As filed with the Securities and Exchange Commission on December 16, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PROXYMED, INC.
(Exact Name of Registrant as Specified in Its Charter)
FLORIDA 65-0202059
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2555 DAVIE ROAD, SUITE 110
FORT LAUDERDALE, FLORIDA 33317
(Address of Principal Executive Offices) (Zip Code)
AMENDED 1993 STOCK OPTION PLAN
1995 STOCK OPTION PLAN
1995 OUTSIDE DIRECTOR STOCK OPTION PLAN
1997 STOCK OPTION PLAN
EMPLOYEE NON-QUALIFIED STOCK OPTION AGREEMENTS
(Full Title of the Plans)
HAROLD S. BLUE
CHAIRMAN OF THE BOARD
PROXYMED, INC.
2555 DAVIE ROAD, SUITE 110
FORT LAUDERDALE, FLORIDA 33317
(Name and Address of Agent For Service)
(954) 473-1001
(Telephone Number, Including Area Code, of Agent For Service)
COPIES OF COMMUNICATIONS TO:
FRANK M. PUTHOFF, ESQ. SPENCER G. FELDMAN, ESQ.
EXECUTIVE VICE PRESIDENT AND GREENBERG TRAURIG
CHIEF LEGAL OFFICER METLIFE BUILDING
PROXYMED, INC. 200 PARK AVENUE, 15TH FLOOR
2555 DAVIE ROAD, SUITE 110 NEW YORK, NEW YORK 10166
FORT LAUDERDALE, FLORIDA 33317 (212) 801-9200
(954) 473-1001
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share, 34,750 shares(2) $10.03(3) $348,585.94 $92.03(2)
underlying certain Plan options
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Common Stock, par value $.001 per share, 374,833 shares(2) $11.694(3) $4,383,297.10 $1,157.19(2)
underlying certain non-Plan options
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Total 409,583 shares -- $4,731,883.04 $1,249.22
====================================================================================================================================
</TABLE>
<PAGE>
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), the number of shares of common stock, par value
$.001 per share (the "Common Stock"), of ProxyMed, Inc. (the "Company")
being registered shall be adjusted to include any additional shares
which may become issuable as a result of stock splits, stock dividends
or similar transactions.
(2) On May 29, 1996, the Company filed a Registration Statement on Form S-8
(Registration No. 333-04717) (the "1996 Form S-8") covering 1,282,500
shares of Common Stock underlying options available under the Company's
1993 Stock Option Plan (the "1993 Plan"), 1995 Stock Option Plan (the
"1995 Plan"), and 1995 Outside Director Stock Option Plan (the "1995
Outside Director Plan"), and non-qualified options granted outside of
the Company's stock option plans. A registration fee of $2,948.28 was
paid in connection with the 1996 Form S-8. On April 17, 1998, the
Company filed a Registration Statement on Form S-8 (Registration No.
333-50391) (the "1998 Form S-8") covering 737,934 shares of Common
Stock underlying options available under the Company's 1997 Stock
Option Plan (the "1997 Plan") and non-qualified options granted outside
of the Company's stock option plans. A registration fee of $2,422.90
was paid in connection with the 1998 Form S-8. The 1996 Form S-8 and
the 1998 Form S-8 are incorporated herein by reference in their
entirety. Pursuant to General Instruction E to Form S-8, this
Registration Statement constitutes: (i) Post-Effective Amendment No. 1
to the 1996 Form S-8 and the 1998 Form S-8 relating to an aggregate of
2,020,434 shares of Common Stock, all of which shares are being carried
forward hereby; and (ii) a new registration statement relating to an
aggregate of 409,583 shares of Common Stock, consisting of (a) 6,000
additional shares of Common Stock underlying options available under
the 1993 Plan, (b) 23,250 additional shares of Common Stock underlying
options available under the 1995 Plan, (c) 3,000 additional shares of
Common Stock underlying options available under the 1995 Outside
Director Plan, (d) 2,500 additional shares of Common Stock underlying
options available under the 1997 Plan, and (e) 374,833 shares of Common
Stock underlying non-qualified stock options granted outside of the
Company's stock option plans to certain prospective employees, all of
which shares of Common Stock are being registered hereby. The $1,246.64
registration fee paid in connection with this Registration Statement
relates to the 409,583 shares of Common Stock being registered hereby.
