<TABLE>
As filed with the Securities and Exchange Commission on October 27, 1995.
Registration No. 33-___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
______________________________
MEDCROSS, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 59-2291344
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3227 Bennet Street North
St. Petersburg, Florida 33713
(813) 521-1793
(Address, including zip code, and telephone number, including area code, of registrant's
principal executive offices)
Consulting Agreement Between Medcross, Inc.
and Timothy R. Barnes
(Full Title of Plan)
______________________________
Henry Y.L. Toh
Medcross, Inc.
3227 Bennet Street North
St. Petersburg, Florida 33713
(813) 521-1793
(Name, address, including zip code, and telephone number, including area code, of agent
for service)
______________________________
Copies to:
Ralph V. De Martino, Esq.
De Martino Finkelstein Rosen & Virga
1818 N Street, N.W.
Washington, D.C. 20036-2492
(202) 659-0494
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box:
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Aggregate Price Aggregate Offering Registration
Per Share Price Fee
Common Stock,
$.007 par value 36,858 <F1> $1.00 <F2> $36,858 $100.00 <F3>
Common Stock,
$.007 par value <F4> $ ----- $ ---- $<F5>
Total $100.00
<FN>
<F1>
(2) Represents the maximum number of shares which may be issued pursuant
to the Series CS Warrant to Purchase Common Shares of Medcross, Inc.
(the "Warrant") issued in accordance with the Consulting Agreement
between the Company and Timothy R. Barnes (the "Plan"). In addition
to such shares, this Registration Statement covers such additional
number of shares as may be required by reason of the operation of the
antidilution provisions of such Plan.
<F2>
(3) Represents the exercise price per share of the shares that may be
issued under the Warrant.
<F3>
(4) Calculated in accordance with Rule 457 on the basis of the average of
the bid and ask prices for the Common Stock within five days prior to
filing of this registration statement.
<F4>
(5) Represents the same shares described on the line above, which may be
resold by the holder of the Warrant.
<F5>
(6) Pursuant to Rule 457(h)(3), no additional fee is payable since these
shares, which may be offered for resale, are the same shares being
registered hereby upon their initial issuance pursuant to the Plan.<PAGE>
PART I
</FN>
<PAGE>
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
This Registration Statement (the "Registration Statement")
relates to the issuance of shares of Common Stock, par value
$.007 per share (the "Common Stock") of Medcross, Inc. (the
"Company") to Timothy R. Barnes (the "Consultant") upon the
exercise of the Series CS Warrant to Purchase Common Shares of
Medcross, Inc. (the "Warrant") issued pursuant to the terms of a
Consulting Agreement, dated as of August 6, 1995 (the "Consulting
Agreement") by and between the Company and the Consultant (the
"Plan"). Pursuant to the terms of the Consulting Agreement, the
Company is obligated to issue to the Consultant the Warrant to
purchase an aggregate of 36,858 shares of Common Stock for a
period of two years at an exercise price of $1.00 per share, in
exchange for the Consultant's providing certain consulting
services as requested by the President of the Company from time
to time. The initial term of the Consulting Agreement is six
months subject to extension by the written agreement of the
parties.
The foregoing information relating to the provisions of the
Plan is intended to provide a summary thereof and does not
purport to be a complete description of the Plan. Such summary
should be read in conjunction with the Consulting Agreement which
has been filed as Exhibit 10(c) and is incorporated herein by
reference in its entirety.
Item 2. Registrant Information and Employee Plan Annual
Information
The Consultant has been provided with copies of the
documents incorporated herein by reference in Part II, Item 3,
hereof, and has been advised by the Company in writing that such
documents will continue to be available, without charge, to the
Consultant upon the Consultant's written request to the Company
at its offices at 3227 Bennet Street North, St. Petersburg,
Florida 33713 (Phone: 813-521-1793).
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents, and any amendments thereto, filed
by Medcross, Inc. (the "Company") with the Securities and
Exchange Commission are incorporated by reference in this
Registration Statement and shall be deemed to be a part hereof
from the date of filing such documents.
(a) The Company's annual report on Form 10-KSB for the year
ended December 31, 1994 (File No. 0-17973);
(b) The Company's quarterly report on Form 10-QSB for the
quarter ended June 30, 1995 (File No. 0-17973);
(c) The description of the Common Stock of the Company
contained in Item 11 of the Company's Registration
Statement on Form 10 filed on September 16, 1989, as
amended (File No. 0-17973);
(d) All reports filed by the Company pursuant to Sections
13(a), 13(c) and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to
the filing of a post-effective amendment which
indicates that all of the securities offered hereby
have been sold or which deregisters all securities then
remaining unsold.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Officers and Directors.
Section 607.0850 of the Florida Business Corporation Act
empowers a corporation to indemnify any person who was or is a
party to a proceeding by reason of the fact that he was or is an
officer, director, employee or agent of the corporation against
liability incurred in connection with such proceeding. Such
person must have acted in good faith and in a manner reasonably
believed to be in or not opposed to, the best interests of the
corporation. With respect to any criminal proceeding, such
person must have had no reasonable cause to believe his conduct
<PAGE>
was unlawful. Any such indemnification may only be made upon a
determination by the corporation that such indemnification is
proper because the person met the applicable standard of conduct.
