UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CareDecision Corporation
------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEVADA 91-2105842
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
2660 Townsgate Rd., Ste. 300, Westlake Village, CA 91361
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (805) 446-1973
CareDecision Corporation 2004 Stock Option Plan
(Full title of the plans)
Corporate Agents of Nevada, Inc.
4955 S. Durango Drive, Suite 216
Las Vegas, Nevada 89113
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(Name and address of agent for service)
(702) 948-7501
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(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES OF COMMUNICATIONS TO:
Thomas C. Cook, Esq.
The Law Offices of Thomas C. Cook, Ltd.
2921 N. Tenaya Way, Suite 234
Las Vegas, Nevada 89113
(702) 952-8519
/1/
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price offering registration
to be registered registered per unit price fee1
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Common Shares issuable 50,000,000 $0.02 $1,000,000 $126.70
upon exercise of stock
options by Grantees, par
value $.001, per share
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1 Estimated solely for purposes of calculating the registration
fee. Calculated in accordance with Rule 457(c) under the
Securities Act of 1933 based upon the average of the bid and asked
price of Common Stock of CareDecision Corporation as reported on
the NASD over-the-counter bulletin board on July 21, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
We will send or provide to plan participants, as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended, the
documents containing the information required by Part I of Form S-
8. There are no requirements to file and we have not filed those
documents, with the Securities and Exchange Commission either as
part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities
Act. Those documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
We will provide without charge, upon written or oral request, any
of the documents incorporated by reference in Item 3 of Part II of
this Registration Statement (which documents are incorporated by
reference in this Section 10(a) Prospectus). We will also provide,
without charge, upon written or oral request, other documents
required to be delivered to eligible employees or consultants
pursuant to Rule 428(b) or additional information about The
CareDecision Corporation 2004 Stock Option Plan and its
administrators. If you would like any of those documents or
information, please contact:
Keith Berman, Stock Option Plan Administrator
CareDecision Corporation
2660 Townsgate Rd., Ste. 300
Westlake Village, CA
(805) 446-1973
/2/
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by CareDecision Corporation, a Nevada
corporation (the "Company"), are incorporated herein by reference:
(a) The registrant's Articles of Incorporation filed on March 2, 2001
and Amended Articles of Incorporation filed on May 9, 2001 and
August 2, 2002;
(b) The registrant's By-Laws adopted on March 16, 2001;
(c) All other reports of the Company filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since the end
of the quarter ended June 30, 2004; and
(d) All documents subsequently filed by the registrant pursuant to
sections 13(a), 13(c), 14 and 15(d) of the Exchange Act during
the effectiveness of this registration statement.
ITEM 4. Description of Securities.
Not Applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not Applicable.
ITEM 6. Indemnification of Directors and Officers.
THE ARTICLES OF INCORPORATION OF THE COMPANY PROVIDE FOR INDEMNIFICATION OF
EMPLOYEES AND OFFICERS IN CERTAIN CASES. INSOFAR AS INDEMNIFICATION FOR
LIABILITIES ARISING UNDER THE SECURITIES ACT OF 1933 MAY BE PERMITTED TO
DIRECTORS, OFFICERS OR PERSONS CONTROLLING THE COMPANY PURSUANT TO THE
FOREGOING PROVISIONS, THE COMPANY HAS BEEN INFORMED THAT IN THE OPINION OF
THE SECURTIES AND EXCHANGE COMMISSION SUCH INDEMNIFICATION IS AGAINST PUBLIC
POLICY AS EXPRESSED IN THE ACT AND IS THEREFORE UNENFORCEABLE.
In addition, Section 78.751 of the Nevada General Corporation Laws
provides as follows: 78.751 Indemnification of officers, directors,
employees and agents; advance of expenses.
1. A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the
right of the corporation, by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses,
including attorney's fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with the action, suitor proceeding if he acted in good faith and in
a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
/3/
plea of nolo contendere or its equivalent, does not, of itself,
create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and that, with respect to
any criminal action or proceeding, he had reasonable cause to
believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses,
including amounts paid in settlement and attorneys' fees actually
and reasonably incurred by him in connection with the defense or
settlement of the action or suit if he acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the
best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as
to which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which
the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
subsections 1 and 2, or in defense of any claim, issue or matter
therein, he must be indemnified by the corporation against
expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense.
