-----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, IjjcdL5hFdvWM+JgYT4Cn98zWZiv/+Dq27f0D1THZ8R2HtV5vU0NTZgm2V12NMUr fLS/c8r2h8GN6DX9QfrFvw== 0000849145-95-000008.txt : 19951030 0000849145-95-000008.hdr.sgml : 19951030 ACCESSION NUMBER: 0000849145-95-000008 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19951027 EFFECTIVENESS DATE: 19951115 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MEDCROSS INC CENTRAL INDEX KEY: 0000849145 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISC HEALTH & ALLIED SERVICES, NEC [8090] IRS NUMBER: 592291344 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-63749 FILM NUMBER: 95584845 BUSINESS ADDRESS: STREET 1: 3227 BENNET ST NORTH CITY: ST PETERSBURG STATE: FL ZIP: 33713 BUSINESS PHONE: 8135211793 MAIL ADDRESS: STREET 1: 3227 BENNET STREET NORTH CITY: ST PETERSBURG STATE: FL ZIP: 33713 S-8 1 As filed with the Securities and Exchange Commission on October 27, 1995. Registration No. 33-___________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ______________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ______________________________ MEDCROSS, INC. (Exact name of registrant as specified in its charter) FLORIDA 59-2291344 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 3227 Bennet Street North St. Petersburg, Florida 33713 (813) 521-1793 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) Consulting Agreement By and Among Medcross, Inc., Kalo Acquisitions, L.L.C. and Jason H. Pollak (Full Title of Plan) ______________________________ Henry Y.L. Toh Medcross, Inc. 3227 Bennet Street North St. Petersburg, Florida 33713 (813) 521-1793 (Name, address, including zip code, and telephone number, including area code, of agent for service) ______________________________ Copies to: Ralph V. De Martino, Esq. De Martino Finkelstein Rosen & Virga 1818 N Street, N.W. Washington, D.C. 20036-2492 (202) 659-0494 If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: CALCULATION OF REGISTRATION FEE Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of to be Registered Registered Aggregate Price Aggregate Offering Registration Per Share Price Fee Common Stock, $.007 par value 50,000 $1.4375 $71,875.00 $100.00 (1) Calculated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, based upon the average of the bid and asked prices for the Common Stock on October 25, 1995. (2) Represents shares of Common Stock issuable to Jason H. Pollak pursuant to the terms of the Consulting Agreement (the "Consulting Agreement") By and Among Medcross, Inc., Kalo Acquisitions, L.L.C. and Jason H. Pollak (the "Plan") upon execution thereof which is to occur at or about the time of filing and effectiveness of this Registration Statement on Form S-8. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information This Registration Statement (the "Registration Statement") relates to the issuance of shares of common stock, par value $.007 per share (the "Common Stock") of Medcross, Inc. (the "Company") to Jason H. Pollak (the "Consultant") pursuant to the terms of a Consulting Agreement, dated as of the date hereof, by and between the Company, Kalo Acquisitions, L.L.C. and the Consultant (the "Consulting Agreement"). Pursuant to the terms of the Consulting Agreement, the Company is obligated to issue to the Consultant an aggregate of up to 50,000 shares of Common Stock in exchange for the Consultant's providing certain marketing and consulting services to the Company. Pursuant to the terms of the Consulting Agreement, the initial term of the Consulting Agreement is five months, subject to termination by the Company upon delivery (15 days in advance) of written notice to the Consultant. The foregoing information relating to the provisions of the Consulting Agreement is intended to provide a summary thereof and does not purport to be a complete description of the Consulting Agreement. Such summary should be read in conjunction with the Consulting Agreement which has been filed as Exhibit 10(c) hereto and is incorporated herein by reference in its entirety. Item 2. Registrant Information and Employee Plan Annual Information The Consultant has been provided with copies of the documents incorporated herein by reference in Part II: Item 3 hereof and has been advised by the Company in writing that such documents will continue to be available, without charge, to the Consultant upon the Consultant's written request to the Company at its offices at 3227 Bennet Street North, St. Petersburg, Florida 33713 (Phone: 813-521-1793). PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 3. Incorporation of Documents by Reference. The following documents, and any amendments thereto, filed by Medcross, Inc. (the "Company") with the Securities and Exchange Commission are incorporated by reference in this Registration Statement and shall be deemed to be a part hereof from the date of filing such documents. (a) The Company's annual report on Form 10-KSB for the year ended December 31, 1994 (File No. 0-17973); (b) The