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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
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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. OUTSIDE DIRECTOR 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)
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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 $0.001 300,000 shs. $2.75 $825,000 $285
per share
===================================================================================================================================
</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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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 Outside Director 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
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E X H I B I T I N D E X
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<TABLE>
<CAPTION>
Page No. in Sequential
Exhibit Numbering of all Pages,
Number Exhibit Description including Exhibit Pages
- ------- ----------------------------------------------------------- -----------------------
<S> <C> <C>
4 Outside Director 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
</TABLE>
II-6
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Exhibit 4
VASOMEDICAL, INC.
OUTSIDE DIRECTOR STOCK OPTION PLAN
1. PURPOSE. VASOMEDICAL, INC. (the "Company") hereby adopts the
VASOMEDICAL, INC. Outside Director Stock Option Plan (the "Plan"). The Plan is
intended to recognize the contributions made to the Company by the non-employee
members of the Board of Directors of the Company or an Affiliate (as defined
below), to provide such persons with additional incentive to devote themselves
to the future success of the Company or an Affiliate, and to improve the ability
of the Company or an Affiliate to attract, retain, and motivate individuals upon
whom the Company's sustained growth and financial success depend, by providing
such persons with an opportunity to acquire or increase their proprietary
interest in the Company through receipt of options to purchase the Company's
Common Stock, par value $.001 per share (the "Common Stock").
2. DEFINITIONS. Unless the context clearly indicates otherwise,
the following terms shall have the following meanings:
(a) "Affiliate" means a corporation which is a parent
corporation or a subsidiary corporation with respect to
the Company within the meaning of Section 424(e) or (f)
of the Code.
(b) "Board of Directors" or "Board" means the Board of
Directors of the Company.
(c) "Change in Control" shall have the meaning as set forth
in Section 9 of the Plan.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" shall have the meaning set forth in Section
3 of the Plan.
(f) "Company" means VASOMEDICAL, INC., a Delaware
corporation.
(g) "Disability" shall have the meaning set forth in Section
22(e)(3) of the Code.
(h) "Fair Market Value" shall have the meaning set forth in
Subsection 8(c) of the Plan.
(i) "Non-Qualified Stock Option" means an Option granted
under the Plan which is not intended to qualify, or
otherwise does not qualify, as an "incentive stock
option" within the meaning of Section 422(b) of the
Code.
(j) "Option" means a Non-Qualified Stock Option granted
under the Plan.
(k) "Optionee" means a person to whom an Option has been
granted under the Plan, which Option has not been
exercised and has not expired or terminated.
(l) "Option Document" means the document described in
Section 8 of the Plan, as applicable, which sets forth
the terms and conditions of each grant of Options
(m) "Option Price" means the price at which Shares may be
purchased upon exercise of an Option, as calculated
pursuant to Subsection 8(c) of the Plan.
(n) "Outside Director" means a member of the Board of
Directors who is not an employee of the Company or an
Affiliate.
(o) "Rule 16b-3" means Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended. (p)
"Shares" means the shares of Common Stock of the Company
which are the subject of Options.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by
the Board of Directors of the Company; however, the Board of Directors may
designate a committee (the "Committee") composed of two or more of its Directors
to operate and administer the Plan in its stead.
(a) Meetings. The Committee shall hold meetings at such
times and places as it may determine. Acts approved at a meeting by a majority
of the members of the Committee or acts approved in writing by the unanimous
consent of the members of the Committee shall be the valid acts of the
Committee.
(b) Administration. The interpretation and construction by
the Committee of any provisions of the Plan or of any Option granted under it
shall be final, binding and conclusive.
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(c) Exculpation. No member of the Board of Directors shall
be personally liable for monetary damages for any action taken or any failure to
take any action in connection with the administration of the Plan or the
granting of Options under the Plan, provided that this Subsection 3(c) shall not
apply to (i) any breach of such member's duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law, (iii) acts or omissions that would
result in liability under Section 174 of the General Corporation Law of the
State of Delaware, as amended, and (iv) any transaction from which the member
derived an improper personal benefit.
(d) Indemnification. Service on the Committee shall
constitute service as a member of the Board of Directors of the Company. Each
member of the Committee shall be entitled without further act on his or her part
to indemnity from the Company to the fullest extent provided by applicable law
and the Company's Certificate of Incorporation and/or Bylaws in connection with
or arising out of any action, suit or proceeding with respect to the
administration of the Plan or the granting of Options thereunder in which he or
she may be involved by reason of his or her being or having been a member of the
Committee, whether or not he or she continues to be such member of the Committee
at the time of the action, suit or proceeding.
