SEC Connect
UNITED STATES SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C
INFORMATION STATEMENT PURSUANT TO SECTION 14(c)
OF THE SECURITIES EXCHANGE ACT OF 1934
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the appropriate box:
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Preliminary
Information Statement
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Confidential, For Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
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Definitive
Information Statement
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MEDITE CANCER DIAGNOSTICS, INC.
(Name
of Registrant as Specified in its Charter)
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of Filing Fee (Check the appropriate box):
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Fee
computed on table below per Exchange Act Rules 14c-5(g) and
0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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(2)
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Aggregate
number of securities to which transaction applies:
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(3)
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Per
unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which
the filing fee is calculated and state how it was
determined):
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(4)
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Proposed
maximum aggregate value of transaction:
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Fee
paid previously with preliminary materials.
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Check
box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
of its filing.
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(1)
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Previously Paid:
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(2)
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Form,
Schedule or Registration Statement No.:
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PRELIMINARY COPY
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PRELIMINARY COPY
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MEDITE CANCER DIAGNOSTICS, INC.
4303 SW 34th St.
Orlando FL 32811
(407) 996-9631
Dear
Stockholder:
This
Information Statement is being furnished on or about [_______], 2017, by MEDITE Cancer
Diagnostics, Inc., a Delaware corporation (the
“Company”), to holders of the Company’s
outstanding common stock, par value $0.001 per share (“Common
Stock”), as of the close of business on August 1, 2017,
pursuant to Rule 14c−2 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”). The purpose of
this Information Statement is:
(i) to
inform you that we have obtained the written consent of the holders
of the majority of the issued and outstanding shares of our Common
Stock, to amend the 2017 Employee/Consultant Common Stock
Compensation Plan,
(ii) to
file a Certificate of Amendment to our Certificate of
Incorporation (the “Certificate of Incorporation”) to
increase the Company’s authorized common stock, par value
$0.001 per share (the “Common Stock”), from 50,000,000
shares to 100,000,000 shares, (the “Amendment”) and
keep the authorized shares of preferred stock, par value $0.001 per
share (the “Preferred Stock”), unchanged,
and
(iii)
to serve as notice of the foregoing actions in accordance with
Section 228(e) of the Delaware General Corporation
Law.
The
holders of the majority of our issued and outstanding shares of
Common Stock executed a written consent in favor of the foregoing
action on August 1, 2017. This consent satisfied the stockholder
approval requirements under Delaware law and our certificate of
incorporation and will allow us to take the proposed action as soon
as practicable.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE
REQUESTED NOT TO SEND US A PROXY. Your consent to the
aforementioned action is not required and is not being solicited.
The accompanying Information Statement is being furnished to you
for informational purposes only. Please read the accompanying
Information Statement carefully.
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/s/
David E. Patterson
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David
E. Patterson
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Chief
Executive Office
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[_______], 2017
PRELIMINARY COPY
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PRELIMINARY COPY
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_____________________________
MEDITE CANCER DIAGNOSTICS, INC.
4303 SW 34th St.
Orlando FL 32811
(407) 996-9631
______________________________
INFORMATION STATEMENT
Dated
[______], 2017
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
INTRODUCTION
This
Information Statement is being mailed on or about [________], 2017 to the stockholders of
record of MEDITE Cancer Diagnostics, Inc. (the
“Company,” “we” or “us”) at the
close of business on August 1, 2017 (the “Record
Date”). This Information Statement is being sent to you for
information purposes only. No action is required or requested on
your part.
This
Information Statement is being provided:
(i) to
inform you that on August 1, 2017, holders of the majority of the
issued and outstanding shares of our Common Stock voted by written
consent to amend the Company’s 2017 Employee/Consultant
Common Stock Compensation Plan (the “Amended
Plan”),
(ii) to
file a Certificate of Amendment to our Certificate of
Incorporation (the “Certificate of Incorporation”) to
increase the Company’s authorized common stock, par value
$0.001 per share (the “Common Stock”), from 50,000,000
shares to 100,000,000 shares, (the “Amendment”) and
keep the authorized shares of preferred stock, par value $0.001 per
share (the “Preferred Stock”), unchanged,
and
(iii)
to serve as notice of the foregoing actions in accordance with
Section 228(e) of the Delaware General Corporation
Law.
The
amendment of the 2017 Employee/Consultant Common Stock Compensation
Plan and the Amendment are collectively referred to herein as the
“Actions.”
Section
228(a) of the Delaware General Corporation Law states that, unless
otherwise provided in the certificate of incorporation, any action
that may be taken at any annual or special meeting of stockholders
may be taken without a meeting, without prior notice and without a
vote, if consents in writing, setting forth the action so taken,
are signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote
thereon were present and voted, and those consents are delivered to
the corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the
corporation having custody of the book in which proceedings of
meetings of stockholders are recorded.
The Actions were
approved on August 1, 2017, upon the execution of a written consent
by the holders of the majority of the issued and outstanding shares
of our Common Stock. Because the Actions have been approved by the
holders of the requisite number of outstanding shares that are
entitled to cast votes, no other stockholder approval of the
Actions are necessary. This Information Statement will also serve
as notice of the Actions taken without a meeting as required by
Section 228(e) of the Delaware General Corporation Law. No further
notice of the Actions described herein will be given to
you.
We are
currently authorized to issue 50,000,000 shares of Common Stock and
10,000,000 shares of preferred stock, $.001 par value per share
(“Preferred Stock”). As of the close of business on the
Record Date, there were 27,658,820 shares of Common Stock,
47,250 shares of Series
A Convertible Preferred Stock, 93,750 shares of Series B
Convertible Preferred Stock, 38,333 shares of Series C Convertible
Preferred Stock and 19,022 shares of Series E Stock issued and
outstanding. Each share of Common Stock is entitled to one vote and
each share of Series E Stock is entitled to one vote for each share
of Common Stock into which such share is convertible on the Record
Date, calculated to the nearest whole share. As of the Record Date,
the Series E Stock outstanding was convertible into approximately
52,311 shares of Common Stock. The affirmative vote or written
consent of the holders of a majority of the issued and outstanding
shares of our Common Stock is necessary to approve the Actions. The
requisite stockholder approval of the Actions was obtained on
August 1, 2017.
The
expenses of preparing and mailing this Information Statement and
all documents that now accompany or may hereafter supplement it
will be borne by us. We will reimburse brokers and other persons
holding stock in their names or the names of nominees for their
expenses incurred in forwarding this Information Statement to the
beneficial owners of such shares.
The
Actions will become effective upon the passing of 20 calendar days
from the date a definitive copy of this Information Statement is
mailed to our stockholders.
Required Vote
The
affirmative vote or written consent of the holders of a majority of
the issued and outstanding shares of our Common Stock is necessary
to approve the Actions. The requisite stockholder approval of the
Actions was obtained on August 1, 2017.
