sv1za
As filed with the Securities and Exchange
Commission on June 7, 2011
Registration
No. 333-164232
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
Amendment No. 4
to
FORM S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
GRAYMARK HEALTHCARE,
INC.
(Exact Name of Registrant as
Specified in Its Charter)
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Oklahoma
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8093
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20-0180812
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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210 Park Avenue, Ste. 1350
Oklahoma City, Oklahoma 73102
(405) 601-5300
(Address, Including Zip Code,
and Telephone Number, Including Area Code, of Registrant’s
Principal Executive Offices)
Stanton Nelson
Chief Executive Officer
Graymark Healthcare, Inc.
210 Park Avenue, Ste. 1350
Oklahoma City, Oklahoma 73102
(405) 601-5300
(Name, Address, Including Zip
Code, and Telephone Number, Including Area Code, of Agent For
Service)
Copies to:
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Robert E. Puopolo, Esq.
Greenberg Traurig LLP
One International Place
Boston, MA 02110
(617) 310-6000
Fax: (617) 310-6001
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Michael D. Maline, Esq.
Goodwin Procter LLP
The New York Times Building
620 Eighth Avenue
New York, New York 10018
(212) 813-8800
Fax: (212) 355-3333
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Approximate date of commencement of proposed sale of the
securities to the public: As soon as practicable after this
registration statement becomes effective.
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933 check the
following
box. o
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See definitions of
“large accelerated filer,” “accelerated
filer,” and “smaller reporting company” in
Rule 12b-2
of the Exchange Act. (Check one):
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Large Accelerated
Filer o
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Accelerated
Filer o
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Non-accelerated
Filer o
(Do not check if a smaller
reporting company
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Smaller Reporting
Companyþ
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The registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, or until the Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
Explanatory Note
Graymark Healthcare, Inc. has prepared this Amendment No. 4 to the Registration Statement on
Form S-1 (File No. 333-164232) for the purpose of filing Exhibits 3.1.1 and 5.1 to the Registration
Statement with the Securities and Exchange Commission. This Amendment No. 4 does not modify any
provision of the Prospectus that forms a part of the Registration Statement and accordingly such
Prospectus has not been included herein.
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 13.
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Other
Expenses of Issuance and Distribution
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The following table sets forth the various expenses, all of
which will be borne by the registrant, in connection with the
sale and distribution of the securities being registered, other
than the underwriting discounts and commissions. All amounts
shown are estimates except for the SEC registration fee, and the
FINRA filing fee.
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SEC registration fee
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$
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4,098.76
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FINRA filing fee
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5,800.00
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Transfer agent and registrar fees
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2,500.00
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Accounting fees and expenses
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100,000.00
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Legal fees and expenses
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250,000.00
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Printing and engraving expenses
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100,000.00
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Miscellaneous
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37,601.30
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Total
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$
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500,000.00
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* |
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To be provided by amendment |
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Item 14.
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Indemnification
of Officers and Directors
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Section 1031 of the Oklahoma General Corporation Act
permits (and Registrant’s Certificate of Incorporation and
Bylaws, which are incorporated by reference herein, authorize)
indemnification of directors and officers of Registrant and
officers and directors of another corporation, partnership,
joint venture, trust or other enterprise who serve at the
request of Registrant, against expenses, including attorneys
fees, judgments, fines and amount paid in settlement actually
and reasonably incurred by such person in connection with any
action, suit or proceeding in which such person is a party by
reason of such person being or having been a director or officer
of Registrant or at the request of Registrant, if he conducted
himself in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of Registrant, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Registrant
may not indemnify an officer or a director with respect to any
claim, issue or matter as to which such officer or director
shall have been adjudged to be liable to Registrant, unless and
only to the extent that the court in which such action or suit
was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
To the extent that an officer or director is successful on the
merits or otherwise in defense on the merits or otherwise in
defense of any action, suit or proceeding with respect to which
such person is entitled to indemnification, or in defense of any
claim, issue or matter therein, such person is entitled to be
indemnified against expenses, including attorney’s fees,
actually and reasonably incurred by him in connection therewith.
The circumstances under which indemnification is granted with an
action brought on behalf of Registrant are generally the same as
those set forth above; however, expenses incurred by an officer
or a director in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of final
disposition upon receipt of an undertaking by or on behalf of
such officer or director to repay such amount if it is
ultimately determined that such officer or director is not
entitled to indemnification by Registrant.
These provisions may be sufficiently broad to indemnify such
persons for liabilities arising under the Securities Act of
1933, as amended (the “Act”), in which case such
provision is against public policy as expressed in the
1933 Act and is therefore unenforceable.
II-1
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Item 15.