4. GRANTS UNDER THE PLAN. Grants under the Plan may only be in
the form of a Non-Qualified Stock Option.
5. ELIGIBILITY. All Outside Directors shall be eligible to
receive Options hereunder. The Committee, in its sole discretion, shall
determine whether an individual is eligible to receive Options under the Plan.
6. SHARES SUBJECT TO PLAN. The aggregate maximum number of Shares
for which Options may be granted pursuant to the Plan is Three Hundred Thousand
(300,000), subject to adjustment as provided in Section 10 of the Plan. The
Shares shall be issued from authorized and unissued Common Stock or Common Stock
held in or hereafter acquired for the treasury of the Company. If an Option
terminates or expires without having been fully exercised for any reason, the
Shares for which the Option was not exercised may again be the subject of one or
more Options granted pursuant to the Plan.
7. TERM OF THE PLAN. The Plan is effective as of March 9, 1995,
the date on which it was adopted by the Board of Directors, subject to the
approval of the Plan on or before June 30, 1995 by a majority of the votes cast
at a duly called meeting of the stockholders at which a quorum representing a
majority of all outstanding voting stock of the Company is, either in person or
by proxy, present and voting.
8. OPTION DOCUMENTS AND TERMS. Each Option granted under the Plan
shall be a Non-Qualified Stock Option. Options granted pursuant to the Plan
shall be evidenced by the Option Documents in such form as the Committee shall
from time to time approve, which Option Documents shall comply with and be
subject to the following terms and conditions and such other terms and
conditions as the Committee shall from time to time require which are not
inconsistent with the terms of the Plan.
(a) Number of Option Shares. Each Option Document shall
state the number of Shares to which it pertains. An Optionee may receive more
than one Option on the terms and subject to the conditions and restrictions of
the Plan.
(b) Timing of Grants; Number of Shares Subject of Options.
Each outside Director shall be granted annually, commencing on the first day of
June, 1995 and on the first day of each June thereafter, an Option to purchase
that number of Shares having a market value at time of grant of $10,000.
(c) Option Price. Each Option Document shall state the
Option Price, which shall be equal to the Fair Market Value of the Shares on the
date the Option is granted. If the Common Stock is traded in a public market,
then the Fair Market Value per share shall be, if the Common Stock is listed on
a national securities exchange or included in the NASDAQ National Market System,
the average of the closing price thereof on the five (5) trading days preceding
the date of grant, or if the Common Stock is not so listed or included, the
average of the mean between the last reported "bid" and "asked" prices thereof
on the five (5) trading days preceding the date of grant, as reported on NASDAQ,
or, if not so reported, as reported by the National Daily Quotation Bureau, Inc.
or as reported in a customary financial reporting service, as applicable and as
the Committee determines.
(d) Exercise. Each Option shall be exercisable in full after
the expiration of one (1) year from the date of grant. No Option shall be deemed
to have been exercised prior to the receipt by the Company of written notice of
such
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<PAGE> 3
exercise and payment in full of the Option Price for the shares to be purchased.
Each such notice shall specify the number of Shares to be purchased and shall
(unless the Shares are covered by a then current registration statement or a
Notification under Regulation A under the Securities Act of 1933, as amended
(the "Act")), contain the Optionee's acknowledgment in form and substance
satisfactory to the Company that (a) such Shares are being purchased for
investment and not for distribution or resale (other than a distribution or
resale which, in the opinion of counsel satisfactory to the Company, may be made
without violating the registration provisions of the Act), (b) the Optionee has
been advised and understands that (i) the Shares have not been registered under
the Act and are "restricted securities" within the meaning of Rule 144 under the
Act and are subject to restrictions on transfer and (ii) the Company is under no
obligation to register the Shares under the Act or to take any action which
would make available to the Optionee any exemption from such registration, (c)
such Shares may not be transferred without compliance with all applicable
federal and state securities laws, and (d) an appropriate legend referring to
the foregoing restrictions on transfer and any other restrictions imposed under
the Option Documents may be endorsed on the certificates. Notwithstanding the
foregoing, if the Company determines that issuance of Shares should be delayed
pending (A) registration under federal or state securities laws, (B) the receipt
of an opinion of counsel acceptable to the Company that an appropriate exemption
from such registration is available, (C) the listing or inclusion of the Shares
on any securities exchange or an automated quotation system or (D) the consent
or approval of any governmental regulatory body whose consent or approval is
necessary in connection with the issuance of such Shares, the Company may defer
exercise of any Option granted hereunder until any of the events described in
this Subsection 8(d) has occurred.