The Florida Business Corporation Act provides further that
the indemnification permitted thereunder is not exclusive;
provided, however, indemnification is not permitted to be made on
behalf of any such person if a judgment or final adjudication
establishes (i) a violation of the criminal law unless such
person had reasonable cause to believe his conduct was lawful or
no reasonable cause to believe his conduct was unlawful; (ii)
such person derived an improper personal benefit from the
transaction; (iii) as to any director such proceeding arose from
an unlawful distribution under Section 607.0834; or (iv) willful
misconduct or a conscious disregard for the best interests of the
corporation in a proceeding by the corporation or a shareholder.
The Company's By-Laws provide that the Company shall
indemnify any such person to the fullest extent provided by law
and empowers the Company to purchase and maintain insurance on
behalf of any such person.
The Company previously entered into indemnification
agreements in 1988 with certain officers and directors of the
Company for indemnification against expenses (including
attorneys' fees, through all proceedings, trials, and appeals),
judgments, and amounts paid in settlement actually and reasonably
incurred in connection with any threatened, pending, or
contemplated action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, arising from any
actual or alleged breach of duty, neglect, error, or other action
taken or omitted, solely in the capacity as an officer and/or a
director of the Company; provided, that no indemnification will
be made in respect of any acts or omissions (a) involving gross
negligence or willful misconduct, (b) involving libel or slander,
or (c) based upon or attributable to gaining, directly or
indirectly, any profit or advantage to which he was not legally
entitled.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE
SECURITIES ACT MAY BE PERMITTED TO DIRECTORS, OFFICERS OR PERSONS
CONTROLLING THE COMPANY PURSUANT TO THE FOREGOING PROVISIONS, THE
COMPANY HAS BEEN INFORMED THAT IN THE OPINION OF THE SECURITIES
AND EXCHANGE COMMISSION, SUCH INDEMNIFICATION IS AGAINST PUBLIC
POLICY AS EXPRESSED IN THE SECURITIES ACT AND IS THEREFORE
UNENFORCEABLE.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
3(a) Amendment to the Articles of Incorporation dated March
21, 1994. <F1>
<PAGE>
3(b) Composite copy of the Amended and Restated Articles of
Incorporation incorporating all amendments. <F1>
3(c) By-Laws of the Company, as amended. <F2>
4(a) Specimen Common Stock Certificate. <F3>
4(b) Series CS Warrant to Purchase Common Shares of Medcross, Inc.
5(a) Opinion regarding legality.
9(a) Shareholder's Agreement dated February 19, 1992 among
Four M International, Inc., Walnut Capital Corp., Windy
City, Inc., and Canadian Imperial Bank of Commerce
Trust Company (Bahamas) Limited. <F4>
10(a) Stock Purchase Agreement, dated February 9, 1992,
between Medcross, Inc., Four M International
Limited, Walnut Capital Corp., Windy City, Inc.,
and Canadian Imperial Bank of Commerce Trust
Company. <F5>
10(b) First Amendment to Stock Purchase Agreement, dated
May 21, 1992, between Medcross, Inc., Four M
International, Inc., Walnut Capital Corp., Windy
City, Inc., and Canadian Imperial Bank of Commerce
Trust Company (Bahamas) Limited, as trustee. <F6>
10(c) Consulting Agreement, dated as of August 6, 1995,
between the Company and Timothy R. Barnes.
23(a) Consent of Coopers & Lybrand L.L.P.
23(c) Consent of Counsel included in Exhibit 5(a).
<FN>
<F1>
1/ Incorporated by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1993 (File No. 0-
17973).
<F2>
2/ Incorporated by reference to the Company's Quarterly Report
on Form 10-Q for the quarterly period ended September 30,
1993 (File Number 0-17973).
<F3>
3/ Incorporated by reference to the Company's registration
statement on Form S-18, as amended, (File Number 33-27978-
A).
<F4>
4/ Incorporated by reference to the Company's Current Report on
Form 8-K dated March 30, 1992 (File Number 0-17973).
<F5>
5/ Incorporated by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1991 (File Number
0-17973).
<F6>
6/ Incorporated by reference to the Company's Current Report on
Form 8-K dated May 21, 1992 (File Number 0-17973).
</FN>
<PAGE>
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
A. Rule 415 Offering.
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement to include any additional or changed information with
respect to the plan of distribution;
2. That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
B. Subsequent Exchange Act Documents Incorporated by Reference:
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of
the issuer's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act, and each filing of the Plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. To Transmit Certain Material.
1. The undersigned Registrant hereby undertakes to deliver or
cause to be delivered with the prospectus to each Plan participant to
whom the prospectus is sent or given a copy of the Registrant's annual
report to stockholders for its last fiscal year, unless such Plan
participant otherwise has received a copy of such report, in which
case the Registrant shall state in the prospectus that it will
promptly furnish, without charge, a copy of such report on written
request of the Plan participant. If the last fiscal year of the
Registrant has ended within 120 days prior to the use of the
prospectus, the annual report of the Registrant for the preceding
fiscal year may be so delivered, but within such 120 day period the
annual report for the last fiscal year will be furnished to each such
Plan participant.
2. The undersigned Registrant hereby undertakes to transmit or
cause to be transmitted to all participants in the Plan who do not
otherwise receive such material as stockholders of the Registrant, at
the time and in the manner such material is sent to its stockholders,
copies of all reports, proxy statements and other communications
distributed to its stockholders generally.
<PAGE>
D. Indemnification.
1. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the
opinion of the 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 Company of expenses incurred or paid by
a director, officer, or controlling person of the Company 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 Company will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Petersburg,
State of Florida, on October 26, 1995.