Notice of Action by Written Consent
Pursuant to Rule
14c-2 of Regulation 14C promulgated under the Securities Exchange
Act of 1934, as amended, we are required to distribute an
information statement to every stockholder from whom consent is not
solicited at least 20 calendar days prior to the earliest date on
which the proposed Actions become effective. This Information
Statement serves as the notice required by Rule 14c-2 of Regulation
14C.
Dissenters’ Rights
The
stockholders have no right under the DGCL, the Company’s
Certificate of Incorporation consistent with above, or the
Company’s bylaws to dissent from the Actions adopted as set
forth herein.
BENEFICIAL OWNERSHIP OF OUR COMMON STOCK
The
following table sets forth certain information, as of July 27,
2017, with respect to holdings of our Common Stock by (i) each
person known by us to be the beneficial owner of more than 5% of
the total number of shares of Common Stock outstanding as of such
date, (ii) each of our directors and executive officers, and (iii)
all directors and executive officers as a group. Except as
otherwise indicated, the address of each person is c/o MEDITE
Cancer Diagnostics, Inc.,4203 SW 34th St., Orlando, FL
32811.
Name and Address
of Beneficial Owner
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Amount and Nature
of Beneficial Interest (1)
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David E.
Patterson
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250,000
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0.90%
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Michaela
Ott
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7,500,000
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(2)
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27.12%
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Michael
Ott
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7,500,000
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(3)
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27.12%
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Stephen Von
Rump
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200,000
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0.72%
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Susan
Weisman
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200,000
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0.72%
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Jeff
Rencher
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150,000
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0.54%
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Robert J.
McCullough
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1,676,907
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(4)
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6.06%
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William A. Lewis
IV
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251,163
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(5)
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0.91%
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John H. Abeles,
MD
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642,451
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2.32%
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Eric
Goenhausen
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0
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0.00%
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Augusto Ocana, MD
and JD
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179,885
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0.65%
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All Beneficial
Owners and Management as a Group
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18,550,406
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67.07%
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(1)
Unless
otherwise indicated, each of the persons named in the table has
sole voting and investment power with respect to the shares set
forth opposite such person’s name. With respect to each
person or group, percentages are calculated based on the number of
shares beneficially owned, including shares that may be acquired by
such person or group within 60 days of July 27, 2017, upon the
exercise of stock options, warrants or other purchase rights, but
not the exercise of options, warrants or other purchase rights held
by any other person. There were 27,658,820 shares of common stock
outstanding as of the close of business on July 27,
2017.
(2)
Includes: (i)
7,500,000 shares held by Mrs. Ott’s husband, Michael
Ott.
(3)
Includes: (i)
7,500,000 shares held by Mr. Ott’s wife, Michaela
Ott.
(4)
Includes an
aggregate 1,662 shares owned by various trusts of which Mr.
McCullough is trustee as follows: MJM Educational Trust (150)
shares, PFM Educational Trust (150 shares), CDM Educational Trust
(150) shares and the MPC Trust (1,212 shares).
(5)
Includes 246,667 warrants exercisable at $0.50 per
share.
(6)
Includes: (i)
298,708 shares owned by Northlea Partners, LLP, of which Dr. Abeles
is General Partner. Dr. Abeles also owns 28,000 warrants to
purchase the Company’s common stock at exercise prices of
$4.00-$6.00 over a term of 5-10 years, respectively. Northlea
Partners owns 155,000 warrants to purchase the Company’s
common stock at an exercise price of $.50 per share over a term of
5 years and 33,750 warrants to purchase the Company’s common
stock at exercise prices of $4.00-$6.00 over a term of 5-10 years,
respectively. Dr. Abeles disclaims beneficial ownership of all
shares and warrants owned by, or issuable to, Northlea Partners
except shares and warrants attributable to his 1% interest in
Northlea Partners as General Partner.
Series E Convertible Preferred Stock
The following table sets forth certain information with respect to
holdings of our Series E Convertible Preferred Stock by (i) each
person known by us to be the beneficial owner of more than 5% of
the total number of shares of the Company’s Series E
Convertible Preferred Stock outstanding as of such date, (ii) each
of our directors and executive officers, and (iii) all directors
and executive officers as a group.
Name and Address of Beneficial Owner (1)
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Amount
and
Nature
of
Beneficial
Ownership (2)
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Kevin F. Flynn June
1992 Non-Exempt Trust
120 South LaSalle
Street
Chicago, IL
60602
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6,667
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(3)
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35.05
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Rolf
Lagerquist
4522 CO Road 21
NE
Elgin, MN
55932
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2,000
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(4)
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10.5
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1%
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(1)
No
executive officers or directors own any shares of Series E
Convertible Preferred Stock.
(2)
Unless
otherwise indicated, each of the persons named in the table has
sole voting and investment power with respect to the shares set
forth opposite such person’s name. With respect to each
person or group, percentages are calculated based on the number of
shares beneficially owned, including shares that may be acquired by
such person or group upon the exercise of stock options, warrants
or other purchase rights, but not the exercise of options, warrants
or other purchase rights held by any other person. There were
19,022 shares of Series E Convertible Preferred Stock outstanding
as of the close of business on July 27, 2017.
(3)
Converts into 464
shares of common stock, including shares issuable upon payment of
cumulative dividends.
(4)
Converts into 139
shares of common stock, including shares issuable upon payment of
cumulative dividends.
THE ACTIONS
AMENDMENT OF THE COMPANY’S
2017 EMPLOYEE/CONSULTANT COMMON STOCK COMPENSATION
PLAN
The
Company’s Amended and Restated 2017 Employee/Consultant
Common Stock Compensation Plan was adopted pursuant to the written
consent of holders of a majority of The Company’s common
stock obtained as on August 1, 2017.
The
full text of the Amended and restated 2017 Employee/Consultant
Common Stock Compensation Plan is attached hereto and incorporated
herein as Exhibit A.
AMENDMENT TO CERTIFICATE OF INCORPORATION TO DECREASE THE
AUTHORIZED SHARES OF COMMON STOCK FROM 50,000,000 SHARES TO
100,000,000 SHARES
The
Company’s Certificate of Incorporation authorized the
issuance of 50,000,000 shares of Common Stock and 10,000,000 shares
of Preferred Stock. On August 1, 2017, a majority of the
shareholders of the Company approved the Certificate of Amendment
of our Certificate of Incorporation, which is attached hereto as
Exhibit B, to
increase the amount of authorized Common Stock of the Company from
50,000,000 shares to 100,000,000 shares of Common
Stock.
The
Board of Directors will file the Amendment with the Secretary of
State of Delaware. The increase in our authorized Common Stock will
become effective on the date of filing.
Reason for Decrease in Authorized Shares
The
general purpose and effect of the amendment to the Company’s
Certificate of Incorporation in authorizing 100,000,000 shares of
Common Stock is to facilitate various financing agreements in the
future to enable the Company to continue its current business
operations.
Reasons for and Effect of the Amendment
The
Board of Directors believes that the Company’s stockholders
may benefit from the increase in the number of shares of Common
Stock the Company is authorized to issue because it shall allow us
to accommodate additional capital investment into the
Company.
