<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 By and Among
Medcross, Inc., Kalo Acquisitions, L.L.C. and Jason H. Pollak
(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 <F1> Price <F1> Fee <F1>
Common Stock,
$.007 par value 50,000 <F2> $1.4375 $71,875.00 $100.00
<FN>
<F1>
(1) Calculated in accordance with Rule 457(h) under the Securities Act of
1933, as amended, based upon the average of the bid and asked prices
for the Common Stock on October 25, 1995.
<F2>
(2) Represents shares of Common Stock issuable to Jason H. Pollak pursuant
to the terms of the Consulting Agreement (the "Consulting Agreement")
By and Among Medcross, Inc., Kalo Acquisitions, L.L.C. and Jason H.
Pollak (the "Plan") upon execution thereof which is to occur at or
about the time of filing and effectiveness of this Registration
Statement on Form S-8.
</FN>
<PAGE>
PART I
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 Jason H. Pollak (the "Consultant") pursuant to the
terms of a Consulting Agreement, dated as of the date hereof, by
and between the Company, Kalo Acquisitions, L.L.C. and the
Consultant (the "Consulting Agreement"). Pursuant to the terms
of the Consulting Agreement, the Company is obligated to issue to
the Consultant an aggregate of up to 50,000 shares of Common
Stock in exchange for the Consultant's providing certain
marketing and consulting services to the Company. Pursuant to
the terms of the Consulting Agreement, the initial term of the
Consulting Agreement is five months, subject to termination by
the Company upon delivery (15 days in advance) of written notice
to the Consultant.
The foregoing information relating to the provisions of the
Consulting Agreement is intended to provide a summary thereof and
does not purport to be a complete description of the Consulting
Agreement. Such summary should be read in conjunction with the
Consulting Agreement which has been filed as Exhibit 10(c) hereto
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
was unlawful. Any such indemnification may only be made upon a
<PAGE>
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>
3(b) Composite copy of the Amended and Restated Articles of
Incorporation incorporating all amendments. <F1>
<PAGE>
3(c) By-Laws of the Company, as amended. <F2>
4(a) Specimen Common Stock Certificate. <F3>
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 by and among Medcross, Inc.,
Kalo Acquisitions, L.L.C. and Jason H. Pollak
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>
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
A. Rule 415 Offering.
<PAGE>
1. To file, during any period in which it offers or sells
securities, 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 interest 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>
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 50,000 shares of Common Stock,
$.007 par value (the "Common Stock") to Jason H. Pollak (the
"Consultant") pursuant to the terms of a certain Consulting Agreement
dated as of September 1, 1995, by and among the Company, Kalo Acquisitions,
L.L.C. 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 50,000
shares of Common Stock issuable to the Consultant pursuant to the terms
of the Consulting Agreement and which shares are subject of the
Registration Statement have been duly authorized and when such shares
of Common Stock are issued in accordance with the terms of the
Consulting Agreement 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
BY AND AMONG
MEDCROSS, INC.
KALO ACQUISITIONS, L.L.C.
AND
JASON H. POLLAK
THIS AGREEMENT (the "Agreement") is entered into as of this 1st
day of September, 1995, by and among Medcross, Inc., a Delaware
corporation with principal offices at 3227 Bennet Street North,
St. Petersburg, Florida 33713 (the "Corporation"), Jason H. Pollak
(hereinafter referred to as "Pollak" or the "Consultant" as the context
may require) and Kalo Acquisitions, L.L.C., a Delaware limited
liability company with principal offices at 165 EAB Plaza, West Tower,
Suite 628, Uniondale, New York 11556-0165 ("Kalo").
WHEREAS, Kalo, through its manager and employees has developed
expertise in and is in the business of providing consulting services,
including finding and assessing acquisition candidates and providing
investor and public relations services;
WHEREAS, Pollak is the manager and an employee of Kalo, and has
expertise in the area of providing consulting services, including
finding and assessing acquisition candidates and providing investor and
public relations services;
WHEREAS, the Corporation desires to engage Pollak to provide
services to the Corporation as set forth below, upon the terms and
subject to the conditions set forth herein;
WHEREAS, Pollak desires to provide services to the Corporation as
set forth below, upon the terms and subject to the conditions set forth
herein;
WHEREAS, Kalo, Pollak and the Corporation have agreed that Pollak
shall render the services set forth below to the Corporation upon the
terms and subject to the conditions set forth herein; and
WHEREAS, Kalo has agreed to provide Pollak the opportunity to avail
himself of Kalo's resources including, without limitation, use of any
phone lines, computers, photocopiers, facsimile machines, postage
meters and other supplies in exchange for Pollak's reimbursement to
Kalo of the costs of the same.
