SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended December 31, 2002
Commission File Number 000-20175
NYER MEDICAL GROUP, INC.
(Exact name of registrant as specified in its charter)
Florida 01-0469607
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1292 Hammond Street, Bangor, Maine 04401
(Address of principal executive offices) (Zip Code)
(207) 942-5273 (Registrant's telephone number,
including area code)
Securities registered under Section 12(b) of the Exchange Act:
Name of Exchange
Title of Each Class on which registered
None None
Check whether the registrant has (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past twelve months (or for
such shorter periods that the registrant was required to file such reports) and
(2) has been subject to such filing requirements for the past 90 days. Yes X .
No .
As of February 14, 2003, there were 3,756,962 shares of common stock
outstanding, par value $.0001 per share.
1
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
INDEX
PART I
FINANCIAL INFORMATION
Page No.
Item 1. Financial Statements:
Consolidated Balance Sheets, December 31, 2002
and June 30, 2002 3
Consolidated Statements of Operations, Three Months
Ended December 31, 2002 and December 31, 2001 5
Consolidated Statements of Operations, Six Months
Ended December 31, 2002 and December 31, 2001 6
Consolidated Statements of Cash Flows, Six Months
Ended December 31, 2002 and December 31, 2001 7
Selected Notes to Consolidated Financial Statements 9
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 13
Item 3. Quantitative and Qualitative Disclosures About
Market Risk 19
Item 4. Controls and Procedures 19
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 20
Item 2. Changes in Securities 20
Item 3. Defaults upon Senior Securities 20
Item 4. Submissions of Matters to Vote of
Security Holders 20
Item 5. Other information 21
Item 6. Exhibits and Reports on Form 8-K 25
Signatures 22
Certification of Chief Executive Officer and
Chief Financial Officer 23
Exhibits and Reports on Form 8-K
1. 10.1 Third Amendment to 1993 Stock Option Plan 25
2. 10.2 2002 Stock Option Plan 26
3. 10.3 Stock Option Agreement, dated as of December 6,
2002, between Nyer Medical Group, Inc. and Samuel Nyer 39
4. 10.4 Stock Option Agreement, dated as of December 6,
2002, between Nyer Medical Group, Inc. and Alliance
Capital Resources, Inc. 48
5. 99.1 Certification by Chief Executive Officer and Chief Financial
Officer 57
2
FORM 10-Q NYER MEDICAL GROUP, INC 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
ASSETS
December 31, June 30,
2002 2002
(Unaudited)
Current assets:
Cash and cash equivalents $ 1,790,290 $ 1,550,374
Accounts receivable, less allowance
for doubtful accounts of $490,822 at
December 31, 2002 and $469,923
at June 30, 2002 4,110,000 4,541,505
Inventories, net 5,439,415 5,290,995
Prepaid expenses 259,308 300,495
Receivables from related parties 8,895 8,895
Total current assets 11,607,908 11,692,264
Property, plant and equipment, at cost:
Land 92,800 92,800
Building 641,508 641,508
Leasehold improvements 1,036,485 928,321
Machinery and equipment 74,653 71,189
Transportation equipment 388,830 366,099
Office furniture, fixtures,
and equipment 1,154,181 1,099,793
3,388,457 3,199,710
Less accumulated depreciation
and amortization (1,985,621) (1,823,060)
1,402,836 1,376,650
Goodwill and other deferred assets 454,026 454,026
Advances due from related companies 41,563 41,563
495,589 495,589
Total assets $13,506,333 $13,564,503
See accompanying notes to consolidated financial statements.
3
FORM 10-Q NYER MEDICAL GROUP, INC 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
LIABILITIES AND SHAREHOLDERS' EQUITY
December 31, June 30,
2002 2002
(Unaudited)
Current liabilities:
Current portion of long-term debt $ 182,040 $ 184,669
Accounts payable 3,947,822 4,138,814
Accrued payroll and related taxes 444,768 441,313
Accrued expenses and other
liabilities 298,261 431,520
Current portion of payable due
related party 206,110 206,110
Total current liabilities 5,079,001 5,402,426
Long-term debt, net of current
portion 236,597 329,367
Payable due related party, net
of current portion 41,403 101,403
Minority interest 1,111,251 965,758
Shareholders' equity:
Class A preferred stock, par value
$.0001, authorized, issued and
outstanding: 2,000 shares 1 1
Class B preferred stock, series 1,
par value $.0001, authorized:
2,500,000; issued and outstanding:
1,000 shares at December 31, 2002
and June 30, 2002
Common stock, par value $.0001
authorized: 10,000,000 shares; issued:
3,769,062 at December 31, 2002
and at June 30, 2002 377 377
Additional paid-in capital 17,691,946 17,691,946
Treasury stock (12,100 shares at
December 31, 2002 and
June 30, 2002) (52,249) (52,249)
Accumulated deficit (10,601,994) (10,874,526)
Total shareholders' equity 7,038,081 6,765,549
Total liabilities and
shareholders' equity $13,506,333 $13,564,503
See accompanying notes to consolidated financial statements.
4
FORM 10-Q NYER MEDICAL GROUP, INC 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
Three Months Ended
December 31, December 31,
2002 2001
Net sales $15,027,092 $13,217,216
Cost and expenses:
Cost of goods sold 11,760,564 10,540,564
Selling and retail 1,950,166 1,670,291
Warehouse and delivery 253,533 197,035
Administrative 857,195 724,237
14,821,458 13,132,127
Operating income 205,634 85,089
Other income (expense):
Interest expense (10,029) (5,496)
Interest income 11,831 10,202
Other 174 130,551
Total other income 1,976 135,257
Income before
minority interest 207,610 220,346
Minority interest (72,503) (49,153)
Income from continuing
operations before income 135,107 171,193
taxes
Provision for income taxes (40,000) (13,000)
Income from continuing
operations after income
taxes 95,107 158,193
Discontinued operations:
Loss from Nyer
Nutritional Systems - (10,724)
Net loss from discontinued
operations - (10,724)
Net Income $ 95,107 $ 147,469
Basic and diluted income (loss) per share:
Continuing operations $ .02 $ .04
Discontinued operations - -
Basic and diluted income (loss)
per share $ .02 $ .04
Weighted average common shares
outstanding 3,756,962 3,745,003
See accompanying notes to consolidated financial statements.
5
FORM 10-Q NYER MEDICAL GROUP, INC 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
Six Months Ended
December 31, December 31,
2002 2001
Net sales $29,539,942 $25,797,862
Cost and expenses:
Cost of goods sold 23,194,229 20,460,518
Selling and retail 3,777,539 3,223,277
Warehouse and delivery 508,213 395,388
Administrative 1,567,914 1,384,796
29,047,895 25,463,979
Operating income 492,047 333,883
Other income (expense):
Interest expense (17,840) (16,054)
Interest income 23,064 30,586
Other 754 152,650
Total other income 5,978 167,182
Income before
minority interest 498,025 501,065
Minority interest (145,493) (102,763)
Income from continuing
operations before income 352,532 398,302
taxes
Provision for income taxes (80,000) (26,000)
Income from continuing
operations after income
taxes 272,532 372,302
Discontinued operations:
Loss from Nyer
Nutritional Systems - (21,398)
Net loss from discontinued
operations - (21,398)
Net Income (loss) $ 272,532 $ 350,904
Basic and diluted income per share:
Continuing operations $ .07 $ .10
Discontinued operations - _ (.01)
Basic and diluted income
per share $ .07 $ .09
Weighted average common shares
outstanding 3,756,962 3,740,679
See accompanying notes to consolidated financial statements.
6
FORM 10-Q NYER MEDICAL GROUP, INC 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Six Months Ended
December 31, December 31,
2002 2001
Cash flows from operating activities:
Net income (loss) $ 272,532 $ 350,904
Adjustments to reconcile net
income (loss) to net cash
used in operating activities:
Depreciation 177,060 200,319
Amortization - 45,549
Gain on sale of property, plant
and equipment (300) -
Gain on Sale of respiratory
Division (77,001)
Minority interest 145,493 102,763
Decrease in deferred credit - (49,080)
Changes in certain working capital
elements 3,476 (424,815)
Net cash flows provided by
operating activities 598,261 148,639
Cash flows from investing activities:
Purchase of pharmacy assets (150,000)
Purchase of property, plant and
equipment (205,746) (67,319)
Proceeds from sale of division 150,000
Proceeds from sale of property, plant
and equipment 2,800 -
Net change in advances due from
related companies - (825)
Increase in other assets, net - (22,722)
Net cash used in
investing activities (202,946) (90,866)
Cash flows from financing activities:
Loan repayment from stock sale rec. 115,500
Proceeds from issuance of
long-term debt - 181,953
Payments of long-term debt (95,399) (62,330)
Net repayments of notes to
related parties (60,000) (60,000)
Net cash provided by (used in)
financing activities (155,399) 175,123
Net increase (decrease) in cash
and cash equivalents 239,916 232,896
Cash and cash equivalents,
beginning of period 1,550,374 374,423
Cash and cash equivalents,
end of period $1,790,290 $ 607,319
See accompanying notes to consolidated financial statements.
7
FORM 10-Q NYER MEDICAL GROUP, INC 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Six Months Ended
December 31, December 31,
2002 2001
Changes in certain working capital elements:
Accounts receivable, net $ 431,505 $ 270,564
Inventories (148,420) (54,685)
Prepaid expenses 41,187 23,067
Receivables from related parties - (4,390)
Accounts payable (190,992) (531,210)
Accrued payroll and related
taxes 3,455 (232,766)
Accrued expenses and other
liabilities (133,259) 104,605
Net change $ 3,476 $ (424,815)
Supplemental cash flow information:
Cash paid during the first six months:
Interest $ 15,822 $ 11,329
Income taxes $ 110,000 $ 10,912
8
FORM 10-Q NYER MEDICAL GROUP, INC 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
SELECTED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
1. Basis of Presentation: The consolidated financial statements included herein
have been prepared by the Company, without audit, in accordance with
accounting principals generally accepted in the United States of America and
pursuant to the rules and regulations of the Securities and Exchange
Commission. Certain information and footnote disclosures normally included
in financial statements prepared in accordance with accounting principals
generally accepted in the United States of America have been condensed or
omitted pursuant to such rules and regulations, although the Company
believes that the disclosures are adequate to make the information presented
not to be misleading. In the opinion of management, the amounts shown
reflect all adjustments necessary to present fairly the financial position
and results of operations for the periods presented. All such adjustments
are of a normal recurring nature.
It is suggested that the financial statements be read in conjunction
with the financial statements and notes thereto included in the Company's
Form 10-K for the year ended June 30, 2002.
2. Business Segments: The Company had three active business segments for the
three months ended December 31, 2002 and 2001 and for the six months ended
December 31, 2002 and 2001: (1) retail pharmacy drug store chain (2)
wholesale and retail sales of surgical, medical equipment and supplies, (3)
wholesale and retail distribution of equipment, supplies, and novelty items
to emergency medical service, fire departments, and police departments.
Business segments are determined by the management approach which analyses
segments based on products or services offered for sale. Corporate assets
include assets of discontinued operations.
Summary data for the three months ended December 31, 2002:
Medical and EMT, Fire,
Pharmacy Surgical and Police Equip.
Chain Supplies and Supplies Corporate Consolidated
Net Sales $11,840,600 $ 2,479,895 $ 706,597 $ - $15,027,092
Operating income
(loss) 290,570 54,763 (68,931) (181,295) 95,107
Total assets 9,207,742 2,904,186 684,641 709,764 13,506,333
Depreciation
and
amortization $ 60,815 $ 20,563 $ 7,610 $ 1,344 $ 90,332
Summary data for the six months ended December 31, 2002:
Medical and EMT, Fire,
Pharmacy Surgical and Police Equip.
Chain Supplies and Supplies Corporate Consolidated
Net Sales $23,227,203 $ 4,716,266 $ 1,596,473 $ - $29,539,942
Operating
income (loss) 582,750 73,027 (134,880) (248,365) 272,532
Total assets 9,207,742 2,904,186 684,641 709,764 13,506,333
Depreciation
and
amortization $ 117,040 $ 43,921 $ 15,295 $ 804 $ 177,060
9
FORM 10-Q NYER MEDICAL GROUP, INC 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
SELECTED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2. Business segments: continued,
Summary data for the three months ended December 31, 2001:
Medical and EMT, Fire,
Pharmacy Surgical and Police Equip.
Chain Supplies and Supplies Corporate Consolidated
Net Sales $ 9,881,519 $ 2,235,338 $ 1,100,359 $ - $13,217,216
Operating
income (loss) 196,277 118,016 (67,153) (88,947) 158,193
Total assets 7,059,285 3,037,703 1,172,097 1,254,331 12,523,416
Depreciation
and
amortization $ 78,883 $ 54,019 $ 14,543 $ 1,033 $ 148,478
Summary data for the six months ended December 31, 2001:
Medical and EMT, Fire,
Pharmacy Surgical and Police Equip.
Chain Supplies and Supplies Corporate Consolidated
Net Sales $18,940,460 $ 4,638,098 $ 2,219,304 $ - $25,797,862
Operating
income (loss) 411,434 179,459 (88,521) (130,070) 372,302
Total assets 7,059,285 3,037,703 1,172,097 1,254,331 12,523,416
Depreciation
and
amortization $ 131,451 $ 82,679 $ 29,701 $ 2,037 $ 245,868
3. Earnings per share
Basic earnings per share is computed by dividing income available to common
shareholders by the weighted-average number of common shares outstanding for the
period. Diluted earnings per share considers the potential dilution that could
occur if securities or other contracts to issue common stock were exercised or
converted into common stock or resulted in the issuance of common stock that
then shared in the earnings of the entity. Options and warrants for all periods
presented (1,695,600 for the six months ended December 31, 2002) were not
included in the computation of net income per share because the effect of
inclusion would be anti-dilutive.
10
FORM 10-Q NYER MEDICAL GROUP, INC 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
SELECTED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
4. Options and Warrants
The Company has a stock option plan under which employees and non-employee
directors may be granted options to purchase shares of the Company's common
stock at fair market value at the date of grant. Options vest semi-annually over
a three-year term to all directors and expire in ten years from date of grant.