MEDCROSS, INC.
By: /s/ Henry Y. L. Toh
Henry Y. L. Toh, President
POWER OF ATTORNEY
We, the undersigned officers and directors of the Company, hereby
severally constitute and appoint Henry Y. L. Toh our true and lawful
attorney-in-fact and agent, with full power to him 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 attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite
or necessary to be done in and about the premises, as fully to all
intents and purposes as we might or could do in person, ratifying and
conforming all that said attorney-in-fact and agent or any of them, or
his substitute or substitutes, may unlawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of October 26, 1995.
/s/ Po Shin Wong Chairman of the Board of Directors
Po Shin Wong
/s/ Henry Y. L. Toh Vice Chairman of the Board, President and
Henry Y. L. Toh Acting Chief Financial Officer
/s/ Joel S. Kanter Director
Joel S. Kanter
/s/ R. Huston Babcock, M.D. Director
R. Huston Babcock, M.D.
<S> <S>
</TABLE>
<TABLE>
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER SAID ACT OR (ii) AN EXEMPTION THEREFROM UNDER SAID
ACT.
Void after 5:00 p.m. (New York, New York time) on
August 5, 1997 as provided herein.
Issue Date: as of August 6, 1995 No. CS-1
SERIES CS WARRANT
TO PURCHASE COMMON SHARES OF
MEDCROSS, INC.
Medcross, Inc. (the "Company), a Florida corporation, hereby
certifies that for good and valuable consideration as described in
that certain agreement dated as of August 6, 1995 and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Company, Timothy R. Barnes is entitled, subject to
the terms set forth in this warrant (the "Warrant"), at any time or
from time to time, but not later than August 5, 1997, to purchase from
the Company thirty-six thousand eight hundred fifty-eight (36,858)
shares of common stock of the Company (the "Shares") at the purchase
price of one dollar ($1.00) per Share (such purchase price per Share,
as adjusted from time to time pursuant to the provisions set forth
below, being referred to herein as the "Exercise Price"). The Issue
Date shall be the date set forth above. This Warrant and all rights
hereunder, to the extent such rights shall not have been exercised,
shall terminate and become null and void to the extent the Holder
fails to exercise any portion of this Warrant prior to 5:00 p.m., New
York, New York time, on the date which is two years from the Issue
Date.
1. Restrictions on Transfer of Shares
The Shares underlying this Warrant are restricted securities and
have not been registered under the Securities Act of 1933, as amended
(the "Act"), and may not be sold, transferred, pledged, hypothecated
or otherwise disposed of in the absence of (i) an effective
registration statement for such securities under said Act or (ii) an
unqualified reasoned opinion of counsel reasonably satisfactory to the
Company opining that the proposed transaction is exempt from
registration under said Act.
2. Exercise of Warrant
(a) This Warrant shall be exercisable in whole or in part at any
time prior to its expiration.
(b) All or any part of this Warrant may be exercised by the
Holder of this Warrant (the "Holder") by surrendering it, with the
form of subscription annexed hereto duly executed by such Holder, to
the Company at its principal executive office or to the Company's
<PAGE>
transfer agent accompanied by payment in full, in cash or by certified
or official bank check, of the Exercise Price payable in respect of
all or part of the Warrant being exercised. If less than the entire
Warrant is exercised, the Company shall, upon such exercise, execute
and deliver to the Holder hereof a new Warrant in the same form as
this Warrant evidencing the right to purchase Shares hereunder to the
extent not exercised. This Warrant shall be deemed to have been
exercised prior to the close of business on the date this Warrant is
surrendered and payment is made in accordance with the foregoing
provisions.
(c) The Company shall, at the time of any exercise of all or
part of this Warrant, upon the request of the Holder hereof,
acknowledge in writing its continuing obligation to afford to such
Holder any rights to which such Holder shall continue to be entitled
after such exercise in accordance with the provisions of this Warrant;
provided that if the Holder of this Warrant shall fail to make any
such request, such failure shall not affect the continuing obligations
of the Company to afford to such Holder any such rights.
(d) The Shares which may be delivered upon the exercise of this
Warrant shall, upon payment therefor as provided herein and delivery
thereof, be fully paid and nonassessable and free from all taxes,
liens and charges with respect thereto.
(e) The Company shall cooperate with the Holder in an exercise
pursuant to which all or part of the Shares will be sold
simultaneously with the exercise of this Warrant with the broker-
dealer participating in such sale being irrevocably instructed to
remit the proceeds of the exercise to the Company upon settlement of
the sale of the underlying Shares.
3. Fractional Shares
No fractional securities or scrip representing fractional
securities shall be issued upon the exercise of this Warrant. With
respect to any fraction of a security called for upon any such
exercise hereof, the Company shall pay to the Holder an amount in cash
equal to such fraction multiplied by the current market value of such
security, determined as follows:
(a) If the security is listed on a national securities exchange
or admitted to unlisted trading privileges on such exchange, the
current value shall be the last reported sale price of the security on
such exchange on the last business day prior to the date of exercise
of this Warrant, or if no such sale is made on such day, the average
closing bid and asked prices for such day on such exchange; or
(b) If the security is not listed or admitted to unlisted
trading privileges, the current value shall be the last reported sale
price on the National Association of Securities Dealers Automated
Quotation ("NASDAQ") National Market System ("NASDAQ/NMS") or the mean
between the closing bid and asked quotations reported by the NASDAQ
System or the NASD OTC Bulletin Board (or, if not so quoted, by the
National Quotation Bureau, Inc.) on the last business day prior to the
date of the exercise of this Warrant; or
<PAGE>
(c) If the security is not so listed or admitted to unlisted
trading privileges and prices are not reported on NASDAQ, or the NASD
OTC Bulletin Board (or by the National Quotation Bureau, Inc.), an
amount, not less than the book value, determined in such reasonable
manner as may be prescribed by the Board of Directors of the Company.
