As filed with the Securities and Exchange Commission on February 6, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
US DIAGNOSTIC INC.
(Exact name of registrant as specified in its charter)
Delaware 11-3146389
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
777 South Flagler Drive, Suite 1201-East
West Palm Beach, Florida 33401
(Address of Principal Executive Offices) (Zip Code)
US Diagnostic Inc.
1995 Long-Term Incentive Plan, as amended
(Full title of the Plan)
Joseph A. Paul
US DIAGNOSTIC INC.
777 South Flagler Drive
Suite 1201-East
West Palm Beach, Florida 33401
(Name and address of agent for service)
Telephone Number (561) 832-0006
(Telephone number, including area code, of agent for service)
Copy to:
Bruce P. Johnson, Esq.
PEZZOLA & REINKE
1999 Harrison Street, Suite 1300
Oakland, California 94612
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
NUMBER OF MAXIMUM MAXIMUM AMOUNT
TITLE OF SHARES OFFERING AGGREGATE OF
SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,700,000 $3.875 $6,587,500 $1,996
$0.01 par
value per share
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457(h) under the Securities Act
of 1933, as amended, solely for the purposes of calculating the
registration fee. Computation based upon the average of the high and
low prices of the registrant's Common Stock as reported on the Nasdaq
National Market on January 30, 1998, which average was $3.875.
2
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EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to the registration of
1,700,000 shares of Common Stock, $0.01 par value ("Common Stock"), of US
Diagnostic Inc. Such shares are additional securities of the same class as other
securities for which a previously filed Registration Statement on Form S-8,
relating to the US Diagnostic Inc. 1995 Long-Term Incentive Plan (the "Plan"),
is effective. Pursuant to the provisions of Paragraph E of the General
Instructions to Form S-8, the contents of the Company's Registration Statement
on Form S-8 (Registration No. 333-13035) filed with the Commission on September
30, 1996 and relating to 3,000,000 shares of Common Stock under the Plan, are
hereby incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 8. EXHIBITS.
EXHIBIT NUMBER EXHIBIT DESCRIPTION
- -------------- -------------------
5 Opinion of Pezzola & Reinke as to the legality of the
securities being registered.
10.60 1995 Long-Term Incentive Plan, as amended.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Moore Stephens, P.C.
23.3 Consent of Pezzola & Reinke (contained in
the opinion of counsel filed as Exhibit 5 to
this Registration Statement).
24 Power of Attorney (set forth on the signature page of this
Registration Statement).
3
<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 the City of West Palm Beach, State of Florida, on February 5,
1998.
US DIAGNOSTIC INC.,
a Delaware corporation
By: /S/ JOSEPH A. PAUL
-------------------------------
Joseph A. Paul
President and Chief Executive Officer
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<PAGE>
POWER OF ATTORNEY AND ADDITIONAL SIGNATURES
Each person whose signature appears below constitutes and appoints
Joseph A. Paul and J. Wayne Moor, 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 or all amendments to this Registration Statement,
including post-effective amendments, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents 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 their substitutes, may lawfully do or
cause to be done by virtue thereof.
Further, pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/S/ JOSEPH A. PAUL President, Chief Executive Officer and February 5, 1998
- ------------------------------ Director (Principal Executive Officer)
Joseph A. Paul
/S/ WAYNE MOOR Executive Vice President and Chief February 5, 1998
- ------------------------------ Financial Officer (Principal Financial
J. Wayne Moor & Accounting Officer)
/S/ C. KEITH HARTLEY Co-Chairman of the Board February 5, 1998
- ------------------------------
C. Keith Hartley
/S/ L. E. RICHEY Co-Chairman of the Board February 5, 1998
- ------------------------------
L. E. Richey
/S/ GORDON C. RAUSSER Director February 5, 1998
- ------------------------------
Gordon C. Rausser
</TABLE>
5
<PAGE>
EXHIBIT LIST
EXHIBIT NUMBER EXHIBIT DESCRIPTION
- -------------- -------------------
5 Opinion of Pezzola & Reinke as to the legality of the
securities being registered.
10.60 1995 Long-Term Incentive Plan, as amended.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Moore Stephens, P.C.
23.3 Consent of Pezzola & Reinke (contained in the opinion of
counsel filed as Exhibit 5 to this Registration Statement).
24 Power of Attorney (set forth on the signature page of this
Registration Statement).
6
EXHIBIT 5
PEZZOLA & REINKE
A Professional Corporation
Counselors at Law
Lake Merritt Plaza Building
1999 Harrison Street, Suite 1300
Oakland, California 94612
Telephone (510) 273-8750
Facsimile (510) 834-7440
February 5, 1998
US Diagnostic Inc.