This
increase in our authorized common shares will have no material
effect on the rights of existing stockholders, since it will not
change the percentage of ownership of the Company of any
stockholder. Moreover, the adoption of the Amendment will not of
itself without further action of our Board of Directors cause or
result in any changes in our current capital accounts or
outstanding Common Stock.
As a result of the increase in authorized common stock, there will
be an additional 50,000,000 common shares available for issuance.
The Board of Directors will be authorized to issue the additional
common shares without having to obtain the approval of the
Company’s shareholders. The issuance of the additional shares
could also result in the dilution of the value of shares now
outstanding, if the terms on which the shares were issued were less
favorable than the contemporaneous market value of the
Company’s common stock.
The increase in the number of common shares available for issuance
is not being done for the purpose of impeding any takeover attempt.
Nevertheless, the power of the Board of Directors to provide for
the issuance of shares of common stock without shareholder approval
has potential utility as a device to discourage or impede a
takeover of the Company. In the event that a non-negotiated
takeover were attempted, the private placement of stock into
“friendly” hands, for example, could make the Company
unattractive to the party seeking control of the Company. This
would have a detrimental effect on the interests of any stockholder
who wanted to tender his or her shares to the party seeking control
or who would favor a change in control.
The
Board of Directors is not aware of any such actual or contemplated
takeover attempt. Currently, we have no definitive plans or
arrangements to issue any such shares, although the Company
evaluates from time to time potential transactions that may result
in the issuance of shares. Any such use or issuance of our shares
would be regardless of whether the Amendment is
effectuated.
HOUSEHOLDING
Under
SEC rules, only one annual report, information statement or Notice
of Internet Availability of Proxy Materials, as applicable, need be
sent to any household at which two or more of our stockholders
reside if they appear to be members of the same family and contrary
instructions have not been received from an affected stockholder.
This procedure, referred to as householding, reduces the volume of
duplicate information stockholders receive and reduces mailing and
printing expenses for us. Brokers with accountholders who are our
stockholders may be householding these materials. Once you have
received notice from your broker that it will be householding
communications to your address, householding will continue until
you are notified otherwise or until you revoke your consent. If,
now or at any time in the future, you no longer wish to participate
in householding and would like to receive a separate annual report,
information statement or Notice of Internet Availability of Proxy
Materials, or if you currently receive multiple copies of these
documents at your address and would prefer that the communications
be householded, you should contact us at 4303 SW 34th St., Orlando FL
32811 or at (407) 996-9631.
REQUESTS
FOR CERTAIN DOCUMENTS
We file
annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission (the
“SEC”). You may read and copy any document we file with
the SEC at the SEC’s public reference room at 100 F Street,
NE, Washington, DC 20549. Please call the SEC at 1-800-SEC-0330 for
information on the public reference room. The SEC maintains an
internet site that contains annual, quarterly and current reports,
proxy and information statements and other information that issuers
(including us) file electronically with the SEC. Our electronic SEC
filings are available to the public at the SEC’s internet
site, www.sec.gov.
We make
available free of charge financial information, news releases, SEC
filings, including our annual report on Form 10-K, quarterly
reports on Form 10-Q, current reports on Form 8-K and amendments to
these reports as soon as reasonably practical after we
electronically file such material with, or furnish it to, the SEC,
on our website at www.globalstar.com. The documents available on,
and the contents of, our website are not incorporated by reference
into this Information Statement.
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/s/
David E. Patterson
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David
E. Patterson
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Chief
Executive Officer
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[_______], 2017
EXHIBIT
A
AMENDED
AND RESTATED 2017 EMPLOYEES/CONSULTANTS STOCK COMPENSATION
PLAN
OF
MEDITE
CANCER DIAGNOSTICS, INC.
TABLE
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ESTABLISHMENT
AND PURPOSE
This
Amended and Restated 2017 Employees/Consultants Stock Company Plan
of Mediate Cancer Diagnostics, Inc. (the “PLAN”) was
originally established on March 7, 2017, effective March 7, 2017
(the “ORIGINAL EFFECTIVE DATE”), to offer directors,
officers and selected key employees, advisors and consultants an
opportunity to acquire a proprietary interest in the success of the
Company to receive compensation, or to increase such interest, by
purchasing shares of the Company’s common stock
(“SHARES”). Except as otherwise expressly provided
herein, this instrument contains the provisions of the Plan as
amended and restated effective as of the Original Effective Date.
The Plan provides both for the direct award or sale of Shares and
for the grant of Options to purchase Shares. Options granted under
the Plan may include non-statutory options intended to meet the
requirements for exclusion from coverage under section 409A of the
Code, as well as ISOs intended to qualify under section 422 of the
Code. All Options granted hereunder shall be interpreted in a
manner consistent with these intentions.
The
Plan is intended to comply in all respects with Rule 16b-3 (or its
successor) under the Exchange Act and shall be construed
accordingly. All transactions
involving any Employee subject to section 16(a) of the Exchange Act
shall be subject to the conditions set forth in Rule 16b-3,
regardless of whether such conditions are expressly set forth in
this Plan. Any provision of this Plan that is contrary to Rule
16b-3 does not apply to such Employees.
(A) “BOARD OF
DIRECTORS” shall mean the Board of Directors of the Company,
as constituted from time to time.
(B) “CODE”
shall mean the Internal Revenue Code of 1986, as
amended.
(C) “COMMITTEE”
shall mean a committee of the Board of Directors, as described
hereinafter. The Plan shall be administered by the Committee of not
less than three Outside Directors who are appointed by the Board of
Directors and serve at its pleasure. Unless otherwise determined by
the Board of Directors, the Compensation Committee shall serve as
the Committee, and all of the members of the Committee shall be
Outside Directors. The term “Outside Director” shall
mean a member of the Board of Directors who meets the definitions
of the terms “outside director” set forth in section
162(m) of the Code, “independent director” set forth in
the rules of a stock exchange on which the Shares may then be
listed, and “Non-Employee Director” set forth in Rule
16b-3 under the Exchange Act, or any successor definitions adopted
by the Internal Revenue Service, an applicable exchange and the
Securities and Exchange Commission, respectively, and similar
requirements under any other applicable laws and
regulations.
(D) “COMPANY”
shall mean Medite Cancer Diagnostics, Inc., a Delaware
corporation and any successor
corporation or business organization which shall assume the duties
and obligations of Medite Cancer Diagnostics, Inc. under this Plan.
The term “SUBSIDIARY” shall mean (i) with respect to
grants of ISOs any corporation and any other entity considered a
subsidiary as defined in section 424(f) of the Code of the Company,
and (ii) with respect to grants of Non-statutory Options, any
entity directly or indirectly controlled by the Company or any
entity, including an acquired entity, in which the Company has a
controlling interest (as defined in Treasury Regulation
§1.409A-1(b)(5)(iii)), as determined by the Committee, in its
sole discretion, provided such entity is considered a service
recipient (within the meaning of section 409A of the Code) that may
be aggregated with the Company.
