. Raphaelson, M.D. Director Date: June 2, 1995
- --------------------------------------
Marc I. Raphaelson, M.D.
/s/ William E. Whitesell, Ph.D. Director Date: June 2, 1995
- --------------------------------------
William E. Whitesell, Ph.D.
/s/ Robert L. Taylor Director Date: June 2, 1995
- --------------------------------------
Robert L. Taylor
/s/ Stuart B. Strasner, Sr. Director Date: June 2, 1995
- --------------------------------------
Stuart B. Strasner, Sr.
/s/ Jack O. Greenberg, M.D. Director Date: June 2, 1995
- --------------------------------------
Jack O. Greenberg, M.D.
</TABLE>
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<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description Page No.
- ------- ----------- --------
<S> <C>
4(a)* Restated Certificate of Incorporation of the Registrant, as
filed with the Secretary of State of Delaware on March 9,
1990 (Incorporated herein by reference to Exhibit 4(a) to
the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1989 (File No. 0-14746)).
4(b)* Restated Bylaws of the Registrant. (Incorporated herein by
reference to Exhibit 4(a) to the Registrant's Annual Report
on Form 10-K for the fiscal year ended December 31, 1989
(File No. 0-14746)).
4(c)* Form of Indenture between the Registrant and The Provident
Bank, Cincinnati, Ohio, as trustee. (Incorporated herein
by reference to Exhibit 4(d) to Amendment No. 2 to the
Registrant's Registration Statement on form S-2 filed
June 14, 1990 (Reg. No. 33-34161)).
4(d)* Successor Rights Agreement between the Registrant and First
Union National Bank of North Carolina as Successor Rights
Agent dated as of September 1, 1992. (Incorporated herein
by reference to Exhibit 4(e) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1992 (File No. 0-14746)).
4(e)+ Health Images, Inc. Employee Stock Purchase Program
23+ Consent of Joseph Decosimo and Company.
24 Power of Attorney (see signature pages to this Registration
Statement).
</TABLE>
- -----------------
* Indicates exhibit incorporated herein by reference to another public filing.
+ Filed herewith.
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<PAGE> 1
Exhibit 4(e)
Health Images, Inc.
EMPLOYEE STOCK PURCHASE PROGRAM
July 1, 1995
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
I. Purpose and Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Participation in the Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Adoption of the Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Administration of the Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
D. Application for Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. Benefits to Participants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Stock Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Common Stock Purchase Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. Dividends and Rights During Vesting Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
D. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
E. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
F. Forfeitability and Cancellation of Stock Contributions . . . . . . . . . . . . . . . . . . . . . . . 5
IV. Special Provisions Applicable to Affiliate Participants. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Applicability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Rule 10b-18 Purchases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C. Rule 144 Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
V. Participants Satisfaction of Tax Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
VI. Vesting Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
D. Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
E. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
VII. Beneficiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. Designation of Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Change of Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. Payment of Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
D. Absence of Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
E. Interest of Beneficiary in Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
VIII. Voting of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IX. No Warranty of Security Values. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
X. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Extent of Certain Rights of Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. Limitation of Participant's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
D. Quarterly Statement of Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C> <C>
E. Registration of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
F. Purchase for Investment; Restriction on Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
G. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
XI. Notices and Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. To Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. By Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
XII. Amendment, Suspension or Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. Authority to Amend, Suspend or Terminate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. Delegation of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
C. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
- iii -
<PAGE> 4
Health Images, Inc.
EMPLOYEE STOCK PURCHASE PROGRAM
I. PURPOSE AND SCOPE.
The Health Images, Inc. Employee Stock Purchase Program (the
"Program") provides employees (including officers) of Health Images, Inc. and
its subsidiaries (hereinafter collectively referred to as the "Company") with
an incentive to make convenient and regular investments in the Company's common
stock, par value $.01 per share (the "Common Stock").
II. PARTICIPATION IN THE PROGRAM.
A. Adoption of the Program. The Company's Board of Directors
adopted the Program on June 2, 1995, and will become effective on July
1, 1995.
B. Administration of the Program.
1. The Program shall be administered by the Compensation
Committee of the Board of Directors (the "Committee").
