<PAGE> 1
As filed with the Securities and Exchange Commission on August 15, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
VITALCOM INC.
(Exact Name of Registrant as Specified in Charter)
Delaware 33-0538926
- ------------------------ -----------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
15222 Del Amo Avenue
Tustin, California 92680
(Address of Principal Executive Offices)
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1993 STOCK OPTION PLAN (As Amended Through May 23, 1997)
1996 STOCK OPTION PLAN
(Full Title of the Plan)
------------
Shelley B. Thunen
Chief Financial Officer
VitalCom Inc.
15222 Del Amo Avenue
Tustin, California 92780
(714) 546-0147
(Name, Address, and Telephone Number, Including Area Code,
of Agent for Service)
------------
Copy to:
BARRY E. TAYLOR, ESQ.
MARK E. BONHAM, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED TO BE REGISTERED SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.0001 par value
To be issued under 1993 Stock Option Plan 750,000 shares(1) (2) $3,328,581.00(2) $1,008.66
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To be issued under 1996 Stock Option Plan 100,000 shares (3) $ 520,627.00(3) $ 157.77
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TOTAL . . . . . . . . . . . . . . . . 850,000 shares $3,849,208.00 $1,166.43
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</TABLE>
(1) An additional 839,885 shares reserved for issuance under the 1993 Stock
Option Plan were registered under the Registration Statement on Form
S-8/S-3, file number 333-03727 with the Securities and Exchange Commission
on May 14, 1996.
(2) Computed in accordance with Rule 457 under the Securities Act of 1933, as
amended. Such computation is based on an estimated exercise price of $4.75
per share, which represents the weighted average exercise price with
respect to 126,215 shares issuable upon exercise of granted options, and an
estimated exercise price of $4.375 per share, which represents the average
of the high and low prices of a share of VitalCom, Inc. common stock as
reported in the Nasdaq National Market on August 14, 1997.
(3) Computed in accordance with Rule 457 under the Securities Act of 1933, as
amended. Such computation is based on an estimated exercise price of $5.52
per share, which represents the weighted average exercise price with
respect to 72,600 issuable upon exercise of granted options, and an
estimated exercise price of $4.375 per share, which represents the average
of the high and low prices of a share of VitalCom Inc. Common Stock as
reported in the Nasdaq National Market on August 14, 1997.
<PAGE> 2
VITALCOM INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") by VitalCom Inc. (the
"Company"):
(1) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A/A filed January
16, 1996 pursuant to Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") as amended on
February 13, 1996.
(2) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
(3) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997.
(4) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation limits the monetary
liability of its directors to the Company or its stockholders for breach of
such director's fiduciary duty to the fullest extent permitted by the Delaware
General Corporation Law (the "DGCL") or, if the DGCL is not applicable, to the
fullest extent permissible under applicable law. In addition, the Company's
charter authorizes the Company by bylaw, agreement or otherwise to indemnify
directors, officers, employees and agents in excess of the indemnification
permitted by applicable law.
Under the Company's by-laws, each person who was or is a party or is
threatened to be made a party to, or is involved in, any proceeding by reason
of the fact that he or she is or was a director or officer of the Company, or
is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation or other enterprise, shall be
indemnified and held harmless by the Company to the fullest extent
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permitted by the DGCL against all costs, charges, expenses, liabilities and
losses (including attorney's fees) reasonably incurred or suffered by such
person in connection with such proceeding. Such right to indemnification
includes the right to be paid by the Company the expenses incurred in defending
any such proceeding in advance of its final disposition. The Board of
Directors has discretion to provide indemnification to employees and agents of
the Company with the same scope and effect as the foregoing indemnification of
directors and officers. The foregoing right to indemnification and advancement
of expenses under the Company's by-laws is not exclusive of any other right
which any person may have or acquire under the Company's charter, any statute,
agreement or otherwise.
In addition, the Company has entered into indemnification agreements
with each of its directors and executive officers and has obtained a directors'
and officers' liability insurance policy that insures such persons against the
cost of defense, settlement or payment of judgments under certain
circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 1993 Stock Option Plan, as amended through May 23, 1997, and
form of agreement thereunder.
4.2* 1996 Stock Option Plan and form of agreement thereunder.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to legality of securities being registered.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Power of Attorney (see page II-4).
</TABLE>
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* Incorporated by reference to exhibit filed with the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1996.
ITEM 9. UNDERTAKINGS.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to law, the Company's Certificate of Incorporation,
Bylaws or indemnification agreements, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in a successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered hereunder, the Company will, unless in the opinion of its counsel
the matter has already been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tustin, State of California, on this 14th day of
August, 1997.
VITALCOM INC.
