SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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CORGENIX MEDICAL CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 93-1223466
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
12061 Tejon Street
Westminster, Colorado 80234
(303) 457-4345
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
2005 Incentive
Compensation Plan
(Full title of plan)
------------------------
Douglass T. Simpson With a copy to:
President and Chief Executive Robert P. Attai, Esq.
Officer Otten, Robinson, Johnson, Neff
12061 Tejon Street And Ragonetti, P.C.
Westminster, Colorado 80234 17th St., Suite 1600
(303) 457-4345 Denver, Colorado 80202
(303) 825-8400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
======================================================================
Proposed Proposed
Title of each maximum maximum n
class of offering offering Amount of
securities to be Amount to be price per price per registratio
registered registered share(1) share(1) fee
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Common Stock 1,500,000 $0.265 $397,500 $50.37
($.001 par value) shares
======================================================================
(1) Estimated solely for the purposes of
calculating the amount of the registration
fee pursuant to Rule 457(c). The price per
share and aggregate offering price are based
upon the average of the bid and asked price
of the Company's Common Stock on June 6, 2005
as reported on the OTC Bulletin Board(R).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. Incorporation of Documents by Reference.
The following documents filed or to be filed by Corgenix Medical
Corporation (the "Company") with the Securities and Exchange Commission (the
"Commission") are hereby incorporated or deemed to be incorporated in this
Registration Statement by reference:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 2004, filed with the Commission on October 13, 2004.
(b) The Company's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 2004, filed with the Commission on November 12, 2004.
(c) The Company's Quarterly Report on Form 10-QSB for the quarter ended
December 31, 2004, filed with the Commission on February 14, 2005.
(d) The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2005, filed with the Commission on May 12, 2005.
(e) The Company's current reports on Form 8-K filed with the Commission
on October 21, 2004, January 4, 2005, January 14, 2005, January 18,
2005, April 13, 2005, May 25, 2005 and May 26, 2005.
(f) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 10-SB/A-2, filed with the
Commission on November 3, 1998.
(g) All other documents filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of
a Post-Effective Amendment to this Registration Statement indicating
that all securities offered under the Registration Statement have
been sold, or deregistering all securities then remaining unsold.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
4. Description of Securities.
Not applicable.
5. Interests of Named Experts and Counsel.
Not applicable.
6. Indemnification of Directors and Officers.
The Company's Bylaws provide that the Company will indemnify its directors
and executive officers and may indemnify its other officers, employees and
agents to the fullest extent not prohibited by Nevada law. The Company has also
entered into indemnification agreements with each of its directors and officers.
The Company is also empowered under its Bylaws to purchase insurance on behalf
of any person it is required or permitted to indemnify.
In addition, the Company's Articles provide that the Company's directors
will not be personally liable to the Company or any of its stockholders for
damages for breach of the director's fiduciary duty as a director or officer
involving any act or omission of any such director or officer. Each director
will continue to be subject to liability for breach of the director's fiduciary
duties to the Company for acts or omissions that involve intentional misconduct,
fraud or a knowing violation of law, or the payment of dividends in violation of
Nevada corporate law. This provision also does not affect a director's
responsibilities under any other laws, such as the federal securities laws.
There is no pending litigation or proceeding involving a director or
officer of the Company as to which indemnification is being sought, nor is the
Company aware of any pending or threatened litigation that may result in claims
for indemnification by any director or officer.
7. Exemption from Registration Claimed.
Not applicable.
8. Exhibits
Incorporated by Reference
-----------------------------
-----------------------------
Exhibit Exhibit Description Form File Exhibit Filing Filed
Number No. Date Herewith
- ------ --- ---- --------
4.1 Articles of 10-SB 000-2454 4.1 June 24,
Incorporation of 1998
Corgenix Medical
Corporation, as
currently in effect
4.2 Bylaws of Corgenix 10-SB 000-2454 4.2 June 24,
Medical Corporation, as 1998
currently in effect.
4.3 2005 Incentive 4.3 X
Compensation Plan
5.1 Opinion and consent of 5.1 X
Otten, Johnson,
Robinson, Neff &
Ragonetti, P.C.
23.1 Consent of Otten, 23.1 X
Johnson, Robinson,
Neff & Ragonetti, P. C
(included in Exhibit
5.1).
23.2 Consent of KPMG LLP 23.2 X
24.1 Power of Attorney 24.1 X
(included in signature
page)
9. Undertakings
A. The undersigned Registrant hereby undertakes: (1) to file, during any period
in which offers or sales are being made, a post-effective amendment to this
Registration Statement to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement, or
any material change to such information in the Registration Statement; (2) that,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and (3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Westminster, State of Colorado, on the 8th day of
June, 2005.
CORGENIX MEDICAL CORPORATION
By: /s/ Douglass T. Simpson
Douglass T. Simpson
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Dr. Luis R. Lopez and Douglass T.
