Lyle B. Stewart, P.C.
3751 South Quebec Street
Denver, Colorado 80237
Telephone: 303-267-0920
Fax: 303-267-0922
United States Securities and
Exchange Commission March 1, 2000
Division of Corporation Finance
450 Fifth Street, N.W.
Washington, D.C. 20459
Dear Madams and Sirs:
On behalf of my client, Medix Resources, Inc., I am filing herewith a Form S-8
relating to such company's Stock Option Plans and non-Plan stock option
agreements.
If you have any questions about this filing, please contact the undersigned at
the telephone or fax numbers indicated above.
Very truly yours
/s/ Lyle B. Stewart
<PAGE>
Registration No. 333- ________
(as filed with the SEC on _________, 2000)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
MEDIX RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Colorado 84-1123311
- ------------------------------------ ----------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
7100 E. Belleview Ave.
Englewood, Colorado 80111
- ------------------------------------ ----------------------------
(Address of Principal Executive Offices) (Zip Code)
Medix Resources, Inc.
1999 Stock Option Plan
1996 Stock Incentive Plan
1994 Omnibus Stock Plan
Various Individual Stock Options and Warrant Agreements
(Full Title of the Plan)
David Kinsella, Secretary
Medix Resources, Inc.
7100 E. Belleview Ave., Suite 301
Englewood, CO 80111
(Name and Address of Agent for Service)
(303) 741-2045
(Telephone Number, including Area Code, of Agent for Service)
with a copy to:
Lyle B. Stewart, Esquire
Lyle B. Stewart, P.C.
3751 S. Quebec Street
Denver, Colorado 80237
(303) 267-0920
CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Title of Offering Maximum
Securities Amount to Price Aggregate
to be be Per Offering Amount of
Registered Registered Share (1) Price (1) Registration
Price (1) Fee
- --------------- ------------- --------- ----------- -------------
Common Stock, par 9,500,253 $5.70 $54,151,442 $14,296
value $.001 per
share
(1) Estimated solely for the purpose of calculating the registration fee. In
accordance with Rule 457(c) and (h), the price shown is based upon the average
of the high and low price of Medix Resources, Inc. Common Stock on February 29,
2000, as reported on the OTCBB.
<PAGE>
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement will be given or sent to all persons who are granted or
exercise options or warrants under a listed employee benefit plan of Medix
Resources, Inc. (the "Company"), as specified by Rule 428.
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act") by the Company (File No. 000-24768) are incorporated herein by reference:
(a) the Company's annual report for the fiscal year ended December 27,
1998 filed on Form 10-KSB, as filed with the Commission on April 12,
1999, and as amended on Form 10-KSB/A, filed on July 23, 1999;
(b)(i) the Company's Proxy Statement distributed in connection with the
Meeting of Shareholders on June 11, 1999, as filed with the Commission
on April 26, 1999
(b)(ii) the Company's quarterly reports for the periods ended March 28, June
27, and September 26, 1999, each filed on Form 10-QSB, as filed with
the Commission on May 17, August 11, and November 10, 1999,
respectively;
(b)(iii) the Company's current reports dated March 1, April 19, May 5, October
7, November 4, and December 30, 1999, and January 12, January 18, and
February 24, 2000 on Form 8-K; and
(c) as of February 29, 2000, the Company had outstanding 33,473,191 shares
of Common Stock. Each share of Common Stock is entitled to one vote at
all meetings of shareholders. Shareholders are not permitted to
cumulate votes in the election of directors. All shares of Common
Stock are equal to each other with respect to liquidation rights and
dividend rights. There are no preemptive rights to purchase any
additional Common Stock. In the event of liquidation, dissolution or
winding up of the Company, holders of the Common Stock will be
entitled to receive on a pro rata basis all assets of the Company
remaining after satisfaction of all liabilities and preferences of the
outstanding Preferred Stock.
Each document filed by the Company after the date hereof pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and shall be part
hereof from the date of filing of such document. Any statement in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is incorporated by reference
herein, modifies or supersedes such statement. Any statement herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained in any subsequently filed document which is incorporated by
reference herein modifies or supercedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part hereof except as
so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Lyle B. Stewart, P.C, is named herein as giving the opinion required by Item (5)
of Item 601 of Regulation S-B. Lyle B. Stewart, P.C. has been granted options to
purchase 25,000 shares of the Company's Common Stock at an exercise price of
$0.26 per share.
Item 6. Indemnification of Directors and Officers.
Article 109 of the Colorado Business Corporation Act generally provides that a
corporation may indemnify its directors, officers, employees and agents against
liabilities and reasonable expenses incurred in connection with any threatened,
pending, or completed action, suit or proceeding whether civil, criminal,
administrative or investigative and whether formal or informal (a "Proceeding"),
by reason of being or having been a director, officer, employee or agent of the
Company, if such person acted in good faith and reasonably believed that his
conduct, in his conduct, in his official capacity, was in the best interests of
the Company (or, with respect to employee benefit plans, was in the best
interests of the participants of the plan), and in all other cases his conduct
was at least not opposed to the Company's best interests. In the case of a
criminal proceeding, the director, officer, employee or agent must have had no
reasonable cause to believe his conduct was unlawful. Under Colorado Law, the
Company may not indemnify a director, officer, employee or agent in connection
with a Proceeding by or in the right of the Company if the director is adjudged
liable to the Company, or in a Proceeding in which the director, officer,
employee or agent is adjudged liable on the basis that he or she derived an
improper personal benefit.
The Company's Articles of Incorporation provide that the Company shall indemnify
its directors, and officers, employees and agents to the fullest extent and in
the manner permitted by the provisions of the laws of the State of Colorado, as
amended from time to time, subject to any permissible expansion of such
indemnification as may be set forth in any shareholders' or directors'
resolution or by contract. Insofar as indemnification for liabilities under the
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the U.S. 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.
5.1 Opinion of Lyle B. Stewart, P.C.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman PC
23.2 Consent of Lyle B. Stewart, P.C. (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 1999 Stock Option Plan
99.2 Amended & Restated 1996 Stock Incentive Plan
99.3 1994 Omnibus Stock Plan
99.4 Forms of individual stock option or warrant agreements
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
A. (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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Englewood, Colorado on February 29, 2000.
MEDIX RESOURCES, INC.
By _/s/John P. Yeros
John P. Yeros, Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Each person whose signature appears below in so signing also makes, constitutes
and appoints John R. Prufeta and David Kinsella, and each of them, his or her
true and lawful attorney-in-fact, with full power of substitution, for him in
any and all capacities, to execute and cause to be filed with the Securities and
Exchange Commission any and all amendments and post-effective amendments to this
Registration Statement, with exhibits thereto and other documents in connection
therewith, and hereby ratifies and confirms all that said attorney-in-fact or
his substitute or substitutes may do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------- ------------------------------------ ---------------
<S> <C> <C>
/s/ John R. Prufeta Chief Executive Officer and Director February 29, 2000
John R. Prufeta (Principal Executive Officer)
/s/ David Kinsella Secretary and Controller (Principal February 29, 2000
David Kinsella Financial and Accounting Officer)
/s/ John P. Yeros Director February 29, 2000
John P. Yeros
/s/ Dr. David B. Skinner Director February 29, 2000
Dr. David B. Skinner
/s/ John T. Lane Director February 29, 2000
John T. Lane
/s/ Samuel H. Havens Director February 29, 2000
Samuel H. Havens
/s/ Dr. Brian McLean Director February 29, 2000
Dr. Brian McLean
/s/ Thomas J. Oberle February 29, 2000
Thomas J. Oberle Director
</TABLE>
<PAGE>
EXHIBIT INDEX
Number Exhibit
5.1 Opinion of Lyle B. Stewart, P.C.
23.1 Consent of Ehrhardt Keefe Steiner & Hottman PC
23.2 Consent of Lyle B. Stewart, P.C. (included in Exhibit 5. 1)
24.1 Power of Attorney (included on signature page)
99.1 1999 Stock Option Plan
99.2 Amended & Restated 1996 Stock Incentive Plan
99.3 1994 Omnibus Stock Plan
99.4 Forms of individual stock option and warrant agreements
Lyle B. Stewart, P.C.
3751 S. Quebec Street
Denver, Colorado 80237
Tel. (303) 267-0920
Fax. (303) 267-0922
Board of Directors
Medix Resources, Inc. March 1, 2000
Medix Resources, Inc.
7100 E. Belleview Ave., Suite 301
Englewood, CO 80111
Gentlemen:
We have acted as counsel to Medix Resources, Inc. (the "Company"), in
connection with the proposed sale by the Company of up to 9,540,253 shares of
its common stock, par value $.001 per share, which sale is being registered on
Form S-8 (the "Registration Statement"), filed by the Company on or about the
date hereof with the Securities and Exchange Commission, under the Securities
Act of 1933, as amended.
In connection therewith, we have examined and relied upon such
corporate records and other documents, instruments and certificates and have
made such other investigation as we deem appropriate as basis for the opinion
set forth below.
Based upon the foregoing, we are of the opinion that the shares of
common stock to be sold by the Company in the manner described in the
Registration Statement will be legally issued, fully paid and non-assessable.
We hereby consent to the use of our name in the Registration Statement and
the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Lyle B. Stewart, P.C.
Lyle B. Stewart, P.C.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 2, 1999 (except for Note 12 as
to which the date is June 11, 1999) appearing in Medix Resources, Inc.'s Annual
Report on Form 10-KSB for the year ended December 27, 1998.
/s/ Ehrhardt Keefe Steiner & Hottman PC
Ehrhardt Keefe Steiner & Hottman PC
March 2, 2000
Denver, Colorado
Final Form
MEDIX RESOURCES, INC.
1999 STOCK OPTION PLAN
1. Purpose. This 1999 Stock Option Plan (the "Plan") is intended to
provide incentives: (a) to the officers and other employees of Medix Resources,
Inc., a Colorado corporation (the "Company"), and any present or future 50% or
more owned subsidiaries of the Company (individually a "Related Corporation" and
collectively "Related Corporations") by providing them with opportunities to
purchase stock in the Company pursuant to options granted hereunder that qualify
as "incentive stock options" under Section 422A(b) of the Internal Revenue Code
of 1986, as amended and the regulations thereunder (the "Code") (individually an
"ISO" and collectively "ISOs"); and (b) to directors, officers, employees and
consultants of the Company and Related Corporations by providing them with
opportunities to purchase stock in the Company pursuant to options granted
hereunder that do not qualify as ISOs (individually a "Non-Qualified Option" and
collectively "Non-Qualified Options"). Both ISOs and Non-Qualified Options are
referred to hereinafter individually as an "Option" and collectively as
"Options". As used herein, the terms "parent" and "subsidiary" mean "parent
corporation" and "subsidiary corporation", respectively, as those terms are
defined in Section 425 of the Code.
2. Administration of Plan.
(a) Board or Committee Administration. This Plan shall be administered
solely by the Company's Board of Directors (the "Board"), or by a Compensation
Committee (the "Committee") consisting of not less than two (2) members of the
Board, all of whom are Non-Employee Directors, as defined in Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended (the "1934
Act"). Hereinafter, all references in this Plan to the "Committee" shall mean
the Board if no Committee has been appointed. Subject to the terms of this 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 Section 3 below to receive ISOs) to whom ISOs may be granted, and to
determine (from among the class of individuals and entities eligible under
Section 3 below 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 shall not be less than the minimum price specified in Section 6
below; (iv) determine whether each Option granted shall be an ISO or a
Non-Qualified Option; (v) determine (subject to Section 7 below) the time or
times when each Option shall become exercisable and the duration of the exercise
period; (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 this Plan and prescribe and rescind rules and
regulations relating to this Plan. If the Committee determines to issue a
Non-Qualified Option, the Committee shall take whatever actions it deems
necessary under Section 422A of the Code and the regulations promulgated
thereunder, to ensure that such Option is not treated as an ISO. The
interpretation and construction by the Committee of any provisions of this Plan
or of any Option granted under this Plan shall be final unless otherwise
determined by the Board. The Committee may from time-to-time adopt such rules
and regulations for carrying out this Plan as it may deem appropriate. No member
of the Board or of the Committee shall be liable for any action or determination
made in good faith with respect to this Plan or any Option granted under this
Plan.
(b) Committee Actions. The Committee may select one of its members as its
chairman, and shall hold meetings at such times and places as it may determine.
Except as otherwise provided by the Company's Bylaws, acts by a majority of the
Committee, or acts reduced to or approved in writing by unanimous consent of the
members of the Committee, shall be the valid acts of the Committee. From
time-to-time the Board may increase the size of the Committee and appoint
additional members thereof, who are Non-Employee Directors, may remove members
(with or without cause) and may appoint new members in substitution therefor,
fill vacancies (however caused), or remove all members of the Committee and
thereafter directly administer this Plan.
(c) Compliance with Federal and State Securities Laws and State Corporate
Law. Various restrictions apply to officers and directors and others who may be
deemed insiders under federal and state securities laws and state corporate law.
These laws impose certain restrictions on insiders. Any Option granted to any
director is subject to those restrictions. Holders of Options should consult
with their legal and tax advisors regarding the securities law, tax law,
corporate law and other effects of transactions under this Plan. The Company
does not provide any advice to an optionee on such matters. Restrictions under
such laws relate to holding periods, alternative minimum tax calculations and
other matters and should be clearly understood by the holders of Options. The
granting of Options is subject to any applicable restrictions under state
corporate law, including without limitation, restrictions applicable to
conflicting interest transactions involving directors.