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Recent
Sales of Unregistered Securities
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During the three years preceding the filing of this registration
statement, the registrant sold the following securities, which
were not registered under the Securities Act.
On April 30, 2011, Graymark Healthcare, Inc.
(“we” or “Graymark”) entered into
Subscription Agreements with MTV Investments, LP, Black Oak II,
LLC, TLW Securities, LLC and Valiant Investments, LLC, an entity
owned and controlled by Roy T. Oliver one of our controlling
shareholders. The Subscription Agreements provide for the sale
of 1,293,103 shares of our common stock, par value $0.0001
per share, at a price of $2.32 per share and warrants
exercisable for 1,293,103 shares of our common stock at an
exercise price of $1.80 per share. The warrants are exercisable
beginning six months after the issue date and expire after three
years. On May 4, 2011, we closed on the sale of these
securities. We received $2.0 million in cash and cancelled
the outstanding promissory note in the amount of
$1.0 million to Valiant Investments, LLC as payment of the
purchase price. No underwriters or placement agents were used in
connection with this transaction. The shares of common stock and
warrants issued pursuant to the subscription agreements were
issued in a private placement transaction pursuant to an
exemption from the registration requirements of the Securities
Act of 1933, as amended pursuant to Section 4(2) and
Regulation D promulgated thereunder. The purchasers, or
their affiliates, are existing shareholders of the Company with
a pre-existing relationship and are accredited investors.
On April 1, 2010, we issued 7,500 shares of common
stock pursuant to restricted stock awards issued under and
pursuant to our 2008 Long-Term Incentive Plan. The shares were
issued at the weighted-average fair market value of $4.00 and
vest as follows: 2,500 shares immediately vested,
2,500 shares vest on April 1, 2011 and
2,500 shares vest on April 1, 2012. In connection with
the issuance of these shares of common stock, no underwriting
discounts or commissions were paid or will be paid. The shares
of common stock were sold without registration under the
Securities Act of 1933, as amended, in reliance on the
registration exemption afforded by Regulation D and more
specifically Rule 506 of Regulation D.
On February 25, 2010, we issued 45,000 shares of
common stock pursuant to restricted stock awards issued under
and pursuant to our 2008 Long-Term Incentive Plan. The shares
were issued at the weighted-average fair market value of $4.64
and immediately vested. On March 25, 2010,
28,125 shares of common stock vested pursuant to previously
issued restricted stock awards. The weighted-average fair market
value of the 28,125 vesting shares on the grant date was $6.68
per share. In connection with the issuance of these shares of
common stock, no underwriting discounts or commissions were paid
or will be paid. The shares of common stock were sold without
registration under the Securities Act of 1933, as amended, in
reliance on the registration exemption afforded by
Regulation D and more specifically Rule 506 of
Regulation D.
On December 31, 2009, we issued 33,087 common stock shares
pursuant to restricted stock awards under and pursuant to our
2008 Long-Term Incentive Plan. On December 31, 2009, 31,080
of the 33,087 common stock shares vested pursuant to the
restricted stock awards. On date of the restricted stock awards
of these vesting shares, 15,000 shares had a fair market
value of $6.40 per share and 16,080 shares had a market
value of $9.76 per share. The 2,007 balance of the shares were
awarded to employees other than executive officers, vested
immediately and were issued at the fair market value of $7.20
per share other than 630 shares that were issued at the
fair market value of $7.80 per share. In connection with this
the issuance of these common stock shares, no underwriting
discounts or commissions were paid or will be paid. The common
stock shares were sold without registration under the Securities
Act of 1933, as amended, in reliance on the registration
exemption afforded by Regulation D and more specifically
Rule 506 of Regulation D.
On September 15, 2009, we delivered 163,199 shares of
our common stock to Avastra Sleep Centres Limited in payment of
$1,344,000 of the purchase price of the outstanding stock of
Avastra Eastern Sleep Centers, Inc., and 25,000 shares of
our common stock to Daniel I. Rifkin, M.D. These common
stock shares were sold without registration under the Securities
Act of 1933, as amended, in accordance with Regulation D
and without payment of any sales commissions or other form of
remuneration. The further transferability of these common stock
shares is prohibited unless pursuant to an effective
registration statement and prospectus or pursuant to a
registration exemption available under the Securities Act or the
rules and regulations promulgated under the Securities Act.