By: /s/ SHELLEY B. THUNEN
--------------------------
Shelley B. Thunen,
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Donald W. Judson and Shelley B. Thunen,
and each of them, as his or her attorney-in-fact, with full power of
substitution in each, for him or her in any and all capacities to sign any
amendments to this Registration Statement on Form S-8, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact, or his substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ DONALD W. JUDSON Chairman of the Board, President and Chief August 14, 1997
- -------------------------------------- Executive Officer (Principal Executive Officer)
Donald W. Judson
/s/ SHELLEY B. THUNEN Chief Financial Officer (Principal Financial and August 14, 1997
------------------------------------- Accounting Officer)
Shelley B. Thunen
/s/ JACK W. LASERSOHN Director August 14, 1997
-------------------------------------
Jack W. Lasersohn
/s/ DAVID L. SCHLOTTERBECK Director August 14, 1997
-------------------------------------
David L. Schlotterbeck
/s/ ELIZABETH H. WEATHERMAN Director August 14, 1997
-------------------------------------
Elizabeth H. Weatherman
/s/ TIMOTHY T. WEGLICKI Director August 14, 1997
-------------------------------------
Timothy T. Weglicki
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 1993 Stock Option Plan, as amended through May 23, 1997, and
form of agreement thereunder.
4.2* 1996 Stock Option Plan and form of agreement thereunder.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to legality of securities being registered.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Power of Attorney (see page II-4).
</TABLE>
* Incorporated by reference to exhibit filed with the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1996.
<PAGE> 1
EXHIBIT 4.1
VITALCOM INC.
1993 STOCK OPTION PLAN
(AMENDED AND RESTATED APRIL 1997)
1. Purposes of the Plan.
The purposes of this 1993 Stock Option Plan (the "Plan") of
VITALCOM INC., a Delaware corporation (the "Company"), are (a) to insure the
retention of the services of existing executive personnel, key employees and
directors of the Company and its subsidiaries or its affiliates; (b) to attract
and retain competent new executive personnel and key employees; and (c) to
provide incentive to all such personnel and employees to devote their utmost
effort and skill to the advancement and betterment of the Company, by
permitting them to participate in the ownership of the Company and thereby in
the success and increased value of the Company.
2. Shares Subject to the Plan.
The shares of stock subject to the incentive options having
the terms and conditions set forth in Section 6 below (hereinafter "incentive
options") and/or nonqualified options having the terms and conditions set forth
in Section 7 below (hereinafter "nonqualified options") and other provisions of
the Plan shall be shares of the Company's authorized but unissued or reacquired
Common Stock (herein sometimes referred to as the "Common Stock"). The total
number of shares of the Common Stock of the Company which may be issued under
the Plan shall not exceed, in the aggregate, 839,885 shares. The limitations
established by the preceding sentence shall be subject to adjustment as
provided in Section 8 below. In the event that any outstanding incentive
option or nonqualified option granted under the Plan can no longer under any
circumstances be exercised, for any reason, the shares of Common Stock
allocable to the unexercised portion of such incentive option or nonqualified
option may again be subject to grant or issuance under the Plan.
3. Eligibility.
a. Incentive Options. Officers and other key employees
of the Company or of any subsidiary corporation (including directors if they
are also employees of the Company or a subsidiary), as may be determined by the
Board or the Committee, who qualify for incentive stock options under the
applicable provisions of the Internal Revenue Code, will be eligible for
selection to receive incentive stock options under the Plan. An employee who
has been granted an incentive option may, if otherwise eligible, be granted a
nonqualified option or options or an additional incentive option or options if
the Board or Committee shall so determine.
b. Nonqualified Options. Officers, other key employees
of the Company or of any subsidiary corporation, directors and consultants to
the Company or any subsidiary corporation will be eligible to receive
nonqualified options under the Plan. An individual who has been granted a
<PAGE> 2
nonqualified option may, if otherwise eligible, be granted an incentive option
or options or an additional nonqualified option or options if the Board or
Committee shall so determine.
c. Limitations. The following limitations shall apply
to grants of options to employees of the Company:
i. No employee of the Company shall be granted,
in any fiscal year of the Company, options to purchase more than 400,000 shares
of Common Stock of the Company.
ii. In connection with his or her initial
employment, an employee of the Company may be granted options to purchase up to
an additional 400,000 shares of Common Stock of the Company which shall not
count against the limit set forth in subsection i. above.
iii. The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company's capitalization
as described in Section 8.
iv. If an option is canceled in the same fiscal
year of the Company in which it was granted (other than in connection with a
transaction described in Section 8), the canceled option will be counted
against the limits set forth in subsections i. and ii. above. For this
purpose, if the exercise price of an option is reduced, the transaction will be
treated as a cancellation of the option and the grant of a new option.
4. Administration of the Plan.
a. This Plan shall be administered by a committee (the
"Committee") of "non-employee directors" within the meaning of Rule 16b-3 of
the Securities Exchange Act of 1934, as amended. Such Committee shall be
appointed by, and serve at the pleasure of, the Board of Directors.
b. The Committee shall have full and final authority to
determine the persons to whom, and the time or times at which, incentive
options or nonqualified options shall be granted, the number of shares to be
represented by each incentive option and nonqualified option and the
consideration to be received by the Company upon the exercise thereof; to
interpret the Plan; to establish, amend and rescind rules and regulations
relating to the Plan; to determine the form and content of the incentive
options or nonqualified options to be granted under the Plan; to determine the
identity or capacity of any persons who may be entitled to exercise a
participant's rights under any incentive option or nonqualified option under
the Plan; to correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any incentive option or nonqualified option in
the manner and to the extent the Board or Committee deems desirable to carry
the Plan, incentive option or nonqualified option into effect; to accelerate
the exercise date of any incentive option or nonqualified option; to provide
for an option to the Company to repurchase any shares issued upon exercise of
an option upon termination of employment; and to make all other determinations
necessary or advisable for the administration of the Plan, but only to the
extent not contrary to the express provisions of the Plan. Any action,
decision, interpretation or determination by the
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Committee with respect to the application or administration of the Plan shall
be final and binding on all participants and prospective participants.