777 South Flagler Drive
Suite 1201-East
West Palm Beach, FL 33401
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
As outside counsel to US Diagnostic Inc., a Delaware corporation (the
"Company"), we have been asked by the Company to review the Registration
Statement on Form S-8 to be filed by the Company with the Securities and
Exchange Commission on, or about, February 6, 1998 (the "Registration
Statement"). This is in connection with the registration under the Securities
Act of 1933, as amended, of one million seven hundred thousand (1,700,000)
shares of the Company's Common Stock, $0.01 par value per share (the "Plan
Shares"), none of which are presently issued and outstanding.
As your general counsel, we have examined the proceedings and such
other documents as we have deemed necessary relating to the issuance of one
million seven hundred thousand (1,700,000) Plan Shares to be issued under the
Company's 1995 Long-Term Incentive Plan.
In rendering this opinion, we have assumed, without investigation, the
genuineness of all signatures; the correctness of all certificates; the
authenticity of all documents submitted to us as originals; the conformity to
original documents of all documents submitted to us as certified, photostatic or
facsimile copies and the authenticity of the originals of such copies; and the
accuracy and completeness of all records made available to us by, or on behalf
of, the Company. In addition, we have assumed, without investigation, the
accuracy of the representations and
<PAGE>
US Diagnostic, Inc.
February 5, 1998
Page 2
RE: REGISTRATION STATEMENT ON FORM S-8
statements as to factual matters made by the Company, its officers and
employees, and public officials. Nothing has come to our attention, however,
which would lead us to question the accuracy or completeness of such
representations, warranties or statements.
In rendering the opinion hereinafter expressed, we have examined and
relied upon such documents and instruments as we have deemed necessary and
appropriate. It is our opinion that the Plan Shares, when subsequently issued
upon payment therefor in accordance with the terms of the 1995 Long-Term
Incentive Plan, will be validly issued, fully paid and nonassessable.
We are admitted to practice law only in the State of California, and we
express no opinion concerning any law other than the law of the State of
California. This opinion is intended solely for your benefit and is not to be
relied upon by any other person, firm, or entity without our prior written
consent.
We consent to the use of this opinion as an Exhibit to the Registration
Statement, and further consent to all references to this Firm in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ Pezzola & Reinke, APC
---------------------------
PEZZOLA & REINKE
A Professional Corporation
EXHIBIT 10.60
U.S. DIAGNOSTIC INC.
1995 LONG-TERM INCENTIVE PLAN
(AS AMENDED AND RESTATED EFFECTIVE AS OF NOVEMBER 5, 1997)
1. PURPOSE.
The purpose of this plan (the "Plan") is to secure for U.S. DIAGNOSTIC
INC. (the "Company") and its shareholders the benefits arising from capital
stock ownership by employees, officers and directors of, and consultants or
advisors to, the Company and its subsidiary corporations who are expected to
contribute to the Company's future growth and success. Those provisions of the
Plan that make express reference to Section 422 shall apply only to Incentive
Stock Options (as that term is defined in the Plan).
2. TYPE OF OPTIONS AND ADMINISTRATION.
(a) TYPES OF OPTIONS. Options granted pursuant to the Plan shall be
authorized by action of the Board of Directors of the Company (or a committee
designated by the Board of Directors) and may be either incentive stock options
("Incentive Stock Options") meeting the requirements of Section 422 of the
Internal Revenue Code of 1986, as amended or replaced from time to time (the
"Code"), or non-statutory options that are not intended to meet the requirements
of Section 422 of the Code.
(b) ADMINISTRATION. The Plan will be administered by the Board of
Directors of the Company or by a committee appointed by the Board of Directors
of the Company (the "Administrator"), which Administrator shall be constituted
with respect to any grant of options or shares of restricted stock in such a
manner that the administration of the Plan by such Administrator shall satisfy
all applicable laws relating to the administration of stock option plans,
including federal securities laws, state corporate and securities laws, the
Code, and the rules of any applicable stock exchange or national market system
(collectively "Applicable Laws"). The Administrator's construction and
interpretation of the terms and provisions of the Plan shall be final and
conclusive. The delegation of powers to the Administrator shall be consistent
with Applicable Laws. The Administrator may in its sole discretion grant options
to purchase, or Restricted Stock Awards (as defined in Section 10 below) of
shares of the Company's Common Stock, $.01 par value per share ("Common Stock")
and issue shares upon exercise of such options as provided in the Plan. The
Administrator shall have authority, subject to the express provisions of the
Plan, to construe the respective option agreements and the Plan, to prescribe,
amend and rescind rules and regulations relating to the Plan, to determine the
terms and provisions of the respective option agreements, which need not be
identical, and to make all other determinations in the judgment of the
Administrator necessary or desirable for the administration of the Plan. The
Administrator may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any option agreement in the manner and to the
extent it shall deem expedient
<PAGE>
to carry the Plan into effect and it shall be the sole and final judge of such
expediency. No director or person acting pursuant to authority delegated by the
Board of Directors shall be liable for any action or determination under the
Plan made in good faith. Subject to adjustment as provided in Section 15 below,
the aggregate number of shares of Common Stock that may be subject to Options or
Restricted Stock Awards granted to any person in a calendar year shall not
exceed 25% of the maximum number of shares that may be issued and sold under the
Plan, as set forth in Section 4 hereof, as such section may be amended from time
to time.
