<PAGE>
To Become Effective Upon
Filing Pursuant to Rule
462.
As filed with the Securities and Exchange Commission on June 10, 1996
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Nyer Medical Group, Inc.
(Exact name of registrant as specified in its charter)
Florida 65-0044209
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1292 Hammond Street, Bangor, Maine 04401
(Address of Principal Executive Offices) (Zip Code)
1993 Stock Option Plan
(Full title of the plan)
Michael D. Harris, Esq.
Cohen, Chernay, Norris, Weinberger & Harris
712 U.S. Highway One, Suite 400
North Palm Beach, Florida 33408
(Name and address of agent of service)
(407) 844-3600
(Telephone number, including area code, of agent for service)
Approximate Date of Commencement of Proposed Sales under the Plan:
as soon as practicable after this
Registration Statement becomes effective.
<PAGE>
Calculation of Registration Fee
Title of Proposed Proposed
Securities Amount To Maximum Maximum Amount of
To be Be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price* Fee*
Common Shares,
par value $.0001
per share 275,000 $16.31 $4,485,250 $1,546.64
* Calculated pursuant to Rule 457(c) based on the average
of the bid and asked price of the Company's stock on June 3, 1996.
<PAGE>
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are incorporated herein by reference the following
documents:
1. Nyer Medical Group, Inc.'s (the "Company") latest annual
report filed pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") which contains, either
directly or by incorporation by reference, certified financial
statements for the Company's latest fiscal year for which such
statements have been filed.
2. All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered
by the annual reports.
3. The description of the Company's common stock contained
in the Company's Registration Statement under Section 12 of the
Exchange Act, including any amendment or report filed for the
purpose of updating such description.
4. All reports subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to
the termination of the offering of the securities covered by this
Prospectus shall be deemed to be incorporated herein by reference
and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Company's by-laws, provide that the Company shall
indemnify its current and former officers, directors, employees and
agents against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement arising out of his or her
services on behalf of the Company subject to the qualifications
contained in Florida law as it now exists. Florida law generally
provides that a corporation shall have such power to indemnify such
persons to the extent they acted in good faith in a manner
reasonably believed to be in, or not opposed to, the best interests
of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was
unlawful. In the event any such person shall be judged liable for
<PAGE>
negligence or misconduct, in the performance of his or her duties
such indemnification shall apply only if approved by the Court of
Chancery or the Court in which the action was pending. Any other
indemnification shall be made only after the determination by the
board of directors (excluding any directors who were party to such
action), by independent legal counsel in a written opinion, or by
a majority vote of stockholders (including any stockholders who
were parties to such action).
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER
THE SECURITIES ACT OF 1933 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 ACT AND IS THEREFORE
UNENFORCEABLE.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit 4 1993 Stock Option Plan
Exhibit 4.1Amendment to the 1993 Stock Option Plan
of Nyer Medical Group, Inc.
Exhibit 5 Opinion of Cohen, Chernay, Norris,
Weinberger & Harris
Exhibit 24Consent of Coopers & Lybrand
Exhibit 24.1Consent of Cohen, Chernay, Norris,
Weinberger & Harris*
* Contained in the Opinion of Cohen, Chernay, Norris, Weinberger
& Harris
Item 9. Undertakings.
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;
<PAGE>
(2)To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933 (the
"Securities Act");
(i)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;
(ii) 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 (i) and
(ii) do not apply since the Registration Statement is
on Form S-8 and the information required to be included
in post-effective amendment by those paragraphs is
contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this
Registration Statement.
(3)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 therein.
(4)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.
(5)The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(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.
(6)Insofar as indemnification for liabilities arising
<PAGE>
under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Company 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 Securities 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 Bangor,
Maine, on this 5th day of June 1996.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement of Nyer Medical Group, Inc. has been
signed by the following persons in the capacities and on the dates
indicated.
Signatures Title Date
/s/ Samuel Nyer Chairman of the Board June __, 1996
Samuel Nyer
/s/ Karen L. Wright Treasurer (Principal June __, 1996
Karen L. Wright Financial and
Accounting Officer)
/s/ William Clifford, Jr. Director June__, 1996
William Clifford, Jr.
/s/ Michael Anton Director June __, 1996
Michael Anton
/s/ Donald Lewis Director June __, 1996
Donald Lewis
/s/ Kenneth Nyer, M.D. Director June __, 1996
Kenneth Nyer, M.D.
/s/ Howard Parker, M.D. Director June __, 1996
Howard Parker, M.D.
/s/ Daniel Striar Director June __, 1996
Daniel Striar
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER ITEM
4 1993 Stock Option Plan
4.1 Amendment to the 1993 Stock Option Plan of
Nyer Medical Group, Inc.