4. Exchange, Assignment or Loss of Warrant
This Warrant is exchangeable, without expense, at the option of
the Holder, upon presentation and surrender hereof to the transfer
agent for other Warrants of different denominations entitling the
holder thereof to purchase in the aggregate the same number of
securities purchasable hereunder. This Warrant and any rights related
thereto shall not be transferable or assigned by the Holder other than
by will or by the laws of descent and distribution. This Warrant may
be divided or combined with other Warrants that carry the same rights
upon presentation hereof to the office of the Company's transfer agent
together with a written notice specifying the names and denomination
in which new Warrants are to be issued and signed by the Holder
hereof. The term "Warrant" as used herein includes any new Warrants
issued in substitution for or replacement of this Warrant, or into
which this Warrant may be divided or exchanged. Upon receipt by the
Company of evidence satisfactory to it of the loss, theft, destruction
or mutilation of this Warrant, and in the case of loss, theft or
destruction, of reasonably satisfactory indemnification including a
surety bond, and upon surrender and cancellation of this Warrant, if
mutilated, the Company's transfer agent will cause to be executed and
delivered a new Warrant of like tenor and date. Any such new Warrant
executed and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not this Warrant so
lost, stolen, destroyed or mutilated shall be at any time enforceable
by anyone.
5. Rights of the Holder
The Holder of this Warrant shall not, by virtue hereof, be
entitled to any voting or other rights of a stockholder in the
Company, either at law or equity, and the rights of the Holder are
limited to those expressed in this Warrant.
6. Registration Rights
The shares of Common Stock underlying this Warrant shall be
registered by the Company with the Securities and Exchange Commission
on Form S-8, at the Company's sole expense, as soon after issuance of
this Warrant as may be practicable, but not less than six months from
the date of grant hereof.
7. Adjustments
(a) The number of securities purchasable on exercise of this
Warrant and the purchase prices therefor shall be subject to
adjustment from time to time in the event that the Company shall: (1)
pay a dividend in, or make a distribution of, shares of Common Stock,
<PAGE>
(2) subdivide its outstanding shares of Common Stock into a greater
number of shares, (3) combine its outstanding shares of Common Stock
into a smaller number of shares or (4) spin-off a subsidiary by
distributing, as a dividend or otherwise, shares of the subsidiary to
its stockholders. In any such case, the total number of Shares and
the number of shares or other units of such total securities
purchasable on exercise of this Warrant immediately prior thereto
shall be adjusted so that the Holder shall be entitled to receive, at
the same aggregate exercise price, the number of Shares and the number
of shares or other units of such securities that the Holder would have
owned or would have been entitled to receive immediately following the
occurrence of any of the events described above had this Warrant been
exercised in full immediately prior to the occurrence (or applicable
record date) of such event. An adjustment made pursuant to this
section 6(a) shall, in the case of a stock dividend or distribution,
be made as of the record date and, in the case of a subdivision or
combination, be made as of the effective date thereof. If, as a
result of any adjustment pursuant to this section 6(a), the Holder
shall become entitled to receive shares of two or more classes or
series of securities of the Company, the Board of Directors of the
Company shall equitably determine the allocation of the adjusted
exercise price between or among shares or other units of such classes
or series and shall notify the Holder of such allocation.
(b) In the event of any reorganization or recapitalization of
the Company or in the event the Company consolidates with or merges
into or with another entity or transfers all or substantially all of
its assets to another entity, then and in each such event, the Holder,
on exercise of this Warrant as provided herein, at any time after the
consummation of such reorganization, recapitalization, consolidation,
merger or transfer, shall be entitled, and the documents executed to
effectuate such event shall so provide, to receive the stock or other
securities or property to which the Holder would have been entitled
upon such consummation if the Holder had exercised this Warrant
immediately prior thereto. In such case, the terms of this Warrant
shall survive the consummation of any such reorganization,
recapitalization, consolidation, merger or transfer and shall be
applicable to the shares of stock or other securities or property
receivable on the exercise of this Warrant after such consummation.
(c) Whenever a reference is made in this Section 6 to the issue
or sale of shares of Common Stock, the term "Common Stock" shall mean
the Common Stock of the Company of the class authorized as of the date
hereof and any other class of stock ranking on a parity with such
Common Stock.
(d) Whenever the number of securities purchasable upon exercise
of this Warrant or the exercise prices thereof shall be adjusted as
required herein, the Company shall forthwith file such information
with its Secretary at its principal office, and with the price
determined as herein provided and setting forth in detail the facts
requiring such adjustment. Each such officer's certificate shall be
made available at all reasonable times for inspection by the Holder
and the Company shall, forthwith after such adjustment, deliver a copy
of such certificate to the Holder.
<PAGE>
(e) The Company (1) will not cause the par value of any
securities receivable on exercise of this Warrant to be in excess of
the amount payable therefor on such exercise, and (2) will take all
action as may be necessary or appropriate so that the Company may
validly and legally issue fully paid and non-assessable shares (or
other securities or property deliverable hereunder) upon the exercise
of this Warrant. This Warrant shall bind the successors and assigns
of the Company.