Simpson, and each or any of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments and any registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agents, or any of them, or their
or his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signatures Title Date
/s/ Douglas T. Simpson President, Chief Executive June 8, 2005
- -------------------------
Douglas T. Simpson Officer (principal
executive officer) and
Director
/s/ William H. Critchfield Senior Vice President and June 8, 2005
- ----------------------------
William H. Critchfield CFO (principal financial
and accounting officer)
/s/ Luis R. Lopez Chairman of the Board, June 8, 2005
- -------------------------
Luis R. Lopez, MD Chief Medical Officer and
Director
/s/ Jun Sasaki Director June 8, 2005
- -------------------------
Jun Sasaki
EXHIBIT INDEX
Exhibits Description
4.1 Articles of Incorporation of Corgenix Medical Corporation,
as currently in effect
4.2 Bylaws of Corgenix Medical Corporation
4.3 2005 Incentive Compensation Plan
5.1 Opinion and Consent of Otten, Johnson, Robinson, Neff &
Ragonetti, P.C.
23.1 Consent of Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
(included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (included in signature page).
CORGENIX MEDICAL CORPORATION
2005 INCENTIVE COMPENSATION PLAN
CORGENIX MEDICAL CORPORATION
2005 INCENTIVE COMPENSATION PLAN
SECTION 1
INTRODUCTION
1.1 Establishment. Corgenix Medical Corporation, a Nevada corporation
(hereinafter referred to as the "Company" except where the context otherwise
requires), hereby establishes the 2005 Corgenix Incentive Compensation Plan (the
"Plan").
1.2 Purpose. The purpose of the Plan is to attract and retain directors,
officers, consultants and employees and to motivate such persons by relating
incentive compensation to increases in stockholder value.
SECTION 2
DEFINITIONS
2.1 Definitions. The following terms shall have the meanings set forth
below:
(a) "Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under direct or
indirect common control with such Person. A Person shall be deemed
to control another Person for purposes of this definition if such
Person possesses, directly or indirectly, the power (i) to vote the
securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors of a
corporation or other Persons performing similar functions for any
other type of Person, or (ii) to direct or cause the direction of
the management and policies of such Person, whether through the
ownership of voting securities, by contract, as general partner, as
trustee or otherwise.
(b) "Award" means a grant made under this Plan in the form of
Non-Statutory Options, Incentive Stock Options and/or Restricted
Stock Awards.
(c) "Board" means the Board of Directors of the Company.
(d) "Committee" shall mean the Board, or if one has been appointed, the
Compensation Committee.
(e) "Compensation Committee" means a committee consisting of at least two
Non-Employee Directors (as defined in Rule 16b-3(i) under the 1934
act who are empowered hereunder to take actions in the
administration of the Plan. If the Stock is publicly traded, the
Compensation Committee shall be so constituted at all times as to
permit the Plan to comply with Rule 16b-3 or any successor rule
promulgated under the Securities Exchange Act of 1934 (the "1934
Act") as well ss.162(m) of the Internal Revenue Code of 1986, as
it may be amended from time to time ("Code"). Members of
the Compensation Committee shall be appointed from time to time by
the Board, shall serve at the pleasure of the Board, and may resign
at any time upon written notice to the Board.
(f) "Effective Date" means the effective date of the Plan, April 21,
2005.
(g) "Eligible Employees" means key employees (including, without
limitation, officers and directors who are also employees) of the
Company or any division thereof, upon whose judgment, initiative and
efforts the Company is, or will be, important to the successful
conduct of its business.
(h) "Fair Market Value" means, if the Stock is not publicly traded, the
value of the Stock as determined in good faith by the Committee
after such consultation with outside legal, accounting and other
experts as the Committee may deem advisable. The Committee shall
maintain a written record of its method of determining such value.
If the Stock is publicly traded, Fair Market Value means the
officially quoted closing price of the Stock on the national
exchange on which the Stock is traded on a particular date. If
there are no Stock transactions on such date, the Fair Market Value
shall be determined as of the immediately preceding date on which
there were Stock transactions. If no such prices are reported on
the national exchange on which the Stock is traded, then Fair
Market Value shall mean the most recent ten day average of the high
and low sale prices for the Stock (or if no sales prices are
reported, the average of the preceding ten day high and low bid
prices) as reported by the principal regional stock exchange, or if
not so reported, as reported by a quotation system of general
circulation to brokers and dealers.
(i) "Incentive Stock Option" means any Option designated as such and
granted in accordance with the requirements of ss. 422 of the Code.
(j) "Non-Statutory Option" means any Option other than an Incentive Stock
Option.
(k) "Option" means a right to purchase Stock at a stated price for a
specified period of time.
(l) "Option Price" means the price at which shares of Stock subject to an
Option may be purchased, determined in accordance with subsection
6.2(b).