(d) Purpose and Intent of Plan. The purpose of this Plan is to advance the
interest of the Company and its Related Corporations by stimulating the efforts
of employees on behalf of the Company and Related Corporations, and heightening
the desire of employees to continue employment with the Company and Related
Corporations, assisting the Company and Related Corporations in competing
effectively with other enterprises for the services of new employees necessary
for the continued improvement of operations, and to attract and retain the best
available personnel for service as directors to the Company and Related
Corporations and for services as consultants to the Company and Related
Corporations. This Plan is intended to be an "employee benefit plan" under Rule
16b-3 promulgated under Section 16(b) of the 1934 Act. Transactions under this
Plan are intended to comply with Rule 16b-3. To the extent any provisions of
this Plan or any action by the Committee or the Board fails to comply with such
Rule and to the extent any provisions of this Plan or any action by the
Committee or the Board fails to comply with the requirements of the Code (for
options intended to be ISOs hereunder), each such provision(s) and action(s)
shall be deemed to be null and void, to the extent permitted by applicable law
and as deemed advisable by the Committee or the Board.
(e) Shareholder Approval. Grants of incentive stock options hereunder
shall be subject to shareholder approval of this Plan within twelve (12) months
following the date this Plan is authorized and approved by the Board.
3. Eligible Employees and Others. ISOs may be granted to any employee of
the Company or any Related Corporation. Any officer or director of the Company
who is not also an employee of the Company may not be granted ISOs under this
Plan. Non-Qualified Options may be granted to any employee, officer or director
(whether or not such person is also an employee of the Company) or to any
consultant to the Company or to 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. The granting of a Option to any
individual or entity shall neither entitle that individual or entity to, nor
disqualify that individual or entity from, participation in any other grant of
Options.
4. Stock. The stock subject to Options shall be authorized but unissued
shares of Common Stock of the Company, $.001 par value per share (the "Common
Stock"), or shares of Common Stock reacquired by the Company in any manner.
Subject to the foregoing, the aggregate maximum number of shares of Common Stock
that may be issued pursuant to this Plan is 7,000,000, subject to adjustment as
provided in Section 13. Any such shares may be issued as ISOs or Non-Qualified
Options, so long as the number of shares so issued does not exceed such number,
as adjusted. If any Option granted under this 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, the unpurchased shares subject to such
Options shall again be available for grants of Options under this Plan.
5. Granting of Options. Options may be granted under this Plan at any time
until ten (10) years after the date of the authorization and approval of this
Plan by the Board. The date of grant of a Option under this Plan will be the
date specified by the Committee 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 this Plan into a Non-Qualified
Option pursuant to Section 16 below.
6. Minimum Option Price; ISO Limitations.
(a) Price for Non-Oualified Qptions. The exercise price per share
specified in the agreement relating to each Non-Qualified Option granted under
this Plan shall in no event be less than the fair market value per share of the
Common Stock on the date of such grant. Subject to the foregoing sentence, the
exercise price for Non-Qualified Options granted hereunder shall be determined
by the Committee or the Board in its sole discretion, taking into account
factors it deems relevant.
(b) Price for ISOs. The exercise price per share specified in the
agreement relating to each ISO granted under this Plan shall not be less than
the fair market value per share of the Common Stock on the date of such grant.
In the case of an ISO to be granted to an employee owning stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company or of any Related Corporation, the price per share
specified in the agreement relating to such ISO shall not be less than one
hundred ten percent (110 %) of the fair market value per share of the Common
Stock on the date of grant.
(c) $100,000 Annual Limitation on ISOs. Each eligible employee may be
granted ISOs only to the extent that (in the aggregate under this Plan and all
incentive stock option plans of the Company and any Related Corporation), such
ISOs do not become exercisable for the first time by such employee during any
calendar year in a manner that would entitle the employee to purchase more than
$100,000 in fair market value (determined at the time the ISOs were granted) of
the Common Stock in that calendar year. Any options granted to an employee in
excess of that amount will be granted as Non-Qualified Options.
(d) Determination of Fair Market Value. If, at the time an Option is
granted under this 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 (i) the average (on that date) of the high and
low prices of the Common Stock on the principal national securities exchange on
which the Common Stock is traded, if the Common Stock is then-traded on a
national securities exchange; or (ii) the last reported sale price (on that
date) of the Common Stock on the NASDAQ National Market, if the Common Stock is
not then traded on a national securities exchange; or (iii) the last sale price,
closing bid price or average of bid prices last quoted (on that date) by an
established quotation service for over-the-counter securities, if the Common
Stock is not reported on the NASDAQ National Market. However, if the Common
Stock is not publicly-traded at the time an Option is granted under this Plan,
"fair market value" shall be deemed to be the fair value of the Common Stock as
determined by the Committee or the Board in its sole discretion, after taking
into consideration all factors that it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
7. Option Duration. Subject to earlier termination as provided in Sections
9 and 10 below, each Option shall expire on the date specified by the Committee
or the Board, but not more than (i) ten (10) years and one (1) day from the date
of grant in the case of Non-Qualified Options, (ii) ten (10) years from the date
of grant in the case of ISOs generally and (iii) five (5) years from the date of
grant in the case of ISOs granted to an employee owning stock possessing more
than ten percent (10%) of the total combined voting power of all classes of
stock of the Company or of any Related Corporation. Subject to earlier
termination as provided in Sections 9 and 10 below, the term of each ISO shall
be the term set forth in the original instrument granting such ISO, except with
respect to any part of such ISO that is converted into a Non-Qualified Option
pursuant to Section 16 below.
8. Exercise of Options. Subject to the provisions of Sections 9 through 12
below, each Option granted under this Plan shall be exercisable as follows:
(a) Vesting. The Option shall either be fully exercisable on the date of
grant or shall become exercisable thereafter in such installments as the
Committee or Board may specify.
(b) Full Vesting . Once an installment becomes exercisable it shall remain
exercisable until expiration or termination of the Option, unless otherwise
specified by the Committee or the Board.
(c) Partial Exercise. Each Option or installment 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) Acceleration of Vesting. The Committee or the Board shall have the
right to accelerate the date of exercise of any installment of any Option;
provided, however, that the Committee or the Board shall not, without the
consent of the optionee, 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 Section 16 below) if such acceleration would
violate the annual vesting limitation contained in the Code, as described in
Section 6(c) above.
9. Termination of Employment. If an ISO optionee ceases to be employed by
the Company or any Related Corporation other than by reason of death or
disability as defind in Section 10 below, no further installments of such
optionee's ISOs shall become exercisable, and (i) if the employee is terminated
"for cause," as defined below, while holding one or more ISOs, that portion of
each ISO that is vested but which has not already been exercised shall expire
coincident with the termination of the optionee's status as an employee, or (ii)
if for a reason other than "for cause," such optionee's vested ISOs shall
terminate after the passage of ninety (90) days from the date of termination of
such optionee's employment, but in no event later than on their specified
expiration date(s), except to the extent that such ISOs (or the unexercised
installments thereof) have been converted into Non-Qualified Options pursuant to
Section 16 below. 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 ninety (90) days or, if longer, any period during which
such optionee's right to reemployment is guaranteed by statute. A bona fide
leave of absence with the written approval of the Committee or the Board shall
not be considered an interruption of employment under this 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 this Plan shall not be affected by any change of
employment within or among the Company and any Related Corporations, so long as
the optionee continues to be an employee of the Company or any Related
Corporation. Nothing in this Plan shall be deemed to give any grantee of any
Option the right to be retained in employment or other service by the Company or
any Related Corporation for any period of time. For purposes of this Agreement,
"for cause" shall mean termination of a position with the Company because of
such employee's (i) misfeasance, waste of corporate assets, gross negligence or
willful continued failure to substantially perform his reasonably assigned
duties or (ii) engagement in dishonest or illegal conduct that is demonstrably
injurious to the Company.
10. Death; Disability.
(a) Death. If an ISO optionee ceases to be employed by the Company or any
Related Corporation by reason of such optionee's death, any ISO of such optionee
may be exercised, to the extent of the number of shares with respect to which
the optionee could have exercised on the date of the optionee's death, by the
optionee's 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 specified expiration date of the ISO or one year from the date of
the optionee's death.
(b) Disability. If an ISO optionee ceases to be employed by the Company or
any Related Corporation by reason of disability, such optionee (or such
optionee's custodian) shall have the right to exercise any ISO held by such
optionee on the date of termination of employment, to the extent of the number
of shares with respect to which the optionee could have exercised on that date,
at any time prior to the earlier of the specified expiration date of the ISO or
one year from the date of the termination of the optionee's employment. For
purposes of this Plan, the term "disability" shall mean "permanent and total
disability" as defined in Section 22(e)(3) of the Code or any successor statute.
11. Assignabilitv. No Option shall be assignable or transferable by the
optionee except as permitted by the laws of descent and distribution, and during
the lifetime of the optionee each Option shall be exercisable only by the
optionee. No ISO shall be transferable except as permitted by the Code.
12. Terms and Conditions of Options. Options shall be evidenced by
instruments (which need not be identical) in such form as the Committee or the
Board may from time-to-time approve. Such instruments shall conform to the terms
and conditions set forth in Sections 6 through 11 above and may contain such
other provisions as the Committee or the Board deems advisable, which are not
inconsistent with this Plan, including, without limitation, restrictions
applicable to shares of the Company's Common Stock issuable upon exercise of
Options. In granting Non-Qualified Options, the Committee or the Board may
specify that Non-Qualified Options shall be subject to the restrictions set
forth herein with respect to ISOs, or to such other termination and cancellation
provisions as the Committee or the Board may determine. The Committee or the
Board may from time-to-time confer authority and responsibility on one or more
of its 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 the optionee hereunder
shall be adjusted as hereinafter provided, unless otherwise specifically
provided in the written agreement between the optionee and the Company regarding
such Option:
(a) Stock Dividends and Stock Splits. If the shares of the Company's
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) Merger, Consolidation, Sale of Assets. In the event of a consolidation,
a merger in which the Company is not the surviving entity, or the sale of all or
substantially all of the Company's assets, the Committee or the Board may in its
sole discretion (i) accelerate the exercisability of any or all outstanding
Options so that such Options would be exercisable in full prior to the
consummation of such consolidation, merger or asset sale at such times and on
such conditions as the Committee or the Board shall determine, or (ii) authorize
cash payments to optionees equal to the fair market value of their equity
interest in Options and the cancellation of those Options, unless the successor
entity, if any, assumes the outstanding Options or substitutes substantially
equivalent options therefor.
(c) Recapitalization or Reorganization. In the event of a recapitalization
or reorganization of the Company (other than a transaction described in Section
13(b) above) pursuant to which securities of the Company or of another entity
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 the optionee would have received if the
optionee had exercised the Option prior to such recapitalization or
reorganization.
(d) Modification of ISOs. Notwithstanding the foregoing, any adjustments
made pursuant to Sections 13(a), (b) or (c) above with respect to ISOs shall be
made only after the Committee or the Board, 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 of the Code)
or would cause any adverse tax consequences for the holders of such ISOs. If the
Committee or the Board determines that such adjustments made with respect to
ISOs would constitute a modification of such ISOs, it may refrain from making
such adjustments.
(e) Issuances of Securities. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or of securities
convertible into shares of 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 paid in cash or
in property other than securities of the Company.
(f) Fractional Shares. No fractional shares shall be issued under this
Plan and each optionee shall receive from the Company cash in lieu of such
fractional shares.
(g) Adjustments. Upon the happening of any of the events described in
Section 13(a), (b) or (c) above, the class and aggregate number of shares set
forth in Section 4 above that are subject to Options that previously have been
or subsequently may be granted under this Plan shall also be appropriately
adjusted to reflect the events described in such Sections. The Committee or
Board shall determine the specific adjustments to be made under this Section 13
and, subject to Section 2 above, its determination shall be conclusive.
If any person or entity owning restricted Common Stock obtained by
exercise of a Option hereunder receives shares or securities or cash in
connection with a corporate transaction described in Sections 13(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
Board.
14. Means of Exercising Options. 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 price in any of the following ways:
(i) in U.S. dollars in cash or by check, bank draft or money order; (ii) by the
surrender of all or part of an Option (including the Option being exercised)
with an aggregate net value equal to the aggregate exercise price; (iii) by the
tender to the Company of shares of Common Stock with an aggregate value equal to
the exercise price; or (iv) by a combination of (i), (ii) and (iii) above. The
holder of an Option shall not have the rights of a shareholder with respect to
the shares covered by his, her or its Option until the date of issuance of a
stock certificate for such shares. Except as expressly provided in Section 13
above 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.
