Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NATIONAL HEALTH ENHANCEMENT SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 86-0460312
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3200 North Central Avenue, Suite 1700, Phoenix, Arizona 85012
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(Address of Principal Executive Offices) (Zip Code)
NATIONAL HEALTH ENHANCEMENT SYSTEMS, INC.
1988 STOCK OPTION PLAN
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(Full title of the plan)
JEFFREY T. ZYWICKI COPIES TO:
Vice President-Finance, Thomas H. Curzon, Esq.
Treasurer and Secretary Osborn Maledon
National Health Enhancement Systems, Inc. 2929 North Central Avenue
3200 North Central Avenue, Suite 1700 Suite 2100
Phoenix, Arizona 85012 Phoenix, Arizona 85012
(602) 230-7575 (602) 640-9308
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(Name and address of agent for service)
Calculation of Registration Fee
Title of Amount Maximum Amount of
Securities to to be offering price Aggregate registration
be registered Registered per share(1) offering price(1) fee
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Common Stock
($0.001 par value) 300,000 $7.50 $2,250,000 $775.86
(1) Pursuant to Rule 457(h), the calculation of the offering price is as
follows: the market price for the 300,000 shares to be registered is $8.25 per
share, based on the closing average of the bid and asked prices for the Common
Stock on the NASDAQ over-the-counter market on September 10, 1996.
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EXPLANATORY NOTE
This Registration is being filed to file the 1988 Stock Option Plan of the
Registrant, as amended effective June 20, 1996. The "Second Amended 1988 Stock
Option Plan" is filed herewith as Exhibit 4.4. An Opinion of Counsel from Osborn
Maledon, P.A. is filed herewith as Exhibit 5.1. All other portions of Form S-8
Registration Statement No. 33-62416 remain the same and are incorporated
herewith.
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SIGNATURE
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 Phoenix, State of Arizona, on September 13, 1996.
NATIONAL HEALTH ENHANCEMENT
SYSTEMS, INC.
By: Jeffrey T. Zywicki
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Jeffrey T. Zywicki, Senior Vice President-
Finance, Treasurer, Secretary
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 dates indicated.
Gregory J. Petras Director September 13, 1996
- --------------------- President
Gregory J. Petras Chief Executive Officer
John P. Delmatoff Director September 13, 1996
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John P. Delmatoff
Gardiner S. Dutton Director September 13, 1996
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Gardiner S. Dutton
James W. Myers Director September 13, 1996
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James W. Myers
Steven D. Wood Director September 13, 1996
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Steven D. Wood
W. Cal McGraw Director September 13, 1996
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W. Cal McGraw
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NATIONAL HEALTH ENHANCEMENT SYSTEMS, INC.
SECOND AMENDED 1988 STOCK OPTION PLAN
1. Purpose
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The purpose of the 1988 Stock Option Plan (as amended, the "Plan") is
to attract and retain the best available directors and salaried employees for
positions of substantial responsibility in National Health Enhancement Systems,
Inc., a Delaware corporation (the "Company"), or any successor or any parent or
subsidiary of the Company which now exists or hereafter is organized or acquired
by or acquires the Company, and to promote the success of the business of the
Company.
2. Incentive and Nonqualified Stock Options
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Two types of options may be granted under the Plan; options intended to
qualify as incentive stock options ("Incentive Stock Options") under Section 422
of the Internal Revenue Code of 1986 as amended (the "Code"); and other options
not specifically authorized or qualified for favorable income tax treatment by
the Code ("Nonqualified Stock Options").
3. Eligibility and Administration
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(a) Except as provided in Section 3(b) hereof, only key
employees of the Company or any of its subsidiaries who are not directors and/or
officers shall be eligible to receive Incentive Stock Options or Nonqualified
Stock Options under the Plan under the terms and conditions set forth in
Paragraph 5. An employee may receive more than one option under the Plan. For
the purposes of the Plan, the term "subsidiary" shall mean any corporation which
the company controls either directly or indirectly through ownership of fifty
percent (50%) or more of the total combined voting power of all classes of stock
of such corporation.
