Nevada
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33-26787-D
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90-0275169
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(State
or other
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(Commission
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(I.R.S.
Employer
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Jurisdiction
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File
Number)
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Identification
No.)
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of
incorporation)
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8022 Southpark Circle,
Suite 100, Littleton, CO
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80120
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(Address
of principal executive offices)
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(Zip
Code)
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[ ]
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR240.14d-2(b))
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[ ]
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR240.13e-4(c))
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$1,000,
plus 1,000 shares of Zynex common stock, for each Board meeting and for
each Audit Committee meeting in person (with these amounts being paid for
both an Audit Committee and Board meeting held on the same day as if they
were one meeting). Instead of these amounts, the Chair of the
Audit Committee receives $1,500, plus 1,500 shares of Zynex common stock,
for each Audit Committee meeting in person or for each Audit Committee
meeting and Board meeting in person held on the same
day.
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$500
for any telephonic Board meeting or telephone meeting of the Audit
Committee;
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A
“sign-on bonus” for each non-employee director of a fully vested option to
purchase 12,000 shares of Company common stock at an exercise price equal
to the fair market value on the date of grant ($5.10). The
options have a term of ten years and are being issued under the existing
2005 Stock Option Plan of the Company. The Company has
registered the shares issuable under the
Plan.
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The
authority of the Board of Directors to determine the terms and conditions
of preferred stock issued in series has been simplified. (There
is no outstanding preferred stock of Zynex.) Provisions stating
required terms for the shares of preferred stock were
deleted. One such required term was that the dividends of
outstanding shares of preferred stock must be paid before any dividends
were paid on common stock in the same dividend period. Another
deleted requirement was that if the assets available for distribution to
holders of shares of preferred stock of all series, upon voluntary or
involuntary liquidation or dissolution, would be insufficient to pay the
holders the full preferential amount to which they were entitled, then the
assets would be distributed ratably among shares of all series of
preferred stock in accordance with the respective preferential
amounts. Under the Amended Articles, all such terms relating to
dividends and the dissolution and liquidation rights of any series of
preferred stock may be determined by the Board of Directors and may be
different among the series. In addition, the Board of Directors
is authorized in the Amended Articles to increase or decrease the number
of shares of any series of preferred stock subsequent to the issuance of
shares of that series (but not below the number of shares of the series
then outstanding).
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Per
the Amended Articles, the number of directors may be determined, increased
or reduced in the manner provided in the Bylaws of the
Corporation. Previously the Board was required to have only one
director.
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The
indemnification provision was simplified to state that Zynex shall
indemnify its officers and directors and may indemnify any other person to
the fullest extent permitted by law. In the Articles of
Incorporation previously in effect, indemnification rights were subject to
exclusions which were somewhat different than the Nevada corporate
statutes, including an exclusion from indemnification if the person was
adjudged to be liable for his own negligence or misconduct in the
performance of the person’s duties.
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The
Amended Articles provide that Zynex is permitted to redeem, repurchase or
make distributions, such as dividends, with respect to the shares of its
capital stock in all circumstances other than where doing so would cause
the corporation to be unable to pay its debts as they become due in the
usual course of business. As allowed by the Nevada corporate
statutes, this provision means that a second requirement for distributions
is no longer applicable. This second requirement would have
been that the Corporation’s total assets must not be less than the sum of
total liabilities plus the amount needed for preferential rights of
stockholders.
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The
provision on the elimination of personal monetary liability of directors
has been simplified to refer to the elimination of such liability to the
maximum extent permitted by the Nevada Revised Statutes. The
prior Articles stated those situations where personal liability could not
be eliminated.
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Both
the Amended Articles and the prior Articles do not opt out from
anti-takeover statutes of the Nevada corporate statutes. These
statutes concern requirements for combinations with interested
stockholders and a vote of stockholders on the voting rights of a person
who acquires a controlling
interest.
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The
Amended Bylaws provide that actions of the stockholders on a matter, other
than the election of directors, is approved if the number of votes cast in
favor of the action exceeds the number of votes cast in opposition on the
action, unless the question is one upon which the Nevada statutes, the
Articles of Incorporation, other Bylaw provisions or express agreements
require a different vote. This provision allows broker
non-votes and abstentions not to be treated as a negative vote on a matter
presented to the stockholders. Under the prior Bylaws, a
majority of outstanding shares present in person or by proxy were required
for an action by the stockholders. In addition to stating a
different voting standard, the provision in the prior Bylaws could have
resulted in broker non-votes and abstentions being treated as a negative
vote.
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The
Amended Bylaws allow stockholders entitled to exercise a majority of the
voting power of Zynex to request a special meeting of
stockholders. Under the prior Bylaws, a special meeting of
stockholders could be called at the request of 30% of the shares entitled
to vote.