(c) APPLICABILITY OF RULE 16B-3. Those provisions of the Plan that make
express reference to Rule 16b-3 shall apply to the Company only at such time as
the Company's Common Stock is registered under the Exchange Act, subject to the
last sentence of Section 3(b), and then only to such persons as are required to
file reports under Section 16(a) of the Exchange Act (a "Reporting Person").
3. ELIGIBILITY.
(a) GENERAL. Options or Restricted Stock Awards may be granted to
persons who are, at the time of grant, employees, officers or directors of, or
consultants or advisors to, the Company or any subsidiaries of the Company as
defined in Sections 424(e) and 424(f) of the Code ("Participants"); PROVIDED,
that Incentive Stock Options may only be granted to individuals who are
employees of the Company (within the meaning of Section 3401(c) of the Code). A
person who has been granted an option may, if he or she is otherwise eligible,
be granted additional options if the Administrator shall so determine.
(b) GRANT OF OPTIONS TO REPORTING PERSONS. The selection of a director
or an officer who is a Reporting Person (as the terms "director" and "officer"
are defined for purposes of Rule 16b-3) as a recipient of an option, the timing
of the option grant, the exercise price of the option and the number of shares
subject to the option shall be determined either (i) by the Board of Directors,
or (ii) by a committee consisting of two or more directors having full authority
to act in the matter, each of whom shall be a "Non-Employee Director," as
defined in Rule 16b-3.
4. STOCK SUBJECT TO PLAN.
The stock subject to options or Restricted Stock Awards granted under
the Plan shall be shares of authorized but unissued or reacquired Common Stock.
Subject to adjustment as provided in Section 15 below, the maximum number of
shares of Common Stock of the Company that may be issued and sold under the Plan
is 4,700,000 shares, of which 4,000,000 shares shall be available for grants of
Options and 700,000 shall be available for Restricted Stock Awards. If an option
granted under the Plan shall expire, terminate, or is cancelled for any reason
without having been exercised in full, the unpurchased shares subject to such
option shall again be available for subsequent option grants under the Plan.
2
<PAGE>
5. FORMS OF OPTION AGREEMENTS.
As a condition to the grant of an option under the Plan, each recipient
of an option shall execute an option agreement in such form not inconsistent
with the Plan as may be approved by the Administrator. Such option agreements
may differ among recipients.
6. PURCHASE PRICE.
(a) GENERAL. The purchase price per share of stock deliverable upon the
exercise of an option shall be determined by the Administrator at the time of
grant of such option; PROVIDED, HOWEVER, that in the case of an Incentive Stock
Option, the exercise price shall not be less than 100% of the Fair Market Value
(as hereinafter defined) of such stock, at the time of grant of such option, or
less than 110% of such Fair Market Value in the case of options described in
Section 11(b). "Fair Market Value" of a share of Common Stock of the Company as
of a specified date for the purposes of the Plan shall mean the closing price of
a share of the Common Stock on the principal securities exchange (including the
Nasdaq National Market) on which such shares are traded on the day immediately
preceding the date as of which Fair Market Value is being determined, or on the
next preceding date on which such shares are traded if no shares were traded on
such immediately preceding day, or if the shares are not traded on a securities
exchange, Fair Market Value shall be deemed to be the average of the high bid
and low asked prices of the shares in the over-the-counter market on the day
immediately preceding the date as of which Fair Market Value is being determined
or on the next preceding date on which such high bid and low asked prices were
recorded. If the shares are not publicly traded, Fair Market Value of a share of
Common Stock (including, in the case of any repurchase shares, any distributions
with respect thereto that would be repurchased with the shares) shall be
determined in good faith by the Administrator. In no case shall Fair Market
Value be determined with regard to restrictions other than restrictions that, by
their terms, will never lapse.
(b) PAYMENT OF PURCHASE PRICE. Options granted under the Plan may
provide for the payment of the exercise price by delivery of cash or a check to
the order of the Company in an amount equal to the exercise price of such
options, or by any other means that the Administrator determines are consistent
with the purpose of the Plan and with Applicable Laws and regulations
(including, without limitation, the provisions of Rule 16b-3 and Regulation T
promulgated by the Federal Reserve Board).
7. OPTION PERIOD.
Subject to earlier termination as provided in the Plan, each option and
all rights thereunder shall expire on such date as determined by the
Administrator and set forth in the applicable option agreement, PROVIDED, that
such date shall not be later than ten (10) years after the date on which the
option is granted.