4. Any indemnification under subsections 1 and 2, unless ordered
by a court or advanced pursuant to subsection 5, must be made by
the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances. The determination
must be made: (a) By the stockholders: (b) By the board of
directors by majority vote of a quorum consisting o directors who
were not parties to act, suit or proceeding; (c) If a majority vote
of a quorum consisting of directors who were not parties to the
act, suit or proceeding so orders, by independent legal counsel in
a written opinion; or (d) If a quorum consisting of directors who
were not parties to the act, suit or proceeding cannot to obtained,
by independent legal counsel in a written opinion; or
5. The Articles of Incorporation, the Bylaws or an agreement made
by the corporation may provide that the expenses of officers and
directors incurred in defending a civil or criminal, suit or
proceeding must be paid by the corporation as they are incurred and
in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the
director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not
entitled to be indemnified by corporation. The provisions of this
subsection do not affect any rights to advancement of expenses to
which corporate personnel other than the directors or officers may
be entitled under any contract or otherwise by law.
/4/
6. The indemnification and advancement of expenses authorized in
or ordered by a court pursuant to this section: (a) Does not
exclude any other rights to which a person seeking indemnification
or advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in his
official capacity or an action in another capacity while holding
his office, except that indemnification, unless ordered by a court
pursuant to subsection 2 or for the advancement of expenses made
pursuant to subsection 5, may not be made to or on behalf of any
director or officer if a final adjudication establishes that his
act or omissions involved intentional misconduct, fraud or a
knowing violation of the law and was material to the cause of
action. (b) Continues for a person who has ceased to be a director,
officer, employee or agent and endures to the benefit of the heirs,
executors and administrators of such a person. Insofar as
indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
4.11 - CareDecision Corporation Board of Directors' Resolution
authorizing the issuance of common stock.
4.12 - CareDecision Corporation 2004 Stock Option Plan
5.3 - Opinion of Law Office of Thomas C. Cook, Ltd.
23.3 - Consent of Thomas C. Cook and Associates, Ltd.
(included in Exhibit 5.3).
23.4 - Consent of Beckstead and Watts, LLP
24.3 - Power of Attorney (included in signature page).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Company 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.
/5/
(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.
(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 Company 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 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under
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 payment by the
Company of expenses paid or incurred 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.
[Balance of this page intentionally left blank]
/6/
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 Westlake
Village, the State of California, on this 21st day of July, 2004.
CareDecision Corporation
By: /s/ Robert Cox
-----------------------------------
Robert Cox, President, Director
By: /s/ Keith Berman
-----------------------------------
Keith Berman, Secretary, Treasurer,
Director
Pursuant to the requirements of the Securities Act of 1933, the
following persons in the capacities and on the dates indicated have
signed this Registration Statement:
SIGNATURE TITLE DATE
/s/ Robert Cox President, Director July 21, 2004
----------------
Robert Cox
/s/ Keith Berman Secretary, Treasurer, Director July 21, 2004
----------------
Keith Berman
[Balance of this page intentionally left blank]
/7/
Exhibit 4.11
BOARD OF DIRECTORS' RESOLUTION
FOR APPROVAL OF STOCK OPTION PLAN
OF
CareDecision Corporation
A Nevada Corporation
We, the undersigned, representing all or a majority of
Directors of CareDecision Corporation, a Nevada corporation, having
met and discussed the business herein set forth:
A proposed form of CareDecision's 2004 Stock Option Plan was
presented. The proposed 2004 Stock Option Plan was read, section-
by-section, and upon motion duly made and unanimously carried, it
was;
RESOLVED, that the proposed 2004 Stock Option Plan submitted
to the meeting be, and the same are, hereby adopted as and for the
2004 Stock Option Plan of the Corporation, and that a copy thereof
be placed in the Corporate Records Book.
DATED this 2nd day of February 2004.
