Registration No. ____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDPLUS, INC.
(Exact name of issuer as specified in its Charter)
Ohio 48-1094982
(State of Incorporation) (I.R.S. Employer Identification No.)
8805 Governor's Hill Drive, Cincinnati, Ohio 45249
(Address of Principal Executive Offices) (Zip Code)
MEDPLUS, INC.
1994 LONG-TERM STOCK INCENTIVE PLAN
(As Amended)
and
MEDPLUS, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
Daniel A. Silber
Chief Financial Officer
MedPlus, Inc.
8805 Governor's Hill Drive
Cincinnati, Ohio 45249
(513) 583-0500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy To:
Charles F. Hertlein, Jr., Esq.
Dinsmore & Shohl
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Maximum Proposed Amount
Securities to be Offering Maximum of Regis-
to Be Registered Price Offering tration
Registered Per Share Price Fee
Common
Stock,
no par value 1,350,000 *$2.00 $818.18
Approximate date of proposed commencement of sales hereunder:
As soon as practicable after the effective date of this
Registration Statement
* Based pursuant to Rule 457(c) and 457(f)(1), on the average of
the high and low prices of the common stock of MedPlus, Inc. on
the Nasdaq National Market December 28, 1998, a date within 5 days
of the date on which this Registration Statement is filed.
PART I
INFORMATION REQUESTED IN THE SECTION 10(a) PROSPECTUS
The information specified in Part I of Form S-8 is set forth in a
single document, entitled "Prospectus," which constitutes a part
of the Section 10(a) Prospectus to which this Registration
Statement relates but which is not filed herewith in accordance
with the instructions to Form S-8.
Item 1. Plan Information. The registrant shall deliver or cause
to be delivered to each participant material information regarding
each of the plans described herein and its operations that will
enable participants to make an informed decision regarding
investment in the plan.
Item 2. Registrant Information and Employee Plan Annual
Information. The registrant shall provide a written statement to
participants advising them of the availability without charge,
upon written or oral request, of the documents incorporated by
reference in Item 3 of Part II of this registration statement,
stating that these documents are incorporated by reference into
the Section 10(a) prospectus. Requests for such information shall
be made to the Registrant's General Counsel, c/o MedPlus, Inc.,
8805 Governor's Hill Drive, Ste. 100, Cincinnati, OH 45249,
telephone (513) 583-0500.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
MedPlus, Inc. (the "Registrant") hereby states that the documents
listed in (a) through (c) below are incorporated by reference in
this Registration Statement, and further states that all documents
subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 by reference in this Registration Statement and to be
a part hereof from the date of filing such documents.
(a) The Registrant's Annual Report on Form 10-KSB for the
fiscal year ended January 31, 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities and Exchange Act since January 31, 1998.
(c) The description of the Registrant's Common Stock contained
in the Registration Statement on Form SB-2 filed pursuant to
Section 12(g) of the Securities Exchange Act of 1934, which
Registration Statement became effective on May 24, 1994.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby will be
passed upon for the Registrant by Dinsmore & Shohl, Cincinnati,
Ohio which has performed and continues to perform legal services
for the Registrant.
The consolidated financial statements of the Registrant at January
31, 1998 and 1997 and December 31, 1996, and the related periods
including the twelve month periods ended January 31, 1998,
December 31, 1996 and December 31, 1995 and the one month period
ended January 31, 1997, incorporated by reference, have been
audited by KPMG Peat Marwick LLP, independent auditors, as set
forth in their report thereon, incorporated by reference, and are
included in reliance upon such report given upon the authority of
such firms as experts in accounting and auditing.
Item 6. Indemnification of Directors and Officers.
The Registrant's Code of Regulations provides that the Registrant
shall indemnify each director and each officer of the Registrant,
and each person employed by the Registrant who serves at the
written request of the Chairman of the Board of the Registrant as
a director, trustee, or officer of another corporation,
partnership, joint venture, trust, or other enterprise, to the
full extent permitted by Ohio law. The Code of Regulations also
provides that the Registrant may indemnify assistant officers,
employees and others by action of the Board of Directors to the
extent permitted by Ohio law.
In general, under Section 1701.13(E) of the Ohio Revised Code, an
Ohio corporation is permitted to indemnify its present or former
officers, directors, employees and agents against liabilities and
expenses incurred by such persons in their capacities as such so
long as they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the
corporation, provided that in an action by or in the name of the
corporation, if the person seeking indemnification was adjudged to
be liable for negligence, no indemnification is permitted unless
the court in which the action was brought specifically determines
that such person is fairly and reasonably entitled to
indemnification in view of all the circumstances of the case. The
statute also provides that an Ohio corporation shall advance
attorney's fees incurred by directors, and may advance such fees
incurred by executive officers, employees, agents and others,
prior to the final outcome of a matter provided the person seeking
such advances undertakes to repay them if it is ultimately
determined that such person is not entitled to indemnification
(except in the case of directors who must undertake to repay such
advances only if it is proved by clear and convincing evidence in
a court of competent jurisdiction that the act or failure to act
in question was undertaken with deliberate intent to cause injury
to the corporation or was undertaken with reckless disregard for
the best interest of the corporation).
In addition, the Registrant has purchased insurance policies which
provide coverage for the acts and omissions of the Registrant's
directors and officers in certain situations.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description
5, 23(a) Consent and Opinion of Dinsmore & Shohl as to
the legality of the securities being registered.
4(a)(i) MedPlus, Inc. 1994 Long-Term Stock Incentive
Plan, as amended
4(a)(ii) MedPlus, Inc. 1998 Employee Stock Purchase Plan
23(a) Consent of KPMG Peat Marwick, independent
certified public accountants
24 Power of Attorney*
_________________________
* Contained herein on the signature page
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 to
include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities
Exchange of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefor, 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 Act and will be governed by the final
adjudication of such issue.
1994 Long-Term Stock Incentive Plan
1998 Employee Stock Purchase Plan
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 Cincinnati, State of Ohio on December 30, 1998.
MEDPLUS, INC.
By: /s/ Richard A. Mahoney
Richard A. Mahoney
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Richard A.
Mahoney, as his true and lawful attorney-in-fact and agent, with
full power of substitution, to sign and execute on behalf of the
undersigned any amendment or amendments to this Registration
Statement on Form S-8, and to perform any acts necessary to be
done in order to file such amendment with exhibits thereto and
other documents in connection therewith with the Securities and
Exchange Commission, and each of the undersigned does hereby
ratify and confirm all that said attorney-in-fact and agent, or
his substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
Signature Title Date
/s/ Richard A. Mahoney Chairman of the Board, 12/30/98
Richard A. Mahoney Chief Executive Officer
and President (Principal
Executive Officer)
/s/ Daniel A. Silber Vice President of Finance 12/30/98
Daniel A. Silber and Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Robert E. Kenny III Secretary and Director 12/30/98
Robert E. Kenny III
/s/ Paul J. Stein Director 12/30/98
Paul J. Stein
/s/ Paul A. Martin Director 12/30/98
Paul A. Martin
/s/ Philip S. Present II Director 12/30/98
Philip S. Present II
/s/ Martin Neads Director 12/30/98
Martin Neads
INDEX TO EXHIBITS
Exhibit No. Description
5, 23(a) Consent and Opinion of Dinsmore & Shohl as to
the legality of the securities being registered.
4(a)(i) MedPlus, Inc. 1994 Long-Term Stock Incentive
Plan, as amended
4(a)(ii) MedPlus, Inc. 1998 Employee Stock Purchase Plan
23(a) Consent of KPMG Peat Marwick, independent
certified public accountants
24 Power of Attorney*
_________________________
* Contained herein on the signature page.