8. EXERCISE OF OPTIONS.
Each option granted under the Plan shall be exercisable either in full
or in installments at such time or times and during such period as shall be set
forth in the option agreement evidencing such option, subject to the provisions
of the Plan. No option granted to a Reporting
3
<PAGE>
Person for purposes of the Exchange Act, however, shall be exercisable during
the first six (6) months after the date of grant. Subject to the requirements in
the immediately preceding sentence, if an option is not at the time of grant
immediately exercisable, the Administrator may (i) in the agreement evidencing
such option, provide for the acceleration of the exercise date or dates of the
subject option upon the occurrence of specified events, and/or (ii) at any time
prior to the complete termination of an option, accelerate the exercise date or
dates of such option.
9. NONTRANSFERABILITY OF OPTIONS.
No option granted under this Plan shall be assignable or otherwise
transferable by the optionee except (a) by will, (b) by the laws of descent and
distribution, (c) or pursuant to a qualified domestic relations order as defined
in the Code or Title I of the Employee Retirement Income Security Act, or the
rules thereunder, (d) to an immediate family member or (e) to a trust, the
beneficiary of which is the optionee or their immediate family members. An
option may be exercised during the lifetime of the optionee only by the
optionee. In the event an optionee dies during his employment by the Company or
any of its subsidiaries, or during the three-month period following the date of
termination of such employment, his option shall thereafter be exercisable,
during the period specified in the option agreement, by his executors or
administrators to the full extent to which such option was exercisable by the
optionee at the time of his death during the periods set forth in Section 10 or
11(d).
10. EFFECT OF TERMINATION OF EMPLOYMENT OR OTHER RELATIONSHIP.
Except as provided in Section 11(d) with respect to Incentive Stock
Options and except as otherwise determined by the Administrator at the date of
grant of an Option, and subject to the provisions of the Plan, an optionee may
exercise an option at any time within six (6) months following the termination
of the optionee's employment or other relationship with the Company or within
one (1) year if such termination was due to the death or disability of the
optionee but, except in the case of the optionee's death, in no event later than
the expiration date of the Option. If the termination of the optionee's
employment is for cause or is otherwise attributable to a breach by the optionee
of an employment or confidentiality or non-disclosure agreement, the option
shall expire immediately upon such termination. The Board of Directors shall
have the power to determine what constitutes a termination for cause or a breach
of an employment or confidentiality or non-disclosure agreement, whether an
optionee has been terminated for cause or has breached such an agreement, and
the date upon which such termination for cause or breach occurs. Any such
determinations shall be final and conclusive and binding upon the optionee.
11. INCENTIVE STOCK OPTIONS.
Options granted under the Plan that are intended to be Incentive Stock
Options shall be subject to the following additional terms and conditions:
(a) EXPRESS DESIGNATION. All incentive Stock Options granted under the
Plan shall, at the time of grant, be specifically designated as such in the
option agreement covering such Incentive Stock Options.
4
<PAGE>
(b) 10% SHAREHOLDER. If any employee to whom an Incentive Stock Option
is to be granted under the Plan is, at the time of the grant of such option, the
owner of stock possessing more than 10% of the total combined voting power of
all classes of stock of the Company (after taking into account the attribution
of stock ownership rules of Section 424(d) of the Code), then the following
special provisions shall be applicable to the Incentive Stock Option granted to
such individual:
(i) The purchase price per share of the Common Stock subject
to such Incentive Stock Option shall not be less than 110% of the Fair Market
Value of one share of Common Stock at the time of grant; and
(ii) the option exercise period shall not exceed five years
from the date of the grant.
(c) DOLLAR LIMITATION. For so long as the Code shall so provide,
options granted to any employee under the Plan (and any other incentive stock
option plans of the Company) that are intended to constitute Incentive Stock
Options shall not constitute Incentive Stock Options to the extent that such
options, in the aggregate, become exercisable for the first time in any one
calendar year for shares of Common Stock with an aggregate Fair Market Value, as
of the respective date or dates of grant, of more than $100,000.
(d) TERMINATION OF EMPLOYMENT, DEATH OR DISABILITY. No Incentive Stock
Option may be exercised unless, at the time of such exercise, the optionee is,
and has been continuously since the date of grant of his or her option, employed
by the Company, except that:
(i) an Incentive Stock Option may be exercised within the
period of three (3) months after the date the optionee ceases to be an employee
of the Company (or within such lesser period as may be specified in the
applicable option agreement); PROVIDED, that the agreement with respect to such
option may designate a longer exercise period and that the exercise after such
three-month period shall be treated as the exercise of a non-statutory option
under the Plan;
(ii) if the optionee dies while in the employ of the Company,
or within three months after the optionee ceases to be such an employee, the
Incentive Stock Option may be exercised by the person to whom it is transferred
by will or the laws of descent and distribution within the period of one (1)
year after the date of death (or within such lesser period as may be specified
in the applicable option agreement); and
(iii) if the optionee becomes disabled (within the meaning of
Section 22(e)(3) of the Code or any successor provisions thereto) while in the
employ of the Company, the Incentive Stock Option may be exercised within the
period of one (1) year after the date the optionee ceases to be such an employee
because of such disability (or within such lesser period as may be specified in
the applicable option agreement).