2. The Committee shall have the authority to (i)
exercise all of the powers granted to it under the Program, (ii)
construe, interpret and implement the Program, (iii) correct any
defect, supply any omission and reconcile any inconsistency in the
Program, (iv) make, amend and enforce all appropriate rules and
regulations for the administration of the Program, and (v) decide or
resolve any and all questions that may arise in connection with the
Program.
3. Any determination, decision or action of the Company
concerning or with respect to any question arising out of or in
connection with the construction, interpretation, administration and
application of the Program and of its rules and regulations, shall lie
within the absolute discretion of the Committee and shall be final,
conclusive and binding upon all Participants and any and all persons
claiming under or through any Participant.
4. The offices of the Committee are to be located at the
Company's principal executive offices at 8601 Dunwoody Place, Building
200, Atlanta, Georgia 30350. All communications to the Committee are
to be directed to such address and marked for the attention of the
Company's Legal Department.
- 1 -
<PAGE> 5
5. The Company shall bear all costs of the
administration of the Program exclusive of Participants' brokerage
fees and transfer taxes resulting from a purchase or sale of the
Company's Common Stock through the Designated Brokerage Account (as
hereinafter defined).
C. Eligibility.
All regular, full-time employees of the Company and its
wholly-owned subsidiaries (including officers) who (i) are employed
upon a basis which contemplates more than 35 hours of employment per
week for more than five (5) months per year ("Continuous Full Time
Service") and have completed sixty (60) days of such Continuous Full
Time Service, or (ii) have completed 1,000 hours of employment in any
12-month period ("Qualifying Service") are eligible to participate in
the Program, at their election. Participation in the Program shall be
entirely voluntary. To remain eligible for participation in the
Program an employee must continue to be engaged in Continuous Full
Time Service for the Company, or in employment which contemplates
continued Qualifying Service.
D. Application for Participation. In order to become a
Participant in the Program, each eligible employee is required to
execute a written application evidencing:
1. His or her intent to participate in the Program;
2. His or her acknowledgment and consent to the
withholding of taxes resulting from any Stock Contribution (as
hereinafter defined) in accordance with the requirements of the
Internal Revenue Code of 1986, as amended (the "Code"). Such taxes
will be withheld in a lump sum from the Participant's paycheck in the
first pay period following the expiration of the Vesting Period;
3. His or her acknowledgment and designation to maintain
a brokerage account through which he or she will conduct all trades of
the Company's Common Stock with the firm of Collier, Browne & Co.
("Designated Brokerage Account");
4. His or her acknowledgment that purchases of Health
Images Common Stock in the Designated Brokerage Account may not be "on
margin";
5. His or her designation of a beneficiary upon death,
which beneficiary can be changed from time to time in the discretion
of the Participant; and
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<PAGE> 6
6. If he or she is an executive officer of the Company
(collectively hereinafter referred to as "Affiliate Participants"),
his or agreement to (i) maintain his or her Designated Brokerage
Account with the firm of Collier, Browne & Co.; (ii) execute all
purchases of the Company's Common Stock in conformity with Rule 10b-18
as promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"); and (iii) comply with the applicable provisions
of Section 16 of the Exchange Act and the rules promulgated
thereunder.
Once an employee has completed the necessary service for participation
in the Program (a "Participant"), he or she may file an application for
participation on such form as the Compensation Committee of the Board of
Directors of Health Images, Inc. (the "Committee") may designate at any time
thereafter. This form is available from the Human Resources Department, or
from the Center Manager. Such application must be approved prior to
participation.
A Participant may terminate his or her participation in the Program at
any time by written notice to the Committee; provided, however, that an
employee who has voluntarily terminated his or her participation in the Program
may not re-apply for participation for a period of twelve (12) months following
the voluntary termination; provided, further, however, that all Stock
Dispositions (as hereinafter defined) following the voluntary termination of
participation shall be taken into account for purposes of calculating Net
Participant Stock Purchases (as defined under "Method of Operation") following
re-admission to the Program.