6
EXHIBIT 4(a)(i)
MEDPLUS, INC.
1994 LONG-TERM STOCK INCENTIVE PLAN
1. Purposes: The purposes of this Plan are (a) to secure
for the Company the benefits of incentives inherent in ownership
of Common Stock by Eligible Employees, (b) to encourage Eligible
Employees to increase their interest in the future growth and
prosperity of the Company and to stimulate and sustain
constructive and imaginative thinking by Eligible Employees, (c)
to further the identity of interest of those who hold positions of
major responsibility in the Company and its Subsidiaries with the
interests of the Company's shareholders, (d) to induce the
employment or continued employment of Eligible Employees and (e)
to enable the Company to compete with other organizations offering
similar or other incentives in obtaining and retaining the
services of competent employees.
2. Definitions: Unless otherwise required by the context,
the following terms when used in this Plan shall have the meanings
set forth in this section 2.
Board of Directors: The Board of Directors of the Company.
Change of Control: The event which shall be deemed to have
occurred if either (i) after the date this Plan is adopted by the
Company's shareholders, without prior approval of the Board, any
"person" becomes a beneficial owner, directly or indirectly, of
securities of the Company representing 20% or more of the combined
voting power of the Company's then outstanding securities; or (ii)
without prior approval of the Board, as a result of, or in
connection with, or within two years following, a tender or
exchange offer for the voting stock of the Company, a merger or
other business combination to which the Company is a party, the
sale or other disposition of all or substantially all of the
assets of the Company, a reorganization of the Company, or a proxy
contest in connection with the election of members of the Board of
Directors, the persons who were directors of the Company
immediately prior to any of such transactions cease to constitute
a majority of the Board of Directors or of the board of directors
of any successor to the Company (except for resignations due to
death, disability or normal retirement). For purposes of this
definition, a person shall be deemed the "beneficial owner" of any
securities (i) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or (ii)
which such person or any of its Affiliates or Associates, has
directly or indirectly, (1) the right to acquire (whether such
right is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights, warrants
or options, or otherwise, or (2) the right to vote pursuant to any
agreement, arrangement or understanding; or (iii) which are
beneficially owned, directly or indirectly, by any other person
with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any securities. For
purposes of this definition, a "person" shall mean any
individual, firm, company, partnership, other entity or group, and
the terms "Affiliate" or "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as in effect
on the date the Plan is approved by the shareholders of the
Company and becomes effective.
Committee: The Committee of the Board of Directors designated to
administer this Plan pursuant to the provisions of section 12.
Common Stock: The Common Stock of the Company, without par value.
Company: MedPlus, Inc., an Ohio corporation.
Eligible Employee: An employee of the Company or of a Subsidiary
who in the opinion of the Committee can contribute significantly
to the growth and successful operations of the Company or a
Subsidiary. The recommendation of the grant of a Stock Incentive
to an employee by the Committee shall be deemed a determination by
the Committee that such employee is an Eligible Employee.
Fair Market Value: As applied to any date, the mean of the
highest bid and the lowest asked prices of a share of Common Stock
on the Nasdaq SmallCap Market (or any stock market or exchange on
which the Company's Common Stock may be listed in the future) for
the trading date immediately prior to the date for which the
valuation is to be effective; provided, however, that, if the
Common Stock is not so quoted, Fair Market Value shall be
determined in accordance with the method approved by the Board of
Directors, and, provided further, if any of the foregoing methods
of determining Fair Market Value shall not be consistent with the
regulations of the Secretary of the Treasury or his delegate at
the time applicable to a Stock Incentive of the type involved,
Fair Market Value in the case of such Stock Incentive shall be
determined in accordance with such regulations and shall mean the
value as so determined.
Incentive Compensation: Bonuses, extra and other compensation
payable in addition to a salary or other base amount, whether
contingent or discretionary or required to be paid pursuant to an
agreement, resolution or arrangement, and whether payable
currently, or on a deferred basis, in cash, Common Stock or other
property, awarded by the Company or a Subsidiary prior or
subsequent to the date of the approval and adoption of this Plan
by the shareholders of the Company.
Incentive Option: An option granted under this Plan which is
designated to be an incentive stock option under the provisions of
Section 422 of the Internal Revenue Code of 1986, as amended; and
any provisions elsewhere in this Plan or in any such Incentive
Option which would prevent such option from being an incentive
stock option may be deleted and/or voided retroactively to the
date of the granting of such option, by action of the Committee.
Nonqualified Option: An option granted under this Plan which is
not an incentive stock option under the provisions of Section 422
of the Internal Revenue Code of 1986, as amended; and which is
exercisable even though there is outstanding an Incentive Option
which was granted before the granting of the Nonqualified Option
to the same participant. Such Nonqualified Option shall not be
affected by any actions taken retroactively as provided above with
respect to Incentive Options.
Option: An option to purchase shares of Common Stock.
Performance Objectives: Stated criteria which may, but need not
be set forth in a Stock Incentive at the discretion of the
Committee, the successful attainment of which is specified in the
Stock Incentive as a condition precedent to the issuance, transfer
or retention of some or all of the shares of Common Stock covered
by the Stock Incentive. Performance Objectives may be personal
and/or corporate in nature and shall include, but shall not be
limited to, objectives determined by reference to or changes in
(a) the Fair Market Value, book value or earnings per share of
Common Stock, or (b) sales and revenues, income, profits and
losses, return on capital employed, or net worth of the Company
(on a consolidated or unconsolidated basis) or of any or more of
its groups, divisions, Subsidiaries or departments, or (c) a
combination of two or more of the foregoing or other factors.
Plan: The 1994 Long-Term Stock Incentive Plan herein set forth as
the same may from time to time be amended.
Stock Appreciation Right (SAR): A right to receive cash, shares
of Common Stock, or a combination thereof, as the case may be,
having an aggregate value equal to the excess of the Fair Market
Value of one share of Common Stock on the date of exercise of such
right over the Fair Market Value of one such share on the date of
grant of such right.
Stock Award: An issuance or transfer of shares of Common Stock at
the time the Stock Incentive is granted or as soon thereafter as
practicable, or an undertaking to issue or transfer such shares in
the future.
Stock Incentive: A stock incentive granted under this Plan in one
of the forms provided for in section 3.
Subsidiary: A company or other entity designated by the Committee
in which the Company has a significant equity interest, except
that, with respect to grants of Incentive Options, the term
"Subsidiary" shall be deemed to mean a company or other form of
business association of which shares (or other ownership
interests) having 50% or more of the voting power are owned or
controlled, directly or indirectly, by the Company.
3. Grants of Stock Incentives:
(a) Subject to the provisions of this Plan, the Committee
may at any time, or from time to time, grant Stock Incentives
under this Plan to, and only to, Eligible Employees.
(b) Stock Incentives may be granted in the following forms:
(i) an Option, or
(ii) a SAR, or
(iii) a Stock Award, or
(iv) a combination of an Option, a SAR, and/or a Stock
Award.
(c) Stock Incentives contingently granted prior to the
approval of this Plan by the Company's shareholders but subject to
such approval shall be deemed to be granted hereunder as of the
date of such shareholder approval.
4. Stock Subject to this Plan:
(a) The maximum aggregate number of shares of Common Stock
subject to Stock Incentives that may be granted to participants in
the Plan shall be 2,000,000. Shares of Common Stock subject to
Stock Incentives granted under this Plan may be either authorized
but unissued shares or shares held in the Company's treasury, or
any combination thereof, in the discretion of the Committee.