(E) “EMPLOYEE”
shall mean (i) any individual who is a common-law employee of the
Company or of a Subsidiary, (ii) an Outside Director, (iii) an
independent contractor who performs services for the Company or a
Subsidiary and who is not a member of the Board of Directors,
including consultants and advisors that provide professional,
technical, financial, legal, accounting, capital markets related
and other services. The performance of services as an Outside
Director or independent contractor shall be treated as
“employment” for all purposes of the Plan, except as
provided in Subsections (A) and (B) of Section 4.
(F) “EXCHANGE
ACT” shall mean the Securities Exchange Act of 1934, as
amended.
(G) “EXERCISE
PRICE” shall mean the amount for which one
Share
may be purchased upon exercise of an Option, as specified by the
Committee in the applicable Stock Option Agreement.
(H) “FAIR MARKET
VALUE” shall mean the market price of a Share, determined by
the Committee as follows:
(i) If Shares were
traded on a stock exchange on the date in question, then the Fair
Market Value shall be equal to the closing price reported for such
date by the applicable composite-transactions report;
(ii) If
Shares were traded over-the-counter on the date in question and was
traded on the Nasdaq system or the Nasdaq National Market, then the
Fair Market Value shall be equal to the last transaction price
quoted for such date by the Nasdaq system or the Nasdaq National
Market;
(iii) If
Shares were traded over-the-counter on the date in question but was
not traded on the Nasdaq system or the Nasdaq National Market, then
the Fair Market Value shall be equal to the mean between the last
reported representative bid and asked prices quoted for such date
by the principal automated inter-dealer quotation system on which
Shares are quoted or, if the Shares are not quoted on any such
system, by the “Pink Sheets” published by the National
Quotation Bureau, Inc.; and
(iv) If
none of the foregoing provisions is applicable, then the Fair
Market Value shall be determined by the Committee in good faith on
such basis as it deems appropriate.
Notwithstanding
the foregoing, as of any date in question, the “Fair Market
Value” of a Share shall be determined in a manner consistent
with section 409A of the Code, except that a Share subject to an
ISO shall be determined in a manner consistent with section 422 of
the Code. In all cases, the determination of Fair Market Value by
the Committee shall be conclusive and binding on all
persons.
(I) “ISO”
shall mean a stock option that is clearly identified as such and
which meets the requirements of section 422 of the Code. Any ISO
which fails to comply with section 422 of the Code for any reason
shall automatically be treated as a Non-statutory Option
appropriately granted under this Plan provided it otherwise meets
the Plan’s requirements for Non-statutory
Options.
(J) “NON-STATUTORY
OPTION” shall mean a stock option that is governed by section
83 of the Code and is not described in sections 422 or 423 of the
Code.
(K) “OFFEREE”
shall mean an individual to whom the Committee has offered the
right to acquire Shares under the Plan (other than upon exercise of
an Option)
(L) “OPTION”
shall mean an ISO or Non-statutory Option granted under the Plan
and entitling the holder to purchase Shares.
(M) “OPTIONEE”
shall mean an individual who holds an Option.
(N) “OUTSIDE
DIRECTOR” shall mean a member of the Board of Directors who
is not a common-law employee of the Company or of a
Subsidiary.
(O) COMMITTEE
PROCEDURES. The Committee shall designate one of its members as
chairman. The Committee may hold meetings at such times and places
as it shall determine. The acts of a majority of the Committee
members present at meetings at which a quorum exists, or acts
reduced to or approved in writing by all Committee members, shall
be valid acts of the Committee.
(P) COMMITTEE
RESPONSIBILITIES. Subject to the provisions of the Plan, the
Committee shall have the authority and discretion to take the
following actions:
(i) To interpret the
Plan, any Stock Purchase Agreement and any Stock Option Agreement
and to apply their provisions;
(ii) To
adopt, amend or rescind rules, procedures and forms relating to the
Plan;
(iii) To
authorize any person to execute, on behalf of the Company, any
instrument required to carry out the purposes of the
Plan;
(iv) To
determine when Shares are to be awarded or offered for sale and
when Options are to be granted under the Plan;
(v) To select the
Offerees and Optionees;
(vi) To
determine the number of Shares to be awarded or offered to each
Offeree or to be made subject to each Option;
(vii) To
prescribe the terms and conditions of each award or sale of Shares,
including (without limitation) the purchase price, and to specify
the provisions of the Stock Purchase Agreement relating to such
award or sale;
(viii) To
prescribe the terms and conditions of each Option, including
(without limitation) the Exercise Price, to determine whether such
Option is to be classified as an ISO or as a Non-statutory Option,
and to determine the terms and conditions, not inconsistent with
the terms of the Plan, of the Stock Option Agreement relating to
such Option;
(ix) To
amend any outstanding Stock Purchase Agreement or Stock Option
Agreement, subject to applicable legal restrictions and, to the
extent such amendments are material and adverse to the
Offeree’s or Optionee’s interest, obtain the consent of
the Offeree or Optionee who entered into such
agreement;
(x) To prescribe the
consideration for the grant of each Option or other right under the
Plan and to determine the sufficiency of such consideration;
and
(xi) To
take any other actions deemed necessary or advisable for the
administration of the Plan.
All
decisions, interpretations and other actions of the Committee shall
be final and binding on all Offerees, all Optionees, and all
persons deriving their rights from an Offeree or Optionee. No
member of the Committee shall be liable for any action that he or
she has taken or has failed to take in good faith with respect to
the Plan, any Option, or any right to acquire Shares under the Plan
and, to the fullest extent permitted by law, all members of the
Committee shall be indemnified by the Company and its Subsidiaries
for any liability and expenses which they may incur through any
claim or cause of action arising under or in connection with this
Plan, any Option or any right to acquire Shares granted under this
Plan.
(Q) DELEGATION OF
AUTHORITY. The Committee may
delegate its powers and duties under this Plan to the
Company’s Chief Executive Officer or other senior executive
officer, subject to applicable law and such terms, conditions and
limitations as the Committee may establish in its sole discretion;
provided, however, that the Committee may not delegate its powers
and duties under this Plan with regard to awards to the
Company’s senior executive officers or any Offeree or
Optionee who is a “covered employee” as defined in
section 162(m) of the Code. The Company shall furnish the Committee
with such clerical and other assistance as is necessary for the
performance of the Committee’s duties under this Plan. In
addition, the Committee may delegate ministerial duties to any
other person or persons, and it may employ attorneys, consultants,
accountants or other professional advisers.
(R) RIGHT TO
RECOUP. The Committee
shall have full authority to adopt and enforce any policies and
procedures adopted by the Company in respect of section 10D of the
Exchange Act and such regulations as are promulgated thereunder
from time to time, or in respect to any other applicable law,
regulation or Company policy relating to the recoupment of amounts
on account of a restatement of a financial statement that, if
initially reported properly, would have resulted in a lower amount
being paid to an Offeree or Optionee under the Plan, or in respect
of any other policy of the Company relating to the recoupment of
amounts on account of the Offeree’s or Optionee’s
breach of a non-competition, non-solicitation, non-disparagement or
confidentiality obligation as it deems necessary or appropriate in
its sole discretion.