(3) Computed in accordance with Rules 457(c) and 457(h)(1) under the
Securities Act solely for the purpose of calculating the total
registration fee. With respect to 34,750 shares of Common Stock
underlying options available under the 1993 Plan, the 1995 Plan, the
1995 Outside Director Plan and the 1997 Plan, the registration fee is
based on $10.03 per share, the average of the reported high and low
sales prices (rounded to the nearest cent) of the Common Stock in the
Nasdaq National Market on December 10, 1999. With respect to the
374,833 shares of Common Stock underlying non-qualified stock options
granted outside of the Company's stock option plans, the registration
fee is based on $11.694 per share, the weighted average exercise price
(rounded to the nearest cent) at which the shares will be issued.
<PAGE>
EXPLANATORY NOTE
The documents containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not required to be and are not filed with the Securities and
Exchange Commission (the "Commission") either as part of this registration
statement on Form S-8 (the "Registration Statement"), or as a prospectus or
prospectus supplement pursuant to Rule 424. These documents and the documents
incorporated by reference into this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference into this Registration
Statement the following documents heretofore filed by the Company with the
Commission (File No. 0-22052) pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"):
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998, as amended by the Company's Forms 10-K/A
filed on June 21, 1999 and July 22, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, as amended by the Company's Forms 10-Q/A
filed on June 18, 1999 and July 22, 1999; the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1999; and the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999;
(c) The Company's Current Report on Form 8-K dated December 31,
1998 (relating to the Key Communications merger); and the
Company's Current Report on Form 8-K dated May 19, 1998
(relating the the Integrated Medical Systems acquisition); and
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A declared
effective on August 5, 1993, including any other amendment or
report filed for the purpose of updating such information.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment to this Registration Statement which indicates
that all securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Business Corporation Act empowers a
Florida corporation to indemnify any person who was or is a party to any
proceeding (other than an action by or in the right of such a corporation)
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<PAGE>
by reason of the fact that such person is or was a director, officer, employee,
or agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against liability
incurred in connection with such proceeding, including an appeal thereof, if
such person acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, such person had no reasonable cause to believe
his conduct was unlawful. A Florida corporation may indemnify such person
against expenses including amounts paid in settlement (not exceeding in the
judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion) actually and reasonably incurred by such person in
connection with actions brought by or in the right of the corporation to procure
a judgment in its favor under the same conditions set forth above, if such
person acted in good faith and in a manner such person believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification is permitted in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and to the extent the court in which such action or suit was brought or
other court of competent jurisdiction shall determine upon application that, in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem proper.
To the extent such person has been successful on the merits or
otherwise in defense of any action referred to above, or in defense of any
claim, issue or matter therein, the corporation must indemnify such person
against expenses, including counsel (including those for appeal) fees, actually
and reasonably incurred by such person in connection therewith. The
indemnification and advancement of expenses provided for in, or granted pursuant
to, Section 607.0850 is not exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation of the corporation or any by-law, agreement, vote of shareholders
or disinterested directors, or otherwise. Section 607.0850 also provides that a
corporation may maintain insurance against liabilities for which indemnification
is not expressly provided by the statute.
Article VII of the Company's Restated Articles of Incorporation and
Article VII of the Company's By-Laws provide for indemnification of the
directors, officers, employees and agents of the Company (including advancement
of expenses) to the fullest extent permitted under Florida law. In addition, the
Company has contractually agreed to indemnify its directors and officers to the
fullest extent permitted under Florida law.