(m) "Participant" means an Eligible Employee, consultant or other
independent advisor of the Company designated by the Committee from
time to time during the term of the Plan to receive one or more
Awards under the Plan.
(n) "Person" means any individual, partnership, joint venture, firm,
company, corporation, association, trust or other enterprise or any
government or political subdivision or any agent, department or
instrumentality thereof.
(o) "Plan Year" means each 12-month period coinciding the Company's
fiscal year except that for the first year of the Plan it shall begin
on the Effective Date and extend to the end of the fiscal year of
Company following the Effective Date.
(p) "QDRO" shall mean a qualified domestic relations order as defined by
the Internal Revenue Code or Title I of the Employee Retirement
Income Security Act of 1934, as amended, or the rules thereunder.
(q) "Restricted Stock" shall mean shares of Stock granted under Section 7
that are subject to restrictions imposed pursuant to such Section.
(r) "Share" means a share of Stock.
(s) "Stock" means the common stock of the Company.
2.2 Gender and Number. Except when otherwise indicated by the context, the
masculine gender shall also include the feminine gender, and the definition of
any term herein in the singular shall also include the plural
SECTION 3
PLAN ADMINISTRATION
The Plan shall be administered by the Committee. In accordance with
the provisions of the Plan, the Committee shall, in its sole discretion, select
Participants from among the Eligible Employees to whom Awards will be granted,
the form of each Award, the amount of each Award and any other terms and
conditions of each Award as the Committee may deem necessary or desirable and
consistent with the terms of the Plan. The Committee shall determine the form or
forms of the agreements with Participants which shall evidence the particular
provisions, terms, conditions, rights and duties of the Company and the
Participants with respect to Awards granted pursuant to the Plan, which
provisions need not be identical except as may be provided herein. The Committee
may from time to time adopt such rules and regulations for carrying out the
purposes of the Plan as it may deem proper and in the best interests of the
Company. The Committee may correct any defect, supply any omission or reconcile
any inconsistency in the Plan or in any agreement entered into hereunder in the
manner and to the extent it shall deem expedient and it shall be the sole and
final judge of such expediency. No member of the Committee shall be liable for
any action or determination made in good faith, and all members of the Committee
shall, in addition to their rights as directors, be fully protected by the
Company with respect to any such action, determination or interpretation. The
determination, interpretations and other actions of the Committee pursuant to
the provisions of the Plan shall be binding and conclusive for all purposes and
on all persons.
SECTION 4
STOCK SUBJECT TO THE PLAN
4.1 Number of Shares. Initially, 1,500,000 Shares are authorized for issuance
under the Plan in accordance with the provisions of the Plan and subject to such
restrictions or other provisions as the Committee may from time to time deem
necessary. The Shares may be divided among the various Plan components as the
Committee shall determine, and all of them shall be available for the grant of
Incentive Stock Options under the Plan. Shares which may be issued upon the
exercise of Options shall be applied to reduce the maximum number of Shares
remaining available for use under the Plan. The Company shall at all times
during the term of the Plan and while any Options are outstanding retain as
authorized and unissued Stock, or as treasury Stock, at least the number of
Shares from time to time required under the provisions of the Plan, or otherwise
assure itself of its ability to perform its obligations hereunder.
4.2 Unused and Forfeited Stock. Any Shares that are subject to an Award under
this Plan which are not used because the terms and conditions of the Award are
not met, including any Shares that are subject to an Option which expires or is
terminated for any reason, any Shares which are used for full or partial payment
of the purchase price of Shares with respect to which an Option is exercised and
any Shares retained by the Company pursuant to Section 13.2 shall automatically
become available for use under the Plan. Notwithstanding the foregoing, any
Shares used for full or partial payment of the purchase price of the Shares with
respect to which an Option is exercised and any Shares retained by the Company
pursuant to Section 13.2 that were originally Incentive Stock Option Shares must
still be considered as having been granted for purposes of deter-mining whether
the limitation on Incentive Stock Option grants provided for in Section 4.1 has
been reached.
4.3 Adjustments for Stock Split, Stock Dividend, Etc. If the Company shall at
any time increase or decrease the number of its outstanding Shares or change in
any way the rights and privileges of such Shares by means of the payment of a
stock dividend or any other distribution upon such Shares payable in Stock, or
through a stock split, subdivision, consolidation, combination, reclassification
or recapitalization involving the Stock, then in relation to the Stock that is
affected by one or more of the above events, the numbers, rights and privileges
of the following shall be increased, decreased or changed in like manner as if
they had been issued and outstanding, fully paid and nonassessable at the time
of such occurrence: (i) the Shares as to which Awards may be granted under the
Plan; and (ii) the Shares of Stock then included in each outstanding Option
granted hereunder.