(A) GENERAL RULES. Only Employees
(including, without limitation, independent contractors,
consultants and legal counsel who are not members of the Board of
Directors) shall be eligible for designation as Optionees or
Offerees by the Committee. In addition, only Employees who are
common-law employees of the Company or a Subsidiary shall be
eligible for the grant of ISOs. Employees who are Outside Directors
shall only be eligible for the grant of the Non-statutory Options
described in Subsection (B) below.
(B) OUTSIDE DIRECTORS. Any other
provision of the Plan notwithstanding, the participation of Outside
Directors in the Plan shall be subject to the following
restrictions:
(i) Outside Directors
shall receive no grants other than the Non-statutory Options
described in this Subsection (B)
(ii) All
Non-statutory Options granted to an Outside Director under this
Subsection (B) shall become exercisable in full in the event of the
termination of such Outside Director’s service because of
death or disability (within the meaning of section 22(e)(3) of the
Code (“TOTAL AND PERMANENT DISABILITY”)).
(iii) The
Exercise Price under all Non-statutory Options granted to an
Outside Director under this Subsection (B) shall be not less than
100 percent of the Fair Market Value of a Share on the date of
grant, and such Exercise Price shall be payable in one or more of
the forms of payment described in Subsection (A), (B), (C), (D) or
(E) of Section 8.
The
Committee may provide that the Non-statutory Options that otherwise
would be granted to an Outside Director under this Subsection (B)
shall instead be granted to an affiliate of such Outside Director.
Such affiliate shall then be deemed to be an Outside Director for
purposes of the Plan, provided that the service-related vesting and
termination provisions pertaining to the Non-statutory Options
shall be applied with regard to the service of the Outside
Director.
(A) BASIC LIMITATION. Shares offered
under the Plan shall be authorized but unissued Shares or treasury
Shares. The aggregate number of Shares which may be issued under
the Plan (upon exercise of Options or other rights to acquire
Shares) shall not exceed 5,000,000 Shares (3,000,000 with respect
to any grants made prior to __________, 2017 (the
“RESTATEMENT EFFECTIVE DATE”)), subject to adjustment
pursuant to Section 9. The number of Shares which are subject to
Options or other rights outstanding at any time under the Plan
shall not exceed the number of Shares which then remain available
for issuance under the Plan. The Company, during the term of the
Plan, shall at all times reserve and keep available sufficient
Shares to satisfy the requirements of the Plan.
(B) ISO
LIMITATION. The maximum number of
Shares available with respect to all Options granted under this
Plan that may be ISOs is 5,000,000 (3,000,000 with respect to any
grants of ISOs made prior to the Restatement Effective
Date).
(C) INDIVIDUAL PARTICIPANT ANNUAL
LIMITATION. The maximum
number of Shares underlying awards granted under this Plan to any
one Optionee or Offeree in any fiscal year, regardless of whether
such awards are thereafter canceled, forfeited or terminated, shall
not exceed 5,000,000 (3,000,000 with respect to any grants made
prior to the Restatement Effective Date). The foregoing limitation
is intended to include the grant of all awards under the Plan
including, but not limited to, awards representing “qualified
performance-based compensation” under section 162(m) of the
Code, and shall be applied based upon the assumption that the
maximum number of Shares shall be earned under any
performance-based award.
(D) ADDITIONAL SHARES. In the event that
any outstanding Option or other right for any reason expires or is
cancelled or otherwise terminated, the Shares allocable to the
unexercised portion of such Option or other right shall again be
available for the purposes of the Plan. In the event that Shares
issued under the Plan are reacquired by the Company pursuant to a
forfeiture provision, a right of repurchase or a right of first
refusal, such Shares shall again be available for the purposes of
the Plan.
TERMS AND
CONDITIONS OF AWARDS OR SALES.
(A) AGREEMENT. Each award or
sale of Shares under the Plan (other than upon exercise of an
Option) shall be evidenced by an agreement between the Offeree and
the Company (a “STOCK PURCHASE AGREEMENT”). Such award
or sale shall be subject to all applicable terms and conditions of
the Plan and may be subject to any other terms and conditions which
are not inconsistent with the Plan and which the Committee deems
appropriate for inclusion in such Stock Purchase Agreement. The
provisions of the various Stock Purchase Agreements entered into
under the Plan need not be identical.
(B) DURATION OF OFFERS AND NONTRANSFERABILITY OF
RIGHTS. Any right to
acquire Shares under the Plan (other than an Option) shall
automatically expire if not exercised by the Offeree within 30 days
after the grant of such right was communicated to the Offeree by
the Committee. Such right shall not be transferable and shall be
exercisable only by the Offeree to whom such right was
granted.
(C) PURCHASE PRICE. The purchase
price of Shares to be offered for sale under the Plan shall not be
less than 90 percent of the Fair Market Value of such Shares.
Subject to the preceding sentence, the purchase price shall be
determined by the Committee at its sole discretion. The purchase
price shall be payable in a form of payment described in Section
8.
(D) WITHHOLDING TAXES. As a condition to
the award or sale of Shares, the Offeree shall make such
arrangements as the Committee may require for the satisfaction of
any federal, state, local or foreign withholding tax obligations
that arise in connection with such Shares. The Committee may permit
the Offeree to satisfy all or part of his or her tax obligations
related to such Shares by having the Company withhold a portion of
any Shares that otherwise would be issued to him or her or by
surrendering any Shares that previously were acquired by him or
her. The Shares withheld or surrendered shall be valued at their
Fair Market Value on the date when taxes otherwise would be
withheld. The payment of taxes by surrendering Shares to the
Company, if permitted by the Committee, shall be subject to such
restrictions as the Committee may impose, including any
restrictions required by rules of the Securities and Exchange
Commission.
(E)
RESTRICTIONS ON TRANSFER
OF SHARES. Any Shares
awarded or sold under the Plan shall be subject to such forfeiture
conditions, rights of repurchase, rights of first refusal and other
transfer restrictions as the Committee may determine. Such
restrictions shall be set forth in the applicable Stock Purchase
Agreement and shall apply in addition to any general restrictions
that may apply to all shareholders of Shares.
TERMS AND
CONDITIONS OF OPTIONS.
(A) STOCK OPTION AGREEMENT. Each grant of an
Option under the Plan shall be evidenced by a Stock Option
Agreement between the Optionee and the Company. Such Option shall
be subject to all applicable terms and conditions of the Plan and
may be subject to any other terms and conditions which are not
inconsistent with the Plan and which the Committee deems
appropriate for inclusion in a Stock Option Agreement. The
provisions of the various Stock Option Agreements entered into
under the Plan need not be identical.
(B) NUMBER OF SHARES. Each Stock Option
Agreement shall specify the number of Shares that are subject to
the Option and shall provide for the adjustment of such number in
accordance with Section 9. The Stock Option Agreement shall also
specify whether the Option is an ISO or a Non-statutory Option and,
unless the grant of an Option is designated at the time of grant as
an ISO, such Option shall be a Non-statutory Option.
