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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
---------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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VASOMEDICAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2871434
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
180 LINDEN AVENUE, WESTBURY, NEW YORK 11590
(Address of principal executive offices) (Zip Code)
VASOMEDICAL, INC. 1995 STOCK OPTION PLAN
(Full title of the plan)
ANTHONY VISCUSI, PRESIDENT
VASOMEDICAL, INC.
180 LINDEN AVENUE
WESTBURY, NEW YORK 11590
(Name and address of agent for service)
(516) 997-4600
(Telephone number, including area code, of agent for service)
---------------
copy to:
DAVID H. LIEBERMAN, ESQ.
BLAU, KRAMER, WACTLAR & LIEBERMAN, P.C.
100 JERICHO QUADRANGLE
JERICHO, NEW YORK 11753
(516) 822-4820
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered(2) security (1) price (1) registration fee
- ------------------- ------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock,
par value $0.001 1,500,000 shs. $2.75 $4,125,000 $1,423
per share
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, based
upon the average of the high and low prices of the Company's Common Stock
reported on NASDAQ September 4, 1996.
(2) The Registration Statement also covers an indeterminate number of additional
shares of Common Stock which may become issuable pursuant to anti-dilution and
adjustment provisions of the Plan.
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<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this
Registration Statement the documents listed in (a) through (c) below:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, or either (I) the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act of 1933 that
contains audited financial statements for the Registrant's
latest fiscal year for which such statements have been
filed or (II) the Registrant's effective registration
statement on Form 10 filed under the Securities Exchange
Act of 1934 containing audited financial statements for
the Registrant's latest fiscal year;
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since the end of
the fiscal year covered by the Registrant document
referred to in (a) above;
(c) The description of the class of securities to be offered
which is contained in a registration statement filed under
Section 12 of the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which 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 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under the provisions of the By-Laws of Registrant, each person
who is or was a director or officer of Registrant shall be indemnified by
Registrant as of right to the full extent permitted or authorized by the General
Corporation Law of Delaware.
Under such law, to the extent that such person is successful on
the merits of defense of a suit or proceeding brought against him by reason of
the fact that he is a director or officer of Registrant, he shall be indemnified
against expenses (including attorneys' fees) reasonably incurred in connection
with such action.
If unsuccessful in defense of a third-party civil suit or a
criminal suit is settled, such a person shall be indemnified under such law
against both (1) expenses (including attorneys' fees) and (2) judgments, fines
and amounts paid in settlement if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
Registrant, and with respect to any criminal action, had no reasonable cause to
believe his conduct was unlawful.
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If unsuccessful in defense of a suit brought by or in the right
of Registrant, or if such suit is settled, such a person shall be indemnified
under such law only against expenses (including attorneys' fees) incurred in the
defense or settlement of such 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
Registrant except that if such a person is adjudicated to be liable in such suit
for negligence or misconduct in the performance of his duty to Registrant, he
cannot be made whole even for expenses unless the court determines that he is
fairly and reasonably entitled to be indemnified for such expenses.
The officers and directors of the Company are covered by
officers' and directors' liability insurance. The policy coverage is $2,000,000,
which includes reimbursement for costs and fees. There is a maximum aggregate
deductible for each loss under the policy of $75,000. The Company has entered
into Indemnification Agreements with each of its officers and directors. The
Agreements provide for reimbursement for all direct and indirect costs of any
type or nature whatsoever (including attorneys' fees and related disbursements)
actually and reasonably incurred in connection with either the investigation,
defense or appeal of a Proceeding, as defined, including amounts paid in
settlement by or on behalf of an Indemnitee.
Item 7. Exemption from registration claimed.
Not applicable.
Item 8. Exhibits.
4 1995 Stock Option Plan
5 Opinion and consent of Blau, Kramer, Wactlar & Lieberman,
P.C.
23.1 Consent of Blau, Kramer, Wactlar & Lieberman, P.C. -
included in their opinion filed as Exhibit 5.
23.2 Consent of Grant Thornton LLP
24 Powers of Attorney.
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 of 1933;
(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 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained
in periodic reports filed
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<PAGE> 4
by the Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, 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 of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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 the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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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 thereunto duly authorized, in Westbury, New
York on the 6th day of September, 1996.