(f) Notwithstanding anything in this Section 6 to the contrary,
no adjustment in the number of securities purchasable on exercise of
this Warrant shall be made with respect to dilution which would result
from the issuance of Common Stock pursuant to the exercise of Warrants
which have heretofore or may hereafter be granted pursuant to any
employee incentive plan of the Company, whether qualified or non-
qualified.
7. Reservation of Shares
The Company shall at all times reserve, for the purpose of
issuance on exercise of this Warrant, such number of shares of Common
Stock or such class or classes of capital stock or other securities as
shall from time to time be sufficient to comply with this Warrant, and
the Company shall take such corporate action as may in the opinion of
its counsel be necessary to increase its authorized and unissued
shares of Common Stock or such other class or classes of capital stock
or other securities in such number as shall be sufficient for such
purpose.
8. Approvals
The Company shall from time to time use its best efforts to
obtain and continue in effect any and all permits, consents,
registrations, qualifications and approvals of governmental agencies
and authorities and to make all filings under applicable securities
laws that may be or become necessary in connection with the issuance,
sale, transfer and delivery of this Warrant and the issuance of
securities on any exercise hereof. Nothing contained in this Section
8 shall in any way expand, alter or limit the rights of the Holder set
forth in Section 1 hereof.
9. Notices
All demands, notices, consents and other communications to be
given hereunder shall be in writing and shall be deemed duly given
when delivered personally or five days after being mailed by first
class mail, postage prepaid, properly addressed, as follows:
(a) if to the Company, to:
Medcross, Inc.
3227 Bennet Street North
St. Petersburg, Florida 33713
Attention: Henry Y.L. Toh, President
<PAGE>
with a copy to:
De Martino Finkelstein Rosen & Virga
1818 N Street, N.W., Suite 400
Washington, D.C. 20036
Attention: Ralph V. De Martino, Esquire
(b) if to the Holder, to:
Timothy R. Barnes
2930 Clubhouse Drive West
Clearwater, Florida 34621
The Company and the Holder may change such address at any time or
times by notice hereunder to the other.
10. Amendments; Waivers; Terminations; Governing Law; Headings; Entire Agreement
This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by
the party against which enforcement of such change, waiver, discharge
or termination is sought. This Warrant shall be governed by and
construed and interpreted in accordance with the laws of the State of
Florida. The headings in this Warrant are for convenience of
reference only and are not part of this Warrant. This Warrant is
intended to and does contain and embody all of the understandings and
agreements, both written and oral, of the parties hereto with respect
to the subject matter of this Warrant, and there exists no oral
agreement or understanding, express or implied, whereby the absolute,
final and unconditional character and nature of this Warrant shall be
in any way invalidated, empowered or affected. A modification or
waiver of any of the terms, conditions or provisions of this Warrant
shall be effective only if made in writing and executed with the same
formality of this Warrant.
IN WITNESS WHEREOF, Medcross, Inc. has duly caused this Warrant
to be signed in its name and on its behalf by its duly authorized
officers, as of the date first set forth above.
MEDCROSS, INC.
By: /s/ Henry Y. L. Toh
ATTEST: Henry Y.L. Toh, President
/s/ Stephanie E. Giallourakis
Secretary
<PAGE>
Annex to Warrant
FORM OF ASSIGNMENT
(To be executed upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers to the right
represented by the within Warrant, together with all rights, title and
interest therein, and does hereby irrevocably constitute and appoint
attorney to transfer such
Warrant on the Warrant register of the within named Company, with full
power of substitution.
DATED: , 199 .
Signature:
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
Signature Guaranteed:
<PAGE>
Annex to Warrant
FORM OF SUBSCRIPTION
(To be completed and signed only upon an exercise of the Warrant
in whole or in part)
TO: American Stock Transfer & Trust Co.
as transfer agent for Medcross, Inc.
The undersigned, the Holder of the attached Warrant, hereby
irrevocably elects to exercise the purchase right represented by the
Warrant for, and to purchase thereunder, Shares (as
such terms are defined in the Warrant dated as of August 6, 1995,
from Medcross, Inc. to Timothy R. Barnes) (or other securities or
property), and herewith makes payment of $ therefor in
cash or by certified or official bank check. The undersigned hereby
requests that the Certificate(s) for such securities be issued in the
name(s) and delivered to the address(es) as follows:
Name:
Address:
Social Security Number:
Deliver to:
Address:
If the foregoing Subscription evidences an exercise of the
Warrant to purchase fewer than all of the Shares (or other securities
or property) to which the undersigned is entitled under such Warrant,
please issue a new Warrant, of like tenor, for the remaining portion
of the Warrant (or other securities or property) in the name(s), and
deliver the same to the address(es), as follows:
Name:
Address:
DATED: , 199 .