III. BENEFITS TO PARTICIPANTS.
A. Stock Contributions. The Company shall, on a monthly basis
following receipt of the requisite proof by the Company, make a
tentative entry of shares of Common Stock ("Stock Contribution") to a
bookkeeping account established on behalf of each Participant equal to
fifty percent (50%) of such Participant's Net Participant Stock
Purchases (as hereinafter defined) made through the Designated
Brokerage Account during the preceding month, up to a maximum of 2,500
shares per Participant, per Program Year (as hereinafter defined). No
fractional shares or cash in lieu of fractional shares will be
credited by the Company.
B. Common Stock Purchase Rights. Each share of Health Images'
Common Stock issues to a Participant's account under the Program shall
be accompanied by a Common Stock Purchase Right (each, a "Right").
Each Right represents the right to purchase one share of Health
Images' Common Stock upon the
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occurrence of certain events which constitute a "change in control" of
Health Images, all in accordance with the terms of a Successor Rights
Agreement dated as of September 1, 1992, between Health Images and
First Union National Bank of North Carolina, N.A. (the "Rights
Agreement"). The definition of "change in control" contained in the
Rights Agreement is similar to the definition of "change in control"
for purposes of the Program. See "Distributions and Withdrawals."
C. Dividends and Rights During Vesting Period. A Participant has
no right to dividends or other distributions effected with respect to
the Company's Common Stock until the shares attributable to each Stock
Contribution have been issued by the Company.
D. Fees and Expenses. Participants will incur no service charges
for Stock Contributions made by the Company under the Program.
However, each Participant assumes the responsibility of paying all
brokerage fees, service fees and other fees incurred in connection
with the opening and maintenance of the Designated Brokerage Account.
A Participant should obtain an explanation from Collier, Browne & Co.
when he or she opens the Designated Brokerage Account.
E. Definitions. For purposes of this Program, the terms listed
below have been defined as follows:
1. "Net Participant Stock Purchases" shall mean the
excess, if any, of the aggregate amount of a Participant's purchases
of the Company's Common Stock during the period since the most recent
prior month for which the Participant received a Stock Contribution
over the Participant's aggregate Stock Dispositions (as hereinafter
defined) during such period. Adjustment will be made for Common Stock
issuable as a stock dividend or stock split to the extent Net
Participant Stock Purchases during a given month preceded an
"ex-dividend" date for such dividend or stock split falling during
such month. The determination of Net Participant Stock Purchases
shall be determined by the Committee upon delivery by the Participant
of all monthly statements of the Designated Brokerage Account. Each
such determination by the Committee shall be final and binding as to
each Participant in the Program.
2. "Program Year" shall mean any twelve (12) month
period beginning on the July 1, 1995, effective date of the Program
and ending twelve (12) months thereafter on June 30, 1996.
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3. "Stock Disposition" shall mean any sale, gift or
other transfer of the Company's Common Stock, the creation of a short
position in, the purchase of a put or similar option on, or the
writing of a call or similar option on the Company's Common Stock for
the account of a Participant during the period since the most recent
prior month for which the Participant received a Stock Contribution.
4. "Vesting Period" shall mean six (6) calendar months
from the date a Participant purchases Health Images' Common Stock
through his or her Designated Brokerage Account pursuant to the terms
of this Program.
F. Forfeitability and Cancellation of Stock Contributions.
1. If a Participant ceases to be an employee of the
Company for any reason other than the Participant's retirement, death
or disability, prior to the satisfaction of a Vesting Period, the entry
for a Stock Contribution will be reversed and no shares of Common
Stock will be issued.
2. In the event that the Company determines that a Stock
Contribution was credited to a Participant with respect to a purchase
or purchases of Common Stock which was or were conducted in violation
of any federal securities or other law, rule or regulation or in
violation of any of the terms or conditions of the Program, the
Company shall have the right to declare such crediting null and void.
If any shares of Common Stock attributable to a Stock Contribution
have been distri-buted to the Participant's Designated Brokerage
Account or paid to the Participant, the Company shall have the right
to require the Participant to return the certificates (and any rights
or warrants issued as a dividend or stock split thereon) to the
Company for cancellation and to refund any cash so paid.