(b) Any (i) director or officer of the Company who is not an
employee of the Company or any of its subsidiaries shall be eligible to receive
only Nonqualified Stock Options, (ii) Consultant shall be eligible to receive
only Nonqualified Stock Options; and (iii) director or officer of the Company
who is a key employee of the Company or any of its subsidiaries shall be
eligible to receive Incentive Stock Options and/or Nonqualified Stock Options,
all pursuant to the Plan under the terms and conditions set forth in Paragraph
6. "Consultant," for purposes of this Plan, shall mean any person who is engaged
by the Company or any of its subsidiaries as a consultant or advisor; provided
that bona fide services shall be rendered by consultants and advisors and such
consultants and advisors are compensated for their consulting services.
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(c) Options granted under the Plan shall be administered by
the Board of Directors or a committee of directors or others (the "Committee")
appointed by the Board of Directors.
4. Shares Subject to Options
-------------------------
The stock available for grant of options under the Plan shall be shares
of Common Stock of the Company not reserved for any other purposes or shares of
Common Stock held in or acquired for the treasury of the Company. The number of
shares which may be issued solely pursuant to exercise of Incentive Stock
Options granted under the Plan shall be 700,000 shares. The number of shares
which may be issued solely pursuant to exercise of Nonqualified Stock Options
shall be 700,000 shares. The number of shares which may be issued as either
Incentive Stock Options or Nonqualified Stock Options, at the discretion of the
Board of Directors or the Committee, shall be 300,000 shares. Therefore, up to a
total of 1,700,000 shares may be issued under the Plan. If any outstanding
option under the plan for any reason expires or is terminated, the shares of
Common Stock allocable to the unexercised portion of the option shall again be
available for options under the Plan as if no options had been granted with
respect to such shares.
5. Terms and Conditions of Options for Optionees Described in
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Paragraph 3(a)
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The Board or the Committee shall determine, within the limits of the
express provisions of the Plan, the individuals to whom, and the time or times
at which, options shall be granted, the type of option to be granted (i.e.,
Incentive Stock Options or Nonqualified Stock Options), the number of shares to
be subject to each option, the duration of each option, the option price under
each option, and the time or times within which (during the term of the option)
all or portions of each option may be exercised. In making such determinations,
the Board or the Committee may take into account the nature of the services
rendered by such individual or classes of individuals, their present and
potential contributions to the Company's success, and such other factors as the
Board or the Committee in its discretion shall deem relevant.
Subject to the express provisions of the Plan, the Board or the
Committee may interpret the Plan, prescribe, amend, and rescind rules and
regulations relating to it, determine the terms and provisions of the respective
Option Agreements (defined below and which need not be identical), and make all
other determinations necessary or advisable for the administration of the Plan.
Options granted under the Plan shall be evidenced by agreements in such
form and containing such provisions which are consistent with the Plan as the
Board or Committee shall from time to time approve ("Option Agreements"). Such
agreements may incorporate all or any of the terms hereof by reference and shall
comply with and be subject to the terms and conditions set forth below.
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(a) Each employee to whom an option is granted shall enter
into an Option Agreement with the Company setting forth terms and conditions of
the options granted to the employee. Each such agreement shall contain terms and
conditions consistent with the Plan as the Board or Committee shall approve.