The following table summarizes stock options at December 31, 2002:
Outstanding stock options Exercisable stock options
Weighted Weighted
average Weighted average Weighted
Exercise remaining average remaining average
price contractual exercise contractual exercise
range Shares life price Shares life price
$ 1.29-$1.71 762,000 9.8 $ 1.70 762,000 9.8 $ 1.70
2.10- 3.38 78,000 4.9 2.82 34,000 4.9 3.07
4.62- 6.88 669,600 8.8 6.09 661,600 8.8 6.10
$16.75 36,000 5.3 $16.75 36,000 5.3 $16.75
December 31, 2002
Weighted average
Shares exercise price
Outstanding at
beginning period 783,600 $6.30
Granted 762,000 1.70
Outstanding at end
of period 1,545,600 $4.03
Exercisable at end
of period 1,493,600 $4.02
Weighted average fair
value of options granted
during the period $1.70
The Company has adopted SFAS No. 123, "Accounting for Stock-Based
compensation." As permitted by SFAS No. 123, the Company has chosen to apply
APB Opinion No. 25, "Accounting for Stock Issued to Employees" (APB 25) and
related interpretations for stock options issued to employees. Accordingly, no
compensation cost has been recognized for options granted to employees.
11
FORM 10-Q NYER MEDICAL GROUP, INC 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
SELECTED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
4. Options and Warrants: continued,
As required by SFAS 123, pro forma disclosures regarding net income and
earnings per share must be computed as if the Company had accounted for its
employee stock options under the fair value method. The fair value for these
options was estimated at the date of grant using the Black-Scholes
option-pricing model with the following assumptions used for grants in the
period ended December 31, 2002:
Risk-free interest 2.61%
Expected life (years) 5
Expected volatility 112%
Expected dividend yield 0%
The Company's pro forma information under SFAS 123 for the six months ended
December 31, 2002 were as follows:
Net income (loss):
As reported $ 272,532
Pro forma $(763,002)
Income (loss) per share:
As reported $ .07
Pro forma $ (.20)
5. Subsequent Events
Effective January 1, 2003, the Massachusetts legislature has approved an
$1.30 assessment on all non-Medicare and non-Medicaid prescriptions as a way
to raise an additional $36,000,000 from pharmacies in 2003. Until the second
week in February, all the pharmacies in the state have been passing this
assessment on to the customer. On February 11, 2003 Walgreens, the state's
third largest pharmacy chain, announced that it would no longer impose the
$1.30 and it would rebate the amounts paid since January first. The other
pharmacy chains and independent pharmacies, including Eaton Apothecary, have
followed suit and are no longer charging the patients the $1.30 per
prescription. In the interim, the state has announced that the fee will be
reduced by half to $.65 per prescription as of July 1, 2003. At the present
time, the Company has not been able to determine the financial impact of not
passing on this fee to the customer.
12
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Results of Operations:
The following discussion provides information with respect to our results
of operations, liquidity, and capital resources on a comparative basis for the
six months ended December 31, 2002 as compared to the six months ended December
31, 2001 as well as for the three months ended December 31, 2002 as compared to
the three months ended December 31, 2001.
The Company had three active business segments for the six months ended
December 31, 2002 and December 31, 2001: 1) retail pharmacy drug store chain
("pharmacy chain"), (2) wholesale and retail sales of surgical, medical
equipment and supplies ("medical"), and (3) wholesale and retail distribution of
equipment, supplies, and novelty items to emergency medical service, fire
departments and police departments ( "EMT, fire, police equipment and
supplies"). Business segments are determined by the management approach which
analyzes results based on products or services offered for sale.
NET SALES
Total sales for the six months ended December 31, 2002 increased by 14.5%
to $29,539,942 from $25,797,862 for the six months ended December 31, 2001.
Total sales for the three months ended December 31, 2002 increased by 13.4%
to $15,027,092 from $13,217,216 for the three months ended December 31, 2001.
The following table shows sales by business segments for the six months ended
December 31, 2002 as compared to the six months ended December 31, 2001 and for
the three months ended December 31, 2002 as compared to the three months ended
December 31, 2001:
Six months Ended Three months ended
December 31, % increase December 31, % increase
Business Segment 2002 2001 (decrease) 2002 2001 (decrease)
Pharmacy chain $23,227,203 $18,940,460 22.6% $11,840,600 $ 9,881,519 19.8%
Medical equipment
and supplies 4,716,266 4,638,098 1.7 2,479,895 2,235,338 1.1
EMT, fire, police
equipment and
supplies 1,596,473 2,219,304 (28.1) 706,597 1,100,359 (35.8)
Total for business
segments $29,539,942 $25,797,862 14.5% $15,027,092 $13,217,216 13.4%
13
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS, continued,
Results of Operations: continued,
The pharmacy chain segment's sales increase of $4,286,743 for the six months
ended December 31, 2002 as compared to December 31, 2001 was due to the purchase
of an existing pharmacy and a continuing increase in volume on prescription
drugs as a result of a continuing marketing campaign focused on assisted-living
and home-based sectors, increased advertising and home delivery service.
Additionally, the pharmacy chain continues to increase its sales of prescript-
tions to non-profit organizations. The reasons for the pharmacy chain segment's
sales increase for the three months ended December 31, 2002 of $1,959,081 as
compared to December 31, 2001 are the same as mentioned above.
The medical equipment and supplies segment's sales increased $78,168 for the
six months ended December 31, 2002 as compared to the same period ended December
31, 2001, due to increased sales at its subsidiary, Nyer Internet. ADCO had a
decrease in their sales of supplies and equipment due to their discontinuing of
unprofitable items and increased competition from cut rate competitors. Nyer
Internet's sales increase is due to the company increasing the number of
products available on-line increased advertising. This segment also saw an
increase in sales for the three months ended December 31, 2002 as compared to
the three months ended December 31, 2001 of $244,557. The main reasons for this
increase are as mentioned above.
The EMT, fire, police equipment and supplies segment had a decrease in
their sales of $622,831 for the six months ended December 31, 2002 as compared
to the same period ended December 31, 2001. This is due to many factors
including tighter municipal budgets throughout the sales territory and the
entire country, and a down turn in the economy resulting in less tax revenues
which results in less available funds for the fire departments. In addition,
fire departments have partially altered the focus of their purchasing to include
merchandise that relates to biological and chemical items and homeland security
products, which Anton and Conway do not market. The EMT, fire, police equipment
and supplies segment had a decrease in their sales of $393,762 for the three
months ended December 31, 2002 as compared to the same period ended December 31,
2001. The main reasons for this decrease are as mentioned above.
GROSS PROFIT MARGINS. Our overall gross margins were 21.5% for the six months
ended December 31, 2002, an increase of .8% over the same period ended December
31, 2001. Overall gross margins for the three months ended December 31, 2002
were 21.7%, an increase of 1.4% for the same period ended December 31, 2001.
14
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS, continued,
Results of Operations: continued,
GROSS PROFIT MARGINS: continued,
The following is a table of gross margin percentages by business segments for
the six months ended December 31, 2002 and 2001 and for the three months ended
December 31, 2002 and 2001:
Six months ended Three months ended
December 31, December 31,
Business Segment 2002 2001 2002 2001
Pharmacy chain 20.1% 18.8% 20.3% 18.4%
Medical equipment
and supplies 28.0 28.1 28.3 28.8
EMT, fire, police
equipment and
supplies 22.0 21.6 22.6 19.6
Total for business
segments 21.5% 20.7% 21.7% 20.3%
The pharmacy chain's gross margin increased 1.3% for the first six months
ended December 31, 2002 to 20.1% as compared 18.8% for the same period of 2001.
Because of increased sales, volume discounts increased from some of their
suppliers.
The medical equipment and supplies segment's gross margin decreased from
28.1% for the six months ended 2002 to 28.0% for the six months ended December
31, 2001. The decrease in margin for the three months ended December 31, 2002 of
..5% as compared to three months ended December 31, 2001 is due to increased
sales volume for Nyer Internet which generally has lower margins consistent with
Internet marketers.
The EMT, fire, police equipment and supplies segment had a slight increase
in its margins to 22.0%, for the six months ended December 31, 2002 as compared
21.6% for the six months ended December 31, 2001. This increase was the result
of concentration on increasing its gross profit margins. They also experienced
an increase in its margins to 22.6% for the three months ended December 31, 2002
as compared 19.6% for the three months ended December 31, 2001.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES.
Consolidated selling, general and administrative expenses ("S,G & A")increased
$850,205 to $5,853,666 for the six months ended December 31, 2002, as compared
to $5,003,461 for the six months ended December 31, 2001. Consolidated S,G & A
expenses increased $469,331 to $3,060,894 for the three months ended December
31, 2002, as compared to $2,591,563 for the three months ended December 31,
2001.
15
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS, continued,
Results of Operations: continued,
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES: continued,
The following table shows the breakdown by business segments for the six
months ended December 31, 2002 and 2001 and for the three months ended December
31, 2002 and 2001:
Six months ended Three months ended
December 31, December 31,
Business Segment 2002 2001 2002 2001
Pharmacy chain $3,802,718 $3,044,399 $1,969,988 $1,590,544
Medical equipment
and supplies 1,245,162 1,202,383 645,773 600,894
EMT, fire, police
equipment and
supplies 463,250 545,289 216,915 272,094
Corporate 342,536 211,390 228,218 128,031
Total for business
segments $5,853,666 $5,003,461 $3,060,894 $2,591,563
The Pharmacy chain had an increase in its S,G & A expenses of $758,319 to
$3,802,718 for the six months ended December 31, 2002 as compared to $3,044,399
for the six months ended December 31, 2001. Its increase came mainly from higher
labor costs and expenses associated with the purchase of an existing pharmacy
and the increase in sales. The Pharmacy chain had an increase in its S,G & A
expenses of $379,444 to $1,969,988 for the three months ended December 31, 2002
as compared to $1,590,544 for the three months ended December 31, 2001. The
reasons for the increase in S,G & A are as stated above.
The medical equipment and supplies segment's S,G & A expenses increased
$42,779 to $1,245,162 for the six months ended December 31, 2002. This increase
is expenses for its internet subsidiary due to increased advertising and
personnel costs. The medical equipment and supplies segment's S,G & A expenses
increased $44,879 to $645,773 for the three months ended December 31, 2002. The
reasons for the increases are as stated above.
The EMT, fire, police equipment and supplies segment experienced a decrease
in its S,G & A expenses of $82,039 to $463,250 for the six months ended December
31, 2002 as compared $545,289 for the six months ended December 31, 2001. This
decrease was due to lower sales. The EMT, fire, police equipment and supplies
segment experienced a decrease in its S,G & A expenses of $55,179 to $216,915
for the three months ended December 31, 2002 as compared $272,094 for the three
months ended December 31, 2001. The reasons for the decrease are as stated
above.
The Corporate segment's overhead had an increase due mainly to additional
overhead attributable to additional accounting, legal and stock related
expenses.
16
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS, continued,
Results of Operations: continued,
CONTINUING OPERATIONS. We had a profit from continuing operations for the six
months ended December 31, 2002 of $272,532 as compared a profit of $372,302 for
for the six months ended December 31, 2001. We had a profit from continuing
operations for the three months ended December 31, 2002 of $95,107 as compared
to a profit of $158,193 for the three months ended December 31, 2001.
The following table shows the breakdown by business segments for the six
months ended December 31, 2002 and 2001 and for the three months ended December
31, 2002 and 2001:
Six months ended Three months ended
December 31, December 31,
Business Segment 2002 2001 2002 2001
Pharmacy chain $ 582,750 $ 411,434 $ 290,570 $ 196,277
Medical and
surgical supplies 73,026 179,459 54,763 118,016
EMT, fire, police
equipment and
supplies (134,880) (88,521) (68,931) (67,153)
Corporate (248,364) (130,070) (181,295) (88,947)
Total for business
segments $ 272,532 $ 372,302 $ 95,107 $ 158,193
The Pharmacy chain had an increase in its profits of $171,316 to $582,750
for six months ended December 31, 2002 as compared to a profit of $411,434 for
the six months ended December 31, 2001. The increased profit is due to increased
sales volume and gross profit margins. The Pharmacy chain had an increase in its
profits of $94,293 to $290,570 for the three months ended December 31, 2002 as
compared to a profit of $196,277 for the three months ended December 31, 2001.
The reasons for the increase are as stated above.
The medical equipment and supplies segment showed a profit for the six
months ended December 31, 2002 of $73,026 as compared to a profit $179,459 for
the six months ended December 31, 2001. The main reason for this decrease in
profit was due to the gain recorded from the sale of its respiratory division in
December 2001. The medical equipment and supplies segment showed a profit for
the three months ended December 31, 2002 of $54,763 as compared to a profit of
$118,016 for the three months ended December 31, 2001. The reasons for the
decrease in profits are stated above.
The EMT, fire, police equipment and supplies segment's loss was $134,880 for
the six months ended December 31, 2002 as compared to $88,521 for the six months
ended December 31, 2001. This is due to many factors including tighter municipal
budgets throughout the sales territory and the entire country, and a down turn
in the economy resulting in less tax revenues which results in less available
funds for the fire departments. In addition, fire departments have partially
altered the focus of their purchasing to include merchandise that relates to
biochemical items and homeland security products, which Anton and Conway do not
market. The EMT, fire, police equipment and supplies segment's
17
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS, continued,
Results of Operations: continued,
CONTINUING OPERATIONS: continued,
loss for the three months ended December 31, 2002 was $68,931 as compared to
$67,153 for the three months ended December 31, 2001. The reason for the loss is
a stated above. This segment is experiencing increased competition and the
effects.
The Corporate segment's overhead had an increase due mainly to additional
overhead attributable to additional accounting, legal and stock related
expenses.
DISCONTINUED OPERATIONS. On October 25, 1999, the Board of Directors approved a
plan for the disposal of its investment in Nyer Nutritional.
Its results have been reported as discontinued operations for all periods
presented.
In May 2002, the Company assigned all of its rights, licenses and
interest in its patents to Nyer Nutritional's minority shareholder. In return,
the minority shareholder released the Company from any and all obligations.
Nyer Nutritional incurred $0 in net costs for the six months ended December
31, 2002 and $21,398 in net costs for the six months ended December 31, 2001 .
Nyer Nutritional incurred $0 in net costs for the three months ended December
31, 2002 as compared to $10,724 in net costs for the three months ended December
31, 2001.
Liquidity and Capital Resources
Net cash provided by operating activities was $598,261 for the six months
ended December 31, 2002 as compared to $148,639 for the same period ended
December 31, 2001.
The net cash used in investing activities was $(202,946) and $(90,866), for
the six months ended December 31, 2002 and 2001, respectively.
Net cash (used in) provided by financing activities was $(155,399) for six
months ended December 31, 2002 as compared to $175,123 for the same period in
2001.
We anticipate our current cash resources to be adequate to fund our current
operating needs.
18
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
Item 3. Quantitative and Qualitative Disclosures About Market Risk
We do not have any material risk with respect to changes in foreign
currency exchange rates, commodities prices or interest rates. We do not believe
that we have any other relevant market risk with respect to the categories
intended to be discussed in this item of this report.
