-----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, EWSiyLnfaacPUiuVJt8lvqODnvubvZmkBe1G8xu7/YlfGRpPZy2VHoCnaSBkEH88 Uin+F4Hl33nRYRGC07CWDA== 0000849145-95-000009.txt : 19951030 0000849145-95-000009.hdr.sgml : 19951030 ACCESSION NUMBER: 0000849145-95-000009 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 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: 033-63751 FILM NUMBER: 95584848 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 Between Medcross, Inc. and Timothy R. Barnes (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 36,858 $1.00 $36,858 $100.00 Common Stock, $.007 par value $ ----- $ ---- $ Total $100.00 (2) Represents the maximum number of shares which may be issued pursuant to the Series CS Warrant to Purchase Common Shares of Medcross, Inc. (the "Warrant") issued in accordance with the Consulting Agreement between the Company and Timothy R. Barnes (the "Plan"). In addition to such shares, this Registration Statement covers such additional number of shares as may be required by reason of the operation of the antidilution provisions of such Plan. (3) Represents the exercise price per share of the shares that may be issued under the Warrant. (4) Calculated in accordance with Rule 457 on the basis of the average of the bid and ask prices for the Common Stock within five days prior to filing of this registration statement. (5) Represents the same shares described on the line above, which may be resold by the holder of the Warrant. (6) Pursuant to Rule 457(h)(3), no additional fee is payable since these shares, which may be offered for resale, are the same shares being registered hereby upon their initial issuance pursuant to the Plan. 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 Timothy R. Barnes (the "Consultant") upon the exercise of the Series CS Warrant to Purchase Common Shares of Medcross, Inc. (the "Warrant") issued pursuant to the terms of a Consulting Agreement, dated as of August 6, 1995 (the "Consulting Agreement") by and between the Company and the Consultant (the "Plan"). Pursuant to the terms of the Consulting Agreement, the Company is obligated to issue to the Consultant the Warrant to purchase an aggregate of 36,858 shares of Common Stock for a period of two years at an exercise price of $1.00 per share, in exchange for the Consultant's providing certain consulting services as requested by the President of the Company from time to time. The initial term of the Consulting Agreement is six months subject to extension by the written agreement of the parties. The foregoing information relating to the provisions of the Plan is intended to provide a summary thereof and does not purport to be a complete description of the Plan. Such summary should be read in conjunction with the Consulting Agreement which has been filed as Exhibit 10(c) 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. 4(b) Series CS Warrant to Purchase Common Shares of Medcross, Inc. 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, dated as of August 6, 1995, between the Company and Timothy R. Barnes. 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 offers or sales are being made, 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 intents 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-4 2 THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER SAID ACT OR (ii) AN EXEMPTION THEREFROM UNDER SAID ACT. Void after 5:00 p.m. (New York, New York time) on August 5, 1997 as provided herein. Issue Date: as of August 6, 1995 No. CS-1 SERIES CS WARRANT TO PURCHASE COMMON SHARES OF MEDCROSS, INC. Medcross, Inc. (the "Company), a Florida corporation, hereby certifies that for good and valuable consideration as described in that certain agreement dated as of August 6, 1995 and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Company, Timothy R. Barnes is entitled, subject to the terms set forth in this warrant (the "Warrant"), at any time or from time to time, but not later than August 5, 1997, to purchase from the Company thirty-six thousand eight hundred fifty-eight (36,858) shares of common stock of the Company (the "Shares") at the purchase price of one dollar ($1.00) per Share (such purchase price per Share, as adjusted from time to time pursuant to the provisions set forth below, being referred to herein as the "Exercise Price"). The Issue Date shall be the date set forth above. This Warrant and all rights hereunder, to the extent such rights shall not have been exercised, shall terminate and become null and void to the extent the Holder fails to exercise any portion of this Warrant prior to 5:00 p.m., New York, New York time, on the date which is two years from the Issue Date. 1. Restrictions on Transfer of Shares The Shares underlying this Warrant are restricted securities and have not been registered under the Securities Act of 1933, as amended (the "Act"), and may not be sold, transferred, pledged, hypothecated or otherwise disposed of in the absence of (i) an effective registration statement for such securities under said Act or (ii) an unqualified reasoned opinion of counsel reasonably satisfactory to the Company opining that the proposed transaction is exempt from registration under said Act. 2. Exercise of Warrant (a) This Warrant shall be exercisable in whole or in part at any time prior to its expiration. (b) All