The Company's employment agreements with its principal executive
officers limit their personal liability for monetary damages for breach of their
fiduciary duties as officers and directors, except for liability that cannot be
eliminated under the Florida Business Corporation Act.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
as disclosed above, the Company has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See "EXHIBIT INDEX" included in this Registration Statement following
the signature page, which index is incorporated herein by reference thereto.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
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<PAGE>
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
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 and 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 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of the annual report of the
employee benefit plans pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 the City of Fort Lauderdale, State of Florida, on this 14th
day of December 1999.
PROXYMED, INC.
By:/s/HAROLD S. BLUE
----------------------
Harold S. Blue
Chairman of the Board
--------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Harold S. Blue and Bennett Marks, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and any other regulatory authority, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their substitutes, may lawfully
do or cause to be done by virtue hereof.
--------------------
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/HAROLD S. BLUE Chairman of the Board December 14, 1999
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Harold S. Blue (principal executive officer)
/s/JOHN B. OKKERSE, JR., PH.D. Chief Executive Officer December 14, 1999
- ------------------------------
John B. Okkerse, Jr., Ph.D. and Director
/s/BENNETT MARKS Executive Vice President, December 14, 1999
- ----------------
Bennett Marks Chief Financial Officer
and Director (principal financial
and accounting officer)
/s/PETER A.A. SAUNDERS Director December 14, 1999
- ----------------------
Peter A.A. Saunders
/s/KEVIN E. MOLEY Director December 14, 1999
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Kevin E. Moley
/s/BERTRAM J. POLAN Director December 14, 1999
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Bertram J. Polan
/s/EUGENE R. TERRY Director December 14, 1999
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Eugene R. Terry
</TABLE>
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
3.1 Articles of Incorporation of the Company, as amended. (1)
5.1 Opinion of Greenberg Traurig. (*)
10.10 Amended 1993 Stock Option Plan. (2)
10.11 1995 Stock Option Plan. (1)
10.12 1995 Outside Director Stock Option Plan. (1)
10.18 1997 Stock Option Plan. (3)
10.23 Form of Employee Non-Qualified Stock Option Agreement. (*)
23.1 Consent of PricewaterhouseCoopers LLP (ProxyMed). (*)
23.2 Consent of PricewaterhouseCoopers LLP (WPJ). (*)
23.3 Consent of McCauley, Nicolas & Company, LLC (Key). (*)
23.4 Consent of Greenberg Traurig (included in Exhibit 5.1). (*)
25.1 Power of Attorney (included as part of the signature page to
this Registration Statement and incorporated herein by
reference).(*)
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(*) Filed herewith.
(1) Incorporated herein by reference and filed as an exhibit to the Company's
Registration Statement on Form SB-2 (Registration No. 333-2678).
(2) Incorporated herein by reference and filed as an exhibit to the Company's
Proxy Statement on Schedule 14A relating to its 1994 Annual Meeting of
Shareholders (File No. 0-22052).
(3) Incorporated herein by reference and filed as an exhibit to the Company's
Proxy Statement on Schedule 14A relating to its 1997 Annual Meeting of
Shareholders (File No. 0-22052).
II-6
EXHIBIT 5.1
GREENBERG TRAURIG
200 Park Avenue
New York, New York 10166
December 16, 1999
ProxyMed, Inc.
2555 Davie Road, Suite 110
Fort Lauderdale, Florida 33317
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to ProxyMed, Inc., a Florida corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed under the Securities Act of
1933, as amended (the "Securities Act"), for the registration of 409,583 shares
(the "Shares") of the Company's common stock, par value $.001 per share (the
"Common Stock"), consisting of: (a) 6,000 shares of Common Stock underlying
options available under the Company's 1993 Stock Option Plan, (b) 23,250 shares
of Common Stock underlying options available under the Company's 1995 Stock
Option Plan, (c) 3,000 shares of Common Stock underlying options available under
the Company's 1995 Outside Director Stock Option Plan, (d) 2,500 shares of
Common Stock underlying options available under the Company's 1997 Stock Option
Plan, and (e) 374,833 shares of Common Stock underlying non-qualified stock
options granted outside of the Company's stock option plans to certain
prospective employees and consultants (the "Non-Qualified Options"). The 1993
Stock Option Plan, the 1995 Stock Option Plan, the 1995 Outside Director Stock
Option Plan, and the 1997 Stock Option Plan are hereinafter collectively
referred to as the "Plans."