5
<PAGE>
For all purposes of the Plan and any option granted hereunder, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of the
Income Tax Regulations (or any successor regulations). Notwithstanding the
foregoing provisions, no Incentive Stock Option may be exercised after its
expiration date.
12. ADDITIONAL PROVISIONS.
(a) ADDITIONAL OPTION PROVISIONS. The Board of Directors may, in its
sole discretion, include additional provisions in option agreements covering
options granted under the Plan, including without limitation restrictions on
transfer, repurchase rights, rights of first refusal, commitments to pay cash
bonuses, to make, arrange for, or guarantee loans or to transfer other property
to optionees upon exercise of options, or such other provisions as shall be
determined by the Board of Directors; PROVIDED, that such additional provisions
shall not be inconsistent with any other term or condition of the Plan and such
additional provisions shall not cause any Incentive Stock Option granted under
the Plan to fail to qualify as an Incentive Stock Option within the meaning of
Section 422 of the Code.
(b) ACCELERATION, EXTENSION, ETC. The Administrator may, in its sole
discretion, (i) accelerate the date or dates on which all or any particular
option or options granted under the Plan may be exercised or (ii) extend the
dates during which all, or any particular, option or options granted under the
Plan may be exercised; PROVIDED, HOWEVER, that no such acceleration or extension
shall be permitted if it would cause the Plan to fail to comply with Applicable
Laws, including but not limited to Section 422 of the Code and Rule 16b-3 (if
applicable).
13. GENERAL RESTRICTIONS.
(a) INVESTMENT REPRESENTATIONS. The Company may require any person to
whom an Option or Restricted Stock Award is granted, as a condition of
exercising such option or award, to give the written assurances in substance and
form satisfactory to the Company to the effect that such person is acquiring the
Common Stock subject to the option or award, for his or her own account for
investment and not with any present intention of selling or otherwise
distributing the same, and to such other effects as the Company deems necessary
or appropriate in order to comply with federal and applicable state securities
laws, or with covenants or representations made by the Company in connection
with any public offering of its Common Stock, including any "lock-up" or other
restriction on transferability.
(b) COMPLIANCE WITH SECURITIES LAW. Each Option or Restricted Stock
Award shall be subject to the requirement that if, at any time, counsel to the
Company shall determine that the listing, registration or qualification of the
shares subject to such option or award upon any securities exchange or automated
quotation system or under any state or federal law, or the consent or approval
of any governmental or regulatory body, or that the disclosure of non-public
information or the satisfaction of any other condition is necessary as a
condition of, or in connection with the issuance or purchase of shares
thereunder, such option or award may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval, or
satisfaction of such condition shall have been effected or obtained on
conditions acceptable to the Board of Directors. Nothing herein shall be deemed
to require the Company to apply for or obtain such listing, registration or
qualification, or to satisfy such condition.
6
<PAGE>
14. RIGHTS AS A STOCKHOLDER.
The holder of an option shall have no rights as a stockholder with
respect to any shares covered by the option (including, without limitation, any
rights to receive dividends or non-cash distributions with respect to such
shares) until the date of issue of a stock certificate to him or her for such
shares. No adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
15. ADJUSTMENT PROVISIONS FOR RECAPITALIZATIONS, REORGANIZATIONS AND
RELATED TRANSACTIONS.
(a) RECAPITALIZATIONS AND RELATED TRANSACTIONS. If, through or as a
result of any recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, (i) the outstanding shares of
Common Stock are increased, decreased or exchanged for a different number or
kind of shares or other securities of the Company, or (ii) additional shares or
new or different shares or other non-cash assets are distributed with respect to
such shares of Common Stock or other securities, an appropriate and
proportionate adjustment shall be made in (x) the maximum number and kind of
shares reserved for issuance under or otherwise referred to in the Plan, (y) the
number and kind of shares or other securities subject to any then outstanding
options or Restricted Stock Awards under the Plan, and (z) the price for each
share subject to any then outstanding options or Restricted Stock Awards under
the Plan, without changing the aggregate purchase price as to which such options
or Restricted Stock Awards remain exercisable. Notwithstanding the foregoing, no
adjustment shall be made pursuant to this Section 15 if such adjustment (i)
would cause the Plan to fail to comply with Section 422 of the Code or with Rule
16b-3 or (ii) would be considered as that adoption of a new plan requiring
stockholder approval.