4.4 Other Changes in Stock. In the event there shall be any change, other than
as specified in Section 4.3, in the number or kind of outstanding Shares or of
any stock or other securities into which the Stock shall be changed or for which
it shall have been exchanged, and if the Committee shall in its discretion
determine that such change equitably requires an adjustment in the number or
kind of Shares subject to outstanding Awards or which have been reserved for
issuance pursuant to the Plan but are not then subject to an Award, then such
adjustments shall be made by the Committee and shall be effective for all
purposes of the Plan and on each outstanding Award that involves the particular
type of stock for which a change was effected.
4.5 General Adjustment Rules. If any adjustment or substitution provided for in
this Section 4 shall result in the creation of a fractional Share under any
Award, the Company shall, in lieu of selling or otherwise issuing such
fractional Share, pay to the Participant a cash sum in an amount equal to the
product of such fraction multiplied by the Fair Market Value of a Share on the
date the fractional Share would otherwise have been issued. In the case of any
such substitution or adjustment affecting an Option, the total Option Price for
the Shares then subject to an Option shall remain unchanged but the Option Price
per share under each such Option shall be equitably adjusted by the Committee to
reflect the greater or lesser number of Shares or other securities into which
the Stock subject to the Option may have been changed.
4.6 Determination by Committee, Etc. Adjustments under this Section 4 shall be
made by the Committee, whose determinations with regard thereto shall be final
and binding upon all parties thereto.
SECTION 5
PARTICIPATION
Participants in the Plan shall be those Participants who, in the
judgment of the Committee, are performing, or during the term of their
employment will perform, important services in the management, operation and
development of the Company, and significantly contribute, or are expected to
significantly contribute, to the achievement of long-term corporate economic
objectives. Participants may be granted from time to time one or more Awards;
provided, however, that the grant of each such Award shall be separately
approved by the Committee, and receipt of one such Award shall not result in
automatic receipt of any other Award. Written notice shall be given to such
person, specifying the terms, conditions, rights and duties related thereto.
Each Participant shall enter into an agreement with the Company, in such form as
the Committee shall determine and which is consistent with the provisions of the
Plan, specifying such terms, conditions, rights and duties. Awards shall be
deemed to be granted as of the date specified in the grant resolution of the
Committee, which date shall be the date of any related agreement with the
Participant. In the event of any inconsistency between the provisions of the
Plan and any such agreement entered into hereunder, the provisions of the Plan
shall govern.
SECTION 6
STOCK OPTIONS
6.1 Grant of Options. Coincident with the following designation for
participation in the Plan, a Participant may be granted one or more Options. The
Committee in its sole discretion shall designate whether an Option is to be
considered an Incentive Stock Option or a Non-Statutory Option. The Committee
may grant both an Incentive Stock Option and a Non-Statutory Option to the same
Participant at the same time or at different times. Incentive Stock Options and
Non-Statutory Options, whether granted at the same or different times, shall be
deemed to have been awarded in separate grants, shall be clearly identified, and
in no event shall the exercise of one Option affect the right to exercise any
other Option or affect the number of Shares for which any other Option may be
exercised.
6.2 Option Agreements. Each Option granted under the Plan shall be evidenced by
a written stock option agreement which shall be entered into by the Company and
the Participant to whom the Option is granted (the "Option Holder"), and which
shall contain the following terms and conditions, as well as such other terms
and conditions not inconsistent therewith, as the Committee may consider
appropriate in each case.
(a) Number of Shares. Each stock option agreement shall state that it
covers a specified number of Shares, as determined by the
Committee. Notwithstanding any other provision of the Plan, the
aggregate Fair Market Value of the Shares with respect to which
Incentive Stock Options are exercisable for the first time by an
Option Holder in any calendar year, under the Plan or otherwise,
shall not exceed $100,000. For this purpose, the Fair Market Value
of the Shares shall be determined as of the time an Option is
granted.
(b) Price. The price at which each Share covered by an Option may be
purchased shall be determined in each case by the Committee and set
forth in the stock option agreement, but in no event shall the
Option Price for each Share covered by an Incentive Stock Option be
less than the Fair Market Value of the Stock on the date the Option
is granted; provided that the Option Price for each Share covered
by a Non-Statutory Option may be granted at any price less than
Fair Market Value, in the sole discretion of the Committee. In
addition, the Option Price for each Share covered by an Incentive
Stock Option granted to an Eligible Employee who then owns stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any parent or subsidiary
corporation of the Company must be at least 110% of the Fair Market
Value of the Stock subject to the Incentive Stock Option on the
date the Option is granted.
(c) Duration of Options. Each stock option agreement shall state the period
of time, determined by the Compensation Committee, within which the
Option may be exercised by the Option Holder (the "Option
Period"). The Option Period must expire, in all cases, not more
than seven years from the date an Option is granted. Each stock
option agreement shall also state the periods of time, if any, as
determined by the Compensation Committee, when incremental portions
of each Option shall vest. Except as provided in Section 7, no
portion of any Option shall vest earlier than one year after the
date of grant of the Option.