/s/ Robert Cox
--------------
Robert Cox, Director
/s/ Keith Berman
----------------
Keith Berman, Director
/s/ Robert Jagunich
-------------------
Robert Jagunich, Director
/8/
Exhibit 4.12
CAREDECISION CORPORATION
2004 STOCK OPTION PLAN
(incentive options, nonqualified options and cheap stock)
1. PURPOSE. The purpose of this Plan is to advance the
interests of CareDecision Corporation (the "Company") by providing
an opportunity to its selected key employees (as defined in
Paragraph 2(b)) and consultants (as defined in Paragraph 2(a)) to
purchase shares (the "Shares") of the Common Stock, par value $.001
per share (the "Common Stock"), of the Company. By encouraging
stock ownership, the Company seeks to attract, retain and motivate
key employees and consultants. It is intended that this purpose
will be effected by the granting of (i) incentive stock options
("Incentive Options") as described in 422A of the Internal Revenue
Code of 1986, as amended (the "Code"); (ii) nonqualified stock
options ("Nonqualified Options," and, together with the incentive
options, the "Options") as provided herein; and (iii) rights to
purchase shares of Common Stock ("Stock") of the Company pursuant
to Stock agreements and subscription agreements as provided herein
("Purchase Rights" and collectively with the options, the "Stock
Incentives").
2. DEFINITIONS.
(a) The term "consultants" means those persons, other
than employees of the Company, who provide services to the Company,
including members of the advisory board of the Company and non-
employee directors of the Company, and key individuals who are
determined by the Board of Directors to be eligible for Stock
Incentives under this Plan.
(b) The term "key employees" means those executive,
administrative, operational, engineering or managerial employees
who are determined by the Board of Directors to be eligible for
Stock Incentives under this Plan.
(c) The term "optionee" means an individual to whom an
option is granted under this Plan.
(d) The term "grantee" means an individual to whom a
purchase right is granted under this Plan.
3. EFFECTIVE DATE. This Plan became effective on April 21,
2004, the date it was adopted by the Board of Directors of the
Company.
4. STOCK SUBJECT TO THE PLAN. The Shares that may be
purchased (through the exercise of options or the purchase of
Stock) under this Plan shall not exceed in the aggregate of Fifty
Million (50,000,000) Shares. If any Stock Incentives granted under
the Plan shall terminate, expire or be cancelled as to any Shares,
new Stock Incentives may thereafter be granted covering such
Shares. In addition, any Shares purchased under this Plan
subsequently repurchased by the Company pursuant to the terms
hereof may again be granted under the Plan.
/9/
The Shares issued upon exercise of Stock Incentives under this Plan
may, in whole or in part, be either authorized but unissued Shares
or issued Shares reacquired by the Company. Notwithstanding any
other provisions of this Plan, the aggregate number of Shares
subject to outstanding options granted under the Plan, plus the
aggregate number of Shares issued upon the exercise of all options
granted under the Plan, shall never be permitted to exceed the
number of Shares specified in the first sentence of section 4,
except in accordance with subsection 8(a) below.
5. ADMINISTRATION. The Plan shall be administered by the
Board of Directors of the Company (the "Board"), or by a committee
appointed by the Board, which shall not have less than two (2)
members (in either case, the "Board of Directors"). No option
shall be granted to a director or officer of the Company except:
(a) by the Board when, as and if all of its members are
disinterested persons, or (b) by a Board of Directors other than
the Board when the Board of Directors is composed of two (2) or
more directors having full authority to act in the matter and each
member of the Board of Directors is a disinterested person.
"Disinterested person" for this purpose, shall mean a person who,
at the time he exercises discretion in administering the Plan, has
not at any time within one (1) year prior thereto been a person to
whom stock may be allocated or to whom stock options or stock
appreciation rights may be granted pursuant to the Plan or any
other plan of the Company or any of its affiliates entitling the
participants therein to acquire stock, stock options or stock
appreciation rights of the Company or any of its affiliates. The
Board of Directors may delegate nondiscretionary administrative
duties to such employees of the Company, as it deems proper.