II-2
During the three months ended December 31, 2008, we awarded
restricted stock awards of 37,500 common stock shares under and
pursuant to our 2008 Long-Term Incentive Plan. On
November 29, 2008, we issued 4,000 common stock shares to
two employees at $15.40 per share, which vested in November
2009. On December 15, 2008, we issued 7,500 common stock
shares to Rick D. Simpson, our former Chief Financial Officer,
and 25,000 common stock shares to Joseph Harroz Jr., our
President and one of our Directors, at $6.16 per share. 50% of
these shares vested in July 2009 and the remainder shall vest in
July 2010. In connection with this the issuance of these common
stock shares, no underwriting discounts or commissions were paid
or will be paid. The common stock shares were sold without
registration under the Securities Act of 1933, as amended, in
reliance on the registration exemption afforded by
Regulation D and more specifically Rule 506 of
Regulation D.
On June 3, 2008, we completed a private placement offering
of 836,112 common stock shares for $15,050,011.50 or $18.00 per
share. In connection with this offering, no underwriting
discounts or commissions were paid or will be paid. The common
stock shares were sold without registration under the Securities
Act of 1933, as amended, in reliance on the registration
exemption afforded by Regulation D and more specifically
Rule 506 of Regulation D. In connection with this
sale, the purchasers were provided disclosure information that
principally consisted of a description of our common stock
shares and our Annual Report on
Form 10-K
for the year ended December 31, 2007 and our Quarterly
Report on
Form 10-Q
for the three months ended March 31, 2008. There were four
purchasers of the common stock shares and each qualified as an
accredited investor within the meaning of Rule 501(a) of
Regulation D.
On May 30, 2008, we completed the Texas Labs acquisition.
In connection this acquisition we issued 32,609 common stock
shares for $900,000 (or $27.60 per share) as a portion of the
purchase consideration. In connection with this the issuance of
these common stock shares, no underwriting discounts or
commissions were paid or will be paid. The common stock shares
were sold without registration under the Securities Act of 1933,
as amended, in reliance on the registration exemption afforded
by Regulation D and more specifically Rule 506 of
Regulation D. In connection with this sale, the purchasers
were provided disclosure information that principally consisted
of a description of our common stock shares and our Annual
Report on
Form 10-K
for the year ended December 31, 2007 and our Quarterly
Report on
Form 10-Q
for the three months ended March 31, 2008. There were four
purchasers of the common stock shares and each represented that
it qualified as an accredited investor within the meaning of
Rule 501(a) of Regulation D.
During 2008, the holders of certain placement agent warrants
exercised their warrants. These warrants were exercisable for
the purchase of 72,788 common stock shares and were issued in
connection with our 2003 private placement and convertible note
conversion. The warrant holders elected to use the
“cashless exercise” provisions and, accordingly, were
not required to pay the exercise price ranging from $4.40 to
$22.00 per share. We issued 37,431 common stock shares
pursuant to these warrant exercises. In connection with this the
issuance of these common stock shares, no underwriting discounts
or commissions were paid or will be paid. The common stock
shares were sold without registration under the Securities Act
of 1933, as amended, in reliance on the registration exemption
afforded by Regulation D and more specifically
Rule 506 of Regulation D. It is believed that each
warrant holder qualified as an accredited investor within the
meaning of Rule 501(a) of Regulation D.
Pursuant to the Exchange Agreement and the related closing, we
agreed to issue 5,100,000 shares of our common stock to
Oliver Company Holdings, LLC, Lewis P. Zeidner, Stanton Nelson,
Vahid Salalati, Greg Luster, William R. Oliver, Kevin Lewis,
John B. Frick Revocable Trust, Roger Ely, James A. Cox, Michael
Gold, Katrina J. Martin Revocable Trust, the former equity
interest owners or in some cases the designee of the former
equity interest owners of SDC Holdings, LLC and ApothecaryRx,
LLC. These common stock shares were offered and sold in
accordance with Rule 506 of Regulation D promulgated
under the Securities Act of 1933, as amended (the without
registration under the Securities Act. In conjunction with the
sale of these common stock shares, no sales commissions or other
remuneration was paid.
The foregoing shares of common stock described in the table
above were issued in reliance upon Section 4(2) of the
Securities Act of 1933 as a transaction by an issuer not
involving a public offering. Each
II-3
holder had adequate access to information about the registrant
through his relationship with the registrant or through
information provided to him.
The registrant did not, nor does it plan to, pay or give,
directly or indirectly, any commission or other remuneration,
including underwriting discounts or commissions, in connection
with any of the issuances of securities listed above. In
addition, each of the certificates issued representing the
securities in the transactions listed above bears a restrictive
legend permitting the transfer thereof only in compliance with
applicable securities laws. The recipients of securities in each
of the transactions listed above represented to the registrant
their intention to acquire the securities for investment only
and not with a view to or for sale in connection with any
distribution thereof. All recipients had or have adequate
access, through their employment or other relationship with the
registrant or through other access to information provided by
our company, to information about our company.
