-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MpWXp/3vPBLXAZKelNARJ+quhnATBwDCpmOuRfd1mSVQ+o0euWieehD63Y1TDP/h vnIZjF2qhaB1wr4PlDRwvQ== 0001091818-01-000031.txt : 20010213 0001091818-01-000031.hdr.sgml : 20010213 ACCESSION NUMBER: 0001091818-01-000031 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 20010209 EFFECTIVENESS DATE: 20010209 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HYPERBARIC SYSTEMS CENTRAL INDEX KEY: 0001070181 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMMERCIAL PHYSICAL & BIOLOGICAL RESEARCH [8731] IRS NUMBER: 770481056 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-55384 FILM NUMBER: 1531860 BUSINESS ADDRESS: STREET 1: 1127 HARKER AVE CITY: PALO ALTO STATE: CA ZIP: 94301 BUSINESS PHONE: 6503230943 MAIL ADDRESS: STREET 1: 1127 JARKER AVENUE CITY: PALO ALTO STATE: CA ZIP: 94301 S-8 1 0001.txt AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 09, 2001 COMMISSION FILE NO. 0-28413 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- HYPERBARIC SYSTEMS (Exact Name of Registrant as Specified in Its Charter) CALIFORNIA (State or Other Jurisdiction of Incorporation or Organization) 8731 77-0481056 (Primary Standard (I.R.S. Employer Industrial Classification Identification Number) Code) 1127 HARKER AVENUE PALO ALTO, CALIFORNIA 94301 650-323-0943 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Executive Offices) Stock Options, Warrants and Consulting Agreements HARRY MASUDA PRESIDENT AND CHIEF EXECUTIVE OFFICER HYPERBARIC SYSTEMS 1127 HARKER AVENUE PALO ALTO, CALIFORNIA 94301 650-323-0943 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) ----------------------- COPY TO: JAMES C. CHAPMAN, ESQ. CATHRYN S. GAWNE, ESQ. VINITA BALI, ESQ. SILICON VALLEY LAW GROUP 152 NORTH THIRD STREET, SUITE 900 SAN JOSE, CALIFORNIA 95112 (408) 286-6100 If any of the securities being registered on this Form are being offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [X] CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- PROPOSED PROPOSED MAXIMUM MAXIMUM AGGREGATE AMOUNT OF TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION TO BE REGISTERED REGISTERED PER UNIT (1) PRICE (1) FEE (1) - -------------------------------------------------------------------------------- Common Stock, no par value 700,000 shares $1.50 $1,050,000.00 $262.50 Common Stock, no par value 560,000 shares $0.80 $ 448,000.00 $112.00 Total 1,260,000 shares $1,498,000.00 $374.50 - -------------------------------------------------------------------------------- (1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(h). PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The documents containing the information specified in this Part I are being separately provided to the Registrant's consultants as specified by Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by the Registrant with the Securities and Exchange Commission are hereby incorporated by reference in this registration statement: (a) The Registrant's Annual Report on Form 10-KSB filed on March 29, 2000 with the Securities and Exchange Commission; (b) The Registrant's Quarterly Reports on Form 10-QSB filed on May 15, 2000, August 14, 2000, and November 20, 2000 with the Securities and Exchange Commission; (c) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 10-SB filed on December 8, 1999 with the Securities and Exchange Commission under Section 12 of the Securities Exchange Act of 1934, including any amendment or report filed for the purpose of updating such description. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Amended Articles of Incorporation and the Bylaws of the Registrant provide for the indemnification of the directors and agents of the Registrant to the fullest extent permissible under California law, and in excess of that expressly permitted by Section 317 of the California Corporation Law. Additionally, the Company has entered into Indemnification Agreements with each of its officers and therefore, purchasers of these securities may have a more limited right of action than they would have except for this limitation in the Articles of Incorporation and By-laws. In the opinion of the Securities and Exchange Commission, indemnification for liabilities arising under the Securities Act of 1933 is contrary to public policy and, therefore, unenforceable. ITEM 8. EXHIBITS. See Exhibit Index appearing at page 6 of this Registration Statement. 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 Securities Act of 1933, each 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 Act 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 Secuities Act of 1933 may be permitted to directors, officers and con- trolling persons of the registrant pursuant to the provisions described under Item 6 above, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnifi- cation is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or con- trolling 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 approp- riate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of suchissue. 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 Santa Clara, State of California, on February 9, 2001. HYPERBARIC SYSTEMS By: /s/ Harry Masuda ------------ Harry Masuda Chief Executive Officer POWER OF ATTORNEY Each director and/or officer of the Registrant whose signature appears below hereby appoints Harry Masuda as his attorney-in-fact, to sign in his name and behalf, in any and all capacities stated below, and to file with the Commission any and all amendments, including post-effective amendments, to this registration statement, and the Registrant hereby also appoints such person as its attorney-in-fact with like authority to sign and file any such amendments in its name and behalf. 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. SIGNATURE TITLE DATE /s/ Harry Masuda Chief Executive Officer February 9, 2001 ------------ Harry Masuda President Chief Financial Officer Director /s/ Paul Okimoto Chairman of the Board February 9, 2001 ------------ Paul Okimoto /s/ George Tsukuda Director February 9, 2001 -------------- George Tsukuda EXHIBIT INDEX Exhibit Number Description of Exhibit 4.1 Warrant to Purchase 700,000 Shares of Common Stock of Registrant, Issued to Heartbeat of America, Inc. 4.2 Warrant to Purchase 35,000 Shares of Common Stock of Registrant, Issued to Michael Shippee 4.3 Warrant to Purchase 35,000 Shares of Common Stock of Registrant, Issued to Richard Strutz 4.4 Warrant to Purchase 35,000 Shares of Common Stock of Registrant, Issued to William Shatner 4.5 Consultant Agreement between Registrant and Gary Cella 4.6 Financial Consulting Agreement between Registrant and M. Blaine Riley 4.7 Financial Consulting Agreement between Registrant and Randall Letcavage 4.8 Financial Consulting Agreement between Registrant and Rosemary Nguyen 5.1 Opinion of Silicon Valley Law Group 23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1) 23.2 Consent of BDO Seidman, LLP 24.1 Power of Attorney (see page 5). EX-4.1 2 0002.txt WARRANT TO PURCHASE 700,000 SHARES OF COMMON STOCK OF REGISTRANT, ISSUED TO HEARTBEAT OF AMERICA, INC. THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH SALE OR TRANSFER, OR IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, SUCH REGISTRATION IS UNNECESSARY, OR AN EXCEPTION THEREFROM IS AVAILABLE UNDER THE ACT. HYPERBARIC SYSTEMS WARRANT TO PURCHASE SHARES OF COMMON STOCK Void after 5:00 p.m. Pacific Coast Time on January 2, 2010 FOR VALUE RECEIVED, Heartbeat of America, Inc., (the "Warrant Holder" is entitled to subscribe for and purchase, subject to the terms and conditions set forth in this Warrant, up to Seven Hundred Thousand (700,000) shares, of which Thirty-Five Thousand shares to be issued to each William Shatner set forth in Exhibit A, Richard Strutz set forth in Exhibit B, and Michael Shippee set forth in Exhibit C, of Common Stock ("Stock") of HYPERBARIC SYSTEMS, a California corporation (the "Company"). The exercise price of this warrant (the "Exercise Price") and purchase price of the Stock shall be One Dollar and Fifty Cents ($1.50) per share. The value of this Warant, as of the date of its issuance, as indicated herein, shall be One Cent ($0.01). 