(b) The maximum amount of Common Stock with respect to
which Stock Incentives may be granted to any person during any
calendar year shall be 50,000 shares; provided, however, that in
the event of a grant made to a recipient upon the recipient's
initial hiring by the Company, or in the event of a grant made to
a recipient in lieu of a cash bonus, such limitation shall be
increased to 100,000 shares.
(c) The number of shares of Common Stock which may be
granted under the Plan as Stock Awards in any calendar year shall
not exceed 25,000.
5. Options: Stock Incentives in the form of Options shall
be subject to the following provisions:
(a) Upon the exercise of an Option, the purchase price
shall be paid in cash or, unless otherwise provided by the
Committee (and subject to such terms and conditions as are
specified in the Option or by the Committee), in shares of Common
Stock delivered to the Company by the optionee or by the
withholding of shares issuable upon exercise of the Option or in a
combination of such payment methods. Shares of Common Stock thus
delivered or withheld shall be valued at their Fair Market Value
on the date of the exercise. The purchase price per share shall
be not less than 100% of the Fair Market Value of a share of
Common Stock on the date the Option is granted.
(b) Each Option shall be exercisable in full or in part not
less than six months after the date the Option is granted, or may
become exercisable in one or more installments at such later time
or times as the Committee shall determine. Unless otherwise
provided in the Option, an Option, to the extent it is or becomes
exercisable, may be exercised at any time in whole or in part
until the expiration or termination of the Option. Any term or
provision in any outstanding Option specifying that the Option not
be immediately exercisable or that it be exercisable in
installments may be modified at any time during the life of the
Option by the Committee, provided, however, no such modifications
of an outstanding Option shall, without the consent of the
optionee, adversely affect any Option theretofore granted to the
optionee.
(c) Each option shall be exercisable during the life of the
optionee only by the optionee or by the holder(s) who acquired the
Option from the optionee by transfer in accordance with paragraph
5(e) hereof, and after the optionee's death, only by the
optionee's estate or by the holder who acquired the right to
exercise the Option by will or the laws of descent and
distribution or by the person(s) who acquired the Option from the
optionee by transfer in accordance with paragraph 5(e) hereof. An
option, to the extent that it shall not have been exercised, shall
terminate at the close of business on the thirtieth day following
the date the optionee ceases to be an employee of the Company or a
Subsidiary, unless the optionee ceases to be an employee because
of resignation with the consent of the Committee (which consent
may be given before or after resignation), or by reason of death,
incapacity or retirement under a retirement plan of the Company or
a Subsidiary. Except as provided in the next sentence, if the
optionee ceases to be an employee by reason of such resignation,
then unless the Committee has otherwise indicated in its consent
by formal action, the Option shall terminate three months after
the optionee ceases to be an employee. If the optionee ceases to
be an employee by reason of such death, incapacity or retirement,
or if the optionee should die during the three-month period (or
longer period if consented to by formal action of the Committee)
referred to in the preceding sentence, the Option shall terminate
fifteen months after the optionee ceases to be an employee. Where
an option is exercised more than three months after the optionee
ceased to be an employee, the Option may be exercised only to the
extent it could have been exercised on the date three months after
the optionee ceased to be an employee. A leave of absence for
military or governmental service or for other purposes shall not,
if approved by the Committee, be deemed a termination of
employment within the meaning of this paragraph (c).
Notwithstanding he foregoing provisions of this paragraph (c) or
any other provisions of this Plan, no Option shall be exercisable
after expiration of the term for which the Option was granted,
which shall in no event exceed ten years.
(d) Options shall be granted for such lawful consideration
as the Committee shall determine.
(e) No Option or any right thereunder may be assigned or
transferred by the optionee except: (i) by will or the laws of
descent and distribution, (ii) to Immediate Family Members, (iii)
to partnerships of which the only partners are the optionee and
one or more Immediate Family Members, or (iii) to trusts
established solely for the benefit of the optionee and/or the
optionee's Immediate Family Members. For purposes hereof,
"Immediate Family Members" means the optionee's spouse, natural
and adopted children of the optionee and their spouses, and
natural and adopted grandchildren of the optionee. If so provided
in the Option or if so authorized by the Committee and subject to
such terms and conditions as are specified in the Option or by the
Committee, the Company shall have the right, upon or without the
request of the holder of the Option and at any time for from time
to time to cancel all or a portion of the Option then subject to
exercise and either (i) pay the holder an amount of money equal to
the excess, if any, of the Fair market Value, at such time or
times, of the shares subject to the portion of the Option so
canceled over the aggregate purchase price of such shares, or (ii)
issue or transfer shares of Common Stock to the holder with a Fair
Market Value, at such time or times, equal to such excess.
(f) Each Option shall be evidenced by a written instrument,
which shall contain such terms and conditions (including, without
limitation, Performance Objectives), and shall be in such form, as
the Committee may determine, provided the Option is consistent
with this Plan and incorporates it by reference. Notwithstanding
the preceding sentence, an Option if so recommended by the
Committee, may include restrictions and limitations in addition to
those provided for in this Plan.
(g) Any federal, state or local withholding taxes payable
by an optionee upon the exercise of an Option shall be paid in
cash or, unless otherwise provided by the Committee, by the
surrender of shares of Common Stock or the withholding of shares
of Common Stock to be issued to the optionee, or in any
combination thereof, or in such other form as the Committee may
authorize from time to time. All such shares so surrendered or
withheld shall be valued at Fair Market Value on the date they are
surrendered to the Company or authorized to be withheld.
(h) Options may be either Incentive Options or Nonqualified
Options at the discretion of the Committee. Options not otherwise
designated shall be Nonqualified Options. Notwithstanding any
other provisions herein, the following provisions shall apply to
Incentive Options: (i) the exercise price of any Incentive Option
granted to any person who on the date of grant owns (within the
meaning of Section 425(d) of the Internal Revenue Code) stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any Subsidiary shall not be
less than 110% of the Fair Market Value of the stock on the date
of grant; (ii) the maximum term of any Incentive Option granted
hereunder shall be ten years, except that the maximum term of any
Incentive Option granted to a person described in section 5(h)(i)
above shall be five years; (iii) no Incentive Option may be
granted subsequent to the tenth anniversary of the date of
shareholder approval of this Plan; (iv) Incentive Options may only
be granted to persons who are employees of the Company or any
Subsidiary within the meaning of the Internal Revenue Code; and
(v) Incentive Options may not be granted with respect to more than
an aggregate of 1,000,000 shares of Common Stock under this Plan.
6. Stock Appreciation Rights: Stock Incentives in the form
of Stock Appreciation Rights (SAR's) shall be subject to the
following provisions:
(a) Each SAR shall be evidenced by a written instrument
(the "SAR Agreement") specifying the number of shares of Common
Stock to which it relates and containing such other terms and
conditions (which may, but need not, include Performance
Objectives), and shall be in such form as the Committee may
determine, provided the SAR is consistent with this Plan and
incorporates it by reference.