Company's quarterly report on Form 10-QSB for the quarter ended June 30, 1995 (File No. 0-17973); (c) The description of the Common Stock of the Company contained in Item 11 of the Company's Registration Statement on Form 10 filed on September 16, 1989, as amended (File No. 0-17973); (d) All reports filed by the Company pursuant to Sections 13(a), 13(c) and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all of the securities offered hereby have been sold or which deregisters all securities then remaining unsold. Item 4. Description of Securities. Not Applicable. Item 5. Interests of Named Experts and Counsel. Not Applicable. Item 6. Indemnification of Officers and Directors. Section 607.0850 of the Florida Business Corporation Act empowers a corporation to indemnify any person who was or is a party to a proceeding by reason of the fact that he was or is an officer, director, employee or agent of the corporation against liability incurred in connection with such proceeding. Such person must have acted in good faith and in a manner reasonably believed to be in or not opposed to, the best interests of the corporation. With respect to any criminal proceeding, such person must have had no reasonable cause to believe his conduct was unlawful. Any such indemnification may only be made upon a determination by the corporation that such indemnification is proper because the person met the applicable standard of conduct. The Florida Business Corporation Act provides further that the indemnification permitted thereunder is not exclusive; provided, however, indemnification is not permitted to be made on behalf of any such person if a judgment or final adjudication establishes (i) a violation of the criminal law unless such person had reasonable cause to believe his conduct was lawful or no reasonable cause to believe his conduct was unlawful; (ii) such person derived an improper personal benefit from the transaction; (iii) as to any director such proceeding arose from an unlawful distribution under Section 607.0834; or (iv) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by the corporation or a shareholder. The Company's By-Laws provide that the Company shall indemnify any such person to the fullest extent provided by law and empowers the Company to purchase and maintain insurance on behalf of any such person. The Company previously entered into indemnification agreements in 1988 with certain officers and directors of the Company for indemnification against expenses (including attorneys' fees, through all proceedings, trials, and appeals), judgments, and amounts paid in settlement actually and reasonably incurred in connection with any threatened, pending, or contemplated action, suit, or proceeding, whether civil, criminal, administrative, or investigative, arising from any actual or alleged breach of duty, neglect, error, or other action taken or omitted, solely in the capacity as an officer and/or a director of the Company; provided, that no indemnification will be made in respect of any acts or omissions (a) involving gross negligence or willful misconduct, (b) involving libel or slander, or (c) based upon or attributable to gaining, directly or indirectly, any profit or advantage to which he was not legally entitled. INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE SECURITIES ACT MAY BE PERMITTED TO DIRECTORS, OFFICERS OR PERSONS CONTROLLING THE COMPANY PURSUANT TO THE FOREGOING PROVISIONS, THE COMPANY HAS BEEN INFORMED THAT IN THE OPINION OF THE SECURITIES AND EXCHANGE COMMISSION, SUCH INDEMNIFICATION IS AGAINST PUBLIC POLICY AS EXPRESSED IN THE SECURITIES ACT AND IS THEREFORE UNENFORCEABLE. Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits 3(a) Amendment to the Articles of Incorporation dated March 21, 1994. 3(b) Composite copy of the Amended and Restated Articles of Incorporation incorporating all amendments. 3(c) By-Laws of the Company, as amended. 4(a) Specimen Common Stock Certificate. 5(a) Opinion regarding legality. 9(a) Shareholder's Agreement dated February 19, 1992 among Four M International, Inc., Walnut Capital Corp., Windy City, Inc., and Canadian Imperial Bank of Commerce Trust Company (Bahamas) Limited. 10(a) Stock Purchase Agreement, dated February 9, 1992, between Medcross, Inc., Four M International Limited, Walnut Capital Corp., Windy City, Inc., and Canadian Imperial Bank of Commerce Trust Company. 10(b) First Amendment to Stock Purchase Agreement, dated May 21, 1992, between Medcross, Inc., Four M International, Inc., Walnut Capital Corp., Windy City, Inc., and Canadian Imperial Bank of Commerce Trust Company (Bahamas) Limited, as trustee. 10(c) Consulting Agreement by and among Medcross, Inc., Kalo Acquisitions, L.L.C. and Jason H. Pollak 23(a) Consent of Coopers & Lybrand L.L.P. 23(c) Consent of Counsel included in Exhibit 5(a). ____________________ 1/ Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1993 (File No. 0- 17973). 2/ Incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1993 (File Number 0-17973). 