or any part of this Warrant may be exercised by the Holder of this Warrant (the "Holder") by surrendering it, with the form of subscription annexed hereto duly executed by such Holder, to the Company at its principal executive office or to the Company's transfer agent accompanied by payment in full, in cash or by certified or official bank check, of the Exercise Price payable in respect of all or part of the Warrant being exercised. If less than the entire Warrant is exercised, the Company shall, upon such exercise, execute and deliver to the Holder hereof a new Warrant in the same form as this Warrant evidencing the right to purchase Shares hereunder to the extent not exercised. This Warrant shall be deemed to have been exercised prior to the close of business on the date this Warrant is surrendered and payment is made in accordance with the foregoing provisions. (c) The Company shall, at the time of any exercise of all or part of this Warrant, upon the request of the Holder hereof, acknowledge in writing its continuing obligation to afford to such Holder any rights to which such Holder shall continue to be entitled after such exercise in accordance with the provisions of this Warrant; provided that if the Holder of this Warrant shall fail to make any such request, such failure shall not affect the continuing obligations of the Company to afford to such Holder any such rights. (d) The Shares which may be delivered upon the exercise of this Warrant shall, upon payment therefor as provided herein and delivery thereof, be fully paid and nonassessable and free from all taxes, liens and charges with respect thereto. (e) The Company shall cooperate with the Holder in an exercise pursuant to which all or part of the Shares will be sold simultaneously with the exercise of this Warrant with the broker- dealer participating in such sale being irrevocably instructed to remit the proceeds of the exercise to the Company upon settlement of the sale of the underlying Shares. 3. Fractional Shares No fractional securities or scrip representing fractional securities shall be issued upon the exercise of this Warrant. With respect to any fraction of a security called for upon any such exercise hereof, the Company shall pay to the Holder an amount in cash equal to such fraction multiplied by the current market value of such security, determined as follows: (a) If the security is listed on a national securities exchange or admitted to unlisted trading privileges on such exchange, the current value shall be the last reported sale price of the security on such exchange on the last business day prior to the date of exercise of this Warrant, or if no such sale is made on such day, the average closing bid and asked prices for such day on such exchange; or (b) If the security is not listed or admitted to unlisted trading privileges, the current value shall be the last reported sale price on the National Association of Securities Dealers Automated Quotation ("NASDAQ") National Market System ("NASDAQ/NMS") or the mean between the closing bid and asked quotations reported by the NASDAQ System or the NASD OTC Bulletin Board (or, if not so quoted, by the National Quotation Bureau, Inc.) on the last business day prior to the date of the exercise of this Warrant; or (c) If the security is not so listed or admitted to unlisted trading privileges and prices are not reported on NASDAQ, or the NASD OTC Bulletin Board (or by the National Quotation Bureau, Inc.), an amount, not less than the book value, determined in such reasonable manner as may be prescribed by the Board of Directors of the Company. 4. Exchange, Assignment or Loss of Warrant This Warrant is exchangeable, without expense, at the option of the Holder, upon presentation and surrender hereof to the transfer agent for other Warrants of different denominations entitling the holder thereof to purchase in the aggregate the same number of securities purchasable hereunder. This Warrant and any rights related thereto shall not be transferable or assigned by the Holder other than by will or by the laws of descent and distribution. This Warrant may be divided or combined with other Warrants that carry the same rights upon presentation hereof to the office of the Company's transfer agent together with a written notice specifying the names and denomination in which new Warrants are to be issued and signed by the Holder hereof. The term "Warrant" as used herein includes any new Warrants issued in substitution for or replacement of this Warrant, or into which this Warrant may be divided or exchanged. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and in the case of loss, theft or destruction, of reasonably satisfactory indemnification including a surety bond, and upon surrender and cancellation of this Warrant, if mutilated, the Company's transfer agent will cause to be executed and delivered a new Warrant of like tenor and date. Any such new Warrant executed and delivered shall constitute an additional contractual obligation on the part of the Company, whether or not this Warrant so lost, stolen, destroyed or mutilated shall be at any time enforceable by anyone. 5. Rights of the Holder The Holder of this Warrant shall not, by virtue hereof, be entitled to any voting or other rights of a stockholder in the Company, either at law or equity, and the rights of the Holder are limited to those expressed in this Warrant. 