5 Opinion of Cohen, Chernay, Norris, Weinberger &
Harris
24 Consent of Coopers & Lybrand
24.1 Consent of Cohen, Chernay, Norris, Weinberger &
Harris*
* Contained in the Opinion of Cohen, Chernay, Norris, Weinberger
& Harris
<PAGE>
EXHIBIT 4
<PAGE>
NYER MEDICAL GROUP, INC.
1993 STOCK OPTION PLAN
1. Purpose and Eligibility. This 1993 Stock Option Plan
(the "Plan") is intended to advance the interests of Nyer Medical
Group, Inc. (the "Company") and its Related Corporations as defined
below by enhancing the ability of the Company to attract and retain
qualified employees, consultants, officers and directors by
creating incentives and rewards for their contributions to the
success of the Company. This Plan will provide to: (a) officers
and other employees of the Company and its Related Corporations
opportunities to purchase common stock (the "Common Stock") in the
Company pursuant to options granted hereunder which qualify as
incentive stock options ("ISOs") under Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code"); (b)
directors, officers, employees and consultants of the Company and
Related Corporations opportunities to purchase stock in the Company
pursuant to options granted hereunder which do not qualify as ISOs
("Non-Qualified Options"); and (c) directors of the Company and
Related Corporations who are not officers or employees of the
Company or Related Corporations with the opportunities to purchase
stock in the Company pursuant to options granted hereunder ("Non-
Discretionary Options"). ISOs, Non-Qualified Options and Non-
Discretionary Options are referred to hereafter as "Options".
For purposes of the Plan, the term "Related Corporations"
shall mean a corporation which is a subsidiary corporation with
respect to the Company within the meaning of Section 425(f) of the
Code.
2. Administration of the Plan.
a.The Plan shall be administered by the board of
directors of the Company (the "Board"). The Board may, in its
discretion, delegate its powers with respect to the Plan to an
employee benefit plan committee or any other committee (the
"Committee"). The Committee shall consist of not fewer than two
members. Each of the members must be a "disinterested person" as
that term is defined in Rule 16b-3 adopted pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act"). A majority
of the members of any such Committee shall constitute a quorum, and
all determinations of the Committee shall be made by the majority
of its members present at a meeting. Any determination of the
Committee under the Plan may be made without notice or meeting of
the Committee by a writing signed by all of the Committee members.
Subject to ratification of each of the Options by the Board (but
only if so required by applicable state law), and subject to the
terms of the Plan, the Committee shall have the authority to (i)
determine the employees of the Company and Related Corporations
(from among the class of employees eligible under Paragraph 3 to
receive ISOs) to whom ISOs may be granted, and to determine (from
<PAGE>
among the class of individuals and entities eligible under
Paragraph 3 to receive Non-Qualified Options) to whom Non-Qualified
Options may be granted; (ii) determine the time or times at which
Options may be granted; (iii) determine the exercise price of
shares subject to each Option which price for any ISO shall not be
less than the minimum price specified in Paragraph 6; (iv)
determine whether each Option granted shall be an ISO or a Non-
Qualified Option; (v) determine (subject to Paragraph 7) the time
or times when each Option, except for non-discretionary Options,
shall become exercisable, the duration of the exercise period and
when each Option shall vest; (vi) determine whether restrictions
such as repurchase options are to be imposed on shares subject to
Options and the nature of such restrictions, if any, and (vii)
interpret the Plan and promulgate and rescind rules and regulations
relating to it. The interpretation and construction by the
Committee of any provisions of the Plan or of any Option shall be
final, binding and conclusive unless otherwise determined by the
Board. The Committee may from time to time adopt such rules and
regulations for carrying out the Plan as it may deem best.
No members of the Committee or the Board shall be liable for
any action or determination made in good faith with respect to the
Plan or any Option granted under it. No member of the Committee or
the Board shall be liable for any act or omission of any other
member of the Committee or the Board or for any act or omission on
his own part, including but not limited to the exercise of any
power and discretion given to him under the Plan, except those
resulting from his own gross negligence or willful misconduct.
b.The Committee may select one of its members as its
chairman and shall hold meetings at such time and places as it may
determine. All references in this Plan to the Committee shall mean
the Board if no Committee has been appointed. From time to time
the Board may increase the size of the Committee and appoint
additional members thereof, remove members (with or without cause)
and appoint new members in substitution therefor, fill vacancies
however caused or remove all members of the Committee and
thereafter directly administer the Plan.
c.Options may be granted to members of the Board,
whether such grants of Options are in their capacity as directors,
officers or consultants, but no discretionary Options shall be
granted to any person who is, at the time of the proposed grant of
Option, a member of the Board unless such grant of Option has been
approved as provided in paragraph 2d. All grants of Options to
members of the Board shall in all other respects be made in
accordance with the provisions of this Plan applicable to other
eligible persons. Members of the Board who are either (i) eligible
for grants of Options pursuant to the Plan or (ii) have been
granted Options may vote on any matters affecting the
administration of the Plan or the grant of any Options pursuant to
<PAGE>
the Plan, except that no such member shall act upon the granting to
himself of discretionary Options, but any such member may be
counted in determining the existence of a quorum at any meeting of
the Board during which action is taken with respect to the granting
to him of Options.