Item 4. Controls and Procedures.
a) Evaluation of disclosure controls and procedures. Based upon their
evaluation as of a date within 90 days of the filing date of this Quarterly
Report on Form 10-Q, our principal executive officer and principal financial
officer have concluded that our disclosure controls and procedures (as defined
in Rules 13a-14(c)and 15d-14(c) under the Securities and Exchange Act of 1934
(the "Exchange Act")) are effective to ensure that information required to be
disclosed by us in reports that we file or submit under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified
in Securities and Exchange Commission rules and forms.
b) Changes in internal controls. There were no significant changes in our
internal controls or in other factors that could significantly affect these
controls subsequent to the date of their evaluation, including any corrective
actions with regard to significant deficiencies and material weaknesses.
19
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
PART II
Item 1. Legal Proceedings None
Item 2. Changes in Securities None
Item 3. Defaults upon Senior Securities None
Item 4. Submissions of Matters to Vote of Security Holders
At the Company's annual meeting of shareholders held on December 6, 2002,
the shareholders of the Company elected the following persons as directors of
the Company each to serve for a three-year term until the Company's annual
meeting of shareholders for 2005 and until their successors are duly elected and
qualified: Samuel Nyer and Donald C. Lewis, Jr. The results of the voting were
as follows:
VOTES FOR VOTES AGAINST ABSTENTIONS
Samuel Nyer 6,860,102 45,710 9,350
Donald C. Lewis, Jr. 6,860,102 45,710 9,350
Each of the following persons' terms as directors continued after
the meeting: Stanley Dudrick, John Milledge, Kenneth Nyer, M. Randolph
Prince and James J. Schweiger.
Also at the annual meeting of shareholders, the shareholders ratified the board
of directors approval of an amendment to the 1993 Stock Option Plan of the
Company, with 5,036,538 votes for ratification, 63,843 votes against
ratification and 9,591 abstentions.
Further, at the annual meeting of shareholders, the shareholders ratified the
board of directors approval of the establishment of the 2002 Stock Option Plan
of the Company, with 5,034,718 votes for ratification, 64,492 votes against
ratification and 10,762 abstentions.
Further, at the annual meeting of shareholders, the shareholders ratified the
board of directors approval of the grant of stock options under the 2002 Stock
Option Plan of the Company to certain persons who were previously granted stock
options under the 1993 Stock Option Plan of the Company, with 5,034,733 votes
for ratification, 71,323 votes against ratification and 3,916 abstentions.
Further, at the annual meeting of shareholders, the shareholders ratified the
board of directors approval of a certain Stock Option Agreement between the
Company and Samuel Nyer, with 5,037,999 votes for ratification, 66,661 votes
against ratification and 5,312 abstentions.
Further, at the annual meeting of shareholders, the shareholders ratified the
board of directors approval of a certain Stock Option Agreement between the
Company and Alliance Capital Resources, Inc., with 5,035,218 votes for
ratification, 62,157 votes against ratification and 15,597 abstentions.
20
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
PART II, continued:
Item 4. Submissions of Matters to Vote of Security Holders: continued,
Further, at the annual meeting of shareholders, the shareholders ratified the
board of directors approval of a certain amendment to the articles of
incorporation of the Company, with 6,863,064 votes for ratification, 48,632
votes against ratification and 3,466 abstentions.
Further, at the annual meeting of shareholders, the shareholders ratified the
board of directors selection of Sweeney, Gates & Co. as the Company's
independent auditors for the fiscal year ending June 30, 2003, with 6,900,325
votes for ratification, 14,306 votes against ratification and 531 abstentions.
Further, at the annual meeting of shareholders, the shareholders authorized the
transaction of any other lawful business that may properly come before the
Annual Meeting of shareholders with 6,892,640 votes for ratification, 19,191
votes against ratification and 3,331 abstentions.
Item 5. Other information
The Company is still actively seeking to acquire medical related companies.
Item 6. Exhibits and Reports on Form 8-K
(a) 1. 10.1 Third Amendment to 1993 Stock Option Plan
2. 10.2 2002 Stock Option Plan
3. 10.3 Stock Option Agreement, dated as of December 6, 2002, between
Nyer Medical Group, Inc. and Samuel Nyer
4. 10.4 Stock Option Agreement, dated as of December 6, 2002, between
Nyer Medical Group, Inc. and Alliance Capital Resources, Inc.
5. 99.1 Certification by Chief Executive Officer and Chief Financial
Officer
(b) Reports on Form 8-K None
21
FORM 10-Q NYER MEDICAL GROUP, INC. 000-20175 DECEMBER 31, 2002
NYER MEDICAL GROUP, INC. AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NYER MEDICAL GROUP, INC.
Date: February 14, 2003 /s/ Samuel Nyer
Samuel Nyer,
Chief Executive Officer
and Principal Executive
Officer
Date: February 14, 2003 /s/ Karen L. Wright
Karen L. Wright,
Chief Financial Officer
and Principal Financial
Officer
22
CERTIFICATIONS
I, Samuel Nyer, Chief Executive Officer and Principal Executive
Officer of Nyer Medical Group, Inc. certify that:
1. I have reviewed this quarterly report on Form 10-Q of Nyer Medical Group,
Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this quarterly
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d- 14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly
during the period in which this quarterly report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the Evaluation Date); and
c) presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our evaluation
as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on our
most recent evaluation, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent
functions):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report
financial data
and have identified for the registrant's auditors any material weaknesses
in internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal controls
subsequent to the date of our most recent evaluation, including any corrective
actions with regard to significant deficiencies and material weaknesses.
/s/ Samuel Nyer
Chief Executive Officer and
Principal Executive Officer
February 14, 2003
23
CERTIFICATIONS
I, Karen L. Wright, Chief Financial Officer and Principal
Financial Officer of Nyer Medical Group, Inc. certify that:
1. I have reviewed this quarterly report on Form 10-Q of Nyer Medical Group,
Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this quarterly
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d- 14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly
during the period in which this quarterly report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure controls and
procedures as of a date within 90 days prior to the filing date of this
quarterly report (the Evaluation Date); and
c) presented in this quarterly report our conclusions about the
effectiveness of the disclosure controls and procedures based on our evaluation
as of the Evaluation Date;
5. The registrant's other certifying officers and I have disclosed, based on our
most recent evaluation, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent
functions):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal controls; and
6. The registrant's other certifying officers and I have indicated in this
quarterly report whether or not there were significant changes in internal
controls or in other factors that could significantly affect internal controls
subsequent to the date of our most recent evaluation, including any corrective
actions with regard to significant deficiencies and material weaknesses.
/s/ Karen L. Wright
Chief Financial Officer
and Principal Financial Officer
February 14, 2003
24
Item 6. Exhibits and Reports on Form 8-K
1. 10.1 Third Amendment to 1993 Stock Option Plan
THIRD AMENDMENT
TO THE NYER MEDICAL GROUP
1993 STOCK OPTION PLAN
Whereas, the Nyer Medical Group, Inc. (the "Company) adopted the 1993
Stock Option Plan, effective July 21, 1993 (the "1993 Plan");
Whereas, the Company desires to amend certain provisions of
the 1993 Plan, with retroactive effect to the effective date of the plan;
Whereas, the Company desires to no longer grant options under
the 1993 Plan as of the date of the effectiveness of the 2002 Stock Option Plan.
The 1993 Plan is therefore amended as follows:
1. Paragraph 1(c) is amended to read: "directors of the Company with the
opportunities to purchase stock in the Company pursuant to options granted
hereunder ("Non-Discretionary Options")."
2. The second sentence of Paragraph 4 is amended to read: "The aggregate number
of shares of Common Stock which may be issued pursuant to the Plan is 1,000,000,
subject to adjustment as provided in Paragraph 13."
3. The first sentence of Paragraph 5 shall be amended to read: "Options may be
granted under the Plan at any time during the period commencing July 21, 1993
and ending on the date of the effectiveness of the 2002 Stock Option Plan."
4. Except as amended hereby, the 1993 Plan shall continue in effect in
accordance with its terms.
25
Item 6. Exhibits and Reports on Form 8-K: continued,
2. 10.2 2002 STOCK OPTION PLAN
NYER MEDICAL GROUP, INC. 2002 STOCK OPTION PLAN
NYER MEDICAL GROUP, INC.
2002 STOCK OPTION PLAN
TABLE OF CONTENTS
ARTICLE 1 ESTABLISHMENT AND PURPOSES 1
1.1 Establishment and Effective Date 1
1.2 Purposes 1
1.3 References to Law 1
ARTICLE 2 AWARDS 1
2.1 Form of Awards 1
2.2 Maximum Shares Available; Maximum Annual Awards 1
2.3 Return of Prior Awards 1
ARTICLE 3 ADMINISTRATION 1
3.1 Committee 1
3.2 Powers of the Committee 2
3.3 Delegation 2
3.4 Interpretations 2
3.5 Liability; Indemnification 2
ARTICLE 4 ELIGIBILITY 2
ARTICLE 5 STOCK OPTIONS 2
5.1 Grant of Options, Option Term 2
5.2 Designation as Non-Qualified Stock Option or
Incentive Stock Option 2
5.3 Automatic Stock Options 3
5.4 Exercise Price 3
5.5 Exercise and Payment 3
5.6 Vesting 3
5.7 No Rights as a Stockholder 3
5.8 Incentive Stock Options 4
5.9 Notice to Company of ISO Disqualifying Disposition 4
5.10 Conversion of Incentive Stock Options 4
ARTICLE 6 NONTRANSFERABILITY OF OPTIONS 4
ARTICLE 7 EFFECT OF TERMINATION OF EMPLOYMENT, DISABILITY, RETIREMENT OR
DEATH 4
7.1 General Rule 4
7.2 Disability or Retirement 5
7.3 Death 5
7.4 Termination of Automatic Stock Options 5
7.5 Termination of Unvested Options 5
26
ARTICLE 8 ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. 5
8.1 Adjustments 5
8.2 Stock-Dividends and Stock Splits 5
8.3 Consolidation, Acquisition or Merger 5
8.4 Recapitalization or Reorganization 6
8.5 Dissolution or Liquidation 6
8.6 Modification of ISO's 6
8.7 Issuances of Securities 6
8.8 Adjustments 6
8.9 Lock-Up Agreement 6
ARTICLE 9 TERM; AMENDMENT AND TERMINATION 6
ARTICLE 10 WRITTEN AGREEMENT 7
ARTICLE 11 MISCELLANEOUS PROVISIONS 7
11.1 Tax Withholding 7
11.2 Securities Laws 7
11.3 Compliance with Section 16(b) 7
11.4 Successors 7
11.5 General Creditor Status 7
11.6 No Right to Employment 7
11.7 Notices 8
11.8 Severability 8
11.9 Governing Law 8
27
ARTICLE 1 ESTABLISHMENT AND PURPOSES
1.1 Establishment and Effective Date
Nyer Medical Group, Inc., a Florida corporation (the
"Corporation"), hereby establishes a stock option plan to be known as the "Nyer
Medical Group, Inc. 2002 Stock Option Plan" (the "Plan"). The Plan shall become
effective as of December 6, 2002, subject to the approval of the stockholders of
the Corporation within twelve (12) months from such effective date. Upon
approval of the Plan by the Board of Directors of the Corporation (the "Board"),
awards may be made through the agency of the committee appointed by the Board
under Article 3 of the Plan (the "Committee"). In the event that such
stockholder approval is not obtained within such 12-month period, any awards
made hereunder shall be canceled and all rights of optionees hereunder
("Optionees") with respect to such awards shall thereupon automatically cease.
1.2 Purposes
The purposes of the Plan are (i) to encourage and enable
employees, consultants and directors (subject to such requirements as may be
prescribed by the Committee) of the Corporation, its subsidiaries and its
affiliates to acquire a proprietary interest in the growth and performance of
the Corporation, (ii) to generate an increased incentive for key employees,
consultants and directors to contribute to the Corporation's future success and
prosperity (as well as the success and prosperity of its subsidiaries and
affiliates), thus enhancing the value of the Corporation for the benefit of its
stockholders, and (iii) to enhance the ability of the Corporation, its
subsidiaries and its affiliates to attract and retain key employees, consultants
and directors who are essential to the progress, growth and profitability of the
Corporation, its subsidiaries and its affiliates, in each case through the
ownership of the Corporation's common stock ("Common Stock"), and rights
relating to the Common Stock.
1.3 References to Law
References to specific provisions of law shall be deemed to
include references to amendments or supplements thereto or subsequent provisions
of law of similar import.
ARTICLE 2 AWARDS
2.1 Form of Awards
Awards under the Plan may be granted any combination of the
following forms: (i) incentive stock options ("Incentive Stock Options") meeting
the requirements of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code") and the terms of Article 4 and Sections 5.4 and 5.8 of this Plan;
(ii) non-qualified stock options ("Non-Qualified Stock Options"), and (iii)
Non-Qualified Stock Options that are automatic stock options ("Automatic Stock
Options") (unless otherwise indicated, references in the Plan to "Options" shall
include Incentive Stock Options, Non-Qualified Stock Options, and Automatic
Stock Options).
2.2 Maximum Shares Available; Maximum Annual Awards
The maximum aggregate number of shares of Common Stock
available for award under the Plan (pursuant to the granting of Options) is
3,000,000 subject to adjustment pursuant to Article 8 hereof. The maximum
aggregate number of shares of Common Stock that may be awarded under the Plan
(pursuant to the granting of Options) to any individual during any calendar year
is 1,000,000 shares, subject to the limitations of Section 5.7 as to Incentive
Stock Options and also subject to adjustment pursuant to Article 8 hereof.
Shares of Common Stock issued under the Plan (pursuant to the granting of
Options) may be either authorized but unissued shares or issued shares
reacquired by the Corporation. In the event that any Option granted under the
Plan expires unexercised or is terminated, surrendered or canceled without being
exercised in whole or in part for any reason, then the shares underlying such
unexercised Option shall be available for subsequent awards under the Plan upon
such terms and conditions as the Committee may determine.
28
2.3 Return of Prior Awards
As a condition to any subsequent award to an Optionee under
the Plan, the Committee shall have the right, in its sole discretion, to require
the Optionee to return to the Corporation awards previously granted under the
Plan. Subject to the provisions of the Plan, such new award shall be upon such
terms and conditions as are specified by the Committee at the time the new award
is granted.