(d) Termination of Employment, Death, Disability, Etc. Except as
otherwise determined by the Committee, each stock option agreement
shall provide as follows with respect to the exercise of the Option
upon termination of the employment or the death of the Option Holder:
(i) If the employment of the Option Holder is terminated within the
Option Period for cause, as determined by the Company, the Option
shall thereafter be void for all purposes. As used in this subsection
6.2(d), "cause" shall mean willful dishonesty towards, fraud upon or
deliberate injury or attempted deliberate injury to the Company,
misrepresentation or concealment of a material fact or circumstance
for the purpose of or otherwise in connection with securing
employment with the Company, breach of any limitations on the use or
disclosure of confidential information or materials, conviction for a
felony or a material breach of the Option Holder's employment
agreement with the Company. The effect of this subsection 6.2(d)(i)
shall be limited to determining the consequences of a termination,
and nothing in this subsection 6.2(d)(i) shall restrict or otherwise
interfere with the Company's discretion with respect to the
termination of any employee.
(ii) If the Option Holder dies, or if the Option Holder becomes disabled
(within the meaning of Section 22(e) of the Internal Revenue Code),
during the Option Period while still employed, or within the 30 day
period referred to in (iii) below, the Option may be exercised by
those entitled to do so under the Option Holder's will or by the laws
of descent and distribution within twelve months following the Option
Holder's death or disability, but not thereafter. In any such case,
the Option may be exercised only as to the Shares as to which the
Option had become exercisable on or before the date of the Option
Holder's death or disability.
(iii) If the employment of the Option Holder by the Company is terminated
(which for this purpose means that the Option Holder is no longer
employed by the Company or by an Affiliate) within the Option Period
for any reason other than cause, disability or the Option Holder's
death, the Option may be exercised by the Option Holder within 30
days following the date of such termination (provided that such
exercise must occur within the Option Period), but not thereafter. In
any such case, the Option may be exercised only as to the Shares as
to which the Option had become exercisable on or before the date of
termination of employment.
(e) Transferability. Each stock option agreement applicable to an Incentive
Stock Option shall provide that the Option granted therein is not
transferable by the Option Holder except by will or pursuant to the
laws of descent and distribution, and that such Option is
exercisable during the Option Holder's lifetime only by him or her,
or in the event of disability or incapacity, by his or her guardian
or legal representative. The Committee shall determine the extent,
if any, to which Non-Statutory Options shall be subject to
transferability and exercisability restrictions.
(f) Exercise, Payments, Etc.
(i) Each stock option agreement shall provide that the method for
exercising the Option granted therein shall be by delivery to the
Corporate Secretary of the Company of written notice specifying the
number of Shares with respect to which such Option is exercised
(which must be in an amount evenly divisible by 100) and payment of
the Option Price. Such notice shall be in a form satisfactory to the
Committee and shall specify the particular Option (or portion
thereof) which is being exercised and the number of Shares with
respect to which the Option is being exercised. The exercise of the
Option shall be deemed effective upon receipt of such notice by the
Corporate Secretary and payment to the Company. The purchase of such
Stock shall take place at the principal offices of the Company upon
delivery of such notice, at which time the purchase price of the
Stock shall be paid in full by any of the methods or any combination
of the methods set forth in (ii) below. A properly executed
certificate or certificates representing the Stock shall be issued by
the Company and delivered to the Option Holder. If certificates
representing Stock are used to pay all or part of the Option Price,
separate certificates for the same number of Shares shall be issued
by the Company and delivered to the Option Holder representing each
certificate used to pay the Option Price, and an additional
certificate shall be issued by the Company and delivered to the
Option Holder representing the additional Shares, in excess of the
Option Price, to which the Option Holder is entitled as a result of
the exercise of the Option.
(ii) The Option Price shall be paid by any of the following methods or any
combination of the following methods:
(A) In cash;
(B) By cashier's check payable to the order of the Company;
(C) By delivery to the Company of certificates representing the number of
Shares then owned by the Option Holder, the Fair Market Value of
which equals the Option Price, properly endorsed for transfer to
the Company; provided however, that Shares used for this purpose
must have been held by the Option Holder for such minimum period of
time as may be established from time to time by the Committee; For
purposes of this Plan, the Fair Market Value of any Shares
delivered in payment of the Option Price shall be the Fair Market
Value as of the exercise date. The exercise date shall be the
delivery day of the certificates for the Stock used as payment of
the Option Price; or
(D) If the Stock is publicly traded, by delivery to the Company of a
properly executed notice of exercise together with irrevocable
instructions to a broker to deliver to the Company promptly the
amount of the proceeds of the sale of all or a portion of the Stock
necessary to pay the Option Price.
(g) Withholding.
(i) Non-Statutory Options. Each stock option agreement covering
Non-Statutory Options shall provide that, upon exercise of the
Option, the Option Holder shall make appropriate arrangements with
the Company to provide for the amount of additional withholding
required by applicable federal and state income tax laws, including
payment of such taxes through delivery of Stock or by withholding
Stock to be issued under the Option, as provided in Section 13.