NOW, THEREFORE, in consideration of the foregoing and for such other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Engagement. The Corporation hereby engages the Consultant to
render to it for a period of five (5) months commencing September 1,
1995 (the "Term") the investor and public relations services described
herein. The Term hereof may be renewed upon the written agreement of
the Corporation, Kalo and the Consultant entered into prior to
<PAGE>
expiration of the initial Term hereof on such terms as the parties
hereto may negotiate at the time of such renewal.
2. Services. For the Term of this Agreement, the Consultant shall
perform the following services for the Corporation:
(a) Assist the Company in locating, assessing and implementing
the acquisition by the Company, by way of private or open market
purchases of stock, purchase of assets, merger, tender offer, joint
venture or otherwise, the acquisition by the Company of one or more
businesses, divisions or other operating entities and/or assets,
including without limitation thereto Image Trust, consistent with
the directives of the Company;
(b) Prepare and distribute, with the Company's prior approval,
due-diligence packages for the brokerage community which would
include presentation folders, press release sheets and a Corporation
overview pamphlet;
(c) Prepare and distribute, with the Company's prior approval,
investor relations packages;
(d) Provide a dedicated "800" toll-free telephone number for
investors to utilize;
(e) Coordinate broker presentations to be held a minimum of
four (4) times per year;
(f) Prepare and disseminate, with the Company's prior
approval, information about the Corporation to investors;
(g) Present and introduce the Corporation to broker/dealers,
fund managers and analysts on a continual basis;
(h) Prepare and disseminate, with the Company's prior
approval, press releases in compliance with any applicable
regulatory guidelines to wire/news services;
(i) Disseminate for informational purposes the Corporation's
publicly filed materials, including the Corporation's Annual and
Quarterly Reports on Form 10-KSB and Form 10-QSB, respectively, to
investors;
(j) Assist with the set up of annual and special shareholder
meetings;
(k) Provide for the production and presentation, with the
Company's prior approval, on national/local television stations of
infomercials about the Corporation;
(l) Perform such other services as may be reasonably requested
from time to time by the officers of the Corporation;
<PAGE>
(m) Reimburse Kalo for its costs related to the use of any of
its resources as contemplated herein;
(n) Locate and introduce at least ten (10) broker/dealers
and/or market makers to the Corporation to make a market in the
Corporation's securities; and
(o) Bear all costs and expenses relating to any of the
foregoing.
3. Compensation. In consideration for the performance of the
services described above, the Corporation shall issue to the Consultant
an aggregate of up to fifty thousand (50,000) shares of its common
stock, par value $.007 per share (the "Common Stock") as follows:
(a) twenty-five thousand (25,000) shares of Common Stock shall
be issued upon execution of this Agreement; and
(b) five thousand (5,000) shares of Common Stock shall be
issuable thereafter on the last day of each month during the Term of
this Agreement.
It is specifically understood and agreed that one-half of the
compensation set forth in Section 3(b) shall be allocated to the
services contemplated to be provided pursuant to Section 2(a) hereof
and the entirety of the balance of the compensation provided in
Sections 3(a) and 3(b) shall be allocated to the remainder of the
services to be provided pursuant to Section 2 of this Agreement.
4. Registration Rights. The Corporation shall file,
contemporaneously with execution hereof, a registration statement
relating to the shares of Common Stock issuable pursuant hereto on
Form S-8 with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933 (the "Act"). In the event that,
for any reason whatsoever, such Form S-8 is not available for use by
the Corporation, the Corporation shall file such form of registration
statement as is available for use by the Corporation as specified or
otherwise permitted by the Act and the rules and regulations
promulgated thereunder. The Corporation shall bear the expenses of
such registration and shall: (a) provide any requisite prospectuses
meeting the requirements of the Act and such other documents as the
Consultant may reasonably request for a period of at least twelve (12)
months following the effectiveness of such registration statement in
order to facilitate the sale or other disposition of such securities;
(b) register and qualify for sale any of such securities in such states
as the Consultant may reasonably designate; and (c) do any and all
other acts and things which may be necessary or desirable to enable the
Consultant to consummate the sale or other disposition of such
securities.