(Name of Holder)
(Signature of Holder or Authorized Signatory)
Signature Guaranteed:
(Social Security or
Taxpayer Identification
Number of Holder)
<S> <S>
</TABLE>
<TABLE>
DE MARTINO FINKELSTEIN ROSEN & VIRGA
A PARTNERSHIP CONSISTING OF PROFESSIONAL CORPORATIONS
1818 N STREET, N.W., SUITE 400
WASHINGTON, D.C. 20036-2492
___
TELEPHONE (202) 659-0494
TELECOPIER (202) 659-1290
VICTORIA A. BAYLIN*
KATHLEEN L. CERVENY
RALPH V. DE MARTINO
STEVEN R. FINKELSTEIN*
KEITH H. PETERSON*
JEFFREY S. ROSEN
GERARD A. VIRGA*
*NOT ADMITTED TO DISTRICT OF COLUMBIA BAR<PAGE>
NEW YORK OFFICE
_____
90 BROAD STREET, SUITE 1700
NEW YORK, NEW YORK 10004-2205
TELEPHONE (212) 363-2500
TELECOPIER (212) 363-2723
October 26, 1995
Board of Directors
Medcross, Inc.
3227 Bennett Street North
St. Petersburg, FL 33713
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Medcross, Inc., a Florida corporation
(the "Company"), in connection with the preparation and filing by the
Company of a registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, relating to
the issuance by the Company of up to 36,858 shares of Common Stock,
$.007 par value (the "Common Stock") upon exercise of that certain
Series CS Warrant to purchase Common Shares (the "Warrant") issued to
Timothy R. Barnes (the "Consultant") pursuant to the terms of a certain
Consulting Agreement dated as of August 6, 1995, by and between the
Company and the Consultant (the "Consulting Agreement").
We have examined the Consulting Agreement, the Articles of
Incorporation, as amended, and the By-Laws of the Company, the minutes
of the various meetings and consents of the Company's Board of
Directors, originals or copies of such records of the Company,
agreements, certificates of public officials, certificates of officers
and representatives of the Company and others, and such other
documents, certificates, records, authorizations, proceedings, statutes
and judicial decisions as we have deemed necessary to form the basis of
the opinion expressed below. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to originals of all
documents submitted to us as copies thereof. As to various questions
of fact material to such opinion, we have relied upon statements and
certificates of officers and representatives of the Company and others.
We are not herein passing upon and do not assume responsibility for the
accuracy, completeness or fairness of the statements or other
provisions contained in any of the foregoing materials.
<PAGE>
DE MARTINO FINKELSTEIN ROSEN & VIRGA
Board of Directors
Medcross, Inc.
October 26, 1995
Page 2
In connection with the preparation of this opinion, we have reviewed
such questions of law as we have deemed necessary. We do not herein
give any opinion with respect to the laws of any jurisdiction other
than the general laws of the United States of America, the federal
securities laws and the laws of the District of Columbia. Except as
otherwise provided herein, we have assumed that, insofar as the laws of
another jurisdiction may be applicable to any matters to which this
opinion may relate, such laws are identical to the laws of the District
of Columbia, however, we express no opinion as to the extent to which
the laws of the District of Columbia or such other jurisdiction may
apply.
Based upon the foregoing, we are of the opinion that the 36,858
shares of Common Stock issuable upon exercise of the Warrant to the
Consultant pursuant to the terms of the Warrant and which shares are
subject of the Registration Statement have been duly authorized and
when such shares of Common Stock are paid for and issued in accordance
with the terms of the Warrant such shares will be duly authorized,
fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Yours very truly,
/s/ De Martino Finkelstein Rosen & Virga
De Martino Finkelstein Rosen & Virga
<S> <S>
</TABLE>
<TABLE>
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated as of August 6,
1995 between Medcross, Inc., a Florida corporation (the "Company"), and
Timothy R. Barnes, an individual residing in Clearwater, Florida
("Consultant").
W I T N E S S E T H:
WHEREAS, in light of the expertise and experience of Consultant,
the Company desires to engage Consultant to provide the Company with
consulting services and Consultant is willing and able to provide such
services; and
WHEREAS, the Company and Consultant desire to set forth in a
formal written agreement the terms and conditions upon which Consultant
shall provide services to the Company;
NOW THEREFORE in consideration of the mutual benefits to be
derived from this Agreement, the Company and Consultant hereby agree as
follows:
1. Appointment; Consulting Services.
(a) The Company hereby retains Consultant to render those
consulting services contemplated by this Agreement until February 6,
1996. The term (the "Term") of this Agreement shall commence on the
date hereof and shall terminate on the date specified hereinabove.
Notwithstanding any other provision of this Section 1(a), the term of
this Agreement may be extended beyond the Term by the written agreement
of the parties.
(b) During the Term hereof, Consultant agrees to render to
the Company consulting advice as shall be reasonably requested from
time to time by the President of the Company in connection with the
business conducted or to be conducted by the Company. In performing
services hereunder, Consultant shall report to the Company's President
and shall perform such services from Consultant's residence in Tampa,
Florida or such other location as may be agreed to by the parties.
Consultant shall be required to devote up to five hours per week for
the first three months and three hours per week thereafter to the
performance of services hereunder. During the Term hereof, Consultant
shall be an independent contractor of the Company and not an employee.
During the Term hereof, Consultant shall have no power or authority to
represent or bind the Company unless specifically authorized in writing
by the President of the Company.
<PAGE>
2. Payments to Consultant During the Term.
The Company agrees to pay to Consultant during the Term and any
extension thereof the following:
(a) In consideration of Consultant's performance of the
consulting services described herein during the Term hereof, the
Company agrees to issue to the Consultant warrants (the "Consultant's
Warrants") to purchase thirty-six thousand eight hundred fifty-eight
(36,858) shares of the Company's Common Stock at a purchase price equal
to the fair market value of the Common Stock on the date of grant.