6. Registration Rights The shares of Common Stock underlying this Warrant shall be registered by the Company with the Securities and Exchange Commission on Form S-8, at the Company's sole expense, as soon after issuance of this Warrant as may be practicable, but not less than six months from the date of grant hereof. 7. Adjustments (a) The number of securities purchasable on exercise of this Warrant and the purchase prices therefor shall be subject to adjustment from time to time in the event that the Company shall: (1) pay a dividend in, or make a distribution of, shares of Common Stock, (2) subdivide its outstanding shares of Common Stock into a greater number of shares, (3) combine its outstanding shares of Common Stock into a smaller number of shares or (4) spin-off a subsidiary by distributing, as a dividend or otherwise, shares of the subsidiary to its stockholders. In any such case, the total number of Shares and the number of shares or other units of such total securities purchasable on exercise of this Warrant immediately prior thereto shall be adjusted so that the Holder shall be entitled to receive, at the same aggregate exercise price, the number of Shares and the number of shares or other units of such securities that the Holder would have owned or would have been entitled to receive immediately following the occurrence of any of the events described above had this Warrant been exercised in full immediately prior to the occurrence (or applicable record date) of such event. An adjustment made pursuant to this section 6(a) shall, in the case of a stock dividend or distribution, be made as of the record date and, in the case of a subdivision or combination, be made as of the effective date thereof. If, as a result of any adjustment pursuant to this section 6(a), the Holder shall become entitled to receive shares of two or more classes or series of securities of the Company, the Board of Directors of the Company shall equitably determine the allocation of the adjusted exercise price between or among shares or other units of such classes or series and shall notify the Holder of such allocation. (b) In the event of any reorganization or recapitalization of the Company or in the event the Company consolidates with or merges into or with another entity or transfers all or substantially all of its assets to another entity, then and in each such event, the Holder, on exercise of this Warrant as provided herein, at any time after the consummation of such reorganization, recapitalization, consolidation, merger or transfer, shall be entitled, and the documents executed to effectuate such event shall so provide, to receive the stock or other securities or property to which the Holder would have been entitled upon such consummation if the Holder had exercised this Warrant immediately prior thereto. In such case, the terms of this Warrant shall survive the consummation of any such reorganization, recapitalization, consolidation, merger or transfer and shall be applicable to the shares of stock or other securities or property receivable on the exercise of this Warrant after such consummation. (c) Whenever a reference is made in this Section 6 to the issue or sale of shares of Common Stock, the term "Common Stock" shall mean the Common Stock of the Company of the class authorized as of the date hereof and any other class of stock ranking on a parity with such Common Stock. (d) Whenever the number of securities purchasable upon exercise of this Warrant or the exercise prices thereof shall be adjusted as required herein, the Company shall forthwith file such information with its Secretary at its principal office, and with the price determined as herein provided and setting forth in detail the facts requiring such adjustment. Each such officer's certificate shall be made available at all reasonable times for inspection by the Holder and the Company shall, forthwith after such adjustment, deliver a copy of such certificate to the Holder. (e) The Company (1) will not cause the par value of any securities receivable on exercise of this Warrant to be in excess of the amount payable therefor on such exercise, and (2) will take all action as may be necessary or appropriate so that the Company may validly and legally issue fully paid and non-assessable shares (or other securities or property deliverable hereunder) upon the exercise of this Warrant. This Warrant shall bind the successors and assigns of the Company. (f) Notwithstanding anything in this Section 6 to the contrary, no adjustment in the number of securities purchasable on exercise of this Warrant shall be made with respect to dilution which would result from the issuance of Common Stock pursuant to the exercise of Warrants which have heretofore or may hereafter be granted pursuant to any employee incentive plan of the Company, whether qualified or non- qualified. 7. Reservation of Shares The Company shall at all times reserve, for the purpose of issuance on exercise of this Warrant, such number of shares of Common Stock or such class or classes of capital stock or other securities as shall from time to time be sufficient to comply with this Warrant, and the Company shall take such corporate action as may in the opinion of its counsel be necessary to increase its authorized and unissued shares of Common Stock or such other class or classes of capital stock or other securities in such number as shall be sufficient for such purpose. 