3/ Incorporated by reference to the Company's registration statement on Form S-18, as amended, (File Number 33-27978- A). 4/ Incorporated by reference to the Company's Current Report on Form 8-K dated March 30, 1992 (File Number 0-17973). 5/ Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1991 (File Number 0-17973). 6/ Incorporated by reference to the Company's Current Report on Form 8-K dated May 21, 1992 (File Number 0-17973). Item 9. Undertakings The undersigned Registrant hereby undertakes: A. Rule 415 Offering. 1. To file, during any period in which it offers or sells securities, a post-effective amendment to this Registration Statement to include any additional or changed information with respect to the plan of distribution; 2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. Subsequent Exchange Act Documents Incorporated by Reference: The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the issuer's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act, and each filing of the Plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. To Transmit Certain Material. 1. The undersigned Registrant hereby undertakes to deliver or cause to be delivered with the prospectus to each Plan participant to whom the prospectus is sent or given a copy of the Registrant's annual report to stockholders for its last fiscal year, unless such Plan participant otherwise has received a copy of such report, in which case the Registrant shall state in the prospectus that it will promptly furnish, without charge, a copy of such report on written request of the Plan participant. If the last fiscal year of the Registrant has ended within 120 days prior to the use of the prospectus, the annual report of the Registrant for the preceding fiscal year may be so delivered, but within such 120 day period the annual report for the last fiscal year will be furnished to each such Plan participant. 2. The undersigned Registrant hereby undertakes to transmit or cause to be transmitted to all participants in the Plan who do not otherwise receive such material as stockholders of the Registrant, at the time and in the manner such material is sent to its stockholders, copies of all reports, proxy statements and other communications distributed to its stockholders generally. D. Indemnification. 1. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer, or controlling person of the Company 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 Company 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company 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 St. Petersburg, State of Florida, on October 26, 1995. MEDCROSS, INC. By: /s/ Henry Y. L. Toh Henry Y. L. Toh, President POWER OF ATTORNEY We, the undersigned officers and directors of the Company, hereby severally constitute and appoint Henry Y. L. Toh our true and lawful attorney-in-fact and agent, with full power to him to sign any and all amendments (including post effective amendments) to this Registration Statement and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all interest and purposes as we might or could do in person, ratifying and conforming all that said attorney-in-fact and agent or any of them, or his substitute or substitutes, may unlawfully 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 by the following persons in the capacities indicated as of October 26, 1995. /s/ Po Shin Wong Chairman of the Board of Directors Po Shin Wong /s/ Henry Y. L. Toh Vice Chairman of the Board, President and Henry Y. L. Toh Acting Chief Financial Officer /s/ Joel S. Kanter Director Joel S. Kanter /s/ R. Huston Babcock, M.D. Director R. Huston Babcock, M.D.
EX-5 2 DE MARTINO FINKELSTEIN ROSEN & VIRGA A PARTNERSHIP CONSISTING OF PROFESSIONAL CORPORATIONS 1818 N STREET, N.W., SUITE 400 WASHINGTON, D.C. 20036-2492 ___ TELEPHONE (202) 659-0494 TELECOPIER (202) 659-1290 VICTORIA A. BAYLIN* KATHLEEN L. CERVENY RALPH V. DE MARTINO STEVEN R. FINKELSTEIN* KEITH H. PETERSON* JEFFREY S. ROSEN GERARD A. VIRGA* *NOT ADMITTED TO DISTRICT OF COLUMBIA BAR NEW YORK OFFICE _____ 90 BROAD STREET, SUITE 1700 NEW YORK, NEW YORK 10004-2205 TELEPHONE (212) 363-2500 TELECOPIER (212) 363-2723 October 26, 1995 Board of Directors Medcross, Inc. 3227 Bennett Street North St. Petersburg, FL 33713 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel to Medcross, Inc., a Florida corporation (the "Company"), in connection with the preparation and filing by the Company of a registration statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, relating to the issuance by the Company of up to 50,000 shares of Common Stock, $.007 par value (the "Common Stock") to Jason H. Pollak (the "Consultant") pursuant to the terms of a certain Consulting Agreement dated as of September 1, 1995, by and among the Company, Kalo Acquisitions, L.L.C. and the Consultant (the "Consulting Agreement"). We have examined the Consulting Agreement, the Articles of Incorporation, as amended, and the By-Laws of the Company, the minutes of the various meetings and consents of the Company's Board of Directors, originals or copies of such records of the Company, agreements, certificates of public officials, certificates of officers and representatives of the Company and others, and such other documents, certificates, records, authorizations, proceedings, statutes and judicial decisions as we have deemed necessary to form the basis of the opinion expressed below. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as copies thereof. As to various questions of fact material to such opinion, we have relied upon statements and certificates of officers and representatives of the Company and others. We are not herein passing upon and do not assume responsibility for the accuracy, completeness or fairness of the statements or other provisions contained in any of the foregoing materials. DE MARTINO FINKELSTEIN ROSEN & VIRGA Board of Directors Medcross, Inc. October 26, 1995 Page 2 In connection with the preparation of this opinion, we have reviewed such questions of law as we have deemed necessary. We do not herein give any opinion with respect to the laws of any jurisdiction other than the general laws of the United States of America, the federal securities laws and the laws of the District of Columbia. Except as otherwise provided herein, we have assumed that, insofar as the laws of another jurisdiction may be applicable to any matters to which this opinion may relate, such laws are identical to the laws of the District of Columbia, however, we express no opinion as to the extent to which the laws of the District of Columbia or such other jurisdiction may apply. Based upon the foregoing, we are of the opinion that the 50,000 shares of Common Stock issuable to the Consultant pursuant to the terms of the Consulting Agreement and which shares are subject of the Registration Statement have been duly authorized and when such shares of Common Stock are issued in accordance with the terms of the Consulting Agreement such shares will be duly authorized, fully paid and nonassessable. We hereby consent to the use of this opinion as an exhibit to the Registration Statement. Yours very truly, /s/ De Martino Finkelstein Rosen $ Virga De Martino Finkelstein Rosen & Virga
EX-10 3 CONSULTING AGREEMENT BY AND AMONG MEDCROSS, INC. KALO ACQUISITIONS, L.L.C. AND JASON H. POLLAK THIS AGREEMENT (the "Agreement") is entered into as of this 1st day of September, 1995, by and among Medcross, Inc., a Delaware corporation with principal offices at 3227 Bennet Street North, St. Petersburg, Florida 33713 (the "Corporation"), Jason H. Pollak (hereinafter referred to as "Pollak" or the "Consultant" as the context may require) and Kalo Acquisitions, L.L.C., a Delaware limited liability company with principal offices at 165 EAB Plaza, West Tower, Suite 628, Uniondale, New York 11556-0165 ("Kalo"). WHEREAS, Kalo, through its manager and employees has developed expertise in and is in the business of providing consulting services, including finding and assessing acquisition candidates and providing investor and public relations services; WHEREAS, Pollak is the manager and an employee of Kalo, and has expertise in the area of providing consulting services, including finding and assessing acquisition candidates and providing investor and public relations services; WHEREAS, the Corporation desires to engage Pollak to provide services to the Corporation as set forth below, upon the terms and subject to the conditions set forth herein; WHEREAS, Pollak desires to provide services to the Corporation as set forth below, upon the terms and subject to the conditions set forth herein; WHEREAS, Kalo, Pollak and the Corporation have agreed that Pollak shall render the services set forth below to the Corporation upon the terms and subject to the conditions set forth herein; and WHEREAS, Kalo has agreed to provide Pollak the opportunity to avail himself of Kalo's resources including, without limitation, use of any phone lines, computers, photocopiers, facsimile machines, postage meters and other supplies in exchange for Pollak's reimbursement to Kalo of the costs of the same. NOW, THEREFORE, in consideration of the foregoing and for such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Engagement. The Corporation hereby engages the Consultant to render to it for a period of five (5) months commencing September 1, 1995 (the "Term") the investor and public relations services described herein. The Term hereof may be renewed upon the written agreement of the Corporation, Kalo and the Consultant entered into prior to expiration of the initial Term hereof on such terms as the parties hereto may negotiate at the time of such renewal. 