(e) Medium of Payment. An Optionee shall pay for Shares (i)
in cash, (ii) by certified or cashier's check payable to the order of the
Company, or (iii) by such other mode of payment as the Committee may approve,
including payment through a broker in accordance with procedures permitted by
Regulation T of the Federal Reserve Board. Without limiting the foregoing, the
Committee may provide in an Option Document that payment may be made in whole or
in part in shares of the Company's Common Stock. If payment is made in whole or
in part in shares of the Company's Common Stock, then the Optionee shall deliver
to the Company certificates registered in the name of such Optionee representing
the shares owned by such Optionee, free of all liens, claims and encumbrances of
every kind and having an aggregate Fair Market Value on the date of delivery
that is at least as great as the Option Price of the Shares (or relevant portion
thereof) with respect to which such Option is to be exercised by the payment in
shares of Common Stock, accompanied by stock powers duly endorsed in blank by
the Optionee. In the event that certificates for shares of the Company's Common
Stock delivered to the Company represent a number of shares in excess of the
number of shares required to make payment for the Option Price of the Shares (or
relevant portion thereof) with respect to which such Option is to be exercised
by payment in shares of Common Stock, the stock certificate issued to the
Optionee shall represent (i) the Shares in respect of which payment is made, and
(ii) such excess number of shares. Notwithstanding the foregoing, the Committee
may impose from time to time such limitations and prohibitions on the use of
shares of the Common Stock to exercise an Option as it deems appropriate.
(f) Termination of Options. All Options granted pursuant to
this Plan shall be exercisable until the first to occur of the following:
(i) Expiration of ten (10) years from the date of
grant;
(ii) Expiration of one year from the date the
Optionee's service with the Company as an Outside
Director terminates for any reason.
(g) Transfers. No option granted under the Plan may be
transferred, except by will or by the laws of descent and distribution. During
the lifetime of the person to whom an Option is granted, such Option may be
exercised only by such person. Notwithstanding the foregoing, a Non-Qualified
Stock Option may be transferred pursuant to the terms of a "qualified domestic
relations order," within the meaning of Sections 401(a)(13) and 414(p) of the
Code or within the meaning of Title I of the Employee Retirement Income Security
Act of 1974, as amended.
(h) Other Provisions. Subject to the provisions of the Plan,
the Option Documents shall contain such other provisions including, without
limitation, additional restrictions upon the exercise of the Option or
additional limitations upon the term of the Option, as the Committee shall deem
advisable.
(i) Amendment. Subject to the provisions of the Plan, the
Committee shall have the right to amend Option Documents issued to an Optionee,
subject to the Optionee's consent if such amendment is not favorable to the
Optionee, except that the consent of the Optionee shall not be required for any
amendment made under Section 9 of the Plan, as applicable.
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<PAGE> 4
9. CHANGE IN CONTROL. In the event of a Change in Control, the
Committee may take whatever action it deems necessary or desirable with respect
to the Options outstanding, including, without limitation, accelerating the
expiration or termination date in the respective Option Documents to a date no
earlier than thirty (30) days after notice of such acceleration is given to the
Optionees. In addition to the foregoing, in the event of a Change in Control,
Options granted pursuant to the Plan shall become immediately exercisable in
full.
A "Change in Control" shall be deemed to have occurred upon the
earliest to occur of the following events: (i) the date the stockholders of the
Company (or the Board of Directors, if stockholder action is not required)
approve a plan or other arrangement pursuant to which the Company will be
dissolved or liquidated, or (ii) the date the stockholders of the Company (or
the Board of Directors, if stockholder action is not required) and the
stockholders of the other constituent corporation (or its board of directors, if
stockholder action is not required) have approved a definitive agreement to
merge or consolidate the Company with or into such other corporation, other
than, in either case, a merger or consolidation of the Company in which holders
of shares of the Company's Common Stock immediately prior to the merger or
consolidation will hold at least a majority of the ownership of common stock of
the surviving corporation (and, if one class of common stock is not the only
class of voting securities entitled to vote on the election of directors of the
surviving corporation, a majority of the voting power of the surviving
corporation's voting securities) immediately after the merger or consolidation,
which common stock (and if applicable voting securities) is to be held in the
same proportion as such holders' ownership of Common Stock of the Company
immediately before the merger or consolidation, or (iii) the date any entity,
person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of
the Securities Exchange Act of 1934, as amended) other than (A) the Company or
any of its subsidiaries or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its subsidiaries, or (B) any
person who, on the date the Plan is effective, shall have been the beneficial
owner of or have voting control over shares of Common Stock of the Company,
possessing more than ten percent (10%) of the aggregate voting power of the
Company's Common Stock shall have become the beneficial owner of, or shall have
obtained voting control over, more than ten percent (10%) of the outstanding
shares of the Company's Common Stock, or (iv) the first day after the date this
Plan is effective when directors are elected such that a majority of the Board
of Directors shall have been members of the Board of Directors for less than two
(2) years, unless the nomination for election of each new director who was not a
director at the beginning of such two (2) year period was approved by a vote of
at least two-thirds of the directors then still in office who were directors at
the beginning of such period.
10. ADJUSTMENTS ON CHANGES IN CAPITALIZATION. The aggregate
number of Shares and class of Shares as to which Options may be granted
hereunder, the number and class or classes of Shares covered by each outstanding
Option and the Option Price thereof shall be appropriately adjusted in the event
of a stock dividend, stock split, recapitalization or other change in the number
or class of issued and outstanding equity securities of the Company resulting
from a subdivision or consolidation of the Common Stock and/or, if appropriate,
other outstanding equity securities or a recapitalization or other capital
adjustment (not including the issuance of Common Stock on the conversion of
other securities of the Company which are convertible into Common Stock)
affecting the Common Stock which is effected without receipt of consideration by
the Company. The Committee shall have authority to determine the adjustments to
be made under this Section , and any such determination by the Committee shall
be final, binding and conclusive.
11. AMENDMENT OF THE PLAN. The Board of Directors of the Company
may amend the Plan from time to time in such manner as it may deem advisable.
The provisions of the Plan relating to (i) which directors shall be granted
Options pursuant to Section 8; (ii) the amount of Shares subject to Options
granted pursuant to Section 8; (iii) the price at which Shares subject to
Options granted pursuant to Section 8 may be purchased; and (iv) the timing of
grants of Options pursuant to Section 8, shall not be amended more than once
every six (6) months, other than to comport with changes in the Code or the
Employee Retirement Income Security Act of 1974, as amended. No amendment to the
Plan shall adversely affect any outstanding Option, however, without the consent
of the Optionee that holds such Option.
12. NO COMMITMENT TO RETAIN. The grant of an Option pursuant to
the Plan shall not be construed to imply or to constitute evidence of any
agreement, express or implied, on the part of the Company or any Affiliate to
retain the Optionee as a member of the Company's Board of Directors or in any
other capacity.
13. WITHHOLDING OF TAXES. Whenever the Company proposes or is
required to deliver or transfer Shares in connection with the exercise of an
Option, the Company shall have the right to (a) require the recipient to remit
or otherwise make available to the Company an amount sufficient to satisfy any
federal, state and/or local withholding tax requirements
-4-
<PAGE> 5
prior to the delivery or transfer of any certificate or certificates for such
Shares or (b) take whatever other action it deems necessary to protect its
interests with respect to tax liabilities. The Company's obligation to make any
delivery or transfer of Shares shall be conditioned on the Optionee's
compliance, to the Company's satisfaction, with any withholding requirement.
14. INTERPRETATION. The Plan is intended to enable transactions
under the Plan with respect to directors and officers (within the meaning of
Section 16(a) under the Securities Exchange Act of 1934, as amended) to satisfy
the conditions of Rule 16b-3; to the extent that any provision of the Plan, or
any provisions of any Option granted pursuant to the Plan, would cause a
conflict with such conditions or would cause the administration of the Plan as
provided in Section 3 to fail to satisfy the conditions of Rule 16b-3, such
provision shall be deemed null and void to the extent permitted by applicable
law.
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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 300,000 shares of the Corporation's Common
Stock, $.001 par value per share, in connection with the Corporation's Outside
Director 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 300,000 shares of its Common Stock, $.001 par value per
share. The shares of the Corporation's Common Stock, when issued pursuant to the
Plan, will be validly authorized, legally issued, fully paid and non-assessable.
<PAGE> 2
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