15. Term and Amendment of Plan. This Plan was authorized and adopted by
the Board on August 16, 1999 subject (with respect to the validation of ISOs
granted under this Plan) to approval of this Plan by the stockholders of the
Company. If the approval of this Plan by the Company's stockholders is not
obtained by August 16, 2000, any grants of ISOs under this Plan made prior to
that date will be rescinded, and such grants shall deemed to be grants of an
equal number of Non-Qualified Options. This Plan shall expire on August 16, 2009
(except as to Options outstanding on that date). Subject to the provisions of
Section 5 above, Options may be granted under this Plan prior to the date of
stockholder approval of this Plan. The Board may terminate or amend this Plan in
any respect at any time; provided, however, that the Board may not amend this
Plan in any of the following respects without the approval of the Company's
stockholders obtained within twelve (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 this Plan (except by adjustment
pursuant to Section 13 above); (b) modification of the provisions of Section 3
above regarding eligibility for grants of ISOs; (c) modification of the
provisions of Section 6(b) above regarding the exercise price at which shares
may be offered pursuant to ISOs (except by adjustment pursuant to Section 13
above); and (d) extending the expiration date of this Plan. Except as otherwise
provided in this Section 15, in no event may action of the Board or the
stockholders alter or impair the rights of a grantee, without such grantee's
consent, under any Option previously granted to such grantee. The Committee or
the Board may amend the terms of any Option granted if such amendment is agreed
to by the recipient of such Option.
16. Conversion of ISOs Into Non-Qualifled Options; Termination of ISOs.
The Committee or the Board, 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, including at the time an employee leaves the
employment of the Company, 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 shall 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 or the Board (with the consent of
the optionee) may impose such conditions on the exercise of the resulting
Non-Qualified Options as the Committee or the Board in its sole discretion may
determine, provided that such conditions shall not be inconsistent with this
Plan. Nothing in this 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 or the Board takes
appropriate action. The Committee or the Board, 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 under this Plan shall be used for
general corporate purposes.
18. Governmental Regulation. The Company's obligation to sell and deliver
shares of Common Stock under this Plan is subject to the compliance with Federal
and applicable state securities laws and 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, the making of a Disqualifying Disposition (as that term is
defined in Section 20 below) or the vesting of restricted Common Stock acquired
upon the exercise of a Option hereunder, 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 individual's gross income. The Committee or the Board in its discretion may
condition (i) the exercise of an Option or the vesting of restricted Common
Stock acquired by exercising a Option, on the grantee's payment of such
additional withholding taxes.
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 shares of the Company's
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 (a) two (2) years after the date the employee was granted the ISO
and (b) one (1) year after the date the employee acquired the Common Stock by
exercising the ISO. If the employee dies before such shares of Common Stock are
sold, these holding period requirements do not apply and no Disqualifying
Disposition can occur thereafter.
21. Governing Law; Construction. The validity and construction of this
Plan and the instruments evidencing Options shall be governed by the laws of the
State of Colorado, or the laws of any jurisdiction in which the Company or its
successors in interest may be organized. In construing this Plan, the singular
shall include the plural and the masculine gender shall include the feminine and
neuter, and vice versa, unless the context otherwise requires.
INTERNATIONAL NURSING SERVICES, INC.
INCENTIVE STOCK OPTION PLAN
1. Purpose of the Plan. This Stock Option Plan (hereinafter referred to as
the "Plan") is intended to encourage ownership of stock of International Nursing
Services, Inc., a Colorado corporation (hereinafter referred to as the
"Corporation"), by key employees (either full-time or part-time) of the
Corporation and its subsidiaries, and to provide additional incentive for them
to promote the success of the Corporation's business. As used in the Plan, the
term "subsidiary" shall have the same meaning as the term "subsidiary
corporation" defined in Section 425 (f) of the Internal Revenue Code of 1986, as
from time to time amended (the "Code"). The Plan and options granted under the
Plan shall be classified as "Incentive Stock Options" and conform to the Code
Section 422A treatment of Incentive Stock Options.
2. Scope of the Plan. An aggregate of 500,000 authorized but unissued
shares of the Corporation's common stock, par value $.001 per share (the "Common
Stock"), shall be available and reserved for issue under the Plan. If an option
should expire or terminate for any reason without having been exercised in full,
the unpurchased shares which were subject thereto shall, unless the Plan shall
have terminated, become available for other options under the Plan. The Common
Stock shall not be issued in respect of an option granted hereunder unless the
exercise of such option and the issuance and delivery of shares of Common Stock
pursuant thereto shall comply with all relevant provisions of law, including the
law of the corporation's state of incorporation, the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, the rules and
regulations thereunder, and the requirements of any stock exchange upon which
the Common Stock may then be listed, and shall be further subject to the
approval of the Corporation's counsel with respect to such compliance.
3. Administration of the Plan. The Plan shall be administered by the Board
of Directors or, at their discretion, by a stock option committee (the
"Committee") consisting of not less than three members of the Board of
Directors, both of which shall have authority from time to time: (a) subject to
the provisions of Section 4, to determine which of the key employees of the
Corporation or any of its present or future subsidiaries shall be granted
options with respect to any or all of such shares; (b) to determine the times
when options shall be granted and the number of shares to be granted, except as
may otherwise be provided herein; (c) to determine the time or times when each
option becomes exercisable and the duration of the exercise period, except as
may otherwise be provided herein; (d) to prescribe the form or forms of the
instruments evidencing any options granted under the Plan (which form shall be
consistent with the Plan but the terms and provisions need not be identical in
each case); (e) to adopt, amend and rescind such rules and regulations as, in
its opinion, may be advisable in the administration of the Plan; and (f) to
construe and interpret the Plan, the rules and regulations and the instruments
evidencing options granted under the Plan and to make all other determinations
deemed necessary or advisable for the administration of the Plan. The grant of
options will be entirely discretionary and nothing in the Plan will be deemed to
give any director, officer or employee a right to receive options. All
decisions, determinations and implementations by the Board of Directors shall
be final and binding. The Board of Directors may request advice of assistance or
employ such other persons as are necessary for proper administration of the
Plan.
4. Eligibility and Participation. Options may be granted only to employees
(including officers and directors who are employees) of the Corporation or any
of its subsidiaries. An individual who has been granted any option, may if he is
otherwise eligible, be granted; however no additional options shall be granted
if the grant will cause such options to violate the terms of Section 422A of the
Code. The aggregate fair market value of the Common Stock (determined at the
time of the grant of the option) for which options are exercisable for the first
time under the terms of the Plan, by any employee during the calendar year, may
not exceed $100,000.
5. Terms of the Options. The term of such option granted under the Plan
shall be for not more than ten years from the date of the granting thereof,
subject to its earlier termination as hereinafter provided. Options shall be
granted with an exercise price equal to 100% of the fair market value of the
Common Stock to which they relate at the time of such grant, except that any
option granted under the Plan to a person owning more than 10% of the total
combined voting power of the Common Stock shall be at an exercise price of 110%
of such fair market value and shall be for a term of no more than five years.
6. Nontransferability of Options. An option granted under the Plan shall by
its terms not be transferable otherwise than by will or by the laws of descent
and distribution, and an option may be exercised, during the lifetime of the
holder of the option, only by such holder.
7. Exercise of Options. Except as provided in this Section 7 and in
Sections 10 and 11 hereof, options granted to persons who are neither directors
nor officers of the corporation are exercisable as determined by the Board of
Directors of the Corporation. Options granted to persons who are directors or
officers at the time of grant are immediately exercisable, in whole or in part.
No option shall be exercisable after the expiration of the term thereof as
provided in Section 5 hereof, and no option shall be exercisable unless the
holder thereof shall at the time of exercise have been an employee of the
Corporation or of any subsidiary of the Corporation for a period of at least
three months, except as otherwise provided in Sections 10 and 11 hereof. The
purchase price of any shares as to which an option shall be exercisable shall be
paid in full at the time of exercise. Upon approval by the Board of Directors,
a holder may exercise his option by surrendering currently held shares of the
Corporation's Common Stock having a value not in excess of the aggregate
purchase price of the shares as to which the option is exercised. The balance of
such purchase price shall be payable by the holder in cash or by certified
check. For purposes of paying the aggregate purchase price of the shares as to
which the option is exercised, each share of Common Stock surrendered shall be
valued at its fair market value on the date of exercise. For this purpose, the
fair market value shall be the average of the closing bid prices of the Common
Stock, as quoted on NASDAQ or as quoted by the National Quotation Bureau, Inc.
if the Common Stock is not quoted on NASDAQ, for the ten trading days preceding
the date of exercise. In the absence of a reported price on the date of
exercise, the Board of Directors, in its discretion, may select any reasonable
method for the valuation of the surrendered shares. The holder of an option
shall not have any of the rights of a stockholder with respect to the shares
covered by his option until such shares shall have been issued to him upon the
purchase of such shares pursuant to his exercise of the option.
8. Securities to be Unregistered. The Corporation shall be under no
obligation to register or assist the holder in registering either the options or
the Common Stock issuable upon exercise of the options under the federal
securities laws or any state securities laws, and both the options and the
Common Stock issuable upon exercise of the options shall be "restricted
securities" as defined in Rule 144 of the General Rules and Regulations of the
Securities Act of 1933 (the "Act"), and may not be offered for sale, sold or
otherwise transferred except pursuant to an effective registration statement
under the Act or pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of the
Corporation. Accordingly, all certificates evidencing shares covered by the
options, and any securities issued and replaced or exchanged therefore, shall
bear a restrictive legend to this effect.
9. Disposition of Shares of Option Stock. An individual who has acquired
stock through the exercise of an option cannot dispose of such stock within two
years after the date of grant or within one year from the date of exercise.
10. Exercise Upon Cessation of Employment. If the holder of an option
granted hereunder ceases to be an employee of the Corporation or of any of its
subsidiaries, any option held by him pursuant to this Plan may be exercised to
the extent exercisable on the termination date, within three months thereafter
(but in no event after the option expires by its terms), unless employment is
terminated for cause, in which case the option terminates immediately. Any
termination of an option hereunder by reason of cessation of employment shall be
without prejudice to any right or remedies which the Corporation or any of its
subsidiaries may have against the holder of the option under the stock option
agreement or otherwise. The stock option agreements may contain such provisions
as the Board of Directors shall approve with reference to the effect of approved
leaves of absence; provided, however, that all options shall terminate a maximum
of ten years after date of grant.
11. Exercise Upon Death or Disability. If the holder of an unexpired option
granted under this Plan dies while an employee of this Corporation or its
subsidiaries or within three months after termination of employment (other than
for cause), his executor, administrator or other person entitled by law to his
rights thereunder may exercise the option at any time within one year after
death (but in no event after the option expires) to the extent exercisable at
the date of death. If the holder of an unexpired option granted under this Plan
becomes disabled within the meaning of Section 105(d)(4) of the Code while an
employee may exercise the option at any time within 12 months after leaving,
employment of the Corporation (but in no event after the option expires).
12. Effectiveness of the Plan. The Plan shall become effective upon
adoption by the Board of Directors of the Corporation provided, however, that
the Plan shall be submitted for approval by the stockholders of the Corporation
no later than 12 months after the date of adoption of the Plan by the Board of
Directors. Should the stockholders fail to approve the Plan, all options granted
thereunder shall be and become null and void.
13. Time of Granting Options. The date of grant of an option under the Plan
shall, for all purposes, be the date on which the Board of Directors or the
Committee makes the determination granting such options, and no grant shall be
deemed effective under the Plan prior to such date. Notice of the Board of
Directors' action shall be given to each employee to whom an option is so
granted within a reasonable time after the date of such grant.
14. Adjustments. Options granted hereunder shall contain such uniform
provisions as the Board of Directors shall, in its sole judgment, determine for
adjustment of the number and class of shares covered thereby or of the option
prices, or both, to reflect a stock dividend, stock split-up, share combination,
exchange of shares, recapitalization, merger, consolidation, acquisition or
disposition of property or shares, reorganization, liquidation, issuance of
additional shares or other similar changes or transactions of or by the
Corporation. In any such event the aggregate number and class of shares
available for issuance under the Plan shall be appropriately adjusted and all of
the provisions of this Plan with respect to the number and class of shares so
available shall likewise be adjusted; provided, however, that no such adjustment
shall be made so as to constitute a modification, extension or renewal of the
option within the meaning of Section 425(h) of the Code, or so as to prevent the
Corporation, or any other corporation or any subsidiary thereof if the employee
shall become employed by such corporation by reason of the transaction in
respect of which such adjustment is made, from being a corporation issuing or
assuming the option in a transaction to which Section 425(a) of the Code
applies.
15. Termination and Amendment of the Plan. The Plan will terminate ten
years from the date of adoption by the Board of Directors, unless the Board of
Directors elects to terminate the Plan prior to that date. The Board of
Directors may, at any time, without further stockholder approval, terminate,
modify or amend the Plan. It may not, however, without further approval by the
holders of a majority of the outstanding Common Stock, increase the number of
shares as to which options may be granted, change the eligibility requirements
for persons entitled to receive options or adversely affect the rights of an
optionee under any unexercised option or any portion thereof without the consent
of the optionee. Neither the termination nor any modification or amendment of
the Plan shall, without the consent of the holder of an option theretofore
granted under the Plan, adversely affect the rights of such holder with respect
to such option.
16. Termination of Right of Action. Every right of action arising out of or
in connection with the Plan by or on behalf of the Corporation or of any
subsidiary, or by any stockholder of the Corporation or of any subsidiary
against any past, present or future officer or member of the Board of Directors,
or against any employee, or by an employee (past, present or future) against the
Corporation or any subsidiary, will, irrespective of the place where an action
may be brought and irrespective of the place of residence of any such
stockholder, officer, director of employee, cease and be barred upon the
expiration of three years from the date of the act or omission in respect of
which such right of action is alleged to have risen.