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The
Amended Bylaws modified a pre-notification provision for any nominations
by a stockholder of a person for the election as a director or a
stockholder’s proposal of business to be considered at an annual meeting
of stockholders. The Amended Bylaws state that nominations or
proposals and related information must be delivered to the Secretary of
Zynex at the principal executive office not earlier than 150 days and no
later than 120 days prior to the first anniversary date of mailing of the
notice for the preceding year’s annual meeting, with a different date in
case an annual meeting is advanced or delayed by 30 days from the date of
the preceding year’s annual meeting. The prior Bylaws had a
pre-notification period of not less than 50 days no more than 90 days
prior to the date of the annual
meeting.
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The
Amended Bylaws do not contain indemnification provisions. See
the above for information on Indemnification Agreements with directors and
executive officers. Prior to the Amended Bylaws, the Bylaws had
a provision on indemnification similar to the Nevada corporate statutes
except that some exclusions from indemnification were not the same as the
statutes.
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The
prior Bylaws stated that, in the event Zynex received a takeover offer,
the Board “shall consider” all relevant factors in evaluating the offer,
including but not limited to the terms of the offer and the potential
economic and social impact on the Company’s stockholders, employees,
customers, credits and community in which it operates. The
Amended Bylaws do not address this subject, which leaves in place the
Nevada corporate statutes providing that directors and officers “may
consider” the interests of employees, suppliers, creditors, customers, the
economy of the state and nation and the interests of the community and of
society.
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Exhibit
No.
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Document
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10.1
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Amended
and Restated Articles of Incorporation of Zynex, Inc.
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10.2
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Amended
and Restated Bylaws of Zynex, Inc.
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10.3
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Form
of Indemnification Agreement for directors and executive officers (October
2008)
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10.4
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Code
of Business Conduct and Ethics (October 2008)
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10.5
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Audit
Committee Charter (October 2008)
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99.1
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Press
Release dated October 7, 2008 regarding the election of directors and
other matters
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Zynex,
Inc.
(Registrant)
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Date: October 7, 2008
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By:
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/s/ Fritz Allison | |
Fritz
Allison
Chief
Financial Officer
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Exhibit
No.
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Document
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10.1
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Amended
and Restated Articles of Incorporation of Zynex, Inc.
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10.2
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Amended
and Restated Bylaws of Zynex, Inc.
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10.3
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Form
of Indemnification Agreement for directors and executive officers (October
2008)
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10.4
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Code
of Business Conduct and Ethics (October 2008)
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10.5
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Audit
Committee Charter (October 2008)
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99.1
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Press
Release dated October 7, 2008 regarding the election of directors and
other matters
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1.
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I
am duly elected and acting Secretary of Zynex, Inc., a Nevada
corporation.
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2.
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Attached
hereto is a true and correct copy of the Amended and Restated Bylaws
adopted by the Board of Directors on October 3,
2008.
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ZYNEX,
INC.
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By:
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__________________,
__________
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Address:
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AGREED
TO AND ACCEPTED:
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“
Indemnitee
”
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_________________________________
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Address:
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_______________________________
_______________________________
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_______________________________
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_______________________________
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Make sure you have all
the facts
. In order to reach the right solutions, we
must be as fully informed as
possible.
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Ask
yourself: What specifically am I being asked to
do? Does it seem unethical or improper
? This
will enable you to focus on the specific question you are faced with, and
the alternatives you have. Use your judgment and common sense;
if something seems unethical or improper, it probably
is.
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Clarify your
responsibility and role
. In most situations, there is
shared responsibility. Are your colleagues
informed? It may help to get others involved and discuss the
problem.
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Discuss the problem
with your supervisor or an executive officer
. This is
the basic guidance for all situations. In many cases, your
supervisor or the executive officer will be more knowledgeable about the
question, and will appreciate being brought into the decision-making
process. Remember that it is your supervisor’s or an executive
officer’s responsibility to help solve
problems.
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Seek help from Company
resources
. In the rare case where it may not be
appropriate to discuss an issue with your supervisor, or where you do not
feel comfortable approaching your supervisor with your question, discuss
it with Chief Financial Officer. If that also is not
appropriate, contact the Chairman of the audit committee of the Company’s
Board of Directors. If you prefer to write, address your
concerns to: Chairman of Audit Committee, Confidential, Zynex, Inc., 8022
Southpark Circle, Suite 100, Littleton, Colorado
80120.
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You may report ethical
violations in confidence and without fear of
retaliation
. If your situation requires that your
identity be kept secret, your anonymity will be protected. The
Company does not permit retaliation of any kind against employees for good
faith reports of ethical
violations.
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Review
with management and the independent auditor the annual audited financial
statements to be included in the Company’s Annual Report on Form 10-K.