VASOMEDICAL, INC.
By: /s/ Anthony Viscusi
-----------------------------------------
Anthony Viscusi, President, Chief Executive
Officer and Director (Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Anthony Viscusi and Joseph A. Giacalone,
and each of them, 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, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, 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 any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933,
this registration statement was signed by the following persons in the
capacities indicated on September 6, 1996.
Signatures Title
- ---------- -----
Director
- -----------------------
Alexander G. Bearn
/s/ David S. Blumenthal Director
- -----------------------
David S. Blumenthal
Director
- -----------------------
Francesco Bolgiani
/s/ Abraham E. Cohen Chairman of the Board
- -----------------------
Abraham E. Cohen
/s/ Joseph A. Giacalone Secretary and Treasurer (Principal
- ----------------------- Financial and Accounting Officer)
Joseph A. Giacalone
/s/ Eugene H. Glicksman Executive Vice President
- ----------------------- and Director
Eugene H. Glicksman
/s/ John C.K. Hui Director
- -----------------------
John C. K. Hui
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Director
- -----------------------
Kenneth W. Rind
/s/ E. Donald Shapiro Director
- -----------------------
E. Donald Shapiro
/s/ Anthony Viscusi President, Chief Executive Officer and
- ----------------------- Director (Principal Executive Officer)
Anthony Viscusi
- ----------------------- Director
Zhen-sheng Zheng
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Vasomedical, Inc.
Form S-8 Registration Statement
E X H I B I T I N D E X
Page No. in Sequential
Exhibit Numbering of all Pages,
Number Exhibit Description including Exhibit Pages
- ------- ------------------- -----------------------
4 1995 Stock Option Plan....................
5 Opinion and Consent of Counsel............
23.1 Consent of Counsel........................ See Exhibit 5
23.2 Consent of Grant Thornton LLP.............
24 Powers of Attorney........................ See signature page
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Exhibit 4
VASOMEDICAL, INC.
1995 STOCK OPTION PLAN
SECTION 1. GENERAL PROVISIONS
1.1. NAME AND GENERAL PURPOSE
The name of this plan is the Vasomedical, Inc. 1995 Stock Option Plan
(hereinafter called the "Plan"). The purpose of the Plan is to enable
Vasomedical, Inc. (the "Company") and its subsidiaries and affiliates to foster
and promote the interests of the Company by attracting and retaining officers
and employees of the Company who contribute to the Company's success by their
ability, ingenuity and industry, to enable such officers and employees of the
Company to participate in the long-term success and growth of the Company by
giving them a proprietary interest in the Company and to provide incentive
compensation opportunities competitive with those of competing corporations.
1.2 DEFINITIONS
a. "Affiliate" means any person or entity controlled by or
under common control with the Company, by virtue of the
ownership of voting securities, by contract or otherwise.
b. "Board" means the Board of Directors of the Company.
c. "Change in Control" means a change of control of the
Company, or in any person directly or indirectly
controlling the Company, which shall mean: (a) a change in
control as such term is presently defined in Regulation
240.12b-(f) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); or (b) if any "person" (as
such term is used in Section 13(d) and 14(d) of the
Exchange Act) other than the Company or any "person" who on
the date of this Agreement is a director or officer of the
Company, becomes the "beneficial owner" (as defined in Rule
13(d)-3 under the Exchange Act) directly or indirectly, of
securities of the Company representing twenty percent (20%)
or more of the voting power of the Company's then
outstanding securities; or (c) if during any period of two
(2) consecutive years during the term of this Plan,
individuals who at the beginning of such period constitute
the Board of Directors, cease for any reason to constitute
at least a majority thereof.
d. "Code" means the Internal Revenue Code of 1986, as amended.
e. "Committee" means the Committee referred to in Section 1.3
of the Plan.
f. "Common Stock" means shares of the Common Stock, par value
$.001 per share, of the Company.
g. "Company" means Vasomedical, Inc., a corporation organized
under the laws of the State of Delaware (or any successor
corporation).
h. "Disinterested Person" shall have the meaning set forth in
Rule 16b-3(c)(2) as promulgated by the Securities and
Exchange Commission (the "Commission"); provided, that such
person is also an "outside director" as set forth in
Section 162(m) of the Code and the regulations promulgated
thereunder.