2. Services. For the Term of this Agreement, the Consultant shall perform the following services for the Corporation: (a) Assist the Company in locating, assessing and implementing the acquisition by the Company, by way of private or open market purchases of stock, purchase of assets, merger, tender offer, joint venture or otherwise, the acquisition by the Company of one or more businesses, divisions or other operating entities and/or assets, including without limitation thereto Image Trust, consistent with the directives of the Company; (b) Prepare and distribute, with the Company's prior approval, due-diligence packages for the brokerage community which would include presentation folders, press release sheets and a Corporation overview pamphlet; (c) Prepare and distribute, with the Company's prior approval, investor relations packages; (d) Provide a dedicated "800" toll-free telephone number for investors to utilize; (e) Coordinate broker presentations to be held a minimum of four (4) times per year; (f) Prepare and disseminate, with the Company's prior approval, information about the Corporation to investors; (g) Present and introduce the Corporation to broker/dealers, fund managers and analysts on a continual basis; (h) Prepare and disseminate, with the Company's prior approval, press releases in compliance with any applicable regulatory guidelines to wire/news services; (i) Disseminate for informational purposes the Corporation's publicly filed materials, including the Corporation's Annual and Quarterly Reports on Form 10-KSB and Form 10-QSB, respectively, to investors; (j) Assist with the set up of annual and special shareholder meetings; (k) Provide for the production and presentation, with the Company's prior approval, on national/local television stations of infomercials about the Corporation; (l) Perform such other services as may be reasonably requested from time to time by the officers of the Corporation; (m) Reimburse Kalo for its costs related to the use of any of its resources as contemplated herein; (n) Locate and introduce at least ten (10) broker/dealers and/or market makers to the Corporation to make a market in the Corporation's securities; and (o) Bear all costs and expenses relating to any of the foregoing. 3. Compensation. In consideration for the performance of the services described above, the Corporation shall issue to the Consultant an aggregate of up to fifty thousand (50,000) shares of its common stock, par value $.007 per share (the "Common Stock") as follows: (a) twenty-five thousand (25,000) shares of Common Stock shall be issued upon execution of this Agreement; and (b) five thousand (5,000) shares of Common Stock shall be issuable thereafter on the last day of each month during the Term of this Agreement. It is specifically understood and agreed that one-half of the compensation set forth in Section 3(b) shall be allocated to the services contemplated to be provided pursuant to Section 2(a) hereof and the entirety of the balance of the compensation provided in Sections 3(a) and 3(b) shall be allocated to the remainder of the services to be provided pursuant to Section 2 of this Agreement. 4. Registration Rights. The Corporation shall file, contemporaneously with execution hereof, a registration statement relating to the shares of Common Stock issuable pursuant hereto on Form S-8 with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933 (the "Act"). In the event that, for any reason whatsoever, such Form S-8 is not available for use by the Corporation, the Corporation shall file such form of registration statement as is available for use by the Corporation as specified or otherwise permitted by the Act and the rules and regulations promulgated thereunder. The Corporation shall bear the expenses of such registration and shall: (a) provide any requisite prospectuses meeting the requirements of the Act and such other documents as the Consultant may reasonably request for a period of at least twelve (12) months following the effectiveness of such registration statement in order to facilitate the sale or other disposition of such securities; (b) register and qualify for sale any of such securities in such states as the Consultant may reasonably designate; and (c) do any and all other acts and things which may be necessary or desirable to enable the Consultant to consummate the sale or other disposition of such securities. The Consultant hereby acknowledges that it understands that: (a) the shares of Common Stock issuable hereunder have not previously been the subject of registration under the Act or any applicable state securities laws; (b) the Consultant may not sell or otherwise transfer such shares unless they are subject to an effective registration statement under the Act and any applicable state securities laws (unless exemptions from such registration requirements are available); (c) in the event that any shares of Common Stock issuable pursuant hereto are issued at a time during which a registration statement relating to the same is not effective, until such shares of Common Stock are subject to an effective registration statement under the Act, a legend will be placed on any certificate or certificates evidencing the same indicating that such securities have not been registered under the Act and setting forth or referring to the restrictions on transferability and sales of such securities; and (d) the Corporation will place stop transfer instructions against the certificate or certificates evidencing the foregoing shares of Common Stock to restrict the transfer thereof. 