ARTICLE 3 ADMINISTRATION
3.1 Committee
Awards of Options shall be determined, and the Plan shall be
administered by, the Committee established hereunder. The Committee shall be
appointed from time to time by the Board and shall serve at the pleasure of the
Board. So long as the Corporation has outstanding a class of equity securities
required to be registered under Section 12 of the Securities Exchange Act of
1934, as amended (the "1934 Act"), the Corporation shall endeavor to grant,
designate and amend any Options hereunder only through a Committee consisting
solely of two or more persons each of whom shall qualify as (i) a "Non-Employee
Director", as that term is defined in subparagraph (b)(3)(i) of Rule 16b-3
("Rule 16b-3") promulgated under the 1934 Act and (ii) an "Outside Director",
within the meaning of Section 162(m) of the Code; provided, however, that any
actions taken by the Committee in circumstances in which the members of the
Committee do not qualify as Non-Employee Directors and Outside Directors shall
nonetheless constitute valid actions by such Committee, and provided, further,
however, that if at any time a Committee shall not have been appointed or shall
have fewer than two members, the powers of the Committee shall be exercised by
the full Board. In order to comply with the provisions of Rule 16b-3, the full
Board may ratify and approve any actions taken by the Committee in such
circumstances as the Board shall deem appropriate
3.2 Powers of the Committee
Subject to the express provisions of the Plan, the Committee
shall have the power and authority: (i) to grant Options and to determine the
exercise price of the shares of Common Stock covered by each Option, the term of
each Option, the number of shares of Common Stock to be covered by each Option,
the time or times at which each Option shall become exercisable and the duration
of the exercise period applicable to each Option; (ii) to designate Options as
Incentive Stock Options or Non-Qualified Stock Options; (iii) to determine the
employees, consultants and directors to whom, and the time or times at which,
Options shall be granted or made, and (iv) to take all other actions
contemplated to be taken by the Committee under the Plan, including, but not
limited to, interpreting the Plan and authorizing any written agreement to relay
an award made hereunder, as well as any amendment to such written agreement.
3.3 Delegation
The Committee may delegate to one or more of its respective
members or to any other person or persons such ministerial duties hereunder as
it may deem advisable; provided, however, that the Committee may not delegate
any of its responsibilities hereunder to any person who is not both a
"Non-Employee Director", as that term is defined in subparagraph (b)(3)(i) of
Rule 16b-3, and an "Outside Director", within the meaning of Section 162(m) of
the Code. The Committee may also employ attorneys, consultants, accountants or
other professional advisors and shall be entitled reasonably to rely upon the
advice opinions or valuations of any such advisors.
3.4 Interpretations
The Committee shall have discretionary authority to interpret
the terms of the Plan, to adopt and revise rules, regulations and policies to
administer the Plan and to make any other factual determinations, which it
believes to be necessary or advisable for the administration of the Plan. All
actions taken and interpretations and determinations made by the Committee in
good faith shall be final and binding upon the Corporation, all Optionees and
all other interested persons.
29
3.5 Liability; Indemnification
No member of the Board or the Committee, nor any person to
whom ministerial duties have been delegated, shall be personally liable for any
action, interpretation or determination made with respect to the Plan or awards
made thereunder.
In addition to such other rights of indemnification as he or
she may have as a member of the Board, and with respect to administration of the
Plan and the granting of Options under it, each member of the Board and of the
Committee shall be entitled without further act on his or her part to
advancement of expenses and indemnification from the Corporation pursuant to
Florida law, including to the full extent provided by Section 607.0850 of the
Florida Business Corporation Act (the "FBCA").
The foregoing right of indemnification shall inure to the
benefit of the heirs, executors or administrators of each such member of the
Board or the Committee and shall be in addition to all other rights to which
such member of the Board or the Committee would be entitled to as a matter of
law, contract or otherwise.
ARTICLE 4 ELIGIBILITY
Awards may be made to any employee, consultant or director of
the Corporation or any of its subsidiaries or affiliates (subject to such
requirements as may be prescribed by the Committee). In determining the
employees, consultants and directors to whom awards shall be granted and the
number of shares of Common Stock to be covered by each award, the Committee
shall take into account the nature of the services rendered by such employees,
consultants and directors, their present and potential contributions to the
success of the Corporation, its subsidiaries and its affiliates, and such other
factors as the Committee in its sole discretion shall deem relevant.
Notwithstanding the foregoing, only employees of the Corporation and any
"Subsidiary Corporation" of the Corporation (as such term is defined in Section
424(f) of the Code) shall be eligible to receive Incentive Stock Options.
ARTICLE 5 STOCK OPTIONS
5.1 Grant of Options, Option Term
Options may be granted under the Plan for the purchase of shares of
Common Stock. Options shall be granted in such form and upon such terms and
conditions, including the satisfaction of corporate or individual performance
objectives as the Committee shall from time to time determine and any vesting
standards established pursuant to Section 5.6. The Options shall be exercisable
for a period of no more 10 years from the date of grant, except where a shorter
period is required for Incentive Stock Options or in the written Option
Agreement required pursuant to Article 10 hereof , subject in any event to
earlier termination as provided in Article 7.
5.2 Designation as Non-Qualified Stock Option or Incentive Stock Option
In connection with any grant of Options, the Committee shall
designate in the written agreement required pursuant to Article 10 hereof
whether the Options granted shall be Incentive Stock Options or Non-Qualified
Stock Options, and the number of shares of Common Stock of each. In the absence
of such designation, any Option granted hereunder shall be a Non-Qualified Stock
Option.
5.3 Automatic Stock Options
All directors of the Corporation shall automatically receive
grants of (i) 4,000 Automatic Stock Options upon election or appointment to the
Board for a one year term; (ii) 8,000 Automatic Stock Options upon election or
appointment to the Board for a two year term; and (iii) 12,000 Automatic Stock
Options upon election or appointment to the Board for a three year term. The
Corporation's Chief Financial Officer (if not a director of the Corporation)
30
shall receive a grant of 12,000 Automatic Stock Options on October 1, 2004, and
shall receive an additional 12,000 Automatic Stock Options upon (i) the vesting
in full of such grant and (ii) the vesting in full of each such subsequent
grant. All Automatic Stock Options shall vest as provided in Section 5.6 hereof.
5.4 Exercise Price
The exercise price per share of Common Stock under each
Incentive Stock Option and Automatic Stock Option shall be not less than the
Market Price (as hereinafter defined) of the Common Stock on the date such
Option is granted. The Committee shall determine the exercise price per share of
Common Stock under each Non-Qualified Stock Option. In the case of an Incentive
Stock Option granted to an Optionee owning (actually or constructively under
Section 424(d) of the Code) more than 10% of the total combined voting power of
all classes of stock of the Corporation or of a subsidiary (a "10%
Stockholder"), the exercise price shall not be less than 110% of the Market
Price of the Common Stock on the date of grant. "Market Price" shall mean the
per share value of the Common Stock and shall be determined as follows: (i) if
the Common Stock is listed on a national securities exchange or quoted on the
Nasdaq National Market or the Nasdaq SmallCap Market (collectively, "Nasdaq")
the Market Price on any day shall be, in the sole discretion of the Committee,
either (x) the average of the high and low reported consolidated trading sales
prices, or if no such sale is made on such day, the average of the closing bid
and asked prices reported on the consolidated trading listing for such day or
(y) the closing price reported on the consolidated trading listing for such day;
(ii) if the Common Stock is quoted on the OTC Bulletin Board, the Market Price
on any day shall be the average of the representative bid and asked prices at
the close of business for such day; (iii) if the Common Stock is not listed on a
national stock exchange or quoted on Nasdaq or listed on the OTC Bulletin Board,
the Market Price on any day shall be the average of the high bid and low asked
prices reported by the National Quotation Bureau, LLC (the "NQB") for such day;
or (iv) if the Common Stock is not listed on a national stock exchange, quoted
on Nasdaq, quoted on the OTC Bulletin Board or reported on by the NQB, the
Market Price on any day shall be the fair market value of one share of Common
Stock on such day as determined by the Committee. In no event shall the Market
Price of a share of Common Stock subject to an Incentive Stock Option be less
than the fair market value as determined for purposes of Section 422(b)(4) of
the Code.
5.5 Exercise and Payment
Options may be exercised in whole or in part (but not for any
fractional shares of Common Stock). Shares of Common Stock purchased upon the
exercise of Options shall be paid for at the time of purchase. Such payment may
be made as follows (or by any combination of the following), in the sole
discretion of the Committee: (i) in United States currency by delivery of a
certified check, bank draft or postal or express money order payable to the
order of the Corporation, (ii) by surrender of a number of Mature Shares (as
defined below) of Common Stock held by the Optionee exercising the Option equal
to the quotient obtained by dividing (A) the aggregate exercise price payable
with respect to the Options then being exercised by (B) the Market Price on the
date of exercise, (iii) if the Corporation has established a program for the
cashless exercise of Options through a broker or other similar arrangements or
programs, then in accordance with the terms and conditions of such programs and
arrangements, (iv) other property acceptable to the Committee or (v) a loan of
money to an Optionee, the proceeds of which shall be used by the Optionee to
exercise all or a portion of the Options granted hereunder. If a loan is made by
the Corporation to the Optionee as contemplated in (v) above, the Optionee shall
execute a promissory note evidencing such loan and such note shall (I) provide
for full recourse to the maker, (II) bear interest at a rate no less than the
applicable Federal rate (within the meaning of Section 1274 of the Code), and
(III) contain such other terms as the Committee in its sole discretion shall
determine, including securing the loan by a pledge of the shares of Common Stock
issued upon exercise of the Option. Upon receipt of a notice of exercise and
payment in accordance with the procedures set forth above, the Corporation or
its agent shall deliver to the persons exercising the Option(s) (or his or her
designee) a certificate for such Shares. "Mature Shares" means shares of Common
Stock owned by the Optionee for a period of at least six consecutive months
prior to the exercise of the Option(s) in question.
31
5.6 Vesting
Except for Automatic Stock Options, the time or times at which
Options granted to Optionees shall vest shall be set forth in the Agreement
provided for in Section 10 hereof. Automatic Stock Options granted to any
Optionee under Section 5.3 hereof shall vest and become exercisable as to 2,000
shares on June 30 and December 31 of each year following the grant of the
Automatic Stock Option, provided that the Optionee is still serving as a
director or officer of the Company on such date.
5.7 No Rights as a Stockholder
A recipient of Options shall have no rights as a stockholder
with respect to any shares issuable or transferable upon exercise thereof until
the date a stock certificate representing such shares is issued to such
recipient. Except as otherwise expressly provided in the Plan or by the
Committee, no adjustment shall be made for cash dividends or other rights for
which the record date shall be prior to the date such stock certificate is
issued.
5.8 Incentive Stock Options
The terms of any Incentive Stock Option granted under the Plan
shall comply in all respects with the provisions of Section 422 of the Code, or
any successor provision thereto, and any regulations promulgated thereunder and
the Plan shall be interpreted accordingly. The aggregate Market Price
(determined at the time of grant of the Incentive Stock Option) of the Common
Stock with respect to which the Incentive Stock Options become exercisable for
the first time by an Optionee in any calendar year (under all plans of the
Corporation and its subsidiaries (as defined in Section 424(f) of the Code)
shall not exceed $100,000. Any Options grants that exceed such amount shall be
treated as Non-Qualified Options. No grant of an Incentive Stock Option shall be
made under the Plan more than ten (10) years after the effective date of the
Plan, nor shall any Incentive Stock Option be exercisable after the expiration
of ten (10) years from the date such Option is granted, or 5 years from the date
the Option is granted in the case of a 10% Stockholder (as defined in Section
5.4).
5.9 Notice to Company of ISO Disqualifying Disposition
A condition of receiving an Incentive Stock Option any
Employee who receives an Incentive Stock Option shall agree to notify the
Company in writing immediately upon making a Disqualifying Disposition of any
Common Stock acquired pursuant to the exercise of an Incentive Stock Option. A
"Disqualifying Disposition" is any disposition (including any sale) of such
Common Stock before the later of (i) two years after the date the Employee was
granted the Incentive Stock Option or (ii) one year after the date the Employee
acquired Common Stock by exercising the Incentive Stock Option. No notification
of a Disqualifying Disposition shall be required after the death of an Optionee.
5.10 Conversion of Incentive Stock Options
The Committee, at the written request of any Optionee, may, in
its discretion, take such actions as may be necessary to convert such Optionee's
Incentive Stock Options (or any portions thereof) that have not been exercised
on the date of conversion into Non-Qualified Stock Options at any time prior to
the expiration of such Incentive Stock Options. At the time of such conversion,
the Committee may impose such conditions on the exercise of the resulting
Non-Qualified Stock Options, consistent with this Plan, as the Committee in its
discretion may determine. Nothing in the Plan shall be deemed to give any
Optionee the right to have such Optionee's Incentive Stock Options converted
into Non-Qualified Stock Options.
ARTICLE 6 NONTRANSFERABILITY OF OPTIONS
No Option may be transferred, assigned, pledged or
hypothecated (whether by operation of law or otherwise), except as provided
herein or by will or the applicable laws of descent and distribution, and no
Option shall be subject to execution, attachment or similar process. Any
32
attempted assignment, transfer, pledge, hypothecation or other disposition of an
Option not specifically permitted herein shall be null and void and without
effect. The Committee may, in its sole discretion, cause the written agreement
relating to any Non-Qualified Stock Options granted hereunder to provide that
the recipient of such Non-Qualified Stock Options may transfer any of such
Non-Qualified Stock Options other than by will or the laws of descent and
distribution in any manner authorized under applicable law; provided, however,
that in no event may the Committee permit any transfers which would cause the
Plan to fail to satisfy the applicable requirements of Rule 16b-3 under the 1934
Act or which would cause any recipient of awards hereunder to fail to be
entitled to the benefits Rule 16b-3 or other exemptive Rules under Section 16 of
the 1934 Act or be subject to liability thereunder.
ARTICLE 7 EFFECT OF TERMINATION OF EMPLOYMENT, DISABILITY, RETIREMENT OR DEATH
7.1 General Rule
Except as to Automatic Stock Options as provided in Section
7.4 below, or as may be expressly provided in a written agreement relating to
any Option, in an employment agreement between the Corporation and the Optionee
or as otherwise expressly determined by the Committee in its sole discretion, in
the event an Optionee ceases to be a employee or consultant of the Corporation
or its subsidiaries (a "Terminated Person") for any reason other than
Disability, Retirement (as hereinafter defined) or death, any Options held by
such Terminated Person on the date on which he or she ceased to be an employee
or consultant (the "Termination Date") that were otherwise exercisable on such
date shall terminate unless exercised within 180 days following the Termination
Date in the case of Non-Qualified Options or within three (3) months following
the Termination Date in the case of Incentive Stock Options, but in no event
after the expiration of the exercise period of such Options. Except as expressly
provided in any written agreement relating to the Options or employment
agreement with the Corporation and the Optionee, the Committee may cause any
Options to be forfeited upon an Optionee's termination of employment, consultant
or director status if the Optionee was terminated or removed for "Cause." Except
as otherwise expressly provided in any written agreement relating to the Options
or employment agreement with the Corporation (in which case the definition of
"Cause" set forth therein shall supersede the definition set forth below), for
purposes of this Section 7.1, the term "Cause" shall mean any one (or more) of
the following: (i) the Optionee's commission of any fraud or misappropriation or
any misconduct which causes demonstrable injury to the Corporation or a
subsidiary or affiliate; or (ii) an act of dishonesty by the Optionee resulting
or intended to result, directly or indirectly, in gain or personal enrichment at
the expense of the Corporation or a subsidiary or affiliate. Except in the case
of the termination of employment of an Optionee who has entered into a written
agreement relating to the Options or employment agreement with the Corporation
(in which case the determination shall be made in accordance with the terms of
such written agreement), it shall be within the sole discretion of the Committee
to determine whether an Optionee's termination of employment was for one of the
foregoing reasons, and its decision shall be final and conclusive.