17. Registration of Certificates. Certificates may be registered only in
the name of the employee or, if he so indicates in writing, in his name jointly
with a member of his family, with right of survivorship. An employee who is a
resident of a jurisdiction which does not recognize such a joint tenancy may
have certificates registered in his name as tenant in common with a member of
his family, without right of survivorship.
18. Stock Option Agreements. Each option granted under this Plan shall be
evidenced by a stock option agreement in such form and containing such
provisions (subject to and limited by the terms of this Plan) as the Board of
Directors shall from time to time approve. Agreements evidencing the options
need not be identical.
19. Tax Litigation. The Corporation shall have the right to contest, at its
expense, any tax ruling or decision, administrative or judicial, on an issue
which is related to the Plan and which the Board of Directors believes to be
important to holders of options issued under the Plan and to conduct any such
contest or any litigation arising therefrom to a final decision.
20. Governmental and Other Regulations. The Plan, and the grant and
exercise of the option to purchase shares hereunder, and the Corporation's
obligation to sell and deliver shares upon the exercise of rights to purchase
shares shall be subject to all applicable federal and state laws, rules and
regulations, and to such approvals by any regulatory or governmental agency
which may, in the opinion of legal counsel for the Corporation, be required.
21. Governing Law. The Plan shall be governed by and construed in
accordance with the laws of the State of Colorado, without giving effect to
conflict of laws.
22. Severability. If any provision of the Plan is invalid, illegal or
unenforceable, the balance of the Plan shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
This plan was adopted by the unanimous written consent of the Board of
Directors and Stockholders on the day of , 1995.
<PAGE>
INTERNATIONAL NURSING SERVICES, INC.
STOCK OPTION
International Nursing Services, Inc. (the "Company") hereby grants to the
right and option to purchase shares of the Common Stock $.001 par value, of the
Company at the exercise price of per share. This option is granted as of the
date set forth below and shall expire ten years from such date. This Option is
subject to the restrictions as set forth below and to all the terms and
conditions of the International Nursing Services, Inc. Incentive Stock Option
Plan, which are incorporated herein by this reference, and may not be assigned
or transferred except as provided herein.
Restrictions: None
"THE COMPANY"
INTERNATIONAL NURSING SERVICES, INC.
By:____________________________________
John P. Yeros, President and Chairman
ATTEST:
_____________________
Dated:_________________
MEDIX RESOURCES, INC.
(FORMERLY INTERNATIONAL NURSING SERVICES, INC.
AMENDED & RESTATED 1996 STOCK INCENTIVE PLAN
Purpose. This Amended & Restated 1996 Stock Incentive Plan (the
"Plan") is intended to provide incentives: (a) to the officers and other
employees of Medix Resources, Inc. (formerly International Nursing Services,
Inc.), a Colorado corporation (the "Company"), and any present or future 50% or
more owned subsidiaries of the Company (individually a "Related Corporation" and
collectively "Related Corporations") by providing them with opportunities to
purchase stock in the Company pursuant to options granted hereunder; (b) to
directors, officers, employees and consultants of the Company and Related
Corporations by providing them with opportunities to purchase stock in the
Company pursuant to options granted hereunder; (c) to directors, officers,
employees and consultants of the Company and Related Corporations by providing
them with awards of stock in the Company ("Awards"); and (d) to directors,
officers, employees and consultants of the Company and Related Corporations by
providing them with opportunities to make direct purchases of stock in the
Company ("Purchases"). Options granted hereunder are referred to hereinafter
individually as an "Option" and collectively as "Options". Options, Awards and
authorizations to make Purchases are referred to hereinafter collectively as
"Stock Rights". As used herein, the terms "parent" and "subsidiary" mean "parent
corporation" and "subsidiary corporation", respectively, as those terms are
defined in Section 425 of the Internal Revenue Code of 1986, as amended (the
"Code"). None of the Options granted hereunder will qualify as "incentive stock
options" under Section 422A of the Code.
Administration of Plan.
Board or Committee Administration. This Plan shall be administered solely
by the Company's Board of Directors (the "Board") or by a Compensation Committee
(the "Committee") consisting of not less than two (2) members of the Board.
Hereinafter, all references in this Plan to the "Committee" shall mean the
Board if no Committee has been appointed for this purpose. Subject to
ratification of the grant or authorization of each Stock Right by the Board,
and subject to the terms of this Plan, the Committee shall have the authority
to (i) determine the employees of the Company and Related Corporations to whom
Options may be granted, and to determine to whom, Awards and authorizations to
make Purchases may be granted; (ii) determine the time or times at which
Options or Awards may be granted or Purchases made; (iii) determine the option
price of shares subject to each Option, which price shall not be less than the
minimum price specified in Section 6 below, and the purchase price of shares
subject to each Purchase; (iv) determine (subject to Section 7 below) the time
or times when each Option shall become exercisable and the duration of the
exercise period; (v) determine whether restrictions such as repurchase options
are to be imposed on shares subject to Options, Awards and Purchases and the
nature of such restrictions, if any; and (vi) interpret this Plan and prescribe
and rescind rules and regulations relating to this Plan. The interpretation and
construction by the Committee of any provisions of this Plan or of any Stock
Right granted under this Plan shall be final unless otherwise determined by the
Board. The Committee may from time-to-time adopt such rules and regulations for
carrying out this Plan as it may deem appropriate. No member of the Board or of
the Committee shall be liable for any action or determination made in good
faith with respect to this Plan or any Stock Right granted under this Plan.
Committee Actions. The Committee may select one of its members as its
chairman, and shall hold meetings at such times and places as it may determine.
Except as otherwise provided by the Company's Bylaws, acts by a majority of the
Committee, or acts reduced to or approved in writing by unanimous consent of
the members of the Committee, shall be the valid acts of the Committee. From
time-to-time the Board may increase the size of the Committee and appoint
additional members thereof, may remove members (with or without cause) and may
appoint new members in substitution therefor, fill vacancies (however caused),
or remove all members of the Committee and thereafter directly administer this
Plan.
Grant of Stock Rights to Board Members. Stock Rights may be granted to
members of the Board, but any such grant shall be made and approved in
accordance with Section 2(d) below, if applicable. All grants of Stock Rights
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.
Compliance with Federal and State Securities Laws and State Corporate Law.
Various restrictions apply to officers and directors and others who may be
deemed insiders under federal and state securities laws and state corporate law.
These laws impose certain restrictions on insiders. Any Stock Right granted to
any director is subject to those restrictions. Holders of Stock Rights should
consult with their legal and tax advisors regarding the securities law,
including Section 16 of the Securities Exchange Act of 1934, as amended (the
"1934 Act"), tax law, corporate law and other effects of transactions under this
Plan. These restrictions relate to holding periods, alternative minimum tax
calculations and other matters and should be clearly understood by the holders
of Stock Rights. The granting of Stock Rights is subject to any applicable
restrictions under state corporate law, including without limitation,
restrictions applicable to conflicting interest transactions involving
directors.
Purpose and Intent of Plan. The purpose of this Plan is to advance the
interest of the Company and its Related Corporations by stimulating the efforts
of employees on behalf of the Company and Related Corporations, and heightening
the desire of employees to continue employment with the Company and Related
Corporations, assisting the Company and Related Corporations in competing
effectively with other enterprises for the services of new employees necessary
for the continued improvement of operations, and to attract and retain the best
available personnel for service as directors to the Company and Related
Corporations and for services as consultants to the Company and Related
Corporations. This Plan is intended to be an "employee benefit plan" under Rule
16b-3 promulgated under Section 16(b) of the 1934 Act.
Eligible Employees and Others. Options, Awards and authorizations to make
Purchases may be granted to any employee, officer or director (whether or not
such person is also an employee of the Company) or to any consultant to the
Company or to any Related Corporation. The Committee may take into consideration
a recipient's individual circumstances in determining whether to grant an
Option, an Award or an authorization to make a Purchase. The granting of a Stock
Right to any individual or entity shall neither entitle that individual or
entity to, nor disqualify that individual or entity from, participation in any
other grant of Stock Rights.
Stock. The stock subject to Options, Awards and Purchases shall be
authorized but unissued shares of Common Stock of the Company, $.001 par value
per share (the "Common Stock"), or shares of Common Stock reacquired by the
Company in any manner. Subject to the foregoing, the aggregate maximum number of
shares of Common Stock that may be issued pursuant to this Plan is 4,000,000,
subject to adjustment as provided below in this Section 4 and in Section 13. Any
such shares may be issued as Options or Awards or to individuals or entities
making Purchases, so long as the number of shares so issued does not exceed such
number, as adjusted. If any Option granted under this 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 Awards or Purchases, the
unpurchased shares subject to such Options and any unvested shares so reacquired
by the Company shall again be available for grants of Stock Rights under this
Plan.
Granting of Stock Rights. Stock Rights may be granted under this Plan
at any time until ten (10) years after the date of the approval and adoption of
this Plan by the Board. The date of grant of a Stock Right under this Plan will
be the date specified by the Committee or the Board at the time it grants the
Stock Right; provided, however, that such date shall not be prior to the date on
which the Committee acts to approve the grant.
Minimum Option Price
Price for Options. The exercise price per share specified in the agreement
relating to each Option granted under this Plan shall in no event be less than
the lesser of (i) the book value per share of the Common Stock as of the end of
the fiscal year of the Company immediately preceding the date of such grant or
(ii) fifty percent (50%) of the fair market value per share of the Common Stock
on the date of such grant. Subject to the foregoing sentence, the exercise price
for Options granted hereunder shall be determined by the Committee or the Board
in its sole discretion, taking into account factors it deems relevant.
(b) Awards and Purchases. Awards and Purchases under this Plan shall
be made at prices equal to the fair market value of the Common Stock on the date
of such Award or Purchase. Fair market value shall be determined by the
Committee or the Board in its sole discretion in accordance with Section 6(c)
below. Shares of Common Stock may be issued in Award and Purchase transactions
for any lawful consideration determined by the Committee or the Board in its
sole discretion.
(c) Determination of Fair Market Value. If, at the time an Option is
granted under this 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 (i) the average (on that date) of the high and
low prices of the Common Stock on the principal national securities exchange on
which the Common Stock is traded, if the Common Stock is then-traded on a
national securities exchange; or (ii) the last reported sale price (on that
date) of the Common Stock on the NASDAQ National Market, if the Common Stock is
not then traded on a national securities exchange; or (iii) the closing bid
price (or average of bid prices) last quoted (on that date) by an established
quotation service for over-the-counter securities, if the Common Stock is not
reported on the NASDAQ National Market. However, if the Common Stock is not
publicly-traded at the time an Option is granted under this Plan, "fair market
value" shall be deemed to be the fair value of the Common Stock as determined by
the Committee or the Board in its sole discretion, after taking into
consideration all factors that it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
Option Duration. Subject to earlier termination as provided in Sections 9
and 10 below, each Option shall expire on the date specified by the Committee
or the Board, but not more than (i) ten (10) years and one (1) day from the
date of grant.
Exercise of Options. Subject to the provisions of Sections 9 through 12
below, each Option granted under this Plan shall be exercisable as follows:
Vesting. The Option shall either be fully exercisable on the date of grant
or shall become exercisable thereafter in such installments as the Committee
or Board may specify.
Full Vesting of Installments. Once an installment becomes exercisable it
shall remain exercisable until expiration or termination of the Option, unless
otherwise specified by the Committee or the Board.
Partial Exercise. Each Option or installment 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.
Acceleration of Vesting. The Committee or the Board shall have the right
to accelerate the date of exercise of any installment of any Option.
Termination of Employment. If an optionee ceases to be employed by the
Company or any Related Corporation other than by reason of death or disability
as defined in Section 10 below, no further installments of such optionee's
Options shall become exercisable, and such optionee's vested Options shall
terminate after the passage of ninety (90) days from the date of termination
of such optionee's employment, but in no event later than on their specified
expiration date(s). 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 ninety (90) days or, if longer, any period during which
such optionee's right to reemployment is guaranteed by statute. A bona fide
leave of absence with the written approval of the Committee or the Board shall
not be considered an interruption of employment under this 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. Options granted under this Plan shall not be affected by
any change of employment within or among the Company and any Related
Corporations, so long as the optionee continues to be an employee of the Company
or any Related Corporation. Nothing in this Plan shall be deemed to give any
grantee of any Stock Right the right to be retained in employment or other
service by the Company or any Related Corporation for any period of time.
Death; Disability.
Death. If an optionee ceases to be employed by the Company or any Related
Corporation by reason of such optionee's death, any Options of such optionee
may be exercised, to the extent of the number of shares with respect to which
the optionee could have exercised on the date of the optionee's death, by the
optionee's estate, personal representative or beneficiary who has acquired the
Options by will or by the laws of descent and distribution, at any time prior
to the earlier of the specified expiration date of the Option or one year from
the date of the optionee's death.
Disability. If an optionee ceases to be employed by the Company or any
Related Corporation by reason of disability, such optionee (or such optionee's
custodian) shall have the right to exercise any Option held by such optionee on
the date of termination of employment, to the extent of the number of shares
with respect to which the optionee could have exercised on that date, at any
time prior to the earlier of the specified expiration date of the Options or
one year from the date of the termination of the optionee's employment. For
purposes of this Plan, the term "disability" shall mean "permanent and total
disability" as defined in Section 22(e)(3) of the Code or any successor statute.