5. Representations and Warranties. The Consultant hereby represents and warrants that: (a) the Consultant will not sell the shares of Common Stock without compliance with the Act and any applicable state securities laws; (b) the Consultant has received and carefully read the following: (i) the Corporation's Annual Report on Form 10-KSB for the period ended December 31, 1994 (File No. 0-17973); (ii) the Corporation's Quarterly Reports on Form 10-QSB for the periods ended March 31, 1995 and June 30, 1995 (File No. 0-17973); and (iii) written or verbal responses for all questions the Consultant has submitted to the Corporation regarding its acquisition of the securities described herein, all of which the Consultant acknowledges have been provided to the Consultant (the "Corporate Materials"). The Consultant has not been furnished with any other materials or literature relating to the acquisition of the securities described herein, other than the Corporate Materials. The Consultant has been given the opportunity to ask questions of and to receive answers from the Corporation concerning the terms and conditions of the acquisition of the securities described herein and the Corporate Materials, and to obtain such additional written information necessary to verify the accuracy of same as the Consultant desires in order to evaluate the acquisition of and investment in the securities described herein. The Consultant acknowledges and confirms that the written and/or verbal responses provided to the Consultant by the Corporation in response to the Consultant's questions are not contrary to or inconsistent with, nor do they in any way conflict with the information set forth in the Corporate Materials. The Consultant further acknowledges that it fully understands the information contained in the Corporate Materials and the Consultant has had the opportunity to discuss any questions regarding the Corporate Materials with its counsel or other advisor. Notwithstanding the foregoing, the only information upon which the Consultant has relied is that set forth in the Corporate Materials and that derived by its own independent investigation. The Consultant acknowledges that the Consultant has received no representations or warranties from the Corporation or its employees or agents in making an investment decision related to the acquisition of the securities described herein, other than as set forth herein; (c) the Consultant is aware that the acquisition of the securities described herein is a speculative investment involving a high degree of risk and that there is no guarantee that the Consultant will realize any gain from its acquisition of or investment in such securities. The Consultant has specifically reviewed the Corporate Materials with a view toward acquiring the securities described herein; (d) the Consultant understands that no federal or state agency or other authority: (i) has made any finding or determination regarding the fairness of the transactions described herein, (ii) has made any recommendation or endorsement of the transactions described herein, or (iii) has passed in any way upon this agreement or the Corporate Materials; (e) the Consultant: (i) is acquiring the securities described herein solely for his own account for investment purposes only and not with a view toward resale or distribution thereof, either in whole or in part; and (ii) has no contract, undertaking, agreement or other arrangement, in existence or contemplated, to sell, pledge, assign or otherwise transfer the securities to any other person; (f) the Consultant has adequate means of providing for his current needs and contingencies and has no need for liquidity in the investment in the securities described herein. The Consultant has read, is familiar with and understands Rule 501 of Regulation D and represents that he is an "accredited investor" as defined in Rule 501(a) of Regulation D under the Act. The Consultant has no reason to anticipate any material change in his financial condition for the foreseeable future; (g) the Consultant is financially able to bear the economic risk of an investment in the securities described herein, including the ability to hold such securities indefinitely and to afford a complete loss of an investment in such securities; (h) the Consultant's overall commitment to investments which are not readily marketable is not disproportionate to the Consultant's net worth, and the Consultant's investment in the securities described herein will not cause such overall commitment to become excessive. The Consultant understands that the statutory basis on which such securities are being issued to the Consultant would not