IV. SPECIAL PROVISIONS APPLICABLE TO AFFILIATE PARTICIPANTS.
A. Applicability. This Article IV shall apply to all Affiliate
Participants.
B. Rule 10b-18 Purchases. All purchases of the Company's Common
Stock for the accounts of Affiliate Participants for purposes of
participating in the Program shall be made in conformity with Rule
10b-18 as promulgated under the Exchange Act.
C. Rule 144 Sales. All sales of the Company's Common Stock for
the accounts of Affiliate Participants shall be made in conformity
with Rule 144 as promulgated under the Exchange Act and each Affiliate
Participant shall take all
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action necessary to ensure that the designated broker take the
appropriate steps to comply with all applicable requirements of Rule
144.
V. PARTICIPANTS SATISFACTION OF TAX WITHHOLDING
Each Participant in the Program shall be responsible for
making such arrangements with the Company as shall be necessary to satisfy the
Company's withholding obligation resulting from any Stock Contribution under
the Program.
VI. VESTING PERIOD
A. Duration. The Vesting Period shall commence on the date a
Participant purchases Health Images' Common Stock through his or her
Designated Brokerage Account pursuant to the terms of this Program,
and which shall end six (6) months following such date.
B. Distribution. As promptly as practicable in the calendar
month following the end of each Vesting Period, the Company shall
distribute to a Participant's Designated Brokerage Account the Common
Stock issued or payable to a Participant under the Program.
C. Change in Control.
1. Immediate Distribution of Common Stock and Rights.
Notwithstanding anything contained in the Program to the contrary, the
Vesting Period shall end upon the occurrence of a Change in Control
(as hereinafter defined).
2. Definitions. For purposes of the Program, the terms
listed below have been defined as follows:
a. "Change in Control" shall mean any of the following
events:
(1) An acquisition (other than directly from the
Company) of any voting securities of the Company (the "Voting
Securities") by any "Person" (as the term "person" is used for
purposes of Section 13(d) or 14(d) of the Exchange Act
previously defined) immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of thirty percent (30%) or
more of the combined voting power of the Company's then
outstanding voting securities; provided, however, that in
determining whether a Change in Control has occurred, voting
securities which are acquired in a "Non-Control
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<PAGE> 10
Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control.
(2) The individuals who, as of June 2, 1995, were
members of the Board (the "Incumbent Board"), cease for any
reason to constitute at least 66 2/3% of the Board; provided,
however, that if the election, or nomination for election by
the Company's shareholders, of any new director was approved
by a vote of at least 66 2/3% of the Incumbent Board prior to
his election, such new director shall be considered as a
member of the Incumbent Board; or
(3) Approval of the Company's shareholders of:
(a) a merger, consolidation or
reorganization involving the Company, unless the
shareholders of the Company, immediately before such
merger, consolidation or reorganization, own,
directly or indirectly, immediately following such
merger, consolidation or reorganization, at least
66 2/3% of the combined voting power of the
outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership
of the voting securities immediately before such
merger, consolidation or reorganization;
(b) a complete liquidation or dissolution of
the Company; or
(c) an agreement for the sale or other
disposition of all or substantially all of the assets
of the Company to any Person (other than a transfer
to a Subsidiary).
b. "Non-Control Acquisition" shall mean an acquisition
by:
(1) an employee benefit plan (or a trust forming a
part thereof) maintained by (x) the Company or (y) any
corporation or other Person of which a majority of its voting
power or its equity securities or equity interest is owned
directly or indirectly by the Company (a "Subsidiary"),
(2) the Company or any Subsidiary, or
(3) any Person in connection with a Non-Control
Transaction.
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<PAGE> 11
D. Withdrawal. No Participant shall be deemed to have withdrawn
from the Program by reason of a distribution of Common Stock and
Rights after expiration of the Vesting Period pursuant to Section 1 of
Paragraph IV C.
E. Successors and Assigns. Notwithstanding any provision
contained in the Program to the contrary, the provisions of Paragraph
IV(C) shall be binding upon the Company and its successors and
assigns.
VII. BENEFICIARIES.
A. Designation of Beneficiaries. Participants shall file with
the Company a written designation of beneficiary designating who is to
receive any Common Stock, Rights, fractional shares, and any cash to
the Participant's credit under the Program in the event of his death
prior to delivery to him of such Common Stock, Rights, fractional
shares and cash.
B. Change of Beneficiary. A Participant may change his
beneficiary designation at any time by written notice to the Company.
Such change shall take effect as of the date the Participant signed
such written notice, whether or not Participant is living at the time
of receipt of such notice by the Company, but without prejudice to the
Company on account of payments made before such receipt.
C. Payment of Beneficiary. Upon the death of a Participant and
upon receipt of proof deemed adequate by the Company of the identity
and existence at the Participant's death of a beneficiary or
beneficiaries validly designated by him under the Program, payment
will be made to the beneficiary or beneficiaries in the manner and in
the form as set forth in Section V hereof.
D. Absence of Beneficiary. In the absence of a beneficiary
designated under the Program who is living at the time of a
Participant's death, payment shall be made to the executor or
administrator of the estate of the Participant. If no executor or
administrator has been appointed to the knowledge of the Company (or
in the event such executor or administrator has been disqualified),
payment may be made to such person or persons as the Company shall be
satisfied is or are legally entitled thereto.
E. Interest of Beneficiary in Program. No designated beneficiary
shall, prior to the death of the Participant by whom he has been
designated, acquire any interest in the Common Stock, Rights,
fractional shares, or cash credited to the Participant under the
Program.
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<PAGE> 12
VIII. VOTING OF SHARES.
During the Vesting Period, the shares of Common Stock credited
to a Participant pursuant to a Stock Contribution are a tentative bookkeeping
entry only, and are not entitled to any voting rights or other rights accruing
to shareholders.
IX. NO WARRANTY OF SECURITY VALUES.
Neither the Company, nor any of its officers, directors,
agents or servants, warrants or represents in any way that the value of the
Common Stock in which the Participant may have an interest will increase or
will not decrease. Each Participant assumes all risk in connection with any
changes in the value of Common Stock.
X. GENERAL PROVISIONS.
A. Extent of Certain Rights of Participants. Participation in
the Program shall not entitle any employee to be retained in the
service of the Company or of any subsidiary of the Company. The right
and power of the Company and of each subsidiary of the Company to
dismiss or discharge any employee during a Vesting Period or at any
other time is specifically reserved.
B. Limitation of Participant's Rights. No Participant nor any
person claiming under or through them shall have any right or interest
under the Program that is not herein expressly granted.
C. Assignment. No interest in any Common Stock, Rights or cash
held under the Program prior to delivery to the Participant's
Designated Brokerage Account as hereinabove provided, shall be
assigned, alienated, pledged, or otherwise encumbered in whole or in
part, either directly, by operation of law, or otherwise. If any
attempt is made by a Participant to assign, alienate, pledge or
otherwise encumber his interest in such Common Stock, Rights or cash
prior to such delivery, for his debts, liabilities in tort or
contract, or otherwise, then the Company (in its absolute discretion)
may treat such attempt as an election by the Participant to withdraw
from the Program and submit to any loss of rights as provided in the
Program in the case of a withdrawal at the time of such attempt.
D. Quarterly Statement of Account. As soon as practicable after
the end of each calendar quarter, each Participant shall be furnished
with a statement of his Stock Contributions under the Program.
Participants will receive information necessary for reporting any
income realized by them under the Program to the Internal Revenue
Service.
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<PAGE> 13
E. Registration of Stock. Each Participant shall, at such time
as the Company may reasonably request, furnish written instructions
for the registration of the Common Stock and rights to be delivered
under the Program upon completion of the Vesting Period. Such Common
Stock and Rights will be registered in his name alone or in the name
of the brokerage firm at which he maintains his Designated Brokerage
Account or its nominee. Such instructions shall remain in effect
until receipt by the Company of written instructions to change the
registration previously authorized. In the absence of such written
instructions. Common Stock and Rights to be delivered will be
registered in his name alone or in the event of death prior to such
delivery will be registered in the name of the person or persons
entitled thereto.