Subject to the provisions of the Plan, the Board of Directors shall
have the sole authority, in its discretion:
(a) to determine to which of the eligible individuals,
and the time or times at which, options to purchase Common Stock of
the Company shall be granted;
(b) to determine the number of shares of Common Stock to
be subject to options granted to each eligible individual;
(c) to determine the price to be paid for the shares of
Common Stock upon the exercise of each option;
(d) to determine the term and the exercise schedule of
each option;
(e) to determine the terms and conditions of each stock
option agreement (which need not be identical) entered into between
the Company and any eligible individual to whom the Board of
Directors has granted an option;
(f) to interpret the Plan; and
(g) to make all determinations deemed necessary or
advisable for the administration of the Plan.
The Board of Directors, if any, shall be appointed by and
shall serve at the pleasure of the Board of Directors of the
Company. No member of the Board of Directors shall be liable for
any action or determination made with respect to the Plan.
/10/
6. ELIGIBLE EMPLOYEES AND CONSULTANTS. Incentive Options
may be granted to such key employees of the Company, including
members of the Board of Directors who are also employees of the
Company, as are selected by the Board of Directors. Nonqualified
Options and Purchase Rights may be granted to such key employees
and consultants of the Company, including members of the Board of
Directors, as are selected by the Board of Directors. The term
"employee" includes an officer or director who is an employee of
the Company or a parent or subsidiary of it, as well as a
nonofficer, nondirector employee of the Company or a parent or
subsidiary of it.
7. DURATION OF THE PLAN. This Plan shall terminate ten (10)
years from the effective date of this Plan, unless terminated
earlier pursuant to Paragraph 13 hereof, and no Stock Incentives
may be granted after such termination.
8. RESTRICTIONS ON INCENTIVE OPTIONS. Incentive Options
(but not Nonqualified Options) granted under this Plan shall be
subject to the following restrictions:
(a) Limitation on Number of Shares. The aggregate fair
market value, determined as of the date the Incentive Option is
granted, of the Shares with respect to which Incentive Options are
exercisable for the first time by an employee during any calendar
year shall not exceed $300,000. If an employee is eligible to
participate in any other incentive stock option plans of the
Company, which are also intended to comply with the provisions of
422A of the Code, the applicable annual limitation shall apply to
the aggregate number of Shares for which Incentive Options may be
granted under all such plans. An Incentive Option may be granted
which exceeds the $300,000 limitation, as long as under then
applicable law the portion of such Option that is exercisable for
shares in excess of the $300,000 limitation shall be treated as a
nonqualified option. No Incentive Options may be exercised until
and unless the Plan is approved by the shareholders within one year
of the date hereof, such approval to be expressed in any legal way
under Nevada law.
(b) 10% Stockholder. If any employee to whom an
Incentive Option is granted pursuant to the provisions of the Plan
is on the date of grant the owner of stock (as determined under
Section 425(d) of the Code) possessing more than 10% of the total
combined voting power of all classes of stock of the Company (or of
any parent or subsidiary of the Company), then the following
special provisions shall be applicable to the Incentive Option
granted to such individual:
(i) The option price per Share subject to such
Incentive Option shall not be less than 110% of the
fair market value of one Share on the date of grant;
and
(ii) The Incentive Option shall not have a term
in excess of five (5) years from the date of grant.
In determining stock ownership, an
Optionee shall be considered as owning the voting
capital stock owned, directly or indirectly, by or
for his brothers and sisters, spouse, ancestors, and
lineal descendants. Voting capital stock owned,
directly or indirectly, by or for a corporation,
partnership, estate or trust shall be considered as
being owned proportionately by or for its
shareholders, partners, or beneficiaries, as
applicable. Common Stock with respect to which any
such Optionee holds an option shall not be counted.
/11/
Additionally, outstanding capital stock shall
include all capital stock actually issued and
outstanding immediately after the grant of the
option to the optionee. Outstanding capital stock
shall not include capital stock authorized for issue
under outstanding options held by the Optionee or by
any other person.
9. TERMS AND CONDITIONS OF OPTIONS. Incentive and
Nonqualified Options granted under this Plan shall be evidenced by
stock option agreements in such form and not inconsistent with the
Plan as the Board of Directors or the Board of Directors shall
approve from time to time, which agreements shall evidence the
following terms and conditions:
(a) Price.