In connection with this opinion, we have examined the Registration
Statement, the Company's Articles of Incorporation, as amended, By-laws, as
amended, and such other documents and records as we have deemed relevant. In our
examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
with the originals of all documents submitted to us as copies. In addition, we
have made such other examinations of law and of fact as we have deemed
appropriate in order to form a basis for the opinion hereinafter expressed.
With respect to the issuance of the Shares by the Company, we have
assumed that the Shares will be issued, and the certificates evidencing the same
will be duly delivered, in accordance with the respective terms of the Plans and
the Non-Qualified Stock Options, and against receipt of the consideration
stipulated therefor, which will not be less than the par value of the Shares.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the foregoing
assumptions, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this opinion and consent, we do not thereby
admit that we are acting within the category of persons whose consent is
required under Section 7 of the Securities Act, or the rules and regulations of
the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Greenberg Traurig
GREENBERG TRAURIG
A Partnership of Limited Liability Entities
EXHIBIT 10.23
STOCK OPTION AGREEMENT
This Agreement is made as of _________, 19__, by and between PROXYMED,
INC. (the "Company") and ______________, who is an employee of the Company (the
"Employee").
WHEREAS, the Company considers it desirable and in its best interests
that the new Employee be given an inducement to acquire a proprietary interest
in the Company, and an added incentive to advance the interests of the Company
by possessing a right (the "Option Right") to purchase shares of the Company's
common stock, $.001 par value (the "Option Stock").
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties as follows:
1. GRANT OF OPTION. The Company hereby grants to the Employee the right,
privilege and option to purchase the number of shares of Option Stock, at the
purchase price as shown on Schedule I attached hereto (the "Option Price"), in
the manner and subject to the conditions hereinafter provided in this Agreement.
The Option Right granted hereunder is a Non-Qualified Option as specified on
Schedule I.
2. TIME OF EXERCISE OF OPTION. The aforesaid Option Right may be exercised
at any time, subject to Sections 3 and 4, below, and from time to time, until
the termination thereof as provided in Sections 7, 8, 9 and 10 below; provided,
however, that the Option Right granted herein may not be exercised after the
termination date as shown on Schedule I, unless provided otherwise by the Board
of Directors or Compensation Committee of the Company.
3. VESTING OF OPTION RIGHT. The Option Right shall vest as provided in the
Schedule I.
4. MANNER OF EXERCISE. An Option that has vested pursuant to the Schedule I
may be exercised in whole or in part, in increments of a minimum of 100 shares,
at any time, or from time to time, during its term. To exercise an Option, the
Employee exercising the Option must deliver to the Company, at its principal
office:
a) a written notice of exercise of the Option, which states the extent
to which the Option is being exercised and which is executed by the
Employee;
b) a check in an amount, or Common Stock with a fair market value,
equal to the Exercise Price of the Option times the number of shares
being exercised, or a combination of the foregoing; and
c) a check equal to any withholding taxes the Company is required to
pay as a result of the exercise of the Option by the Employee. If
permitted by the Board of Directors or the Committee, at the time of
exercise, the Employee may elect, at such time and in such manner as
the Board of Directors or the Committee may prescribe, to satisfy such
withholding obligation by (A) delivering to the Company Common Stock
(which in the case of Common Stock acquired from the Company shall have
been owned by the Employee for at least six months prior to the
delivery date) having a fair market value equal to such withholding
obligation; or (B) requesting that the Company withhold from the shares
of Common Stock to be delivered upon the exercise a number of shares of
Common Stock having a fair market value equal to such withholding
obligation.
<PAGE>
The day on which the Company receives all of the items specified in this
subsection shall be the date on which the Option is exercised to the extent
described in the notice of exercise.