(b) Each SAR Agreement shall specify the period during
which the pertinent SAR(s) may be exercised and shall provide that
the SAR(s) shall expire at the end of such period (or periods);
provided that such expiration date shall not be later than ten
years from the date of grant thereof. Except as otherwise
provided herein, any SAR must be exercised during the period of
the holder's employment with the Company. Each SAR may be
exercisable in full or in part in one or more installments at such
time or times as the Committee shall determine. Unless otherwise
provided in the SAR Agreement, a SAR, to the extent it is or
becomes exercisable, may be exercised at any time in whole or in
part until the expiration or termination of the SAR. Any term or
provisions in any outstanding SAR specifying that the SAR not be
immediately exercisable or that it is to be exercisable in
installments may be modified at any time during the life of the
SAR by the Committee, provided, however, no such modifications of
any outstanding SAR shall, without the consent of the grantee
adversely affect any SAR theretofore granted the grantee.
(c) Each SAR shall be exercisable during the life of the
grantee only by the grantee and, after the grantee's death, only
by the grantee's estate or by a person who acquired the right to
exercise the SAR by will or the laws of descent and distribution.
A SAR, to the extent that it shall not have been exercised, shall
terminate at the close of business on the thirtieth day following
the date the grantee ceases to be an employee of the Company or a
Subsidiary, unless the grantee ceases to be an employee because of
resignation with the consent of the Committee (which consent may
be given before or after resignation), or by reason of death,
incapacity or retirement under a retirement plan of the Company or
a Subsidiary. Except as provided in the next sentence, if the
grantee ceases to be an employee by reason of such resignation,
the SAR shall terminate three months after the grantee ceases to
be an employee. If the grantee ceases to be an employee by reason
of such death, incapacity or retirement, or if the grantee should
die during the three-month period referred to in the preceding
sentence, the SAR shall terminate fifteen months after the grantee
ceases to be an employee. Where a SAR is exercised more than
three months after the grantee ceased to be an employee the SAR
may be exercised only to the extent it could have been exercised
on the date three months after the grantee ceased to be an
employee. A leave of absence for military or governmental service
or for other purposes shall not, if approved by the Committee, be
deemed a termination of employment within the meaning of this
paragraph (c).
(d) No SAR may be assigned or transferred by the grantee
except by will or the laws of descent and distribution.
(e) If the form of consideration to be received upon
exercise of the SAR is not specified in the agreement governing
the SAR, upon the exercise thereof, the holder may request the
form of consideration to be received in satisfaction of such SAR,
which may be in shares of Common Stock (valued at Fair Market
Value on the date of exercise of the SAR), or in cash, or partly
in cash and partly in shares of Common Stock, as the holder shall
request; provided, however, that the Committee, in its sole
discretion, may consent to or disapprove any request of the
grantee to receive cash in full or partial settlement of such SAR.
(f) Any federal, state or local withholding taxes payable
by the grantee upon the exercise of a SAR shall be paid in cash
or, unless otherwise provided by the Committee, by the surrender
of shares of Common Stock in the case of a SAR to be paid in the
form of Common Stock, or by the withholding of shares of Common
Stock to be issued to the grantee, or in any combination thereof,
or in such other form as the Committee may authorize from time to
time. All such shares so surrendered or withheld shall be valued
at Fair Market Value on the date they are surrendered to the
Company or authorized to be withheld.
7. Stock Awards: Stock Incentives in the form of Stock
Awards shall be subject to the following provisions:
(a) A Stock Award shall be granted only in payment of
Incentive Compensation that has been earned or as Incentive
Compensation to be earned, including, without limitation,
Incentive Compensation awarded concurrently with or prior to the
grant of the Stock Award.
(b) For the purposes of this Plan, in determining the value
of a Stock Award, all shares of Common Stock subject to such Stock
Award shall be valued at not less than 100% of the Fair Market
Value of such shares on the date such Stock Award is granted,
regardless of whether or when such shares are issued or
transferred to the Eligible Employee and whether or not such
shares are subject to restrictions which affect their value.
(c) Shares of Common Stock subject to a Stock Award may be
issued or transferred to the Eligible Employee at the time the
Stock Award is granted, or at any time subsequent thereto, or in
installments from time to time, as the Committee shall determine.
In the event that any such issuance or transfer shall not be made
to the Eligible Employee at the time the Stock Award is granted,
the Committee may provide for payment to such Eligible Employee,
either in cash or in shares of Common Stock from time to time or
at the time or times such shares shall be issued or transferred to
such Eligible Employee, of amounts not exceeding the dividends
which would have been payable to such Eligible Employee in respect
of such shares (as adjusted under section 9) if they had been
issued or transferred to such Eligible Employee at the time such
Stock Award was granted. Any amount payable in shares of Common
Stock under the terms of a Stock Award may, at the discretion of
the Company, be paid in cash, on each date on which delivery of
shares would otherwise have been made, in an amount equal to the
Fair Market Value on such date of the shares which would otherwise
have been delivered.
(d) A Stock Award shall be subject to such terms and
conditions, including, without limitation, restrictions on sale or
other disposition of the Stock Award or of the shares issued or
transferred pursuant to such Stock Award, as the Committee shall
determine; provided, however, that upon the issuance or transfer
of shares pursuant to a Stock Award, the recipient shall, with
respect to such shares, be and become a shareholder of the Company
fully entitled to receive dividends, to vote and to exercise all
other rights of a shareholder except to the extent otherwise
provided in the Stock Award. The Committee may, in its sole
discretion, but shall not be required to, specify in any Stock
Award that the issuance, transfer and/or retention of some or all
of the shares of Common Stock covered by the Stock Award shall be
subject to the attainment of Performance Objectives. Each Stock
Award shall be evidenced by a written instrument in such form as
the Committee shall determine, provided such written instrument is
consistent with this Plan and incorporates it by reference.
(e) In the event the holder of shares of Common Stock
subject to a Stock Award dies prior to the time such shares are no
longer subject to forfeiture pursuant to the terms of the Stock
Award, the estate of such holder may retain such shares subject to
the restrictions set forth in the Stock Award.
8. Combinations of Stock Awards and Options: Stock
Incentives authorized by paragraph (b)(iv) of section 3 in the
form of combinations of Options, SAR's and/or Stock Awards, shall
be subject to the following provisions:
(a) A Stock Incentive may be a combination of any form of
Option with any form of SAR and/or with any form of Stock Award;
provided, however, that the terms and conditions of such Stock
Incentive pertaining to an Option are consistent with section 5,
the terms and conditions of such Stock Incentive pertaining to a
SAR are consistent with section 6, and the terms and conditions of
such Stock Incentive pertaining to a Stock Award are consistent
with section 7.
(b) Such combination Stock Incentive shall be subject to
such other terms and conditions as the Committee may determine,
including, without limitation, a provision terminating in whole or
in part a portion thereof upon the exercise in whole or in part of
another portion thereof. Such combination Stock Incentive shall
be evidenced by a written instrument in such form as the Committee
shall determine, provided it is consistent with this Plan and
incorporates it by reference.
9. Adjustment Provisions: In the event that any
recapitalization, reclassification, forward or reverse split of
shares of Common Stock, or any similar transaction shall be
effected, or the outstanding shares of Common Stock are, in
connection with a merger or consolidation of the Company or a sale
by the Company of all or a part of its assets, exchanged for a
different number of class of shares of stock or other securities
of the Company or for shares of the stock or other securities of
any other company, or a record date for determination of holders
of Common Stock entitled to receive a dividend payable in Common
Stock shall occur, (a) the number and class of shares or other
securities that may be issued or transferred pursuant to Stock
Incentives or with respect to which a cash payment pursuant to the
Stock Incentive is determinable, (b) the number and class of
shares or other securities which have not been issued or
transferred under outstanding Stock Incentives, (c) the purchase
price to be paid per share or other security under outstanding
Options, and (d) the price to be paid by the Company or a
Subsidiary for shares or other securities issued or transferred
pursuant to Stock Incentives which are subject to a right of the
Company or a Subsidiary to reacquire such shares or other
securities, shall in each case be equitably adjusted.