Based on these reviews, the Committee shall report to the Board whether
the Committee recommends inclusion of the annual audited financial
statements in the Company’s Form
10-K.
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Review
with management and the independent auditor the interim financial
statements to be included in the Company’s Quarterly Report on Form
10-Q. The Committee shall discuss with the independent auditor
the results of its review of each interim financial statement for a
quarter.
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Discuss
with management and the independent auditor significant financial
reporting issues and judgments made in connection with the preparation of
the Company’s financial statements, including the effect of alternative
acceptable accounting policies on the Company’s financial
statements.
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Prepare
the report required by the rules of the Securities and Exchange Commission
to be included in the Company’s proxy statement for any annual
meeting.
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Discuss
with management and the independent auditor the effect of regulatory and
accounting initiatives as well as off-balance sheet structures on the
Company’s financial statements.
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Discuss
with management the Company’s major financial risk exposures and the steps
management has taken to monitor and control such exposures, including the
Company’s risk assessment and risk management
policies.
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Be
directly responsible for the appointment, compensation, retention,
termination and oversight of the work of the independent auditor engaged
for the purpose of preparing or issuing an audit report or performing
other audit, review or attest services for the Company (including the
resolution of disagreements between management and the independent auditor
regarding financial reporting). The independent auditor must
report directly to the Committee.
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Obtain
and review a report from the independent auditor at least annually
regarding (a) the auditor’s internal quality-control procedures, (b) any
material issues raised by the most recent quality-control review of the
firm, or by any inquiry or investigation by governmental or professional
authorities within the preceding five years respecting one or more
independent audits carried out by the firm, (c) any steps taken to deal
with any such issues, and (d) all relationships between the independent
auditor and the Company, including those consistent with Independence
Standards Board Standard 1. The Committee shall evaluate the
experience, qualifications, performance and independence of the
independent auditor, including considering whether the provision of
non-audit services is compatible with maintaining the auditor’s
independence, and taking into account the opinions of
management. The Committee shall present its conclusions to the
Board and, if so determined by the Committee, recommend that the Board
take additional action to satisfy itself of the qualifications,
performance and independence of the auditor. As part of these
matters, the Committee shall be responsible for actively engaging in a
dialogue with the auditor with respect to any disclosed relationships or
services that may impact the objectivity and independence of the auditor
and for taking, or recommending that the full Board take, appropriate
action to oversee the independence of the independent
auditor.
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Discuss
with the independent auditors the overall scope and plans for its
audit. Also, discuss with management and the independent
auditors the adequacy and effectiveness of the Company’s accounting and
financial controls. Meet separately with the independent
auditors, with and without management present, to discuss the results of
the audit and any other
examinations.
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Discuss
the matters required to be communicated to the Committee by the
independent auditors under generally accepted auditing
standards.
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Review
and pre-approve all audit engagement fees and terms and all non-audit
services with the independent auditor. The Committee shall
consult with management but shall not delegate these responsibilities to
management.
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Review
any proposed employment offer by the Company to an employee or former
employee of the independent auditor and discuss with the management the
actions intended to be taken by management and the independent auditor to
ensure that the auditor maintains
independence.
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Obtain
from the independent auditor assurance that Section 10A of the Securities
Exchange Act of 1934, in regard to the occurrence of illegal acts, has not
been implicated.
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Discuss
with management and the independent auditor any correspondence with
regulators or governmental agencies and any employee complaints or
published reports which raise material issues regarding the Company’s
financial statements or accounting
policies.
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Discuss
with the Company’s general counsel legal matters that may have a material
impact on the financial statements or the Company’s compliance
policies.
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Approve
or reject all “related party” transactions. Review reports and disclosures
of related party transactions prepared by
management.
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Discuss
with management and the independent auditors the quality and adequacy of
the Company’s internal controls and any internal audit functions’
organization, responsibilities, plans, results, budget and staffing, as
well as providing oversight to internal audit activities, including review
of significant reports prepared by the employees performing internal audit
functions and management’s
responses.
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Establish
and oversee the Company’s anonymous complaint policy contained within the
Company’s Code of Business Conduct and Ethics regarding the confidential,
anonymous submission by employees of reports regarding questionable
accounting practices, internal accounting controls or auditing matters and
the investigation, disposition and retention of such
reports.
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While
the Committee has the responsibilities and powers set forth in this
Charter, it is not the duty of the Committee to plan or conduct audits or
to determine that the Company’s financial statements and disclosures are
complete and accurate and are in accordance with generally accepted
accounting principles and applicable rules and
regulations. These are the responsibilities of management and
the independent auditor. It is not the duty of the Committee to
conduct investigations or to assure Company’s compliance with laws and
regulations.
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