1. Conditions To Exercise This Warrant. Subject to the provi- sion and upon the terms and conditions set forth in that certain Promotion Agreement and herein, this Warrant may be exercised in whole, or in part, at any time prior to January 2, 2010. The Warrant shall be exercisable in accordance with the following schedule: (i) the Warrant shall be exercisable for Two Hundred Thousand (200,000) shares, including Thirty-Five Thousand (35,000) shares to William Shatner, upon execution and delivery of the Promotion Agreement; (ii) the Warrant shall be exercisable for One Hundred Fifty Thousand (10,000) shares upon completion of the studio shoot as set forth in the Promotion Agreement; (iii) the Warrant shall be exercisable for One Hundred Fifty Thousand (150,000) shares upon the airing of the Show defined in Section 1 of the Promotion Agreement; and (iv) the Warrant shall be exercisable for Two Hundred Thousand (200,000) shares upon the fufill- ment of Heartbeat's obligations set forth in Section 5 of the Promotion Agreement. The Warrant shall expire and be void on and after 5:00 p.m., Pacific Coast Time on January 2, 2010 (the "Warrant Termination Date"). In no event may this Warrant be exercised after the Warrant Termination Date. 2. Transfer of Warrant. Subject to compliance with appli- cable ederal and state securities laws and Section 7, this Warrant and all rights (but only with all related obligations) hereunder are trans- ferable in whole or in party by the Warrant Holder upon the prior written consent of the Company. The transfer shall be recorded on the books of the Company upon (i) the surrender of this Warrant, properly endorsed, to the Company at its principal offices, (ii) the payment to the Company of all transfer taxes and other governmental charges imposed on such transfer and (iii) such transferee's (the "Regstered Holder") agreement in writing to be bound by and subject to the terms and conditions of this Warrant. In the event of a partial transfer, the Company shall issue to the Warrant Holder one or more appropriate new warrants. 3. Method of Exercise; Payment; Issuance of New Warrant. The purchase right represented by this Warrant may only be exercised by the Registered Holder hereof in accordance with Section 1, in whole or in part, by the surrender of this Warrant (with the notice of exercise provision contained on the last page hereof duly executed) at the principal office of the Company, and by the payment to the Company, by check, cancellation of indebtedness, or both, of an amount equal to the Exercise Price per share multiplied by the number of shares then being purchased. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of Stock so purchased shall be delivered to the Registered Holder hereof as soon as practicable. Such exercise shall be deemed to have been made immediately prior to the close of business on the date of surrender of this Warrant. 4. Stock Fully Paid; Reservation of Shares. All shares of Stock which may be issued upon the exercise of this Warrant will, upon issunce, be duly authorized and validly issued, and fully paid and no nassessable, and free from all taxes, liens, and charges with respect to the issue thereof. During the period within which the rights repre- sented by this Warrant may be exercised, the Company will use its best efforts to cause to be authorized, and thereafter at all times have authorized, and reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this Warrant, a sufficient number of shares of its Stock to provide for the exercise of the rights represented by this Warrant. 5. Reclassification of Stock. In the event of the reclassifi- cation of the Stock, the Company agrees that the Warrant Holder will be entitled to the same rights to acquire such reclassified Stock ("New Stock") as those rights granted hereby, as the Warrant Holder shall have to purchase the Stock stated herein. All of the terms and conditions of this Warrant shall apply equally to the purchase or acquisition of any New Stock. 6. Fractional Shares. No fractional shares of Stock will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor equal to the product of such fraction and the Exercise Price. 7. Compliance with Securities Laws; Disposition of Warrant and Shares of Common Stock. (a) Compliance With Securities Laws. The holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and the shares of Stock to be issued upon exercise hereof are being acquired for investment purposes only and that such Holder will not offer, sell or otherwise dispose of this Warrant or any shares of Stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended (the "Act"), or any state securities laws. Upon exercise of this Warrant, the holder hereof shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of Stock so purchased are being acquired for investment purposes only and not with a view toward distribution or resale. This Warrant and all shares of Stock issued upon exercise of this Warrant shall be stamped or imprinted with a legend in substantially the following form (in addition to any legend required by state securities laws): THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH SALE OR TRANSFER, OR IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, SUCH REGISTRATION IS UNNECESSARY, OR AN EXCEPTION THEREFROM IS AVAILABLE UNDER THE ACT. (b) Transfer of Warrant or Shares of Stock. Each certificate representing the shares of Stock issued hereunder shall be ar alegend as to the restrictions on transferability in order to insure compliance with applicable securities laws unless, in the opinion of counsel for the Company, such legends are not required. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions. 8. Rights of Shareholders. This Warrant shall not entitle the Holder to be deemed the holder of stock or any other securities of the Compny which may be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the holder of this Warrant, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapital- ization, issuance of stock, reclassification of stock, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the Warrant shall have been exercised and the certificates representing the Shares purchasable upon the exercise hereof shall have been issued, as provided herein. 9. Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company and the Warrant Holder and their respective successors and assigns. 10. Survival. The warranties, representations and covenants contained in or made pursuant to this Warrant shall survive the execution, delivery and exercise, if any, of this Warrant. IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be executed by an officer thereunto duly authorized as of the day and date first above written. HyperBaric Systems By: /s/ Ardeth N. Sealy --------------- Ardeth N. Sealy Secretary Heartbeat of America, Inc. By: /s/ Bert Tenzer ----------- Bert Tenzer President NOTICE OF EXERCISE TO: HYPERBARIC SYSTEMS 1. The undersigned hereby elects to purchase ___________ (________) shares of Common Stock of HYPERBARIC SYSTEMS (the "Company") pursuant to the terms of the foregoing Warrant, and tenders herewith payment of the purchase price for such shares in full, together with all applicable transfer taxes, if any. 2. Please issue a certificate or certificates representing such securities in the name of the undersigned or in such other name as is specified below: Name: ___________________________ Address: ___________________________ ___________________________ 3. The undersigned represents that the shares of Stock set forth above are being acquired for the account of the undersigned for invetment purposes only and not with a view to, or for resale in connec- tion with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares. In support thereof, the undersigned agrees to execute an investment representation statement in a form reasonably requested by the Company as a condition to the exercise herein noticed. Name: ______________________________ Address: ______________________________ ______________________________ Date: ______________________________ EX-4.2 3 0003.txt WARRANT TO PURCHASE 35,000 SHARES OF COMMON STOCK OF REGISTRANT, ISSUED TO MICHAEL SHIPPEE THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH SALE OR TRANSFER, OR IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, SUCH REGISTRATION IS UNNECESSARY, OR AN EXCEPTION THEREFROM IS AVAILABLE UNDER THE ACT. HYPERBARIC SYSTEMS WARRANT TO PURCHASE SHARES OF COMMON STOCK Void after 5:00 p.m. Pacific Coast Time on February 15, 2010 FOR VALUE RECEIVED, Michael Shippee (the "Warrant Holder") is entitled to subscribe for and purchase, subject to the terms and conditions set forth in this Warrant, up to Thirty-Five Thousand (35,000) shares of Common Stock ("Stock") of HYPERBARIC SYSTEMS, a California corporation (the "Company"). The exercise price of this warrant (the "Exercise Price") and purchase price of the Stock shall be One Dollar and Fifty Cents ($1.50) per share. The value of this Warrant, as of the date of its issuance, as indicated herein, shall be One Cent ($0.01). 1. Conditions To Exercise This Warrant. Subject to the provisions and upon the terms and conditions set forth in that certain Prmotion Agreement and herein, this Warrant may be exercised in whole, or in part, at any time prior to February 15, 2010. The Warrant shall expire and be void on and after 5:00 p.m., Pacific Coast Time on February 15, 2010 (the "Warrant Termination Date"). In no event may this Warrant be exercised after the Warrant Termination Date. 2. Method of Exercise; Payment; Issuance of New Warrant. The purchase right represented by this Warrant may only be exercised by the Registered Holder hereof in accordance with Section 1, in whole or in part, by the surrender of this Warrant (with the notice of exercise provision contained on the last page hereof duly executed) at the principal office of the Company, and by the payment to the Company, by check, cancellation of indebtedness, or both, of an amount equal to the Exercise Price per share multiplied by the number of shares then being purchased. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of Stock so purchased shall be delivered to the Registered Holder hereof as soon as practicable. Such exercise shall be deemed to have been made immediately prior to the close of business on the date of surrender of this Warrant. 3. Stock Fully Paid; Reservation of Shares. All shares of Stock which may be issued upon the exercise of this Warrant will, upon ssuance, be duly authorized and validly issued, and fully paid and nonassessable, and free from all taxes, liens, and charges with respect to the issue thereof. During the period within which the rights represented by this Warrant may be exercised, the Company will use its best efforts to cause to be authorized, and thereafter at all times have authorized, and reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this Warrant, a sufficient number of shares of its Stock to provide for the exercise of the rights represented by this Warrant. 4. Reclassification of Stock. In the event of the reclass- ification of the Stock, the Company agrees that the Warrant Holder will be entitled to the same rights to acquire such reclassified Stock ("New Stock") as those rights granted hereby, as the Warrant Holder shall have to purchase the Stock stated herein. All of the terms and conditions of this Warrant shall apply equally to the purchase or acquisition of any New Stock. 5. Fractional Shares. No fractional shares of Stock will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefore equal to the product of such fraction and the Exercise Price. 6. Compliance with Securities Laws; Disposition of Warrant and Shares of Common Stock. (a) Compliance With Securities Laws. The holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and the shares of Stock to be issued upon exercise hereof are being acquired for investment purposes only and that such Holder will not offer, sell or otherwise dispose of this Warrant or any shares of Stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended (the "Act"), or any state securities laws. Upon exercise of this Warrant, the holder hereof shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of Stock so purchased are being acquired for investment purposes only and not with a view toward distribution or resale. This Warrant and all shares of Stock issued upon exercise of this Warrant shall be stamped or imprinted with a legend in substantially the following form (in addition to any legend required by state securities laws): THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH SALE OR TRANSFER, OR IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, SUCH REGISTRATION IS UNNECESSARY, OR AN EXCEPTION THEREFROM IS AVAILABLE UNDER THE ACT. (b) Transfer of Warrant or Shares of Stock. Each certificate representing the shares of Stock issued hereunder shall bear a legend as to the restrictions on transferability in order to insure compliance with applicable securities laws unless, in the opinion of counsel for the Company, such legends are not required. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions. 7. Rights of Shareholders. This Warrant shall not entitle the Holder to be deemed the holder of stock or any other securities of the Company which may be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the holder of this Warrant, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the Warrant shall have been exercised and the certificates representing the Shares purchasable upon the exercise hereof shall have been issued, as provided herein. 8. Successors and Assigns. The terms and provisions of this Warrant shall insure to the benefit of, and be binding upon, the Company and the Warrant Holder and their respective successors and assigns. 9. Survival. The warranties, representations and covenants contained in or made pursuant to this Warrant shall survive the execution, delivery and exercise, if any, of this Warrant. IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be executed by an officer thereunto duly authorized as of the day and date first above written. HyperBaric Systems By: /s/ Ardeth N. Sealy --------------- Ardeth N. Sealy Secretary By: /s/ Michael Shippee --------------- Michael Shippee EX-4.3 4 0004.txt WARRANT TO PURCHASE 35,000 SHARES OF COMMON STOCK OF REGISTRANT, ISSUED TO RICHARD STRUTZ THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH SALE OR TRANSFER, OR IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, SUCH REGISTRATION IS UNNECESSARY, OR AN EXCEPTION THEREFROM IS AVAILABLE UNDER THE ACT. HYPERBARIC SYSTEMS WARRANT TO PURCHASE SHARES OF COMMON STOCK Void after 5:00 p.m. Pacific Coast Time on February 15, 2010 FOR VALUE RECEIVED, Richard Strutz (the "Warrant Holder") is entitled to subscribe for and purchase, subject to the terms and conditions set forth in this Warrant, up to Thirty-Five Thousand (35,000) shares of Common Stock ("Stock") of HYPERBARIC SYSTEMS, a California corporation (the "Company"). The exercise price of this warrant (the "Exercise Price") and purchase price of the Stock shall be One Dollar and Fifty Cents ($1.50) per share. The value of this Warrant, as of the date of its issuance, as indicated herein, shall be One Cent ($0.01). 1. Conditions To Exercise This Warrant. Subject to the provisions and upon the terms and conditions set forth in that certain Promotion Agreement and herein, this Warrant may be exercised in whole, or in part, at any time prior to February 15, 2010. The Warrant shall expire and be void on and after 5:00 p.m., Pacific Coast Time on February 15, 2010 (the "Warrant Termination Date"). In no event may this Warrant be exercised after the Warrant Termination Date. 2. Method of Exercise; Payment; Issuance of New Warrant. The purchase right represented by this Warrant may only be exercised by the Registered Holder hereof in accordance with Section 1, in whole or in part, by the surrender of this Warrant (with the notice of exercise provision contained on the last page hereof duly executed) at the principal office of the Company, and by the payment to the Company, by check, cancellation of indebtedness, or both, of an amount equal to the Exercise Price per share multiplied by the number of shares then being purchased. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of Stock so purchased shall be delivered to the Registered Holder hereof as soon as practicable. Such exercise shall be deemed to have been made immediately prior to the close of business on the date of surrender of this Warrant. 3. Stock Fully Paid; Reservation of Shares. All shares of Stock hich may be issued upon the exercise of this Warrant will, upon issuance, be duly authorized and validly issued, and fully paid and nonassessable, and free from all taxes, liens, and charges with respect to the issue thereof. During the period within which the rights represented by this Warrant may be exercised, the Company will use its best efforts to cause to be authorized, and thereafter at all times have authorized, and reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this Warrant a sufficient number of shares of its Stock to provide for the exercise of the rights represented by this Warrant. 4. Reclassification of Stock. In the event of the reclassifi- cation of the Stock, the Company agrees that the Warrant Holder will be entitled to the same rights to acquire such reclassified Stock ("New Stock") as those rights granted hereby, as the Warrant Holder shall have to purchase the Stock stated herein. All of the terms and conditions of this Warrant shall apply equally to the purchase or acquisition of any New Stock. 5. Fractional Shares. No fractional shares of Stock will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefor equal to the product of such fraction and the Exercise Price. 6. Compliance with Securities Laws; Disposition of Warrant and Shares of Common Stock. (a) Compliance With Securities Laws. The holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and the shares of Stock to be issued upon exercise hereof are being acquired for investment purposes only and that such Holder will not offer, sell or otherwise dispose of this Warrant or any shares of Stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended (the "Act"), or any state securities laws. Upon exercise of this Warrant, the holder hereof shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of Stock so purchased are being acquired for investment purposes only and not with a view toward distribution or resale. This Warrant and all shares of Stock issued upon exercise of this Warrant shall be stamped or imprinted with a legend in substantially the following form (in addition to any legend required by state securities laws): THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH SALE OR TRANSFER, OR IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, SUCH REGISTRATION IS UNNECESSARY, OR AN EXCEPTION THEREFROM IS AVAILABLE UNDER THE ACT. (b) Transfer of Warrant or Shares of Stock. Each certificate representing the shares of Stock issued hereunder shall bear a legend as to the restrictions on transferability in order to insure compliance with applicable securities laws unless, in the opinion of counsel for the Company, such legends are not required. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions. 7. Rights of Shareholders. This Warrant shall not entitle the Holder to be deemed the holder of stock or any other securities of the Company which may be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the holder of this Warrant, as such, any of the rights of a shareholder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings or to receive dividends or subscription rights or otherwise until the Warrant shall have been exercised and the certificates representing the Shares purchasable upon the exercise hereof shall have been issued, as provided herein. 8. Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company and the Warrant Holder and their respective successors and assigns. 9. Survival. The warranties, representations and covenants contained in or made pursuant to this Warrant shall survive the execution, delivery and exercise, if any, of this Warrant. IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be executed by an officer thereunto duly authorized as of the day and date first above written. HyperBaric Systems By: /s/ Ardeth N. Sealy --------------- Ardeth N. Sealy Secretary By: /s/ Richard Strutz -------------- Richard Strutz NOTICE OF EXERCISE TO: HYPERBARIC SYSTEMS 1. The undersigned hereby elects to purchase __________ (________) shares of Common Stock of HYPERBARIC SYSTEMS (the "Company") pursuant to the terms of the foregoing Warrant, and tenders herewith payment of the purchase price for such shares in full, together with all applicable transfer taxes, if any. 2. Please issue a certificate or certificates representing such securities in the name of the undersigned or in such other name as is specified below: Name: ___________________________ Address: ___________________________ ___________________________ 3. The undersigned represents that the shares of Stock set forth above are being acquired for the account of the undersigned for investment purposes only ad not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares. In support thereof, the undersigned agrees to execute an investment representation statement in a form reasonably requested by the Company as a condition to the exercise herein noticed. Name: ______________________________ Title: ______________________________ Address: ______________________________ ______________________________ Date: ______________________________ EX-4.4 5 0005.txt WARRANT TO PURCHASE 35,000 SHARES OF COMMON STOCK OF REGISTRANT, ISSUED TO WILLIAM SHATNER THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH SALE OR TRANSFER, OR IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, SUCH REGISTRATION IS UNNECESSARY, OR AN EXCEPTION THEREFROM IS AVAILABLE UNDER THE ACT. HYPERBARIC SYSTEMS WARRANT TO PURCHASE SHARES OF COMMON STOCK Void after 5:00 p.m. Pacific Coast Time on February 15, 2010 FOR VALUE RECEIVED, William Shatner (the "Warrant Holder") is entitled to subscribe for and purchase, subject to the terms and conditions set forth in this Warrant, up to Thirty-Five Thousand (35,000) shares of Common Stock ("Stock") of HYPERBARIC SYSTEMS, a California corporation (the "Company"). The exercise price of this warrant (the "Exercise Price") and purchase price of the Stock shall be One Dollar and Fifty Cents ($1.50) per share. The value of this Warrant, as of the date of its issuance, as indicated herein, shall be One Cent ($0.01). 1. Conditions To Exercise This Warrant. Subject to the provisions and upon the terms and conditions set forth in that certain Promotion Agreement and herein, this Warrant may be exercised in whole, or in part, at any time prior to February 15, 2010. The Warrant shall expire and be void on and after 5:00 p.m., Pacific Coast Time on February 15, 2010 (the "Warrant Termination Date"). In no event may this Warrant be exercised after the Warrant Termination Date. 2. Method of Exercise; Payment; Issuance of New Warrant. The purchase right represented by this Warrant may only be exercised by the Registered Holder hereof in accordance with Section 1, in whole or in part, by the surrender of this Warrant (with the notice of exercise provision contained on the last page hereof duly executed) at the principal office of the Company, and by the payment to the Company, by check, cancellation of indebtedness, or both, of an amount equal to the Exercise Price per share multiplied by the number of shares then being purchased. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of Stock so purchased shall be delivered to the Registered Holder hereof as soon as practicable. Such exercise shall be deemed to have been made immediately prior to the close of business on the date of surrender of this Warrant. 3. Stock Fully Paid; Reservation of Shares. All shares of Stock which may be issued upon the exercise of this Warrant will, upon issuance, be duly authorized and validly issued, and fully paid and nonassessable, and free from all taxes, liens, and charges with respect to the issue thereof. During the period within which the rights represented by this Warrant may be exercised, the Company will use its best efforts to cause to be authorized, and thereafter at all times have authorized, and reserved for the purpose of the issue upon exercise of the purchase rights evidenced by this Warrant, a sufficient number of shares of its Stock to provide for the exercise of the rights represented by this Warrant. 4. Reclassification of Stock. In the event of the reclassi- fication of the Stock, the Company agrees that the Warrant Holder will be entitled to the same rights to acquire such reclassified Stock ("New Stock") as those rights granted hereby, as the Warrant Holder shall have to purchase the Stock stated herein. All of the terms and conditions of this Warrant shall apply equally to the purchase or acquisition of any New Stock. 5. Fractional Shares. No fractional shares of Stock will be issued in connection with any exercise hereunder, but in lieu of such fractional shares the Company shall make a cash payment therefore equal to the product of such fraction and the Exercise Price. 6. Compliance with Securities Laws; Disposition of Warrant and Shares of Common Stock. (a) Compliance With Securities Laws. The holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and the shares of Stock to be issued upon exercise hereof are being acquired for investment purposes only and that such Holder will not offer, sell or otherwise dispose of this Warrant or any shares of Stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended (the "Act"), or any state securities laws. Upon exercise of this Warrant, the holder hereof shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of Stock so purchased are being acquired for investment purposes only and not with a view toward distribution or resale. This Warrant and all shares of Stock issued upon exercise of this Warrant shall be stamped or imprinted with a legend in substantially the following form (in addition to any legend required by state securities laws): THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER MAY NOT BE SOLD OR TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH SALE OR TRANSFER, OR IN THE OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY, SUCH REGISTRATION IS UNNECESSARY, OR AN EXCEPTION THEREFROM IS AVAILABLE UNDER THE ACT. (b) Transfer of Warrant or Shares of Stock. Each certificate representing the shares of Stock issued hereunder shall bear alegend as to the restrictions on transferability in order to insure compliance with applicable securities laws unless, in the opinion of counsel for the Company, such legends are not required. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions. 7. Rights of Shareholders. This Warrant shall not entitle the Holder to be deemed the holder of stock or any other securities of the Company which may be issuable on the exercise hereof for any purpose, nor shall anything contained herein be construed to confer upon the holder of this Warrant, as such, any of the rights of a share- holder of the Company or any right to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of stock, reclassification of stock, consolidation, merger, conveyance, or otherwise) or to receive notice of meetings, or to receive dividends or subscription rights or otherwise until the Warrant shall have been exercised and the certifi- cates representing the Shares purchasable upon the exercise hereof shall have been issued, as provided herein. 8. Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company and the Warrant Holder and their respective successors and assigns. 