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Item 16.
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Exhibits
and Financial Statement Schedules
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(a) Exhibits
See Index of Exhibits on the page immediately preceding the
exhibits for a list of exhibits filed as part of this
registration statement on
Form S-1,
which is hereby incorporated by reference.
(b) Financial Statement Schedules.
All other schedules have been omitted because they are either
inapplicable or the required information has been given in the
consolidated financial statements or the notes thereto.
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 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 Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that:
(1) for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’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.
(2) for purposes of determining any liability under the
Securities Act, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
(3) for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus 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.
The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant has duly caused this Amendment
No. 4 to this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in
Oklahoma City, State of Oklahoma, on the 7th day of June
2011.
GRAYMARK HEALTHCARE, INC.
Stanton Nelson
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Amendment No. 4 to this Registration
Statement has been signed below by the following persons in the
capacities indicated on June 7, 2011.
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Signature
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Title
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/s/ Stanton
Nelson
Stanton
Nelson
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Chief Executive Officer and Chairman of the Board (Principal
Executive Officer)
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Edward
M. Carriero, Jr.
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Chief Financial Officer (Principal Financial Officer)
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*
Grant
A. Christianson
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Chief Accounting Officer (Principal Accounting Officer)
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Joseph
Harroz, Jr.
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Director
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Scott
Mueller
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Director
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*
S.
Edward Dakil, M.D.
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Director
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Steven
List
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Director
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*By:
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/s/ Stanton
Nelson
Stanton
Nelson
Attorney-In-Fact
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II-5
EXHIBIT INDEX
The following documents are filed as exhibits to this
registration statement.
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Exhibit No.
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Description
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1
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.1**
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Form of Underwriting Agreement.
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3
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.1
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Registrant’s Restated Certificate of Incorporation,
incorporated by reference to Exhibit 3.1.1 of Registrant’s
Quarterly Report on Form 10-Q filed with the U.S. Securities and
Exchange Commission on August 14, 2008.
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3
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.1.1+
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Certificate of Amendment to the Registrant’s Restated
Certificate of Incorporation.
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3
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.2
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Registrant’s Amended and Restated Bylaws, incorporated by
reference to Exhibit 3.2 of Registrant’s Quarterly Report
on Form 10-Q as filed with the Commission on August 14, 2008.
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4
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.1
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Form of Certificate of Common Stock of Registrant, incorporated
by reference to Exhibit 4.1 of Registrant’s Registration
Statement on Form SB-2 (No. 333-111819) as filed with the
Commission on January 9, 2004.
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4
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.2
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Form of Amended and Restated Common Stock Purchase Warrant
Agreement issued to SXJE, LLC and dated March 2007, is
incorporated by reference to Exhibit 4.2 of the
Registrant’s Annual Report on Form 10-K filed with the U.S.
Securities and Exchange Commission on March 31, 2010.
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4
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.3
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Financial Advisor Warrant Agreement issued to ViewTrade
Securities, Inc. and dated June 11, 2009, is incorporated by
reference to Exhibit 4.7 of the Registrant’s Annual Report
on Form 10-K filed with the U.S. Securities and Exchange
Commission on March 31, 2010.
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5
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.1+
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Opinion of McAfee & Taft, P.C.
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10
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.1
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Graymark Productions, Inc. 2003 Stock Option Plan, incorporated
by reference to Exhibit 10.5 of Registrant’s Registration
Statement on Form SB-2 (No. 333-111819) as filed with the
Commission on January 9, 2004.
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10
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.2
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Graymark Productions, Inc. 2003 Non-Employee Stock Option Plan,
incorporated by reference to Exhibit 10.6 of Registrant’s
Registration Statement on Form SB-2 (No. 333-111819) as filed
with the Commission on January 9, 2004.
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10
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.3
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Graymark Healthcare, Inc. 2008 Long-term Incentive Plan adopted
by Registrant on the effective date of October 29, 2008, is
incorporated by reference to Exhibit 4.1 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on December 9, 2008.
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10
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.3.1
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Graymark Healthcare, Inc. 2008 Long-term Incentive Plan, Form of
Restricted Stock Award Agreement, is incorporated by reference
to Exhibit 10.3.1 of the Registrant’s Annual Report on Form
10-K filed with the U.S. Securities and Exchange Commission on
March 31, 2010.