d.Notwithstanding any other provision of Paragraph 2,
any discretionary grants to a person who is a member of the Board
shall be made only by the Board; provided, however, that if a
majority of the Board is eligible to participate in the Plan or in
any other stock option or other stock plan of the Company or any of
its Related Corporations, or has been so eligible at any time
within the preceding year, any grant to directors of Options must
be made by, or only in accordance with the recommendation of, a
Committee consisting of two or more persons, who shall be directors
of the Company, appointed by the Board but having full authority to
act in the matter, none of whom is eligible to participate in this
Plan or any other stock option or other stock plan of the Company
or any of its affiliates, or has been eligible at any time within
the preceding year. The requirements imposed by this subparagraph
2d shall also apply with respect to grants to officers who are also
directors. Once appointed such Committee shall continue to serve
until otherwise directed by the Board.
e.In addition to such other rights of indemnification
as he may have as a member of the Board, and with respect to
administration of the Plan and the granting of Options under it,
each member of the Board and of the Committee shall be entitled
without further act on his part to indemnification from the Company
pursuant to Florida law. Section 607.0850 of the Florida Business
Corporation Act (the "FBCA"), grants to a corporation the power to
indemnify its officers and directors for all reasonable expenses
incurred by such individuals in connection with the defense or
settlement of an action. Even if there is a finding of liability
the Court can award indemnification if it finds that the officer
and/or director 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, had no reasonable cause to believe his conduct was
unlawful. Unless ordered by the Court, this determination shall be
made (1) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such proceeding;
(2) if such quorum is not obtainable, or, even if obtainable, by a
majority vote of a committee duly designated by the board of
directors (in which directors who are parties may participate)
consisting solely of two or more directors not at the time parties
to the proceeding; (3) by independent legal counsel selected by the
board of directors described in (1) above or the committee
described in (2) above or if a quorum of directors for (1) above
cannot be obtained and the committee in (2) above cannot be
designated, selected by a majority vote of the full board of
<PAGE>
directors (in which directors who are parties may participate); or
by a majority vote of the shareholders of a quorum consisting of
shareholders who were not parties to such proceeding, or if such
quorum is not obtainable, by a majority vote of shareholders who
were no parties to such proceeding.
However, if such individual has been adjudged liable to the
corporation, he will not be entitled to indemnification without
court approval. The FBCA also contains provisions allowing the
advancement of expenses under certain circumstances.
The foregoing right of indemnification shall inure to the
benefit of the heirs, executors or administrators of each such
member of the Board or the Committee and shall be in addition to
all other rights to which such member of the Board or the Committee
would be entitled to as a matter of law, contract or otherwise.
The indemnification provided by this Section 2e shall only be made
after the requirements of Section 607.0850 of the FBCA has been
complied with or as required by the Company's bylaws as amended
except that the Company may, in its discretion, pay for or
reimburse reasonable expenses incurred by a director who is a party
to a proceeding in advance of the final disposition of the
proceeding in accordance with the provisions of Section
607.0805(6)(7) of the FBCA.
3. Eligible Employees and Others.
a.ISOs may be granted to any employee of the Company
or any Related Corporation. Those officers and directors of the
Company who are not employees may not be granted ISOs under the
Plan. Subject to compliance with Rule 16b-3 and other applicable
securities laws, Non-Qualified Options may be granted to any
director (whether or not an employee), officer, employee or
consultant of the Company or any Related Corporation. The
Committee may take into consideration a recipient's individual
circumstances in determining whether to grant an ISO or a Non-
Qualified Option. Granting of any Option to any individual or
entity shall neither entitle that individual or entity to, nor
disqualify him from participation in any other grant of Options.
b.All directors of the Company who are not employees
of the Company or Related Corporations shall automatically receive
grants of 12,000 Non-Discretionary Options (i) at the time this
Plan is adopted by the Board; (ii) upon election or appointment to
the Board if not a member of the Board at the time this Plan is
adopted by the Board; and (iii) upon election to the Board after
all Options previously granted have vested. In addition, if on
June 30 or December 31 of a given year, such person is still
serving as a member of the Board, he shall receive a grant of 2,000
shares of Common Stock on such date, which 2,000 shares shall be
adjusted pro-rata at the time of election of the Board based upon
<PAGE>
the number of days from the date of the 2,000 share grant divided
by the number of days in such six-month period at which the
shareholder meeting is held.
(1) The exercise price of the Options shall be
the fair market value on the date of grant as defined by Paragraph
6.
(2) The Options shall vest in equal increments
of 2,000 Options per director on June 30 and December 31 of each
year, provided that the director is still serving as a director of
the Company. To the extent that any Options which have not been
exercised do not vest, the Options shall lapse and no longer be
exercisable.
c.The Options shall be exercisable for a period of 10
years from the date of grant, except where a shorter period is
required by the Code for certain ISOs.