(b) REORGANIZATION, MERGER AND RELATED TRANSACTIONS. All outstanding
Options under the Plan shall become fully exercisable for a period of sixty (60)
days following the occurrence of any Trigger Event, whether or not such Options
are then exercisable under the provisions of the applicable agreements relating
thereto. For purposes of the Plan, a "Trigger Event" is any one of the following
events:
(i) the date on which shares of Common Stock are first
purchased pursuant to a tender offer or exchange offer (other than such an offer
by the Company, any Subsidiary, any employee benefit plan of the Company or of
any Subsidiary or any entity holding shares or other securities of the Company
for or pursuant to the terms of such plan), whether or not such offer is
approved or opposed by the Company and regardless of the number of shares
purchased pursuant to such offer;
(ii) the date the Company acquires knowledge that any person
or group deemed a person under Rule 13d-3 of the Exchange Act (other than the
Company, any Subsidiary, any employee benefit plan of the Company or of any
Subsidiary or any entity holding shares of Common Stock or other securities of
the Company for or pursuant to the terms of any such plan or any individual or
entity or group or affiliate thereof that acquired its beneficial ownership
interest prior to the date the Plan was adopted by the Board), in a transaction
or series of transactions, has become the beneficial owner, directly or
indirectly (with beneficial ownership determined as provided in Rule 13d-3, or
any successor rule, under the Exchange Act), of
7
<PAGE>
securities of the Company entitling the person or group to 30% or more of all
votes (without consideration of the rights of any class or stock to elect
directors by a separate class vote) to which all stockholders of the Company
would be entitled in the election of the Board of Directors were an election
held on such date;
(iii) the date, during any period of two (2) consecutive
years, when individuals who at the beginning of such period constitute the Board
of Directors of the Company cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for election by the
stockholders of the Company, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of such period; and
(iv) the date of approval by the stockholders of the Company
of an agreement (a "reorganization agreement") providing for:
(A) The merger or consolidation of the Company with
another corporation where the stockholders of the Company, immediately prior to
the merger or consolidation, do not beneficially own, immediately after the
merger or consolidation, shares of the corporation issuing cash or securities in
the merger or consolidation entitling such stockholders to 80% or more of all
votes (without consideration of the rights of any class of stock to elect
directors by a separate class vote) to which all stockholders of such
corporation would be entitled in the election of directors or where the members
of the Board of Directors of the Company, immediately prior to the merger or
consolidation, do not, immediately after the merger or consolidation, constitute
a majority of the Board of Directors of the Corporation issuing cash or
securities in the merger or consolidation; or
(B) The sale or other disposition of all or
substantially all the assets of the Company.
(c) ADMINISTRATOR AUTHORITY TO MAKE ADJUSTMENTS. Any adjustments under
this Section 15 will be made by the Administrator whose determination as to what
adjustments, if any, will be made and the extent thereof will be final, binding,
and conclusive. No fractional shares will be issued under the Plan on account of
any such adjustments.
16. MERGER, CONSOLIDATION, ASSET SALE, LIQUIDATION, ETC.
(a) GENERAL. In the event of any sale, merger, transfer or acquisition
of the Company or substantially all of the assets of the Company in which the
Company is not the surviving corporation, and provided that after the Company
shall have requested the acquiring or succeeding corporation (or an affiliate
thereof), that equivalent options shall be substituted and such successor
corporation shall have refused or failed to assume all options outstanding under
the Plan or issue substantially equivalent options, then any or all outstanding
options under the Plan shall accelerate and become exercisable in full
immediately prior to such event. The Administrator will notify holders of
options under the Plan that any such options shall be fully exercisable for a
period of fifteen (15) days from the date of such notice, and the options will
terminate upon expiration of such notice.
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(b) SUBSTITUTE OPTIONS. The Company may grant options under the Plan in
substitution for options held by employees of another corporation who become
employees of the Company, or a subsidiary of the Company, as the result of a
merger or consolidation of the employing corporation with the Company or a
subsidiary of the Company, or as a result of the acquisition by the Company, or
one of its subsidiaries, of property or stock of the employing corporation. The
Company may direct that substitute options be granted on such terms and
conditions as the Board of Directors considers appropriate in the circumstances.
17. TERMS AND CONDITIONS OF AWARDS OF RESTRICTED STOCK.
(a) GENERAL TERMS. The Administrator shall have full and complete
authority and discretion, except as expressly limited by the Plan, to grant
awards of shares of restricted stock ("Restricted Stock Award(s)") and to
provide the terms and conditions (which need not be identical among
Participants) thereof. Restricted Stock Awards shall be evidenced by written
agreements in such form as the Administrator from time to time shall approve. In
particular, the Administrator shall prescribe the following terms and
conditions:
(i) The number of Shares of Restricted Stock to be awarded to
each Participant:
(ii) The restriction period or performance criteria applicable
to each Restricted Stock Award, which period or criteria need not be the same
for all Restricted Stock Awards; and
(iii) The payment, if any, to be made by the Participant in
consideration of the Restricted Stock Award. Any Restricted Stock Award may be
made without payment of consideration by the Participant or may provide for
payment of cash or deferred consideration that is less than the Fair Market
Value of the awarded shares at the date of grant. Any such Restricted Stock
Award may be on the basis that the shares awarded thereby may be repurchased by
the Company at a fixed price or at a price established by formula either upon
forfeiture of the awarded shares or in other specified circumstances.