7.2 Disability or Retirement
Except as may be expressly provided otherwise in a written
agreement relating to any Options granted under the Plan, in an employment
agreement between the Corporation and the Optionee, or as otherwise determined
by the Committee in its sole discretion, in the event of a termination of
employment or other service arrangement of a Terminated Person due to the
Disability (as defined below) or Retirement (as defined below) of such Person,
any Options held by such Person on the Termination Date that were otherwise
exercisable on such date shall expire unless exercised within the period of 365
days following such date, but in no event after the expiration date of the
exercise period of such Options; provided, however, that any Incentive Stock
Option of such Terminated Person shall no longer be treated as an Incentive
Stock Option unless exercised within three (3) months of the Termination Date
(or within one (1) year of the Termination Date, in the case of an employee
whose termination of employment occurs by reason of a Disability). "Disability"
shall have the meaning set forth in Section 22(e)(3) of the Code. "Retirement"
shall mean a termination of employment arrangement with the Corporation or a
33
subsidiary or affiliate with the written consent of the Committee in its sole
discretion. The decision of the Committee shall be final, binding and
conclusive.
7.3 Death
Except as may be expressly provided in a written agreement
relating to the Options, in an employment agreement between the Corporation and
an Optionee, or as otherwise expressly determined by the Committee in its sole
discretion, in the event of the death of a recipient of Options, any Options
held by such Terminated Person at the date of death that were otherwise
exercisable on such date shall be exercisable by the beneficiary designated by
the Optionee for such purpose (the "Designated Beneficiary") or if no Designated
Beneficiary shall be appointed or if the Designated Beneficiary shall predecease
the Optionee, by the Optionee's personal representatives, heirs or legatees for
a period of two (2) years from the date of death, but in no event later than the
expiration date of the exercise period of such Options, at which time such
Options shall expire.
7.4 Termination of Automatic Stock Options
Except as may be expressly provided in a written agreement
relating to any Automatic Stock Option, in any written agreement between the
Corporation and the Optionee, or as otherwise expressly determined by the
Committee in its sole discretion, in the event an Optionee who holds an
Automatic Stock Option ceases to serve as a director of the Corporation or to
hold the office that entitled him or her to receive Automatic Stock Options
under Section 5.3 hereof: (i) all Automatic Stock Options held by such person
that are vested and exercisable on the date such person ceases to serve as an
officer or director shall terminate unless exercised within two (2) years
following the such date, but in no event after the expiration of the exercise
period of such Automatic Stock Options; and (ii) all Automatic Stock Options
that are not vested and exercisable on the date such person ceases to serve as
an officer or director shall terminate as of such date.
7.5 Termination of Unvested Options
All Options, which were not vested and exercisable by a
Terminated Person as of the Termination Date of such Terminated Person shall
terminate as of such date, except as expressly provided in the written agreement
relating to the Options or as otherwise expressly determined by the Committee in
its sole discretion. Options shall not be affected by any change of employment
so long as the recipient continues to be employed by either the Corporation or a
subsidiary or affiliate.
ARTICLE 8 ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
8.1 Adjustments
Upon the occurrence of any of the events described in Article
8, an Optionee's rights with respect to Options shall be adjusted as and to the
extent provided hereafter in Article 8, unless otherwise specifically provided
in the written agreement between the Optionee and the Corporation relating to
such Option.
8.2 Stock-Dividends and Stock Splits
If the shares of Common Stock shall be subdivided or combined
into a greater or smaller number of shares or if the Corporation shall issue any
shares of Common Stock as a stock dividend on its outstanding Common Stock, the
number of shares of Common Stock deliverable upon the exercise of Options shall
be appropriately increased or decreased proportionately and appropriate
adjustments shall be made in the exercise price per share to reflect such
subdivision, combination or stock dividend.
8.3 Consolidation, Acquisition or Merger
If the Corporation is to be consolidated with or acquired by
another entity in a merger, sale of all or substantially all of the
34
Corporation's assets or otherwise (an "Acquisition"), the Committee or the board
of directors of any entity assuming the obligations of the Corporation hereunder
(the "Successor Board"), shall, as to outstanding Options, either (i) make
appropriate provision for the continuation of such Options by substitution on an
equitable basis for the shares then subject to such Options for the
consideration payable with respect to the outstanding shares of Common Stock in
connection with the Acquisition; (ii) upon written notice to the Optionees,
provide that all Options must be exercised, to the extent then exercisable (or
in the discretion of the Committee or the Successor Board, also provide that all
unvested options shall be, or become at the time which the Committee shall
determine, either immediately exercisable or immediately terminate), within a
specified number of days of the date of such notice, at the end of which period
the Options shall terminate; or (iii) terminate all Options in exchange for a
cash payment or other consideration equal to the excess of the fair market value
of the shares of Common Stock subject to such Options (to the extent then
exercisable, or in the discretion of the Committee or the Successor Board,
whether or not then exercisable) over the exercise price thereof.
8.4 Recapitalization or Reorganization
In the event of a recapitalization or reorganization of the
Corporation (other than a transaction described in subparagraph 8.3 above)
pursuant to which securities of the Corporation or of another corporation are
issued with respect to the outstanding shares of Stock, an Optionee upon
exercising an Option shall be entitled to receive for the purchase price paid
upon such exercise, the securities he would have received if he had exercised
his Option immediately prior to such recapitalization or reorganization.
8.5 Dissolution or Liquidation
In the event of the proposed dissolution or liquidation of the
Corporation (other than in connection with a transaction described in
subparagraph 8.3 above), each Option will terminate immediately prior to the
consummation of such proposed action or at such other time and subject to such
other conditions as shall be determined by the Committee.
8.6 Modification of ISO's
If the Committee determines that any adjustments made pursuant
to with respect to any Incentive Stock Options granted hereunder would
constitute a modification of such Incentive Stock Options, (as that term is
defined in Section 424 of the Code) it may refrain from making such adjustments.
8.7 Issuances of Securities
Except as expressly provided herein, no issuance by the
Corporation of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of shares subject to Options.
No adjustments shall be made for dividends paid in cash or in property other
than securities of the Corporation.
8.8 Adjustments
Upon the happening of any of the events described in
subparagraphs 8.2, 8.3 or 8.4 above, the class and aggregate number of shares
set forth in Section 2.2 hereof that are subject to Options which previously
have been or subsequently may be granted under the Plan shall also be
appropriately adjusted to reflect the events described in such subparagraphs. If
changes in the capitalization of the Corporation shall occur other than those
referred to above in this Section 8, the Committee shall make such adjustments,
if any, in the number of shares covered by each Option and in the per share
purchase price as the Committee in its discretion may consider appropriate. The
Committee or, if applicable, the Successor Board, shall determine the specific
adjustments to be made under this Section 8 and its determination shall be
conclusive.
35
8.9 Lock-Up Agreement
The Optionee, if so requested by the Committee and an
underwriter of Common Stock or other securities of the Corporation, shall not
sell, grant any option or right to buy or sell, or otherwise transfer or dispose
of in any manner, whether in privately-negotiated or open-market transactions,
any Common Stock or other securities of the Corporation held by him or her or
which he or she has the right to acquire during the 180-day period following the
effective date of a registration statement of the Corporation filed with the
Securities and Exchange Commission in connection with such offering or such
shorter period as such underwriter shall have advised the Corporation in writing
is adequate to permit the successful and orderly distribution of such Common
Stock or other securities; provided, however, that such "lock-up" agreement
shall be in writing and in form and substance satisfactory to the Committee and
such underwriter. The Corporation may impose stop-transfer instructions with
respect to the shares subject to the foregoing restrictions until the end of
said period.
ARTICLE 9 TERM; AMENDMENT AND TERMINATION
No Option shall be granted under the Plan after the earlier of
(i) ten (10) years from the effective date of the Plan, or (ii) the termination
of the Plan pursuant to this Article 9. However, unless otherwise expressly
provided in the Plan or in an applicable written agreement required pursuant to
Article 10, any Option theretofore granted may extend beyond such date, and any
authority of the Committee to amend, alter, suspend, discontinue or terminate
any such Option, or to waive any conditions or rights under any such Option and
the authority of the Board to amend the Plan, shall extend beyond such date. The
Board may suspend, terminate, modify or amend the Plan, provided that any
amendment that would (i) materially increase the aggregate number of shares
which may be issued under the Plan, (ii) materially increase the benefits
accruing to Optionees under the Plan, or (iii) materially modify the
requirements as to eligibility for participation in the Plan shall be subject to
the approval of the Corporation's stockholders, except that any such increase or
modification that may result from adjustments authorized by Article 8 hereof
shall not require such stockholder approval. If the Plan is terminated, the
terms of the Plan shall, notwithstanding such termination, continue to apply to
awards granted prior to such termination. No suspension, termination,
modification or amendment of the Plan may, without the consent of the Optionee
to whom an award shall theretofore have been granted, adversely affect the
rights of such Optionee under such award, and provided further that if any
amendment would require stockholder approval to satisfy the requirements of Rule
16b-3 under the 1934 Act, then such amendment shall be presented to stockholders
for approval, provided however that failure to obtain such approval shall not
affect the validity of this Plan or the options granted hereunder.
ARTICLE 10 WRITTEN AGREEMENT
Each award of Options shall be evidenced by a written
agreement containing such restrictions, terms and conditions, if any, as the
Committee may require. In the event of any conflict between a written agreement
and the Plan, the terms of the Plan shall govern.
ARTICLE 11 MISCELLANEOUS PROVISIONS
Tax Withholding
The Corporation shall have the right to require Optionees or
their beneficiaries or legal representatives to remit to the Corporation an
amount sufficient to satisfy Federal, state and local withholding tax
requirements, or to deduct from all payments under the Plan amounts sufficient
to satisfy all withholding tax requirements. Whenever payments under the Plan
are to be made to an Optionee in cash, such payments shall be net of any amounts
sufficient to satisfy all Federal, state and local withholding tax requirements.
The Committee may, in its sole discretion, permit an Optionee to satisfy his or
her tax withholding obligations either by (i) surrendering of Common Stock owned
by the Optionee or (ii) having the Corporation withhold from shares of Common
Stock, or other compensation, otherwise deliverable or payable to the Optionee.
Shares of Common Stock surrendered or withheld shall be valued at their Market
36
Price as of the date on which income is required to be recognized for income tax
purposes.
11.2 Securities Laws
Each Option granted under the Plan shall be subject to the
requirement that, if at any time the Board shall determine, in its sole
discretion, that the listing, registration or qualification of the shares of
Common Stock issuable or transferable upon exercise thereof upon any securities
exchange or under any state or Federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the granting of such Option or the issue, transfer, or purchase
of the shares of Common Stock thereunder, such Option may not be exercised in
whole or in part unless such listing, registration, qualification, consent, or
approval shall have been effected or obtained free of any conditions not
acceptable to the Board. The Committee may, in connection with the granting of
any Option, require the individual to whom the Option is to be granted to enter
into an agreement with the Corporation stating that as a condition precedent to
each exercise of the Option, in whole or in part, such individual shall if then
required by the Corporation, represent to the Corporation in writing that such
exercise is for investment only and not with a view to distribution, and also
setting forth such other terms and conditions as the Committee may prescribe.
11.3 Compliance with Section 16(b)
In the case of Optionees who are or may be subject to Section
16 of the 1934 Act, it is the intent of the Corporation that the Plan and any
award granted hereunder satisfy and be interpreted in a manner that satisfies
the applicable requirements of Rule 16b-3 so that such persons will be entitled
to the benefits of Rule 16b-3 or other exemptive Rules under Section 16 of the
1934 Act and will not be subjected to liability thereunder. If any provision of
the Plan or any award would otherwise conflict with the intent expressed herein,
that provision, to the extent possible, shall be interpreted and deemed amended
so as to avoid such conflict. To the extent of any remaining irreconcilable
conflict with such intent, such provision shall be deemed void as applicable to
Optionees who are or may be subject to Section 16 of the 1934 Act.
11.4 Successors
The obligations of the Corporation under the Plan shall be
binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Corporation, or upon any
successor corporation or organization succeeding to all or substantially all of
the assets and business of the Corporation. In the event of any of the
foregoing, the Committee may, in its discretion prior to the consummation of the
transaction and subject to Article 9 hereof, cancel, offer to purchase,
exchange, adjust or modify any outstanding awards, at such time and in such
manner as the Committee deems appropriate and in accordance with applicable law.
11.5 General Creditor Status
Optionees shall have no right, title or interest whatsoever in
or to any investments which the Corporation may make to aid it in meeting its
obligations under the Plan. Nothing contained in the Plan, and no action taken
pursuant to its provisions, shall create or be construed to create a trust of
any kind, or a fiduciary relationship between the Corporation and any Optionee,
beneficiary or legal representative of such Optionee. To the extent that any
person acquires a right to receive payments from the Corporation under the Plan,
such right shall be no greater than the right of an unsecured general creditor
of the Corporation. All payments to be made hereunder shall be paid from the
general funds of the Corporation and no special or separate fund shall be
established and no segregation of assets shall be made to assure payment of such
amounts except as expressly set forth in the Plan.
11.6 No Right to Employment
Nothing in the Plan or in any written agreement entered into
pursuant to Article 10 hereof, nor the grant of any Option, shall confer upon
any Optionee any right to continue in the employ of the Corporation or a
37
subsidiary or affiliate or to be entitled to any remuneration or benefits not
set forth in the Plan or such written agreement or interfere with or limit the
right of the Corporation or a subsidiary or affiliate to modify the terms of or
terminate such Optionee's employment at any time.
11.7 Notices
Notices required or permitted to be given under the Plan shall
be sufficiently given if in writing and personally delivered to the Optionee or
sent by regular mail addressed (i) to the Optionee at the Optionee's address as
set forth in the books and records of the Corporation or its subsidiaries or
affiliates, or (ii) to the Corporation or the Committee at the principal office
of the Corporation clearly marked "Attention: Compensation Committee."
11.8 Severability
In the event that any provision of the Plan shall be held
illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining parts of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
11.9 Governing Law
To the extent not preempted by Federal law, the Plan, and all agreements
hereunder, shall be construed in accordance with and governed by the laws of the
state of Florida.
38
Item 6. Exhibits and Reports on Form 8-K: continued,
3.