4. Stock. The stock subject to Options shall be authorized
but unissued shares of Common Stock or shares of Common Stock
reacquired by the Company in any manner. The aggregate number of
shares of Common Stock which may be issued pursuant to the Plan is
150,000, subject to adjustment as provided in Paragraph 13. Any
such shares may be issued as ISOs, Non-Qualified Options or Non-
Discretionary Options so long as the number of shares so issued
does not exceed such number, as adjusted. If any Option granted
under the Plan shall expire or terminate for any reason without
having been exercised in full or shall cease for any reason to be
exercisable in whole or in part, or if the Company shall reacquire
any unvested shares issued pursuant to evidence of Options, such
shares shall again be available for grants of Options under the
Plan.
5. Granting of Options. Options may be granted under the
Plan at any time on and after July 20, 1993; provided, however,
that no ISO shall be granted more than 10 years after the effective
date of this Plan. The date of grant of an Option under the Plan
will be the date of grant by the Committee unless otherwise
specified at the time it grants the Option; provided, however, that
such date shall not be prior to the date on which the Committee
acts to approve the grant. The Committee shall have the right,
with the consent of the optionee, to convert an ISO granted under
the Plan to a Non-Qualified Option pursuant to Paragraph 16.
<PAGE>
6. ISO Minimum Option Price and Other Limitations.
a.The exercise price per share specified in the stock
option agreement relating to each ISO granted under the Plan shall
not be less than the fair market value per share of Common Stock on
the date of such grant. In the case of an ISO to be granted to an
employee owning stock which represents more than 10 percent of the
total combined voting power of all classes of stock of the Company
or any Related Corporation, the price per share specified in the
agreement relating to such ISO shall not be less than 110 percent
of the fair market value per share of Common Stock on the date of
grant and such ISO shall not be exercisable after the expiration of
five years from the date of grant.
b.In no event shall the aggregate fair market value
(determined at the time an ISO is granted) of Common Stock for
which ISOs granted to any employee are exercisable for the first
time by such employee during any calendar year (under all stock
option plans of the Company and any Related Corporation) exceed
$100,000.
c.If, at the time an Option is granted under the Plan,
the Company's Common Stock is publicly traded, "fair market value"
shall be determined as of the last business day for which the
prices or quotes discussed in this sentence are available prior to
the date such Option is granted and shall mean:
(1)the closing price of the Company's shares
appearing on a national securities exchange if such shares are
listed on such an exchange or if not listed, appearing on the
National Association of Securities Dealers Automated Quotation
System ("NASDAQ");
(2)if the Company's shares are not listed on
NASDAQ, then the average bid and asked price for its shares as
listed on the National Association of Securities Dealers, Inc.'s
Electronic Bulletin Board (the "Bulletin Board"); or
(3)if the Company's shares are not listed on the
Bulletin Board, then the average bid and asked price for the
Company's shares as listed in the National Quotation Bureau's pink
sheets; or
(4)if there are no listed bid and asked prices
published in the pink sheets, then the fair market value shall be
based upon the average closing bid and asked price as determined
following a polling of all dealers making a market in the Company's
shares.
7. Duration of Options. Subject to earlier termination as
provided in Paragraphs 9 and 10, each Option shall expire on the
<PAGE>
date specified in the original instrument granting such Option,
(except with respect to any part of an ISO that is converted into
a Non-Qualified Option pursuant to Paragraph 16); provided,
however, that such instrument must comply with Section 422 of the
Code with regard to ISOs granted to all employees and Rule 16b-3 of
the Exchange Act with regard to all Options granted to executive
officers, directors and 10% shareholders of the Company.
8. Exercise of Options. Subject to the provisions of
Paragraphs 3b and 9 through 13, each Option granted under the Plan
shall be exercisable as follows:
a.The Options shall either be fully exercisable from
the date of grant or shall become exercisable thereafter in such
installments as the Committee may specify.
b.Once an installment becomes exercisable it shall
remain exercisable until expiration or termination of the Option,
unless otherwise specified by the Committee.
c.Each Option or installment, once it becomes
exercisable, may be exercised at any time or from time to time, in
whole or in part, for up to the total number of shares with respect
to which it is then exercisable.
d.The Committee shall have the right to accelerate the
date of exercise of any installment of any Option; provided that
the Committee shall not accelerate the exercise date of any
installment of any Option granted to any employee as an ISO (and
not previously converted into a Non-Qualified Option pursuant to
Paragraph 16) if such acceleration would violate the annual vesting
limitation contained in Section 422(d) of the Code as described in
Paragraph 6b. The date of exercise of all Options shall accelerate
in the event of any of the following: (i) the Company is to merge
or consolidate with or into any other corporation or entity except
a transaction where the Company is the surviving corporation or a
change of domicile merger or similar transaction exempt from
registration under the Securities Act of 1933 (the "Act"), (ii) the
sale of all or substantially all of the Company's assets, (iii) the
sale of at least 90% of the outstanding Common Stock of the Company
to a third party (subparagraphs (i), (ii) and (iii) collectively
referred to as an "Acquisition"); or (iv) the Company is dissolved.