be available if the Consultant's present intention were to hold such securities for a fixed period of time or until the occurrence of a certain event. The Consultant realizes that, in the view of the Commission, the acquisition of such securities now with a present intention to resell by reason of a foreseeable specific contingency or any anticipated change in the market value of such securities, or in the condition of the Corporation or that of the industry in which the business of the Corporation is engaged or in connection with a contemplated liquidation, would, in fact, constitute an acquisition and/or purchase with an intention inconsistent with the Consultant's representations to the Corporation and the Commission would then regard such purchase as a purchase for which the exemption from registration under the Act relied upon by the Corporation in connection herewith is not available; and (i) the Consultant has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the acquisition of and an investment in the securities described herein. 6. Confidential Information. The parties hereto recognize that it is fundamental to the business and operation of the Corporation, its subsidiaries, affiliates and divisions thereof to preserve the specialized knowledge, trade secrets, and confidential information of the foregoing entities. The strength and good will of the Corporation is derived from the specialized knowledge, trade secrets, and confidential information generated from experience through the activities undertaken by the Corporation, its subsidiaries, affiliates and divisions thereof. The disclosure of any of such information and the knowledge thereof on the part of competitors would be beneficial to such competitors and detrimental to the Corporation, its subsidiaries, affiliates and divisions thereof, as would the disclosure of information about the marketing practices, pricing practices, costs, profit margins, design specifications, analytical techniques, concepts, ideas, process developments (whether or not patentable), customer and client agreements, vendor and supplier agreements and similar items or technologies. By reason of performance under this Agreement, the Consultant may have access to and may obtain specialized knowledge, trade secrets and confidential information such as that described herein about the business and operation of the Corporation, its subsidiaries, affiliates and divisions thereof. Therefore, the Consultant hereby agrees that he shall keep secret and retain in confidence and shall not use, disclose to others, or publish, other than in connection with the performance of services hereunder, any information relating to the business, operation or other affairs of the Corporation, its subsidiaries, affiliates and divisions thereof, including but not limited to, confidential information concerning the marketing practices, pricing practices, costs, profit margins, products, methods, guidelines, procedures, engineering designs and standards, design specifications, analytical techniques, technical information, customer, client, vendor or supplier information, employee information, or other confidential information acquired by each of them in the course of providing services for the Corporation. The Consultant agrees to hold as the Corporation's property all notes, memoranda, books, records, papers, letters, formulas and other data and all copies thereof and therefrom in any way relating to the business or operation of the Corporation, its subsidiaries, affiliates and divisions thereof, whether made by the Corporation or the Consultant or as may otherwise come into the possession of the Consultant. Upon termination of this Agreement or upon the demand of the Corporation, at any time, the Consultant shall deliver the same to the Corporation within twenty-four (24) hours of such termination or demand. 7. Reformation. In the event that a court of competent jurisdiction determines that the confidentiality provisions or part of a provision hereof are unreasonably broad or otherwise unenforceable because of the length of their respective terms or the breadth of their territorial scope, or for any other reason, the parties hereto agree that such court may reform the terms and/or scope of such covenants so that the same are reasonable and, as reformed, shall be enforceable. 8. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida without regard to the principles of conflicts of laws thereof and shall inure to the benefit of and be binding upon Kalo, the Consultant and the Corporation and their respective legal successors and assigns. 