The
aggregate Fair Market Value (determined with respect to each ISO at
the time such ISO is granted) of the Shares with respect to which
ISOs are exercisable for the first time by an Optionee during any
calendar year (under this Plan or any other plan adopted by the
Company or its Subsidiary) shall not exceed $100,000. If such
aggregate Fair Market Value shall exceed $100,000, such number of
ISOs as shall have an aggregate Fair Market Value equal to the
amount in excess of $100,000 shall be treated as a Non-statutory
Option.
(C) EXERCISE PRICE. Each Stock Option
Agreement shall specify the Exercise Price. The Exercise Price of
an ISO shall not be less than 100 percent of the Fair Market Value
of a Share on the date of grant (110% of the Fair Market Value of
the Shares if the following paragraph applies).. The Exercise Price
of a Non-statutory Option shall not be less than 100 percent of the
Fair Market Value of a Share on the date of grant. Subject to the
preceding two sentences, the Exercise Price under any Option shall
be determined by the Committee at its sole discretion. The Exercise
Price shall be payable in a form described in Section
8.
No
Employee may receive an ISO under this Plan if such Employee, at
the time the Option is granted, owns (after application of the
rules contained in section 424(d) of the Code) equity securities
representing more than 10% of the total combined voting power of
all classes of equity securities of the Company or any Subsidiary,
unless (i) the Exercise Price for such ISO is at least 110% of the
Fair Market Value of the Shares as of the date of grant and (ii)
such ISO is not exercisable on or after the fifth anniversary of
the date of grant.
(D) WITHHOLDING TAXES. As a condition to
the exercise of an Option, the Optionee shall make such
arrangements as the Committee may require for the satisfaction of
any federal, state, local or foreign withholding tax obligations
that arise in connection with such exercise. The Optionee shall
also make such arrangements as the Committee may require for the
satisfaction of any federal, state, local or foreign withholding
tax obligations that may arise in connection with the disposition
of Shares acquired by exercising an Option. The Committee may
permit the Optionee to satisfy all or part of his or her tax
obligations related to the Option by having the Company withhold a
portion of any Shares that otherwise would be issued to him or her
or by surrendering any Shares that previously were acquired by him
or her. Such Shares shall be valued at their Fair Market Value on
the date when taxes otherwise would be withheld. The payment of
taxes by surrendering Shares to the Company, if permitted by the
Committee, shall be subject to such restrictions as the Committee
may impose, including any restrictions required by rules of the
Securities and Exchange Commission.
(E) EXERCISABILITY AND TERM. Each Stock Option
Agreement shall specify the date when all or any portion of the
Shares subject to the Option is to become exercisable. The
exercisability of any Option shall be determined by the Committee
at its sole discretion. A Stock Option Agreement may provide for
accelerated exercisability in the event of the Optionee’s
death, Total and Permanent Disability or retirement or other
events. The Stock Option Agreement shall also specify the term of
the Option. The term shall not exceed 10 years from the date of
grant (5 years if the second paragraph of Section 7(C) applies).
The Committee may extend the term of an Option, in its discretion,
but not beyond the date immediately prior to the tenth anniversary
of the original date of grant. If a definite term is not specified
by the Committee at the time of grant, then the term is deemed to
be 10 years. Subject to the preceding sentence, the Committee at
its sole discretion shall determine when an Option is to
expire.
(F) NONTRANSFERABILITY. During an
Optionee’s lifetime, such Optionee’s Option(s) shall be
exercisable only by him or her (or his or her guardian or legal
representative to the extent permitted by applicable law) and shall
not be transferable, unless permitted by the Stock Option Agreement
in a manner consistent with the immediately following paragraph. In
the event of an Optionee’s death, such Optionee’s
Option(s) shall not be transferable other than by will, by a
beneficiary designation executed by the Optionee and delivered to
the Company, or by the laws of descent and
distribution.
The
Committee, in its discretion, may allow at or after the time of
grant the transferability of Options that are exercisable, provided
that the permitted transfer (i) is made pursuant to a qualified
domestic relations order or other applicable domestic relations
order to the extent permitted by law; (ii) if the Option is an ISO,
is consistent with section 422 of the Code; (iii) is made to the
Company, an affiliate or a person acting as the agent of the
foregoing or is otherwise determined by the Committee to be in the
interests of the Company or an affiliate thereof; or (iv) is made
by the Optionee for no consideration to Immediate Family Members or
to a bona fide trust, partnership or other entity controlled by and
for the benefit of one or more Immediate Family Members. For this
purpose, the term “Immediate Family Members“ mean the
Optionee’s spouse, children, stepchildren, parents,
stepparents, siblings (including half brothers and sisters),
in-laws and other individuals who have a relationship to the
Optionee arising because of a legal adoption. No transfer may be
made to the extent that transferability would cause Form S-8 or any
successor form thereto not to be available to register Shares
related to an award under this Plan, and no Option granted under
the Plan may be transferred for value. The Committee in its
discretion may impose additional terms and conditions upon
transferability.
(G) TERMINATION
OF SERVICE (EXCEPT BY
DEATH). If an
Optionee’s service terminates for any reason other than the
Optionee’s death, then such Optionee’s Option(s) shall
expire on the earliest of the following occasions:
(i) The expiration date
determined pursuant to Subsection (E) above;
(ii) The
date 90 days after the termination of the Optionee’s service
for any reason other than Total and Permanent Disability;
or
(iii) The
date six months after the termination of the Optionee’s
service by reason of Total and Permanent Disability.
Notwithstanding the
foregoing, an Option granted to an Outside Director shall expire on
the date determined pursuant to Subsection (E) above or as such
earlier date as may be set forth in the Stock Option Agreement. The
Optionee may exercise all or part of his or her Option(s) at any
time before the expiration of such Option(s) under the preceding
provisions of this Subsection (G), but only to the extent that such
Option(s) had become exercisable before the Optionee’s
service terminated or became exercisable as a result of such
termination of service. The balance of such Option(s) shall expire
when the Optionee’s service terminates. In the event that the
Optionee dies after the termination of the Optionee’s service
but before the expiration of the Optionee’s Option(s), all or
part of such Option(s) may be exercised (prior to expiration) by
his or her designated beneficiary (if applicable), by the executors
or administrators of the Optionee’s estate or by any person
who has acquired such Option(s) directly from the Optionee by
bequest or inheritance, but only to the extent that such Option(s)
had become exercisable before the Optionee’s service
terminated or became exercisable as a result of such termination of
service.
(H) LEAVES OF ABSENCE. For purposes of
Subsection (G) above, service shall be deemed to continue while the
Optionee is on sick leave or other bona fide leave of absence (as
determined by the Committee). The foregoing notwithstanding, in the
case of an ISO granted under the Plan, service shall not be deemed
to continue beyond the first 90 days of such leave, unless the
Optionee’s reemployment rights are guaranteed by an
applicable statute or by contract.
(I) DEATH OF OPTIONEE. If an Optionee
dies while he or she is in service, then such Optionee’s
Option(s) shall expire on the earlier of the following
dates:
(i) The expiration date
determined pursuant to Subsection (E) above; or
(ii) The
date six months after the Optionee’s death.