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10
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.3.2
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Graymark Healthcare, Inc. 2008 Long-term Incentive Plan, Form of
Stock Option Agreement, is incorporated by reference to Exhibit
10.3.2 of the Registrant’s Annual Report on Form 10-K filed
with the U.S. Securities and Exchange Commission on March 31,
2010.
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10
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.4
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Exchange Agreement between Registrant, SDC Holdings, LLC, SDOC
Investors, LLC, Vahid Salalati, Greg Luster, Kevin Lewis, Roger
Ely, ApothecaryRx, LLC, Oliver RX Investors, LLC, Lewis P.
Zeidner, Michael Gold, James A. Cox, and John Frick, dated
October 29, 2007, is incorporated by reference to
Registrant’s Schedule 14 Information Statement filed with
the U.S. Securities and Exchange Commission on December 5, 2007.
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10
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.5
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Registration Rights Agreement between Registrant, Oliver Company
Holdings, LLC, Lewis P. Zeidner, Stanton Nelson, Vahid Salalati,
Greg Luster, William R. Oliver, Kevin Lewis, John B. Frick
Revocable Trust, Roger Ely, James A. Cox, Michael Gold, Katrina
J. Martin Revocable Trust, dated January 2, 2008, is
incorporated by reference to Registrant’s Schedule 14
Information Statement filed with the U.S. Securities and
Exchange Commission on December 5, 2007.
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10
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.6
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Asset Purchase Agreement among ApothecaryRx, LLC, Rambo
Pharmacy, Inc. and Norman Greenburg, dated January 3, 2008, is
incorporated by reference to Exhibit 10.1 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on January 29, 2008.
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Exhibit No.
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Description
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10
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.7
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Goodwill Protection Agreement between ApothecaryRx, LLC, Rambo
Pharmacy, inc. and Norman Greenburg, dated January 12, 2008, is
incorporated by reference to Exhibit 10.2 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on January 29, 2008.
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10
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.8
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Employment Agreement between ApothecaryRx, LLC and Aric
Greenburg, dated January 17, 2008, is incorporated by reference
to Exhibit 10.3 of the Registrant’s Current Report on Form
8-K filed with the U.S. Securities and Exchange Commission on
January 29, 2008.
|
|
|
10
|
.9
|
|
Transition Agreement between ApothecaryRx, LLC, Rambo Pharmacy,
Inc. and Norman Greenburg, dated January 17, 2008, is
incorporated by reference to Exhibit 10.4 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on January 29, 2008.
|
|
|
10
|
.10
|
|
Lease Agreement between ApothecaryRx, LLC and Rambo Pharmacy,
Inc., dated January 12, 2008, is incorporated by reference to
Exhibit 10.5 of the Registrant’s Current Report on Form 8-K
filed with the U.S. Securities and Exchange Commission on
January 29, 2008.
|
|
|
10
|
.11
|
|
Asset Purchase Agreement between ApothecaryRx, LLC and Thrifty
Drug Stores, Inc., dated February 8, 2008, is incorporated by
reference to Exhibit 10.1 of the Registrant’s Current
Report on Form 8-K filed with the U.S. Securities and Exchange
Commission on March 6, 2008.
|
|
|
10
|
.12
|
|
Goodwill Protection Agreement between ApothecaryRx, LLC and
Thrifty Drug Stores, Inc., dated February 29, 2008, is
incorporated by reference to Exhibit 10.2 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on March 6, 2008.
|
|
|
10
|
.13
|
|
Pharmacy Purchase Agreement between ApothecaryRx, LLC,
Rehn-Huerbinger Drug Co., 666 Drug Co., Wilmette-Huerbinger Drug
Co., Edward Cox, Simpson Gold, Lawrence Horwitz, and Steven
Feinerman, dated May 2, 2008, is incorporated by reference to
Exhibit 10.1 of the Registrant’s Current Report on Form 8-K
filed with the U.S. Securities and Exchange Commission on June
6, 2008.
|
|
|
10
|
.13.1
|
|
First Amendment to Pharmacy Purchase Agreement between
ApothecaryRx, LLC, Rehn-Huerbinger Drug Co., 666 Drug Co.,
Wilmette-Huerbinger Drug Co., Edward Cox, Simpson Gold, Lawrence
Horwitz, and Steven Feinerman, dated May 23, 2008, is
incorporated by reference to Exhibit 10.7 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on June 6, 2008.