(i) Incentive Options. Subject to the condition of
subparagraph (b)(i) of Paragraph 8, if applicable, with respect to
each Incentive Option, the purchase price per Share payable upon
the exercise of each Incentive Option granted hereunder shall be
determined by the Board of Directors or the Board of Directors and
shall be not less than 100% of the fair market value of one Share
on the day the option is granted.
(ii) Nonqualified Options. With respect to each
Nonqualified Option, the purchase price per Share payable upon the
exercise of each Nonqualified Option granted hereunder shall be
determined by the Board of Directors or the Board of Directors at
the time the Nonqualified Option is granted, but shall not be less
than 40% of fair market value at the time of grant.
(b) Number of Shares. Each option agreement shall
specify the number of Shares to which it pertains.
(c) Exercise. Subject to the conditions of
subparagraphs (a) and (b)(ii) of Paragraph 8, if applicable, each
option shall be exercisable for the full amount or for any part
thereof and at such intervals or in such installments as the Board
of Directors or the Board of Directors may determine at the time it
grants such option; provided, however, that no option shall be
exercisable with respect to any Shares later than ten (10) years
after the date of the grant of such option.
(d) Notice of Exercise and Payment. An option shall be
exercisable only by delivery of a written notice to the Board of
Directors or the Board of Directors, any member of the Board of
Directors or the Board of Directors, the Company's Treasurer, or
any other officer of the Company designated by the Board of
Directors or the Board of Directors to accept such notices on its
behalf, specifying the number of Shares for which it is exercised.
If such Shares are not at the time effectively registered under the
Securities Act of 1933, as amended, the Optionee shall include with
such notice a letter, in form and substance satisfactory to the
Company, confirming that such Shares are being purchased for the
optionee's own account for investment and not with a view to the
resale or distribution thereof. Payment shall be made in full at
the time of delivery to the optionee of a certificate or
certificates covering the number of Shares for which the option was
exercised. Payment shall be made (i) by cash or check, (ii) if
permitted by the Board of Directors or the Board of Directors, by
delivery and assignment to the Company of shares of the Company's
stock having a fair market value (as determined by the Board of
Directors) equal to the exercise price, (iii) if permitted by the
Board of Directors or the Board of Directors, by a promissory note,
/12/
(iv) by a combination of (i), (ii), and (iii) or (v) (v) by a
combination of (i), (ii), (iii), and (iv) by "cashless" exercise of
vested options, i.e., Services rendered or surrender of vested
options to purchase the number of shares resulting from the formula
X divided by A, where X is the number of fully paid shares to be
issued by the Company in consideration for the vested options
surrendered, Y is the number of vested options being surrendered, A
is the fair market value (as determined by the Board of Directors)
of the Common Stock at the time of exercise, and B is the exercise
price of the option being exercised.
(e) Withholding Taxes; Delivery of Shares. The
Company's obligation to deliver Shares upon exercise of a
Nonqualified Option, in whole or in part, shall be subject to the
Optionee's satisfaction of all applicable federal, state, and local
income and employment tax withholding obligations. The Optionee
may satisfy the obligation, in whole or in part, by electing to
have the Company withhold Shares having a value equal to the amount
required to be withheld. The value of Shares to be withheld shall
be based on the fair market value of the Shares on the date the
amount of tax to be withheld is to be determined. If Common Stock
acquired by exercise of an incentive stock option granted pursuant
to this Plan is disposed of within two (2) years from the date of
grant of the option or within one (1) year after the transfer of
the Common Stock to the optionee, the holder of the Common Stock
immediately prior to the disposition shall promptly notify the
Company in writing of the date and terms of the disposition and
shall provide such other information regarding the disposition as
the Company may reasonably require.
(f) Transferability of Option. This option may be
transferable by the Optionee (except as otherwise provided for in
subparagraph (g) below).