10.3 Stock Option Agreement, dated as of December 6, 2002,
between Nyer Medical Group, Inc. and Samuel Nyer
STOCK OPTION AGREEMENT - Samuel Nyer
STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement") is effective as of December
6, 2002, between Nyer Medical Group, Inc. a Florida corporation (the
"Corporation"), and Samuel Nyer (the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in October, 1999, the Corporation entered into an employment
agreement with the Optionee which agreement included a provision (the
"Provision") for granting the Optionee an option for 500,000 shares of common
stock of the Corporation (the "Option");
WHEREAS, in November, 2002, the Board of Directors of the Corporation (the
"Board") agreed to amend and restate the Provision to provide certain other
provisions, including, without limitation, provisions for termination of the
Option upon the happening of certain events;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto agree that the Provision is hereby amended and
restated as follows:
1. Grant of Option.
Pursuant to the Provision, in October, 1999, the Corporation
granted to the Optionee an option to purchase an aggregate of 500,000 shares
(the "Shares") of common stock, .0001(cent) par value, of the Corporation (the
"Common Stock") at a price of $6.437 per Share. The Corporation hereby confirms
and ratifies such grant. This Option was not and is not intended to qualify as
an "incentive stock option" under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), and shall be construed accordingly.
2. Right to Exercise.
Fifty (50%) percent of the Shares subject to the Option vested and
became exercisable in October, 1999 and fifty (50%) percent of the Shares
subject to the Option vested and became exercisable in October, 2000.
3. No Transfer.
This Option may not be transferred, assigned, pledged or hypothecated
(whether by operation of law or otherwise), except by will or the applicable
laws of descent and distribution. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option not specifically permitted
herein shall be null and void and without effect.
4. Exercise Procedures.
a) Notice of Exercise. The Optionee or the Optionee's representative may
exercise this Option by giving written notice as set forth in Section 9j) hereof
in a manner substantially in the form annexed hereto as Exhibit A. The notice
shall specify the election to exercise this Option, the number of Shares with
39
respect to which this Option is being exercised and the form of payment (if more
than one form is available). The notice shall be signed by the person exercising
this Option. In the event that this Option is being exercised by the
representative of the Optionee, the notice shall be accompanied by proof
(satisfactory to the Committee (as defined below)) of the representative's right
to exercise this Option. The Optionee or the Optionee's representative shall
deliver to the Corporation at the time of giving the notice, payment in a form
provided under Section 5 for the full amount of the exercise price applicable to
that portion of this Option being exercised. "Committee" means the committee
(comprised of at least two (2) members of the Board) appointed by the Board to
administer this Agreement, or, in the case that no such committee has been
appointed, the term "Committee" shall mean the Board.
b) Issuance of Shares. After receiving a proper notice of exercise, the
Corporation shall cause to be issued a certificate or certificates for the
Shares as to which this Option has been exercised, registered in the name of the
person exercising this Option and bearing such legends as may be appropriate.
The Corporation shall cause such certificate or certificates to be delivered to
or upon the order of the person exercising this Option.
c) Withholding Taxes. In the event that the Committee determines that the
Corporation is required to withhold foreign, federal, state or local tax as a
result of the exercise of this Option, the Optionee, as a condition to the
exercise of this Option, shall make arrangements satisfactory to the Committee
to enable the Corporation to satisfy all withholding requirements. Any Shares
purchased by exercising this Option shall also be issued subject to condition
that the Optionee shall make the arrangements satisfactory to the Committee to
enable the Corporation to satisfy any withholding requirements that may arise in
connection with the disposition of such Shares.
5. Payment for Stock.
Options may be exercised in whole or in part (but not for any
fractional shares of Common Stock). Shares of Common Stock purchased upon the
exercise of the Option shall be paid for at the time of purchase. Such payment
may be made as follows (or by any combination of the following), in the sole
discretion of the Committee: (i) in United States currency by delivery of a
certified check, bank draft or postal or express money order payable to the
order of the Corporation, (ii) by surrender of a number of Mature Shares (as
defined below) of Common Stock held by the Optionee exercising the Option equal
to the quotient obtained by dividing (A) the aggregate exercise price payable
with respect to the Option then being exercised by (B) the Market Price (as
defined below) on the date of exercise, (iii) if the Corporation has established
a program for the cashless exercise of Options through a broker or other similar
arrangements or programs, then in accordance with the terms and conditions of
such programs and arrangements, (iv) other property acceptable to the Committee
or (v) a loan of money to an Optionee, the proceeds of which shall be used by
the Optionee to exercise all or a portion of the Option granted hereunder. If a
loan is made by the Corporation to the Optionee as contemplated in (v) above,
the Optionee shall execute a promissory note evidencing such loan and such note
shall (I) provide for full recourse to the maker, (II) bear interest at a rate
no less than the applicable Federal rate (within the meaning of Section 1274 of
the Code), and (III) contain such other terms as the Committee in its sole
discretion shall determine, including securing the loan by a pledge of the
shares of Common Stock issued upon exercise of the Option. Upon receipt of a
notice of exercise and payment in accordance with the procedures set forth
above, the Corporation or its agent shall deliver to the persons exercising the
Option (or his or her designee) a certificate for such Shares. "Mature Shares"
means shares of Common Stock owned by the Optionee for a period of at least six
consecutive months prior to the exercise of the Option in question. "Market
Price" means the per share value of the Common Stock and shall be determined as
follows: (i) if the Common Stock is listed on a national securities exchange or
quoted on the Nasdaq National Market or the Nasdaq SmallCap Market
(collectively, "Nasdaq") the Market Price on any day shall be, in the sole
discretion of the Committee, either (x) the average of the high and low reported
40
consolidated trading sales prices, or if no such sale is made on such day, the
average of the closing bid and asked prices reported on the consolidated trading
listing for such day or (y) the closing price reported on the consolidated
trading listing for such day; (ii) if the Common Stock is quoted on the OTC
Bulletin Board, the Market Price on any day shall be the average of the
representative bid and asked prices at the close of business for such day; (iii)
if the Common Stock is not listed on a national stock exchange or quoted on
Nasdaq or listed on the OTC Bulletin Board, the Market Price on any day shall be
the average of the high bid and low asked prices reported by the National
Quotation Bureau, LLC (the "NQB") for such day; or (iv) if the Common Stock is
not listed on a national stock exchange, quoted on Nasdaq, quoted on the OTC
Bulletin Board or reported on by the NQB, the Market Price on any day shall be
the fair market value of one share of Common Stock on such day as determined by
the Committee.
6. Term and Expiration.
a) Term of Option. This Option shall expire on the day before the tenth
anniversary of the date hereof, unless sooner terminated as provided herein, and
may be exercised during such term only in accordance with this Agreement.
b) Termination due to Cessation of Relationship, Disability or Death. Upon the
cessation of Optionee's employment by, consultancy for or emeritus (or similar)
status with the Corporation, upon the Optionee's death or upon the Optionee's
Disability (as defined below), this Option, which is otherwise exercisable,
shall be exercisable by, as appropriate, the Optionee, the Designated
Beneficiary (as defined below) or personal representative, heirs or legatees of
the Optionee for a period of four (4) years from the date of such cessation,
death or Disability, as appropriate, but in no event after the expiration of the
exercise period of the Option. "Disability" shall have the meaning set forth in
Section 22(e)(3) of the Code. "Designated Beneficiary" means the beneficiary
designated by the Optionee to exercise its options upon the death of the
Optionee, if such Designated Person exists and has not predeceased the Optionee.
If a Designated Beneficiary does not exist or has predeceased the Optionee, the
appropriate personal representative, heir(s) or legatee(s) of the Optionee shall
exercise the Option.
7. Registration Rights.
a) Subject to the terms of this Agreement, the Corporation shall use its best
efforts to register the Common Stock underlying the Option (the "New Stock")
for issuance and resale under the Securities Act of 1933, as amended (the
"Securities Act"), on Form S-8 or any other Securities and Exchange
Commission ("SEC") form, if available, which the Corporation deems
appropriate (a "Registration Statement").
b) The Corporation will notify the Optionee at any time when a prospectus
relating to the New Stock covered by a Registration Statement of the
Corporation is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Corporation will use its best efforts to promptly amend or supplement the
Registration Statement to correct any such untrue statement or omission.
c) The Optionee hereby agrees to cooperate with the Corporation in connection
with the preparation and filing of any Registration Statement by the
Corporation with respect to the New Stock. In addition, the Optionee agrees
that, upon receipt of any notice from the Corporation of the happening of
any event of the kind described in Section 7b), the Optionee will
immediately discontinue disposition of the New Stock pursuant to the
Registration Statement covering the New Stock until the Optionee's receipt
of the copies of the supplemented or amended prospectus contemplated by
Section 7b) and, if so desired by the Corporation, the Optionee shall
deliver to the Corporation (at the expense of the Corporation) or destroy
(and deliver to the Corporation a certificate of such destruction) all
copies, other than the permanent file copies then in the Optionee's
41
possession, of the prospectus covering such New Stock current at the time of
receipt of such notice.
d) The Optionee hereby represents and warrants to the Corporation as follows:
i) The Optionee has been furnished with all materials relating to the
Corporation and its proposed activities which the Optionee has requested
and has been afforded the opportunity to obtain any additional
information necessary with respect to the New Stock.
ii) The Corporation has answered all inquiries made by the Optionee
concerning the Corporation and its proposed activities, or any other
matters relating to the Registration Statement and the proposed
operations of the Corporation.
iii) The Optionee is an "accredited investor" as such term is defined in the
Federal securities laws. By reason of the Optionee's business or
financial experience, the Optionee is capable of evaluating the merits
and risks of an investment in the New Stock and of protecting its own
interests in connection with the transaction involving the Option and the
New Stock. The Optionee has sufficient available financial resources to
provide adequately for his current needs, including possible personal
contingencies, and can bear the economic risk of a complete loss of the
New Stock without materially affecting his financial condition.
iv) The Optionee has not been furnished any offering literature other than any
materials and/or information made available to the Optionee by the
Corporation as described in Section 7d)i) and the Optionee has relied only
on such materials and/or information. Furthermore, other than as set forth
in this Agreement, no representations or warranties have been made to the
Optionee by the Corporation, or by its directors or officers or employees
or other agents with respect to the intended business of the Corporation,
the financial condition, prospects, profitability, operations and/or
potential of the Corporation, and/or the economic or any other aspects of
the consequences of an investment in the New Stock, and the Optionee has
not relied upon any information concerning the offering, written or oral,
other than information contained in this Agreement or provided by the
Corporation to the Optionee.
v) The Optionee is acquiring the Option and, upon the exercise of the Option,
will be acquiring the New Stock, for his own account, as principal, for
investment and not with a view to the resale or distribution of all or any
part of the Option or the New Stock.
8. Securities Law and Other Restrictions.
Regardless of whether the offering and sale of Shares under this Agreement
have been registered under the Securities Act or have been registered or
qualified under the securities laws of any state, the Committee at its
discretion, may impose restrictions upon the sale, pledge or other transfer of
such Shares (including, without limitation, the placement of appropriate legends
on stock certificates or a "lock-up agreement") if, in the judgment of the
Corporation and its counsel, such restrictions are necessary or desirable in
order to achieve compliance with any agreement to which the Corporation is a
party, the Securities Act, the securities laws of any state or any other law or
with restrictions imposed on the Corporation by its underwriters, or otherwise.
9. Adjustment Upon Changes in Capitalization, Etc.
a) Certain Adjustments. Upon the occurrence of any of the events described
in this Section 9, the Optionee's rights with respect to the Option shall be
adjusted as and to the extent provided hereafter in this Section 9, unless
otherwise specifically provided in the written agreement between the Optionee
and the Corporation relating to such Option.
b) Stock Dividends and Stock Splits. If the shares of Common Stock shall
be subdivided or combined into a greater or smaller number of shares or if the
Corporation shall issue any shares of Common Stock as a stock dividend on its
outstanding Common Stock, the number of shares of Common Stock deliverable upon
42
the exercise of the Option shall be appropriately increased or decreased
proportionately and appropriate adjustments shall be made in the exercise price
per share to reflect such subdivision, combination or stock dividend.
c) Consolidation, Acquisition or Merger. If the Corporation is to be
consolidated with or acquired by another entity in a merger, sale of all or
substantially all of the Corporation's assets or otherwise (an "Acquisition"),
the Committee or the board of directors of any entity assuming the obligations
of the Corporation hereunder (the "Successor Board"), shall, as to the
outstanding Option, either (i) make appropriate provision for the continuation
of such Option by substitution on an equitable basis for the shares then subject
to such Option for the consideration payable with respect to the outstanding
shares of Common Stock in connection with the Acquisition; (ii) upon written
notice to the Optionee, provide that the Option must be exercised, to the extent
then exercisable (or in the discretion of the Committee or the Successor Board,
also provide that all unvested portion of the Option, if any, shall be, or
become at the time which the Committee shall determine, either immediately
exercisable or immediately terminate), within a specified number of days of the
date of such notice, at the end of which period the Option shall terminate; or
(iii) terminate the Option in exchange for a cash payment or other consideration
equal to the excess of the fair market value of the shares of Common Stock
subject to such Option (to the extent then exercisable, or in the discretion of
the Committee or the Successor Board, whether or not then exercisable) over the
exercise price thereof.
d) Recapitalization or Reorganization. In the event of a recapitalization
or reorganization of the Corporation (other than a transaction described in
subsection 9c) above) pursuant to which securities of the Corporation or of
another corporation are issued with respect to the outstanding shares of Common
Stock, the Optionee upon exercising the Option shall be entitled to receive for
the purchase price paid upon such exercise, the securities he would have
received if he had exercised his Option immediately prior to such
recapitalization or reorganization.
e) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Corporation (other than in connection with a transaction
described in subsection 9c) above), each Option will terminate immediately prior
to the consummation of such proposed action or at such other time and subject to
such other conditions as shall be determined by the Committee.
f) Issuances of Securities. Except as expressly provided herein, no
issuance by the Corporation of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
subject to the Option. No adjustments shall be made for dividends paid in cash
or in property other than securities of the Corporation.
g) Other Adjustments. If changes in the capitalization of the Corporation
shall occur other than those referred to above in this Section 9, the Committee
shall make such adjustments, if any, in the number of shares covered by the
Option and in the per share purchase price as the Committee in its discretion
may consider appropriate. The Committee or, if applicable, the Successor Board,
shall determine the specific adjustments to be made under this Section 9 and its
determination shall be conclusive.
10. Miscellaneous Provisions.
a) Entire Agreement; Amendments. This Agreement constitutes the entire
agreement between the parties hereto with regard to the subject matter hereof.