Upon a minimum of 20 days' prior written notice to the optionees,
the exercisability of such Options shall commence two business days
prior to the earlier of the scheduled closing of an Acquisition or
proposed dissolution or the actual closing of an Acquisition or
proposed dissolution.
e.All Options shall be subject to any vesting
requirements imposed by the Committee. In the event of an
Acquisition or dissolution of the Company, all unvested Options
<PAGE>
shall immediately vest two business days prior to the earlier of
the scheduled closing of the Acquisition or proposed dissolution or
the actual closing of the Acquisition or proposed dissolution and
a minimum of 20 days' notice of such vesting shall be given to the
holders of such Options.
9. Termination of Employment. Subject to any greater
restrictions or limitations as may be imposed by the Committee upon
the granting of any ISO, if an ISO optionee ceases to be employed
by the Company and all Related Corporations other than by reason of
death or disability as defined in Paragraph 10, no further
installments of his ISOs shall become exercisable or vest, and his
ISOs shall terminate on the day three months after the day of the
termination of his employment, but in no event later than on their
specified expiration dates, except to the extent that such ISOs (or
unexercised installments thereof) have been converted into Non-
Qualified Options pursuant to Paragraph 16. Employment shall be
considered as continuing uninterrupted during any bona fide leave
of absence (such as those attributable to illness, military
obligations or governmental service), provided that the period of
such leave does not exceed 90 days or, if longer, any period during
which such optionee's right to re-employment is guaranteed by
statute. A leave of absence with the written approval of the
Company's Board shall not be considered an interruption of
employment under the Plan, provided that such written approval
contractually obligates the Company or any Related Corporation to
continue the employment of the optionee after the approved period
of absence. ISOs granted under the Plan shall not be affected by
any change of employment within or among the Company and Related
Corporations so long as the optionee continues to be an employee of
the Company or any Related Corporation.
10. Death or Disability. Subject to any greater restrictions
or limitations as may be imposed by the Committee upon the granting
of any ISO:
a.If an ISO optionee ceases to be employed by the
Company and all Related Corporations by reason of his death, any
ISO of his may be exercised to the extent of the number of shares
with respect to which he could have exercised it on the date of his
death, by his estate, personal representative or beneficiary who
has acquired the ISO by will or by the laws of descent and
distribution, at any time prior to the earlier of the ISO's
specified expiration date or three months from the date of the
optionee's death.
b.If an ISO optionee ceases to be employed by the
Company and all Related Corporations by reason of his disability,
he shall have the right to exercise any ISO held by him on the date
of termination of employment to the extent of the number of shares
with respect to which he could on the earlier of the ISO's
<PAGE>
specified expiration date or one year from the date of the
termination of the optionee's employment. For the purposes of the
Plan, the term "disability" shall mean "permanent and total
disability" as defined in Section 22(e)(3) of the Code or successor
statute.
11. Assignability. No Option granted to an executive officer
or director of the Company or beneficial owner of 10% or more of
the Company's equity securities registered pursuant to Section 12
of the Exchange Act and no ISO shall be assignable or transferable
by the grantee except by will or by the laws of descent and
distribution and during the lifetime of the grantee each Option
shall be exercisable only by him, his guardian or legal
representative.
12. Terms and Conditions of Options. Options shall be
evidenced by instruments (which need not be identical) in such
forms as the Committee may from time to time approve. Such
instruments shall conform to the terms and conditions set forth in
Paragraphs 6 through 11 hereof and may contain such other
provisions as the Committee deems advisable which are not
inconsistent with the Plan, including restrictions applicable to
shares of Common Stock issuable upon exercise of Options. In
granting any Non-Qualified Option, the Committee may specify that
such Non-Qualified Option shall be subject to the restrictions set
forth herein with respect to ISOs, or to such other termination and
cancellation provisions as the Committee may determine. The
Committee may from time to time confer authority and responsibility
on one or more of its own members and/or one or more officers of
the Company to execute and deliver such instruments. The proper
officers of the Company are authorized and directed to take any and
all action necessary or advisable from time to time to carry out
the terms of such instruments.