i. "Fair Market Value" means the market price of the Common
Stock on the National Association of Securities Dealers
Automated Quotation ("NASDAQ") system on the date of the
grant or on any other date on which the Common Stock is to
be valued hereunder. If no sale shall have been reported on
NASDAQ on such date, Fair Market Value shall be determined
by the Committee in accordance with the Treasury
Regulations applicable to incentive stock options under
Section 422 of the Code.
j. "Incentive Stock Option" means an Incentive Stock Option as
described in Section 2.1 of the Plan.
k. "Non-Qualified Stock Option" means a Non-Qualified Stock
Option as described in Section 2.1 of the Plan.
l. "Option" means any option to purchase Common Stock under
Section 2 of the plan.
<PAGE> 2
m. "Participant" means any officer or employee of the Company,
a Subsidiary or an Affiliate who is selected by the
Committee to participate in the Plan.
n. "Subsidiary" means any corporation in which the Company
possesses directly or indirectly 50% or more of the
combined voting power of all classes of stock of such
corporation.
o. "Total Disability" means accidental bodily injury or
sickness which wholly and continuously disabled an
Optionee. The Committee, whose decisions shall be final,
shall make a determination of Total Disability.
1.3 ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Committee appointed by the Board
consisting of two or more members of the Board all of whom shall be
Disinterested Persons. The Committee shall serve at the pleasure of the Board
and shall have such powers as the Board may, from time to time, confer upon it.
Subject to this Section 1.3, the Committee shall have sole and complete
authority to adopt, alter, amend or revoke such administrative rules, guidelines
and practices governing the operation of the Plan as it shall, from time to
time, deem advisable, and to interpret the terms and provisions of the Plan.
The Committee shall keep minutes of its meetings and of action taken by
it without a meeting. A majority of the Committee shall constitute a quorum, and
the acts of a majority of the members present at any meeting at which a quorum
is present, or acts approved in writing by all of the members of the Committee
without a meeting, shall constitute the acts of the Committee.
1.4 ELIGIBILITY
Stock options may be granted only to regular full-time and part-time
employees of the Company or a Subsidiary or Affiliate. Subject to Section 2.3,
any person who has been granted any Option may, if he is otherwise eligible, be
granted an additional Option or Options. Those directors who are not regular
employees are not eligible.
1.5 SHARES
The aggregate number of shares reserved for issuance pursuant to the
Plan shall be 1,500,000 shares of Common Stock, or the number and kind of shares
of stock or other securities which shall be substituted for such shares or to
which such shares shall be adjusted as provided in Section 1.6.
Such number of shares may be set aside out of the authorized but
unissued shares of Common Stock or out of issued shares of Common Stock acquired
for and held in the Treasury of the Company, not reserved for any other purpose.
Shares subject to, but not sold or issued under, any Option terminating or
expiring for any reason prior to its exercise in full will again be available
for Options thereafter granted during the balance of the term of the Plan.
1.6 ADJUSTMENTS DUE TO STOCK SPLITS, MERGERS, CONSOLIDATION, ETC.
If, at any time, the Company shall take any action, whether by stock
dividend, stock split, combination of shares or otherwise, which results in a
proportionate increase or decrease in the number of shares of Common Stock
theretofore issued and outstanding, the number of shares which are reserved for
issuance under the Plan and the number of shares which, at such time, are
subject to Options shall, to the extent deemed appropriate by the Committee, be
increased or decreased in the same proportion, provided, however, that the
Company shall not be obligated to issue fractional shares.
Likewise, in the event of any change in the outstanding shares of Common
Stock by reason of any recapitalization, merger, consolidation, reorganization,
combination or exchange of shares or other corporate change, the Committee shall
make such substitution or adjustments, if any, as it deems to be appropriate, as
to the number or kind of shares of Common Stock or other securities which are
reserved for issuance under the Plan and the number of shares or other
securities which, at such time are subject to Options.
In the event of a Change in Control, (a) all options outstanding on the
date of such Change in Control shall, for a period of sixty (60) days following
such Change in Control, become immediately and fully exercisable, and (b) an
Optionee will be permitted to surrender for cancellation within sixty (60) days
after such Change in Control any option or portion of an option which was
granted more than six (6) months prior to the date of such surrender, to the
extent not yet exercised, and to receive a cash payment in an amount equal to
the excess, if any, of the Fair Market Value
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(on the date of surrender) of the shares of Common Stock subject to the option
or portion thereof surrendered, over the aggregate purchase price for such
Shares under the option.