9. Remedies. In the event of a breach of any of the provisions of this Agreement, the non-breaching party shall provide written notice of such breach to the breaching party. The breaching party shall have thirty (30) days after receipt of such notice in which to cure its breach. If, on the thirty-first (31st) day after receipt of such notice, the breaching party shall have failed to cure such breach, the non-breaching party thereafter shall be entitled to seek damages. It is acknowledged that this Agreement is of a unique nature and of extraordinary value and of such a character that a breach hereof by the Consultant or the Corporation shall result in irreparable damage and injury for which the non-breaching party may not have any adequate remedy at law. Therefore, if, on the thirty-first (31st) day after receipt of such notice, the breaching party shall have failed to cure such breach, the non-breaching party shall also be entitled to seek a decree of specific performance against the breaching party, or such other relief by way of restraining order, injunction or otherwise as may be appropriate to ensure compliance with this Agreement. The remedies provided by this section are non-exclusive and the pursuit of such remedies shall not in any way limit any other remedy available to the parties with respect to this Agreement, including, without limitation, any remedy available at law or equity with respect to any anticipatory or threatened breach of the provisions hereof. 10. No Continuing Waiver. The waiver by any party of any provision or breach of this Agreement shall not operate as or be construed to be a waiver of any other provision hereof or of any other breach of any provision hereof. 11. Notice. Any and all notices from either party to the other which may be specified by, or otherwise deemed necessary or incident to this Agreement shall, in the absence of hand delivery with return receipt requested, be deemed duly given when mailed if the same shall be sent to the address of the party set out on the first page of this Agreement by registered or certified mail, return receipt requested, or express delivery (e.g., Federal Express). 12. Severability of Provisions. The provisions of this Agreement shall be considered severable in the event that any of such provisions are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable. Such invalid, void or otherwise unenforceable provisions shall be automatically replaced by other provisions which are valid and enforceable and which are as similar as possible in term and intent to those provisions deemed to be invalid, void or otherwise unenforceable. Notwithstanding the foregoing, the remaining provisions hereof shall remain enforceable to the fullest extent permitted by law. 13. Assignability. This Agreement shall not be assignable without the prior written consent of the non-assigning party or parties hereto and shall be binding upon and inure to the benefit of any heirs, executors, legal representatives or successors or permitted assigns of the parties hereto. 14. Entire Agreement; Amendment. This Agreement contains the entire agreement among the Corporation, Kalo and the Consultant with respect to the subject matter hereof. This Agreement may not be amended, changed, modified or discharged, nor may any provision hereof be waived, except by an instrument in writing executed by or on behalf of the party against whom enforcement of any amendment, waiver, change, modification or discharge is sought. No course of conduct or dealing shall be construed to modify, amend or otherwise affect any of the provisions hereof. 15. Headings. The paragraph headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of the provisions of this Agreement. 16. Termination. The Corporation may terminate this Agreement with or without cause at any time upon delivery of fifteen (15) days prior written notice to the other parties hereto. Any such termination shall result in the termination of the Consultant's respective rights to receive any further compensation, except with respect to accrued compensation which Consultant shall have the right to receive notwithstanding termination hereof. 17. Survival. Sections 5, 6, 7, 8, 11 and 12 shall survive the termination for any reason of this Agreement (whether such termination is by the Corporation, upon the expiration of this Agreement by its terms or otherwise). IN WITNESS WHEREOF, the parties have caused this Agreement for Consulting Services to be executed and delivered by their duly authorized officers as set forth below and have caused their respective corporate seals to be hereunder affixed as of the date first above written. MEDCROSS, INC. By: /s/ Henry Y.L. Toh Henry Y.L. Toh, President KALO ACQUISITIONS, L.L.C. By: /s/ Jason H. Pollak Jason H. Pollak, Manager THE CONSULTANT /s/ Jason H. Pollak Jason H. Pollak
EX-23 4 COOPERS & LYBRAND CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statement of Medcross, Inc. and Subsidiaries on form S-8 of our report dated April 7, 1995, on our audits of the consolidated financial statements of Medcross, Inc. and Subsidiaries as of December 31, 1994, and for the years ended December 31, 1994 and 1993, which report is incorporated by reference in this Annual Report on Form 10-KSB. /s/ COOPERS & LYBRAND LLP Tampa, Florida October 24, 1995
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