|
|
|
10
|
.13.2
|
|
Second Amendment to Pharmacy Purchase Agreement between
ApothecaryRx, LLC, Rehn-Huerbinger Drug Co., 666 Drug Co.,
Wilmette-Huerbinger Drug Co., Edward Cox, Simpson Gold, Lawrence
Horwitz, and Steven Feinerman, dated June 3, 2008, is
incorporated by reference to Exhibit 10.8 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on June 6, 2008.
|
|
|
10
|
.14
|
|
Goodwill Protection agreement between ApothecaryRx, LLC, Edward
Cox, Simpson Gold and Lawrence Horwitz, dated June 3, 2008, is
incorporated by reference to Exhibit 10.2 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on June 6, 2008.
|
|
|
10
|
.15
|
|
Employment Agreement between ApothecaryRx, LLC and Lawrence
Horwitz, dated June 3, 2008, is incorporated by reference to
Exhibit 10.3 of the Registrant’s Current Report on Form 8-K
filed with the U.S. Securities and Exchange Commission on June
6, 2008.
|
|
|
10
|
.16
|
|
Employment Agreement between ApothecaryRx, LLC and Steven
Feinerman, dated June 3, 2008, is incorporated by reference to
Exhibit 10.4 of the Registrant’s Current Report on Form 8-K
filed with the U.S. Securities and Exchange Commission on June
6, 2008.
|
|
|
10
|
.17
|
|
Employment Agreement between ApothecaryRx, LLC and Edward Cox,
dated June 3, 2008, is incorporated by reference to Exhibit 10.5
of the Registrant’s Current Report on Form 8-K filed with
the U.S. Securities and Exchange Commission on June 6, 2008.
|
|
|
10
|
.18
|
|
Employment Agreement between ApothecaryRx, LLC and Simpson Gold,
dated June 3, 2008, is incorporated by reference to Exhibit 10.6
of the Registrant’s Current Report on Form 8-K filed with
the U.S. Securities and Exchange Commission on June 6, 2008.
|
|
|
10
|
.19
|
|
Purchase Agreement between TCSD of Waco, LLC and Sleep Center of
Waco, Ltd., dated May 30, 2008, is incorporated by
reference to Exhibit 10.3 of the Registrant’s Current
Report on Form 8-K filed with the U.S. Securities and Exchange
Commission on June 13, 2008.
|
| |
|
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
|
|
10
|
.20
|
|
Purchase Agreement between Capital Sleep Management, LLC, Plano
Sleep Center, Ltd., and Southlake Sleep Center, Ltd., dated May
30, 2008, is incorporated by reference to Exhibit 10.2 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on June 13, 2008.
|
|
|
10
|
.21
|
|
Asset Purchase Agreement between SDC Holdings, LLC, Christina
Molfetta and Hanna Friends Trust, dated June 1, 2008, is
incorporated by reference to Exhibit 10.1 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on June 13, 2008.
|
|
|
10
|
.22
|
|
Loan Agreement between Registrant, SDC Holdings, LLC,
ApothecaryRx, LLC, Oliver Company Holdings, LLC, Roy T. Oliver,
Stanton M. Nelson, Roy T. Oliver as Trustee of the Roy T. Oliver
Revocable Trust dated June 15, 2004, Vahid Salalati, Greg
Luster, Kevin Lewis, Roger Ely and Lewis P. Zeidner and Arvest
Bank, dated May 21, 2008 is incorporated by reference to Exhibit
10.31 of the Registrant’s Annual Report on Form 10-K filed
with the U.S. Securities and Exchange Commission on March 31,
2009.
|
|
|
10
|
.22.1
|
|
Amendment to Loan Agreement between Registrant, SDC Holdings,
LLC, ApothecaryRx, LLC, Oliver Company Holdings, LLC, Roy T.
Oliver, Stanton M. Nelson, Roy T. Oliver as Trustee of the Roy
T. Oliver Revocable Trust dated June 15, 2004, Vahid Salalati,
Greg Luster, Kevin Lewis, Roger Ely and Lewis P. Zeidner and
Arvest Bank, effective May 21, 2008 is incorporated by reference
to Exhibit 10.32 of the Registrant’s Annual Report on Form
10-K filed with the U.S. Securities and Exchange Commission
on March 31, 2009.
|
|
|
10
|
.22.2
|
|
Second Amendment to Loan Agreement between Registrant, SDC
Holdings, LLC, ApothecaryRx, LLC, Oliver Company Holdings, LLC,
Roy T. Oliver, Stanton M. Nelson, Roy T. Oliver as Trustee of
the Roy T. Oliver Revocable Trust dated June 15, 2004, Vahid
Salalati, Greg Luster, Kevin Lewis, Roger Ely and Lewis P.