(b) The purchase price for the shares subject to any option
shall not be less than 100% of the fair market value of the stock on the date
the option is granted; provided, however, that the option price for the
Incentive Stock Option shall not be less than 110% of the fair market value of
such stock on the date the option is granted to an individual then owning (after
the application of the family and other attribution rules of Section 425(d) of
the Code), more than 10% of the total combined voting power of all classes of
stock of the Company or any subsidiary or parent corporation. For purposes of
the Plan, the "fair market value" of any shares subject to the Plan at the date
the option is granted shall be (i) the reported closing price of such stock on
the New York Stock Exchange or other established stock exchange on such date, or
if no sale of such stock shall have been made on such exchange on that date, on
the preceding date on which there was such a sale, (ii) if such stock is not
then listed on an exchange, the average of the closing bid and asked prices per
share for such stock in the over-the-counter market as quoted on NASDAQ on such
date, or (iii) if such stock is not then listed on an exchange or quoted on
NASDAQ, an amount determined in good faith by the Board or the Committee. In no
event shall the initial exercise price for any option be less than the par value
of the stock subject to the option.
(c) The purchase price for any shares purchased pursuant to
exercise of an option granted under the Plan shall be paid in full upon exercise
of the option in cash, by check or by transferring to the Company shares of such
stock at their fair market value as determined by Paragraph 5(b).
Notwithstanding the foregoing, the Company may extend and maintain, or arrange
for the extension and maintenance of, credit to an optionee to finance the
exercise of the option, on such terms as may be approved by the Board or
Committee, subject to applicable regulations of the Federal Reserve Board,
Sections 483, 1274 and 7872 of the Code and regulations promulgated thereunder,
and any other laws or regulations in effect at the time such credit is extended.
(d) No option shall be exercisable after the expiration of the
earliest of (i) in the case of an Incentive Stock Option, ten years from the
date the option is granted or, five years from the date the option is granted to
an individual owning (after the application of the family and other attribution
rules of Section 425(d) of the Code) at the time such option was granted, more
than 10% of the total combined voting power of all classes of stock of the
Company or any subsidiary or parent corporation, (ii) in the case of a
Nonqualified Stock Option, eleven years from the date the option is granted,
(iii) three months after the date the optionee's employment with the Company or
any of its subsidiaries terminates, if such termination is for any reason other
than permanent and total disability (defined below), death or cause, (iv) the
date the optionee's employment with the Company or any of its subsidiaries
terminates, if such termination is for cause, as determined by the Board or
Committee in its sole discretion, or (v) one year after the date the optionee's
employment with the Company
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or any of its subsidiaries terminates if such termination is the result of death
or permanent and total disability within the meaning of Section 22(e)(3) of the
Code; provided, however, that the Option Agreement for any option may provide
for shorter periods of exercisability in each of the foregoing instances.
(e) No option shall be exercisable during the lifetime of an
optionee by any person other than the optionee, his guardian or legal
representative. The Board or the Committee shall have the power to set the time
or times within which each option shall be exercisable and to accelerate the
time or times of exercise. To the extent that an optionee has the right to
exercise an option and purchase shares pursuant thereto, the option may be
exercised from time to time by written notice to the Company stating the number
of shares being purchased and accompanied by payment in full of the purchase
price for such shares. If shares of stock are used in part or full payment for
the shares to be acquired upon exercise of the option, such shares shall be
valued for the purpose of such exchange at their fair market value as of the
date of exercise of the option in accordance with the provisions of Paragraph
5(b). Any certificate for shares of outstanding stock used to pay the purchase
price shall be accompanied by a stock power duly endorsed in blank by the
registered owner of the certificate (with the signature thereon guaranteed). If
the certificate tendered by the optionee in such payment covers more shares than
are required for such payment, the certificate shall also be accompanied by
instructions from the optionee to the Company's transfer agent with respect to
the disposition of the balance of the shares covered thereby.
(f) No option shall be transferable by an optionee otherwise
than by will or the laws of descent and distribution.
(g) The aggregate fair market value (determined as of the time
the option is granted) of the stock with respect to which Incentive Stock
Options are exercisable for the first time by such optionee during any calendar
year (under all such plans of the Company and any subsidiary corporation) shall
not exceed $100,000.
