As filed with the Securities and Exchange Commission on July 24, 1996.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HEALTHCARE IMAGING SERVICES, INC.
(Exact name of issuer as specified in its charter)
Delaware 22-3119929
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
Tri-Parkway Corporate Park
200 Schulz Drive
Middletown, New Jersey 07701
(Address of principal executive offices) (Zip Code)
1996 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the Plan)
Elliott H. Vernon Scott M. Zimmerman, Esq.
Chairman of the Board, Shereff, Friedman, Hoffman
President and Chief Executive Officer & Goodman, LLP
Healthcare Imaging Services, Inc. 919 Third Avenue
Tri-Parkway Corporate Park New York, New York 10022
200 Schulz Drive (212) 758-9500
Middletown, New Jersey 07701
(908) 224-9292
(Name, address and telephone number,
including area code, of agents for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered(1) Per Share(2) Offering Price(2) Fee(3)
Common Stock, 75,000 shares $1.6875 $126,562.50 $43.64
par value $0.01 75,000 shares $2.09375 $157,031.25 $54.15
per share 100,000 shares $2.0625 $206,250.00 $71.12
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250,000 shares $489,843.75 $168.91
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(1) Pursuant to Rule 416, this Registration Statement also covers such
additional securities as may become issuable to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) on the basis of the exercise price if known
or the average of the high and low prices of the Registrant's Common Stock
as quoted on The Nasdaq National Market on July 19, 1996.
(3) The Registration Fee has been calculated as follows: 75,000 multiplied by
one twenty-ninth of one percent of $1.6875 (the exercise price of such
options) , 75,000 multiplied by one twenty-ninth of one percent of $2.09375
(the exercise price of such options) and 100,000 multiplied by one
twenty-ninth of one percent of $2.0625, the average of the high and low
price of the Registrant's Common Stock as quoted on The Nasdaq Stock Market
on July 19, 1996.
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed by Healthcare
Imaging Services, Inc., a Delaware corporation (the "Registrant"), with the
Securities and Exchange Commission (the "Commission"), are incorporated herein
by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995 (the "1995 Form 10-K"), which is the Registrant's
latest Annual Report on Form 10-K filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") and which contains
audited financial statements for the Registrant's latest fiscal year for which a
Form 10-K was required to have been filed, as amended by a Form 10-K/A-1 and
Form 10-K/A-2.
(b) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1996.
(c) The description of the Registrant's Common Stock, par
value $0.01 per share, which is contained in a registration statement filed
under Section 12 of the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be a part hereof from the time of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation (the "Certificate")
provides that each person who was or is made a party or is threatened to be made
a party to or is involved in any
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threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director or officer of the Company or is or was serving at the
request of the Company as a director, officer, employee or agent of another
entity, shall be indemnified and held harmless by the Company to the maximum
extent authorized by the General Corporation Law of the State of Delaware
("DGCL") against all expense, liability and loss reasonably incurred by such
person in connection therewith. The DGCL permits indemnification of a director,
officer, employee or agent in civil, criminal, administrative or investigative
actions, suits or proceedings (other than an action by or in the right of the
corporation) to which such person is a party or is threatened to be made a party
by reason of the fact of such relationship with the corporation or the fact that
such person is or was serving in a similar capacity with another entity at the
request of the corporation against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action if such person acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, if he
had no reasonable cause to believe his conduct was unlawful. The DGCL permits
indemnification of a director, officer, employee or agent in actions or suits by
or in the right of the corporation to which such person is a party or is
threatened to be made a party by reason of the fact of such relationship with
the corporation or the fact that such person is or was serving in a similar
capacity with another entity at the request of the corporation against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action if such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation except that no indemnification may be made in
respect of any such claim, issue or matter to any person adjudged to be liable
to the corporation unless and only to the extent that the Delaware Court of
Chancery or the court in which the action was brought determines that, despite
the adjudication of liability, such person is under all circumstances, fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper.
The Certificate provides that the right to indemnification
contained therein is a contract right and includes the right to be paid by the
Company the expenses incurred in defending any such proceeding in advance of its
final disposition; provided, however, that if the DGCL requires, the payment of
such expenses incurred in advance of the final disposition of a proceeding shall
be made only upon delivery to the Company of an undertaking to repay all amounts
so advanced if it shall ultimately be determined that such person is not
entitled to be indemnified.
The Company maintains directors' and officers' liability insurance
covering certain liabilities incurred by the directors and officers of the
Company in connection with the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits
The following exhibits are filed as part of this registration
statement:
4.1 Healthcare Imaging Services, Inc. 1996 Stock Option Plan
for Non-Employee Directors
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP
(included in Exhibit 5.1).
24 Power of Attorney (included in signature page to this
registration statement).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement:
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3 or S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
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(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 County of Monmouth, State of New Jersey, on this 24th day of
July, 1996.
HEALTHCARE IMAGING SERVICES, INC.
By: /s/ Elliott H. Vernon
Elliott H. Vernon
Chairman of the Board,
President and
Chief Executive Officer
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KNOW ALL MEN BY THESE PRESENT, that each of the undersigned whose
signature appears below constitutes and appoints Elliott H. Vernon and Michael
J. Rutkin, and each of them (with full power of each of them to act alone), his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution for him and on his behalf, and in his name, place and stead,
in any and all capacities to execute and sign any and all amendments or
post-effective amendments to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof and the Registrant hereby confers like authority on its
behalf.
Pursuant to the requirements of the Securities Act 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Elliott H. Vernon Chairman of the Board, July 24, 1996
Elliott H. Vernon President and Chief Executive
Officer
/s/ Michael J. Rutkin Executive Vice President, Chief July 24, 1996
Michael J. Rutkin Operating Officer and Secretary
(Acting Principal Financial and
Accounting Officer)
/s/ George Braff Director July 24, 1996
George Braff
Director July __, 1996
Jerold L. Fisher
Director July __, 1996
Shawn A. Freidkin
/s/ Mitchell Hymowitz Director July 24,1996
Mitchell Hymowitz
Director July __, 1996
Dominic A. Polimeni
/s/ Joseph J. Raymond Director July 24, 1996
Joseph J. Raymond
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HEALTHCARE IMAGING SERVICES, INC.
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
Sequentially
Numbered
Exhibit Page
4.1 Healthcare Imaging Services, Inc. 1996 Stock Option Plan for
Non-Employee Directors.
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (included in
Exhibit 5.1).
24 Power of Attorney (included in signature page to this registration
statement).
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EXHIBIT 4.1
HEALTHCARE IMAGING SERVICES, INC.
1996 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
1. NAME.
The name of this plan is the Healthcare Imaging Services, Inc. 1996
Stock Option Plan for Non-Employee Directors.
2. PURPOSE.
The purpose of the Plan is to enable the Company to secure non-employee
persons of requisite experience and ability to serve on the Board and to
motivate Non-Employee Directors to exert their best efforts on behalf of the
Company, thus enhancing the value of the Company for the benefit of the
Company's stockholders.
3. DEFINITIONS.
For the purposes of the Plan, the following terms shall be defined as
set forth below:
(a) "Award" means a grant of options to a Participant pursuant
to Section 8 of the Plan.
(b) "Award Agreement" means the written agreement between the
Company and the Participant that contains the terms and conditions pertaining to
the grant of options.
(c) "Board" means the Board of Directors of the Company.
(d) "Change in Control" means a change in control of the Company
of a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act (as in effect
on the date the Plan is adopted by the Board), whether or not the Company is
then subject to such reporting requirement; provided, that, without limitation,
such a Change in Control shall be deemed to have occurred if:
(i) any "person" (as defined in
Sections 13(d) and 14(d) of the Exchange Act) is
or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company
representing thirty percent (30%) or more of the
combined voting power of the Company's then
outstanding securities; provided, however, that
no Change of Control shall be deemed to have
occurred if prior to the acquisition of such
thirty percent (30%) of the combined voting power
of the Company's then outstanding securities, a
majority of the Continuing Directors approves
such acquisition; or
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(ii)if there shall cease to be a majority of the Board
comprised of Continuing Directors; or
(iii)the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other
than a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at
least eighty percent (80%) of the combined voting power of the
voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or
(iv)the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale
or disposition by the Company of all or substantially all the
Company's assets.
Notwithstanding anything in this Section 3 to the contrary, an
event or occurrence (or a series of events or occurrences) which would otherwise
constitute a Change in Control under the foregoing shall not constitute a Change
in Control for purposes of this Plan if the Board, by majority vote, determines
that a Change in Control does not result therefrom; but only if Continuing
Directors constitute a majority of the directors voting in favor of such
determination. Further, an event or occurrence (or a series of events or
occurrences) which would not otherwise constitute a Change in Control under the
foregoing shall be deemed to constitute a Change in Control for purposes of this
Plan if the Board, by majority vote, determines that a Change in Control does
result therefrom; but only if Continuing Directors constitute a majority of the
directors voting in favor of such determination. A determination by the Board
under the provisions of this paragraph shall be made solely for purposes of this
Plan and shall not directly or indirectly affect any determination or analysis
of whether a change in control results for any other purpose. Any determination
made with respect to whether a change in control results for purposes of any
other plan or agreement of the Company shall have no effect for purposes of this
Plan.
(e) "Chairman" means the individual appointed by the Committee
to serve as the chairman of the Committee.
(f) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(g) "Committee" means the Committee established pursuant to
Section 4 of the Plan.
(h) "Common Stock" means the common stock, par value $0.01 per
share, of the Company or any security of the Company identified by the Committee
as having been issued in substitution or exchange therefor or in lieu thereof.
(i) "Company" means Healthcare Imaging Services, Inc.
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(j) "Continuing Directors" means individuals who at the end of any
period of two (2) consecutive years constitute the Board and any new director(s)
whose election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously approved.
(k) "Directors" means the members of the Board.
(l) "Effective Date" means the date on which the Plan and an
increase in the authorized Common Stock is approved by the stockholders of the
Company, as provided in Section 5(a) hereof.
(m) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute.
(n) "Fair Market Value" means, with respect to the Shares, (a) if
the Common Stock is listed or admitted for trading on any national securities
exchange or included in The Nasdaq National Market or Nasdaq SmallCap Market,
the last reported sales price as reported on such exchange; (b) if the Common
Stock is not listed or admitted for trading on any national securities exchange
or included in The Nasdaq National Market or Nasdaq SmallCap Market, the average
of the last reported closing bid and asked quotation for the Common Stock as
reported on the Automated Quotation System of NASDAQ or a similar service if
NASDAQ is not reporting such information; (c) if the Common Stock is not listed
or admitted for trading on any national securities exchange or included in The
Nasdaq National Market or Nasdaq SmallCap Market or quoted by NASDAQ or a
similar service, the average of the last reported bid and asked quotation for
the Common Stock as quoted by a market maker in the Common Stock (or if there is
more than one market maker, the bid and asked quotation shall be obtained from
two market makers and the average of the lowest bid and highest asked quotation
shall be the "Fair Market Value"); or (d) if the Common Stock is not listed or
admitted for trading on any national securities exchange or included in The
Nasdaq National Market or Nasdaq SmallCap Market or quoted by NASDAQ and there
is no market maker in the Common Stock, the fair market value of the Shares as
determined by the Committee in good faith.
(o) "Non-Employee Director" means an individual who: (i) is
now, or hereafter becomes, a member of the Board and (ii) is not an employee of
the Company on the date of the grant of an option.
(p) "NSO" means an option that does not meet the requirements of
Section 422(b) of the Code, which provides the right to purchase a Share at a
price and for a Term fixed in accordance with the Plan, and subject to such
other limitations and restrictions imposed by the Plan.
(q) "Participant" means a Non-Employee Director who has been
granted an NSO under the Plan (or in the event of the death or disability of a
Non-Employee Director, the estate or personal representative of the Non-Employee
Director).
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(r) "Person" means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, or
government or political subdivision thereof.
(s) "Plan" means this Healthcare Imaging Services, Inc. 1996
Stock Option Plan for Non-Employee Directors.
(t) "Rule 16b-3" means Rule 16b-3 promulgated by the Securities
and Exchange Commission under the Exchange Act, or any successor or replacement
rule or regulation thereto. Accordingly, all references in the Plan to a
specific paragraph of Rule 16b- 3 shall be deemed to be references to such
paragraph or to the applicable successor or replacement paragraph thereto.
(u) "Share" or "Shares" means a share or shares of Common Stock,
adjusted in accordance with Section 9(b) hereof, as applicable.
(v) "Term" means the period during which a particular Award may
be exercised.
4. ADMINISTRATION.
(a) Generally.
The Plan shall be administered by the Committee. Unless otherwise
expressly provided in the Plan, all designations, determinations,
interpretations and other decisions under or with respect to the Plan or any NSO
shall be within the sole and absolute discretion of the Committee, may be made
at any time, and shall be final, conclusive and binding upon the Company, any
Participant, any holder or beneficiary of any NSO and any stockholder of the
Company.
(b) Composition of the Committee.
The members of the Committee shall be appointed by the Board and
shall consist of no less than two members of the Board who are "disinterested
persons" as such term is used in Rule 16b-3. The Committee may from time to time
remove members from, or add members to, the Committee. Vacancies on the
Committee, however caused, shall be filled by the Board.
(c) Actions by the Committee.
The Committee shall hold meetings at such times and places as it
may determine. The Committee shall appoint one of its members as Chairman. Acts
approved by a majority of the members of the Committee present at a meeting at
which a quorum is present, or acts reduced to or approved in writing by a
majority of the members of the Committee, shall be the valid acts of the
Committee.
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(d) Powers of the Committee.
Subject to the terms of the Plan and applicable law, the Committee
shall have full power and authority to administer the Plan in its sole and
absolute discretion. To this end, the Committee is authorized to construe and
interpret the Plan and to make all other determinations necessary or advisable
for the administration of the Plan. Subject to the foregoing, any determination,
decision or action of the Committee in connection with the construction,
interpretation, administration, or application of the Plan shall be final,
conclusive and binding upon all Participants and any person claiming under or
through a Participant.
(e) Reliance and Indemnification of Committee Members.
The Committee may employ attorneys, consultants, accountants or
other persons, and the Committee, the Company and its officers and directors
shall be entitled to rely upon the advice, opinions or valuations of any such
persons. No member of the Committee or the Board shall be personally liable for
any action, determination or interpretation taken or made in good faith by the
Committee or the Board with respect to the Plan or any NSO granted thereunder,
and all members of the Committee and the Board shall be fully indemnified and
protected by the Company in respect of any such action, determination or
interpretation.
(f) NSO Accounts.
The Committee shall maintain or cause to be maintained a journal
or other record in which a separate account for each Participant shall be
established. Whenever NSOs are granted to, or exercised by, a Participant, the
Participant's account shall reflect such grant or exercise and the Participant's
account shall be appropriately adjusted in the event of any change in
capitalization or transaction pursuant to Section 9 hereof.
5. APPROVAL OF THE PLAN; TERM OF THE PLAN.
(a) Approval of the Plan by Stockholders; Effective Date of the Plan.
The Plan was adopted by the Board on February 13, 1996. The Plan
will be submitted for the approval of the Company's stockholders within 12
months after such date. In addition, at such time an increase in the authorized
Common Stock to 50 million shares will be submitted for the approval of the
Company's stockholders. The date of stockholder approval of the Plan and such
increase is the "Effective Date." Awards may be granted prior to such
stockholder approval; provided, however, that such Awards shall not be
exercisable prior to the Effective Date; provided, further, that if such
approval has not been obtained at the end of said 12 month period, all Awards
previously granted under the Plan shall thereupon be cancelled and become null
and void.
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(b) Term of Plan.
No NSO shall be granted pursuant to the Plan on or after the tenth
(10th) anniversary of the Effective Date, but NSOs theretofore granted may be
extended beyond that date and the Committee shall have the authority to amend,
alter, adjust, suspend, discontinue, or terminate any such NSO or to waive any
conditions or rights under any such NSO, and to amend the Plan, beyond that
date.
6. SHARES SUBJECT TO THE PLAN.
(a) Limitation on Number of Shares.
The maximum aggregate number of Shares which may be subject to
NSOs granted to Participants pursuant to the Plan shall be 250,000. The
limitation on the number of Shares which may be subject to NSOs under the Plan
shall be subject to adjustment as provided in Section 9 hereof. If any NSO
granted under the Plan expires or is terminated for any reason without having
been exercised in full, the Shares allocable to the unexercised portion of such
NSO shall again become available for grant pursuant to the Plan. At all times
during the term of the Plan, the Company shall reserve and keep available for
issuance such number of Shares as the Company is obligated to issue upon the
exercise of all then outstanding NSOs.
(b) Accounting for NSOs.
For purposes of this Section 6, the number of Shares covered by an
NSO, or to which an NSO relates, shall be counted on the date of grant of such
NSO against the aggregate number of Shares available for granting NSOs under the
Plan. Any Shares that are delivered by the Company pursuant to any NSO, and any
NSOs that are granted by, or become obligations of, the Company, shall be
counted against the Shares available for granting NSOs under the Plan.
7. SOURCE OF SHARES ISSUED UNDER THE PLAN.
Common Stock issued under the Plan may consist, in whole or in part, of
authorized and unissued Shares or treasury Shares, as determined in the sole and
absolute discretion of the Committee. No fractional Shares shall be issued under
the Plan.
8. NON-QUALIFIED STOCK OPTIONS.
(a) Grant of NSOs.
(i) Each person who was a Non-Employee Director on the date of
the Plan's adoption by the Board shall automatically be
granted NSOs to purchase twenty-five thousand (25,000)
shares of Common Stock, subject to all the provisions of the
Plan.
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(ii) Each person who is either elected or appointed a
Non-Employee Director, and who has not previously received a
grant of NSOs pursuant to clause (i) above, shall
automatically be granted NSOs to purchase twenty-five
thousand (25,000) shares of Common Stock on the date of
their appointment or election, subject to the provisions of
the Plan.
(b) Exercise Price.
The price at which each Share covered by a NSO may be purchased
pursuant to this Plan shall be the Fair Market Value of a Share on the date of
the NSO grant.
(c) Terms and Conditions.
All NSOs granted pursuant to the Plan shall be evidenced by an
Award Agreement, approved as to form by the Committee, which shall be subject to
the following express terms and conditions and to the other terms and conditions
specified in this Section 8, and to such other terms and conditions as shall be
determined by the Committee in its sole and absolute discretion which are not
inconsistent with the Plan:
(i) after six (6) months from the date of the Award, it may be
exercised as to not more than 40% of the NSOs granted under
the Award;
(ii) after eighteen (18) months from the date of the Award, it
may be exercised as to not more than 80% of the NSOs granted
under the Award;
(iii) after thirty (30) months from the date of the Award, it may
be exercised as to any part or all of the NSOs granted under
the Award;
(iv) the failure of a NSO to vest for any reason whatsoever shall
cause the NSO to expire and be of no further force or effect;
(v) unless terminated earlier pursuant to Section 8(e) hereof,
the term of each NSO shall in no event be more than ten (10)
years from the date of the grant; and
(vi) no NSO or interest therein may be transferred, assigned, pledged
or hypothecated by a Participant during his lifetime or be made
subject to execution, attachment or similar process, in each case
except by will or by the laws of descent and distribution. NSOs shall
be exercised during the lifetime of the Participant only by the
Participant; provided, however, that if so determined by the
Committee, a Participant, in the manner established by the Committee,
may designate a beneficiary or beneficiaries to exercise the rights of
the Participant and to receive any property distributable with respect
to any NSO upon the death or permanent disability of the Participant.
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(d) Exercise.
(i) Notice of Exercise. A Participate entitled to exercise a NSO
may do so by delivery of a written notice to that effect specifying the number
of Shares with respect to which the NSO is being exercised. Except as provided
in Section 8(d)(ii) below, the notice shall be accompanied by payment in full of
the purchase price of any Shares to be purchased, which payment may be made in
cash or, with the Committee's approval (and subject to the requirements of Rule
16b-3), in Shares valued at Fair Market Value at the time of exercise or, with
the Committee's approval, a combination thereof. No Shares shall be issued upon
exercise of a NSO until full payment has been made therefor. All notices,
payments or requests provided for herein shall be delivered to the Chief
Financial Officer of the Company.
(ii) Cashless Exercise Procedures. The Company, in its sole
discretion, may establish procedures whereby a Participant, subject to the
requirements of Rule 16b-3, Regulation T, federal income tax laws and other
federal, state and local tax and securities laws, can exercise a NSO or a
portion thereof without making a direct payment of the option price to the
Company. If the Company so elects to establish a cashless exercise program, the
Company shall determine, in its sole discretion, and from time to time, such
administrative procedures and policies as it deems appropriate, and such
procedures and policies shall be binding on any Participant wishing to utilize
the cashless exercise program.
(e) Termination of NSOs.
NSOs granted under the Plan shall be subject to the following
events of termination:
(i) in the event a Participant is removed from the Board
(other than removal due to the death of a Participant or
a Participant being unable to perform his duties for the
Company because of a disability (as determined by the
Board)), all unexercised NSOs held by such Participant
on the date of such removal (whether or not vested) will
expire immediately; and
(ii)in the event a Participant is no longer a member of the
Board other than by reason of removal, or is removed due
to his death or his being unable to perform his duties
for the Company because of a disability (as determined
by the Board), all unexercised NSOs held by such
Participant that shall have vested as of the date such
Participant is no longer a member of the Board (as
determined in accordance with clauses (i), (ii) and
(iii) of Section 8(c)) shall terminate, and all NSOs
vested as of such date may be exercised by the
Participant at any time within six (6) months after such
Participant ceased to be a Director, but not beyond the
original term thereof.
(f) Share Certificates.
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All certificates for Shares delivered under the Plan pursuant to
any NSO or the exercise thereof shall be subject to such stop transfer orders
and other restrictions as the Committee may deem advisable under the Plan or the
rules, regulations, and other restrictions of the Securities and Exchange
Commission, any stock exchange upon which such Shares or other securities are
then listed, and any applicable Federal or state securities laws, and the
Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions.
(g) Stockholder Approval
Notwithstanding anything to the contrary contained herein (i) no
Award shall be exercisable prior to the Effective Date and (ii) if the approval
is not obtained as provided for in Section 5(a) hereof, all Awards previously
granted under the Plan shall thereupon be cancelled and become null and void.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
In the event of changes in all of the outstanding Shares by reason of
stock dividends, stock splits, recapitalizations, mergers, consolidations,
combinations, exchanges of shares, separations, reorganizations or liquidations
or similar events or in the event of extraordinary cash or noncash dividends
being declared with respect to outstanding Shares or other similar transactions,
the number and class of Shares available under the Plan in the aggregate, the
number and class of Shares subject to Awards theretofore granted, applicable
purchase prices and all other applicable provisions, shall, subject to the
provisions of the Plan, be equitably adjusted by the Committee, which adjustment
may, but need not, include payment to the holder of a NSO, in cash or in Shares,
in an amount equal to the difference between the then current Fair Market Value
of the Shares subject to such Award, as equitably determined by the Committee,
and the option price of such NSO, as the case may be. The foregoing adjustment
and the manner of application of the foregoing provisions shall be determined by
the Committee in its sole discretion. Any such adjustment may provide for the
elimination of any fractional Share which might otherwise become subject to an
Award.
10. TERMINATION OF AWARDS UPON CHANGE IN CONTROL.
Notwithstanding anything to the contrary, in the case of a Change in
Control, each Award granted under the Plan shall terminate ninety (90) days
after the occurrence of such Change in Control, but, in the event of any such
termination the Award holder shall have the right, commencing at least five (5)
days prior to the Change in Control and subject to any other limitation on the
exercise of such Award in effect on the date of exercise to immediately exercise
any NSOs in full, without regard to any vesting limitations, to the extent they
shall not have been theretofore exercised.
11. AMENDMENT AND TERMINATION.
(a) Modifications to the Plan.
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The Committee, insofar as permitted by law, may from time to time,
with respect to any Shares at the time not subject to NSOs, suspend, discontinue
or terminate the Plan or revise, alter or amend the Plan in any respect
whatsoever; provided, however, that no amendment of the Plan shall cause the
Plan to be in violation of Rule 16b-3 (including Section (c)(2)(ii)(B)
thereunder).
(b) Rights of Participant.
No amendment, suspension or termination of the Plan that would
adversely affect the right of any Participant with respect to a NSO previously
granted under the Plan will be effective without the written consent of the
affected Participant.
(c) Correction of Defects, Omissions and Inconsistencies.
The Committee may correct any defect, supply any omission or
reconcile any inconsistency in the Plan or any NSO in the manner and to the
extent it shall deem desirable to carry the Plan into effect.
12. MISCELLANEOUS.
(a) Rights of Stockholder.
No Participant and no beneficiary or other person claiming under
or though such Participant shall acquire any rights as a stockholder of the
Company by virtue of such Participant's having been granted a NSO under the
Plan. No Participant and no beneficiary or other person claiming under or
through such Participant will have any right, title or interest in or to any
Shares allocated or reserved under the Plan or subject to any NSO except as to
Shares, if any, that have been issued or transferred to such Participant. No
adjustment shall be made for dividends or distributions or other rights for
which the record date is prior to the date of exercise.
(b) Other Compensation Arrangements.
Nothing contained in the Plan shall prevent the Committee from
adopting other compensation arrangements for Non-Employee Directors, subject to
stockholder approval if such approval is required. Such other arrangements may
be either generally applicable or applicable only in specific cases.
(c) Treatment of Proceeds.
Proceeds realized from the exercise of NSOs under the Plan
constitute general funds of the Company.
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(d) Withholding.
The Company shall be authorized to withhold from any NSO granted
or any payment due or transfer made under any NSO or under the Plan the amount
of withholding taxes due in respect of a NSO, its exercise, or any payment or
transfer under such NSO or under the Plan and to take such other action as may
be necessary in the opinion of the Company to satisfy all obligations for the
payment of such taxes. Upon the exercise of a NSO, the Participant receiving
Shares pursuant thereto may be required to pay the Company the amount of any
such withholding taxes which is required to be withheld with respect to such
Shares.
(e) Cost of the Plan.
The costs and expenses of administering the Plan shall be borne by
the Company.
(f) No Right to Continue as Director.
Nothing contained in the Plan or in any instrument executed
pursuant to the Plan will confer upon any Participant any right to continue as a
member of the Board or affect the right of the Company, the Committee or the
stockholders of the Company to terminate the directorship of any Participant at
any time with or without cause.
(g) Severability.
The provisions of the Plan shall be deemed severable and the
validity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
(h) Binding Effect of Plan.
The Plan shall inure to the benefit of the Company, its successors
and assigns.
(i) Governing Law.
The validity, construction, and effect of the Plan and any rules
and regulations relating to the Plan shall be determined in accordance with the
internal laws of the State of Delaware, without regard to any principles of
conflicts of law, and applicable Federal law.
(j) No Waiver of Breach.
No waiver by any Person at any time or any breach by another
Person of, or compliance with, any condition or provision of the Plan to be
performed by such other Person shall be deemed a waiver of the same, any similar
or any dissimilar provisions or conditions at the same or at any prior or
subsequent time.