This Agreement may not be amended except by a written instrument signed by both
parties hereto.
b) Choice of Law. To the extent not preempted by Federal law, this
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Florida.
c) Interpretations. The Committee shall have discretionary authority to
interpret the terms of this Agreement, to adopt and revise rules, regulations
and policies to administer this Agreement and to make any other factual
43
determinations, which it believes to be necessary or advisable for the
administration of this Agreement. All actions taken and interpretations and
determinations made by the Committee in good faith shall be final and binding
upon the Corporation, the Optionee and all other interested persons.
d) Liability; Indemnification.
i) No member of the Board or the Committee, nor any person to whom
ministerial duties have been delegated, shall be personally liable for any
action, interpretation or determination made with respect to this Agreement.
ii) In addition to such other rights of indemnification as he or she may
have as a member of the Board, and with respect to administration of this
Agreement, each member of the Board and of the Committee shall be entitled
without further act on his or her part to advancement of expenses and
indemnification from the Corporation pursuant to Florida law, including to the
full extent provided by Section 607.0850 of the Florida Business Corporation Act
(the "FBCA").The foregoing right of indemnification shall inure to the benefit
of the heirs, executors or administrators of each such member of the Board or
the Committee and shall be in addition to all other rights to which such member
of the Board or the Committee would be entitled to as a matter of law, contract
or otherwise.
e) Tax Withholding. The Corporation shall have the right to require
the Optionee or its beneficiary or legal representative to remit to the
Corporation an amount sufficient to satisfy Federal, state and local withholding
tax requirements, or to deduct from all payments under this Agreement amounts
sufficient to satisfy all withholding tax requirements. Whenever payments under
this Agreement are to be made to an Optionee in cash, if any, such payments
shall be net of any amounts sufficient to satisfy all Federal, state and local
withholding tax requirements. The Committee may, in its sole discretion, permit
the Optionee to satisfy its tax withholding obligations either by (i)
surrendering of Common Stock owned by the Optionee or (ii) having the
Corporation withhold from shares of Common Stock, or other compensation,
otherwise deliverable or payable to the Optionee. Shares of Common Stock
surrendered or withheld shall be valued at their Market Price as of the date on
which income is required to be recognized for income tax purpose
f) Compliance with Section 16(b). In the case the Optionee is or may
be subject to Section 16 of the Securities Exchange Act of 1934 Act, as amended
(the "1934 Act"), it is the intent of the Corporation that this Agreement and
any award granted hereunder satisfy and be interpreted in a manner that
satisfies the applicable requirements of Rule 16b-3 so that the Optionee will be
entitled to the benefits of Rule 16b-3 or other exemptive Rules under Section 16
of the 1934 Act and will not be subjected to liability thereunder. If any
provision of this Agreement or any award would otherwise conflict with the
intent expressed herein, that provision, to the extent possible, shall be
interpreted and deemed amended so as to avoid such conflict. To the extent of
any remaining irreconcilable conflict with such intent, such provision shall be
deemed void as applicable to the Optionee if the Optionee is or may be subject
to Section 16 of the 1934 Act. Neither this provision of the Agreement nor any
other provision of this Agreement shall be construed as to insure that the
Optionee has satisfied or will satisfy all the requirements of Section 16 of the
1934 Act and/or the Rules promulgated thereunder with respect to this Option or
the Common Stock underlying this Option.
g) Successors. The obligations of the Corporation under this
Agreement shall be binding upon any successor corporation or organization
resulting from the merger, consolidation or other reorganization of the
Corporation, or upon any successor corporation or organization succeeding to all
or substantially all of the assets and business of the Corporation.
h) General Creditor Status. The Optionee shall have no right, title
or interest whatsoever in or to any investments which the Corporation may make
to aid it in meeting its obligations under this Agreement. Nothing contained in
this Agreement, and no action taken pursuant to its provisions, shall create or
be construed to create a trust of any kind, or a fiduciary relationship between
the Corporation and the Optionee, or the beneficiary or legal representative of
the Optionee. To the extent that any person acquires a right to receive payments
from the Corporation under this Agreement, such right shall be no greater than
44
the right of an unsecured general creditor of the Corporation. All payments to
be made hereunder shall be paid from the general funds of the Corporation and no
special or separate fund shall be established and no segregation of assets shall
be made to assure payment of such amounts except as expressly set forth in this
Agreement.
i) No Right to Employment or Independent Contractor Status. Nothing
in this Agreement, nor the grant of the Option, shall confer upon the Optionee
any right to continue in the employ or as an independent contractor of the
Corporation or a subsidiary or affiliate or to be entitled to any remuneration
or benefits not set forth in this Agreement or interfere with or limit the right
of the Corporation or a subsidiary or affiliate to modify the terms of or
terminate the Optionee's employment or independent contractor status at any
time.
j) Notices. Notices required or permitted to be given under this
Agreement shall be sufficiently given if in writing and personally delivered to
the Optionee or sent by regular mail addressed (i) to the Optionee at the
Optionee's address as set forth in the books and records of the Corporation or
its subsidiaries or affiliates, or (ii) to the Corporation or the Committee at
the principal office of the Corporation clearly marked "Attention: Compensation
Committee."
k) Severability. In the event that any provision of this Agreement
shall be held illegal or invalid for any reason, such illegality or invalidity
shall not affect the remaining parts of this Agreement, and this Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
[THE BALANCE OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
45
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed
on its behalf by a duly authorized officer and the Optionee has personally
executed this Agreement.
Nyer Medical Group, Inc.
By: /s/ Samuel Nyer By: /s/ Karen Wright
SAMUEL NYER Karen Wright,
Optionee's Address: Chief Financial Officer
c/o Nyer Medical Group, Inc.
1292 Hammond Street
Bangor, Maine 04401
46
EXHIBIT A
[Date of Exercise]
[Corporation] [Address] [Address]
Attention: Compensation Committee
Re: Stock Option
Dear Sir:
I am the holder of a stock option granted to me by Nyer Medical Group, Inc.
(the "Corporation"), pursuant to a Stock Option Agreement dated as of _________,
to purchase ______________ shares of Common Stock of the Corporation ("Shares").
I hereby exercise such option with respect to ___________ Shares, the total
purchase price for which is $__________, and [I enclose a certified, bank
cashier's or other acceptable check payable to the order of the Corporation in
the amount of $_______, representing the total purchase price for the Shares] [I
hereby elect to pay the purchase price by delivering to the Corporation _____
shares of Common Stock of the Corporation having a fair market value equal to
$___________ from the Shares I am purchasing pursuant to the exercise of such
option] [I hereby elect to pay the purchase price by delivering to the
Corporation [ ], having a fair market value equal to $___________, as determined
by the Committee.] [I enclose an irrevocable direction to a securities broker to
deliver sales or loan proceeds to the Corporation in the amount of $_______,
representing the total purchase price for the Shares]. [I enclose the necessary
promissory note, pledge agreement and related documents pursuant to my loan from
the Corporation in the amount of $_____representing the total purchase price for
the Shares]. The certificate or certificates representing the Shares should be
registered in my name and should be forwarded to me at ________________________.
Please acknowledge receipt of the exercise of my stock option on the
attached copy of this letter.
Very truly yours,
[OPTIONEE]
RECEIPT ACKNOWLEDGED:
[CORPORATION]
By: __________________
47
Item 6. Exhibits and Reports on Form 8-K: continued,
4.
10.4 Stock Option Agreement, dated as of December 6, 2002,
between Nyer Medical Group, Inc. and Alliance Capital Resources,
Inc.
STOCK OPTION AGREEMENT - Alliance Capital Resources, Inc.
STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement") is effective as
of December 6, 2002, between Nyer Medical Group, Inc. a Florida
corporation (the "Corporation"), and Alliance Capital Resources, Inc., a
California corporation (the "Optionee").
W I T N E S S E T H:
WHEREAS, in October, 1999, the Corporation entered into a business
development consulting agreement (the "Consulting Agreement") with the Optionee
which agreement included a provision (the "Provision") for granting the Optionee
an option for 150,000 shares of common stock of the Corporation (the "Option");
WHEREAS, in October, 2000, the Consulting Agreement was amended with
respect to its term and certain monetary compensation;
WHEREAS, in October, 2002, the Board of Directors of the Corporation (the
"Board") agreed to amend and restate the Provision to, among other things, amend
the exercise price with respect to the Option and certain provisions which are
customary to option agreements;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, the parties hereto agree that the Provision is hereby amended and
restated as follows:
1. Grant of Option.
Pursuant to the Provision, in October, 1999, the Corporation granted to
the Optionee an option to purchase an aggregate of 150,000 shares (the "Shares")
of common stock, .0001(cent) par value, of the Corporation (the "Common Stock")
at a price $8.00 per Share with respect to 50,000 of the Shares, $9.00 per share
with respect to 50,000 of the Shares and $11.00 per share with respect to 50,000
of the Shares. The Corporation hereby confirms and ratifies such grant and also
hereby agrees that the exercise price with respect to each of the 150,000 Shares
subject to the Option is hereby amended to be $1.71 per Share. This Option was
not and is not intended to qualify as an "incentive stock option" under Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"), and shall be
construed accordingly.
2. Right to Exercise.
One Hundred (100%) percent of the Shares subject to the Option vested and
became exercisable in October, 1999.
3. No Transfer.
This Option may not be transferred, assigned, pledged or hypothecated
(whether by operation of law or otherwise), except to a successor by operation
of law. Any attempted assignment, transfer, pledge, hypothecation or other
disposition of the Option not specifically permitted herein shall be null and
void and without effect.
4. Exercise Procedures.
a) Notice of Exercise. The Optionee or the Optionee's representative may
exercise this Option by giving written notice as set forth in Section 9j) hereof
48
in a manner substantially in the form annexed hereto as Exhibit A. The notice
shall specify the election to exercise this Option, the number of Shares with
respect to which this Option is being exercised and the form of payment (if more
than one form is available). The notice shall be signed by the person exercising
this Option. In the event that this Option is being exercised by the
representative of the Optionee, the notice shall be accompanied by proof
(satisfactory to the Committee (as defined below)) of the representative's right
to exercise this Option. The Optionee or the Optionee's representative shall
deliver to the Corporation at the time of giving the notice, payment in a form
provided under Section 5 for the full amount of the exercise price applicable to
that portion of this Option being exercised. "Committee" means the committee
(comprised of at least two (2) members of the Board) appointed by the Board to
administer this Agreement, or, in the case that no such committee has been
appointed, the term "Committee" shall mean the Board.
b) Issuance of Shares. After receiving a proper notice of exercise, the
Corporation shall cause to be issued a certificate or certificates for the
Shares as to which this Option has been exercised, registered in the name of the
person exercising this Option and bearing such legends as may be appropriate.
The Corporation shall cause such certificate or certificates to be delivered to
or upon the order of the person exercising this Option.
c) Withholding Taxes. In the event that the Committee determines that the
Corporation is required to withhold foreign, federal, state or local tax as a
result of the exercise of this Option, the Optionee, as a condition to the
exercise of this Option, shall make arrangements satisfactory to the Committee
to enable the Corporation to satisfy all withholding requirements. Any Shares
purchased by exercising this Option shall also be issued subject to condition
that the Optionee shall make the arrangements satisfactory to the Committee to
enable the Corporation to satisfy any withholding requirements that may arise in
connection with the disposition of such Shares.
5. Payment for Stock.
Options may be exercised in whole or in part (but not for any fractional
shares of Common Stock). Shares of Common Stock purchased upon the exercise of
the Option shall be paid for at the time of purchase. Such payment may be made
as follows (or by any combination of the following), in the sole discretion of
the Optionee: (i) in United States currency by delivery of a certified check,
bank draft or postal or express money order payable to the order of the
Corporation, (ii) by surrender of a number of Mature Shares (as defined below)
of Common Stock held by the Optionee exercising the Option equal to the quotient
obtained by dividing (A) the aggregate exercise price payable with respect to
the Option then being exercised by (B) the Market Price (as defined below) on
the date of exercise, (iii) if the Corporation has established a program for the
cashless exercise of Options through a broker or other similar arrangements or
programs, then in accordance with the terms and conditions of such programs and
arrangements, (iv) other property acceptable to the Committee or (v) a loan of
money to an Optionee, the proceeds of which shall be used by the Optionee to
exercise all or a portion of the Option granted hereunder. If a loan is made by
the Corporation to the Optionee as contemplated in (v) above, the Optionee shall
execute a promissory note evidencing such loan and such note shall (I) provide
for full recourse to the maker, (II) bear interest at a rate no less than the
applicable Federal rate (within the meaning of Section 1274 of the Code), and
(III) contain other reasonable terms; provided, however, that the Optionee shall
not be permitted to choose a method of payment for the Shares which may violate
applicable law. Upon receipt of a notice of exercise and payment in accordance
with the procedures set forth above, the Corporation or its agent shall deliver
to the persons exercising the Option (or his or her designee) a certificate for
such Shares. "Mature Shares" means shares of Common Stock owned by the Optionee
for a period of at least six consecutive months prior to the exercise of the
Option in question. "Market Price" means the per share value of the Common Stock
and shall be determined as follows: (i) if the Common Stock is listed on a
national securities exchange or quoted on the Nasdaq National Market or the
Nasdaq SmallCap Market (collectively, "Nasdaq") the Market Price on any day
shall be, in the sole discretion of the Committee, either (x) the average of the
high and low reported consolidated trading sales prices, or if no such sale is
made on such day, the average of the closing bid and asked prices reported on
49
the consolidated trading listing for such day or (y) the closing price reported
on the consolidated trading listing for such day; (ii) if the Common Stock is
quoted on the OTC Bulletin Board, the Market Price on any day shall be the
average of the representative bid and asked prices at the close of business for
such day; (iii) if the Common Stock is not listed on a national stock exchange
or quoted on Nasdaq or listed on the OTC Bulletin Board, the Market Price on any
day shall be the average of the high bid and low asked prices reported by the
National Quotation Bureau, LLC (the "NQB") for such day; or (iv) if the Common
Stock is not listed on a national stock exchange, quoted on Nasdaq, quoted on
the OTC Bulletin Board or reported on by the NQB, the Market Price on any day
shall be the fair market value of one share of Common Stock on such day as
determined by the Committee.
6. Term and Expiration.
a) Term of Option. This Option shall expire on the day before the tenth
anniversary of the date hereof, unless sooner terminated as provided herein, and
may be exercised during such term only in accordance with this Agreement.
b) Termination due to Cessation of Relationship. Upon the cessation of
Optionee's employment by, consultancy for or emeritus (or similar) status with
the Corporation, this Option, which is otherwise exercisable, shall be
exercisable by, as appropriate, the Optionee, or its personal representative,
for a period of two (2) years from the date of such cessation, but in no event
after the expiration of the exercise period of the Option.