Zeidner and Arvest Bank, effective May 21, 2008, is incorporated
by reference to Exhibit 10.1 of the Registrant’s Quarterly
Report on Form 10 Q filed with the U.S. Securities and Exchange
Commission on August 14, 2009.
|
|
|
10
|
.22.3**
|
|
Third Amendment to Loan Agreement between Registrant, SDC
Holdings, LLC, ApothecaryRx, LLC, Oliver Company Holdings, LLC,
Roy T. Oliver, Stanton M. Nelson, Roy T. Oliver as Trustee of
the Roy T. Oliver Revocable Trust dated June 15, 2004, Vahid
Salalati, Greg Luster, Kevin Lewis, Roger Ely and Lewis P.
Zeidner and Arvest Bank, effective May 21, 2008.
|
|
|
10
|
.22.4**
|
|
Amended and Restated Loan Agreement dated December 17, 2010 by
and among Graymark Healthcare, Inc., SDC Holdings, LLC,
ApothecaryRx, LLC, Oliver Company Holdings, LLC, Roy T. Oliver,
Stanton M. Nelson, Roy T. Oliver as Trustee of the Roy T. Oliver
Revocable Trust dated June 15, 2004, Kevin Lewis, Roger Ely,
Lewis P. Zeidner and Arvest Bank.
|
|
|
10
|
.22.5
|
|
Letter Agreement dated March 11, 2011 by and between Graymark
Healthcare, Inc. and Arvest Bank, is incorporated by reference
to Exhibit 99.1 to the Registrant’s Current Report on Form
8-K filed on March 22, 2011.
|
|
|
10
|
.23
|
|
Stock Sale Agreement dated August 19, 2009 by and among SDC
Holdings, LLC, AvastraUSA, Inc. and Avastra Sleep Centers
Limited, is incorporated by reference to Exhibit 10.1 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities Exchange Commission on August 26, 2009.
|
|
|
10
|
.23.1
|
|
First Amendment to Stock Sale Agreement dated August 23, 2009
among SDC Holdings, LLC, AvastraUSA, Inc. and Avastra Sleep
Centers Limited, is incorporated by reference to Exhibit 10.2 of
the Registrant’s Current Report on Form 8-K filed with the
U.S. Securities Exchange Commission on August 26, 2009.
|
|
|
10
|
.23.2
|
|
Second Amendment to Stock Sale Agreement dated September 14,
2009 among SDC Holdings, LLC, AvastraUSA, Inc. and Avastra Sleep
Centers Limited, is incorporated by reference to Exhibit 10.1 of
the Registrant’s Current Report on Form 8-K filed with the
U.S. Securities Exchange Commission on September 16, 2009.
|
|
|
10
|
.24
|
|
Lock up and Stock Pledge Agreement dated September 14, 2009
among Graymark Healthcare, Inc., SDC Holdings, LLC, AvastraUSA,
Inc. and Avastra Sleep Centers Limited, is incorporated by
reference to Exhibit 10.2 of the Registrant’s Current
Report on Form 8-K filed with the U.S. Securities Exchange
Commission on September 16, 2009.
|
| |
|
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
|
|
10
|
.25
|
|
Settlement Agreement and Release dated September 14, 2009 among
Daniel I. Rifkin, M.D., Graymark Healthcare, Inc., SDC
Holdings, LLC, Avastra Sleep Centers Limited, AvastraUSA, Inc,
is incorporated by reference to Exhibit 10.3 of the
Registrant’s Current Report on Form 8-K/A filed with the
U.S. Securities Exchange Commission on September 21, 2009.
|
|
|
10
|
.26
|
|
Amended and Restated Employment Agreement between Registrant and
Grant A. Christianson, dated October 19, 2010, is incorporated
by reference to Exhibit 10.4 of the Registrant’s Quarterly
Report on Form 10-Q filed with the U.S. Securities and Exchange
Commission on November 15, 2010.
|
|
|
10
|
.27
|
|
Employment Agreement between Registrant and Stanton Nelson,
dated October 13, 2009, is incorporated by reference to Exhibit
10.1 of the Registrant’s Current Report on Form 8-K filed
with the U.S. Securities and Exchange Commission on October 14,
2009.
|
|
|
10
|
.28
|
|
Amended and Restated Employment Agreement among the Registrant,
Lewis P. Zeidner, and ApothecaryRx, LLC, dated October 13, 2009,
is incorporated by reference to Exhibit 10.3 of the
Registrant’s Current Report on Form 8-K filed with the U.S.