8. Approvals The Company shall from time to time use its best efforts to obtain and continue in effect any and all permits, consents, registrations, qualifications and approvals of governmental agencies and authorities and to make all filings under applicable securities laws that may be or become necessary in connection with the issuance, sale, transfer and delivery of this Warrant and the issuance of securities on any exercise hereof. Nothing contained in this Section 8 shall in any way expand, alter or limit the rights of the Holder set forth in Section 1 hereof. 9. Notices All demands, notices, consents and other communications to be given hereunder shall be in writing and shall be deemed duly given when delivered personally or five days after being mailed by first class mail, postage prepaid, properly addressed, as follows: (a) if to the Company, to: Medcross, Inc. 3227 Bennet Street North St. Petersburg, Florida 33713 Attention: Henry Y.L. Toh, President with a copy to: De Martino Finkelstein Rosen & Virga 1818 N Street, N.W., Suite 400 Washington, D.C. 20036 Attention: Ralph V. De Martino, Esquire (b) if to the Holder, to: Timothy R. Barnes 2930 Clubhouse Drive West Clearwater, Florida 34621 The Company and the Holder may change such address at any time or times by notice hereunder to the other. 10. Amendments; Waivers; Terminations; Governing Law; Headings; Entire Agreement This Warrant and any term hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of such change, waiver, discharge or termination is sought. This Warrant shall be governed by and construed and interpreted in accordance with the laws of the State of Florida. The headings in this Warrant are for convenience of reference only and are not part of this Warrant. This Warrant is intended to and does contain and embody all of the understandings and agreements, both written and oral, of the parties hereto with respect to the subject matter of this Warrant, and there exists no oral agreement or understanding, express or implied, whereby the absolute, final and unconditional character and nature of this Warrant shall be in any way invalidated, empowered or affected. A modification or waiver of any of the terms, conditions or provisions of this Warrant shall be effective only if made in writing and executed with the same formality of this Warrant. IN WITNESS WHEREOF, Medcross, Inc. has duly caused this Warrant to be signed in its name and on its behalf by its duly authorized officers, as of the date first set forth above. MEDCROSS, INC. By: /s/ Henry Y. L. Toh ATTEST: Henry Y.L. Toh, President /s/ Stephanie E. Giallourakis Secretary Annex to Warrant FORM OF ASSIGNMENT (To be executed upon transfer of Warrant) FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to the right represented by the within Warrant, together with all rights, title and interest therein, and does hereby irrevocably constitute and appoint attorney to transfer such Warrant on the Warrant register of the within named Company, with full power of substitution. DATED: , 199 . Signature: (Signature must conform in all respects to name of holder as specified on the face of the Warrant) Signature Guaranteed: Annex to Warrant FORM OF SUBSCRIPTION (To be completed and signed only upon an exercise of the Warrant in whole or in part) TO: American Stock Transfer & Trust Co. as transfer agent for Medcross, Inc. The undersigned, the Holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by the Warrant for, and to purchase thereunder, Shares (as such terms are defined in the Warrant dated as of August 6, 1995, from Medcross, Inc. to Timothy R. Barnes) (or other securities or property), and herewith makes payment of $ therefor in cash or by certified or official bank check. The undersigned hereby requests that the Certificate(s) for such securities be issued in the name(s) and delivered to the address(es) as follows: Name: Address: Social Security Number: Deliver to: Address: If the foregoing Subscription evidences an exercise of the Warrant to purchase fewer than all of the Shares (or other securities or property) to which the undersigned is entitled under such Warrant, please issue a new Warrant, of like tenor, for the remaining portion of the Warrant (or other securities or property) in the name(s), and deliver the same to the address(es), as follows: Name: Address: DATED: , 199 . (Name of Holder) (Signature of Holder or Authorized Signatory) Signature Guaranteed: (Social Security or Taxpayer Identification Number of Holder)