5. DELIVERY OF STOCK CERTIFICATES. As promptly as practicable after an
Option is exercised, the Company shall cause the transfer agent to deliver to
the Employee who exercises the Option certificates, registered in that person's
name, representing the number of shares of Common Stock that were purchased by
the exercise of the Option. Unless the Common Stock was issued in a transaction
that was registered pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), each certificate may bear a legend to indicate that if the
Common Stock represented by the certificate was issued in a transaction that was
not registered pursuant to the Securities Act, and may only be sold or
transferred in a transaction that is registered pursuant to the Securities Act
or is exempt from the registration requirements of the Securities Act.
6. NON-TRANSFERABILITY OF OPTIONS. During the lifetime of a person to whom
an Option is granted, the Option may be exercised only by that person or by his
or her guardian or legal representative., except to the extent the Board of
Directors or the Committee shall otherwise determine, whether at the time the
Option is granted or thereafter. An Option may not be assigned, transferred,
sold, pledged or hypothecated in any way; shall not be subject to levy or
execution or disposition under the Bankruptcy Code of 1978, as amended, or any
other state or federal law granting relief to creditors, whether now or
hereafter in effect; and shall not be transferable otherwise than by will or the
laws of descent and distribution. The Company will not recognize any attempt to
assign, transfer, sell, pledge, hypothecate or otherwise dispose of an Option
contrary to the provisions of this Plan, or to levy any attachment, execution or
similar process upon any Option and, except as expressly stated herein, the
Company shall not be required to, and shall not, issue Common Stock on the
exercise of an Option to anyone who claims to have acquired that Option from the
person to whom it was granted in violation of this subsection.
7. RETIREMENT OF HOLDER OF OPTION. If there is a Termination of Employment
of an Employee to whom an Option has been granted due to Retirement, each
Non-Qualified Option held by the retired Employee, whether or not then vested,
may be exercised until the earlier of: (x) the end of the twelve (12) month
period immediately following the date of such Termination of Employment; or (y)
the expiration of the term specified in the Option.
8. TOTAL DISABILITY OF HOLDER OF OPTION. If there is a Termination of
Employment of an Employee to whom an Option has been granted by reason of his or
her Total Disability, each Option held by the Employee, whether or not then
vested, may be exercised until the earlier of: (x) the end of the twelve (12)
month period immediately following the date of such Termination of Employment;
or (y) the expiration of the term specified in the Option.
9. DEATH OF HOLDER OF OPTION. If there is a Termination of Employment of an
Employee to whom an Option has been granted by reason of (i) his or her death;
or (ii) the death of the former Employee within twelve (12) months following the
date of his or her Retirement; or (iii) the death of the former Employee within
twelve (12) months following the date of his or her Termination of Employment by
reason of Total Disability, then each Option held by the person at the time of
his or her death, whether or not then vested, may be exercised by the person or
persons to whom the Option shall pass by will or by the laws of descent and
distribution (but by no other persons) until the earlier of: (x) the end of the
twelve (12) month period immediately following the date of death (or such longer
period as is permitted by the Committee); and (y) the expiration of the term
specified in the Option, provided,
<PAGE>
however, that in no event is the term of the Option to be deemed to expire prior
to the end of three (3) months from the date of death of the Employee.
10. TERMINATION OF EMPLOYMENT OTHER THAN FOR RETIREMENT, DEATH OR
DISABILITY. Unless the Committee or the Board of Directors agrees or has agreed
otherwise with respect to a specific Option, if there is a Termination of
Employment of an Employee to whom an Option has been granted hereunder for any
reason other than the Retirement, death or Total Disability of the Employee,
then all Options held by such Employee which are then vested may be exercised
until the earlier of: (x) the three (3) month period immediately following the
date of such Termination of Employment; or (y) the expiration of the term
specified in the Option.
11. RESTRICTIONS ON RESALES. The shares issuable upon exercise of this
Option have not been registered under the Securities Act of 1933, as amended
(the "Securities Act") or under any state securities laws, and are being offered
and sold in reliance upon federal and state exemptions for transactions not
involving any public offering. The holder may not resell the shares purchased
hereunder except pursuant to registration under the Securities Act or an
exemption therefrom.