(b) RESTRICTIONS. The Shares of Restricted Stock awarded shall be
subject to restrictions as set forth in Section 18.
(c) CERTIFICATES. A stock certificate or certificates evidencing the
Shares of Restricted Stock awarded, together with the blank stock powers duly
executed by the recipient, shall be issued in the name of the recipient and
delivered to the Administrator or its designee to be held in safekeeping until
the periodic expiration of the restrictions. The certificates issued pursuant to
the Plan shall contain a legend necessary to reflect the restrictions on such
Shares as contained in Section 18.
(d) RIGHTS AS A STOCKHOLDER. Subject to the restrictions contained in
Section18 hereof, the recipient of a Restricted Stock Award pursuant to the Plan
shall have all the rights as a stockholder with respect to the Shares covered by
the Restricted Stock Award including, but not limited to, the right to vote such
Shares, the right to receive cash or stock dividends with respect thereto and
the right to participate in any subdivision or consolidation of Shares or other
capital adjustment, or other increase or decrease in such Shares, effected
without receipt of consideration
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by the Company. In the event the recipient receives additional Shares pursuant
to any of the foregoing events, the Shares acquired shall be subject to the
terms, conditions, and restrictions contained herein as if such additional
Shares were received at the date of the original Restricted Stock Award.
18. RESTRICTIONS ON RESTRICTED STOCK AND LAPSE THEREOF.
(a) RESTRICTIONS. Shares of Restricted Stock awarded shall be subject
to the restrictions that, during the restriction period or prior to the lapse of
the restrictions in accordance with subsection (c) hereof, such Shares:
(i) Shall not be sold, exchanged, transferred, pledged, or
otherwise disposed of; and
(ii) Shall be forfeited to the Company if the recipient's
employment is terminated, except as provided in subsection (c) hereof.
(b) RESTRICTION PERIOD. Restrictions shall lapse at the times or upon
the events determined by the Administrator at the time of grant and set forth in
the applicable Agreement unless such restrictions are terminated earlier in
accordance with subsection (c) below.
(c) LAPSE OF RESTRICTIONS. The restrictions contained herein shall
lapse upon the occurrence of any of the following events:
(i) The death or total and permanent disability of a recipient
while employed by the Company;
(ii) The occurrence of a Trigger Event; and
(iii) At such times and in such amounts, other than as
described in (i) or (ii) above, including termination by the Company of a
recipient's employment for any reason or the early retirement of a recipient
with the consent of the Company, if the Administrator determines in the exercise
of its sole discretion that the lapse of restrictions at such time with respect
to all or a portion of the Shares awarded is in the best interest of the
Company.
19. NO SPECIAL EMPLOYMENT RIGHTS.
Nothing contained in the Plan or in any option shall confer upon any
optionee any right with respect to the continuation of his or her employment by
the Company or interfere in any way with the right of the Company at any time to
terminate such employment or to increase or decrease the compensation of the
optionee.
20. OTHER EMPLOYEE BENEFITS.
Except as to plans that by their terms include such amounts as
compensation, the amount of any compensation deemed to be received by an
employee as a result of the exercise of an option or the sale of shares received
upon such exercise will not constitute compensation with
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respect to which any other employee benefits of such employee are determined,
including, without limitation, benefits under any bonus, pension,
profit-sharing, life insurance or salary continuation plan, except as otherwise
specifically determined by the Board of Directors.
21. AMENDMENT OF THE PLAN.
(a) The Board of Directors may at any time, and from time to time,
modify or amend the Plan in any respect; provided, however, that if at any time
the approval of the stockholders of the Company is required under any Applicable
Laws, the Board of Directors may not effect such modification or amendment
without such approval.
(b) The modification or amendment of the Plan shall not, without the
consent of an optionee, affect his or her rights under an option previously
granted to him or her. With the consent of the optionee affected, the Board of
Directors may amend outstanding option agreements in a manner not inconsistent
with the Plan. The Board of Directors shall have the right to amend or modify
(i) the terms and provisions of the Plan and of any outstanding Incentive Stock
Options granted under the Plan to the extent necessary to qualify any or all
such options for such favorable federal income tax treatment (including deferral
of taxation upon exercise) as may be afforded incentive stock options under
Section 422 of the Code and (ii) the terms and provisions of the Plan and of any
outstanding option or Restricted Stock Award to the extent necessary to ensure
the compliance of options and Restricted Stock Awards under the Plan under Rule
16b-3.
22. WITHHOLDING.
(a) The Company shall have the right to deduct from payments of any
kind otherwise due to the optionee any federal, state, or local taxes of any
kind required by law to be withheld with respect to any shares issued upon
exercise of options under the Plan. Subject to the prior approval of the
Company, which may be withheld by the Company in its sole discretion, the
optionee may elect to satisfy such obligations, in whole or in part, (i) by
causing the Company to withhold shares of Common Stock otherwise issuable
pursuant to the exercise of an option or (ii) by delivering to the Company
shares of Common Stock already owned by the optionee. The shares so delivered or
withheld shall have a Fair Market Value equal to such withholding obligation as
of the date that the amount of tax to be withheld is to be determined. An
optionee who has made an election pursuant to this Section 20(a) may only
satisfy his or her withholding obligation with shares of Common Stock that are
not subject to any repurchase, forfeiture, unfulfilled vesting, or other similar
requirements.
(b) The acceptance of shares of Common Stock upon exercise of an
Incentive Stock Option shall constitute an agreement by the optionee (i) to
notify the Company if any or all of such shares are disposed of by the optionee
within two (2) years from the date the option was granted or within one (1) year
from the date the shares were issued to the optionee pursuant to the exercise of
the option, and (ii) if required by law, to remit to the Company, at the time of
and in the case of any such disposition, an amount sufficient to satisfy the
Company's federal, state, and local withholding tax obligations with respect to
such disposition, whether or not, as to both (i) and (ii), the optionee is in
the employ of the Company at the time of such disposition.
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(c) Notwithstanding the foregoing, in the case of a Reporting Person
whose options have been granted in accordance with the provisions of Section
3(b) herein, no election to use shares for the payment of withholding taxes
shall be effective unless made in compliance with any applicable requirements of
Rule 16b-3.
23. CANCELLATION AND NEW GRANT OF OPTIONS, ETC.
The Board of Directors shall have the authority to affect, at any time
and from time to time, with the consent of the affected optionees, (i) the
cancellation of any or all outstanding options under the Plan and grant in
substitution therefor of the new options under the Plan covering the same or
different numbers of shares of Common Stock and having an option exercise price
per share that may be lower or higher than the exercise price per share of the
cancelled options or (ii) the amendment of the terms of any and all outstanding
options under the Plan to provide an option exercise price per share that is
higher or lower than the then-current exercise price per share of such
outstanding options.
24. EFFECTIVE DATE AND DURATION OF THE PLAN.
(a) EFFECTIVE DATE. The Plan shall become effective when adopted by the
Board of Directors, but no incentive Stock Option granted under the Plan shall
become exercisable unless and until the Plan shall have been approved by the
Company's stockholders. If such stockholder approval is not obtained within
twelve (12) months after the date of the Board's adoption of the Plan, no
options previously granted under the Plan shall be deemed to be Incentive Stock
Options and no Incentive Stock Options shall be granted thereafter. Amendments
to the Plan not requiring stockholder approval shall become effective when
adopted by the Board of Directors; amendments requiring stockholder approval (as
provided in Section 21) shall become effective when adopted by the Board of
Directors, but no Incentive Stock Option granted after the date of such
amendment shall become exercisable (to the extent that such amendment to the
Plan was required to enable the Company to grant such Incentive Stock Option to
a particular optionee) unless and until such amendment shall have been approved
by the Company's stockholders. If such stockholder approval is not obtained
within twelve (12) months of the Board's adoption of such amendment, any
Incentive Stock Options granted on or after the date of such amendment shall
terminate to the extent that such amendment to the Plan was required to enable
the Company to grant such option to a particular optionee. Subject to this
limitation, options may be granted under the Plan at any time after the
effective date and before the date fixed for termination of the Plan.
(b) TERMINATION. Unless sooner terminated in accordance with Section
16, the Plan shall terminate upon the earlier of (i) the close of business on
the day next preceding the tenth anniversary of the date of its adoption by the
Board of Directors, or (ii) the date on which all shares available for issuance
under the Plan shall have been issued pursuant to the exercise or cancellation
of options granted under the Plan. If the date of termination is determined
under (i) above, then options outstanding on such date shall continue to have
force and effect in accordance with the provisions of the instruments evidencing
such options.
25. GOVERNING LAW.
The provisions of this Plan shall be governed and construed in
accordance with the laws of the State of Delaware without regard to the
principles of conflicts of laws.
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EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
As Independent Certified Public Accountants, we hereby consent to the
incorporation by reference in the accompanying Registration Statement on Form
S-8 pertaining to the US Diagnostic Inc. 1995 Long Term Incentive Plan, of our
report dated March 28, 1997, with respect to the consolidated financial
statements of US Diagnostic Inc. included in its Annual Report on Form 10-KSB
for the year ended December 31, 1996, filed with the Securities and Exchange
Commission.
/s/ ARTHUR ANDERSEN LLP
West Palm Beach, Florida
February 6, 1998.
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Form S-8
Registration Statement of our report dated February 20, 1996 on the consolidated
financial statements included or incorporated by reference in the US Diagnostic
Inc. [formerly U.S. Diagnostic Labs Inc.] annual report on Form 10-KSB for the
year ended December 31, 1995.
On July 1, 1996, the firm of Mortenson and Associates, P.C. changed its
name to Moore Stephens, P.C.
/s/ MOORE STEPHENS, P.C.
Certified Public Accountants.
Cranford, New Jersey
February 6, 1998