(ii) Incentive Stock Options. In the event that a Participant makes a
disposition (as defined in Section 424(c) of the Code) of any Stock
acquired pursuant to the exercise of an Incentive Stock Option prior
to the expiration of two years from the date on which the Incentive
Stock Option was granted or prior to the expiration of one year from
the date on which the Option was exercised, the Participant shall
send written notice to the Company at its principal office
(Attention: Corporate Secretary) of the date of such disposition, the
number of Shares disposed of, the amount of proceeds received from
such disposition, and any other information relating to such
disposition as the Company may reasonably request. The Participant
shall, in the event of such a disposition, make appropriate
arrangements with the Company to provide for the amount of additional
withholding, if any, required by applicable federal and state income
tax laws.
(h) Adjustment of Options. Subject to the limitations contained in
Section 6 and Section 9, the Committee may make any adjustment to
the Option Price, the number of Shares subject to, or the terms of,
an outstanding Option and a subsequent granting of an Option by
amendment or by substitution of an outstanding Option. Such
amendment, substitution, reduction, or re-grant may result in terms
and conditions (including Option Price, number of shares covered,
vesting schedule or Option Period) that differ from the terms and
conditions of the original Option. The Committee may not, however,
adversely affect the rights of any Participant to previously
granted Options without the consent of such Participant. If such
action is affected by amendment, the effective date of such
amendment shall be the date of the original grant.
6.3 Stockholder Privileges. No Option Holder shall have any rights as a
stockholder with respect to any Shares covered by an Option until the Option
Holder becomes the holder of record of such Stock, and no adjustments shall be
made for dividends or other distributions or other rights as to which there is a
record date preceding the date such Option Holder becomes the holder of record
of such Stock, except as provided in Section 4.
SECTION 7
RESTRICTED STOCK PROGRAM
7.1 Awards Granted. Coincident with or following designation for participation
in the Plan, a Participant may be granted one or more Restricted Stock Awards
consisting of Shares. The number of Shares granted as a Restricted Stock Award
shall be determined by the Committee. Each Restricted Stock Award shall be
evidenced by a written equity award agreement that shall be entered into by the
Company and the Participant to whom the Award is granted.
7.2 Restrictions. A Participant's right to retain a Restricted Stock Award
granted to such Participant under Section 7.1 shall be subject to such
restrictions set forth in the equity award agreement, including but not limited
to his or her continuous employment by the Company for a restriction period
specified by the Committee or the attainment of specified performance goals and
objectives, as may be established by the Committee with respect to such Award.
The Committee may in its sole discretion require different periods of employment
or different performance goals and objectives with respect to different
Participants, to different Restricted Stock Awards or to separate, designated
portions of the Shares constituting a Restricted Stock Award.
7.3 Privileges of a Stockholder. Transferability. A Participant shall have all
voting, dividend, liquidation and other rights with respect to Shares in
accordance with its terms received by him or her as a Restricted Stock Award
under this Section 7 upon his or her becoming the holder of record of such
Shares; provided, however, that the Participant's right to sell, encumber or
otherwise transfer such Shares shall be subject to the limitations of Section
9.2 hereof.
SECTION 8
CHANGE IN CONTROL
8.1 Options. In the event of a change in control of the Company as defined in
Section 8.2, then the Committee shall have the power and discretion to prescribe
the terms and conditions for the exercise of, or modification of, any
outstanding Awards granted hereunder. By way of illustration, and not by way of
limitation, the Committee may provide for the complete or partial acceleration
of the dates of exercise of the Options, or may provide that such Options will
be exchanged or converted into options to acquire securities of the surviving or
acquiring corporation, or may provide for a payment or distribution in respect
of outstanding Options (or the portion thereof that is currently exercisable) in
cancellation thereof. The Committee may modify the performance requirements for
any other Awards. The Committee may provide that Awards granted hereunder must
be exercised in connection with the closing of such transaction, and that if not
so exercised such Awards will expire. Any such determinations by the Committee
may be made generally with respect to all Participants, or may be made on a
case-by-case basis with respect to particular Participants.
8.2 Definition. For purposes of the Plan, a "change in control" shall be deemed
to have occurred if (a) any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the 1934 Act), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or the current
beneficial owners or their Affiliates are or become the "beneficial owner" (as
defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of more than
one-half of the voting power of the then outstanding voting stock of the
Company; or (b) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least a majority of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets.
SECTION 9
RIGHTS OF EMPLOYEES; PARTICIPANTS
9.1 Employment. Nothing contained in the Plan or in any Award granted under the
Plan shall confer upon any Participant any right with respect to the
continuation of his or her employment by the Company, or interfere in any way
with the right of the Company, subject to the terms of any separate employment
agreement to the contrary, at any time to terminate such employment or to
increase or decrease the compensation of the Participant from the rate in
existence at the time of the grant of an Award.