10. Acceleration: In the event of a Change of Control, any
Stock Incentives which have then been outstanding hereunder for at
least six months shall be immediately exercisable (without regard
to any limitation imposed by the Plan or the Committee at the time
the Stock Incentive was granted, which permits all or any part of
the Stock Incentive to be exercised only after the lapse of time
or the attainment of Performance Objectives or other conditions to
exercise), and will remain exercisable until the expiration of the
Stock Incentive.
11. Term: This Plan shall be deemed adopted and shall
become effective on the date it is approved and adopted by the
shareholders of the Company. This Plan shall remain in effect
until such time as it is terminated by the Board of Directors;
provided, however, that no Incentive Options may be granted after
the tenth anniversary of the effective date of the Plan.
12. Administration:
(a) The Plan shall be administered by the Committee, which
shall consist of not less than three directors of the Company
designated by the Board of Directors in accordance with the Code
of Regulations of the Company; provided, however, that no director
shall be designated as or continue to be a member of the Committee
unless such director shall at the time of designation and service
be a "disinterested person" within the meaning of Rule 16b-3 of
the Securities and Exchange Commission (or any successor provision
at the time in effect). Grants of Stock Incentives may be
recommended by the Committee either with or without consultation
with employees, but, anything in this Plan to the contrary
notwithstanding, the Committee shall have full authority to act in
the matter of selection of all Eligible Employees and in
recommending Stock Incentives to be granted to them.
(b) The Committee may establish such rules and regulations,
not inconsistent with the provisions of this Plan, as it deems
necessary to determine eligibility to participate in this Plan and
for the proper administration of this Plan, and may amend or
revoke any rule or regulation so established. The Committee may
make such determinations and interpretations under or in
connection with this Plan as it deems necessary or advisable. All
such rules, regulations, determinations and interpretations shall
be binding and conclusive upon the Company, its Subsidiaries, its
shareholders and all employees, and upon their respective legal
representatives, beneficiaries, successors and assigns and upon
all other persons claiming under or through any of them.
(c) Members of the Board of Directors and members of the
Committee acting under this Plan shall be fully protected in
relying in good faith upon the advice of counsel and shall incur
no liability except for gross negligence or willful misconduct in
the performance of their duties.
13. Acquisitions: If the Company or any Subsidiary should
merge or consolidate with, or purchase stock or assets or
otherwise acquire the whole or part of the business of, another
company, the Company in connection therewith, upon the
recommendation of the Committee and the approval of the Board of
Directors, (a) may assume, in whole or in part and with or without
modifications or conditions, any stock options granted by the
acquired company to its employees, in their capacity as such, or
(b) may grant new Options in substitution therefore; provided that
the granting of an Option with the terms and conditions of the
assumed or substitute options is permissible under either this
Plan or a plan approved by the shareholders of the acquired
company. For the purposes of the preceding sentence, the
permissibility of the granting of an option under a plan shall be
determined as of the date of grant of the original option by the
acquired company and not as of the date of assumption or
substitution by the Company.
14. General Provisions:
(a) Nothing in this Plan nor in any instrument executed
pursuant hereto shall confer upon any employee any right to
continue in the employ of the Company or a Subsidiary, or shall
affect the right of the Company or of a Subsidiary to terminate
the employment of any employee with or without cause.
(b) No shares of Common Stock shall be issued or
transferred pursuant to a Stock Incentive unless and until all
legal requirements applicable to the issuance or transfer of such
shares, in the opinion of counsel to the Company, have been
complied with. In connection with any such issuance or transfer
the person acquiring the shares shall, if requested by the
Company, give assurances, satisfactory to counsel to the Company,
that the shares are being acquired for investment and not with a
view to resale or distribution thereof and assurances in respect
of such other matters as the Company or a Subsidiary may deem
desirable to assure compliance with all applicable legal
requirements. No employee (individually or as a member of a
group), and no beneficiary or other person claiming under or
through him, shall have any right, title or interest in or to any
shares of Common Stock allocated or reserved for the purposes of
this Plan or subject to any Stock Incentive except as to shares of
Common Stock, if any, as shall have been issued or transferred to
him.
(d) The Company or a Subsidiary may, with the approval of
the Committee, enter into an agreement or other commitment to
grant a Stock Incentive in the future to a person who is or will
be an Eligible Employee at the time of grant, and, notwithstanding
any other provision of this Plan, any such agreement or commitment
shall not be deemed the grant of a Stock Incentive until the date
on which the Company takes action to implement such agreement or
commitment.
(e) In the case of a grant of a Stock Incentive to an
employee of a Subsidiary, such grant may, if the Committee so
directs, be implemented by the Company issuing or transferring the
shares, if any, covered by the Stock Incentive to the Subsidiary,
for such lawful consideration as the Committee may specify, upon
the condition or understanding that the Subsidiary will transfer
the shares to the employee in accordance with the terms of the
Stock Incentive specified by the Committee pursuant to the
provisions of this Plan. Notwithstanding any other provision
hereof, such Stock Incentive may be issued by and in the name of
the Subsidiary and shall be deemed granted on the date it is
approved by the Committee on the date it is delivered by the
Subsidiary or on such other date between said two dates, as the
Committee shall specify.
(f) The Company or a Subsidiary may make such provisions as
it may deem appropriate for the withholding of any taxes which the
Company or a Subsidiary determines it is required to withhold in
connection with any Stock Incentive.
(g) Nothing in this Plan is intended to be a substitute
for, or shall preclude or limit the establishment or continuation
of, any other plan, practice or arrangement for the payment of
compensation or fringe benefits to employees generally, or to any
class or group of employees, which the Company or any Subsidiary
or other affiliate now has or may hereafter lawfully put into
effect, including, without limitation, any retirement, pension,
group insurance, stock purchase, stock bonus or stock option plan.
15. Amendments and Discontinuance:
(a) This Plan may be amended by the Board of Directors upon
the recommendation of the Committee, provided that, without the
approval of the shareholders of the Company, no amendment shall be
made which (i) increases the maximum aggregate number of shares of
Common Stock that may be issued or transferred pursuant to Stock
Incentives as provided in section 4, (ii) withdraws the
administration of this Plan from the Committee or amends the
provisions of paragraph (a) of section 12 with respect to
eligibility and disinterest of members of the Committee, (iii)
permits any person who is not at the time an Eligible Employee of
the Company or of a Subsidiary to be granted a Stock Incentive,
(iv) permits any Option to be exercised more than ten years after
the date it is granted, (v) amends section 11 to extend the date
set forth therein or (vi) amends this section 15.
(b) The Board of Directors may by resolution adopted by a
majority of the entire Board of Directors discontinue this Plan.
(c) No amendment or discontinuance of this Plan by the
Board of Directors or the shareholders of the Company shall,
without the consent of the employee, adversely affect any Stock
Incentive theretofore granted to him.
EXHIBIT 4(a)(ii)
MEDPLUS, INC. EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I -- PURPOSE
1.01. Purpose
The MedPlus, Inc. Employee Stock Purchase Plan (the "Plan") is
intended to provide a method whereby Employees of MedPlus, Inc.
and its Subsidiary Corporations (hereinafter referred to, unless
the context otherwise requires, as the "Company") will have an
opportunity to acquire a proprietary interest in the Company
through the purchase of shares of the Common Stock of the Company.