7. Registration Rights.
a) Subject to the terms of this Agreement, the Corporation shall use its
best efforts to register the Common Stock underlying the Option (the "New
Stock") for issuance and resale under the Securities Act of 1933, as amended
(the "Securities Act"), on Form S-8 or any other Securities and Exchange
Commission ("SEC") form, if available, which the Corporation deems appropriate
(a "Registration Statement").
b) The Corporation will notify the Optionee at any time when a prospectus
relating to the New Stock covered by a Registration Statement of the Corporation
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Corporation will use its best
efforts to promptly amend or supplement the Registration Statement to correct
any such untrue statement or omission.
c) The Optionee hereby agrees to cooperate with the Corporation in connection
with the preparation and filing of any Registration Statement by the Corporation
with respect to the New Stock. In addition, the Optionee agrees that, upon
receipt of any notice from the Corporation of the happening of any event of the
kind described in Section 7b), the Optionee will immediately discontinue
disposition of the New Stock pursuant to the Registration Statement covering the
New Stock until the Optionee's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 7b) and, if so desired by the
Corporation, the Optionee shall deliver to the Corporation (at the expense of
the Corporation) or destroy (and deliver to the Corporation a certificate of
such destruction) all copies, other than the permanent file copies then in the
Optionee's possession, of the prospectus covering such New Stock current at the
time of receipt of such notice.
d) The Optionee hereby represents and warrants to the Corporation as follows:
i) The Optionee has been furnished with all materials relating to the
Corporation and its proposed activities which the Optionee has requested
and has been afforded the opportunity to obtain any additional
information necessary with respect to the New Stock.
ii) The Corporation has answered all inquiries made by the Optionee
concerning the Corporation and its proposed activities, or any other
50
matters relating to the Registration Statement and the proposed
operations of the Corporation.
iii) By reason of the Optionee's business or financial experience, the
Optionee is capable of evaluating the merits and risks of an investment
in the New Stock and of protecting its own interests in connection with
the transaction involving the Option and the New Stock. The Optionee has
sufficient available financial resources to provide adequately for his
current needs, including possible personal contingencies, and can bear
the economic risk of a complete loss of the New Stock without materially
affecting his financial condition.
iv) The Optionee has not been furnished any offering literature
other than any materials and/or information made available to the
Optionee by the Corporation as described in Section 7d)i) and the
Optionee has relied only on such materials and/or information.
Furthermore, other than as set forth in this Agreement, no
representations or warranties have been made to the Optionee by the
Corporation, or by its directors or officers or employees or other
agents with respect to the intended business of the Corporation, the
financial condition, prospects, profitability, operations and/or
potential of the Corporation, and/or the economic or any other aspects
of the consequences of an investment in the New Stock, and the Optionee
has not relied upon any information concerning the offering, written or
oral, other than information contained in this Agreement or provided by
the Corporation to the Optionee.
v) The Optionee is acquiring the Option and, upon the exercise of the
Option, will be acquiring the New Stock, for his own account, as
principal, for investment and not with a view to the resale or
distribution of all or any part of the Option or the New Stock.
8. Securities Law and Other Restrictions.
Regardless of whether the offering and sale of Shares under this Agreement
have been registered under the Securities Act or have been registered or
qualified under the securities laws of any state, the Committee at its
discretion, may impose restrictions upon the sale, pledge or other transfer of
such Shares (including, without limitation, the placement of appropriate legends
on stock certificates or a "lock-up agreement") if, in the judgment of the
Corporation and its counsel, such restrictions are necessary or desirable in
order to achieve compliance with any agreement to which the Corporation is a
party, the Securities Act, the securities laws of any state or any other law or
with restrictions imposed on the Corporation by its underwriters, or otherwise.
9. Adjustment Upon Changes in Capitalization, Etc.
a) Certain Adjustments. Upon the occurrence of any of the events
described in this Section 9, the Optionee's rights with respect to the Option
shall be adjusted as and to the extent provided hereafter in this Section 9,
unless otherwise specifically provided in the written agreement between the
Optionee and the Corporation relating to such Option.
b) Stock Dividends and Stock Splits. If the shares of Common
Stock shall be subdivided or combined into a greater or smaller number of shares
or if the Corporation shall issue any shares of Common Stock as a stock dividend
on its outstanding Common Stock, the number of shares of Common Stock
deliverable upon the exercise of the Option shall be appropriately increased or
decreased proportionately and appropriate adjustments shall be made in the
exercise price per share to reflect such subdivision, combination or stock
dividend.
c) Consolidation, Acquisition or Merger. If the Corporation is to
be consolidated with or acquired by another entity in a merger, sale of all or
substantially all of the Corporation's assets or otherwise (an "Acquisition"),
the Committee or the board of directors of any entity assuming the obligations
of the Corporation hereunder (the "Successor Board"), shall, as to the
outstanding Option, either (i) make appropriate provision for the continuation
of such Option by substitution on an equitable basis for the shares then subject
51
to such Option for the consideration payable with respect to the outstanding
shares of Common Stock in connection with the Acquisition; (ii) upon written
notice to the Optionee, provide that the Option must be exercised, to the extent
then exercisable (or in the discretion of the Committee or the Successor Board,
also provide that all unvested portion of the Option, if any, shall be, or
become at the time which the Committee shall determine, either immediately
exercisable or immediately terminate), within a specified number of days of the
date of such notice, at the end of which period the Option shall terminate; or
(iii) terminate the Option in exchange for a cash payment or other consideration
equal to the excess of the fair market value of the shares of Common Stock
subject to such Option (to the extent then exercisable, or in the discretion of
the Committee or the Successor Board, whether or not then exercisable) over the
exercise price thereof.
d) Recapitalization or Reorganization. In the event of a
recapitalization or reorganization of the Corporation (other than a transaction
described in subsection 9c) above) pursuant to which securities of the
Corporation or of another corporation are issued with respect to the outstanding
shares of Common Stock, the Optionee upon exercising the Option shall be
entitled to receive for the purchase price paid upon such exercise, the
securities he would have received if he had exercised his Option immediately
prior to such recapitalization or reorganization.
e) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation (other than in connection with a
transaction described in subsection 9c) above), each Option will terminate
immediately prior to the consummation of such proposed action or at such other
time and subject to such other conditions as shall be determined by the
Committee.
f) Issuances of Securities. Except as expressly provided herein,
no issuance by the Corporation of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
subject to the Option. No adjustments shall be made for dividends paid in cash
or in property other than securities of the Corporation.
g) Other Adjustments. If changes in the capitalization of the
Corporation shall occur other than those referred to above in this Section 9,
the Committee shall make such adjustments, if any, in the number of shares
covered by the Option and in the per share purchase price as the Committee in
its discretion may consider appropriate. The Committee or, if applicable, the
Successor Board, shall determine the specific adjustments to be made under this
Section 9 and its determination shall be conclusive.
10. Miscellaneous Provisions.
a) Entire Agreement; Amendments. This Agreement constitutes the entire
agreement between the parties hereto with regard to the subject matter hereof.
This Agreement may not be amended except by a written instrument signed by both
parties hereto.
b) Choice of Law. To the extent not preempted by Federal law, this
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Florida.
c) Interpretations. The Committee shall have discretionary authority to
interpret the terms of this Agreement, to adopt and revise rules, regulations
and policies to administer this Agreement and to make any other factual
determinations, which it believes to be necessary or advisable for the
administration of this Agreement. All actions taken and interpretations and
determinations made by the Committee in good faith shall be final and binding
upon the Corporation, the Optionee and all other interested persons.
d) Liability; Indemnification.
i) No member of the Board or the Committee, nor any person to whom
ministerial duties have been delegated, shall be personally liable for any
action, interpretation or determination made with respect to this Agreement.
52
ii) In addition to such other rights of indemnification as he or she may
have as a member of the Board, and with respect to administration of this
Agreement, each member of the Board and of the Committee shall be entitled
without further act on his or her part to advancement of expenses and
indemnification from the Corporation pursuant to Florida law, including to the
full extent provided by Section 607.0850 of the Florida Business Corporation Act
(the "FBCA").The foregoing right of indemnification shall inure to the benefit
of the heirs, executors or administrators of each such member of the Board or
the Committee and shall be in addition to all other rights to which such member
of the Board or the Committee would be entitled to as a matter of law, contract
or otherwise.
e) Tax Withholding. The Corporation shall have the right to require the
Optionee or its beneficiary or legal representative to remit to the Corporation
an amount sufficient to satisfy Federal, state and local withholding tax
requirements, or to deduct from all payments under this Agreement amounts
sufficient to satisfy all withholding tax requirements. Whenever payments under
this Agreement are to be made to an Optionee in cash, if any, such payments
shall be net of any amounts sufficient to satisfy all Federal, state and local
withholding tax requirements. The Committee may, in its sole discretion, permit
the Optionee to satisfy its tax withholding obligations either by (i)
surrendering of Common Stock owned by the Optionee or (ii) having the
Corporation withhold from shares of Common Stock, or other compensation,
otherwise deliverable or payable to the Optionee. Shares of Common Stock
surrendered or withheld shall be valued at their Market Price as of the date on
which income is required to be recognized for income tax purpose
f) Compliance with Section 16(b). In the case the Optionee is or may be
subject to Section 16 of the Securities Exchange Act of 1934 Act, as amended
(the "1934 Act"), it is the intent of the Corporation that this Agreement and
any award granted hereunder satisfy and be interpreted in a manner that
satisfies the applicable requirements of Rule 16b-3 so that the Optionee will be
entitled to the benefits of Rule 16b-3 or other exemptive Rules under Section 16
of the 1934 Act and will not be subjected to liability thereunder. If any
provision of this Agreement or any award would otherwise conflict with the
intent expressed herein, that provision, to the extent possible, shall be
interpreted and deemed amended so as to avoid such conflict. To the extent of
any remaining irreconcilable conflict with such intent, such provision shall be
deemed void as applicable to the Optionee if the Optionee is or may be subject
to Section 16 of the 1934 Act. Neither this provision of the Agreement nor any
other provision of this Agreement shall be construed as to insure that the
Optionee has satisfied or will satisfy all the requirements of Section 16 of the
1934 Act and/or the Rules promulgated thereunder with respect to this Option or
the Common Stock underlying this Option.
g) Successors. The obligations of the Corporation under this Agreement
shall be binding upon any successor corporation or organization resulting from
the merger, consolidation or other reorganization of the Corporation, or upon
any successor corporation or organization succeeding to all or substantially all
of the assets and business of the Corporation.
h) General Creditor Status. The Optionee shall have no right, title or
interest whatsoever in or to any investments which the Corporation may make to
aid it in meeting its obligations under this Agreement. Nothing contained in
this Agreement, and no action taken pursuant to its provisions, shall create or
be construed to create a trust of any kind, or a fiduciary relationship between
the Corporation and the Optionee, or the beneficiary or legal representative of
the Optionee. To the extent that any person acquires a right to receive payments
from the Corporation under this Agreement, such right shall be no greater than
the right of an unsecured general creditor of the Corporation. All payments to
be made hereunder shall be paid from the general funds of the Corporation and no
special or separate fund shall be established and no segregation of assets shall
be made to assure payment of such amounts except as expressly set forth in this
Agreement.
i) No Right to Employment or Independent Contractor Status. Nothing in this
53
Agreement, nor the grant of the Option, shall confer upon the Optionee any right
to continue in the employ or as an independent contractor of the Corporation or
a subsidiary or affiliate or to be entitled to any remuneration or benefits not
set forth in this Agreement or interfere with or limit the right of the
Corporation or a subsidiary or affiliate to modify the terms of or terminate the
Optionee's employment or independent contractor status at any time.
j) Notices. Notices required or permitted to be given under this Agreement
shall be sufficiently given if in writing and personally delivered to the
Optionee or sent by regular mail addressed (i) to the Optionee at the Optionee's
address as set forth in the books and records of the Corporation or its
subsidiaries or affiliates, or (ii) to the Corporation or the Committee at the
principal office of the Corporation clearly marked "Attention: Compensation
Committee."
k) Severability. In the event that any provision of this Agreement shall be
held illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining parts of this Agreement, and this Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included.
[THE BALANCE OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
54
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed on its behalf by a duly authorized officer and the Optionee has
personally executed this Agreement.
Alliance Capital Resources, Inc. Nyer Medical Group, Inc.
By:_/s/ John B. Sutton, Jr. By: /s/ Karen Wright
John B. Sutton, Jr., President Karen Wright,
Optionee's Address: Chief Financial Officer
3027 S. Peck Avenue #5
San Pedro, California 90731
55
EXHIBIT A
[Date of Exercise]
[Corporation] [Address] [Address]
Attention: Compensation Committee
Re: Stock Option
Dear Sir:
I am the holder of a stock option granted to me by Nyer Medical Group, Inc.
(the "Corporation"), pursuant to a Stock Option Agreement dated as of _________,
to purchase ______________ shares of Common Stock of the Corporation ("Shares").
I hereby exercise such option with respect to ___________ Shares, the total
purchase price for which is $__________, and [I enclose a certified, bank
cashier's or other acceptable check payable to the order of the Corporation in
the amount of $_______, representing the total purchase price for the Shares] [I
hereby elect to pay the purchase price by delivering to the Corporation _____
shares of Common Stock of the Corporation having a fair market value equal to
$___________ from the Shares I am purchasing pursuant to the exercise of such
option] [I hereby elect to pay the purchase price by delivering to the
Corporation [ ], having a fair market value equal to $___________, as determined
by the Committee.] [I enclose an irrevocable direction to a securities broker to
deliver sales or loan proceeds to the Corporation in the amount of $_______,
representing the total purchase price for the Shares]. [I enclose the necessary
promissory note, pledge agreement and related documents pursuant to my loan from
the Corporation in the amount of $_____representing the total purchase price for
the Shares]. The certificate or certificates representing the Shares should be
registered in my name and should be forwarded to me at ________________________.
Please acknowledge receipt of the exercise of my stock option on the
attached copy of this letter.
Very truly yours,
[OPTIONEE]
RECEIPT ACKNOWLEDGED:
[CORPORATION]
By: ________________________________
56
Item 6. Exhibits and Reports on Form 8-K: continued,
5.
EXHIBIT 99.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER
PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Each of the undersigned hereby certifies, in accordance with 18 U.S.C. 1350, as
adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, in his
capacity as an officer of Nyer Medical Group, Inc. (the "Company"), that, to his
knowledge, the Quarterly Report of the Company on Form 10-Q for the period ended
December30, 2002, fully complies with the requirements of Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 and that the information
contained in such report fairly presents, in all material respects, the
financial condition and results of operation of the Company.
February 14, 2003 /s/ Samuel Nyer
Samuel Nyer,
Chief Executive Officer and
Principal Executive Officer
February 14, 2003 /s/ Karen L. Wright
Karen L. Wright
Chief Financial Officer and
Principal Financial Officer
57