9.2 Nontransferability. Awards under this Plan may not be sold, pledged,
assigned, or transferred in any manner other than by will or the laws of descent
and distribution or pursuant to a QDRO, unless and until such Awards have been
exercised, or the Shares underlying such Awards have been issued, and all
restrictions applicable to such Shares have lapsed.
During the lifetime of the Participant, only he may exercise an Award
(or any portion thereof) granted to him under the Plan, unless it has been
disposed of pursuant to a QDRO. After the death of the Participant, any
exercisable portion of an Award may, prior to the time when such portion becomes
unexercisable under the Plan or the applicable agreement, be exercised by his
personal representative or by any person empowered to do so under the deceased
Participant's will or under the then applicable laws of descent and
distribution.
SECTION 10
GENERAL RESTRICTIONS
10.1 Investment Representations. The Company may require any person to whom an
Option or other Award is granted, as a condition of exercising such Option or
receiving Stock under the Award, to give written assurances in substance and
form satisfactory to the Company and its counsel to the effect that such person
is acquiring the Stock subject to the Option or the Award for his own account
for investment and not with any present intention of selling or otherwise
distributing the same, and to such other effects as the Company deems necessary
or appropriate in order to comply with federal and applicable state securities
laws. Legends evidencing such restrictions may be placed on the certificates
evidencing the Stock.
10.2 Compliance with Securities Laws. Each Award shall be subject to the
requirement that, if at any time counsel to the Company shall determine that the
listing, registration or qualification of the Shares subject to such Award upon
any securities exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, is necessary as a condition of,
or in connection with, the issuance or purchase of Shares thereunder, such Award
may not be accepted or exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained on conditions acceptable to the Committee. Nothing herein shall be
deemed to require the Company to apply for or to obtain such listing,
registration or qualification.
10.3 Stock Restriction Agreement. The Committee may provide that Shares issuable
upon the exercise of an Option or grant of any Award shall, under certain
conditions, be subject to restrictions whereby the Company has a right to
prohibit the transfer of such Shares, a right of first refusal with respect to
such Shares and/or a right or obligation to repurchase all or a portion of such
Shares, which restrictions may survive a Participant's term of employment with
the Company.
SECTION 11
OTHER EMPLOYEE BENEFITS
The amount of any compensation deemed to be received by a Participant
as a result of the exercise of an Option or the grant or vesting of any other
Award shall not constitute "earnings" with respect to which any other employee
benefits of such employee are determined, including without limitation benefits
under any pension, profit sharing, life insurance or salary continuation plan.
SECTION 12
PLAN AMENDMENT, MODIFICATION AND TERMINATION
The Committee may at any time terminate, and from time-to-time may
amend or modify, the Plan; provided, however, that no amendment or modification
may become effective without approval of the amendment or modification by the
stockholders if stockholder approval is required to enable the Plan to satisfy
any applicable statutory or regulatory requirements, or if the Company, on the
advice of counsel, determines that either stockholder and/or Board approval is
otherwise necessary or desirable.
No amendment, modification or termination of the Plan shall in any
manner adversely affect any Awards theretofore granted under the Plan, without
the consent of the Participant holding such Awards.
SECTION 13
WITHHOLDING
13.1 Withholding Requirement. The Company's obligations to deliver Shares upon
the exercise of an Option, or upon the vesting of any other Award, shall be
subject to the Participant's satisfaction of all applicable federal, state and
local income and other tax withholding requirements.
13.2 Withholding With Stock. At the time the Committee grants an Award, it may,
in its sole discretion, grant the Participant an election to pay all amounts of
tax withholding, or any part thereof, by electing to transfer to the Company, or
to have the Company withhold from Shares otherwise issuable to the Participant,
Shares having a value equal to the amount required to be withheld or such lesser
amount as may be elected by the Participant. All elections shall be subject to
the approval or disapproval of the Committee. The value of Shares to be withheld
shall be based on the Fair Market Value of the Stock on the date that the amount
of tax to be withheld is to be determined (the "Tax Date"). Any such elections
by Participants to have Shares withheld for this purpose will be subject to the
following restrictions:
(a) All elections must be made prior to the Tax Date.
(b) All elections shall be irrevocable.
(c) If the Participant is an officer or director of the Company within
the meaning of Section 16 of the Securities Exchange Act of 1934
("Section 16"), the Participant must satisfy the requirements of such
Section 16 and any applicable rules thereunder with respect to the
use of Stock to satisfy such tax withholding obligation.
SECTION 14
BROKERAGE ARRANGEMENTS
The Committee, in its discretion, may enter into arrangements with
one or more banks, brokers or other financial institutions to facilitate the
disposition of shares acquired upon exercise of Stock Options, including,
without limitation, arrangements for the simultaneous exercise of Stock Options
and sale of the Shares acquired upon such exercise.