Notwithstanding the
foregoing, an Option granted to an Outside Director shall expire on
the date determined pursuant to Subsection (E) above or as such
earlier date as may be set forth in the Stock Option Agreement. All
or part of the Optionee’s Option(s) may be exercised at any
time before the expiration of such Option(s) under the preceding
provisions of this Subsection (I) by his or her designated
beneficiary (if applicable), by the executors or administrators of
the Optionee’s estate or by any person who has acquired such
Option(s) directly from the Optionee by bequest or inheritance, but
only to the extent that such Option(s) had become exercisable
before the Optionee’s death or became exercisable as a result
of the Optionee’s death. The balance of such Option(s) shall
expire when the Optionee dies.
(J) NO RIGHTS AS A STOCKHOLDER. An Optionee, or a
transferee of an Optionee, shall have no rights as a stockholder
with respect to any Shares covered by his or her Option until the
date of the issuance (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the
Company) of a stock certificate for such Shares. No adjustments
shall be made, except as provided in Section 9.
(K) MODIFICATION, EXTENSION AND RENEWAL OF
OPTIONS. Within the
limitations of the Plan, the Committee may modify, extend or renew
outstanding Options, provided that no such
modification, extension or renewal may (i) except as otherwise
provided in Section 9 hereof, reduce the Exercise Price to less
than 100% of the Fair Market Value of the Shares as of the date of
grant either by lowering the Exercise Price, by canceling the
outstanding Option in exchange for cash, other awards or a
replacement Option with a lower Exercise Price, or by the Company
repurchasing an Option with an Exercise Price that is in excess of
the Fair Market Value of the Shares at the time of such repurchase,
(ii) violate the terms and provisions of section 162(m) of the
Code, or (iii) cause the Option to no longer meet the requirements
for exclusion from coverage under section 409A of the Code. The
foregoing notwithstanding, no modification of an Option shall,
without the consent of the Optionee, impair such Optionee’s
rights or increase his or her obligations under such
Option.
(L) RESTRICTIONS ON TRANSFER OF SHARES. Any Shares issued
upon exercise of an Option shall be subject to such forfeiture
conditions, rights of repurchase, rights of first refusal and other
transfer restrictions as the Committee may determine. Such
restrictions shall be set forth in the applicable Stock Option
Agreement and shall apply in addition to any general restrictions
that may apply to all shareholders of Shares.
(A) GENERAL RULE. The entire
purchase price or Exercise Price of Shares issued under the Plan
shall be payable in lawful money of the United States of America at
the time when such Shares are purchased, except as
follows:
(i) In the case of
Shares sold under the terms of a Stock Purchase Agreement subject
to the Plan, payment shall be made only pursuant to the express
provisions of such Stock Purchase Agreement. However, the Committee
(at its sole discretion) may specify in the Stock Purchase
Agreement that payment may be made in one or more of the forms
described in Subsections (F), (G) and (H) below.
(ii) In
the case of an ISO granted under the Plan, payment shall be made
only pursuant to the express provisions of the applicable Stock
Option Agreement. However, the Committee (at its sole discretion)
may specify in the Stock Option Agreement that payment may be made
pursuant to one or more of the forms described in Subsections (B),
(C), (D), (E). (G) or (H) below.
(iii) In
the case of a Non-statutory Option granted under the Plan, the
Committee (at its sole discretion) may accept payment pursuant to
one or more of the forms described in Subsections (B), (C), (D),
(E), (G) or (H) below.
(B) SURRENDER OF STOCK. To the extent
that this Subsection (B) is applicable, payment may be made all or
in part with Shares which have already been owned by the Optionee
or his or her representative for more than 12 months and which are
surrendered to the Company in good form for transfer. Such Shares
shall be valued at their Fair Market Value on the date when the
Shares subject to the Option are purchased under the
Plan.
(C) EXERCISE/SALE. To the extent
that this Subsection (C) is applicable, payment may be made by the
delivery (on a form prescribed by the Company) of an irrevocable
direction to a securities broker approved by the Company to sell
Shares and to deliver all or part of the sales proceeds to the
Company in payment of all or part of the Exercise Price and any
withholding taxes.
(D) EXERCISE/PLEDGE. To the extent
that this Subsection (D) is applicable, payment may be made by the
delivery (on a form prescribed by the Company) of an irrevocable
direction to pledge Shares to a securities broker or lender
approved by the Company, as security for a loan, and to deliver all
or part of the loan proceeds to the Company in payment of all or
part of the Exercise Price and any withholding taxes.
(E) CASHLESS EXERCISE. To the extent
that this Subsection (E) is applicable, payment made be made by
means of a “cashless exercise” in which the Optionee
shall be entitled to receive a stock certificate for the number of
Shares subject to the Option (or portion thereof) exercised equal
to the quotient obtained by dividing [((i) - (ii)) x (iii)] by (i),
where:
(i) is equal to the
aggregate Fair Market Value of the Shares that would be issued upon
exercise of the Option by means of an exercise by the payment of
cash, determined as of the date the Option is
exercised;
(ii) is
equal to the aggregate Exercise Price of the Shares that would be
issued upon exercise of the Option by means of an exercise by the
payment of cash, as may be adjusted by Section 9; and
(iii) is
the number of Shares that would be issued upon exercise of the
Option by means of an exercise by the payment of cash, rather than
a cashless exercise pursuant to this Subsection (E).
The
Company reserves, at any and all times, the right, in the
Company’s sole and absolute discretion, to establish, decline
to approve or terminate any program or procedures for the exercise
of Options by means of a cashless exercise under this
Subsection
(F) SERVICES RENDERED. To the extent
that this Subsection (F) is applicable, Shares may be offered for
sale under the Plan in consideration of services rendered to the
Company or a Subsidiary prior to the offer. If Shares are offered
for sale without the payment of a purchase price in cash, the
Committee shall make a determination (at the time of the award) of
the value of the services rendered by the Offeree and the
sufficiency of the consideration to meet the requirements of
Section 6(C).
(G) PROMISSORY NOTE. To the extent
that this Subsection (G) is applicable, a portion of the purchase
price or Exercise Price, as the case may be, of Shares issued under
the Plan may be payable by a full recourse promissory note,
provided that (i) the par value of such Shares must be paid in
lawful money of the United States of America at the time when such
Shares are purchased, (ii) the Shares are security for payment of
the principal amount of the promissory note and interest thereon,
and (iii) the interest rate payable under the terms of the
promissory note shall be no less than the minimum rate (if any)
required to avoid the imputation of additional interest under the
Code. Subject to the foregoing, the Committee (at its sole
discretion) shall specify the term, interest rate, amortization
requirements (if any) and other provisions of such promissory note.
Notwithstanding the foregoing, the purchase price or Exercise Price
of Shares issued under the Plan to a member of the Board of
Directors or an executive officer (or equivalent thereof) of the
Company shall not be payable with a promissory note.
(H) OTHER FORMS OF PAYMENT. To the extent
that this Subsection (H) is applicable, payment may be made in any
other form approved by the Committee, consistent with applicable
laws, regulations and rules.