(h) Unless the shares of stock covered by the Plan have been
registered with the Securities and Exchange Commission pursuant to Section 5 of
the Securities Act of 1933, as amended, each optionee accepting an option shall
represent, warrant, and agree, for himself and his transferees by will or the
laws of descent and distribution, that all shares of stock purchased upon the
exercise of the option will be acquired for investment and not for resale or
distribution. Upon such exercise of any portion of an option, the person
entitled to exercise the same shall, upon request of the Company, furnish
evidence satisfactory to the Company (including a written and signed
representation) to the effect that the shares of stock are being acquired in
good faith for investment and not for resale or distribution. Furthermore, the
Company may if it deems appropriate affix a legend to certificates representing
shares of stock purchased upon exercise of options indicating that such shares
have not been registered with the Securities and Exchange Commission and may so
notify its transfer agent.
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(i) An optionee or transferee of an optionee shall have no
rights as a shareholder of the Company with respect to any shares covered by any
option until the date of the issuance of a share certificate for such shares. No
adjustment shall be made for dividends (ordinary or extraordinary, whether cash,
securities or other property) or distributions or other rights for which the
record date is prior to the date such share certificate is issued, except as
provided for in Paragraph 5(k). Nothing in the Plan or in any Option Agreement
shall confer upon any employee any right to continue in the employ of the
Company or any of its subsidiaries, or interfere in any way with any right of
the Company or any subsidiary of the Company to terminate the optionee's
employment at any time.
(j) In no event shall the Company be required to issue
fractional shares upon the exercise of an option.
(k) If the outstanding shares of stock of the class then
subject to this Plan are increased or decreased, or are changed into or
exchanged for a different number or kind of shares or securities, as a result of
one or more reorganizations, recapitalizations, stock splits, reverse stock
splits, stock dividends or similar transactions, appropriate adjustments shall
be made in the number and/or type of shares or securities for which options may
thereafter be granted under the Plan and for which options then outstanding
under the Plan may thereafter be exercised. In the event of an adjustment to the
number and/or type of shares or securities for which options may thereafter be
granted under the Plan, the exercise price applicable to the unexercised
portions of options under the Plan shall be appropriately adjusted by the Board
or the Committee.
(l) Subject to the terms and conditions and within the
limitations of the Plan, the Board or the Committee may modify, extend or renew
outstanding options granted under the Plan, accept the surrender of outstanding
options (to the extent not theretofore exercised), and authorize the granting of
new options in substitution therefor (to the extent not theretofore exercised).
Notwithstanding the foregoing, no modification of an option shall, without the
consent of the optionee, alter or impair any rights of the optionee under the
option.
(m) Each option may contain such other terms, provisions and
conditions not inconsistent with the Plan as may be determined by the Board or
Committee, such as, without limitation, discretionary performance standards,
mandatory purchase of shares on the open market on a pro rata basis or tax
withholding provisions. The Company's obligation to deliver shares of stock
pursuant to Paragraph 5 shall be subject to applicable federal, state and local
tax withholding requirements.
(n) In the event the market value of stock subject to option
under the Plan shall be less than the option price for such stock, the Board or
Committee may, in its discretion and with the consent of the optionee, cancel
such options and grant new options consistent with the terms of the Plan.
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6. Terms and Conditions of Options for Optionees Described in
---------------------------------------------------------------
Paragraph 3(b)
--------------
The Board or the Committee shall determine, within the limits of the
express provisions of the Plan, the individuals to whom, and the time or times
at which, options shall be granted, the type of option to be granted (i.e.,
Incentive Stock Options or Nonqualified Stock Options), the number of shares to
be subject to each option, the duration of each option, the option price under
each option, and the time or times within which (during the term of the option)
all or portions of each option may be exercised. In making such determinations,
the Board or the Committee may take into account the nature of the services
rendered by such individual or classes of individuals, their present and
potential contributions to the Company's success, and such other factors as the
Board or the Committee in its discretion shall deem relevant.
Subject to the express provisions of the Plan, the Board or the
Committee may interpret the Plan, prescribe, amend, and rescind rules and
regulations relating to it, determine the terms and provisions of the respective
Option Agreements (which need not be identical), and make all other
determinations necessary or advisable for the administration of the Plan.
Options granted under the Plan shall be evidenced by Option Agreements
in such form and containing such provisions which are consistent with the Plan
as the Board or Committee shall from time to time approve. Such agreements may
incorporate all or any of the terms hereof by reference and shall comply with
and be subject to the following terms and conditions:
(a) Each director or officer to whom an option is granted
shall enter into an Option Agreement with the Company setting forth the terms
and conditions of the options granted to the director or officer. Each such
agreement shall contain terms and conditions consistent with the Plan as the
Board or Committee shall approve.
(b) The purchase price for the shares subject to an Incentive
Stock Option shall not be less than 100% of the fair market value of the stock
on the date the option is granted; provided, however, that the option price for
an Incentive Stock Option shall not be less than 110% of the fair market value
of such stock on the date the option is granted to an individual then owning
(after the application of family and other attribution rules of Section 425(d)
of the Code), more than 10% of the total combined voting power of all classes of
stock of the Company or any subsidiary or parent corporation. The purchase price
for the shares subject to a Nonqualified Stock Option shall be determined by the
Board or the Committee in its discretion. For purposes of the Plan, the "fair
market value" of any shares subject to the Plan at any date shall be (i) the
reported closing price of such stock on the New York Stock Exchange or other
established stock exchange on such date, or if no sale of such stock shall have
been made on such exchange on that date, on the preceding date on which there
was such a sale, (ii) if such stock is not then listed on an exchange, the
average of the closing bid and asked prices per share for such stock in the
over-the-counter market as
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quoted on NASDAQ on such date, or (iii) if such stock is not then listed on an
exchange or quoted on NASDAQ, an amount determined in good faith by the Board or
Committee. In no event shall the initial exercise price for any option be less
than the par value of stock subject to the option.
(c) The purchase price for any shares purchased pursuant to
exercise of an option granted under the Plan shall be paid in full upon exercise
of the option in cash, by check or by transferring to the Company shares of such
stock at their fair market value as determined by Paragraph 6(b).
Notwithstanding the foregoing, the Company may extend and maintain, or arrange
for the extension and maintenance of, credit to an optionee to finance the
exercise of the option, on such terms which are no more favorable than as may be
approved by the Board or Committee for optionees described in Paragraph 3(a),
subject to applicable regulations of the Federal Reserve Board, Sections 483,
1274 and 7872 of the Code and regulations promulgated thereunder, and any other
laws or regulations in effect at the time such credit is extended.
(d) No option shall be exercisable after the expiration of the
earliest of (i) in the case of an Incentive Stock Option, ten years from the
date the option is granted or, five years from the date the option is granted to
an individual owning (after application of the family and other attribution
rules of Section 425(d) of the Code) at the time such option was granted, more
than 10% of the total combined voting power of all classes of stock of the
Company or any subsidiary or parent corporation, (ii) in the case of a
Nonqualified Stock Option, eleven years from the date the option is granted,
(iii) three months after the date the optionee's employment with the Company or
any of its subsidiaries terminates, if such termination is for any reason other
than permanent and total disability (defined below), death or cause, (iv) three
months after the date the optionee's position as an officer or director of the
Company terminates if such termination is for any reason other than permanent
and total disability (defined below), death or cause, (v) the date the
optionee's employment with the Company or any of its subsidiaries terminates if
such termination is for cause, as determined by the Board or Committee in its
sole discretion, (vi) the date the optionee's position as an officer or director
of the Company terminates if such termination is for cause, as determined by the
Board or Committee in its sole discretion, (vii) one year after the date the
optionee's employment with the Company or any of its subsidiaries terminates, if
such termination is the result of death or permanent and total disability within
the meaning of Section 22(e)(3) of the Code, or (viii) one year after the date
the optionee's position as an officer or director of the Company terminates if
such termination is the result of death or permanent and total disability within
the meaning of Section 22(e)(3) of the Code; provided, however, that the Option
Agreement for any option may provide for shorter periods in each of the
foregoing instances.
(e) No option shall be exercisable during the lifetime of an
optionee by any person other than the optionee, his guardian or legal
representative. The Board or the Committee shall have the power to set the time
or times within which each option shall be exercisable and to accelerate the
time or times of exercise. To the extent that an optionee
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has the right to exercise an option and purchase shares pursuant thereto, the
option may be exercised from time to time by written notice to the Company
stating the number of shares being purchased and accompanied by payment in full
of the purchase price for such shares. If shares of stock are used in part or
full payment for the shares to be acquired upon exercise of the option, such
shares shall be valued for the purposes of such exchange at their fair market
value as of the date of exercise of the option in accordance with the provisions
of Paragraph 6(b). Any certificates for shares of outstanding stock used to pay
the purchase price shall be accompanied by a stock power duly endorsed in blank
by the registered owner of the certificate (with the signature thereon
guaranteed). If the certificate tendered by the optionee in such payment covers
more shares than are required for such payment, the certificate shall also be
accompanied by instructions from the optionee to the Company's transfer agent
with respect to the disposition of the balance of the shares covered thereby.
(f) No option shall be transferable by an optionee otherwise
than by will or the laws of descent and distribution.
(g) The aggregate fair market value (determined as of the time
the option is granted) of the stock with respect to which Incentive Stock
Options are exercisable for the first time by such optionee during any calendar
year (under all such plans of the Company and any subsidiary corporation) shall
not exceed $100,000.
(h) Unless the shares of stock covered by the Plan have been
registered with the Securities and Exchange Commission pursuant to Section 5 of
the Securities Act of 1933, as amended, each optionee accepting an option shall
represent, warrant and agree, for himself and his transferees by will or the
laws of descent and distribution, that all shares of stock purchased upon the
exercise of the option will be acquired for investment and not for resale or
distribution. Upon such exercise of any portion of an option, the person
entitled to exercise the same shall, upon request of the Company, furnish
evidence satisfactory to the Company (including a written and signed
representation) to the effect that the shares of stock are being acquired in
good faith for investment and not for resale or distribution. Furthermore, the
Company may if it deems appropriate affix a legend to certificates representing
shares of stock purchased upon exercise of options indicating that such shares
have not been registered with the Securities and Exchange Commission and may so
notify its transfer agent.
(i) An optionee or transferee of an optionee shall have no
rights as a shareholder of the Company with respect to any shares covered by any
option until the date of the issuance of a share certificate for such shares. No
adjustment shall be made for dividends (ordinary or extraordinary, whether cash,
securities or other property) or distributions or other rights for which the
record date is prior to the date such share certificate is issued, except as
provided for in Paragraph 6(k). Nothing in the Plan or in any Option Agreement
shall confer upon any optionee any right to continue in the employ of the
Company or any of its subsidiaries or to continue as a director or officer of
the Company or any of its subsidiaries, or to interfere in any way with the
right of the Company or
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any of its subsidiaries to terminate the optionee's status as an employee,
officer or director at any time.
(j) In no event shall the Company be required to issue
fractional shares upon the exercise of an option.
(k) If the outstanding shares of stock of the class then
subject to this Plan are increased or decreased, or are changed into or
exchanged for a different number or kind of shares or securities, as a result of
one or more reorganizations, recapitalizations, stock splits, reverse stock
splits, stock dividends or similar transactions, appropriate adjustments shall
be made in the number and/or type of shares or securities for which options may
thereafter be granted under the Plan and for which options then outstanding
under the Plan may thereafter be exercised. In the event of an adjustment to the
number and/or type of shares or securities for which options may thereafter be
granted under the Plan, the exercise price applicable to the unexercised
portions of options under the Plan shall be appropriately adjusted by the Board
or the Committee.