Securities and Exchange Commission on October 14, 2009.
|
|
|
10
|
.29
|
|
Employment Agreement between Registrant and Joseph Harroz, Jr.,
dated December 5, 2008, is incorporated by reference to Exhibit
10.2 of Registrant’s Current Report on Form 8-K filed with
the U.S. Securities and Exchange Commission on December 9, 2008.
|
|
|
10
|
.30
|
|
Agreement between the Registrant and Joseph Harroz, Jr., dated
March 25, 2010, is incorporated by reference to Exhibit 10.30 of
the Registrant’s Annual Report on Form 10-K filed with the
U.S. Securities and Exchange Commission on March 31, 2010.
|
|
|
10
|
.31
|
|
Restricted Stock Award Agreement between the Registrant and
Stanton Nelson, dated March 25, 2010 is incorporated by
reference to Exhibit 10.31 of the Registrant’s Annual
Report on
Form 10-K
filed with the U.S. Securities and Exchange Commission on March
31, 2010.
|
|
|
10
|
.32
|
|
Employment Agreement between the Registrant and Edward M.
Carriero, Jr., dated October 7, 2010, is incorporated by
reference to Exhibit 10.3 of the Registrant’s Quarterly
Report on Form 10-Q filed with the U.S. Securities and Exchange
Commission on November 15, 2010.
|
|
|
10
|
.33
|
|
Asset Purchase Agreement dated September 1, 2010 among Walgreen
Co., ApothecaryRx, LLC, and, to certain sections only, Graymark
Healthcare, Inc., is incorporated by reference to Exhibit 10.1
to the Registrant’s Current Report on Form 8-K filed on
September 2, 2010.
|
|
|
10
|
.33.1
|
|
First Amendment to Asset Purchase Agreement dated October 29,
2010 among Walgreen Co., ApothecaryRx, LLC, and, to certain
sections only, Graymark Healthcare, Inc., is incorporated by
reference to Exhibit 10.1 to the Registrant’s Current
Report on Form 8-K filed on October 29, 2010.
|
|
|
10
|
.34
|
|
Employment Agreement between Registrant and Rick D. Simpson,
dated December 5, 2008, is incorporated by reference to Exhibit
10.3 of Registrant’s Current Report on Form 8-K filed with
the U.S. Securities and Exchange Commission on December 9, 2008.
|
|
|
10
|
.35
|
|
Form of Indemnification Agreement between the Company and each
of its directors and executive officers, is incorporated by
reference to Exhibit 10.1 to the Registrant’s Current
Report on
Form 8-K
filed on August 24, 2010.
|
|
|
10
|
.36.1
|
|
Loan Agreement dated March 16, 2011 by and between Valiant
Investments LLC and Graymark Healthcare, Inc., is incorporated
by reference to Exhibit 10.1 to the Registrant’s Current
Report on Form 8-K filed on March 22, 2011.
|
|
|
10
|
.36.2
|
|
Note dated March 16, 2011 issued by Graymark Healthcare, Inc.,
is incorporated by reference to Exhibit 10.2 to the
Registrant’s Current Report on Form 8-K filed on March 22,
2011.
|
|
|
10
|
.36.3
|
|
Subordination Agreement dated March 16, 2011 by and among
Valiant Investments, L.L.C., ApothecaryRx, LLC, SDC Holdings LLC
and Graymark Healthcare, Inc., in favor of Arvest Bank, is
incorporated by reference to Exhibit 10.3 to the
Registrant’s Current Report on Form 8-K filed on March 22,
2011.
|
|
|
10
|
.37
|
|
Form of Subscription Agreement dated April 30, 2011 by and
between each of Graymark Healthcare, Inc., and each of MTV
Investments, LP, Black Oak II, LLC, TLW Securities, LLC and
Valiant Investments, LLC, is incorporated by reference to
Exhibit 10.1 to the Registrant’s Current Report with the
U.S. Securities and Exchange Commission on Form 8-K filed
on May 5, 2011.
|
| |
|
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
|
|
10
|
.38
|
|
Form of Warrant Agreement dated May 4, 2011 issued to each
of MTV Investments, LP, Black Oak II, LLC, TLW Securities, LLC
and Valiant Investments, LLC, is incorporated by reference to
Exhibit 10.2 to the Registrant’s Current Report with
the U.S. Securities and Exchange Commission on Form 8-K
filed on May 5, 2011.
|
|
|
23
|
.1**
|
|
Consent of Eide Bailly, LLP
|
|
|
23
|
.2+
|
|
Consent of McAfee & Taft, P.C. (included in Exhibit
5.1)
|
|
|
24
|
.1**
|
|
Power of attorney (see page II-5)
|