13. Adjustments. Upon the occurrence of any of the following
events, an optionee's rights with respect to Options granted to him
hereunder shall be adjusted as hereinafter provided unless
otherwise specifically provided in the written agreement between
the optionee and the Company relating to such Option:
a.If the shares of Common Stock shall be subdivided or
combined into a greater or smaller number of shares or if the
Company shall issue any shares of Common Stock as a stock dividend
on its outstanding Common Stock, the number of shares of Common
Stock deliverable upon the exercise of Options shall be
appropriately increased or decreased proportionately, and
appropriate adjustments shall be made in the purchase price per
share to reflect such subdivision, combination or stock dividend.
b.If the Company is to be consolidated with or
acquired by another entity pursuant to an Acquisition, the
<PAGE>
Committee or the board of directors of any entity assuming the
obligations of the Company hereunder (the "Successor Board") shall,
as to outstanding Options not exercised pursuant to Paragraph 8,
either (i) make appropriate provision for the continuation of such
Options by substituting on an equitable basis for the shares then
subject to such Options the consideration payable with respect to
the outstanding shares of Common Stock in connection with the
Acquisition; or (ii) terminate all Options in exchange for a cash
payment equal to the excess of the fair market value of the shares
subject to such Options over the exercise price thereof.
c.In the event of a recapitalization or reorganization
of the Company (other than a transaction described in subparagraph
b above) pursuant to which securities of the Company or of another
corporation are issued with respect to the outstanding shares of
Common Stock, an optionee upon exercising an Option shall be
entitled to receive for the purchase price paid upon such exercise
the securities he would have received if he had exercised his
Option prior to such recapitalization or reorganization.
d.Notwithstanding the foregoing, any adjustments made
pursuant to subparagraphs a., b. or c. with respect to ISOs shall
be made only after the Committee, after consulting with counsel for
the Company, determines whether such adjustments would constitute
a "modification" of such ISOs (as that term is defined in Section
425(h) of the Code) or would cause any adverse tax consequences for
the holders of such ISOs. If the Committee determines that such
adjustments made with respect to ISOs would constitute a
modification of such ISOs it may refrain from making such
adjustments.
e.Except as expressly provided herein, no issuance by
the Company of shares of Common Stock of any class or securities
convertible into shares of Common Stock of any class shall affect,
and no adjustment by reason thereof shall be made with respect to,
the number or price of shares subject to Options. No adjustments
shall be made for dividends or other distributions paid in cash or
in property other than securities of the Company.
f.No fractional share shall be issued under the Plan
and the optionee shall receive from the Company cash in lieu of
such fractional shares.
g.Upon the happening of any of the foregoing events
described in subparagraphs a., b. or c. above, the class and
aggregate number of shares set forth in Paragraph 13 hereof that
are subject to Options which previously have been or subsequently
may be granted under the Plan shall also be appropriately adjusted
to reflect the events described in such subparagraphs. The
Committee or the Successor Board shall determine the specific
adjustments to be made under this Paragraph 13 and, subject to
<PAGE>
Paragraph 2, its determination shall be conclusive. If any person
or entity owning restricted Common Stock obtained by exercise of an
Option made hereunder receives shares or securities or cash in
connection with a corporate transaction described in subparagraphs
a., b. or c. above as a result of owning such restricted Common
Stock, such shares or securities or cash shall be subject to all of
the conditions and restrictions applicable to the restricted Common
Stock with respect to which such shares or securities or cash were
issued, unless otherwise determined by the Committee or the
Successor Board.
14. Means of Exercising Options.
a.An Option (or any part or installment thereof) shall
be exercised by giving written notice to the Company at its
principal office address. Such notice shall identify the Option
being exercised and specify the number of shares as to which such
Option is being exercised, accompanied by full payment of the
purchase or exercise price therefor either (i) in United States
dollars in cash; (ii) at the discretion of the Committee, through
delivery of shares of Common Stock having a fair market value equal
as of the date of the exercise to the cash exercise price of the
Option; (iii) at the discretion of the Committee, by delivery of
the grantee's personal recourse note bearing interest payable not
less than annually at no less than 100% of the lowest applicable
federal rate, as defined in Section 1274(d) of the Code, or (iv) at
the discretion of the Committee, by any combination of (i), (ii)
and (iii) above. If the Committee exercises its discretion to
permit payment of the exercise price of an ISO by means of the
methods set forth in clauses (ii), (iii) or (iv) of the preceding
sentence, such discretion shall be exercised in writing at the time
of the grant of the ISO in question. The holder of an Option shall
not have the rights of a shareholder with respect to the shares
covered by his Option until the date of issuance of a stock
certificate to him for such shares. Except as expressly provided
above in Paragraph 13 with respect to changes in capitalization and
stock dividends, no adjustment shall be made for dividends or
similar rights for which the record date is before the date such
stock certificate is issued.
b.Each notice of exercise shall, unless the Option
shares are covered by a then current registration statement under
the Act, contain the optionee's acknowledgment in form and
substance satisfactory to the Company that (i) such Option shares
are being purchased for investment and not for distribution or
resale (other than a distribution or resale which, in the opinion
of counsel satisfactory to the Company, may be made without
violating the registration provisions of the Act), (ii) the
optionee has been advised and understands that (1) the Option
shares have not been registered under the Act and are "restricted
securities" within the meaning of Rule 144 under the Act and are
<PAGE>
subject to restrictions on transfer and (2) the Company is under no
obligation to register the Option shares under the Act or to take
any action which would make available to the optionee any exemption
from such registration, and (iii) such Option shares may not be
transferred without compliance with all applicable federal and
state securities laws. Notwithstanding the above, should the
Company be advised by counsel that issuance of shares should be
delayed pending registration under federal or state securities laws
or the receipt of an opinion that an appropriate exemption
therefrom is available, the Company may defer exercise of any
Option granted hereunder until either such event has occurred.