1.7 NON-ALIENATION OF BENEFITS
Except as herein specifically provided, no right or unpaid benefit under
the Plan shall be subject to alienation, assignment, pledge or charge and any
attempt to alienate, assign, pledge or charge the same shall be void. If any
Participant or other person entitled to benefits hereunder should attempt to
alienate, assign, pledge or charge any benefit hereunder, then such benefit
shall, in the discretion of the Committee, cease.
1.8 WITHHOLDING OR DEDUCTION FOR TAXES
If, at any time, the Company or any Subsidiary or Affiliate is required,
under applicable laws and regulations, to withhold, or to make any deduction for
any taxes, or take any other action in connection with any Option exercise, the
Participant shall be required to pay to the Company or such Subsidiary or
Affiliate, the amount of any taxes required to be withheld, or, in lieu thereof,
at the option of the Company, the Company or such Subsidiary or Affiliate may
accept a sufficient number of shares of Common Stock to cover the amount
required to be withheld.
1.9 ADMINISTRATIVE EXPENSES
The entire expense of administering the Plan shall be borne by the
Company.
1.10 GENERAL CONDITIONS
(a) The Board or the Committee may, from time to time, amend, suspend
or terminate any or all of the provisions of the Plan, provided
that, without the Participant's approval, no change may be made
which would prevent an Incentive Stock Option granted under the
Plan from qualifying as an Incentive Stock Option under Section 422
of the Code or result in a "modification" of the Incentive Stock
Option under Section 424(h) of the Code or otherwise alter or
impair any right theretofore granted to any Participant ; and
further provided that, without the consent and approval of the
holders of a majority of the outstanding shares of Common Stock of
the Company present at a meeting at which a quorum exists, neither
the Board nor the Committee may make any amendment which (i)
changes the class of persons eligible for options; (ii) increases
(except as provided under Section 1.6 above) the total number of
shares or other securities reserved for issuance under the Plan;
(iii) decreases the minimum option prices stated in Section 2.2
hereof (other than to change the manner of determining Fair Market
Value to conform to any then applicable provision of the Code or
any regulation thereunder); (iv) extends the expiration date of the
Plan, or the limit on the maximum term of Options; or (v) withdraws
the administration of the Plan from a committee consisting of two
or more members, each of whom is a Disinterested Person.
b. With the consent of the Participant affected thereby, the Committee
may amend or modify any outstanding Option in any manner not
inconsistent with the terms of the Plan, including, without
limitation, and irrespective of the provisions of Sections 2.3(c)
and 2.4(b) below, to accelerate the date or dates as of which an
installment of an Option becomes exercisable.
c. Nothing contained in the Plan shall prohibit the Company or any
Subsidiary or Affiliate from establishing other additional
incentive compensation arrangements for employees of the Company or
such Subsidiary or Affiliate.
d. Nothing in the Plan shall be deemed to limit, in any way, the right
of the Company or any Subsidiary or Affiliate to terminate a
Participant's employment with the Company (or such Subsidiary or
Affiliate) at any time.
e. Any decision or action taken by the Board or the Committee arising
out of or in connection with the construction, administration,
interpretation and effect of the Plan shall be conclusive and
binding upon all Participants and any person claiming under or
through any Participant.
f. No member of the Board or of the Committee shall be liable for any
act or action, whether of commission or omission, (i) by such
member except in circumstances involving actual bad faith, nor (ii)
by any other member or by any officer, agent or employee.
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1.11 COMPLIANCE WITH APPLICABLE LAW
Notwithstanding any other provision of the Plan, the Company shall not
be obligated to issue any shares of Common Stock, or grant any Option with
respect thereto, unless it is advised by counsel of its selection that it may do
so without violation of the applicable Federal and State laws pertaining to the
issuance of securities and the Company may require any stock certificate so
issued to bear a legend, may give its transfer agent instructions limiting the
transfer thereof, and may take such other steps, as in its judgment are
reasonably required to prevent any such violation.