EX-5 3 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 36,858 shares of Common Stock, $.007 par value (the "Common Stock") upon exercise of that certain Series CS Warrant to purchase Common Shares (the "Warrant") issued to Timothy R. Barnes (the "Consultant") pursuant to the terms of a certain Consulting Agreement dated as of August 6, 1995, by and between the Company 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 36,858 shares of Common Stock issuable upon exercise of the Warrant to the Consultant pursuant to the terms of the Warrant and which shares are subject of the Registration Statement have been duly authorized and when such shares of Common Stock are paid for and issued in accordance with the terms of the Warrant 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 4 CONSULTING AGREEMENT THIS CONSULTING AGREEMENT (the "Agreement"), dated as of August 6, 1995 between Medcross, Inc., a Florida corporation (the "Company"), and Timothy R. Barnes, an individual residing in Clearwater, Florida ("Consultant"). W I T N E S S E T H: WHEREAS, in light of the expertise and experience of Consultant, the Company desires to engage Consultant to provide the Company with consulting services and Consultant is willing and able to provide such services; and WHEREAS, the Company and Consultant desire to set forth in a formal written agreement the terms and conditions upon which Consultant shall provide services to the Company; NOW THEREFORE in consideration of the mutual benefits to be derived from this Agreement, the Company and Consultant hereby agree as follows: 1. Appointment; Consulting Services. (a) The Company hereby retains Consultant to render those consulting services contemplated by this Agreement until February 6, 1996. The term (the "Term") of this Agreement shall commence on the date hereof and shall terminate on the date specified hereinabove. Notwithstanding any other provision of this Section 1(a), the term of this Agreement may be extended beyond the Term by the written agreement of the parties. (b) During the Term hereof, Consultant agrees to render to the Company consulting advice as shall be reasonably requested from time to time by the President of the Company in connection with the business conducted or to be conducted by the Company. In performing services hereunder, Consultant shall report to the Company's President and shall perform such services from Consultant's residence in Tampa, Florida or such other location as may be agreed to by the parties. Consultant shall be required to devote up to five hours per week for the first three months and three hours per week thereafter to the performance of services hereunder. During the Term hereof, Consultant shall be an independent contractor of the Company and not an employee. During the Term hereof, Consultant shall have no power or authority to represent or bind the Company unless specifically authorized in writing by the President of the Company. 2. Payments to Consultant During the Term. The Company agrees to pay to Consultant during the Term and any extension thereof the following: (a) In consideration of Consultant's performance of the consulting services described herein during the Term hereof, the Company agrees to issue to the Consultant warrants (the "Consultant's Warrants") to purchase thirty-six thousand eight hundred fifty-eight (36,858) shares of the Company's Common Stock at a purchase price equal to the fair market value of the Common Stock on the date of grant. Such options shall be promptly issued following the execution of this Agreement and the delivery to the Company of all outstanding options heretofore granted to the Consultant, whether or not the same are vested or unvested, for cancellation together with any and all other documents, agreements or acknowledgements reasonably requested by the Company to evidence the cancellation of such options. The Consultant's options shall be fully vested and exercisable any time from date of grant up to two years thereafter. The shares of Common Stock underlying the Consultant's Warrants shall be registered by the Company with the Securities and Exchange Commission on Form S-8, at the Company's sole expense, as soon after issuance of the Consultant's Option as may be practicable, but not less than six months from the date of grant. (b) The Company shall reimburse Consultant for all reasonable out-of-pocket expenses directly incurred by Consultant in connection with Consultant's rendering of the consulting services set forth in this Agreement, provided, however, that the incurrence of such expenses in an amount greater than $100.00 must be approved in writing in advance by the President of the Company. Any such reimbursement hereunder shall be made by the Company within 14 days after submission by Consultant of supporting documentation as reasonably required by the Company. 3. Non-Competition. During the Term hereof and for six months thereafter, Consultant represents, warrants and covenants that he shall not, anywhere within the greater Tampa Bay, Florida metropolitan area, the United States of America or anywhere else in which the Company (or any of its subsidiaries) is then doing business, engage in activities in direct competition with the business of the Company or any subsidiary, whether as an individual, investor, partner, joint venturer, consultant, employee, agent, salesman, officer, or director or otherwise. Investments in less than five percent of the outstanding securities of any class of a publicly-traded company shall not be prohibited by this Section 3. The provisions of this Section 3 are subject to the provisions of Section 9 of this Agreement. 