The Consultant hereby acknowledges that it understands that:
(a) the shares of Common Stock issuable hereunder have not
previously been the subject of registration under the Act or any
applicable state securities laws;
<PAGE>
(b) the Consultant may not sell or otherwise transfer such
shares unless they are subject to an effective registration
statement under the Act and any applicable state securities laws
(unless exemptions from such registration requirements are
available);
(c) in the event that any shares of Common Stock issuable
pursuant hereto are issued at a time during which a registration
statement relating to the same is not effective, until such shares
of Common Stock are subject to an effective registration statement
under the Act, a legend will be placed on any certificate or
certificates evidencing the same indicating that such securities
have not been registered under the Act and setting forth or
referring to the restrictions on transferability and sales of such
securities; and
(d) the Corporation will place stop transfer instructions
against the certificate or certificates evidencing the foregoing
shares of Common Stock to restrict the transfer thereof.
5. Representations and Warranties. The Consultant hereby
represents and warrants that:
(a) the Consultant will not sell the shares of Common Stock
without compliance with the Act and any applicable state securities
laws;
(b) the Consultant has received and carefully read the
following: (i) the Corporation's Annual Report on Form 10-KSB for
the period ended December 31, 1994 (File No. 0-17973); (ii) the
Corporation's Quarterly Reports on Form 10-QSB for the periods ended
March 31, 1995 and June 30, 1995 (File No. 0-17973); and (iii)
written or verbal responses for all questions the Consultant has
submitted to the Corporation regarding its acquisition of the
securities described herein, all of which the Consultant
acknowledges have been provided to the Consultant (the "Corporate
Materials"). The Consultant has not been furnished with any other
materials or literature relating to the acquisition of the
securities described herein, other than the Corporate Materials.
The Consultant has been given the opportunity to ask questions of
and to receive answers from the Corporation concerning the terms and
conditions of the acquisition of the securities described herein and
the Corporate Materials, and to obtain such additional written
information necessary to verify the accuracy of same as the
Consultant desires in order to evaluate the acquisition of and
investment in the securities described herein. The Consultant
acknowledges and confirms that the written and/or verbal responses
provided to the Consultant by the Corporation in response to the
Consultant's questions are not contrary to or inconsistent with, nor
do they in any way conflict with the information set forth in the
Corporate Materials. The Consultant further acknowledges that it
fully understands the information contained in the Corporate
Materials and the Consultant has had the opportunity to discuss any
questions regarding the Corporate Materials with its counsel or
other advisor. Notwithstanding the foregoing, the only information
upon which the Consultant has relied is that set forth in the
Corporate Materials and that derived by its own independent
<PAGE>
investigation. The Consultant acknowledges that the Consultant has
received no representations or warranties from the Corporation or
its employees or agents in making an investment decision related to
the acquisition of the securities described herein, other than as
set forth herein;
(c) the Consultant is aware that the acquisition of the
securities described herein is a speculative investment involving a
high degree of risk and that there is no guarantee that the
Consultant will realize any gain from its acquisition of or
investment in such securities. The Consultant has specifically
reviewed the Corporate Materials with a view toward acquiring the
securities described herein;
(d) the Consultant understands that no federal or state agency
or other authority: (i) has made any finding or determination
regarding the fairness of the transactions described herein,
(ii) has made any recommendation or endorsement of the transactions
described herein, or (iii) has passed in any way upon this agreement
or the Corporate Materials;
(e) the Consultant: (i) is acquiring the securities described
herein solely for his own account for investment purposes only and
not with a view toward resale or distribution thereof, either in
whole or in part; and (ii) has no contract, undertaking, agreement
or other arrangement, in existence or contemplated, to sell, pledge,
assign or otherwise transfer the securities to any other person;
(f) the Consultant has adequate means of providing for his
current needs and contingencies and has no need for liquidity in the
investment in the securities described herein. The Consultant has
read, is familiar with and understands Rule 501 of Regulation D and
represents that he is an "accredited investor" as defined in Rule
501(a) of Regulation D under the Act. The Consultant has no reason
to anticipate any material change in his financial condition for the
foreseeable future;
(g) the Consultant is financially able to bear the economic
risk of an investment in the securities described herein, including
the ability to hold such securities indefinitely and to afford a
complete loss of an investment in such securities;
(h) the Consultant's overall commitment to investments which
are not readily marketable is not disproportionate to the
Consultant's net worth, and the Consultant's investment in the
securities described herein will not cause such overall commitment
to become excessive. The Consultant understands that the statutory
basis on which such securities are being issued to the Consultant
would not be available if the Consultant's present intention were to
hold such securities for a fixed period of time or until the
occurrence of a certain event. The Consultant realizes that, in the
view of the Commission, the acquisition of such securities now with
a present intention to resell by reason of a foreseeable specific
contingency or any anticipated change in the market value of such
securities, or in the condition of the Corporation or that of the
industry in which the business of the Corporation is engaged or in
connection with a contemplated liquidation, would, in fact,
constitute an acquisition and/or purchase with an intention
<PAGE>
inconsistent with the Consultant's representations to the
Corporation and the Commission would then regard such purchase as a
purchase for which the exemption from registration under the Act
relied upon by the Corporation in connection herewith is not
available; and
(i) the Consultant has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of the acquisition of and an investment in the
securities described herein.
6. Confidential Information. The parties hereto recognize that it
is fundamental to the business and operation of the Corporation, its
subsidiaries, affiliates and divisions thereof to preserve the
specialized knowledge, trade secrets, and confidential information of
the foregoing entities. The strength and good will of the Corporation
is derived from the specialized knowledge, trade secrets, and
confidential information generated from experience through the
activities undertaken by the Corporation, its subsidiaries, affiliates
and divisions thereof. The disclosure of any of such information and
the knowledge thereof on the part of competitors would be beneficial to
such competitors and detrimental to the Corporation, its subsidiaries,
affiliates and divisions thereof, as would the disclosure of
information about the marketing practices, pricing practices, costs,
profit margins, design specifications, analytical techniques, concepts,
ideas, process developments (whether or not patentable), customer and
client agreements, vendor and supplier agreements and similar items or
technologies. By reason of performance under this Agreement, the
Consultant may have access to and may obtain specialized knowledge,
trade secrets and confidential information such as that described
herein about the business and operation of the Corporation, its
subsidiaries, affiliates and divisions thereof. Therefore, the
Consultant hereby agrees that he shall keep secret and retain in
confidence and shall not use, disclose to others, or publish, other
than in connection with the performance of services hereunder, any
information relating to the business, operation or other affairs of the
Corporation, its subsidiaries, affiliates and divisions thereof,
including but not limited to, confidential information concerning the
marketing practices, pricing practices, costs, profit margins,
products, methods, guidelines, procedures, engineering designs and
standards, design specifications, analytical techniques, technical
information, customer, client, vendor or supplier information, employee
information, or other confidential information acquired by each of them
in the course of providing services for the Corporation. The
Consultant agrees to hold as the Corporation's property all notes,
memoranda, books, records, papers, letters, formulas and other data and
all copies thereof and therefrom in any way relating to the business or
operation of the Corporation, its subsidiaries, affiliates and
divisions thereof, whether made by the Corporation or the Consultant or
as may otherwise come into the possession of the Consultant. Upon
termination of this Agreement or upon the demand of the Corporation, at
any time, the Consultant shall deliver the same to the Corporation
within twenty-four (24) hours of such termination or demand.
7. Reformation. In the event that a court of competent
jurisdiction determines that the confidentiality provisions or part of
a provision hereof are unreasonably broad or otherwise unenforceable
because of the length of their respective terms or the breadth of their
territorial scope, or for any other reason, the parties hereto agree
<PAGE>
that such court may reform the terms and/or scope of such covenants so
that the same are reasonable and, as reformed, shall be enforceable.
8. Applicable Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Florida without regard to
the principles of conflicts of laws thereof and shall inure to the
benefit of and be binding upon Kalo, the Consultant and the Corporation
and their respective legal successors and assigns.
9. Remedies. In the event of a breach of any of the provisions of
this Agreement, the non-breaching party shall provide written notice of
such breach to the breaching party. The breaching party shall have
thirty (30) days after receipt of such notice in which to cure its
breach. If, on the thirty-first (31st) day after receipt of such
notice, the breaching party shall have failed to cure such breach, the
non-breaching party thereafter shall be entitled to seek damages. It
is acknowledged that this Agreement is of a unique nature and of
extraordinary value and of such a character that a breach hereof by the
Consultant or the Corporation shall result in irreparable damage and
injury for which the non-breaching party may not have any adequate
remedy at law. Therefore, if, on the thirty-first (31st) day after
receipt of such notice, the breaching party shall have failed to cure
such breach, the non-breaching party shall also be entitled to seek a
decree of specific performance against the breaching party, or such
other relief by way of restraining order, injunction or otherwise as
may be appropriate to ensure compliance with this Agreement. The
remedies provided by this section are non-exclusive and the pursuit of
such remedies shall not in any way limit any other remedy available to
the parties with respect to this Agreement, including, without
limitation, any remedy available at law or equity with respect to any
anticipatory or threatened breach of the provisions hereof.
10. No Continuing Waiver. The waiver by any party of any provision
or breach of this Agreement shall not operate as or be construed to be
a waiver of any other provision hereof or of any other breach of any
provision hereof.
11. Notice. Any and all notices from either party to the other
which may be specified by, or otherwise deemed necessary or incident to
this Agreement shall, in the absence of hand delivery with return
receipt requested, be deemed duly given when mailed if the same shall
be sent to the address of the party set out on the first page of this
Agreement by registered or certified mail, return receipt requested, or
express delivery (e.g., Federal Express).
12. Severability of Provisions. The provisions of this Agreement
shall be considered severable in the event that any of such provisions
are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable. Such invalid, void or otherwise unenforceable
provisions shall be automatically replaced by other provisions which
are valid and enforceable and which are as similar as possible in term
and intent to those provisions deemed to be invalid, void or otherwise
unenforceable. Notwithstanding the foregoing, the remaining provisions
hereof shall remain enforceable to the fullest extent permitted by law.
<PAGE>
13. Assignability. This Agreement shall not be assignable without the
prior written consent of the non-assigning party or parties hereto and
shall be binding upon and inure to the benefit of any heirs, executors,
legal representatives or successors or permitted assigns of the parties
hereto.
14. Entire Agreement; Amendment. This Agreement contains the
entire agreement among the Corporation, Kalo and the Consultant with
respect to the subject matter hereof. This Agreement may not be
amended, changed, modified or discharged, nor may any provision hereof
be waived, except by an instrument in writing executed by or on behalf
of the party against whom enforcement of 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.
15. Headings. The paragraph headings contained in this Agreement
are for reference purposes only and shall not in any way affect the
meaning or interpretation of the provisions of this Agreement.
16. Termination. The Corporation may terminate this Agreement with
or without cause at any time upon delivery of fifteen (15) days prior
written notice to the other parties hereto. Any such termination shall
result in the termination of the Consultant's respective rights to
receive any further compensation, except with respect to accrued
compensation which Consultant shall have the right to receive
notwithstanding termination hereof.
17. Survival. Sections 5, 6, 7, 8, 11 and 12 shall survive the
termination for any reason of this Agreement (whether such termination
is by the Corporation, upon the expiration of this Agreement by its
terms or otherwise).
IN WITNESS WHEREOF, the parties have caused this Agreement for
Consulting Services to be executed and delivered by their duly
authorized officers as set forth below and have caused their respective
corporate seals to be hereunder affixed as of the date first above
written.
MEDCROSS, INC.
By: /s/ Henry Y.L. Toh
Henry Y.L. Toh, President
KALO ACQUISITIONS, L.L.C.
By: /s/ Jason H. Pollak
Jason H. Pollak, Manager
THE CONSULTANT
/s/ Jason H. Pollak
Jason H. Pollak
<S> <S>
</TABLE>
<TABLE>
COOPERS
& LYBRAND
CONSENT OF INDEPENDENT ACCOUNTANTS
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
10-KSB.
/s/ COOPERS & LYBRAND LLP
Tampa, Florida
October 24, 1995
<S> <S>
</TABLE>