Such options shall be promptly issued following the execution of this
Agreement and the delivery to the Company of all outstanding options
heretofore granted to the Consultant, whether or not the same are
vested or unvested, for cancellation together with any and all other
documents, agreements or acknowledgements reasonably requested by the
Company to evidence the cancellation of such options. The Consultant's
options shall be fully vested and exercisable any time from date of
grant up to two years thereafter. The shares of Common Stock
underlying the Consultant's Warrants shall be registered by the Company
with the Securities and Exchange Commission on Form S-8, at the
Company's sole expense, as soon after issuance of the Consultant's
Option as may be practicable, but not less than six months from the
date of grant.
(b) The Company shall reimburse Consultant for all
reasonable out-of-pocket expenses directly incurred by Consultant in
connection with Consultant's rendering of the consulting services set
forth in this Agreement, provided, however, that the incurrence of such
expenses in an amount greater than $100.00 must be approved in writing
in advance by the President of the Company. Any such reimbursement
hereunder shall be made by the Company within 14 days after submission
by Consultant of supporting documentation as reasonably required by the
Company.
3. Non-Competition.
During the Term hereof and for six months thereafter, Consultant
represents, warrants and covenants that he shall not, anywhere within
the greater Tampa Bay, Florida metropolitan area, the United States of
America or anywhere else in which the Company (or any of its
subsidiaries) is then doing business, engage in activities in direct
competition with the business of the Company or any subsidiary, whether
as an individual, investor, partner, joint venturer, consultant,
employee, agent, salesman, officer, or director or otherwise.
Investments in less than five percent of the outstanding securities of
any class of a publicly-traded company shall not be prohibited by this
Section 3. The provisions of this Section 3 are subject to the
provisions of Section 9 of this Agreement.
4. Confidential Information.
The parties hereto recognize that a major need of the Company is
to preserve its specialized knowledge, trade secrets, and confidential
information. The strength and good will of the Company is derived from
the specialized knowledge, trade secrets, and confidential information
generated from experience with the activities undertaken by the Company
<PAGE>
and its subsidiaries. The disclosure of this information and knowledge
to competitors would be beneficial to them and detrimental to the
Company, as would the disclosure of information about the marketing
practices, pricing practices, costs, profit margins, analytical
techniques, and similar items of the Company and its subsidiaries. By
reason of his position with the Company, Consultant has or will have
access to, and has obtained or will obtain, specialized knowledge,
trade secrets and confidential information about the Company's
operations and the operations of its subsidiaries. Therefore, subject
to the provisions of Section 8 hereof, Consultant hereby represents,
warrants and covenants as follows, recognizing that the Company is
relying on the same in entering into this Agreement:
During the Term hereof and for six months following the last day
of the Term hereof, except for the exclusive benefit of the Company,
Consultant will not, directly or indirectly, use, disclose to others,
or publish or otherwise make available to any other party any
inventions or any confidential business information about the affairs
of the Company and its subsidiaries, including but not limited to
confidential information concerning their products, methods, analytical
techniques, technical information, customer information, employee
information, and other confidential information acquired by him in the
course of his past or future services for the Company. Consultant
agrees to hold as the Company's property all memoranda, books, papers,
letters, formulas and other data, and all copies thereof and therefrom,
in any way relating to the Company's or its subsidiaries' businesses
and affairs, whether made by him or otherwise coming into his
possession, and on termination of his employment, or on demand of the
Company, at any time, to deliver the same to the Company within twenty
four (24) hours of such termination or demand.
5. Reasonableness of Restrictions; Specific Enforcement.
Consultant hereby agrees that the restrictions in this Agreement,
including without limitation those relating to the duration of the
provisions thereof and the territory to which such restrictions apply,
are necessary and fundamental to the protection of the business and
operation of the Company, its affiliates, subsidiaries and divisions
thereof, and are reasonable and valid. Each party acknowledges and
agrees that the Company would suffer irreparable damage if any of the
provisions of Section 3 or Section 4 were not performed by Consultant
in accordance with their specific terms or were otherwise breached.
Accordingly, the Company will be entitled to an injunction or
injunctions to prevent breaches of such provisions and to enforce
specifically such provisions in any court of competent jurisdiction
without the necessity of furnishing a bond of any type, and Consultant
will not oppose the granting of such relief on the grounds that an
adequate remedy at law exists.
6. Proprietary Information or Trade Secrets of Others.
Consultant represents, warrants and covenants that he will not
disclose to the Company, or use, or induce the Company to use, any
proprietary information or trade secrets of others and represents and
warrants that he has returned all property and confidential information
belonging to the Company. Consultant further represents, warrants and
covenants that he is not party to any agreement, oral or written, which
<PAGE>
restricts his right or capacity to execute this Agreement or to compete
with a previous employer, associate or affiliate in any way whatsoever.
7. Consolidation; Merger; Sale of Assets; Change of Control.
Nothing in this Agreement shall preclude the Company from
combining, consolidating or merging with or into, transferring all or
substantially all of its assets to, or entering into a partnership or
joint venture with, another corporation or other entity, or effecting
any other kind of corporate combination provided that the corporation
resulting from or surviving such combination, consolidation or merger,
or to which such assets are transferred, or such partnership or joint
venture assumes this Agreement and all obligations and undertakings of
the Company hereunder. Upon such a consolidation, merger, transfer of
assets or formation of such partnership or joint venture, this
Agreement shall inure to the benefit of, be assumed by, and be binding
upon such resulting or surviving transferee corporation or such
partnership or joint venture, and the term "Company," as used in this
Agreement, shall mean such corporation, partnership or joint venture,
or other entity and this Agreement shall continue in full force and
effect and shall entitle Consultant and his heirs, beneficiaries and
representatives to exactly the same compensation, benefits,
perquisites, payments and other rights as would have been their
entitlement had such combination, consolidation, merger, transfer of
assets or formation of such partnership or joint venture not occurred.
8. Survival of Obligations.
The obligations of the parties under Sections 3, 4, 5, 6, and 9 of
this Agreement shall survive the termination for any reason of this
Agreement (whether such termination is by the Company, by Consultant,
upon the expiration of this Agreement or otherwise).
9. Reformation; Severability.
In case any one or more of the provisions or part of a provision
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall be deemed not to
affect any other jurisdiction or any other provision or part of a
provision of this Agreement nor shall such invalidity, illegality or
unenforceability affect the validity, legality or enforceability of
this Agreement or any provision or provisions hereof in any other
jurisdiction, and this Agreement shall be reformed and construed in
such jurisdiction as if such provision or part of a provision held to
be invalid or illegal or unenforceable had never been contained herein
and such provision or part reformed so that it would be valid, legal
and enforceable in such jurisdiction to the maximum extent possible.
In furtherance and not in limitation of the foregoing, the Company and
Consultant each intend that the representations, warranties and
covenants contained in Sections 3 and 4 shall be deemed to be a series
of separate representations, warranties and covenants, one for each
county, state, territory or jurisdiction of the United States and any
<PAGE>
foreign country referenced therein. If, in any judicial proceeding, a
court shall refuse to enforce any of such separate representations,
warranties and covenants, then such unenforceable representations,
warranties and covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to
permit the remaining separate representations, warranties and covenants
to be enforced in such proceedings. If, in any judicial proceeding, a
court shall refuse to enforce any one or more of such separate
representations, warranties and covenants because the total time
thereof is deemed to be excessive or unreasonable, then it is the
intent of the parties hereto that such representations, warranties and
covenants, which would otherwise be unenforceable due to such excessive
or unreasonable period of time, be enforced for such lesser period of
time as shall be deemed reasonable and not excessive by such court.
10. Entire Agreement; Amendment.
This Agreement contains the entire agreement between the Company
and Consultant with respect to the subject matter thereof. This
Agreement may not be amended, waived, changed, modified or discharged
except by an instrument in writing executed by or on behalf of the
party against whom any amendment, waiver, change, modification or
discharge is sought. No course of conduct or dealing shall be
construed to modify, amend or otherwise affect any of the provisions
hereof.
11. Notices.
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given (i)
upon delivery, if personally delivered, (ii) the next business day, if
delivered with all charges prepaid to a recognized overnight delivery
service for next day delivery, or (iii) five days after mailing, if
mailed, postage prepaid, via first class mail, in each such case as
follows:
(a) To the Company: (b) To Consultant:
Medcross, Inc. Timothy R. Barnes
3227 Bennet Street North 2930 Clubhouse Drive West
St. Petersburg, Florida 33713 Clearwater, Florida 34621
Attn: President
with an additional copy by like means to:
De Martino Finkelstein Rosen & Virga
1818 N Street, N.W., Suite 400
Washington, D.C. 20036
Attn: Ralph V. De Martino, Esquire
<PAGE>
and/or to such other persons and addresses as any party shall have
specified in writing to the other.
12. Assignability.
This Agreement shall not be assignable by Consultant and shall be
binding upon, and shall inure to the benefit of, the successors of the
Company. Notwithstanding any other provision of this Agreement, this
Agreement shall be assignable by the Company provided that the assignee
is a controlled subsidiary of the Company.
13. Representation by Counsel.
Each of the parties hereto represents, warrants and covenants that
he or it has had ample opportunity to consider entering into this
Agreement and has had an opportunity to consult with counsel regarding
this Agreement prior to executing the same.
14. Governing Law.
This Agreement shall be governed by and construed under the laws
of the State of Florida without regard to the conflicts of law
principles thereof.
15. Waiver and Further Agreement.
Any waiver of any breach of any terms or conditions of this
Agreement shall not operate as a waiver of any other breach of such
terms or conditions or any other term or condition, nor shall any
failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision hereof. Each of the parties hereto
agrees to execute all such further instruments and documents and to
take all such further action as the other party may reasonably require
in order to effectuate the terms and purposes of this Agreement.
16. Headings of No Effect.
The paragraph headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
<PAGE>
17. Counterparts.
This Agreement may be executed by the parties hereto in one or
more counterparts each of which shall be an original and all of which
shall together constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ATTEST: MEDCROSS, INC.
By: /s/ Henry Y.L. Toh
Henry Y. L. Toh, President
WITNESS: CONSULTANT:
/s/ Timothy R. Barnes
Timothy R. Barnes
<S> <S>
</TABLE>
<TABLE>
COOPERS
& LYBRAND
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement of Medcross, Inc. and
Subsidiaries on Form S-8 of our report dated April 7, 1995, on our audits of the consolidated financial
statements of Medcross, Inc. and Subsidiaries as of December 31, 1994, and for the years ended
December 31, 1994 and 1993, which report is incorporated by reference in this Annual Report on
Form 10K-SB.
/s/ Coopers & Lybrand
Tampa, Florida
October 24, 1995
<S> <S>
</TABLE>
