<PAGE> 1
As filed with the Securities and Exchange Commission on July 29, 1997.
Registration No. 333-_____________.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
THE COMPANY DOCTOR
(Exact name of registrant as specified in its charter)
Delaware 72-1234136
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
5215 North O'Connor Boulevard, Suite 1800
Irving, Texas 75039
Telephone: (972) 401-8300
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
The Company Doctor
Amended and Restated
Omnibus Stock Plan of 1995
(Full title of the plan)
Donald F. Angle, M.D.
5215 North O'Connor Boulevard, Suite 1800
Irving, Texas 75039
Telephone: (972) 401-8300
(Name, address, including zip code, and telephone number,
including area code, of agent
for service)
Copy to:
Robert W. Walter, Esq.
Berliner Zisser Walter & Gallegos, P.C.
Suite 4700
1700 Lincoln Street
Denver, Colorado 80203
Telephone: (303) 830-1700
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock(2) . . . . . . 1,040,875 $3.6875 $3,838,227 $1,163.10
================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). Represents the average of the high and low
prices for the Common Stock as quoted on The Nasdaq SmallCap Market on
July 23, 1997.
(2) Pursuant to Rule 416, includes such indeterminate number of additional
shares of Common Stock as may be required to be issued pursuant to the
anti-dilution provisions of the Stock Option Plan in the event of a stock
split, stock dividend or similar event.
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<PAGE> 2
PART I
INFORMATION NOT REQUIRED IN THE REGISTRATION STATEMENT
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Securities and
Exchange Commission are incorporated herein by reference:
(a) The Company's latest Annual Report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the
Company's fiscal year ended June 30, 1996;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year
covered by the Company's Annual Report referred to in (a) above;
and
(c) The description of Common Stock contained in the Company's
Registration Statement on Form 8-A filed December 29, 1995 under
the Exchange Act, which Form 8-A incorporated by reference the
description of the Company's capital stock contained in the
Company's Registration Statement on Form SB-2 (S.E.C. File No.
333-99530-D), as filed with the Commission under the Securities
Act of 1933, as amended, on November 16, 1995 and declared
effective February 6, 1996.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated herein by reference and to be part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the securities offered will be passed upon for the
Company by Berliner Zisser Walter & Gallegos, P.C., Denver, Colorado. A
partner of such firm holds options to acquire 10,601 shares of Common Stock of
the Company and owns 17,483 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the provisions of the Delaware General Corporation
Law, the Company has adopted provisions in its Certificate of Incorporation
which provide that directors of the Company shall not be personally liable for
monetary damages to the Company or its stockholders for a breach of fiduciary
duty as a director, except for liability as a result of (i) a breach of the
director's duty of loyalty to the Company or its stockholders; (ii) acts or
omissions not in good faith or which involve intentional misconduct or knowing
violation of law; (iii) an act related to the unlawful stock repurchase or
payment of a dividend under Section 174 of Delaware General Corporation Law;
and (iv) transactions from which the director derived an improper personal
benefit. Such limitation of liability does not affect the availability of
equitable remedies such as injunctive relief or rescission.
The Company's Certificate of Incorporation also authorizes the Company
to indemnify its officers, directors and other agents, by bylaws, agreements or
otherwise, to the full extent permitted under Delaware law. The Company
intends to enter into separate indemnification agreements with its directors
and officers which may, in some
<PAGE> 3
cases, be broader than the specific indemnification provisions contained in the
Delaware General Corporation Law. The indemnification agreements may require
the Company, among other things, to indemnify such officers and directors
against certain liabilities that may arise by reason of their status or service
as directors or officers (other than liabilities arising from willful
misconduct of a culpable nature), to advance their expenses incurred as a
result of any proceeding against them as to which they could be indemnified,
and to obtain directors' and officers' insurance if available on reasonable
terms.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or agent of the Company where indemnification will
be required or permitted. The Company is not aware of any threatened
litigation or proceeding which may result in a claim for such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
* 4.1 Form of specimen certificate for Common Stock of the Company.