Resales of shares issuable hereunder may be subject to other state and
federal securities laws. The Employee is advised to consult with legal counsel
as to compliance with the Securities Act, the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and such other laws prior to resale of such
shares.
The Company, as a condition to the exercise of an Option to acquire shares
not registered under the Securities Act, may require the Employee to represent
and warrant at the time of any exercise that the shares are being purchased only
for investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a representation is
required by the Securities Act.
12. REGISTRATION. Upon a Change of Control (defined below), the Company
agrees to use its best efforts to cause the Common Stock underlying the Options
to be registered under the Securities Act at the earliest possible time. The
Company shall have no other obligation to register said Common Stock unless
directed to do so by the Board of the Company based on the Company's best
interests.
13. RECAPITALIZATION.
a) IN GENERAL. If the Company increases the number of outstanding shares of
Common Stock through a stock dividend or a stock split, or reduces the number of
outstanding shares of Common Stock through a combination of shares or similar
recapitalization then, immediately after the record date for the change: (i) the
number of shares of Common Stock issuable on the exercise of each outstanding
Option granted hereunder (whether or not then vested) shall be increased in the
case of a stock dividend or a stock split, or decreased in the case of a
combination or similar recapitalization that reduces the number of outstanding
shares, by a percentage equal to the percentage change in the number of
outstanding shares of Common Stock as a result of the stock dividend, stock
split, combination or similar recapitalization; (ii) the Exercise Price of each
outstanding Option granted hereunder (whether or not then vested) shall be
adjusted so that the total amount to be paid upon exercise of the Option in full
will not change; and (iii) the number of shares of Common Stock that may be
issued on exercise of Options granted hereunder (whether or not then vested) and
that are outstanding or remain available for grant shall be increased or
decreased by a percentage equal to the
<PAGE>
percentage change in the number of outstanding shares of Common Stock. Any
fractional shares will be rounded up to whole shares.
b) CORPORATE TRANSACTIONS. "Corporate Transactions" means any (i)
reorganization or liquidation of the Company; (ii) reclassification of the
Company's capital stock; (iii) merger of the Company with or into another
corporation; or (iv) the sale of all or substantially all the assets of the
Company, which results in a significant number of employees being transferred to
a new employer or discharged or in the creation or severance of a
parent-subsidiary relationship. If, as a result of a Corporate Transaction while
an Option granted hereunder is outstanding (whether or not then vested), and the
holders of the Common Stock become entitled to receive, with respect to their
Common Stock, securities or assets other than, or in addition to, their Common
Stock, then upon exercise of that Option the holder shall receive what the
holder would have received if the holder had exercised the Option immediately
before the first Corporate Transaction that occurred while the Option was
outstanding and as if the Company had not disposed of anything the holder would
have received as a result of that and all subsequent Corporate Transactions. The
Company shall not agree to any Corporate Transaction unless the other party to
the Corporate Transaction agrees to make available on exercise of the Options
granted hereunder that are outstanding at the time of the Corporate Transaction,
the securities or other assets the holders of those Options are entitled
pursuant to this subsection to receive.
14. CHANGE OF CONTROL. Upon a change of control, as defined herein, any
unvested Options shall immediately vest.
a) "Change of Control" means any of the following events:
i) an acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any
Person (as defined in the Exchange Act of 1934, as amended (the "1934
Act")) immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the 1934 Act) of
twenty percent (20%) or more of the combined voting power of the
Company's then outstanding Voting Securities; provided, however, that
in determining whether a Change in Control has occurred, Voting
Securities which are acquired in a Non-Control Acquisition (as
hereinafter defined) shall not constitute an acquisition which would
cause a Change in Control. A "Non-Control Acquisition" shall mean an
acquisition by (x) an employee benefit plan (or a trust forming a part
thereof) maintained by (A) the Company; or (B) any corporation or other
Person of which a majority of its voting power or its equity securities
or equity interest is owned directly or indirectly by the Company (a
"Subsidiary"); (y) the Company or any Subsidiary; or (z) any Person in
connection with a Non-Control Transaction (as hereinafter defined).