9. Survival. The warranties, representations and covenants contained in or made pursuant to this Warrant shall survive the execution, delivery and exercise, if any, of this Warrant. IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be executed by an officer thereunto duly authorized as of the day and date first above written. HyperBaric Systems By: /s/ Harry Masuda ------------ Harry Masuda President By: /s/ William Shatner --------------- William Shatner NOTICE OF EXERCISE TO: HYPERBARIC SYSTEMS 1. The undersigned hereby elects to purchase _______________ (________) shares of Common Stock of HYPERBARIC SYSTEMS (the "Company") pursuant to the terms of the foregoing Warrant, and tenders herewith payment of the purchase price for such shares in full, together with all applicable transfer taxes, if any. 2. Please issue a certificate or certificates representing such securities in the name of the undersigned or in such other name as is specified below: Name: ___________________________ Address: ___________________________ ___________________________ 3. The undersigned represents that the shares of Stock set forth above are being acquired for the account of the undersigned for investment purposes only and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares. In support thereof, the undersigned agrees to execute an investment representation statement in a form reasonably requested by the Company as a condition to the exercise herein noticed. Name: _____________________________ Title: _____________________________ Address: _____________________________ _____________________________ Date: _____________________________ NOTICE OF EXERCISE TO: HYPERBARIC SYSTEMS 1. The undersigned hereby elects to purchase ____________ (________) shares of Common Stock of HYPERBARIC SYSTEMS (the "Company") pursuant to the terms of the foregoing Warrant, and tenders herewith payment of the purchase price for such shares in full, together with all applicable transfer taxes, if any. 2. Please issue a certificate or certificates representing such securities in the name of the undersigned or in such other name as is specified below: Name: ___________________________ Address: ___________________________ ___________________________ 3. The undersigned represents that the shares of Stock set forth above are being acquired for the account of the undersigned for investment purposes only and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares. In support thereof, the undersigned agrees to execute an investment representation statement in a form reasonably requested by the Company as a condition to the exercise herein noticed. Name: ______________________________ Title: ______________________________ Address: ______________________________ ______________________________ Date: ______________________________ EX-4.5 6 0006.txt CONSULTANT AGREEMENT BETWEEN REGISTRANT AND GARY CELLA CONSULTANT AGREEMENT THIS AGREEMENT is made effective on December 14, 2000 between HYPERBARIC SYSTEMS, whose address is 1127 Harker Avenue, Palo Alto, CA 94301, incorporated under the laws of the State of California, hereinafter called "COMPANY", and Gary Cella, whose address is 5 Ridge Road, Coscob, CT hereinafter called "CONSULTANT". WITNESSETH: 1. PURPOSE OF AGREEMENT. HYPERBARIC SYSTEMS is a duly established California corporation engaged in the business of designing, manufacturing and marketing products for the medical, food and semiconductor industries, and CONSULTANT represents that he has expertise in the area of busniess relationships, strategic alliances, and marketing planning. This agreement between COMPANY and CONSULTANT is entered into for the purpose of defining the relationship, responsibilities, and agreement between COMPANY and CONSULTANT. 2. CONSULTANT : COMPANY hereby appoints Gary Cella to provide consultation on strategic business partners, market planning and general business strategy for COMPANY. 3. CONSULTANT DUTIES AND RESPONSIBILITIES: CONSULTANT shall be engaged as a Consultant with the following tasks: a. Provide strategic business partnering introductions and advice. b. Provide product and business planning advice. c. Provide marketing direction and introductions as required. 4. CONSULTANT'S PERFORMANCE.. CONSULTANT agrees to devote a reasonable amount of time to meet the objectives outlined in Paragraph 3 above and to perform the assigned duties and responsibili- ties during the agreement period. The Company acknowledges that Consultant is not an employee of the Company. 5. TERM. The term of this Agreement shall be effective for a period of six months days from the date of this Agreement unless terminated earlier by fulfillment of the services to be provided. This agreement may be extended upon the mutual consent of both parties. 6. STOCK GRANT. For the purpose of compensating CONSULTANT, COMPANY shall grant 50,000 shares of common stock valued at $0.53 per share for services performed. The shares shall be registered under the S-8 provision of the SEC regulations by COMPANY. 7. TERMINATION UPON BREACH. This Agreement shall be terminated upon material breach of any of the provisions herein, or breach of the material provisions of any and all supplemental agreements which the CONSULTANT and COMPANY may mutually execute. 8. CONFIDENTIALITY AGREEMENT. CONSULTANT agrees that all information made available to CONSULTANT regarding the products, clients and software systems of COMPANY are confidential and require a high degree of confidentiality so as not to violate the rights of others and to prevent the use thereof for purposes detrimental to the interests of COMPANY and its clients. Such information in any form shall be hereinafter referred to as "INFORMATION." For purposes of this Agreement: a. CONFIDENTIAL INFORMATION means INFORMATION disclosed to or acquired by CONSULTANT while employed by COMPANY, and includes but is not limited to, INVENTIONS, Patent Applications, TRADE SECRETS, any other information of value relating to the business and/or field of interest of COMPANY including information with respect to which COMPANY is under an obligation of confidentiality with any third party. CONFIDENTIAL INFORMATION does not include information that is generally known in the relevant trade or industry or any information known to and freely usable by CONSULTANT before CONSULTANT?S association with COMPANY, provided, however, information for purposes of this Agreement shall be considered CONFIDENTIAL INFORMATION if not known by the trade generally, even though such information has been disclosed to one or more third parties pursuant to distribution agreements, joint research agreements, or other agreements entered into by COMPANY; b. TRADE SECRET(S) means all information, know-how, concepts, data, knowledge, ideas and materials however embodied, relating to the business of COMPANY'S customers which have not been released publicly by an authorized representative of COMPANY or have not otherwise lawfully entered the public domain. TRADE SECRETS shall include but are not limited to information, know-how, concepts, data, knowledge, computer programs, ideas and materials relating to COMPANY'S existing and future products, processes, research and development, technology, production costs, contract forms, drawings, designs, plans, proposals, marketing and sales plans and strategies, cost or pricing information, financial information, promotional methods, volume of sales, names or classes of customers and vendors, management procedures, organization charts, and CONSULTANT directories. 9. PROPRIETARY INFORMATION OF OTHERS. CONSULTANT shall not use or disclose to COMPANY, or induce COMPANY to use, any information, know-how, concepts, data, knowledge, computer programs, ideas or materials, however embodied, with respect to which CONSULTANT is under an obligation of confidentiality to any third party imposed,by law or agreement prior to the date hereof. COMPANY represents andcovenants that it will not require CONSULTANT to violate any obligation to, or confidence with, another. 10. SECRECY AGREEMENT. CONSULTANT acknowledges that he understands the requirement for CONFIDENTIAL INFORMATION to be kept secret and used only as authorized herein. CONSULTANT shall at all times during the period of his association with COMPANY under this agreement and thereafter keep in confidence and trust all CONFIDENTIAL INFORMATION. CONSULTANT shall use CONFIDENTIAL INFORMATION only in the course of performing duties as Consultant and Advisory Board Member for the Company and other duties as assigned by the Company President, and not for unrelated personal gain. CONSULTANT shall not, directly or indirectly, disclose any CONFIDENTIAL INFORMATION to any person, organization or entity, except in the course of performing duties as a CONSULTANT of COMPANY and only in the manner prescribed by COMPANY. CONSULTANT shall abide by those COMPANY policies and regulations established from time to time for the protection of CONFIDENTIAL INFORMATION. During CONSULTANT'S association with COMPANY under this Agreement, and after termination thereof, CONSULTANT shall not directly, or indirectly, either as an CONSULTANT, COMPANY, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage or participate in any activity of any nature whatsoever, the performance of which would have a reasonable likelihood of placing CONSULTANT in conflict with the obligations of confidence and trust regarding CONFIDENTIAL INFORMATION imposed herein. 