SECTION 15
NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the submission of
the Plan to stockholders of the Company for approval shall be construed as
creating any limitations on the power or authority of the Board to adopt such
other or additional incentive or other compensation arrangements of whatever
nature as the Board may deem necessary or desirable or preclude or limit the
continuation of any other plan, practice or arrangement for the payment of
compensation or fringe benefits to employees generally, or to any class or group
of employees, which the Company now has lawfully put into effect, including,
without limitation, any retirement, pension, savings and stock purchase plan,
insurance, death and disability benefits and executive short-term Compensations.
SECTION 16
REQUIREMENTS OF LAW
16.1 Requirements of Law. The issuance of Stock and the payment of cash pursuant
to the Plan shall be subject to all applicable laws, rules and regulations.
16.2 Federal Securities Law Requirements. If, and to the extent, required by
law, if a Participant is an officer or director of the Company within the
meaning of Section 16 of the 1934 Act, Awards granted hereunder shall be subject
to all conditions required under Rule 16b-3, or any successor rule promulgated
under the 1934 Act, to qualify the Award for any exception from the provisions
of Section 16(b) of the 1934 Act available under that Rule. Such conditions are
hereby incorporated herein by reference and shall be set forth in the agreement
with the Participant which describes the Award.
16.3 Governing Law. The Plan and all agreements hereunder shall be construed in
accordance with and governed by the laws of the State of Colorado.
SECTION 17
DURATION OF THE PLAN
The Plan shall terminate at such time as may be determined by the
Board of Directors, and no Award shall be granted after such termination. If not
sooner terminated under the preceding sentence, the Plan shall fully cease and
expire at midnight on that date which is the date immediately preceding the
fifth anniversary of the date of adoption of the Plan. Awards outstanding at the
time of the Plan termination may continue to be exercised or earned in
accordance with their terms.
SECTION 18
CONFLICT IN TERMS
In the event that there is a conflict between the terms of this Plan
and any Stock Option granted pursuant to this Plan and/or any Repurchase
Agreement executed in connection with this Plan, the terms of this Plan shall
control.
CORGENIX MEDICAL CORPORATION, a Nevada
corporation
By: s/ Douglass T. Simpson
----------------------
Douglass T. Simpson, President & CEO
June 8, 2005
Board of Directors
Corgenix Medical Corporation
12061 Tejon Street
Westminster, Colorado 80234
Re: Registration Statement on Form S-8 Relating to 1,500,000
Shares of Common Stock Under the 2005 Incentive Compensation
Plan
Gentlemen:
We have acted as counsel for Corgenix Medical Corporation, a Nevada
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") filed by the
Company with the Securities and Exchange Commission. The Registration Statement
relates to the registration under the Securities Act of 1933, as amended (the
"Act"), of 1,500,000 shares of the Company's common stock, par value $.001 per
share (the "Shares"), reserved for issuance under the Company's 2005 Incentive
Compensation Plan (the "Plan").
In rendering this opinion, we have examined such documents and
records, including an examination of originals or copies certified or otherwise
identified to our satisfaction, and matters of law as we have deemed necessary
for purposes of this opinion. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the originals of all documents submitted to
us as copies.
Based upon the foregoing and subject to the qualifications and
limitations stated herein, we are of the opinion that the Shares are duly and
validly authorized and, when issued and sold as contemplated by the Plan and the
Registration Statement, will be legally and validly issued, fully paid and
non-assessable shares of capital stock of the Company.
We are members of the Bar of the State of Colorado and do not express
any opinion with respect to the laws of any jurisdiction other than the federal
laws of the United States and the laws of the State of Colorado. We express no
opinion as to either the applicability or effect of the laws of any other
jurisdiction. To the extent any of our opinions relate to contractual or
corporate matters that might be governed by the laws of any government,
regulatory agency or jurisdiction other than the United States, the federal laws
of the United States or the State of Colorado, we have assumed with your
permission and notwithstanding the foregoing, that the internal laws (without
regard to the principles of conflict of laws) of the State of Colorado would
apply and govern such matters.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or under the rules and regulations of
the Securities and Exchange Commission relating thereto.
Very truly yours,
OTTEN, JOHNSON, ROBINSON,
NEFF & RAGONETTI, P.C.
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Corgenix Medical Corporation:
We consent to the use of our report dated October 11, 2004, with respect to the
consolidated balance sheets of Corgenix Medical Corporation and subsidiaries as
of June 30, 2004 and 2003, and the related consolidated statements of operations
and comprehensive loss, stockholders' equity and cash flows for the years then
ended, incorporated herein by reference.
As discussed in note 1(h) to the June 30, 2004 consolidated financial statements
of Corgenix Medical Corporation, effective July 1, 2002, the Company changed its
method of accounting for goodwill as prescribed by Statement of Financial
Accounting Standards No. 142.
KPMG LLP