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(k) No Trust or Fund Created.
Neither the Plan nor any NSO shall create or be construed to
create a trust or separate fund of any kind or a fiduciary relationship between
the Company and a Participant or any other Person. To the extent that any Person
acquires a right to receive payments from the Company pursuant to an NSO, such
right shall be no greater than the right of any unsecured general creditor of
the Company.
(l) Headings.
The headings contained herein are for references purposes only and
shall not affect in any way the meaning or interpretation of this Plan.
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EXHIBIT 5.1
Opinion of Shereff, Friedman, Hoffman & Goodman, LLP
July 22, 1996
Healthcare Imaging Services, Inc.
Tri-Parkway Corporate Park
200 Schulz Drive
Middletown, New Jersey 07701
Gentlemen and Ladies:
Healthcare Imaging Services, Inc., a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission a
registration statement under the Securities Act of 1933, as amended, on Form S-8
(the "Registration Statement") which relates to 250,000 shares (the "Shares") of
the Company's common stock, par value $.01 per share (the "Common Stock"), which
may be offered from time to time pursuant to the Company's 1996 Stock Option
Plan for Non-Employee Directors (the "Plan"). This opinion is an exhibit to the
Registration Statement.
We have at times acted as counsel to the Company in connection with
certain corporate and securities matters, and in such capacity we are familiar
with the various corporate and other proceedings relating to the proposed offer
and sale of the Shares as contemplated by the Registration Statement. We have
examined copies (in each case signed, certified or otherwise proved to our
satisfaction) of the Company's Certificate of Incorporation as presently in
effect, its By-Laws as presently in effect, minutes and other instruments
evidencing actions taken by its directors and stockholders, the Plan and such
other documents and instruments relating to the Company and the proposed
offering as we have deemed necessary under the circumstances. Insofar as this
opinion relates to securities to be issued in the future, we have assumed that
all applicable laws, rules and regulations in effect at the time of such
issuance will be the same as such laws, rules and regulations in effect as of
the date hereof.
We note that we are members of the Bar of the State of New York and
that we are not admitted to the Bar of the State of Delaware. To the extent that
the opinion expressed herein involves the law of the State of Delaware, our
opinion is based solely upon our reading of the Delaware General Corporation Law
as reported by Prentice Hall Legal and Financial Services.
Based on the foregoing, and subject to and in reliance on the accuracy
and completeness of the information relevant thereto provided to us, it is our
opinion that the Shares to be issued upon the proper exercise of stock options
granted pursuant to the Plan have been duly authorized, and (subject to the
effectiveness of the Registration Statement and compliance with applicable state
securities laws) when issued in accordance with the terms of the Plan, will be
legally and validly issued, fully paid and non-assessable.
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It should be understood that nothing in this opinion is intended to
apply to any disposition of the Shares which any participant or optionee in the
Plan might propose to make.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and as an exhibit to any filing made by the Company under
the securities or "Blue Sky" laws of any state.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes, except as expressly provided in the
preceding paragraph without our express written consent, and no party other than
you is entitled to rely on it. This opinion is rendered to you as of the date
hereof, and we undertake no obligation to advise you of any changes in any
matters herein, whether legal or factual, after the date hereof.
Very truly yours,
/s/ Shereff, Friedman, Hoffman & Goodman, LLP
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
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EXHIBIT 23.1
Consent of Deloitte & Touche LLP
To the Board of Directors and Stockholders
of Healthcare Imaging Services, Inc.
Middletown, New Jersey
We consent to the incorporation by reference in this Registration Statement of
Healthcare Imaging Services, Inc. (the "Company") on Form S-8 of the report of
Deloitte & Touche LLP dated February 24, 1996, appearing in the Annual Report on
Form 10-K of the Company for the year ended December 31, 1995 as amended by the
Company's Form 10-K/A and Form 10-K/A-2.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
New York, New York
July 22, 1996
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