(A) GENERAL. In the event of a
subdivision of the outstanding Shares, a declaration of a dividend
payable in Shares, a declaration of a dividend payable in a form
other than Shares in an amount that has a material effect on the
value of Shares, a combination or consolidation of the outstanding
Shares (by reclassification or otherwise) into a lesser number of
Shares, a recapitalization, a spinoff or a similar occurrence, the
Committee shall make appropriate adjustments in one or more of (i)
the number and type of Shares available for future grants under
Section 5, (ii) the limitations set forth in Sections 5(B) and(C),
(iii) the number and type of Shares covered by each outstanding
Option, and (iii) the purchase price under each outstanding offer
to purchase and the Exercise Price under each outstanding
Option.
Notwithstanding the
foregoing, the adjustments described in this Section 9(A) shall be
made in compliance with: (x) sections 422 and 424 of the Code with
respect to ISOs; (y) section 162(m) of the Code with respect to
“qualified performance-based compensation” unless
specifically determined otherwise by the Committee; and (z) section
409A of the Code with respect to Non-statutory Options to the
extent the Committee determines it is necessary to continue to
avoid its application to such Options.
(B) REORGANIZATIONS. In the event that
the company is a party to a merger or other reorganization,
outstanding Options shall be subject to the agreement of merger or
reorganization. Such agreement may provide, without limitation, for
the assumption of outstanding Options by the surviving corporation
or its parent, for their continuation by the Company (if the
Company is a surviving corporation), for payment of a cash
settlement equal to the difference between the amount to be paid
for one Share under such agreement and the Exercise Price, or for
the acceleration of their exercisability followed by the
cancellation of Options not exercised, in all cases without the
Optionees’ consent. Any cancellation shall not occur until
after such acceleration is effective and Optionees have been
notified of such acceleration. In the case of Options that have
been outstanding for less than 12 months, a cancellation need not
be preceded by acceleration.
(C) RESERVATION
OF RIGHTS. Except as
provided in this Section 9, an Optionee or Offeree shall have no
rights by reason of any subdivision or consolidation of shares of
stock of any class, the payment of any dividend or any other
increase or decrease in the number of shares of stock of any class.
Any issue by the Company of shares of stock of any class, or
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 Exercise Price of Shares subject to an
Option. The grant of an Option pursuant to the 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, to merge or consolidate, to
dissolve, liquidate, sell or transfer all or any part of its
business or assets, or to undertake any other corporate act or
proceeding by the Company.
Shares
shall not be issued under the Plan unless the issuance and delivery
of such Shares complies with (or is exempt from) all applicable
requirements of law, including (without limitation) the Securities
Act of 1933, as amended, the rules and regulations promulgated
thereunder, state securities laws and regulations, and the
regulations of any stock exchange on which the Company’s
securities may then be listed.
Neither
the Plan nor any Option shall be deemed to give any individual a
right to remain an employee, consultant or director of the Company
or a Subsidiary. The Company and its Subsidiaries reserve the right
to terminate the service of any employee, consultant or director,
at any time, with or without cause, subject to applicable laws, the
Company’s certificate of incorporation and by-laws and a
written employment agreement (if any). No person shall have the
right to be selected to receive an award under this Plan, or,
having been so selected, to be selected to receive a future award.
The Committee’s determination under the Plan (including,
without limitation, determination of the Employees who shall be
granted awards, the form, amount and timing of such awards, the
terms and conditions of awards) need not be uniform and may be made
by it selectively among eligible Employees who receive or are
eligible to receive awards under the Plan, whether or not such
eligible Employees are similarly situated.
(A) TERM OF THE PLAN. The provisions of
the Plan as set forth herein shall be effective retroactively to
the Plan’s Original Effective Date, except as otherwise
expressly provided herein, subject to the approval of this amended
and restated Plan by the shareholders of the Company. The Plan
shall terminate automatically after 15 years on March 6, 2032,
except that no ISO may be granted under this Plan on or after the
tenth anniversary of the Original Effective Date of this Plan
(i.e., March 7, 2027), and the Plan may be terminated on any
earlier date pursuant to Subsection (B) below.
(B) RIGHT TO
AMEND OR TERMINATE THE
PLAN. The Board of
Directors may, subject to applicable law, amend, suspend or
terminate the Plan at any time and for any reason. An amendment to
the Plan shall require stockholder approval only to the extent
required by applicable law, regulation or securities exchange
requirements.
(C) EFFECT OF AMENDMENT OR
TERMINATION. No Shares shall
be issued or sold under the Plan after the termination thereof,
except upon exercise of an Option granted prior to such
termination. The termination of the Plan or any amendment thereto
shall not materially and adversely affect any Share previously
issued or any Option previously granted under the Plan without the
Optionee’s written consent thereto.
To
record the adoption and approval of this amended and restated Plan
by the Board of Directors and at least a majority vote of the
holders of Shares, the Company has caused its authorized officer to
execute the same.
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MEDITE CANCER
DIAGNOSTICS, INC.,
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a
Delaware corporation
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By:
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____________________
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David E.
Patterson
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Chief
Executive Officer
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EXHIBIT
B
CERTIFICATE
OF AMENDMENT
TO
THE
CERTIFICATE
OF INCORPORATION
OF
MEDITE
CANCER DIAGNOSTICS, INC.
Pursuant
to Section 242 of the
General
Corporation Law of the State of Delaware
MEDITE
Cancer Diagnostics, Inc., a Delaware corporation (the
“Corporation”), does hereby certify as
follows:
1. The
Board of Directors of the Corporation (the “Board”),
acting by Unanimous Written Consent in accordance with Section
141(f) of the General Corporation Law of the State of Delaware (the
“DGCL”) adopted a resolution authorizing the
Corporation to increase the number of shares of the common stock,
$.001 par value per share (the “Common Stock”) that the
Corporation is authorized to issue from 50,000,000 to 100,000,000
and to file this Certificate of Amendment:
Article
FOURTH of the Certificate of Incorporation shall be amended by
deleting Section 4.1 in its entirety and submitting therefor the
following:
“Section 4.1.
The total number of shares of stock which the Corporation is
authorized to issue is One Hundred Ten Million (110,000,000)
shares, comprised of One Hundred Million (100,000,000) shares of
common stock, par value $0.001 per share, and Ten Million
(10,000,000) shares of preferred stock, par value $0.001 per
share.”
2. That
in lieu of a meeting and vote of stockholders, the holders of a
majority in interest of record of the issued and outstanding shares
of Common Stock have given written consent to said amendment in
accordance with the provisions of Section 228 of the
DGCL.
3. That
the aforesaid amendment was duly adopted in accordance with the
applicable provisions of Section 242 of the DGCL.
IN
WITNESS WHEREOF, MEDITE Cancer Diagnostics, Inc. has caused this
Certificate of Amendment to be duly executed in its corporate name
this ____ day of ________, 2017.
MEDITE
CANCER DIAGNOSTICS, INC.
By:
_____________________
Name:
Title: