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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
__________________
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. 1992 NON-QUALIFIED 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
__________________
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 25,000 shs. $2.75 $68,750 $24
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.
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
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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 1992 Non-Qualified 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 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
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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
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Vasomedical, Inc.
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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 1992 Non-Qualified 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>
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Exhibit 4
VASOMEDICAL, INC.
1992 NON-QUALIFIED STOCK OPTION PLAN
1. PURPOSE AND EFFECT
(a) The purpose of this plan (the "Plan") is to
induce officers, directors and other senior executives and management and
supervisory personnel of and consultants to Vasomedical, Inc., a Delaware
corporation ("Vasomedical") and its subsidiaries (Vasomedical and its
subsidiaries being hereinafter collectively referred to as the "Company"), who
are in a position to make material contributions to the Company's success, to
remain in the service of the Company, to offer them incentives and rewards in
recognition of their share in the Company's progress, and to encourage them to
continue to promote the best interests of the Company through the grant to them
of options (the "Options") for the purchase of Common Stock, $.001 par value, of
Vasomedical (the "Common Stock"). The Plan is also intended to aid the Company
in competing with other enterprises for the services of new senior executives
needed to help insure continued development.
(b) In the event that this Plan is not approved by
the stockholders of Vasomedical, this Plan and all Options granted and to be
granted hereunder shall be null and void, and the Company shall have no
obligation of any nature whatsoever to any employee, director or other person
arising out of either Plan or any Options granted or to be granted hereunder.
2. ADMINISTRATION
(a) The Plan shall be administered by the Board of
Directors of Vasomedical (the "Board"), provided however, that the Board may, in
the exercise of its discretion, designate from among its members a Compensation
Committee (the "Committee") consisting of no fewer than three directors, each of
whom shall be a "disinterested person" within the meaning of Rule 16b-3 (or any
successor rule or regulation) promulgated under the Securities Exchange Act of
1934, as amended ("Exchange Act"), and may delegate to the Committee full power
and authority, subject to such orders or resolutions not inconsistent with the
provisions of the Plan as may from time to time be issued or adopted by the
Board, to interpret the provisions and supervise the administration of the Plan.
Any member of the Committee may be removed at any time either with or without
cause by resolution adopted by the Board, and any vacancy on the Committee may
at any time be filled by resolution adopted by the Board. Any or all power and
functions of the Committee may at any time and from time to time be exercised by
the Board; provided, however, that with respect to the participation in the Plan
of persons who are members of the Board, such powers and functions of the
Committee may be exercised by the Board only if, at the time of such exercise, a
majority of the members of the entire Board and a majority of the directors
acting in the particular matter are "disinterested persons" within the meanings
of Rule 16b-3 promulgated under the Exchange Act.
(b) Each Option shall be evidenced by an Option
Agreement that shall contain such terms and conditions (consistent with the
terms and conditions of this Plan) as may be approved by the Board or the
Committee, as the case may be, and shall be signed by an officer of Vasomedical
and the optionee (the "Optionee").
(c) Subject to any applicable provisions of
Vasomedical's By-Laws, all decisions made by the Board or the Committee pursuant
to the provisions of the Plan and related orders or resoultions of the Board
shall be final, conclusive and binding on all persons, including the Company,
stockholders, employees and Optionees.
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3. SHARES SUBJECT TO THE PLAN
(a) The shares of Common Stock to be delivered upon exercise of
Options granted under the Plan shall be made available, at the discretion of the
Board, either from the authorized but unissued shares of Common Stock or from
shares of Common Stock reacquired by Vasomedical and held in treasury.
(b) Subject to adjustments made pursuant to the provisions of
Paragraph (c) of this Section 3, the aggregate number of shares to be delivered
upon exercise of all Options that may be granted under this Plan shall be
1,500,000 shares. If an Option granted under the Plan shall expire or terminate
for any reason during the term of the Plan, the shares subject to but not
delivered under such Option shall be available for the grant of other Options.
The foregoing notwithstanding, no person may be granted Options in any calendar
year to purchase shares of Common Stock which in the aggregate have a fair
market value of more than $150,000.
(c) In the event of a merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, or other change in corporate
structure affecting the Common Stock, appropriate adjustments shall be made in
the aggregate number of shares subject to the Plan and in the number of shares
subject to unexercised Options previously granted under the Plan.
4. ELIGIBILITY AND PARTICIPATION
The persons eligible to receive Options shall consist of
officers, directors and other senior executives and management and supervisory
personnel of and consultants to the Company. Subject to the limitations of the
Plan, the Board or the Committee, as the case may be, shall select the person to
be granted Options, determine the number and exercise price of the shares
subject to each Option, and determine the time when each Option shall be
granted. More than one Option may be granted to the same person.
5. TERM OF PLAN AND OPTION PERIOD
The term during which Options may be granted under this Plan
shall commence on June 1, 1993 and expire on May 31, 2003, provided, however,
that if the Plan is not approved by the stockholders of Vasomedical, all Options
granted hereunder shall become null and void. Subject to the provisions of the
Plan with respect to death, retirement and termination of employment, the
maximum period during which each Option may be exercised may be fixed by the
Board or the Committee, as the case may be, at the time such Option is granted
but shall in no event exceed five (5) years.
6. EXERCISE PRICE
(a) The price at which shares of Common Stock may be purchased
upon exercise of a particular Option shall be not less than eighty-five percent
(85%) of the fair market value of such shares on date such Option is granted, as
determined by the Board or the Committee, as the case may be.
(b) For purposes of determining the fair market value of a share
of Common Stock on the date of grant, if the Common Stock (i) is then listed on
any national securities exchange, the fair market value shall be the closing
price per share of the Common Stock on such exchange at the close of the trading
session on the date of grant, (ii) is then listed on NASDAQ (but not on any
national securities exchange), the fair market value shall be the closing price
per share of the Common Stock on NASDAQ on the date of grant, or (iii) is then
traded on the over-the-counter market (but not on a national securities exchange
or NASDAQ), the fair market value shall be the average of the closing bid and
asked prices of the Common Stock as reported by the National Quotation Bureau,
Inc. or other entity then publishing bide and asked prices for the Common Stock
for the date of grant, or, if unavailable, then the last trading date on which
bid and asked quotations were published immediately preceding the date of grant.
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7. EXERCISE OF OPTIONS
(a) Each Option granted under this Plan may be exercised only
during the continuance of the Optionee's employment or service with the Company
and only as to such percentage of the shares covered thereby during such periods
as may be determined at the time of grant by the Board or the Committee, as the
case may be, but if no such percentage is specified, then each Option granted
under this Plan may be exercised as to 50% of the shares covered thereby one
year after the date of grant and as to an additional 50% of the shares covered
thereby two years after the date of grant (so that such Option may be exercised
as to 100% of the shares covered thereby beginning two (2) years after the date
of grant), except in case of death, retirement or termination of employment or
service as hereinafter provided. Subject to the foregoing limitations and the
terms and conditions of the option certificate, each Option shall be exercisable
with respect to such number of shares and during such periods as shall be fixed
by the Board or the Committee, as the case may be; provided, however that if the
Board or the Committee grants an Option or Options exercisable in more than one
installment, and if the employment or service of an Optionee holding such Option
is terminated, the Option shall be exercisable as to such number of shares as to
which the Optionee had the right to exercise on the date of termination of
employment or service.
(b) No shares of Common Stock shall be delivered pursuant to the
exercise of any Option, in whole or in part, until qualified for delivery under
such laws and regulations as may be deemed by the Board or the Committee, as the
case may be, to be applicable thereto and until payment in full of the exercise
price thereof is received by the Company.
(c) When exercising Options in whole or in part, Optionees may
pay the exercise price in cash, in shares of Common Stock or by means of any
other consideration acceptable to the Board or the Committee. For purposes of
valuing any share of Common Stock used to exercise any Option in whole or in
part, such shares shall be valued as provided in Section 6(b). Shares of Common
Stock used to exercise any Option granted hereunder shall be free and clear of
all liens, pledges, claims, encumbrances and restrictions of any kind or nature
whatsoever, other than restrictions imposed upon such shares pursuant to the
provisions of the Securities Act of 1933, as amended.
(d) No Optionee, or legal representative, legatee, or
distributee of an optionee, shall be deemed to be a holder of any shares subject
to any Option granted hereunder unless and until the certificate or certificates
therefor have been issued and delivered.
8. NON-TRANSFERABILITY OF OPTIONS
An Option granted under the Plan may not be transferred except
by will or the laws of descent and distribution, and during the lifetime of the
person to whom granted, may be exercised only by such person.
9. DEATH, RETIREMENT AND TERMINATION OF EMPLOYMENT
Any Option, the period of which has not theretofore expired,
shall terminate at the time of death of the person to whom granted or at the
time of retirement or termination for any reason of such person's employment or
service with the Company, and no share of Common Stock may thereafter be
delivered pursuant to such Option, except that:
(a) upon retirement or termination of employment or service
(other than by death, disability, voluntary termination or termination for
cause), an Optionee may within two (2) months after the date of such retirement
or termination, purchase all or part of the shares with respect to which such
Optionee is entitled to exercise such Option, in accordance with the provisions
of Section 7 hereof, but in no event after the expiration of the term of the
Option ("cause" for purposes of this Plan shall mean (i) willful disregard of
duties, (ii) habitual absence from employment or service, (iii) intoxication, or
(iv) dishonesty);
(b) upon the "disability" of any Optionee, the Optionee may
within six (6) months after the date of such termination of employment, but in
no event after the expiration of the term of the Option, purchase all or part of
the shares with respect to which such Optionee is entitled to exercise such
Option, in accordance with the provisions of
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Section 7 hereof. For purposes of the Plan the term "disability" shall mean a
physical or mental disability as defined in Section 105 of the Internal Revenue
Code of 1986, as amended; and
(c) upon the death of any Optionee while in active employment or
service, the person or persons to whom such Optionee's rights under the Option
are transferred by will or the laws of descent and distribution may, within six
(6) months after the date of such Optioneee's death, but in no event after the
expiration of the term of the Option, purchase all or any part of the shares
with respect to which the Option was exercisable on the date of death in
accordance with the provisions of Section 7 hereof.
10. AMENDMENTS AND DISCONTINUANCE
The Board may amend, suspend, or discontinue the Plan, but may
not, without the prior approval of Vasomedical's stockholders, make any
amendment that would (i) make any material change in the class of eligible
persons as defined in the Plan, (ii) increase the total number of shares for
which Options may be granted under the Plan, (iii) extend the term of the Plan
or the maximum option period, (iv) decrease the minimum option price, or (v)
permit adjustments in the number and option price of shares granted under the
Plan except as permitted by the provisions of Paragraph (c) of Section 3 above.
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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 25,000 shares of the Corporation's Common
Stock, $.001 par value per share, in connection with the Corporation's 1992
Non-Qualified 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 25,000 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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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