* 4.2 Form of specimen certificate for Warrants of the Company.
* 4.4 Form of Unit Purchase Option of the Company.
* 4.5 Form of Warrant Agreement by and among the Company, Continental
Stock Transfer & Trust Company and Royce Investment Group, Inc.
** 4.6 The Company Doctor Amended and Restated Omnibus Stock Plan of
1995, as amended on March 10, 1997.
** 5. Opinion of Berliner Zisser Walter & Gallegos, P.C., regarding
legality of the securities covered by this Registration Statement.
15 Not applicable.
** 23.1 The consent of Berliner Zisser Walter & Gallegos, P.C., to the use
of its opinion with respect to the legality of the securities
covered by this Registration Statement and to the references to
such firm in the Prospectus filed as part of this Registration
Statement is included in Exhibit 5.
** 23.2 Consent of Ehrhardt Keefe Steiner & Hottman PC, independent
certified public accountants for the Company.
24. Not applicable.
28. Not applicable.
- -----------------
* Incorporated by reference from the Company's Registration Statement on Form
SB-2 (S.E.C. File No. 333-99530-D) as declared effective on February 6,
1996.
** Filed herewith.
<PAGE> 4
ITEM 9. UNDERTAKINGS.
(a) Rule 415.
The undersigned small business issuer hereby undertakes that it will:
(1) File, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to:
(iii) Include any additional or changed material
information on the plan of distribution.
(2) For determining liability under the Securities Act of
1933 (the "Securities Act"), treat each post-effective amendment as a
new registration statement of securities offered, and the offering of
the securities at that time to be the initial bona fide offering.
(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of
the offering.
(b) Warrants and rights offerings.
Not applicable.
(h) Indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer has been advised that in the opinion of
the Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Act, and is therefore unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the small business issuer of expenses incurred or paid by a
director, officer or controlling person of the small business issuer 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 small business issuer will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE> 5
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 Irving, State of Texas, on July 29, 1997.
THE COMPANY DOCTOR
By: /s/ Donald F. Angle, M.D.
----------------------------------
Donald F. Angle, M.D., Chairman of
the Board and President
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/ Donald F. Angle, M.D. Chairman of the Board and July 29, 1997
- -------------------------- President (Principal Executive Officer)
Donald F. Angle, M.D.
/s/ Fred G. Parrish Chief Operating Officer July 29, 1997
- -------------------------- and Acting Principal Financial and
Fred G. Parrish Accounting Officer
/s/ Carl S. Luikart Director July 29, 1997
- --------------------------
Carl S. Luikart
/s/ John P. Kennedy Director July 29, 1997
- --------------------------
John P. Kennedy
/s/ Dale W. Willetts Director July 29, 1997
- --------------------------
Dale W. Willetts
/s/ W. Howard Haun Director July 29, 1997
- --------------------------
W. Howard Haun
Director
- --------------------------
Stephen W. Cavanaugh
</TABLE>
<PAGE> 6
EXHIBIT INDEX
* 4.1 Form of specimen certificate for Common Stock of the Company.
* 4.2 Form of specimen certificate for Warrants of the Company.
* 4.4 Form of Unit Purchase Option of the Company.
* 4.5 Form of Warrant Agreement by and among the Company, Continental
Stock Transfer & Trust Company and Royce Investment Group, Inc.
** 4.6 The Company Doctor Amended and Restated Omnibus Stock Plan of
1995, as amended on March 10, 1997.
** 5. Opinion of Berliner Zisser Walter & Gallegos, P.C., regarding
legality of the securities covered by this Registration Statement.
15 Not applicable.
** 23.1 The consent of Berliner Zisser Walter & Gallegos, P.C., to the use
of its opinion with respect to the legality of the securities
covered by this Registration Statement and to the references to
such firm in the Prospectus filed as part of this Registration
Statement is included in Exhibit 5.
** 23.2 Consent of Ehrhardt Keefe Steiner & Hottman PC, independent
certified public accountants for the Company.
24. Not applicable.
28. Not applicable.
- ---------------
* Incorporated by reference from the Company's Registration Statement on Form
SB-2 (S.E.C. File No. 333-99530-D) as declared effective on February 6,
1996.
** Filed herewith.
<PAGE> 1
EXHIBIT 4.6
THE COMPANY DOCTOR
AMENDED AND RESTATED
OMNIBUS STOCK PLAN OF 1995
I. PURPOSE
The purpose of this Plan is to promote the interest of the Corporation and
its shareholders and the Corporation's success by providing a method whereby a
variety of equity-based incentive and other Awards may be granted to Employees
and Directors of the Corporation and its Subsidiaries and to selected
Consultants who, in the course of their business activities, direct a
significant amount of business to the Corporation.
II. DEFINITIONS
A. "AWARD" means any form of stock option, restricted stock,
Performance Unit, Performance Share, stock appreciation right, dividend
equivalent or other incentive award granted under the Plan.
B. "AWARD NOTICE" means any written notice from the Corporation to a
Participant or agreement between the Corporation and a Participant that
establishes the terms applicable to an Award.
C. "BOARD OF DIRECTORS" means the Board of Directors of the
Corporation.
D. "CODE" means the Internal Revenue Code of 1986, as amended.
E. "COMMITTEE" means the Compensation Committee of the Board of
Directors, or such other committee designated by the Board of Directors, which
is authorized to administer the Plan under Section 3 hereof. The number of
persons who shall serve on the Committee shall be specified from time to time
by the Board of Directors; however, in no event shall there be fewer than three
members of the Committee. The Committee will be composed in a manner such that
the Plan will qualify under Rule 16b-3 with regard to Awards to persons who are
subject to Section 16 of the Exchange Act. If at any time the Committee has
fewer than two members or the Committee otherwise ceases to exist, then the
Plan shall be administered by the Board of Directors, and all references herein
to the Committee shall refer to the Board of Directors. If at any time the
Committee has fewer than two members or the Committee otherwise ceases to
exist, then the Plan shall be administered by the Board of Directors, and all
references herein to the Committee shall refer to the Board of Directors.
F. "COMMON STOCK" means Common Shares of the Corporation, $.01 par
value.
G. "CONSULTANT" means any individual who renders services directly to
the Corporation or to the Corporation's customers as defined and designated
from time to time by the Committee.
H. "CORPORATION" means The Company Doctor.
I. "DIRECTOR" means a member of the Board of Directors.
J. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
K. "FAIR MARKET VALUE" means, on any date, the average of the high and
low sales prices of the Common Stock on the principal national securities
exchange, which includes the National Association of Securities Dealers
Automated Quotation System (NASDAQ), on which such Common Stock is listed or
admitted to trading or if not traded on that date, then on the date last
traded; or if such Common Stock is not so listed or admitted to trading, the
arithmetic mean of the per share closing bid price and per share
<PAGE> 2
closing asked price on such date as quoted on any other system of NASDAQ or
such other market in which such prices are regularly quoted; or if there have
been no published bid or asked quotations, the Committee shall, in good faith
and in accordance with Section 422 of the Code, establish the method for
determining the Fair Market Value of the Common Stock.
L. "EMPLOYEE" means any employee of the Corporation or a Subsidiary
whose performance the Committee determines can have a significant effect on the
success of the Corporation.
M. "PARTICIPANT" means any individual to whom an Award is granted under
the Plan.
N. "PERFORMANCE SHARE" means a Unit expressed in terms of, or valued by
reference to, a share of Common Stock.
O. "PERFORMANCE UNIT" means a Unit valued by reference to designated
criteria established by the Committee, other than Common Stock.
P. "PLAN" means this Plan, which shall be known as The Company Doctor
1995 Omnibus Stock Plan.
Q. "RULE 16B-3" means Rule 16b-3 promulgated under the Exchange Act, as
amended effective November 1, 1996, or any successor rule.
R. "SUBSIDIARY" means a corporation or other business entity 1. of
which the Corporation directly or indirectly has an ownership interest of 50%
or more, or 2. of which it has a right to elect or appoint 50% or more of the
board of directors or other governing body.
S. "UNIT" means a bookkeeping entry used by the Corporation to record
the grant of an Award until such time as the Award is paid, cancelled,
forfeited or terminated.
III. ADMINISTRATION
A. The Plan shall be administered by the Committee. The Committee
shall have the authority to:
1. construe and interpret the Plan;
2. promulgate, amend and rescind rules relating to the
implementation of the Plan;
3. make all determinations necessary or advisable for the
administration of the Plan, including the selection of
employees and affiliated individuals who shall be granted
Awards, the number of shares of Common Stock or Units to be
subject to each Award, the Award price, if any, the vesting or
duration of Awards, and the designation of stock options as
incentive stock options or non-qualified stock options;
4. determine the disposition of Awards in the event of a
Participant's divorce or dissolution of marriage;
5. determine whether Awards will be granted alone or in
combination or in tandem with other Awards;
6. determine whether cash will be paid or Awards will be granted
in replacement of, or as alternatives to, other grants under
the Plan or any other incentive or compensation plan of the
Corporation, a Subsidiary or an acquired business unit; and
<PAGE> 3
7. approve in advance each particular Award to be granted
hereunder in a manner which will cause the Award to be exempt
from Section 16(b) of the Exchange Act by virtue of Rule
16b-3.
B. Subject to the requirements of applicable law, the Committee may
correct any defect, supply any omission, or reconcile any inconsistency in the
Plan, any Award, or any Award Notice; take any and all other actions it deems
necessary or advisable for the proper administration of the Plan; designate
persons other than members of the Committee to carry out its responsibilities;
and prescribe such conditions and limitations as it may deem appropriate;
except that the Committee may not delegate its authority with regard to the
selection for participation of, or the granting of Awards to, persons under
Section 16 of the Exchange Act. Any determination, decision, or action of the
Committee in connection with the construction, interpretation, administration,
or application of the Plan shall be final, conclusive and binding upon all
persons validly claiming under or through persons participating in the Plan.
C. The Committee may at any time, and from time to time amend or cancel
any outstanding Award, but only with the consent of the person to whom the
Award was granted.
IV. ELIGIBILITY
A. Any Employee is eligible to become a Participant in the Plan.
B. Directors who are not Employees of the Corporation or a Subsidiary
shall receive Awards in accordance with Section 7.
C. Consultants who are not Directors of the Corporation shall be
eligible to receive Awards in accordance with Section 8.
V. SHARES AVAILABLE
A. Subject to Section 16 of the Plan, the maximum number of shares of
Common Stock available for Award grants (including incentive stock options)
shall be 1,040,875. Notwithstanding the foregoing sentence, the maximum number
of shares of Common Stock that may be awarded under this Plan in the form of
restricted stock awards pursuant to Section 10 may be limited by the Committee.
VI. TERM
The Plan shall become effective on January 1, 1995, subject to the
approval of the Plan by the Corporation's stockholders not later than the 1995
annual meeting of shareholders, and shall continue in effect until December 31,
2004.
VII. AWARDS TO NON-EMPLOYEE DIRECTORS
Options granted to Directors who are not Employees of the Corporation or a
Subsidiary shall be subject to the following terms:
1. The exercise price shall be equal to 100% of the Fair Market
Value of the underlying Shares of Common Stock on the date of
the grant, payable in accordance with the alternatives stated
in Section 9.B.(ii) of the Plan;
2. The term of the options shall be ten (10) years;
<PAGE> 4
3. The options shall be exercisable beginning six months after
the date of the grant; and
4. The options shall be subject to Section 14 of the Plan.
VIII. AWARDS TO CONSULTANTS
Consultants shall receive Awards in accordance with the following terms:
A. No Awards of incentive stock options shall be made to Consultants.
B. Awards of non-qualified stock options to such Consultants shall be
subject to the following terms:
1. The exercise price shall be not less than 85% of the Fair
Market Value of the underlying shares of Common Stock on the
date of the grant, payable in accordance with the alternatives
stated in Sections 9.B(ii) and (iii) of the Plan;
2. The term of the options shall be ten (10) years;
3. The options shall be exercisable beginning six months after
the date of the grant; and
4. The options shall be subject to Section 14 of the Plan.
IX. STOCK OPTIONS
A. Awards may be granted in the form of stock options. Stock options
may be incentive stock options within the meaning of Section 422A of the Code
or non-qualified stock options (i.e., stock options which are not incentive
stock options).
B. Subject to Section 9.C. relating to incentive stock options, options
shall be in such form and contain such terms as the Committee deems
appropriate. While the terms of options need not be identical, each option
shall be subject to the following terms:
1. The exercise price shall be the price set by the Committee but
may not be less than 85% of the Fair Market Value of the
underlying shares of Common Stock on the date of the grant.
2. The exercise price shall be paid in cash (including check,
bank draft, or money order), or at the discretion of the
Committee, all or part of the purchase price may be paid by
delivery of the optionee's full recourse promissory note,
delivery of Common Stock already owned by the Participant for
at least six (6) months and valued at its Fair Market Value,
or any combination of the foregoing methods of payment. In
the case of incentive stock options, the terms of payment
shall be determined at the time of grant.
3. Promissory notes given as payment of the exercise price, if
permitted by the Committee, shall contain such terms as set by
the Committee which are not inconsistent with the following:
the unpaid principal shall bear interest at a rate set from
time to time by the Committee; payments of principal and
interest shall be made no less frequently than annually; no
part of the note shall be payable later than ten (10) years
from the date of
<PAGE> 5
purchase of the underlying shares of Common Stock; and the
optionee shall give such security as the Committee deems
necessary to ensure full payment.
4. The term of an option may not be greater than ten (10) years
from the date of the grant.
5. Neither a person to whom an option is granted nor such
person's legal representative, heir, legatee or distributee
shall be deemed to be the holder of, or to have any of the
rights of a holder or owner with respect to, any shares of
Common Stock subject to such option unless and until such
person has exercised the option.
C. The following special terms shall apply to grants of incentive stock
options:
1. Subject to Section 9.C.(iii) of the Plan, the exercise price
of each incentive stock option shall not be less than 100% of
the Fair Market Value of the underlying shares of Common Stock
on the date of the grant.
2. No incentive stock option shall be granted to any Employee who
directly or indirectly owns stock possessing more than 10% of
the total combined voting power of all classes of stock of the
Corporation, unless at the time of such grant the exercise
price of the option is at least 110% of the Fair Market Value
of the underlying shares of Common Stock subject to the option
and such option is not exercisable after the expiration of
five (5) years from the date of the grant.
3. No incentive stock option shall be granted to a person in his
capacity as a Employee of a Subsidiary if the Corporation has
less than a 50% ownership interest in such Subsidiary.
4. Options shall contain such other terms as may be necessary to
qualify the options granted therein as incentive stock options
pursuant to Section 422A of the Code, or any successor
statute.
X. RESTRICTED STOCK
A. Awards may be granted in the form of restricted stock.
B. Grants of restricted stock shall be awarded in exchange for
consideration in an amount determined by the Committee. The price, if any, of
such restricted stock shall be paid in cash, or at the discretion of the
Committee, all or part of the purchase price may be paid by delivery of the
Participant's full recourse promissory note, delivery of Common Stock already
owned by the Participant for at least six (6) months and valued at its Fair
Market Value, or any combination of the foregoing methods of payment, provided
no less than the par value of the stock is paid in cash, and the Participant
has rendered no less than three (3) months prior service to the Corporation.
C. Restricted stock awards shall be subject to such restrictions as the
Committee may impose and may include, if the Committee shall so determine,
restrictions on transferability and restrictions relating to continued
employment.
D. The Committee shall have the discretion to grant to a Participant
receiving restricted shares all or any of the rights of a shareholder while
such shares continue to be subject to restrictions.
<PAGE> 6
XI. PERFORMANCE UNITS AND PERFORMANCE SHARES
A. Awards may be granted in the form of Performance Units or
Performance Shares. Awards of Performance Units and Performance Shares shall
refer to a commitment by the Corporation to make a distribution to the
Participant or to his beneficiary depending on 1. the attainment of the
performance objective(s) and other conditions established by the Committee and
2. the base value of the Performance Unit or Performance Shares, respectively,
as established by the Committee.
B. Settlement of Performance Units and Performance Shares may be in
cash, in shares of Common Stock, or a combination thereof. The Committee may
designate a method of converting Performance Units into Common Stock,
including, but not limited to, a method based on the Fair Market Value of
Common Stock over a series of consecutive trading days.
C. Participants shall not be entitled to exercise any voting rights
with respect to Performance Units or Performance Shares, but the Committee in
its sole discretion may attach dividend equivalents to such Awards.
XII. STOCK APPRECIATION RIGHTS
A. Awards may be granted in the form of stock appreciation rights.
Stock appreciation rights may be awarded in tandem with a stock option, in
addition to a stock option, or may be free-standing and unrelated to a stock
option.
B. A stock appreciation right entitles the Participant to receive from
the Corporation an amount equal to the positive difference between 1. the Fair
Market Value of Common Stock on the date of exercise of the stock appreciation
right and 2. the grant price or some other amount as the Committee may
determine at the time of grant.
C. With respect to persons subject to Section 16 of the Exchange Act, a
stock appreciation right may only be exercised during a period which 1. begins
on the third business day following a date when the Corporation's quarterly
summary statement of sales and earnings is released to the public and 2. ends
on the 12th business day following such date. This Section 12.C shall not
apply if the exercise occurs automatically on the date when a related stock
option expires.
D. Settlement of stock appreciation rights may be in cash, in shares of
Common Stock, or a combination thereof, as determined by the Committee.
XIII. DEFERRAL OF AWARDS
At the discretion of the Committee, payment of an Award, dividend
equivalent, or any portion thereof may be deferred until a time established by
the Committee. Deferrals shall be made in accordance with guidelines
established by the Committee to ensure that such deferrals comply with
applicable requirements of the Code and its regulations. Deferrals shall be
initiated by the delivery of a written, irrevocable election by the participant
to the Committee or its nominee. Such election shall be made prior to the date
specified by the Committee. The Committee may also (A) credit interest
equivalents on cash payments that are deferred and set the rates of such
interest equivalents and (B) credit dividends equivalents on deferred payments
denominated in the form of shares of Common Stock.
<PAGE> 7
XIV. EXERCISE OF STOCK OPTIONS UPON TERMINATION OF EMPLOYMENT OR SERVICES.
A. Options granted under Section 7 and 9 shall be exercisable upon the
Participant's (i.e., Non-Employee Directors or Employees) termination of
service within the following periods only. The definition of termination of
service applicable to Consultants shall be defined and determined by the
Committee in its sole discretion. Subject to Section 22, stock options granted
to other Participants may permit the exercise of options upon the Participant's
termination of employment within the following periods, or such shorter periods
as determined by the Committee at the time of grant:
1. If on account of death, within twelve (12) months of such
event by the person or persons to whom the Participant's
rights pass by will or the laws of descent or distribution.
2. If on account of retirement (as defined from time to time by
Corporation policy), stock options may be exercised within 3
months of such termination.
3. If on account of resignation, options may be exercised within
one (1) month of such termination.
4. If for cause (as defined from time to time by Corporation
policy), no unexercised option shall be exercisable to any
extent after termination.
5. If on account of disability or leave of absence for the
purpose of servicing the government or the country in which
the principal place of employment of the Participant is
located, either in a military or a civilian capacity, or for
such other purpose or reason as the Committee may approve, a
Participant shall not be deemed during the period of any such
absence alone, to have terminated his service, except as the
Committee may otherwise expressly provide.
6. If for any reason other than death, retirement, resignation,
cause, or disability, options may be exercised within three
(3) months of such termination.
B. An unexercised option shall be exercisable only to the extent that
such option was exercisable on the date the Participant's employment or service
terminated. Notwithstanding the foregoing, and except as provided in Section
14.A. above, terms relating to the exercisability of options may be amended by
the Committee before or after such termination, except in respect to options
granted under Section 7.
C. In no case may an unexercised option be exercised to any extent by
anyone after expiration of its term.
XV. NONASSIGNABILITY
The rights of a Participant under the Plan shall not be assignable by such
Participant, by operation of law or otherwise, except by will or the laws of
descent and distribution. During the lifetime of the person to whom a stock
option or similar right (including a stock appreciation right) is granted, such
person alone may exercise it. No Participant may create a lien on any funds,
securities, rights or other property to which such Participant may have an
interest under the Plan, or which is held by the Corporation for the account of
the Participant under the Plan.
<PAGE> 8
XVI. ADJUSTMENT OF SHARES AVAILABLE
The Committee shall make appropriate and equitable adjustments in the
shares of Common Stock available for future Awards and the number of shares of
Common Stock covered by unexercised, unvested or unpaid Awards upon the
subdivision of the outstanding shares of Common Stock; the declaration of a
dividend payable in Common Stock; the declaration of a dividend payable in a
form other than Common Stock in an amount that has a material effect on the
price of the shares of Common Stock; the combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise) into a
lesser number of shares of Common Stock; a recapitalization; or a similar
event.
XVII. PAYMENT OF WITHHOLDING TAXES
As a condition to receiving or exercising an Award, as the case may be,
the Participant shall pay to the Corporation or the employer Subsidiary the
amount of all applicable Federal, state, local and foreign taxes required by
law to be paid or withheld relating to receipt or exercise of the Award.
Alternatively, the Corporation may withhold shares of Common Stock with an
aggregate Fair Market Value equal to such withholding taxes, from any Award in
shares of Common Stock, to the extent the withholding is required by law. The
Corporation also may deduct such withholding taxes from any Award paid in cash.
XVIII. AMENDMENTS
The Board of Directors shall have the authority to amend the Plan from
time to time without Shareholder approval, provided however, that the adoption
of any such amendment shall be permitted by Rule 16b-3. Rights and obligations
under any Award granted before any amendment of the Plan shall not be
materially altered or impaired adversely by such amendment, except with consent
of the person to whom the Award was granted.
XIX. REGULATORY APPROVALS AND LISTINGS
Notwithstanding any other provision in the Plan, the Corporation shall
have no obligation to issue or deliver certificates for shares of Common Stock
under the Plan prior to (A) obtaining approval from any governmental agency
which the Corporation determines is necessary or advisable, (B) admission of
such shares to listing on the stock exchange on which the Common Stock may be
listed, and (C) completion of any registration or other qualification of such
shares under any state or Federal law or ruling of any governmental body which
the Corporation determines to be necessary or advisable.
XX. NO RIGHT TO CONTINUED EMPLOYMENT OR GRANTS
Participation in the Plan shall not give any Employee any right to remain
in the employ of the Corporation or any Subsidiary. Further, the adoption of
this Plan shall not be deemed to give any Employee or other individual the
right to be selected as a Participant or to be granted an Award.
XXI. NO RIGHT, TITLE, OR INTEREST IN CORPORATION ASSETS
No Participant shall have any rights as a shareholder of the Corporation
until he acquires an unconditional right under an Award to have shares of
Common Stock issued to him. To the extent any person acquires a right to
receive payments from the Corporation under this Plan, such rights shall be no
greater than the rights of an unsecured creditor of the Corporation.
<PAGE> 9
XXII. SPECIAL PROVISION PERTAINING TO PERSONS SUBJECT TO SECTION 16
A. Notwithstanding any other item of this Plan, the following shall
apply to persons subject to Section 16 of the Exchange Act who receives an
Award prior to March 10, 1997, except in the case of death or disability:
1. Restricted stock or other equity securities (within the
meaning used in Rule 16b-3 of the Exchange Act or any
successor rule) offered pursuant to this Plan must be held for
at least six (6) months from the date of grant; and
2. At least six (6) months must elapse from the date of
acquisition of any stock option, Performance Unit, Performance
Share, stock appreciation right or other derivative security
(within the meaning used in Rule 16b-3 of the Exchange Act or
any successor rule) issued pursuant to the Plan to the date of
disposition of such derivative security (other than upon
exercise or conversion) or its underlying equity security.
B. The restrictions contained in paragraphs A(i) and (ii) of this
Section 22 shall also apply to any Award made on or after March 10, 1997, to a
person subject to Section 16 of the Exchange Act without the advance approval
of the Committee in the manner described in paragraph 3A(vii) above. Such
restrictions shall be applied and construed in a manner which will cause the
Award to be exempt from Section 16(b) of the Exchange Act by virtue of Rule
16b-3.
XXIII. INDEMNIFICATION
In addition to such other rights of indemnification as they may have as
Directors, the members of the Board of Directors or the Committee administering
the Plan shall be indemnified by the Corporation against reasonable expenses,
including attorneys' fees, actually and necessarily incurred in connection with
the defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any Award
granted thereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by legal counsel selected by the
Corporation) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be
adjudged in such action, suit or proceeding that such member is liable for
negligence or misconduct in the performance of his duties; provided that within
60 days after institution of any such action, suit or proceeding, the member
shall in writing offer the Corporation the opportunity, at its own expense, to
handle and defend the same.
XXIV. GOVERNING LAW
The Plan shall be governed by and construed in accordance with the laws of
the State of Texas.
<PAGE> 1
EXHIBIT 5
[BERLINER ZISSER WALTER & GALLEGOS, P.C. LETTERHEAD]
July 29, 1997
The Company Doctor
5215 North O'Connor Boulevard, Suite 1800
Irving, Texas 75039
Re: Registration Statement on Form S-8 Covering 1,040,875
Shares of Common Stock Reserved for Issuance Under
the Amended and Restated Omnibus Stock Plan of 1995
Gentlemen:
We have acted as counsel to The Company Doctor, a Delaware corporation
(the "Company"), in connection with the proposed offering by the Company of
1,040,875 shares of Common Stock (the "Shares") reserved for issuance under the
Company's Amended and Restated Omnibus Stock Plan of 1995 (the "Plan") in
accordance with the registration provisions of the Securities Act of 1933, as
amended.
In such capacity, we have examined, among other documents, the
Registration Statement on Form S-8 expected to be filed by the Company with the
Securities and Exchange Commission on or about July 29, 1997 (as the same may
be amended from time to time, the "Registration Statement"), covering the
offering of the Shares.
Based on the foregoing and on such further examination as we have
deemed relevant and necessary, we are of the opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Delaware.
2. The Shares have been legally and validly authorized under the
Certificate of Incorporation of the Company, as amended, and on receipt of the
consideration required by, and when issued in accordance with the terms and
conditions of the Plan, the Shares will constitute duly and validly issued,
outstanding, and fully paid and nonassessable securities of the Company.
We hereby consent to the use of our name and to the references to our
firm in the Prospectus forming a part of the Registration Statement, and to the
filing of a copy of this opinion as Exhibit No. 5 thereto.
Very truly yours,
BERLINER ZISSER WALTER & GALLEGOS, P.C.
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Company Doctor on Form S-8, of our report dated July 26, 1996 (except for
Note 2 as to which the date is August 23, 1996) appearing in the annual report
on Form 10-KSB of The Company Doctor and Subsidiaries for the year ended June
30, 1996.
/s/ Ehrhardt Keefe Steiner & Hottman PC
July 28, 1997
Denver, Colorado