Assignability. No Option or Derivative Security (as that term is defined
in Rule 16b-3 under the 1934 Act) shall be assignable or transferable by the
optionee except as permitted under Rule 16b-3 under the 1934 Act or by will or
by the laws of descent and distribution, and during the lifetime of the optionee
each Option shall be exercisable only by the optionee.
Terms and Conditions of Options. Options shall be evidenced by instruments
(which need not be identical) in such form as the Committee or the Board may
from time-to-time approve. Such instruments shall conform to the terms and
conditions set forth in Sections 6 through 11 above and may contain such other
provisions as the Committee or the Board deems advisable, which are not
inconsistent with this Plan, including, without limitation, restrictions
applicable to shares of the Company's Common Stock issuable upon exercise of
Options. In granting Options, the Committee or the Board may specify that
Options shall be subject to the restrictions set forth herein, or to such other
termination and cancellation provisions as the Committee or the Board may
determine. The Committee or the Board may from time-to-time confer authority and
responsibility on one or more of its 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.
Adjustments. Upon the occurrence of any of the following events, an
optionee's rights with respect to Options granted to the optionee hereunder
shall be adjusted as hereinafter provided, unless otherwise specifically
provided in the written agreement between the optionee and the Company
regarding such Option:
Stock Dividends and Stock Splits. If the shares of the Company's 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.
Merger; Consolidation; Sale of Assets. In the event of a consolidation,
a merger in which the Company is not the surviving entity, or the sale of all
or substantially all of the Company's assets, the Committee or the Board may
in its sole discretion accelerate the exercisability of any or all outstanding
Options so that such Options would be exercisable in full prior to the
consummation of such consolidation, merger or asset sale at such times and on
such conditions as the Committee or the Board shall determine, unless the
successor entity, if any, assumes the outstanding Options or substitutes
substantially equivalent options therefor.
Recapitalization or Reorganization. In the event of a recapitalization or
reorganization of the Company (other than a transaction described in Section
13(b) above) pursuant to which securities of the Company or of another entity
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 the optionee would have received if the
optionee had exercised the Option prior to such recapitalization or
reorganization.
Issuances of Securities. Except as expressly provided herein, no issuance
by the Company of shares of stock of any class, or of securities convertible
into shares of 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 paid in cash or in property
other than securities of the Company.
Fractional Shares. No fractional shares shall be issued under this Plan
and each optionee shall receive from the Company cash in lieu of such fractional
shares.
Adjustments. Upon the happening of any of the events described in Section
13(a), (b) or (c) above, the class and aggregate number of shares set forth in
Section 4 above that are subject to Stock Rights that previously have been or
subsequently may be granted under this Plan shall also be appropriately adjusted
to reflect the events described in such Sections. The Committee or Board shall
determine the specific adjustments to be made under this Section 13 and,
subject to Section 2 above, its determination shall be conclusive.
If any person or entity owning restricted Common Stock obtained by exercise
of a Stock Right hereunder receives shares or securities or cash in connection
with a corporate transaction described in Sections 13(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 Board.
Means of Exercising Stock Rights. A Stock Right (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 Stock Right being
exercised and specify the number of shares as to which such Stock Right is being
exercised, accompanied by full payment of the purchase price therefor in United
States dollars in cash or by check. The holder of a Stock Right shall not have
the rights of a shareholder with respect to the shares covered by his, her or
its Stock Right until the date of issuance of a stock certificate for such
shares. Except as expressly provided in Section 13 above 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.
Term and Amendment of Plan. This Plan was approved and adopted by the
Board on November 24, 1996. This Plan shall expire on November 24, 2006 (except
as to Options outstanding on that date). The Board may terminate or amend this
Plan in any respect at any time. Except as otherwise provided in this Section
15, in no event may action of the Board or the stockholders alter or impair the
rights of a grantee, without such grantee's consent, under any Stock Right
previously granted to such grantee. The Committee or the Board may amend the
terms of any Stock Right granted if such amendment is agreed to by the recipient
of such Stock Right.
Application of Funds. The proceeds received by the Company from the sale
of shares pursuant to Options granted and Purchases authorized under this Plan
shall be used for general corporate purposes.
Governmental Regulation. The Company's obligation to sell and deliver
shares of 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.
Withholding of Additional Income Taxes. Upon the exercise of an Option,
the grant of an Award, the making of a Purchase of Common Stock for less than
its fair market value, or the vesting of restricted Common Stock acquired upon
the exercise of a Stock Right hereunder, the Company, in accordance with Section
3402(a) of the Code, may require the optionee, Award recipient or purchaser to
pay additional withholding taxes in respect of the amount that is considered
compensation includable in such individual's gross income. The Committee or the
Board in its discretion may condition (i) the exercise of an Option, (ii) the
grant of an Award, (iii) the making of a Purchase of Common Stock for less than
its fair market value or (iv) the vesting of restricted Common Stock acquired
by exercising a Stock Right, on the grantee's payment of such additional
withholding taxes.
Governing Law; Construction. The validity and construction of this
Plan and the instruments evidencing Stock Rights shall be governed by the laws
of the State of Colorado, or the laws of any jurisdiction in which the Company
or its successors in interest may be organized. In construing this Plan, the
singular shall include the plural and the masculine gender shall include the
feminine and neuter, and vice versa, unless the context otherwise requires.
Amendment of Section 8 of Medix Resources, Inc.
Amended and Restated 1996 Stock Incentive Plan
Approved by Board of Directors on January 26, 2000
Means of Exercising Options. 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 price in any of the following ways:
(i) in U.S. dollars in cash or by check, bank draft or money order; (ii) by the
surrender of all or part of an Option (including the Option being exercised)
with an aggregate net value equal to the aggregate exercise price; (iii) by the
tender to the Company of shares of Common Stock with an aggregate value equal to
the exercise price; or (iv) by a combination of (i), (ii) and (iii) above. The
holder of an Option shall not have the rights of a shareholder with respect to
the shares covered by his, her or its Option until the date of issuance of a
stock certificate for such shares.
INTERNATIONAL NURSING SERVICES, INC.
INCENTIVE STOCK OPTION PLAN
1. Purpose of the Plan. This Stock Option Plan (hereinafter referred to as
the "Plan") is intended to encourage ownership of stock of International Nursing
Services, Inc., a Colorado corporation (hereinafter referred to as the
"Corporation"), by key employees (either full-time or part-time) of the
Corporation and its subsidiaries, and to provide additional incentive for them
to promote the success of the Corporation's business. As used in the Plan, the
term "subsidiary" shall have the same meaning as the term "subsidiary
corporation" defined in Section 425 (f) of the Internal Revenue Code of 1986, as
from time to time amended (the "Code"). The Plan and options granted under the
Plan shall be classified as "Incentive Stock Options" and conform to the Code
Section 422A treatment of Incentive Stock Options.
2. Scope of the Plan. An aggregate of 500,000 authorized but unissued
shares of the Corporation's common stock, par value $.001 per share (the "Common
Stock"), shall be available and reserved for issue under the Plan. If an option
should expire or terminate for any reason without having been exercised in full,
the unpurchased shares which were subject thereto shall, unless the Plan shall
have terminated, become available for other options under the Plan. The Common
Stock shall not be issued in respect of an option granted hereunder unless the
exercise of such option and the issuance and delivery of shares of Common Stock
pursuant thereto shall comply with all relevant provisions of law, including the
law of the corporation's state of incorporation, the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, the rules and
regulations thereunder, and the requirements of any stock exchange upon which
the Common Stock may then be listed, and shall be further subject to the
approval of the Corporation's counsel with respect to such compliance.
3. Administration of the Plan. The Plan shall be administered by the Board
of Directors or, at their discretion, by a stock option committee (the
"Committee") consisting of not less than three members of the Board of
Directors, both of which shall have authority from time to time: (a) subject to
the provisions of Section 4, to determine which of the key employees of the
Corporation or any of its present or future subsidiaries shall be granted
options with respect to any or all of such shares; (b) to determine the times
when options shall be granted and the number of shares to be granted, except
as may otherwise be provided herein; (c) to determine the time or times when
each option becomes exercisable and the duration of the exercise period, except
as may otherwise be provided herein; (d) to prescribe the form or forms of the
instruments evidencing any options granted under the Plan (which form shall be
consistent with the Plan but the terms and provisions need not be identical in
each case); (e) to adopt, amend and rescind such rules and regulations as,
in its opinion, may be advisable in the administration of the Plan; and (f) to
construe and interpret the Plan, the rules and regulations and the instruments
evidencing options granted under the Plan and to make all other determinations
deemed necessary or advisable for the administration of the Plan. The grant of
options will be entirely discretionary and nothing in the Plan will be deemed
to give any director, officer or employee a right to receive options. All
decisions, determinations and implementations by the Board of Directors shall
be final and binding. The Board of Directors may request advice of assistance
or employ such other persons as are necessary for proper administration of the
Plan.
4. Eligibility and Participation. Options may be granted only to employees
(including officers and directors who are employees) of the Corporation or any
of its subsidiaries. An individual who has been granted any option, may if he is
otherwise eligible, be granted; however no additional options shall be granted
if the grant will cause such options to violate the terms of Section 422A of the
Code. The aggregate fair market value of the Common Stock (determined at the
time of the grant of the option) for which options are exercisable for the first
time under the terms of the Plan, by any employee during the calendar year, may
not exceed $100,000.
5. Terms of the Options. The term of such option granted under the Plan
shall be for not more than ten years from the date of the granting thereof,
subject to its earlier termination as hereinafter provided. Options shall be
granted with an exercise price equal to 100% of the fair market value of the
Common Stock to which they relate at the time of such grant, except that any
option granted under the Plan to a person owning more than 10% of the total
combined voting power of the Common Stock shall be at an exercise price of 110%
of such fair market value and shall be for a term of no more than five years.
6. Nontransferability of Options. An option granted under the Plan shall by
its terms not be transferable otherwise than by will or by the laws of descent
and distribution, and an option may be exercised, during the lifetime of the
holder of the option, only by such holder.
7. Exercise of Options. Except as provided in this Section 7 and in
Sections 10 and 11 hereof, options granted to persons who are neither directors
nor officers of the corporation are exercisable as determined by the Board of
Directors of the Corporation. Options granted to persons who are directors or
officers at the time of grant are immediately exercisable, in whole or in part.
No option shall be exercisable after the expiration of the term thereof as
provided in Section 5 hereof, and no option shall be exercisable unless the
holder thereof shall at the time of exercise have been an employee of the
Corporation or of any subsidiary of the Corporation for a period of at least
three months, except as otherwise provided in Sections 10 and 11 hereof. The
purchase price of any shares as to which an option shall be exercisable shall be
paid in full at the time of exercise. Upon approval by the Board of Directors,
a holder may exercise his option by surrendering currently held shares of the
Corporation's Common Stock having a value not in excess of the aggregate
purchase price of the shares as to which the option is exercised. The balance of
such purchase price shall be payable by the holder in cash or by certified
check. For purposes of paying the aggregate purchase price of the shares as to
which the option is exercised, each share of Common Stock surrendered shall be
valued at its fair market value on the date of exercise. For this purpose, the
fair market value shall be the average of the closing bid prices of the Common
Stock, as quoted on NASDAQ or as quoted by the National Quotation Bureau, Inc.
if the Common Stock is not quoted on NASDAQ, for the ten trading days preceding
the date of exercise. In the absence of a reported price on the date of
exercise, the Board of Directors, in its discretion, may select any reasonable
method for the valuation of the surrendered shares. The holder of an option
shall not have any of the rights of a stockholder with respect to the shares
covered by his option until such shares shall have been issued to him upon the
purchase of such shares pursuant to his exercise of the option.
8. Securities to be Unregistered. The Corporation shall be under no
obligation to register or assist the holder in registering either the options or
the Common Stock issuable upon exercise of the options under the federal
securities laws or any state securities laws, and both the options and the
Common Stock issuable upon exercise of the options shall be "restricted
securities" as defined in Rule 144 of the General Rules and Regulations of the
Securities Act of 1933 (the "Act"), and may not be offered for sale, sold or
otherwise transferred except pursuant to an effective registration statement
under the Act or pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of the
Corporation. Accordingly, all certificates evidencing shares covered by the
options, and any securities issued and replaced or exchanged therefore, shall
bear a restrictive legend to this effect.
9. Disposition of Shares of Option Stock. An individual who has acquired
stock through the exercise of an option cannot dispose of such stock within two
years after the date of grant or within one year from the date of exercise.
10. Exercise Upon Cessation of Employment. If the holder of an option
granted hereunder ceases to be an employee of the Corporation or of any of its
subsidiaries, any option held by him pursuant to this Plan may be exercised to
the extent exercisable on the termination date, within three months thereafter
(but in no event after the option expires by its terms), unless employment is
terminated for cause, in which case the option terminates immediately. Any
termination of an option hereunder by reason of cessation of employment shall be
without prejudice to any right or remedies which the Corporation or any of its
subsidiaries may have against the holder of the option under the stock option
agreement or otherwise. The stock option agreements may contain such provisions
as the Board of Directors shall approve with reference to the effect of approved
leaves of absence; provided, however, that all options shall terminate a maximum
of ten years after date of grant.