ii) the individuals who, as of the date this Plan is approved by
the Company's Board of Directors (the "Board"), are members of the
Board (the "Incumbent Board") cease for any reason to constitute at
least two-thirds (2/3) of the Board; provided, however, that the
voluntary resignation of a member of the Incumbent Board unrelated to a
Change of Control shall not affect such calculation; provided, further,
however, that if the election or nomination for election by the
Company's stockholders or Board of any new director was approved by a
vote of at least two-thirds (2/3) of the
<PAGE>
Incumbent Board, such new director shall, for purposes of this
Agreement, be considered a member of the Incumbent Board; provided
further, however, that no individual shall be considered a member of
the Incumbent Board if such individual initially assumed office as a
result of either an actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Board (a "proxy
contest"), including by reason of any agreement intended to avoid or
settle any election contest or proxy contest; or
iii) approval by stockholders of the Company of:
a) a merger, consolidation or reorganization involving the
Company, unless
(1) the stockholders of the Company, immediately
before such merger, consolidation or reorganization, own,
directly or indirectly immediately following such merger,
consolidation or reorganization, at least seventy-five percent
(75%) of the combined voting power of the outstanding Voting
Securities of the corporation resulting from such merger or
consolidation or reorganization or the ultimate entity
controlling such corporation (the "Surviving Corporation") in
substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization;
(2) the individuals who are members of the Incumbent
Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization
constitute at least two-thirds (2/3) of the members of the
board of directors of the Surviving Corporation and no
agreement, plan or arrangement is in place to change the
composition of the board following the merger, consolidation
or reorganization such that the Incumbent Board would
constitute less than two-thirds (2/3) of the reconstituted
board;
(3) no person (other than the Company, any
Subsidiary, or any employee benefit plan (or any trust forming
a part thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary, or any Person who immediately
prior to such merger, consolidation or reorganization had
Beneficial Ownership of twenty percent (20%) or more of the
then-outstanding Voting Securities) has Beneficial Ownership
of twenty percent (20%) or more of the combined voting power
of the Surviving Corporation's then-outstanding Voting
Securities; and
(4) a transaction described in clauses (1) through
(3) shall herein be referred to as a "Non-Control
Transaction."
b) a complete liquidation or dissolution of the Company; or
c) an agreement for the sale or other disposition of all of
the operating assets of the Company to any Person (other than
a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the outstanding Voting Securities
as a result of the acquisition of Voting Securities by the Company which, by
reducing the number of Voting Securities outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Person, provided
<PAGE>
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Voting Securities by the Company, and after
such share acquisition by the Company the Subject Person becomes the Beneficial
Owner of any additional Voting Securities which increases the percentage of the
then-outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
16. RIGHTS OF OPTION HOLDER.
a) STOCKHOLDER. The holder of an Option (whether or not then vested) shall
not have any rights as a stockholder by reason of holding that Option. Upon
exercise of an Option granted hereunder, the holder shall be deemed to acquire
the rights of a stockholder when, but not before, the issuance of Common Stock
as a result of the exercise is recorded in the stock transfer records of the
Company.
b) EMPLOYMENT. Nothing in the grant of an Option shall confer upon any
Employee the right to continue in the employ of the Company or shall interfere
with or restrict in any way the rights of the Company to discharge any Employee
at any time for any reason whatsoever, with or without cause.
17. LAWS AND REGULATIONS. The obligation of the Company to sell and deliver
shares of Common Stock on vesting and exercise of Options granted hereunder
shall be subject to the condition that counsel for the Company be satisfied that
the sale and delivery thereof will not violate the Securities Act or any other
applicable laws, rules or regulations. In addition, the Company may, as a
condition to such sale and delivery, require the Employee to represent and
warrant at the time of any such exercise that the shares are being purchased
only for investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a representation is
required pursuant to such securities laws.