4. Confidential Information. The parties hereto recognize that a major need of the Company is to preserve its specialized knowledge, trade secrets, and confidential information. The strength and good will of the Company is derived from the specialized knowledge, trade secrets, and confidential information generated from experience with the activities undertaken by the Company and its subsidiaries. The disclosure of this information and knowledge to competitors would be beneficial to them and detrimental to the Company, as would the disclosure of information about the marketing practices, pricing practices, costs, profit margins, analytical techniques, and similar items of the Company and its subsidiaries. By reason of his position with the Company, Consultant has or will have access to, and has obtained or will obtain, specialized knowledge, trade secrets and confidential information about the Company's operations and the operations of its subsidiaries. Therefore, subject to the provisions of Section 8 hereof, Consultant hereby represents, warrants and covenants as follows, recognizing that the Company is relying on the same in entering into this Agreement: During the Term hereof and for six months following the last day of the Term hereof, except for the exclusive benefit of the Company, Consultant will not, directly or indirectly, use, disclose to others, or publish or otherwise make available to any other party any inventions or any confidential business information about the affairs of the Company and its subsidiaries, including but not limited to confidential information concerning their products, methods, analytical techniques, technical information, customer information, employee information, and other confidential information acquired by him in the course of his past or future services for the Company. Consultant agrees to hold as the Company's property all memoranda, books, papers, letters, formulas and other data, and all copies thereof and therefrom, in any way relating to the Company's or its subsidiaries' businesses and affairs, whether made by him or otherwise coming into his possession, and on termination of his employment, or on demand of the Company, at any time, to deliver the same to the Company within twenty four (24) hours of such termination or demand. 5. Reasonableness of Restrictions; Specific Enforcement. Consultant hereby agrees that the restrictions in this Agreement, including without limitation those relating to the duration of the provisions thereof and the territory to which such restrictions apply, are necessary and fundamental to the protection of the business and operation of the Company, its affiliates, subsidiaries and divisions thereof, and are reasonable and valid. Each party acknowledges and agrees that the Company would suffer irreparable damage if any of the provisions of Section 3 or Section 4 were not performed by Consultant in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an injunction or injunctions to prevent breaches of such provisions and to enforce specifically such provisions in any court of competent jurisdiction without the necessity of furnishing a bond of any type, and Consultant will not oppose the granting of such relief on the grounds that an adequate remedy at law exists. 6. Proprietary Information or Trade Secrets of Others. Consultant represents, warrants and covenants that he will not disclose to the Company, or use, or induce the Company to use, any proprietary information or trade secrets of others and represents and warrants that he has returned all property and confidential information belonging to the Company. Consultant further represents, warrants and covenants that he is not party to any agreement, oral or written, which restricts his right or capacity to execute this Agreement or to compete with a previous employer, associate or affiliate in any way whatsoever. 7. Consolidation; Merger; Sale of Assets; Change of Control. Nothing in this Agreement shall preclude the Company from combining, consolidating or merging with or into, transferring all or substantially all of its assets to, or entering into a partnership or joint venture with, another corporation or other entity, or effecting any other kind of corporate combination provided that the corporation resulting from or surviving such combination, consolidation or merger, or to which such assets are transferred, or such partnership or joint venture assumes this Agreement and all obligations and undertakings of the Company hereunder. Upon such a consolidation, merger, transfer of assets or formation of such partnership or joint venture, this Agreement shall inure to the benefit of, be assumed by, and be binding upon such resulting or surviving transferee corporation or such partnership or joint venture, and the term "Company," as used in this Agreement, shall mean such corporation, partnership or joint venture, or other entity and this Agreement shall continue in full force and effect and shall entitle Consultant and his heirs, beneficiaries and representatives to exactly the same compensation, benefits, perquisites, payments and other rights as would have been their entitlement had such combination, consolidation, merger, transfer of assets or formation of such partnership or joint venture not occurred. 8. Survival of Obligations. The obligations of the parties under Sections 3, 4, 5, 6, and 9 of this Agreement shall survive the termination for any reason of this Agreement (whether such termination is by the Company, by Consultant, upon the expiration of this Agreement or otherwise). 