11. Exercise Upon Death or Disability. If the holder of an unexpired option
granted under this Plan dies while an employee of this Corporation or its
subsidiaries or within three months after termination of employment (other than
for cause), his executor, administrator or other person entitled by law to his
rights thereunder may exercise the option at any time within one year after
death (but in no event after the option expires) to the extent exercisable at
the date of death. If the holder of an unexpired option granted under this Plan
becomes disabled within the meaning of Section 105(d)(4) of the Code while an
employee may exercise the option at any time within 12 months after leaving,
employment of the Corporation (but in no event after the option expires).
12. Effectiveness of the Plan. The Plan shall become effective upon
adoption by the Board of Directors of the Corporation provided, however, that
the Plan shall be submitted for approval by the stockholders of the Corporation
no later than 12 months after the date of adoption of the Plan by the Board of
Directors. Should the stockholders fail to approve the Plan, all options granted
thereunder shall be and become null and void.
13. Time of Granting Options. The date of grant of an option under the Plan
shall, for all purposes, be the date on which the Board of Directors or the
Committee makes the determination granting such options, and no grant shall be
deemed effective under the Plan prior to such date. Notice of the Board of
Directors' action shall be given to each employee to whom an option is so
granted within a reasonable time after the date of such grant.
14. Adjustments. Options granted hereunder shall contain such uniform
provisions as the Board of Directors shall, in its sole judgment, determine for
adjustment of the number and class of shares covered thereby or of the option
prices, or both, to reflect a stock dividend, stock split-up, share combination,
exchange of shares, recapitalization, merger, consolidation, acquisition or
disposition of property or shares, reorganization, liquidation, issuance of
additional shares or other similar changes or transactions of or by the
Corporation. In any such event the aggregate number and class of shares
available for issuance under the Plan shall be appropriately adjusted and all of
the provisions of this Plan with respect to the number and class of shares so
available shall likewise be adjusted; provided, however, that no such adjustment
shall be made so as to constitute a modification, extension or renewal of the
option within the meaning of Section 425(h) of the Code, or so as to prevent the
Corporation, or any other corporation or any subsidiary thereof if the employee
shall become employed by such corporation by reason of the transaction in
respect of which such adjustment is made, from being a corporation issuing or
assuming the option in a transaction to which Section 425(a) of the Code
applies.
15. Termination and Amendment of the Plan. The Plan will terminate ten
years from the date of adoption by the Board of Directors, unless the Board of
Directors elects to terminate the Plan prior to that date. The Board of
Directors may, at any time, without further stockholder approval, terminate,
modify or amend the Plan. It may not, however, without further approval by the
holders of a majority of the outstanding Common Stock, increase the number of
shares as to which options may be granted, change the eligibility requirements
for persons entitled to receive options or adversely affect the rights of an
optionee under any unexercised option or any portion thereof without the consent
of the optionee. Neither the termination nor any modification or amendment of
the Plan shall, without the consent of the holder of an option theretofore
granted under the Plan, adversely affect the rights of such holder with respect
to such option.
16. Termination of Right of Action. Every right of action arising out of
or in connection with the Plan by or on behalf of the Corporation or of any
subsidiary, or by any stockholder of the Corporation or of any subsidiary
against any past, present or future officer or member of the Board of Directors,
or against any employee, or by an employee (past, present or future) against the
Corporation or any subsidiary, will, irrespective of the place where an action
may be brought and irrespective of the place of residence of any such
stockholder, officer, director of employee, cease and be barred upon the
expiration of three years from the date of the act or omission in respect of
which such right of action is alleged to have risen.
17. Registration of Certificates. Certificates may be registered only in
the name of the employee or, if he so indicates in writing, in his name jointly
with a member of his family, with right of survivorship. An employee who is a
resident of a jurisdiction which does not recognize such a joint tenancy may
have certificates registered in his name as tenant in common with a member of
his family, without right of survivorship.
18. Stock Option Agreements. Each option granted under this Plan shall be
evidenced by a stock option agreement in such form and containing such
provisions (subject to and limited by the terms of this Plan) as the Board of
Directors shall from time to time approve. Agreements evidencing the options
need not be identical.
19. Tax Litigation. The Corporation shall have the right to contest, at its
expense, any tax ruling or decision, administrative or judicial, on an issue
which is related to the Plan and which the Board of Directors believes to be
important to holders of options issued under the Plan and to conduct any such
contest or any litigation arising therefrom to a final decision.
20. Governmental and Other Regulations. The Plan, and the grant and
exercise of the option to purchase shares hereunder, and the Corporation's
obligation to sell and deliver shares upon the exercise of rights to purchase
shares shall be subject to all applicable federal and state laws, rules and
regulations, and to such approvals by any regulatory or governmental agency
which may, in the opinion of legal counsel for the Corporation, be required.
21. Governing Law. The Plan shall be governed by and construed in
accordance with the laws of the State of Colorado, without giving effect to
conflict of laws.
22. Severability. If any provision of the Plan is invalid, illegal or
unenforceable, the balance of the Plan shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
This plan was adopted by the unanimous written consent of the Board of
Directors and Stockholders on the day of , 1995.
<PAGE>
INTERNATIONAL NURSING SERVICES, INC.
STOCK OPTION
International Nursing Services, Inc. (the "Company") hereby grants to the
right and option to purchase shares of the Common Stock $.001 par value, of the
Company at the exercise price of per share. This option is granted as of the
date set forth below and shall expire ten years from such date. This Option is
subject to the restrictions as set forth below and to all the terms and
conditions of the International Nursing Services, Inc. Incentive Stock Option
Plan, which are incorporated herein by this reference, and may not be assigned
or transferred except as provided herein.
Restrictions: None
"THE COMPANY"
INTERNATIONAL NURSING SERVICES, INC.
By:________________________________
ATTEST:____________________________
Dated:
Amendment of Section 7 of Medix Resources, Inc. (formerly
International Nursing Services, Inc.) 1994 Incentive Stock Option Plan
Approved by Board of Directors on January 26, 2000
Means of Exercising Options. 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 price in any of the following ways:
(i) in U.S. dollars in cash or by check, bank draft or money order; (ii) by the
surrender of all or part of an Option (including the Option being exercised)
with an aggregate net value equal to the aggregate exercise price; (iii) by the
tender to the Company of shares of Common Stock with an aggregate value equal to
the exercise price; or (iv) by a combination of (i), (ii) and (iii) above. The
holder of an Option shall not have the rights of a shareholder with respect to
the shares covered by his, her or its Option until the date of issuance of a
stock certificate for such shares.
STOCK OPTION AGREEMENT
The Board of Directors of Medix Resources, Inc. (the "Company") has determined
that (sometimes referred to herein as "You" or the "Optionee") is eligible for a
grant pursuant to the Corporate Resolution dated (the "Agreement").
This Stock Option Agreement is made by and between the Company and You as
follows:
1. Grant of Option. You are hereby granted, as of the date hereof, an
option to purchase shares of the Company's common stock ("Option").
2. Exercise Price. The exercise price pursuant to this Stock Option
Agreement will be per share.
3. Term. This Option shall expire on.
THIS OPTION MAY BE EXERCISED ONLY BY YOU. NEITHER THIS OPTION NOR ANY PORTION
THEREOF OR INTEREST THEREIN MAY BE SOLD, PLEDGED, ASSIGNED OR TRANSFERRED IN ANY
MANNER.
Exercise of this Option shall not be effective until the Company has received
written notice of exercise specifying the number of whole shares to be
purchased. Such notice shall be accompanied by full payment of the aggregate
purchase price for the number of shares so purchased in cash, or by check, bank
draft or money order. Thereafter, a certificate or certificates representing the
shares so purchased shall, within a reasonable time, be issued in street name
and delivered to your account, subject to postponement of issuance in order to
permit compliance with applicable federal or state securities laws, the rules
and regulations of any self-regulating organization or the Company's Articles of
Incorporation and Bylaws. You shall not be entitled to the rights of a
shareholder with respect to the shares until the Company issues one or more
certificates evidencing such shares. The Company shall act as expeditiously as
possible in complying with its obligations under this Stock Option Agreement.
Upon a partial exercise of this Option, this Stock Option Agreement shall be
automatically amended to reduce the number of shares covered by this Option by
the number of shares so purchased without the necessity of the execution of a
new agreement or a formal written amendment of this Stock Option Agreement.
4. Certain Taxes. You hereby authorize the Company to withhold, in
accordance with applicable law, from any compensation (whether salary, bonus or
otherwise) payable to You, any taxes required to be withheld by any federal,
state or local law or regulation as a result of the exercise of this Option. In
this regard, You acknowledge and agree that the determination by the Company of
any shares on the date such shares are included in your gross income shall be
final and conclusive in all respects.
5. Securities and Other Regulations. You hereby agree that the shares
acquired upon exercise of this Option shall be acquired for your own account for
investment purposes only and not with a view to any distribution or public
offering thereof within the meaning of the Securities Act of 1933 (the "Act") or
other applicable securities laws. If the Company so determines, any stock
certificates issued upon exercise of this Option shall bear a legend to the
effect that the shares have been so acquired. The Company shall not be required
to bear any expenses of compliance with the Act, other applicable securities
laws or the rules and regulations of any national securities exchange or other
regulatory authority in connection with the registration, qualification or
transfer, as the case may be, of this Option or any shares acquired upon the
exercise thereof. The foregoing restriction on the transfer of the shares shall
not apply if (a) the Company shall have been furnished with a satisfactory
opinion of counsel to the effect that such transfer will be in compliance with
the Act and other applicable securities laws, or (b) the shares shall have been
duly registered in compliance with the Act and other applicable securities laws.
6. Legends. The Company may legend the stock certificates evidencing shares
acquired pursuant to the Stock Option Agreement in a manner that is the same or
similar to the following:
The shares of Common Stock evidenced by this certificate have not been
registered under the Securities Act of 1933 or the securities law of the state
in which the shareholder resides, and may be sold, transferred or otherwise
disposed of only in accordance therewith. The shares of stock evidenced by this
certificate are subject to certain transfer and repurchase restrictions imposed
by that certain instrument entitled Stock Option Agreement dated May 10, 1999
between the Optionee and the Company. A copy of the Stock Option Agreement is on
file at the Company's principal office.
7. Acceptance of Stock Option Agreement. You hereby approve and accept the
terms, conditions, and provisions of this Stock Option Agreement and agree to be
bound hereby. Without limitation of the foregoing, you hereby agree that all
decisions or interpretations of the Company or its duly authorized
representatives with regard to any and all aspects of the Stock Option Agreement
shall be binding, conclusive and final.
8. Address for Notices. The parties hereto designate as the respective
addresses for the receipt of any notice under this Stock Option Agreement the
addresses set forth below their signatures on this Stock Option Agreement.
9. Use of Services; Successors. Nothing herein confers any right or
obligation on You to continue rendering services to the Company or shall affect
in any way your right or the right of the Company, as the case may be, to
terminate your services at any time.
10. Entire Agreement. This agreement constitutes the entire understanding
between you and the Company, and supersedes all other agreements, whether
written or oral, with respect to the acquisition by you of your Option and/or
any other agreement with the Company except the Agreement which is incorporated
herein by reference.
Executed as of this ___ day of.
MEDIX RESOURCES, INC. OPTIONEE:_________________
By:____________________ By:_______________________
Title: President
Address: Medix Resources, Inc. Address:
7100 E. Belleview Avenue
Suite 301
Englewood, CO 80111
Amendment of Non-Plan Option Agreement of Medix Resources, Inc.
Approved by Board of Directors on January 26, 2000
Means of Exercising Options. 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 price in any of the following ways:
(i) in U.S. dollars in cash or by check, bank draft or money order; (ii) by the
surrender of all or part of an Option (including the Option being exercised)
with an aggregate net value equal to the aggregate exercise price; (iii) by the
tender to the Company of shares of Common Stock with an aggregate value equal to
the exercise price; or (iv) by a combination of (i), (ii) and (iii) above. The
holder of an Option shall not have the rights of a shareholder with respect to
the shares covered by his, her or its Option until the date of issuance of a
stock certificate for such shares.
Number of Shares: Date of Grant:
INCENTIVE STOCK OPTION AGREEMENT
AGREEMENT made this _____________, between (the "Optionee"), and
International Nursing Services, Inc., a Colorado corporation (the "Company").
1. Grant of Option. The Company, pursuant to the provisions of the
International Nursing Services, Inc. - Incentive Stock Option Plan (the "1988
Plan"), set forth as Attachment A hereto, hereby grants to the Optionee, subject
to the terms and conditions set forth or incorporated herein, an Option to
Purchase (the "Option") from the Company all or any part of an aggregate of
shares of Common Stock, as such shares of Common Stock are now constituted, at
the purchase price of $ per share. The provisions of the 1988 Plan governing the
terms and conditions of the Option granted hereby are incorporated in full
herein by reference.