It is the intention of the Company to have the Plan qualify as an
"employee stock purchase plan" under Section 423 of the Internal
Revenue Code of 1986, as amended (the "Code"). The provisions of
the Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that
Section of the Code.
ARTICLE II -- DEFINITIONS
2.01. Base Pay
"Base Pay" means regular straight-time earnings excluding payments
for overtime, shift premium, bonuses and other special payments,
commissions and other marketing incentive payments.
2.02. Committee
"Committee" means the individuals described in Article XI.
2.03. Employee
"Employee" means any person who is customarily employed on a
full-time or part-time basis by the Company and is regularly
scheduled to work more than 20 hours per week.
2.04. Offering
"Offering" means each of the annual or six-month offerings of the
Company's Common Stock under the Plan.
2.05. Offering Commencement Date
"Offering Commencement Date" means the August 1 or February 1, as
the case may be, on which the particular Offering begins.
2.06. Offering Termination Date
"Offering Termination Date" means the January 31 or July 31, as
the case may be, on which the particular Offering terminates.
2.07. Subsidiary Corporation
"Subsidiary Corporation" means any present or future corporation
which (i) is a "subsidiary corporation", as that term is defined
in Section 424 of the Code, of the Company and (ii) is designated
by the Committee as an entity the employees of which shall be
entitled to participate in the Plan.
ARTICLE III -- ELIGIBILITY AND PARTICIPATION
3.01. Initial Eligibility.
Any Employee who shall have completed 90 days' employment and
shall be employed by the Company on the date his participation in
the Plan is to become effective shall be eligible to participate
in Offerings under the Plan which commence on or after such 90 day
period has concluded.
3.02. Leave of Absence.
For purposes of participation in the Plan, a person on leave of
absence shall be deemed to be an Employee for the first 90 days of
such leave of absence and such Employee's employment shall be
deemed to have terminated at the close of business on the 90th day
of such leave of absence unless such Employee shall have returned
to regular full-time or part-time employment (as the case may be)
prior to the close of business on such 90th day. Termination by
the Company of any Employee's leave of absence, other than
termination of such leave of absence on return to full-time or
part-time employment, shall terminate an Employee's employment for
all purposes of the Plan and shall terminate such Employee's
participation in the Plan and right to exercise any option.
3.03. Restrictions on Participation.
Notwithstanding any provisions of the Plan to the contrary, no
Employee shall be granted an option to participate in the Plan:
(a) if, immediately after the grant, such Employee would own
stock, and/or hold outstanding options to purchase stock,
possessing 5% or more of the total combined voting power or value
of all classes of stock of the Company (for purposes of this
paragraph, the rules of Section 424(d) of the Code shall apply in
determining stock ownership of any Employee); or
(b) which permits his rights to purchase stock under all Code Section
423 employee stock purchase plans of the Company to accrue at a
rate which exceeds $25,000 in fair market value of the stock
(determined at the time such option is granted) for each calendar
year in which such option is outstanding.
3.04. Commencement of Participation.
An eligible Employee may become a participant by completing an
authorization for a payroll deduction on the form provided by the
Company and filing it with the Committee on or before the date set
therefor by the Committee, which date shall be prior to the
Offering Commencement Date for the Offering. Payroll deductions
for a participant shall commence on the applicable Offering
Commencement Date when his authorization for a payroll deduction
becomes effective and shall end on the Offering Termination Date
of the Offering to which such authorization is applicable unless
sooner terminated by the participant as provided in Article VIII.
ARTICLE IV -- OFFERINGS
4.01. Annual Offerings.
The Plan will be implemented by four annual Offerings of the
Company's Common Stock beginning on the 1st day of August in each
of the years 1998, 1999, 2000 and 2001, each Offering terminating
on July 31 of the following year, provided, however, that each
annual Offering may, in the discretion of the Committee exercised
prior to the commencement thereof, be divided into two six-month
Offerings commencing, respectively, on August 1 of such year and
February 1 of the following year and terminating on January 31 and
July 31 of the following year, respectively. The maximum number of
shares issued in the respective years shall be:
- - From August 1, 1998 to July 31, 1999: 50,000 shares.
- - From August 1, 1999 to July 31, 2000: 75,000 shares plus
unissued shares from the prior Offerings, whether offered or not.
- - From August 1, 2000 to July 31, 2001: 100,000 shares plus
unissued shares from the prior Offerings, whether offered or not.
- - From August 1, 2001 to July 31, 2002: 125,000 shares plus
unissued shares from the prior Offerings, whether offered or not.
If a six-month Offering is made, the maximum number of shares to
be issued shall be one-half of the number of shares set forth for
the annual period in which the six-month Offering falls, plus, if
the Offering is a February 1 to July 31 Offering, unissued shares,
whether offered or not, from the immediately preceding six-month
Offering.
ARTICLE V -- PAYMENTS FOR STOCK
5.01. Method of Payment.
Unless otherwise determined by the Committee, the method of
contribution to the Plan shall be by regular payroll deduction as
provided below. The Committee shall have the authority to
establish such other methods of contribution to the Plan as it
deems reasonable and appropriate under the circumstances.
5.02. Amount of Deduction.
At the time a participant files his authorization for payroll
deduction, he shall elect to have deductions made from his pay on
each payday during the time he is a participant in an Offering at
the rate of 1% to 10%, in increments of 1%, of his Base Pay in
effect at the Offering Commencement Date of such Offering. In the
case of a part-time hourly Employee, such Employee's Base Pay
during an Offering shall be determined by multiplying such
Employee's hourly rate of pay in effect on the Offering
Commencement Date by the number of regularly scheduled hours of
work for such Employee during such Offering.
5.03. Participant's Account.
All payroll deductions made for a participant shall be credited to
his account under the Plan. A participant may not make any
separate cash payment into such account except when on leave of
absence and then only as provided in Section 5.05.
5.04. Changes in Payroll Deductions.
A participant may discontinue his participation in the Plan as
provided in Article VIII, but no other change can be made during
an Offering and, specifically, a participant may not alter the
amount of his payroll deductions for that Offering.
5.05. Leave of Absence.
If a participant goes on a leave of absence, such participant
shall have the right to elect: (a) to withdraw the balance in his
or her account pursuant to Section 7.02, (b) to discontinue
contributions to the Plan but remain a participant in the Plan, or
remain a participant in the Plan during such leave of absence,
authorizing deductions to be made from payments by the Company to
the participant during such leave of absence and undertaking to
make cash payments to the Plan at the end of each payroll period
to the extent that amounts payable by the Company to such
participant are insufficient to meet such participant's authorized
Plan deductions.
ARTICLE VI -- GRANTING OF OPTION
6.01. Number of Option Shares.
On the Commencement Date of each Offering, a participating
Employee shall be deemed to have been granted an option to
purchase a maximum number of shares of the stock of the Company
equal to an amount determined as follows: an amount equal to (i)
that percentage of the Employee's Base Pay which he has elected to
have withheld (but not in any case in excess of 10%) multiplied by
(ii) the Employee's Base Pay during the period of the Offering and
divided by (iii) 85% of the market value of the stock of the
Company on the applicable Offering Commencement Date. The market
value of the Company's stock shall be determined as provided in
paragraphs (a) and (b) of Section 6.02 below. An Employee's Base
Pay during the period of an Offering shall be determined by
multiplying, in the case of a one-year Offering, his normal weekly
rate of pay (as in effect on the last day prior to the
Commencement Date of the particular Offering) by 52 or the hourly
rate by 2,080 or, in the case of a six-month Offering, by 26 or
1040, as the case may be, provided that, in the case of a part-
time hourly Employee, the Employee's Base Pay during the period of
an Offering shall be determined by multiplying such Employee's
hourly rate by the number of regularly scheduled hours of work for
such Employee during such Offering.