1.12 EFFECTIVE DATES
The Plan was adopted by the Board on March 9, 1995, subject to approval
by the stockholders of the Company. The Plan shall terminate on March 8, 2005.
SECTION 2. OPTION GRANTS
2.1 AUTHORITY OF COMMITTEE
Subject to the provisions of the Plan, the Committee shall have the sole
and complete authority to determine (i) the Participants to whom Options shall
be granted; (ii) the number of shares to be covered by each Option; and (iii)
the conditions and limitations, if any, in addition to those set forth in
Sections 2 and 3 hereof, applicable to the exercise of an Option, including
without limitation, the nature and duration of the restrictions, if any, to be
imposed upon the sale or other disposition of shares acquired upon exercise of
an Option.
Stock options granted under the Plan may be of two types: an incentive
stock option ("Incentive Stock Option"); and a non-qualified stock option
("Non-Qualified Stock Option").
It is intended that the Incentive Stock Options granted hereunder shall
constitute incentive stock options within the meaning of Section 422 of the Code
and shall be subject to the tax treatment described in Section 422 of the Code.
Anything in the Plan to the contrary notwithstanding, no provision of
the Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify either the Plan or, without the consent of the
Optionee, any Incentive Stock Option under Section 422 of the Code.
The Committee shall have the authority to grant Incentive Stock Options,
or to grant Non-Qualified Stock Options, or to grant both types of Options. To
the extent that any Option does not qualify as an Incentive Stock Option, in
whole or in part, it shall constitute a separate Non-Qualified Stock Option to
the extent of such disqualification.
2.2 OPTION EXERCISE PRICE
The price of stock purchased upon the exercise of Options granted
pursuant to the Plan shall be the Fair Market Value thereof at the time that the
Option is granted.
If an employee owns or is deemed to own (by reason of the attribution
rules applicable under Section 424(d) of the Code) more than 10% of the combined
voting power of all classes of the stock of the Company or any parent
corporation of the Company or Subsidiary and an Option granted to such employee
is intended to qualify as an Incentive Stock Option within the meaning of
Section 422 of the Code, the exercise price shall be no less than 110% of the
Fair Market Value of the Common Stock on the date the Option is granted. The
purchase price is to be paid in full in cash, certified or bank cashier's check
or, at the option of the Company, Common Stock valued at its Fair Market Value
on the date of exercise, or a combination thereof, when the Option is exercised
and stock certificates will be delivered only against such payment.
2.3 INCENTIVE STOCK OPTION GRANTS
Each Incentive Stock Option will be subject to the following provisions:
a. Term of Option
An Incentive Stock Option will be for a term of not more than ten
years from the date of grant, except in the case of an employee
described in the second paragraph of Section 2.2 above in which
case an Incentive Stock Option will be for a term of not more than
five years from the date of the grant.
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b. Annual Limit
To the extent the aggregate Fair Market Value of the Common Stock
(determined as of the date of grant) with respect to which any
options granted hereunder are intended to be designated as
Incentive Stock Options under the Plan (or any other incentive
stock option plan of the Company or any Subsidiary) which may be
exercisable for the first time by the Optionee in any calendar year
exceeds $100,000, such options shall not be considered incentive
stock options.
c. Exercise
Subject to the power of the Committee under Section 1.10(b) above
and except in the manner described below upon the death of the
Optionee, an Incentive Stock Option may be exercised for all of the
subject shares on and after the first such anniversary of the date
of the grant of such Option but in no event later than the
expiration of the term of the Option.
An Incentive Stock Option shall be exercisable during the
Optionee's lifetime only by the Optionee and shall not be
exercisable by the Optionee unless, at all times since the date of
grant and at the time of exercise, such Optionee is an employee of
the Company, any parent corporation of the Company or any
Subsidiary, except that, upon termination of all employment (other
than by death or by Total Disability followed by death in the
circumstances provided below) with the Company, any parent
corporation of the Company and any Subsidiary or Affiliate, the
Optionee may exercise an Incentive Stock Option at any time within
three months thereafter but only to the extent such Option is
exercisable on the date of such termination.
If termination of employment is the result of the Optionee having
reached normal retirement age, option grants continue to be
exercisable for five years after retirement but in no event later
than the expiration of the term of the Option.
In the event of the death of an Optionee (i) while an employee of
the Company, any parent corporation of the Company or any
Subsidiary or Affiliate, or (ii) within three months after
termination of all employment with the Company, any parent
corporation of the Company and any Subsidiary or Affiliate (other
than for Total Disability) or (iii) within three months after
termination on account of Total Disability of all employment with
the Company, any parent corporation of the Company and any
Subsidiary, such Optionee's estate or any person who acquires the
right to exercise such option by bequest or inheritance or by
reason of the death of the Optionee may exercise such Optionee's
Option at any time within the period of one year from the date of
death. In the case of clauses (i) and (iii) above, such Option
shall be exercisable in full for all the remaining shares covered
thereby, but in the case of clause (ii) such Option shall be
exercisable only to the extent it was exercisable on the date of
such termination.
If an Optionee's employment is terminated for deliberate, willful
or gross misconduct, all rights under an Option expire upon receipt
by the Optionee of the notice of such termination.
Notwithstanding the foregoing provisions regarding the exercise of
an Option in the event of death, Total Disability or other
termination of employment, in no event shall an Option be
exercisable in whole or in part after the termination date provided
in the Option.
d. Transferability
An Incentive Stock Option granted under the Plan shall not be
transferable otherwise than by will or by the laws of descent and
distribution.
2.4 NON-QUALIFIED STOCK OPTION GRANTS
Each Non-Qualified Stock Option will be subject to the following
provisions:
a. Term of Option
A Non-Qualified Stock Option will be for a term of not more than
ten years from the date of grant.
b. Exercise
The exercise of a Non-Qualified Stock Option shall be subject to
the same terms and conditions as provided under Section 2.3(c)
above.
c. Transferability
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<PAGE> 6
A Non-Qualified Stock Option granted under the Plan shall not be
transferable otherwise than by will or by the laws of descent and
distribution.
2.5 AGREEMENTS
In consideration of any Options granted to a Participant under the
Plan, each such Participant shall enter into an Option Agreement with the
Company providing, consistent with the Plan, such terms as the Committee may
deem advisable.
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<PAGE> 1
Exhibit 5
September 5, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Vasomedical, Inc.
Registration Statement on Form S-8
Gentlemen:
Reference is made to the filing by Vasomedical, Inc. (the
"Corporation") of a Registration Statement on Form S-8 with the Securities and
Exchange Commission pursuant to the provisions of the Securities Act of 1933, as
amended, covering the registration of 1,500,000 shares of the Corporation's
Common Stock, $.001 par value per share, in connection with the Corporation's
1995 Stock Option Plan (the "Plan").
As counsel for the Corporation, we have examined its corporate
records, including its Certificate of Incorporation, as amended, By-Laws, its
corporate minutes, the form of its Common Stock certificate, the Plan, related
documents under the Plan and such other documents as we have deemed necessary or
relevant under the circumstances.
Based upon our examination, we are of the opinion that:
1. The Corporation is duly organized and validly existing under the laws
of the State of Delaware.
2. There have been reserved for issuance by the Board of Directors of
the Corporation 1,500,000 shares of its Common Stock, $.001 par value per share.
The shares of the Corporation's
<PAGE> 2
Common Stock, when issued pursuant to the Plan, will be validly authorized,
legally issued, fully paid and non-assessable.
Securities and Exchange Commission
September 5, 1996
Page Two
We hereby consent to be named in the Registration Statement and
in the Prospectus which constitutes a part thereof as counsel of the
Corporation, and we hereby consent to the filing of this opinion as Exhibit 5 to
the Registration Statement.
Very truly yours,
BLAU, KRAMER, WACTLAR &
LIEBERMAN, P.C.
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<PAGE> 1
Exhibit 23.2
Consent of Independent Certified Public Accountants
We have issued our report dated August 2, 1996, accompanying the consolidated
financial statements of Vasomedical, Inc. and Subsidiaries appearing in the 1996
Annual Report to Stockholders of the Company for the year ended May 31,1996 and
incorporated by reference in the Company's 1996 Annual Report on Form 10-KSB
which are incorporated by reference in this Registration Statement on Form S-8.
We consent to the incorporation by reference in the Registration Statement of
the aforementioned report.
GRANT THORNTON LLP
Melville, New York
September 4, 1996