2. Exercise. The Option evidenced hereby shall be exercisable in whole or
in part (but only in multiples of 100 shares unless such exercise is as to the
remaining balance of this Option) as set forth in terms and conditions of the
1988 Stock Option Plan. The Option evidenced hereby shall be exercisable by the
delivery to and receipt by the Company of (i) written notice of election to
exercise, in the form set forth in Attachment B hereto, specifying the number of
shares to be purchased; (ii) accompanied by payment of the full purchase price
thereof in cash or certified check payable to the order of the Company, or by
fully-paid and nonassessable shares of Common Stock of the Company properly
endorsed over to the Company, or by a combination thereof; and (iii) by return
of this Incentive Stock Option Agreement for endorsement of exercise by the
Company on Schedule I hereof. In the event fully-paid and nonassessable shares
of Common Stock are submitted as whole or partial payment for shares of Common
Stock to be purchased hereunder, such shares of Common Stock will be valued at
their fair market value on the date such shares received by the Company are
applied to payment of the exercise price.
3. Non-Transferability. The Option evidenced hereby is not assignable or
transferable by the Optionee other than by the Optionee's will or by the laws of
descent and distribution, as provided in Section 6 of the 1988 Plan. The Option
shall be exercisable only by the Optionee during his/her lifetime.
INTERNATIONAL NURSING SERVICES, INC.
By:______________________
ATTEST:
Amendment of Non-Plan Option Agreement of Medix Resources, Inc.
Approved by Board of Directors on January 26, 2000
Means of Exercising Options. 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 price in any of the following ways:
(i) in U.S. dollars in cash or by check, bank draft or money order; (ii) by the
surrender of all or part of an Option (including the Option being exercised)
with an aggregate net value equal to the aggregate exercise price; (iii) by the
tender to the Company of shares of Common Stock with an aggregate value equal to
the exercise price; or (iv) by a combination of (i), (ii) and (iii) above. The
holder of an Option shall not have the rights of a shareholder with respect to
the shares covered by his, her or its Option until the date of issuance of a
stock certificate for such shares.
<PAGE>
THE REGISTERED OWNER OF THIS WARRANT, BY HIS ACCEPTANCE HEREOF, AGREES THAT HE
WILL NOT SELL, TRANSFER, OR ASSIGN THIS WARRANT. TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN
ANNEX II TO WARRANT, STATEMENT OF RIGHTS OF WARRANTHOLDER. NO TRANSFER OF THESE
SECURITIES OR OF THIS CERTIFICATE, OR OF ANY SECURITIES OR CERTIFICATES ISSUED
IN EXCHANGE THEREFOR, SHALL BE EFFECTIVE UNLESS THERE IS COMPLIANCE WITH THE
TERMS AND CONDITIONS OF SUCH RESTRICTIONS.
WARRANT
For the Purchase of _______ Common Shares
of
INTERNATIONAL NURSING SERVICES, INC.
(a Colorado corporation)
THIS CERTIFIES THAT, for value received, ________ _______, as registered
owner (the "Owner") of this Warrant, is entitled, subject to Annex I hereto, at
any time or from time to time on or after ________, and at or
before____________, (subject to earlier expiration pursuant to Section 2 of
Annex II attached hereto), but not thereafter, to subscribe for, purchase and
receive fully paid and nonassessable shares of common stock (the "Shares") of
International Nursing Services, Inc., a Colorado corporation (the
"Corporation"), at the price of per Share (the "Exercise Price"), upon
presentation and surrender of this Warrant and upon payment of the Exercise
Price for the Shares to be purchased to the Corporation at the principal office
of the Corporation as more fully described in the Statement of Rights of
Warrantholder, a copy of which is attached as Annex II hereto and by this
reference made a part hereof; provided, however, that upon the occurrence of any
of the events specified in Annex II, the rights granted by this Warrant shall be
terminated or adjusted as specified in such Annexes. Upon exercise of this
Warrant, the form of election hereinafter provided must be duly executed and the
instructions for registration of the Shares acquired by such exercise must be
completed. If the subscription rights represented hereby shall not be exercised
at or before , or such earlier date as may be applicable pursuant to Section 2
of Annex II, this Warrant shall become and be void without further force or
effect, and all rights represented hereby shall cease and expire.
Subject to the terms contained herein, this Warrant may be exercised in
whole or in part by execution by the Owner of the form of exercise attached
hereto. In the event of the exercise hereof in part only, the Corporation shall
cause to be delivered to the Owner a new Warrant of like tenor to this Warrant
in the name of the Owner evidencing the right of the Owner to purchase the
number of Shares purchasable hereunder as to which this Warrant has not been
exercised.
In no event shall this Warrant (or the Shares issuable upon full or partial
exercise hereof) be offered or sold except in conformity with the Securities Act
of 1933, as amended.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be signed by
its duly authorized officers and to be sealed with the seal of the Corporation.
INTERNATIONAL NURSING SERVICES, INC.
By______________________________________________
President
By______________________________________________
Assisting Secretary
<PAGE>
Form to be used to exercise Warrant:
EXERCISE FORM
The undersigned hereby elects irrevocably to exercise the within Warrant and
to purchase ______________ Common Shares of International Nursing Services,
Inc., called for hereby, and hereby makes payment of $___________(at the rate of
$_____ per share) in payment of the Exercise Price pursuant hereto. Please issue
the shares as to which this Warrant is exercised in accordance with the
instructions given below.
Dated: ____________________, 19___
Signature:____________________________________
Signature Guaranteed: ________________________
INSTRUCTIONS FOR REGISTRATION OF SHARES
Name
________________________________________________________________________________
Address_________________________________________________________________________
NOTICE: The signature to the form to exercise or form to assign must correspond
with the name as written upon the face of the within Warrant in every particular
without alteration or enlargement or any change whatsoever, and must be
guaranteed by a bank, other than a savings bank, or by a trust company or by a
firm having membership on a registered national securities exchange.
<PAGE>
ANNEX I
The Owner of this Warrant shall be entitled to exercise this Warrant to purchase
_______ shares of common stock on or after , provided International Nursing
Services, Inc.'s net revenues, on an annualized proforma basis, equal or exceed
.
In the event the Company does not reach the net revenue level specified above in
any year, the Owner of this Warrant will still have the right to exercise this
Warrant to purchase such shares at
. Once the right to exercise this Warrant is
vested because the Company achieved the net revenue level specified above, the
Owner shall be entitled to exercise this Warrant until expiration of this
Warrant, or such earlier date as may be applicable pursuant to Section 2 of
Annex II.
For purposes of this Annex I, the term "net revenue level" shall be determined
by generally accepted accounting methods and shall be based on the actual or
annualized financial statements of the Company and any of its acquisition(s).
<PAGE>
ANNEX II TO WARRANT
INTERNATIONAL NURSING SERVICES, INC.
STATEMENT OF RIGHTS OF WARRANTHOLDER
1. Exchange of Warrant. This Warrant, at any time prior to the exercise hereof,
upon presentation and surrender to the Corporation, may be exchanged, alone or
with other Warrants of like tenor registered in the name of the same Owner, for
another Warrant or other Warrants of like tenor in the name of such Owner,
exercisable for the same aggregate number of Shares as the Warrant or Warrants
surrendered.
2. Purchase and Exercise of Warrant.
(a) The right to purchase Shares upon exercise of this Warrant shall be
vested only in accordance with Annex I hereto. THIS WARRANT MAY NOT BE SOLD,
ASSIGNED, HYPOTHECATED OR TRANSFERRED, OTHER THAN BY WILL OR PURSUANT TO THE
LAWS OF DESCENT AND DISTRIBUTION. Furthermore, the Owner's right to exercise
this Warrant shall cease upon ninety days after the Owner's termination of
employment, death, retirement , or disability. Each certificate for Warrants
issued hereunder shall bear a legend reading substantially as follows:
"TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
CERTAIN RESTRICTIONS SET FORTH IN ANNEX II TO WARRANT, STATEMENT OF RIGHTS OF
WARRANTHOLDER, NO TRANSFER OF THESE SECURITIES OR OF THIS CERTIFICATE, OR OF ANY
SECURITIES OR CERTIFICATES ISSUED IN EXCHANGE THEREFOR, SHALL BE EFFECTIVE
UNLESS THERE IS COMPLIANCE WITH THE TERMS AND CONDITIONS OF SUCH RESTRICTIONS."
In case the Owner shall desire to exercise the purchase right evidenced by
this Warrant, the Owner shall surrender this Warrant with the form of exercise
attached hereto duly executed by the Owner, to the Corporation at the principal
office of the Corporation at Suite 505, 360 South Garfield Street, Denver,
Colorado 80209, attention of the President accompanied by payment by certified
funds, cashier's check or other form of payment acceptable to the Corporation of
the total Exercise Price (hereinafter defined) for the Shares to be purchased.
This Warrant may be exercised in whole or in part, subject to vesting of the
right of exercise. In case of the exercise hereof in part only, the Corporation
will deliver to the Owner a new Warrant or like tenor in the name of the Owner
evidencing the right to purchase the number of Shares as to which this Warrant
has not been exercised. Unless the Corporation receives an opinion from counsel
satisfactory to it that such a legend is not required in order to assure
compliance with the Securities Act of 1933, as amended (the "1933 Act"), or any
applicable state securities laws, each certificate for Shares issued hereunder
shall bear a legend reading substantially as follows:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, NOR
HAVE THEY BEEN REGISTERED UNDER THE SECURITIES ("BLUE SKY") LAWS OF ANY STATE.
THESE SECURITIES MAY NOT BEEN SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS
THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND UNDER THE
APPLICABLE STATE SECURITIES ("BLUE SKY") LAWS OR UNLESS THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND LAWS IS ESTABLISHED TO THE
SATISFACTION OF THE COMPANY, WHICH MAY NECESSITATE A WRITTEN OPINION OF SELLER'S
COUNSEL SATISFACTORY TO COMPANY COUNSEL.
(b) The exercise price (the "Exercise Price") per Share issuable upon the
exercise of this Warrant shall be.
(c) The term of this Warrant (the "Warrant Period") is a -year period commencing
on , and ending on .
3. Disposition of Securities
The registered Owner of this Warrant, by acceptance hereof, agrees that,
before any disposition is made of any Warrant or underlying Share, the Owner
shall give written notice to the Corporation describing briefly the manner of
any such proposed disposition. No such disposition shall be made unless and
until:
(a) The Corporation has received an opinion from counsel for the Owner of
said securities stating that no registration under the 1933 Act or any state
securities law is required with respect to such disposition; or
(b) A registration statement or post-effective amendment to a registration
statement under the 1933 Act has been filed by the Corporation and made
effective by the Securities and Exchange Commission covering such proposed
disposition and the securities have been registered under the appropriate state
securities laws or an exemption from registration is available.
4. Share Dividends, Reclassification, Reorganization Provisions.
(a) If, prior to the expiration of this Warrant by exercise or by its terms,
the Corporation shall issue any of its Common Shares as a share dividend or
subdivide the number of outstanding Common Shares into a greater number of
shares, then, in either of such cases, the Exercise Price per Share purchasable
pursuant to this Warrant in effect at the time of such action shall be
proportionately reduced and the number of Shares at the time purchasable
pursuant to this Warrant shall be proportionately increased; and conversely, if
the Corporation shall contract the number of outstanding Common Shares by
combining such shares into a smaller number of shares, then, in such case, the
Exercise Price per Share purchasable pursuant to this Warrant in effect at the
time of such action shall be proportionately increased and the number of Shares
at that time purchasable pursuant to this Warrant shall be proportionately
decreased. If the Corporation shall, at any time during the life of this
Warrant, declare a dividend payable in cash on its Common Shares and shall at
substantially the same time offer to its shareholders a right to purchase new
Common Shares from the proceeds of such dividend or for an amount substantially
equal to the dividend, all Common Shares so issued shall, for the purpose of
this Warrant, be deemed to have been issued as a share dividend. Any dividend
paid or distributed upon the Common Shares in shares of any other class of
securities convertible into Common Shares shall be treated as a dividend paid in
Common Shares to the extent that Common Shares are issuable upon the conversion
thereof.
(b) If, prior to the expiration of this Warrant by exercise or by its terms,
the Corporation shall be recapitalized by reclassifying its outstanding Common
Shares into shares with a different par value, or the corporation or a successor
corporation shall consolidate or merge with or convey all or substantially all
of its or of any successor corporation's property and assets to any other
corporation or corporations (any such corporation being included within the
meaning of the term "successor corporation" used above in the event of any
consolidation or merger of any such corporation with, or the sale of all or
substantially all of the property of any such corporation to another corporation
or corporations), the Owner of this Warrant shall thereafter have the right to
purchase, upon the basis and on the terms and conditions and during the time
specified in this Warrant, in lieu of the Shares theretofore purchasable upon
the exercise of this Warrant, such shares, securities, or assets as may be
issued or payable with respect to, or in exchange for, the number of Shares
theretofore purchasable upon the exercise of this Warrant had such
recapitalization, consolidation, merger or conveyance not taken place, and, in
any such event, the rights of the Owner of this Warrant to an adjustment in the
number of Shares purchasable upon the exercise of this Warrant as herein
provided shall continue and be preserved in respect of any shares, securities,
or assets which the Owner of this Warrant becomes entitled to purchase.