9. Reformation; Severability. In case any one or more of the provisions or part of a provision contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect in any jurisdiction, such invalidity, illegality or unenforceability shall be deemed not to affect any other jurisdiction or any other provision or part of a provision of this Agreement nor shall such invalidity, illegality or unenforceability affect the validity, legality or enforceability of this Agreement or any provision or provisions hereof in any other jurisdiction, and this Agreement shall be reformed and construed in such jurisdiction as if such provision or part of a provision held to be invalid or illegal or unenforceable had never been contained herein and such provision or part reformed so that it would be valid, legal and enforceable in such jurisdiction to the maximum extent possible. In furtherance and not in limitation of the foregoing, the Company and Consultant each intend that the representations, warranties and covenants contained in Sections 3 and 4 shall be deemed to be a series of separate representations, warranties and covenants, one for each county, state, territory or jurisdiction of the United States and any foreign country referenced therein. If, in any judicial proceeding, a court shall refuse to enforce any of such separate representations, warranties and covenants, then such unenforceable representations, warranties and covenants shall be deemed eliminated from the provisions hereof for the purpose of such proceedings to the extent necessary to permit the remaining separate representations, warranties and covenants to be enforced in such proceedings. If, in any judicial proceeding, a court shall refuse to enforce any one or more of such separate representations, warranties and covenants because the total time thereof is deemed to be excessive or unreasonable, then it is the intent of the parties hereto that such representations, warranties and covenants, which would otherwise be unenforceable due to such excessive or unreasonable period of time, be enforced for such lesser period of time as shall be deemed reasonable and not excessive by such court. 10. Entire Agreement; Amendment. This Agreement contains the entire agreement between the Company and Consultant with respect to the subject matter thereof. This Agreement may not be amended, waived, changed, modified or discharged except by an instrument in writing executed by or on behalf of the party against whom 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. 11. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) upon delivery, if personally delivered, (ii) the next business day, if delivered with all charges prepaid to a recognized overnight delivery service for next day delivery, or (iii) five days after mailing, if mailed, postage prepaid, via first class mail, in each such case as follows: (a) To the Company: (b) To Consultant: Medcross, Inc. Timothy R. Barnes 3227 Bennet Street North 2930 Clubhouse Drive West St. Petersburg, Florida 33713 Clearwater, Florida 34621 Attn: President with an additional copy by like means to: De Martino Finkelstein Rosen & Virga 1818 N Street, N.W., Suite 400 Washington, D.C. 20036 Attn: Ralph V. De Martino, Esquire and/or to such other persons and addresses as any party shall have specified in writing to the other. 12. Assignability. This Agreement shall not be assignable by Consultant and shall be binding upon, and shall inure to the benefit of, the successors of the Company. Notwithstanding any other provision of this Agreement, this Agreement shall be assignable by the Company provided that the assignee is a controlled subsidiary of the Company. 13. Representation by Counsel. Each of the parties hereto represents, warrants and covenants that he or it has had ample opportunity to consider entering into this Agreement and has had an opportunity to consult with counsel regarding this Agreement prior to executing the same. 14. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Florida without regard to the conflicts of law principles thereof. 15. Waiver and Further Agreement. Any waiver of any breach of any terms or conditions of this Agreement shall not operate as a waiver of any other breach of such terms or conditions or any other term or condition, nor shall any failure to enforce any provision hereof operate as a waiver of such provision or of any other provision hereof. Each of the parties hereto agrees to execute all such further instruments and documents and to take all such further action as the other party may reasonably require in order to effectuate the terms and purposes of this Agreement. 16. Headings of No Effect. The paragraph headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. 17. Counterparts. This Agreement may be executed by the parties hereto in one or more counterparts each of which shall be an original and all of which shall together constitute one and the same Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. ATTEST: MEDCROSS, INC. By: /s/ Henry Y.L. Toh Henry Y. L. Toh, President WITNESS: CONSULTANT: /s/ Timothy R. Barnes Timothy R. Barnes
EX-23 5 COOPERS & LYBRAND CONSENT OF INDEPENDENT AUDITORS 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 10K-SB. /s/ Coopers & Lybrand Tampa, Florida October 24, 1995
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