11. RETURN OF DOCUMENTS AND MATERIALS. CONSULTANT agrees that all documents, reports, drawings, materials, designs, plans, cmputer programs, proposals, marketing and sales plans, reproductions, and other documents or things made by CONSULTANT or that come into CONSULTANT'S possession in the course of employment with COMPANY are the property of COMPANY and will not be used by CONSULTANT for any purpose other than the business of COMPANY. CONSULTANT will not deliver, reproduce or in any way allow such documents or things to be delivered or be used by any third parties without specific direction or consent of COMPANY. Upon termination of this Agreement, CONSULTANT will promptly deliver to COMPANY the above documents ad materials together with any copies thereof. 12. NO DISCLOSURE. CONSULTANT agrees not to divulge, disclose, convey or make known to others or any other entity, any such information without the express written consent of the President of HyperBaric Systems first obtained. CONSULTANT further agrees to take all necessary steps to safeguard such information to prevent the unauthorized disclosure thereof. 13. INJUNCTION. Recognizing that irreparable damage will result to the business of COMPANY in the event of the breach of any of these covenants and assurances by CONSULTANT, the parties hereto agree that if CONSULTANT shall violate the terms of this Agreement, COMPANY shall be entitled to an injunction to be issued by any court of competent jurisdiction enjoining and restraining CONSULTANT and each and every person, firm, association, partnership, company, or corporation concerned therewith, from the continuance of such violation of the terms of this Agreement, and in addition thereto, CONSULTANT shall pay to COMPANY all damages, including reasonable attorneys' fees sustained by COMPANY by reason of the violation of this Agreement. 14. NO ASSIGNMENT. Neither the CONSULTANT nor COMPANY may transfer or assign this Agreement, or any right or obligation hereunder, without the prior written consent of the other party. No right or obligation under this Agreement may be waived, modified, or in any respect altered except by written agreement of the parties executed in writing by both parties. 15. SUCCESSORS AND ASSIGNS. This agreement shall be binding on the heirs, executors, successors and assigns of the parties. 16. ATTORNEYS FEES. If any action is brought to enforce any obligation created under this Agreement, the Court shall award to the prevailing party, such reasonable fees, costs, and expenses as may have been incurred by such party in enforcing its rights under this Agreement, including without limitation, the fees, costs, and expenses of its attorney for services both before or after litigation is instituted. 17. ENTIRE AGREEMENT. This Agreement may not be changed except in writing signed by the President of the Company and the CONSULTANT. The validity, performance, construction, and effect of this Agreement shall be governed by the laws of the State of California IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. "COMPANY" "CONSULTANT" HYPERBARIC SYSTEMS Gary Cella 1127 Harker Avenue 5 Ridge Road Palo Alto, California 94301 Coscob, CT 06807 By: /s/ HARRY MASUDA By: /s/ GARY CELLA ------------ ---------- HARRY MASUDA GARY CELLA PRESIDENT CONSULTANT EX-4.6 7 0007.txt FINANCIAL CONSULTING AGREEMENT BETWEEN REGISTRANT AND M. BLAINE RILEY FINANCIAL CONSULTING SERVICES AGREEMENT This Financial Consulting Services Agreement (the "Agreement") is entered this 24th day of January, 2001 by and between M. Blaine Riley, Randall Letcavage and Rosemary Nguyen ("Consultants"), individual's, and Hyperbaric Systems (OTC BB:HYRB) ("Client"), a California corporation, with reference to the following: RECITALS A. The Client desires to be assured of the association and services of the Consultants in order to avail itself of the Consultants experience, skills, abilities, knowledge, and back- ground to facilitate long range strategic planning, and to advise the Client in business and/or financial matters and is therefore willing to engage the Consultants upon the terms and conditions set forth herein. B. The Consultants agree to be engaged and retained by the Client and upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Engagement. Client hereby engages Consultants on a non-exclusive basis, and Consultants hereby accepts the engagement to become a financial Consultants to the Client and to render such advice, consultation, information, and services to the Directors and/or Officers of the Client regarding general financial and business matters including, but not limited to: A. Due diligence studies, reorganizations, divestitures; B. Capital structures, banking methods and systems; C. Periodic reporting as to developments concerning the general financial markets and public securities markets and industry which may be relevant or of interest or concern to the Client or the Client's business; D. Guidance and assistance in available alternatives for accounts receivable financing and other asset financing. It shall be expressly understood that Consultants shall have no power to bind Client to any contract or obligation or to transact any business in Client's name or on behalf of Client in any manner. 2. Term. The term ("Term") of this Agreement shall commence on the date hereof and continue for twelve (12) months. The Agreement may be extended upon agreement by both parties, unless or until the Agreement is terminated. Either party may cancel this Agreement upon five days written notice in the event either party violates any material provision of this Agreement and fails to cure such violation within five (5) days of written notification of such violation from the other party. Such cancellation shall not excuse the breach or non-performance by the other party or relieve the breaching party of its obligation incurred prior to the date of cancellation. 3. Compensation and Fees. As consideration for Consultants entering into this Agreement, Client and Consultants shall agree to the following: A. Client shall issue certificates representing an aggregate of five hundred ten thousand (510,000) shares of free trading common stock (the "Shares"), registered under S-8. B. The Certificates shall be issued to the Consultants in the following manner: M. Blaine Riley will receive one hundred seventy thousand (170,000) shares. Randall Letcavage will receive one hundred seventy thousand (170,000) shares. Rosemary Nguyen will receive one hundred seventy thousand (170,000) shares. The Shares, when issued to Consultants, will be duly authorized, validly issued and outstanding, fully paid and nonassessable and will not be subject to any liens or encumbrances. Securities shall be issued to Consultants in accordance with a mutually acceptable plan of issuance as to relieve securities or Consultants from restrictions upon transferability of shares in compliance with applicable registration provisions or exemptions. 4. Exclusivity; Performance; Confidentiality. The services of Cnsultants hereunder shall not be exclusive, and Consultants and their agents may perform similar or different services for other persons or entities whether or not they are competitors of Client. Consultants shall be required to expend only such time as is necessary to service Client in a commercially reasonable manner. Consultants acknowledge and agree that confidential and valuable information proprietary to Client and obtained during its engagement by the Client, shall not be, directly or indirectly, disclosed without the prior express writen consent of the Client, unless and until such information is otherwise known to the public generally or is not otherwise secret and confidential. 5. Independent Contractor. In its performance hereunder, Consultants and their agents shall be an independent contractor. Consultants shall complete the services required hereunder according to his own means and methods of work, shall be in the exclusive charge and control of Consultants and which shall not be subject to the control or supervision of Client, except as to the results of the work. Client acknowledges that nothing in this Agreement shall be construed to require Consultants to provide services to Client at any specific time, or in any specific place or manner. Payments to Consultants hereunder shall not be subject to withholding taxes or other employment taxes as required with respect to compensation paid to an employee. 6. Arbitration and Fees. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, may be resolved by mutual agreement; or if not, shall be settled in accordance with the Arbitration rules of the American Arbitration Association in Irvine, California. Any decision issued therefrom shall be binding upon the parties and shall be enforceable as a judgment in any court of competent jurisdiction. The prevailing party in such arbitration or other proceeding shall be entitled, in addition to such other relief as many be granted, to a reasonable sum as and for attorney's fees in such arbitration or other proceeding which may be determined by the arbitrator or other officer in such proceeding. If collection is required for any payment not made when due, the creditor shall collect statutory interest and the cost of collection, including attorney's fees whether or not court action is required for enforcement. 7. Miscellaneous. No waiver of any of the provisions of this Agreement sall be deemed or shall constitute a waiver of any other provision and no waiver shall constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all parties. This Agreement constitutes the entire agreement between the parties and supersedes any prior agreements or negotiations. There are no third party beneficiaries of this Agreement. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on the date first written above. "Client" Signature: /s/ Harry Masuda ------------ Harry Masuda Print with Title: --------------------- Company: Hyperbaric Systems "Consultants" Signature: /s/ M. Blaine Riley --------------- M. Blaine Riley Print with Title: --------------------- Signature: /s/ Randall Letcavage ----------------- Randall Letcavage Print with Title: --------------------- Signature: /s/ Rosemary Nguyen --------------- Rosemary Nguyen Print with Title: --------------------- EX-4.7 8 0008.txt FINANCIAL CONSULTING AGREEMENT BETWEEN REGISTRANT AND RANDALL LETCAVAGE FINANCIAL CONSULTING SERVICES AGREEMENT This Financial Consulting Services Agreement (the "Agreement") is entered this 24th day of January, 2001 by and between M. Blaine Riley, Randall Letcavage and Rosemary Nguyen ("Consultants"), individual's, and Hyperbaric Systems (OTC BB:HYRB) ("Client"), a California corporation, with reference to the following: RECITALS A. The Client desires to be assured of the association and services of the Consultants in order to avail itself of the Consultant s exerience, skills, abilities, knowledge, and background to facilitate long range strategic planning, and to advise the Client in business and/or financial matters and is therefore willing to engage the Consultants upon the terms and conditions set forth herein. C. The Consultants agree to be engaged and retained by the Client and upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 3. Engagement. Client hereby engages Consultants on a non-exclusive basis, and Consultants hereby accepts the engagement to become a financial Consultants to the Client and to render such advice, consultation, information, and services to the Directors and/or Officers of the Client regarding general financial and business matters including, but not limited to: E. Due diligence studies, reorganizations, divestitures; F. Capital structures, banking methods and systems; G. Periodic reporting as to developments concerning the general financial markets and public securities markets and industry which may be relevant or of interest or concern to the Client or the Client's business; H. Guidance and assistance in available alternatives for accounts receivable financing and other asset financing. It shall be expressly understood that Consultants shall have no power to bind Client to any contract or obligation or to transact any business in Client's name or on behalf of Client in any manner. 4. Term. The term ("Term") of this Agreement shall commence on the date hereof and continue for twelve (12) months. The Agreement may be extended upon agreement by both parties, unless or until the Agreement is terminated. Either party may cancel this Agreement upon five days written notice in the event either party violates any material provision of this Agreement and fails to cure such violation within five (5) days of written notification of such violation from the other party. Such cancellation shall not excuse the breach or non-performance by the other party or relieve the breaching party of its obligation incurred prior to the date of cancellation. 4. Compensation and Fees. As consideration for Consultants entering into this Agreement, Client and Consultants shall agree to the following: C. Client shall issue certificates representing an aggregate of five hundred ten thousand (510,000) shares of free trading common stock (the "Shares"), registered under S-8. D. The Certificates shall be issued to the Consultants in the following manner: M. Blaine Riley will receive one hundred seventy thousand (170,000) shares. Randall Letcavage will receive one hundred seventy thousand (170,000) shares. Rosemary Nguyen will receive one hundred seventy thousand (170,000) shares. The Shares, when issued to Consultants, will be duly authorized, validly issued and outstanding, fully paid and nonassessable and will not be subject to any liens or encumbrances. Securities shall be issued to Consultants in accordance with a mutually acceptable plan of issuance as to relieve securities or Consultants from restrictions upon transferability of shares in compliance with applicable registration provisions or exemptions. 4. Exclusivity; Performance; Confidentiality. The services of Consultants hereunder shall not be exclusive, and Consultants and their agents may perform similar or different services for other persons or entities whether or not they are competitors of Client. Consultants shall be required to expend only such time as is necessary to service Client in a commercially reasonable manner. Consultants acknowledge and agree that confidential and valuable information proprietary to Client and obtained during its engagement by the Client, shall not be, directly or indirectly, disclosed without the prior express written consent of the Client, unless and until such information is otherwise known to the public generally or is not otherwise secret and confidential. 5. Independent Contractor. In its performance hereunder, Consultants and their agents shall be an independent contractor. Consultants shall complete the services required hereunder according to his own means and methods of work, shall be in the exclusive charge and control of Consultants and which shall not be subject to the control or supervision of Client, except as to the results of the work. Client acknowledges that nothing in this Agreement shall be construed to require Consultants to provide services to Client at any specific time, or in any specific place or manner. Payments to Consultants hereunder shall not be subject to withholding taxes or other employment taxes as required with respect to compensation paid to an employee. 6. Arbitration and Fees. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, may be resolved by mutual agreement; or if not, shall be settled in accordance with the Arbitration rules of the American Arbitration Association in Irvine, California. Any decision issued therefrom shall be binding upon the parties and shall be enforceable as a judgment in any court of competent jurisdic- tion. The prevailing party in such arbitration or other proceeding shall be entitled, in addition to such other relief as many be granted, to a reasonable sum as and for attorney's fees in such arbitration or other proceeding which may be determined by the rbitrator or other officer in such proceeding. If collection is required for any payment not made when due, the creditor shall collect statutory interest and the cost of collection, including attorney's fees whether or not court action is required for enforcement. 7. Miscellaneous. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision and no waiver shall constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all parties. This Agreement constitutes the entire agreement between the parties and supersedes any prior agreements or negotiations. There are no third party beneficiaries of this Agreement. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on the date first written above. "Client" Signature: /s/ Harry Masuda ------------ Harry Masuda Print with Title: __________________ Company: Hyperbaric Systems "Consultants" Signature: /s/ M. Blaine Riley --------------- M. Blaine Riley Print with Title: __________________ Signature: /s/ Randall Letcavage ----------------- Randall Letcavage Print with Title: __________________ Signature: /s/ Rosemary Nguyen --------------- Rosemary Nguyen Print with Title: __________________ EX-4.8 9 0009.txt FINANCIAL CONSULTING AGREEMENT BETWEEN REGISTRANT AND ROSEMARY NGUYEN FINANCIAL CONSULTING SERVICES AGREEMENT This Financial Consulting Services Agreement (the "Agreement") is entered this 24th day of January, 2001 by and between M. Blaine Riley, Randall Letcavage and Rosemary Nguyen ("Consultants"), individual's, and Hyperbaric Systems (OTC BB:HYRB) ("Client"), a California corporation, with reference to the following: RECITALS A. The Client desires to be assured of the association and services of the Consultants in order to avail itself of the Consultants experience, skills, abilities, knowledge, and background to facilitate long range strategic planning, and to advise the Client in business and/or financial matters and is therefore willing to engage the Consultants upon the terms and conditions set forth herein. D. The Consultants agree to be engaged and retained by the Client and upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 5. Engagement. Client hereby engages Consultants on a non-exclusive basis, and Consultants hereby accepts the engagement to become a financial Consultants to the Client and to render such advice, consultation, information, and services to the Directors and/or Officers of the Client regarding general financial and business matters including, but not limited to: I. Due diligence studies, reorganizations, divestitures; J. Capital structures, banking methods and systems; K. Periodic reporting as to developments concerning the general financial markets and public securities markets and industry which may be relevant or of interest or concern to the Client or the Client's business; L. Guidance and assistance in available alternatives for accounts receivable financing and other asset financing. It shall be expressly understood that Consultants shall have no power to bind Client to any contract or obligation or to transact any business in Client's name or on behalf of Client in any manner. 6. Term. The term ("Term") of this Agreement shall commence on the date hereof and continue for twelve (12) months. The Agreement may be extended upon agreement by both parties, unless or until the Agreement is terminated. Either party may cancel this Agreement upon five days written notice in the event either party violates any material provision of this Agreement and fails to cure such violation within five (5) days of written notification of such violation from the other party. Such cancellation shall not excuse the breach or non-performance by the other party or relieve the breaching party of its obligation incurred prior to the date of cancellation. 5. Compensation and Fees. As consideration for Consultants entering into this Agreement, Client and Consultants shall agree to the following: E. Client shall issue certificates representing an aggregate of five hundred ten thousand (510,000) shares of free trading common stock (the "Shares"), registered under S-8. F. The Certificates shall be issued to the Consultants in the following manner: M. Blaine Riley will receive one hundred seventy thousand (170,000) shares. Randall Letcavage will receive one hundred seventy thousand (170,000) shares. Rosemary Nguyen will receive one hundred seventy thousand (170,000) shares. The Shares, when issued to Consultants, will be duly authorized, validly issued and outstanding, fully paid and nonassessable and will not be subject to any liens or encumbrances. Securities shall be issued to Consultants in accordance with a mutually acceptable plan of issuance as to relieve securities or Consultants from restrictions upon transferability of shares in compliance with applicable registration provisions or exemptions. 4. Exclusivity; Performance; Confidentiality. The services of Consultants hereunder shall not be exclusive, and Consultants and their agents may perform similar or different services for other persons or entities whether or not they are competitors of Client. Consultants shall be required to expend only such time as is necessary to service Client in a commercially reasonable manner. Consultants acknowledge and agree that confidential and valuable information proprietary to Client and obtained during its engagement by the Client, shall not be, directly or indirectly, disclosed without the prior express written consent of the Client, unless and until such information is otherwise known to the public generally or is not otherwise secret and confidential. 5. Independent Contractor. In its performance hereunder, Consultants and their agents shall be an independent contractor. Consultants shall complete the services required hereunder according to his own means and methods of work, shall be in the exclusive charge and control of Consultants and which shall not be subject to the control or supervision of Client, except as to the results of the work. Client acknowledges that nothing in this Agreement shall be construed to require Consultants to provide services to Client at any specific time, or in any specific place or manner. Payments to Consultants hereunder shall not be subject to withholding taxes or other employment taxes as required with respect to compensation paid to an employee. 6. Arbitration and Fees. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, may be resolved by mutual agreement; or if not, shall be settled in accordance with the Arbitration rules of the American Arbitration Association in Irvine, California. Any decision issued therefrom shall be binding upon the parties and shall be enforceable as a judgment in any court of competent jurisdiction. The prevailing party in such arbitration or other proceeding shall be entitled, in addition to such other relief as many be granted, to a reasonable sum as and for attorney's fees in such arbitration or other proceeding which may be determined by the arbitrator or other officer in such proceeding. If collection is required for any payment not made when due, the creditor shall collect statutory interest and the cost of collection, including attorney's fees whether or not court action is required for enforcement. 7. Miscellaneous. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision and no waiver shall constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all parties. This Agreement constitutes the entire agreement between the parties and supersedes any prior agreements or negotiations. There are no third party beneficiaries of this Agreement. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on the date first written above. "Client" Signature: /s/ Harry Masuda ------------ Harry Masuda Print with Title: _________________ Company: Hyperbaric Systems "Consultants" Signature: /s/ M. Blaine Riley --------------- M. Blaine Riley Print with Title: __________________ Signature: /s/ Randall Letcavage ----------------- Randall Letcavage Print with Title: __________________ Signature: /s/ Rosemary Nguyen --------------- Rosemary Nguyen Print with Title: __________________ EX-5.1 10 0010.txt OPINION OF SILICON VALLEY LAW GROUP [LETTERHEAD] February 9, 2001 Hyperbaric Systems 1127 Harker Avenue Palo Alto, California 94301 Re: Hyperbaric Systems Registration Statement on Form S-8 1,260,000 shares of Common Stock Gentlepersons: We are counsel to Hyperbaric Systems, a California corporation (the "Company"). We have assisted the Company in its preparation of a Regitration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), registering 1,260,000 shares of common stock of the Company (the "Common Stock") issuable upon exercise of warrants issued by the Company, and pursuant to a Consultant Agreement entered into by the Company. In rendering this opinion, we have considered such questions of law and examined such statutes and regulations, corporate records, certificates and other documents and have made such other examinations, searches and investigations as we have considered necessary. In such examinations we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or as photocopies or telecopies. We have not made an independent examination of the laws of any jurisdiction other than California and the federal laws of the United States, and we do not express or imply any opinions in respect to the laws of any other jurisdiction. The opinions expressed herein are based on legislation and regulations in effect on the date hereof. Based on and subject to the foregoing, we are of the opinion that the Common Stock, when issued pursuant to the exercise of warrants issued by the Company, and the Consultant Agreement and the purchase price therefor has been paid, will be duly and validly issued, fully paid and nonassessable shares of Common Stock. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. This consent is not to be construed as an admission that we are a person whose consent is required to be filed with the Registration Statement under the provisions of the Securities Act. Very truly yours, /s/ SILICON VALLEY LAW GROUP ------------------------ SILICON VALLEY LAW GROUP EX-23.1 11 0011.txt CONSENT OF BDO SEIDMAN, LLP CONSENT OF BDO SEIDMAN, LLP We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated February 22, 2000, relating to the financial statements of Hyperbaric Systems appearing in the Company's Annual Report on Form 10-KSB for the year ended December 31, 1999. Our report contains an explanatory paragraph regarding the Company's ability to continue as a going concern. /s/ BDO SEIDMAN, LLP ---------------- BDO SEIDMAN, LLP San Jose, California February 8, 2001 -----END PRIVACY-ENHANCED MESSAGE-----