6.02. Option Price.
The option price of stock purchased with payroll deductions made
during such Offerings for a participant therein shall be the lower
of:
(a) 85% of the closing price of the stock on the Offering
Commencement Date or the nearest prior business day on which
trading occurred on the Nasdaq National Market; or
(b) 85% of the closing price of the stock on the Offering
Termination Date or the nearest prior business day on which
trading occurred on the Nasdaq National Market.
ARTICLE VII -- EXERCISE OF OPTION
7.01. Automatic Exercise.
Unless a participant gives written notice to the Company as
hereinafter provided, his option for the purchase of stock with
payroll deductions made during any Offering will be deemed to have
been exercised automatically on the Offering Termination Date
applicable to such Offering, for the purchase of the number of
full shares of stock which the accumulated payroll deductions in
his account at that time will purchase at the applicable option
price (but not in excess of the number of shares for which options
have been granted to the Employee pursuant to Section 6.01), and
any excess in his account at that time will be returned to him.
7.02. Withdrawal of Account.
By written notice to the Committee, at any time prior to the
Offering Termination Date applicable to any Offering, a
participant may elect to withdraw all the accumulated payroll
deductions in his account at such time.
7.03. Fractional Shares.
Fractional shares will not be issued under the Plan and any
accumulated payroll deductions which would have been used to
purchase fractional shares will be returned to any Employee
promptly following the termination of an Offering, without
interest.
7.04. Transferability of Option.
During a participant's lifetime, options held by such participant
shall be exercisable only by that participant.
7.05. Delivery of Stock.
As promptly as practicable after the Offering Termination Date of
each Offering, the Company will deliver to each participant, as
appropriate, the stock purchased upon exercise of his option.
ARTICLE VIII -- WITHDRAWAL
8.01. In General.
As indicated in Section 7.02, a participant may withdraw payroll
deductions credited to his account under the Plan at any time by
giving written notice to the Committee. All of the participant's
payroll deductions credited to his account will be paid to him
promptly after receipt of his notice of withdrawal, and no further
payroll deductions will be made from his pay during such Offering.
The Company may, at its option, treat any attempt to borrow by an
Employee on the security of his accumulated payroll deductions as
an election, under Section 3.02, to withdraw such deductions.
8.02. Effect on Subsequent Participation.
A participant's withdrawal from any Offering will not have any
effect upon his eligibility to participate in any succeeding
Offering or in any similar plan which may hereafter be adopted by
the Company.
8.03. Termination of Employment.
Upon termination of the participant's employment for any reason,
including retirement (but excluding death while in the employ of
the Company or continuation of a leave of absence for a period
beyond 90 days), the payroll deductions credited to his account
will be returned to him, or, in the case of his death subsequent
to the termination of his employment, to the person or persons
entitled thereto under Section 12.01.
8.04. Termination of Employment Due to Death.
Upon termination of the participant's employment because of his
death, his beneficiary (as defined in Section 12.01) shall have
the right to elect, by written notice given to the Committee
prior to the earlier of the Offering Termination Date or the
expiration of a period of 60 days commencing with the date of the
death of the participant, either:
(a) to withdraw all of the payroll deductions credited to the
participant's account under the Plan, or
(b) to exercise the participant's option for the purchase of stock
on the Offering Termination Date next following the date of the
participant's death for the purchase of the number of full shares
of stock which the accumulated payroll deductions in the
participant's account at the date of the participant's death will
purchase at the applicable option price, and any excess in such
account will be returned to said beneficiary, without interest.
In the event that no such written notice of election shall be duly
received by the Committee, the beneficiary shall automatically be
deemed to have elected, pursuant to paragraph (b), to exercise the
participant's option.
8.05. Leave of Absence.
A participant on leave of absence shall, subject to the election
made by such participant pursuant to Section 5.05, continue to be
a participant in the Plan so long as such participant is on
continuous leave of absence. A participant who has been on leave
of absence for more than 90 days and who therefore is not an
Employee for the purpose of the Plan shall not be entitled to
participate in any Offering commencing after the 90th day of such
leave of absence. Notwithstanding any other provisions of the
Plan, unless a participant on leave of absence returns to regular
full-time or part-time employment with the Company at the earlier
of: (a) the termination of such leave of absence or (b) three
months from the 90th day of such leave of absence, such
participant's participation in the Plan shall terminate on
whichever of such dates first occurs.
ARTICLE IX -- INTEREST
9.01. Payment of Interest.
No interest will be paid or allowed on any money paid into the
Plan or credited to the account of any participant Employee.
ARTICLE X -- STOCK
10.01. Maximum Shares.
The maximum number of shares which shall be issued under the Plan,
subject to adjustment upon changes in capitalization of the
Company as provided in Section 12.04 shall be 125,000 shares in
each annual Offering (62,500 shares in each six-month Offering)
plus in each Offering all unissued shares from prior Offerings,
whether offered or not, not to exceed 350,000 shares for all
Offerings. If the total number of shares for which options are
exercised on any Offering Termination Date in accordance with
Article VI exceeds the maximum number of shares for the applicable
Offering, the Company shall make a pro rata allocation of the
shares available for delivery and distribution, and the balance of
payroll deductions credited to the account of each participant
under the Plan shall be returned to him as promptly as possible.
10.02. Participant's Interest in Option Stock.
The participant will have no interest in stock covered by his
option until such option has been exercised.
10.03. Registration of Stock.
Stock to be delivered to a participant under the Plan will be
registered in the name of the participant, or, if the participant
so directs by written notice to the Committee prior to the
Offering Termination Date applicable thereto, in the names of the
participant and one such other person as may be designated by the
participant, as joint tenants with rights of survivorship or as
tenants by the entireties, to the extent permitted by applicable
law.
10.04. Restrictions on Exercise.
The Board of Directors may, in its discretion, require as
conditions to the exercise of any option that the shares of Common
Stock reserved for issuance upon the exercise of the option shall
have been duly listed, upon official notice of issuance, upon a
stock exchange, and that either:
(a) a Registration Statement under the Securities Act of 1933, as
amended, with respect to said shares shall be effective, or
(b) the participant shall have represented at the time of
purchase, in form and substance satisfactory to the Company, that
it is his intention to purchase the shares for investment and not
for resale or distribution.
ARTICLE XI -- ADMINISTRATION
11.01. Appointment of Committee
The Board of Directors shall appoint a committee (the "Committee")
to administer the Plan, which shall consist of no fewer than three
members of the Board of Directors. No member of the Committee
shall be eligible to purchase stock under the Plan.
11.02. Authority of Committee
Subject to the express provisions of the Plan, the Committee shall
have plenary authority in its discretion to interpret and construe
any and all provisions of the Plan, to adopt rules and regulations
for administering the Plan, and to make all other determinations
deemed necessary or advisable for administering the Plan. The
Committee's determination on the foregoing matters shall be
conclusive.
11.03. Rules Governing the Administration of the Committee
The Board of Directors may from time to time appoint members of
the Committee in substitution for or in addition to members
previously appointed and may fill vacancies, however caused, in
the Committee. The Committee may select one of its members as its
Chairman and shall hold its meetings at such times and places as
it shall deem advisable. A majority of its members shall
constitute a quorum. All determinations of the Committee shall be
made by a majority of its members. The Committee may correct any
defect or omission or reconcile any inconsistency in the Plan in
the manner and to the extent it shall deem desirable. Any decision
or determination reduced to writing and signed by a majority of
the members of the Committee shall be as fully effective as if it
had been made by a majority vote at a meeting duly called and
held. The Committee may appoint a secretary and shall make such
rules and regulations for the conduct of its business as it shall
deem advisable.