15. Term and Amendment of Plan. This Plan was adopted by the
Board on July 21, 1993 and if not approved by the holders of at
least a majority of all shares present in person and by proxy and
entitled to vote therein at a meeting of the shareholders of the
Company within 12 months from the date of the Plan's adoption by
the Board, no ISOs may be granted pursuant to the Plan. Nor shall
the Plan in such event conform to Rule 16b-3 promulgated under the
Exchange Act. This Plan shall have no expiration date; provided,
however, that no ISOs shall be granted more than 10 years after the
Plan's effective date. The Board may terminate or amend the Plan
in any respect at any time. However, if approved by the
shareholders on or before July 21, 1994, approval of the
shareholders must be obtained within 12 months before or after the
Board adopts a resolution authorizing any of the following actions:
(a) increase of the total number of shares that may be issued
under the Plan (except by adjustment pursuant to Paragraph 13); (b)
modification of the provisions of Paragraph 3 regarding eligibility
for grants of ISOs; and (c) any other act requiring shareholder
approval under Rule 16b-3 (or successor rule) promulgated under the
Exchange Act. Except as provided herein or as specified in the
original instrument granting such Option, no action of the Board or
shareholders may alter or impair the rights of a grantee, without
his consent, under any Option previously granted to him.
16. Conversion of ISOs into Non-Qualified Options;
Termination of ISOs. The Committee, at the written request of any
optionee, may in its discretion take such actions as may be
necessary to convert such optionee's ISOs (or any installments or
portions of installments thereof) that have not been exercised on
the date of conversion into Non-Qualified Options at any time prior
to the expiration of such ISOs, regardless of whether the optionee
is an employee of the Company or a Related Corporation at the time
of such conversion. Such actions may include, but not be limited
to, extending the exercise period or reducing the exercise price of
the appropriate installments of such Options. At the time of such
conversion, the Committee (with the consent of the optionee) may
impose such conditions on the exercise of the resulting Non-
Qualified Options as the Committee in its discretion may determine,
provided that such conditions shall not be inconsistent with this
<PAGE>
Plan. Nothing in the Plan shall be deemed to give any optionee the
right to have such optionee's ISOs converted into Non-Qualified
Options, and no such conversion shall occur until and unless the
Committee takes appropriate action. The Committee, with the
consent of the optionee, may also terminate any portion of any ISO
that has not been exercised at the time of such termination.
17. Application of Funds. The proceeds received by the
Company from the sale of shares pursuant to Options granted and
Purchases authorized under the Plan shall be used for general
corporate purposes.
18. Governmental Regulations. The Company's obligation to
sell and deliver shares of the Common Stock under this Plan is
subject to the approval of any governmental authority required in
connection with the authorization, issuance or sale of such shares.
19. Withholding of Additional Income Taxes. Upon the
exercise of a Non-Qualified Option or the making of a Disqualifying
Disposition (as defined in Paragraph 21) the Company, in accordance
with Section 3402(a) of the Code may require the optionee to pay
additional withholding taxes in respect of the amount that is
considered compensation includable in such person's gross income.
The Committee, in its discretion, may condition the exercise of an
Option on the payment of such withholding taxes.
To the extent that the Company is required to withhold taxes
for federal income tax purposes in connection with the exercise of
any Option, the optionee shall have the right to elect to satisfy
such withholding requirement by (i) paying the amount of the
required withholding tax to the Company; (ii) delivering to the
Company shares of its Common Stock previously owned by the
optionee; or (iii) having the Company retain a portion of the
shares covered by the Option exercise. The number of shares to be
delivered to or withheld by the Company times the fair market value
of such shares shall equal the cash required to be withheld. To
the extent that the participant elects to either deliver or have
withheld shares of the Company's Common Stock, the Board, or the
Committee, may require him to make such election only during
certain period of time as may be necessary to comply with
appropriate exemptive procedures regarding the "short-swing" profit
provisions of Section 16(b) of the Exchange Act or to meet certain
Code requirements.
20. Notice to Company of Disqualifying Disposition. Each
employee who receives an ISO must agree to notify the Company in
writing immediately after the employee makes a Disqualifying
Disposition of any Common Stock acquired pursuant to the exercise
of an ISO. A Disqualifying Disposition is any disposition
(including any sale) of such Common Stock before the later of (i)
two years after the date of employee was granted the ISO or (ii)
<PAGE>
one year after the date the employee acquired Common Stock by
exercising the ISO. If the employee has died before such stock is
sold, these holding period requirements do not apply and no
Disqualifying Disposition can occur thereafter.