(c) If: (i) the Corporation shall take a record of the holders of its Common
Shares for the purpose of entitling them to receive a dividend payable otherwise
than in cash, or any other distribution in respect of the Common Shares
(including cash), pursuant to, without limitation, any spin-off, split-off, or
distribution of the Corporation's assets: or (ii) the Corporation shall take a
record of the holders of its Common Shares for the purpose of entitling them to
subscribe for or purchase any shares of any class or to receive any other
rights; or (iii) in the event of any classification, reclassification, or other
reorganization of the shares which the Corporation is authorized to issue,
consolidation or merger of the Corporation with or into another corporation, or
conveyance of all or substantially all of the asset of the Corporation; or (iv)
in the event of the voluntary or involuntary dissolution, liquidation or winding
up of the Corporation; then, and in any such case, the Corporation shall mail to
the Owner of this Warrant, at least thirty (30) days prior thereto, a notice
stating the date or expected date on which a record is to be taken for the
purpose of such dividend, distribution or rights, or the date on which such
classification, reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation, or winding up, as the case may be, will be
effected. Such notice shall also specify the date or expected date, if any is to
be fixed, as of which holders of Common Shares of record shall be entitled to
participate in such dividend, distribution, or rights, or shall be entitled to
exchange their Common Shares for securities or other property deliverable upon
such classification, reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation, or winding up, as the case may be.
(d) If the Corporation, at any time while this Warrant shall remain unexpired
and unexercised, shall sell all or substantially all of its property, dissolve,
liquidate, or wind up its affairs, the Owner of this Warrant may thereafter
receive upon exercise hereof, in lieu of each Share which it would have been
entitled to receive, the same kind of amount of any securities or assets as may
be issuable, distributable, or payable upon any such sale, dissolution,
liquidation, or winding up with respect to each Common Share of the Corporation.
5. Reservation of Shares Issuable on Exercise of Warrants. The Corporation will,
at all times, reserve and keep available out of its authorized shares, solely
for issuance upon the exercise of this Warrant, such number of Common Shares and
other shares as from time to time shall be issuable upon the exercise of this
Warrant and all other similar Warrants at the time outstanding.
6. Loss, Theft, Destruction, or Mutilation. Upon receipt by the Corporation of
evidence satisfactory to it (in the exercise of its reasonable discretion) of
the ownership of and the loss, theft, destruction, or mutilation of this
Warrant, the Corporation will execute and deliver, in lieu thereof, a new
Warrant of like tenor.
7. Warrantholder Not a Shareholder. The Owner of this Warrant, as such, shall
not be entitled by reason of this Warrant to any rights whatsoever of a
shareholder of the Corporation.
8. Taxes. The Corporation will pay all taxes in respect of the issue
of this Warrant or the Shares issuable upon exercise thereof.
9. Mailing of Notice. All notices and other communications from the Corporation
to the Owner of this Warrant shall be mailed by first class, certified mail,
postage prepaid, to the address furnished to the Corporation in writing by the
Owner of this Warrant.
DATED this .
INTERNATIONAL NURSING SERVICES, INC.
(S E A L)
By: ________________________________________________
President
Attest:
____________________________________
Amendment of Warrant Agreement of Medix Resources, Inc.
Approved by Board of Directors on January 26, 2000
Means of Exercising Warrants. An Warrant (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 Warrant being exercised and
specify the number of shares as to which such Warrant is being exercised,
accompanied by full payment of the purchase price in any of the following ways:
(i) in U.S. dollars in cash or by check, bank draft or money order; (ii) by the
surrender of all or part of an Warrant (including the Warrant being exercised)
with an aggregate net value equal to the aggregate exercise price; (iii) by the
tender to the Company of shares of Common Stock with an aggregate value equal to
the exercise price; or (iv) by a combination of (i), (ii) and (iii) above. The
holder of an Warrant shall not have the rights of a shareholder with respect to
the shares covered by his, her or its Warrant until the date of issuance of a
stock certificate for such shares.
<PAGE>
STOCK OPTION AGREEMENT
This Stock Option Agreement is executed as of ___________, and is
between Medix Resources, Inc., a Colorado corporation (the "Company") and
___________ (the "Optionee").
WHEREAS, Optionee has agreed to enter into the employment of Cymedix
Lynx Corporation, a wholly-owned subsidiary of the Company, and the Company
wishes to provide incentive to the Optionee in such employment by providing
Optionee with a means of benefiting from equity ownership in the Company ; and
NOW, THEREFORE, The Company hereby grants options to Optionee upon the
following terms:
1. Grant of Option. The Optionee is hereby granted, as of the this date
(the "Grant Date"), an option (the "Option") to purchase _________ shares of
Common Stock of the Company (the "Option Shares").
2. Exercise Price. The exercise price pursuant at which the Option shall
be exercised is $____ per share (the "Exercise Price").
3. Term. This Option shall expire on _________, if not exercised in full
and no part of the Option shall be exercised thereafter.
4. Vesting. This Option shall not be immediately exercisable, but shall
vest and become exercisable in increments of 33.33% of the total shares granted
hereunder on each of the first three anniversary dates hereof, so long as the
Optionee has then been continuously employed by the Company or any affiliate
thereof since the date hereof.
5. Termination of Employment. Subject to the terms set forth in any
employment or other binding agreement, in the event an Optionee's Current
Position, as defined below, with the Company shall terminate (i) "for cause," as
defined below, while holding an unexercised portion of the Option, that portion
of the Option which has not already been exercised shall expire coincident with
the termination of the Optionee's Current Position, or (ii) for a reason other
than "for cause," other than by reason of disability or death as discussed
below, the portion of the Option which is exercisable on the date of such
termination shall be exercisable until a date three (3) months after such date
of termination or shall expire coincident with such position with the Company or
a subsidiary or affiliate of the Company as an employee. For purposes hereof,
"for cause" shall mean termination of an Optionee's Current Position because of
a determination by the Company's Board of Directors that such Optionee has
committed (i) misfeasance, waste of corporate assets, gross negligence or
willful continued failure to substantially perform his reasonably assigned
duties or (ii) dishonest or illegal conduct that is demonstrably injurious to
the Company, provided, however, that termination of Optionee's Executive
Employment Agreement for the reasons set forth in Section 12(a)(3) thereof shall
not be termination "for cause" hereunder. Upon the termination of an Optionee's
Current Position with the Company by reason of disability or death, the
exercisable portion of the Option may be exercised within one (1) year after
such termination. Notwithstanding anything in this Section 5 to the contrary,
the Board of Directors of the Company, in its sole discretion, may waive any
restrictions contained in this Section 5, including applicable exercise periods.
6. Exercise of Option. To the extent exercisable, this option may be
exercised in whole or in part and from time to time until fully exercised or
until the option expiration date set forth above. This Option may be exercised
only by the Optionee, his guardian or legal representative during the Optionee's
lifetime and, thereafter, by his heirs or executor. Neither this option nor any
portion thereof or interest therein may be sold, pledged, assigned or
transferred in any manner other than by will or by the laws of descent and
distribution.
Exercise of this option shall not be effective until the Company has
received written notice of exercise, specifying the number of whole Option
Shares to be purchased. Such notice shall be accompanied by full payment of the
aggregate Exercise Price for the number of Option Shares so purchased in cash,
by cashier's check, certified check, bank draft or money order, through the
delivery of shares of Company Common Stock or through the delivery of options
exercisable for shares of Company Common Stock for cancellation, with net fair
market equal to the Exercise Price. Thereafter, a certificate or certificates
representing the Option Shares so purchased shall, within a reasonable time, be
issued in the Optionee's name and delivered to the Optionee, subject to
compliance with applicable securities laws. Upon a partial exercise of this
Option, this Agreement shall be automatically amended to reduce the number of
Option Shares covered by this option by the number of Option Shares so purchased
without the necessity of the execution of a new agreement or a formal written
amendment of this Agreement.
7. Certain Taxes. The Optionee authorizes The Company to withhold, in
accordance with applicable law, from any Option Shares to be issued to an
optionee upon exercise by the Optionee of all or a portion of this Option, a
number of Option Shares based on their fair market value equal to the amount of
any taxes required to be withheld by any federal, state or local law or
regulation as a result of the exercise of this option. In this regard, the
optionee acknowledges and agrees that this withholding is mandatory and the
determination by The Company of the fair market value of any Option Shares on
the date of exercise of this option shall be final and conclusive in all
respects. The Option granted hereunder is not intended to be a qualified option
under the Internal Revenue Code of 1986, as amended.
8. Transfer of Option Shares. The Optionee agrees that the Option
Shares acquired upon exercise of this Option shall be acquired for his own
account for investment purposes only and not with a view to any distribution or
public offering thereof within the meaning of the Securities Act of 1933 (the
"Act") or other applicable securities laws. If the Company so determines, any
stock certificates issued upon exercise of this Option shall bear a legend to
the effect that the Option Shares have been so acquired. The Company shall not
be required to bear any expenses of compliance with the Act, other applicable
securities laws or the rules and regulations of any national securities exchange
or other regulatory authority in connection with the registration, qualification
or transfer, as the case may be, of this Option or any Option Shares acquired
upon the exercise thereof. The Optionee acknowledges that he is aware that his
right to transfer the Option Shares will be restricted in accordance with Rule
144, unless such Option Shares are so registered. The foregoing restrictions on
the transfer of the Option Shares shall not apply if (a) The Company shall have
been furnished with an opinion of counsel satisfactory in form and substance to
the Company to the effect that such transfer will be in compliance with the Act
and other applicable securities laws, or (b) the Option Shares shall have been
duly registered in compliance with the Act and other applicable securities laws.
9. Acceptance of Stock Option Agreement. The Optionee hereby approves and
accepts the terms, conditions, and provisions of this Stock Option Agreement
and agrees to be bound hereby, and further agrees that his executors,
administrators, heirs, successors, and assigns shall be bound hereby and
thereby. Without limitation of the foregoing, the Optionee hereby agrees,
individually and for his executors, administrators, heirs, successors, and
assigns, that all decisions or interpretations of the Company or its duly
authorized representatives with regard to any and all aspects of this Agreement
and the administration thereof shall be binding, conclusive, and final.
10. Address for Notices. The parties hereto designate the respective
addresses set forth below as the addresses for receipt of any notice under this
Stock Option Agreement.
11. Merger, Consolidation or Change of Control. In connection with any
merger, consolidation, change in control or similar reorganization, excluding a
public offering ("Reorganization"), the Company may in its discretion:
a. Negotiate a binding agreement whereby any acquiring or successor
corporation will assume each Option then outstanding or substitute an equivalent
option; or
b. Authorize cash payments to Optionee equal to the difference between the
aggregate Exercise Price of the option then outstanding irrespective of the
Option's current exercisability and the fair market value of the Shares covered
by the Option. Any cash payment which the Company may make shall be made within
sixty (60) days following such authorization and fully discharge any and all
obligations the Company may have in connection with the options. Notwithstanding
the forgoing, the Company shall have no obligation to take any action with
respect to any option in connection with a Reorganization.
12. Adjustments. In the event of a stock dividend, stock split or
other subdivision, consolidation or similar change in the outstanding shares of
Common Stock or capital structure of the Company (collectively, a "Stock
Adjustment"), the following shall occur hereunder: (i) the number of shares of
Common Stock reserved or otherwise available for exercise of the Option, shall
be adjusted proportionately (and automatically reduced by any fraction resulting
from such adjustment) ; and (ii) the Exercise Price per share of outstanding
Options shall be adjusted so that the aggregate Exercise Price payable pursuant
to each outstanding Option after the Stock Adjustment shall equal the aggregate
amount so payable prior to the Stock Adjustment. In the event of any dispute
concerning such adjustment, the decision of The Company shall be conclusive. If
a Stock Adjustment is made, The Company shall notify all Optionees of such
adjustment within thirty (30) days of making such an adjustment, which
notification shall state the adjusted number of shares of Common Stock for which
a particular option is exercisable.
13. Use of Services; Successors. Nothing herein confers any right or
obligation on the Optionee to continue rendering services to the Company or
shall affect in any way the Optionee's right or the right of the Company, as the
case may be, to terminate the Optionee's services at any time.
14. Entire Agreement. This Agreement constitutes the entire understanding
between the Optionee and the Company, and supersedes all other agreements,
whether written or oral, with respect to the acquisition by the Optionee of his
Option and/or Option Shares.
15. Amendment; Governing Law. Any amendment or modification hereto shall be
in writing and executed by both parties hereto. This Agreement shall be
governed, interpreted and construed under Colorado law, excluding however the
rules applicable to conflict of laws.
IN WITNESS WHEREOF,the parties hereto execute this Stock option Agreement
with the intention to be fully bound as of the date first stated above.
MEDIX RESOURCES, INC.
By:__________________________________
Title: President
Address: 7100 E. Belleview Avenue, Ste. 301
Englewood, Colorado 80111
- ------------------------------------
Optionee Name:
Address:
Amendment of Non-Plan Option Agreement of Medix Resources, Inc.
Approved by Board of Directors on January 26, 2000
Means of Exercising Options. 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 price in any of the following ways:
(i) in U.S. dollars in cash or by check, bank draft or money order; (ii) by the
surrender of all or part of an Option (including the Option being exercised)
with an aggregate net value equal to the aggregate exercise price; (iii) by the
tender to the Company of shares of Common Stock with an aggregate value equal to
the exercise price; or (iv) by a combination of (i), (ii) and (iii) above. The
holder of an Option shall not have the rights of a shareholder with respect to
the shares covered by his, her or its Option until the date of issuance of a
stock certificate for such shares.