ARTICLE XII -- MISCELLANEOUS
12.01. Designation of Beneficiary.
A participant may file a written designation of a beneficiary who
is to receive any stock and/or cash. Such designation of
beneficiary may be changed by the participant at any time by
written notice to the Committee. Upon the death of a participant
and upon receipt by the Company of proof of identity and existence
at the participant's death of a beneficiary validly designated by
him under the Plan, the Company shall deliver such stock and/or
cash to such beneficiary. In the event of the death of a
participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such participant's
death, the Company shall deliver such stock and/or cash to the
executor or administrator of the estate of the participant, or if
no such executor or administrator has been appointed (to the
knowledge of the Company), the Company, in its discretion, may
deliver such stock and/or cash to the spouse or to any one or more
dependents of the participant as the Company may designate. No
beneficiary shall, prior to the death of the participant by whom
he has been designated, acquire any interest in the stock or cash
credited to the participant under the Plan.
12.02. Transferability.
Neither payroll deductions credited to a participant's account nor
any rights with regard to the exercise of an option or to receive
stock under the Plan may be assigned, transferred, pledged, or
otherwise disposed of in any way by the participant other than by
will or the laws of descent and distribution. Any such attempted
assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election
to withdraw funds in accordance with Section 7.02.
12.03. Use of Funds.
All payroll deductions received or held by the Company under this
Plan may be used by the Company for any corporate purpose and the
Company shall not be obligated to segregate such payroll
deductions.
12.04. Adjustment Upon Changes in Capitalization.
(a) If, while any options are outstanding, the outstanding shares
of Common Stock of the Company have increased, decreased, changed
into, or been exchanged for a different number or kind of shares
or securities of the Company through reorganization, merger,
recapitalization, reclassification, stock split, reverse stock
split or similar transaction, appropriate and proportionate
adjustments may be made by the Committee in the number and/or kind
of shares which are subject to purchase under outstanding options
and on the option exercise price or prices applicable to such
outstanding options. In addition, in any such event, the number
and/or kind of shares which may be offered in the Offerings
described in Article IV hereof shall also be proportionately
adjusted. No adjustments shall be made for stock dividends. For
the purposes of this Paragraph, any distribution of shares to
shareholders in an amount aggregating 20% or more of the
outstanding shares shall be deemed a stock split and any
distributions of shares aggregating less than 20% of the
outstanding shares shall be deemed a stock dividend.
(b) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or
more corporations as a result of which the Company is not the
surviving corporation, or upon a sale of substantially all of the
property or stock of the Company to another corporation, the
holder of each option then outstanding under the Plan will
thereafter be entitled to receive at the next Offering Termination
Date upon the exercise of such option for each share as to which
such option shall be exercised, as nearly as reasonably may be
determined, the cash, securities and/or property which a holder of
one share of the Common Stock was entitled to receive upon and at
the time of such transaction. The Board of Directors shall take
such steps in connection with such transactions as the Board shall
deem necessary to assure that the provisions of this Section 12.04
shall thereafter be applicable, as nearly as reasonably may be
determined, in relation to the said cash, securities and/or
property as to which such holder of such option might thereafter
be entitled to receive.
12.05. Amendment and Termination.
The Board of Directors shall have complete power and authority to
terminate or amend the Plan; provided, however, that the Board of
Directors shall not, without the approval of the stockholders of
the Corporation (i) increase the maximum number of shares which
may be issued under any Offering (except pursuant to Section
12.04); (ii) amend the requirements as to the class of employees
eligible to purchase stock under the Plan or (iii) permit the
members of the Committee to purchase stock under the Plan. No
termination, modification, or amendment of the Plan may, without
the consent of an Employee then having an option under the Plan to
purchase stock, adversely affect the rights of such Employee under
such option.
12.06. Effective Date.
The Plan shall become effective as of August 1, 1998 if approved
by the holders of a majority of the Common Stock present in person
or by proxy at a special or annual meeting of the shareholders
held on or before June 30, 1998. If the Plan is not so approved,
the Plan shall not become effective.
12.07. No Employment Rights.
The Plan does not, directly or indirectly, create any right for
the benefit of any Employee or class of employees to purchase any
shares under the Plan, or create in any Employee or class of
employees any right with respect to continuation of employment by
the Company, and it shall not be deemed to interfere in any way
with the Company's right to terminate, or otherwise modify, an
Employee's employment at any time.
12.08. Effect of Plan.
The provisions of the Plan shall, in accordance with its terms, be
binding upon, and inure to the benefit of, all successors of each
Employee participating in the Plan, including, without limitation,
such Employee's estate and the executors, administrators or
trustees thereof, heirs and legatees, and any receiver, trustee in
bankruptcy or representative of creditors of such Employee.
12.09. Governing Law.
The law of the State of Ohio will govern all matters relating to
this Plan except to the extent it is superseded by the laws of the
United States.
MEDPLUS, INC.
Independent Auditors' Consent
The Board of Directors
MedPlus, Inc.:
We consent to incorporation by reference in the registration
statement on Form S-8 of MedPlus, Inc. of our report dated April
9, 1998, relating to the consolidated balance sheets of MedPlus,
Inc. and subsidiaries as of January 31, 1998, and 1997 and
December 31, 1996, and the related consolidated statements of
operations, shareholders' equity, and cash flows for the year
ended January 31, 1998, the one month period ended January 31,
1997 and the years ended December 31, 1996 and 1995, which report
appears in the January 31, 1998, annual report on Form 10-KSB of
MedPlus, Inc. and subsidiaries.
/s/ KPMG Peat Marwick LLP
Cincinnati, Ohio
December 23, 1998
Charles F. Hertlein, Jr.
(513) 977-8315
December 29, 1998
MedPlus, Inc.
8805 Governor's Hill Drive
Cincinnati, Ohio 45249
Ladies and Gentlemen:
This opinion is rendered for use in connection with the
Registration Statement on Form S-8, prescribed pursuant to the
Securities Act of 1933, to be filed by MedPlus, Inc. (the
"Company") with the Securities and Exchange Commission on or about
December 29, 1998, under which up to 1,350,000 shares of the
Company's Common Stock without par value ("Common Stock") are to
be registered.
We hereby consent to the filing of this opinion as Exhibit 5 and
23(a) to the Registration Statement and to the reference to our
name in the Registration Statement.
As counsel to the Company, we have examined and are familiar with
originals or copies, certified or otherwise identified to our
satisfaction, of such statutes, documents, corporate records,
certificates of public officials, and other instruments as we have
deemed necessary for the purpose of this opinion, including the
Company's Amended Articles of Incorporation and Amended Code of
Regulations and the record of proceedings of the shareholders and
directors of the Company.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of
the State of Ohio.
2. When the Registration Statement shall have been declared
effective by order of the Securities and Exchange Commission and
up to 1,350,000 shares of the Common Stock to be issued for sale
to employees of the Company shall have been issued and sold upon
the terms set forth in the Prospectus relating to the Registration
Statement, such shares will be legally and validly issued and
outstanding, fully-paid and nonassessable.
Very truly yours,
DINSMORE & SHOHL LLP
/S/ Charles F. Hertlein, Jr.
Charles F. Hertlein, Jr.
Encl.