F. Purchase for Investment; Restriction on Shares. Subject to
the effectiveness of a Form S-8 Registration Statement filed with the
Securities and Exchange Commission ("SEC") relating to shares of
Common Stock issuable as Stock Contributions hereunder the Committee
shall have the right to require each Participant to represent that any
and all shares of Common Stock issued to him as Stock Contributions
will be purchased for investment and not with a view to the
distribution or resale thereof and to agree to such restrictions or
limitations as may be imposed by law.
G. Miscellaneous.
1. No individual administering or aiding in the
administration of the Program shall have any liability, except as
provided in Paragraph X(G)(2) below. As a condition precedent to
participation in the Program or the receipt of benefits thereunder,
such liability, if any, is expressly waived and released by each
Participant and by any and all persons claiming under or through any
Participant such waiver and release to be conclusively evidenced by
the act of participation or the acceptance of benefits thereunder.
2. No individual administering or aiding in the
administration of the Program shall be liable except for his own acts
or omissions and then only for willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of his office. As used herein, "individual administering or aiding in
the administration of the Program" shall include any share owner,
director, officer, employee or agent of the Company.
3. The Company may require compliance with any legal
requirements which it deems necessary as a condition for delivery of,
or payment for, any Common Stock, Rights or
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<PAGE> 14
cash issued to a Participant in the Program and being held in custody
during a Vesting Period.
4. By Participant's act of participating in the Program
or by the acceptance of any of the benefits thereunder, such
Participant and any and all persons claiming under or through any such
Participant, shall thereby be conclusively deemed to have indicated
his acceptance and qualification of, and consent to, the application
of the provisions of the Program.
5. Stock Contributions under the Program may be either
treasury stock or newly issued from the authorized but unissued shares
of the Company's Common Stock.
6. For the purposes of the Program, unless the contrary
is clearly indicated by the context, the use of the masculine gender
shall also include within its meaning the feminine, and the use of the
singular shall also include within its meaning the plural, and vice
versa.
XI. NOTICES AND COMMUNICATIONS.
A. To Participants. All notices, reports and other
communications to a Participant under or in connection with the Plan
shall be deemed to have been duly given, made or delivered when
received by the Participant, or (if mailed) when mailed with postage
prepaid and addressed to the Participant at his address last appearing
on the records of the Company.
B. By Participants. All notices, instructions or other
communications by a Participant to the Company under or in connection
with the Program shall be duly given, made or delivered when received
by the Administrative Committee, c/o Health Images, Inc., 8601
Dunwoody Place, Bldg. 200, Atlanta, Georgia 30350, Attn: Legal
Department, or when received in the form specified by the Company and
at the location, or by the person, designated for receipt of such
notice, instruction or other communication by the Company.
XII. AMENDMENT, SUSPENSION OR TERMINATION.
A. Authority to Amend, Suspend or Terminate. The Board of
Directors of the Company may amend, suspend or terminate the Program
at any time, or from time to time, except that the Program shall not
be amended more than once every six (6) months except to conform the
Program to changes in any law, rule or regulation applicable to the
Program.
B. Delegation of Authority. The Committee may delegate to the
Chairman of the Board or President of the Company, the
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authority to amend any provision of the Program, provided such
amendment is (a) of an administrative nature, or (b) does not result
in any material increase in the Company's costs.
C. Amendments. No Amendment, suspension or termination shall
adversely affect any rights of a Participant to Common Stock, Rights
or cash being held in custody for him under the Program as of the date
of the amendment, suspension or termination. Upon such termination,
all such Common Stock, Rights and cash shall be promptly paid over to
him.
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Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement and Prospectus on
Form S-8 of Health Images, Inc., of our report dated February 16, 1995,
included in Health Images, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1994, and incorporated herein by reference and to all references
to our Firm included in this Registration Statement and Prospectus on Form S-8.
Joseph Decosimo and Company
Chattanooga, Tennessee
June 29, 1995