(g) Termination of Options. Each option shall terminate
and may no longer be exercised if the Optionee ceases for any
reason to be an employee of, or consultant to, the Company, except
that:
(i) if the Optionee's performance of services shall have
terminated for any reason other than cause, resignation or other
voluntary action before his eligibility to retire, disability (as
defined below) or death, he may at any time within a period of
thirty (30) days after such termination of the performance of
services exercise his option to the extent that the option was
exercisable by him on the date of termination of his performance of
services;
(ii) if the Optionee's performance of services shall have
been terminated because of disability within the meaning of
22(e)(3) of the Internal Revenue Code, the Optionee may, at any
time within a period of one (1) year after the termination of
performance of services, exercise his option to the extent that the
option was exercisable by him on the date of termination of his
employment or performance of services; and
(iii) if the Optionee dies at a time when the option
was exercisable by him, then his estate, personal representative or
beneficiary to whom it has been transferred may, at any time within
a period of one (1) year following his death if the Optionee's
performance of services shall have been terminated by his death, or
for the period following the termination of his performance of
services during which the option would have remained exercisable
under clauses (i) or (ii) above if the Optionee's performance of
services shall have been terminated prior to his death, exercise
/13/
the option to the extent the Optionee might have exercised it at
the time of his death; provided, however, that no option may be
exercised to any extent by anyone after the date of expiration of
the option.
(h) Rights as Stockholder. The Optionee shall have no
rights as a stockholder with respect to any Shares covered by his
option until the date of issuance of a stock certificate to him for
such Shares.
(i) Repurchase of Shares by the Company. Any Shares
purchased by an Optionee upon exercise of an option may in the
discretion of the Board of Directors or the Board of Directors be
subject to repurchase by the Company if and to the extent
specifically set forth in the agreement pursuant to which the
Shares were purchased.
10. TERMS AND CONDITIONS OF PURCHASE RIGHTS. Purchase Rights
granted under this Plan shall be evidenced by stock agreements and
subscription agreements in such form and not inconsistent with the
Plan as the Board of Directors or Board of Directors shall approve
from time to time, which agreements shall include the following
terms and conditions:
(a) Price. The purchase price of each Share purchased
by key employees or consultants pursuant to a Purchase Right
hereunder shall be the price determined by the Board of Directors
or the Board of Directors at the time such Purchase Right is
granted.
(b) Number of Shares. Each stock agreement and
subscription agreement shall specify the number of Shares to which
it pertains.
(c) Payment. Payment shall be made in full at the time
of delivery to the Company by the grantee of an executed stock
agreement and subscription agreement covering the number of Shares
for which the Purchase Right was granted. An officer or an agent
of the Company shall be entitled to retain in escrow for the
benefit of the grantee stock certificates representing Shares which
are subject to a repurchase option of the Company, as described in
subparagraph (f) below. Payment for Shares shall be made (i) by
cash or check, (ii) if permitted by the Board of Directors or the
Board of Directors, by delivery and assignment to the Company of
shares of the Company's stock having a fair market value (as
determined by the Board of Directors) equal to the purchase price,
(iii) if permitted by the Board of Directors or the Board of
Directors, by a promissory note, or (iv) by a combination of (i),
(ii), and (iii). The value of the shares of the Company's stock
for such purpose shall be its fair market value as of the date of
the stock agreement, as determined in accordance with procedures to
be established by the Board of Directors.
(d) Withholding Taxes. The Company's obligation to
deliver the Shares to the grantee shall be subject to the grantee's
satisfaction of all applicable federal, state, and local income and
employment tax withholding obligations. The grantee may satisfy
such withholding obligations, in whole or in part, by electing to
have the Company withhold Shares having a value equal to the amount
required to be withheld. The value of the Shares to be withheld
shall be based on the fair market value of such Shares as of the
date the amount of tax is to be determined.
(e) Transferability. Any shares purchased by a grantee
pursuant to a purchase right hereunder will not be subject to
transfer restrictions.
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(f) Repurchase of Shares by the Company. Any Shares
purchased by a grantee pursuant to a Purchase Right hereunder may,
in the discretion of the Board of Directors or the Board of
Directors, be subject to repurchase by the Company if and to the
extent set forth in the stock agreement governing such purchase.
(g) Rights as Stockholder. Except for the limitations
on transferability and the Company's repurchase rights set forth
above, the grantee of a Purchase Right shall, upon purchase of
Shares, possess all rights as a holder of Common Stock of the
Company.
11. STOCK DIVIDENDS; STOCK SPLITS; STOCK COMBINATIONS;
RECAPITALIZATIONS. Appropriate adjustment shall be made in the
maximum number of Shares of Common Stock subject to the Plan and in
the number, kind and price of Shares covered by any Stock Incentive
granted hereunder to give effect to any stock dividends or other
distributions, stock splits, stock combinations, recapitalizations
and other similar changes in the capital structure of the Company
after the effective date of the Plan.
12. MERGER; SALE OF ASSETS; DISSOLUTION. In the event of a
change of the Common Stock resulting from a merger or similar
reorganization as to which the Company is the surviving
corporation, the number and kind of shares which thereafter may be
subject to Stock Incentives granted under this Plan and the number,
kind and price of Shares then subject to Stock Incentives shall be
appropriately adjusted in such manner as the Board of Directors or
the Board of Directors may deem equitable to prevent substantial
dilution or enlargement of the rights available or granted
hereunder. Except as otherwise determined by the Board of
Directors of the Company, a merger or a similar reorganization that
the Company does not survive, or a sale of all or substantially all
of the assets of the Company, shall cause every Incentive Option
and Nonqualified Option outstanding hereunder to terminate, to the
extent not then exercised, unless any surviving entity agrees to
assume the obligations hereunder.
13. NO RIGHTS. Except as hereinabove expressly provided in
Sections 10 and 11, no Optionee shall have any rights by reason of
any subdivision or consolidation of shares of the capital stock of
any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of any class or by
reason of any dissolution, liquidation, merger or consolidation or
spin-off of assets or stock of another corporation, and any issue
by the Company of shares of stock of any class or of securities
convertible into shares of stock of any class shall not affect, and
no adjustment by reason thereof shall be made with respect to, the
number or price of shares subject to any option granted hereunder.
The grant of an option pursuant to this Plan shall not affect in
any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes of its capital or
business structure or to merge or consolidate or to dissolve,
liquidate, sell, or transfer all or any part of its business or
assets.
14. COMPLIANCE WITH APPLICABLE LAWS. Notwithstanding any
other provision of the Plan, the Company shall have no liability to
issue any shares under the Plan unless such issuance would comply
with all applicable laws and the applicable requirements of any
securities exchange or similar entity. Prior to the issuance of
any shares under the Plan, the Company may require a written
statement that the recipient is acquiring the shares for investment
and not for the purpose or with the intention of distributing the
shares.
/15/
15. DEATH OF A PARTICIPANT. In the event of the death of an
Optionee, any options which the Optionee was entitled to exercise
on the date immediately preceding his death shall be exercisable by
the person or persons to whom those rights pass by will or by the
laws of descent and distribution. Any such exercise shall be by
written notice thereof filed with the Secretary of the Company at
the Company's corporate headquarters prior to the option's
expiration date, and any person exercising such an option shall be
treated as an Optionee for purposes of the provisions of this Plan.
16. EMPLOYMENT AND SHAREHOLDER STATUS. The Plan does not
constitute a contract of employment, and selection as an Optionee
will not give any employee the right to be retained in the employ
of the Company. The grant of an option under the Plan shall not
confer upon the holder thereof any right as a shareholder of the
Company. As of the date on which an Optionee exercises an option,
the Optionee shall have all rights of a stockholder of record with
respect to the number of shares of Common Stock as to which the
option is exercised, irrespective of whether certificates to
evidence the shares of stock have been issued on such date. If the
redistribution of shares is restricted pursuant to Paragraph 13,
certificates representing such shares may bear a legend referred to
such restrictions.
17. TERMINATION OR AMENDMENT OF PLAN. The Board of Directors
may at any time terminate this Plan or make such changes in or
additions to the Plan as it deems advisable without further action
on the part of the stockholders of the Company, provided that no
such termination or amendment shall adversely affect or impair any
then outstanding Stock Incentive without the consent of the person
holding such Stock Incentive.
18. TERMINATION. The Plan shall terminate automatically on
April 21, 2014, and may be terminated at any earlier date by the
Board. No option shall be granted hereunder after termination of
the Plan, but such termination shall not affect the validity of any
option then outstanding.
19. TIME OF GRANTING OPTIONS. The date of grant of an option
hereunder shall, for all purposes, be the date on which the Board
of Directors makes the determination granting such option.
20. RESERVATION OF SHARES. The Company, during the terms of
this Plan, will at all times reserve and keep available such number
of shares of its Common Stock as shall be sufficient to satisfy the
requirements of the Plan.
/16/
21. EFFECTIVE DATE. This Plan was adopted by the Board of
Directors and shareholders in accordance with the requirements of
the Internal Revenue Code and the Nevada General Corporation Law of
the Company on April 21, 2004, and shall be effective on said date,
provided the Plan is approved within twelve (12) months of said
date. Options may be granted, but may not be exercised, prior to
the date of such shareholder approval.
22. CORPORATION FINANCIAL INFORMATION. The Company shall
provide all Optionees on an annual basis with a balance sheet and
income statement for the then ending fiscal year.
Dated: April 21, 2004.
CareDecision Corporation
By /s/ Robert Cox
--------------
Robert Cox, President and Director
/s/ Keith Berman
----------------
Keith Berman, Director
/s/ Robert Jagunich
-------------------
Robert Jagunich, Director
/17/
Exhibit 5.3
The Law Office of Thomas C. Cook, ltd.
2921 n. Tenaya Way, Suite 234
Las Vegas, Nevada 89128
THOMAS C. COOK, ESQ. PHONE (702) 952-8519
FAX (702) 952-8521
TCCESQ@AOL.COM
August 2, 2004
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: CareDecision Corporation
Registration Statement on Form S-8
Gentlemen:
We have been requested by CareDecision Corporation, a Nevada
corporation (the "Company"), to furnish you with our opinion as to
the matters hereinafter set forth in connection with the above-
captioned registration statement (the "Registration Statement")
covering an aggregate of 50,000,000 Shares (the "Shares") of the
Company's common stock, par value $.001 per Share offered on behalf
of the Company in connection with the Company's underlying options
to be issued to employees, directors, officers and/or others of the
Company (the "Options"), all as more fully set forth in the
Registration Statement on Form S-8 to be filed by the Company.
In such capacity, I have examined, among other documents, the
Articles of Incorporation, as amended, Bylaws and minutes of
meetings of its Board of Directors and shareholders, and the Non-
Qualifying Stock Option Plan of the Company.
Based upon the foregoing, and subject to such further examinations
as I have deemed relevant and necessary, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the state of Nevada.
2. The Options and underlying shares of common stock have been
legally and validly authorized under the Articles of Incorporation,
as amended, and when issued and paid for upon exercise of the
Options, the shares of common stock underlying the Options will
constitute duly and validly issued and outstanding, fully paid and
non-assessable shares of common stock of the Company.
I render no opinion as to the laws of any jurisdiction other
than the internal laws of the State of Nevada.
I hereby consent to the use of this opinion as an exhibit to
the Registration Statement and to the reference to our name under
the caption "Legal Opinions" in the prospectus included in the
Registration Statement.
Very truly yours,
/s/ Thomas C. Cook, Esq.
Thomas C. Cook, Esq.
/18/
Exhibit 23.4
Beckstead and Watts, LLP
Certified Public Accountants
3340 Wynn Road, Suite B
Las Vegas, NV 89102
702.257.1984
702.362.0540 (fax)
August 2, 2004
Securities and Exchange Commission
Washington, DC 20549
Ladies and Gentlemen:
We hereby consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-8) which registers
for issuance 50,000,000 shares of Common Stock of CareDecision
Corporation under the CareDecision Corporation "2004 Non-Qualified
Stock Option Agreement" and to the incorporation by reference
therein of our report dated March 29, 2004, with respect to the
financial statements of the Company included in its annual report
for the year ended December 31, 2003 and the quarterly reports
filed with the US Securities and Exchange Commission.
Sincerely,
/s/ Beckstead and Watts, LLP
Beckstead and Watts, LLP
/19/