18. TAXES; WITHHOLDING OF TAXES. Employee is obligated to determine what,
if any, tax effect the grant or exercise of these options has or may have on
Employee. The Company is not liable for any taxes which Employee may be
obligated to pay as a result of these options nor shall the Company be liable
for any taxes. If, whether because of a disposition of Common Stock acquired on
exercise of a Non-Qualified Option or otherwise, the Company becomes required to
pay withholding taxes to any federal, state or other taxing authority and the
Employee fails to provide the Company with the funds with which to pay that
withholding tax, then the Company may withhold, subject to applicable state law,
up to 50% of each payment of salary or bonus to the Employee (which will be in
addition to any other required or permitted withholding), until the Company has
been reimbursed for the entire withholding tax it was required to pay, or to
otherwise make full reimbursement from Employee.
19. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns; it may be amended only in writing and
executed by the parties and as authorized by the Board of Directors or
Compensation Committee of the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
PROXYMED, INC.
<PAGE>
By:__________________________________ By:__________________________________
Frank M. Puthoff, Secretary Harold S. Blue, Chairman
I hereby accept the stock option right offered to me by the Company as
set forth in this Stock Option Agreement dated as of ______, 19__, and Schedule
I which is attached thereto.
Accepted by:
-------------------------------------
Employee
Date:________________________________
<PAGE>
SCHEDULE I
The information set forth in this Schedule I is subject to all of the
terms of the PROXYMED, INC. STOCK OPTION AGREEMENT to which this Schedule is
attached.
1. Name of Employee:
2. Address:
3. Social Security Number:
4. Number of Shares:
5. Exercise Price: $_____ per share (closing price at close of
business on ________)
6. Type of Option: Non-Qualified Stock Option
7. NUMBER OF SHARES DATE VESTED EXPIRATION DATE
---------------- ----------- ---------------
<PAGE>
SCHEDULE II
NOTICE OF EXERCISE
I, the undersigned Employee, hereby give notice of the exercise of the
Option described below, to the extent and in the manner specified herein,
subject to the all of the terms and conditions of the PROXYMED, INC. STOCK
OPTION AGREEMENT granting this Option and the PROXYMED, INC. If the shares to be
acquired pursuant to this exercise of the Option are not registered under the
Securities Act of 1933, as amended, the undersigned represents and warrants that
the shares are being purchased only for investment and without any present
intention to sell or distribute such shares.
1. Name of Employee:
2. Address:
3. Social Security Number: _________________________
4. Number of Shares Being Exercised on This Date: ______________
5. Exercise Price: $_____ per share
6. Manner of Payment:
______ Check (amount enclosed: $ )
---------------------
______ Stock Certificates (subject to receipt of opinion
of counsel, as specified in Section 5 of the Stock
Option Agreement)
---------------------------------
Employee
Date:
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated February 19, 1999, on our audits of the
consolidated financial statements and financial statement schedules of ProxyMed,
Inc. and subsidiaries as of December 31, 1998 and 1997, and for each of the
three years ended December 31, 1998, which report appears in the annual report
on Form 10-K/A #2 for the fiscal year ended 1998 of ProxyMed, Inc. and
subsidiaries filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.
PricewaterhouseCoopers LLP
Miami, Florida
December 13, 1999
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated April 17, 1998, on our audits of the financial
statements of WPJ, Inc., d/b/a Integrated Medical Systems, as of December 31,
1996 and 1997, and for the years ended December 31, 1995, 1996 and 1997, which
appears in the Current Report on Form 8-K dated May 19, 1998.
PricewaterhouseCoopers LLP
Miami, Florida
December 13, 1999
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated July 28, 1998, on our audit of the balance sheet of
Key Communications Service, Inc. as of April 30, 1998, and our report dated July
31, 1997, on our audit of the balance sheet of Key Communications Service, Inc.
as of April 30, 1997, and the related statements of income, stockholders' equity
and cash flows for each of the years then ended.
McCauley, Nicolas & Company, LLC
New Albany, Indiana
December 14, 1999