21. Continued Employment. The grant of an Option pursuant to
the Plan shall not be construed to imply or to constitute evidence
of any agreement, express or implied, on the part of the Company or
any Related Corporation to retain the optionee in the employ of the
Company or a Related Corporation, as a member of the Company's
board of directors or in any other capacity, whichever the case may
be.
22. Bonuses or Loans to Exercise Options. If requested by
any person to whom a grant of an Option has been made, the Company
or any Related Corporation may, in its sole discretion, loan such
person or guarantee a bank loan to such person for the purpose of
paying for the shares of the Common Stock. If requested by any
person to whom a grant of an Option has been made, the Company or
any Related Corporation may, in its sole discretion, loan such
person, guarantee a bank loan to such person, or pay such person
additional compensation equal to the amount of money necessary to
pay the federal income taxes incurred as a result of the grant or
the exercise of the Option, assuming that such person is in the
maximum federal income tax bracket six months from the time of
grant or exercise and assuming that such person has no deductions
which would reduce the amount of such tax owed. The tax loan shall
be made or tax offset bonus paid on or after April 15th of the year
following the year in which the amount of tax is determined, and
any loan shall be made on such terms as the Company or lending bank
determines.
23. Limitations on Sale of Shares. Any shares of the
Company's Common Stock acquired pursuant to an Option under this
Plan as set forth herein cannot be sold for at least six months
from the date of the grant, except in case of death or disability.
Nothing in this Paragraph 23 shall be deemed to reduce the holding
period set forth under the applicable securities laws.
24. Governing Law; Construction. The validity and
construction of the Plan and the instruments evidencing Options
shall be governed by the laws of the State of Florida. In
construing this Plan, the singular shall include the plural and the
masculine gender shall include the feminine and neuter, unless the
context otherwise requires.
<PAGE>
EXHIBIT 4.1
<PAGE>
AMENDMENT TO THE 1993 STOCK OPTION PLAN
OF NYER MEDICAL GROUP, INC.
Paragraph 4 is hereby deleted and replaced with the following:
4. Stock. The stock subject to Options, shall be
authorized but unissued shares of Common Stock or shares of Common
Stock reacquired by the Company in any manner. The aggregate
number of shares of Common Stock which may be issued pursuant to
the Plan is 275,000, subject to adjustment as provided in Paragraph
13. Any such shares may be issued as ISOs, Non-Qualified Options
or Non-Discretionary Options, so long as the number of shares so
issued does exceed such number, as adjusted. If any Option granted
under the Plan shall expire or terminate for any reason without
having been exercised in full or shall cease for any reason to be
exercisable in whole or in part, or if the Company shall reacquire
any unvested shares issued pursuant to evidence of Options, such
shares shall again be available for grants of Options under the
Plan.
<PAGE>
EXHIBIT 5
<PAGE>
June 5, 1996
Nyer Medical Group, Inc.
1292 Hammond Street
Bangor, Maine 04402
Re: Nyer Medical Group, Inc./Form S-8
Dear Sirs:
You have advised us that Nyer Medical Group, Inc. (the "Company") is
filing with the Securities and Exchange Commission a Registration
Statement on Form S-8 (the "Registration Statement") with respect to
275,000 shares of common stock, par value $.0001 per share.
In connection with the filing of this Registration Statement, you have
requested us to furnish you with our opinion as to the legality of (i)
such of the Company's shares as are presently outstanding; and (ii) such
securities as shall be offered by the Company itself pursuant to the
Prospectus which is part of the Registration Statement.
You have advised us that as of June 4, 1996 the Company's authorized
capital consists of 10,000,000 shares of common stock, par value $.0001,
of which 3,072,793 shares have been issued. You have further advised us
that the Company has received valid consideration for the issuance of
these shares.
After having examined the Company's articles of incorporation, as
amended, bylaws, minutes, the 1993 Stock Option Plan and the Amendment
to the 1993 Stock Option Plan of Nyer Medical Group, Inc. and financial
statements incorporated by reference into the Registration Statement, we
are of the opinion that the issued and outstanding shares of common
stock (numbering 3,072,793) are, and the unissued securities to be
offered by the Company itself pursuant to the Registration Statement
will be, when offered and sold fully paid and nonassessable, duly
authorized and validly issued.
Very truly yours,
/s/ COHEN, CHERNAY, NORRIS
WEINBERGER & HARRIS
<PAGE>
EXHIBIT 24
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Nyer Medical Group, Inc. on Form S-8 of our report dated March 28, 1996,
on our audits of the consolidated financial statements of Nyer Medical Group,
Inc. as of December 31, 1995 and 1994, and for the years ended, which report
is incorporated by reference in the annual report on Form 10-KSB.
/s/ Coopers & Lybrand L.L.P.
Portland, Maine
June 5, 1996