(l) No Nonqualified Stock Options shall vest until at least
one year from the date of grant.
(m) Options may be exercised only during the ten-day period
following the release of quarterly or annual financial information by the
Company.
(n) In the event the market value of stock subject to option
under the Plan shall be less than the price for such stock, the Board or
Committee may, in its discretion and with the consent of the optionee, cancel
such options and grant new options consistent with the terms of the Plan.
(o) The Company's obligation to deliver shares of stock
pursuant to Paragraph 6 shall be subject to applicable federal, state and local
tax withholding requirements.
7. Termination or Amendment of the Plan
------------------------------------
The Board or Committee may at any time terminate the Plan. With respect
to Incentive Stock Options, the Board or Committee may at any time amend the
Plan and may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any option in the manner and to the extent it
shall deem desirable to carry the Plan into effect without further action on the
part of the shareholders of the Company; but the Board or the Committee may not,
without the approval of the Company's shareholders, make any alteration or
amendment of the Plan which (i) makes any change in the class of persons
eligible to receive options under the Plan; (ii) increases, other than by
operation of paragraphs 5(k) or 6(k) hereof, the total number of shares of stock
for which options may be granted under the Plan; (iii) extends the term of the
Plan or the maximum option period provided under the Plan; or (iv) decreases the
minimum option price provided under the Plan; and provided further that, without
the consent of the optionee, no amendment may adversely affect any outstanding
option or any unexercised
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portion thereof. With respect to Nonqualified Stock Options, the Board or
Committee may at any time amend the Plan and may correct any defect or supply
any omission or reconcile any inconsistency in the Plan or in any option in the
manner and to the extent it shall deem desirable to carry the Plan into effect
without further action on the part of the shareholders of the Company.
Notwithstanding any other provision to the contrary, any provision of this Plan
may be amended by the Board or Committee as required to obtain necessary
approvals of governmental agencies if (i) such change does not materially alter
the rights and interests of shareholders of the Company and (ii) such change
does not result in a failure of options granted to directors or officers to
comply with the provisions of Section 16(b) of the Securities Exchange Act of
1934 and Rule 16b-3 thereunder.
8. Shareholder Approval and Term of the Plan
-----------------------------------------
The Plan shall be effective upon the first day of the month after which
the Board approves the Plan, subject to approval by the shareholders of the
Company. Unless sooner terminated by the Board, the Plan will expire ten years
after the date of adoption of the Plan by the Board in May 1998. Any option
outstanding under the Plan at the time of the Plan's termination shall remain in
effect in accordance with the option's terms and conditions and the terms and
conditions of the Plan.
9. Use of Proceeds
---------------
The proceeds from the sale of Stock pursuant to the Plan will be used
for general corporate purposes.
10. Governing Law
-------------
The Plan shall be governed by and interpreted according to the laws of
the State of Delaware.
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September 11, 1996
National Health Enhancement Systems, Inc.
3200 North Central Avenue, Suite 1750
Phoenix, Arizona 85012
Re: Form S-8 Registration Statement for
NHES, Inc.'s 1988 Stock Option Plan
Ladies and Gentlemen:
We have acted as counsel to National Health Enhancement Systems, Inc.,
a Delaware corporation (the "Company"), in connection with its to Registration
Statement on Form S-8 (No. 33-62416) filed under the Securities Act of 1933,
relating to the registration of 300,000 additional shares of its Common Stock,
$.001 par value (the "Shares"), issuable under the 1988 Stock Option Plan. In
connection with this representation, we have examined such documents, corporate
records and other instruments as we have deemed necessary or appropriate for
purposes of this opinion.
Based upon the foregoing, we are of the opinion that the Shares, when
issued and sold in accordance with the terms of the Plan, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
OSBORN MALEDON, P.A.
By: Thomas H. Curzon
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Thomas H. Curzon