5. Option Price of Shares.
a. Incentive Options. The exercise price of the shares
of Common Stock covered by each incentive option granted under the Plan shall
not be less than the fair market value of such shares on the date the incentive
option is granted; provided, however, that the exercise price shall not be less
than 110% of the fair market value if the person to whom such options are
granted owns 10% or more of the total combined voting power of all classes of
stock of the Company or of its parent or subsidiary corporation.
b. Nonqualified Options. The exercise price of the
shares of Common Stock covered by each nonqualified option granted under the
Plan shall not be less than the fair market value of such shares on the date
the nonqualified option is granted.
c. Fair Market Value. For purposes of this Section 5,
fair market value shall, if the Common Stock is not listed or admitted to
trading on a stock exchange or The Nasdaq National Market on the
over-the-counter market, be the average of the closing bid price and asked
price of the Common Stock in the over-the-counter market on the date the
incentive option or nonqualified option is granted or, if the Common Stock is
then listed or admitted to trading on any stock exchange or The Nasdaq National
Market, the closing sale price on such day on the principal stock exchange on
which the Common Stock is then listed or admitted to trading or The Nasdaq
National Market, as the case may be. If no closing bid and asked prices are
quoted on such day, or if no sale takes place on such day on such principal
exchange or on The Nasdaq National Market, then the average of the closing bid
and asked prices on the next preceding day on which such prices were quoted, or
closing sale price of the Common Stock on such principal exchange or The Nasdaq
National Market on the next preceding day on which a sale occurred, as the case
may be, shall be deemed to be the fair market value of the Common Stock.
During such times as there is not a market price available, the fair market
value of the Company's Common Stock shall be determined by the Committee, which
shall consider, among other facts which it considers to be relevant, the book
value of such stock and the earnings of the Company. The exercise price shall
be subject to adjustment as provided in Section 8 below.
6. Terms and Conditions of Incentive Options.
Each incentive option granted pursuant to this Plan shall be
evidenced by a written Option Agreement which shall specify that the options
subject thereto are incentive options within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended. The granting of an incentive option
shall take place at the time of Committee action granting the option. The
Option Agreement shall be in such form as the Committee shall, from time to
time, recommend, but shall comply with and be subject to the following terms
and conditions:
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<PAGE> 4
a. Medium and Time of Payment. The exercise price of an
incentive option shall be payable (i) in United States dollars payable in cash,
certified check, or bank draft; (ii) subject to any legal restrictions on the
acquisition or purchase of its shares by the Company, by the delivery of shares
of Common Stock which (x) in the case of shares acquired upon exercise of an
option have been owned by the optionee for more than six (6) months on the date
of surrender and (y) have an aggregate fair market value on the date of
surrender equal to the aggregate exercise price of the shares as to which the
option is being exercised; (iii) in the discretion of the Committee, by the
issuance of a promissory note in a form acceptable to the Committee; (iv)
delivery of a properly executed exercise notice together with such other
documentation as the Committee and broker, if applicable, shall require to
effect an exercise of the option and delivery to the Company of the sale or
loan proceeds required to pay the exercise price; or (v) any combination of
(i), (ii), (iii) or (iv) above.
b. Number of Shares. The incentive option shall state
the total number of shares to which it pertains.
c. Term of Incentive Option. Each incentive option
granted under the Plan shall expire within a period of not more than ten (10)
years from the date the incentive option is granted; provided, however, that
the incentive option shall expire within a period of not more than five (5)
years if granted to a person who owns more than 10% of the combined voting
power of all classes of stock of the Company or of its parent or subsidiary
corporation.
d. Date of Exercise. Each incentive stock option
granted pursuant to this Plan shall become exercisable on each successive
anniversary of the grant date of such options in increments of twenty five
percent (25%); provided, however, that in the discretion of the Committee,
individual Option Agreements may contain different exercise schedules.
e. Termination of Association Except Upon Death or
Disability. In the event of an optionee's termination of association with the
Company (as hereinafter defined) for any reason other than his death or
disability, (i) all incentive options granted to any such optionee pursuant to
this Plan which are not exercisable at the date of such termination of
association shall terminate immediately and become void and of no effect, and
(ii) all incentive options granted to any such optionee pursuant to this Plan
which are exercisable at the date of such termination of association may be
exercised (but only to the extent such options were exercisable as of the date
of such termination of association) at any time within three (3) months of the
date of such termination of association, but in any event no later than the
date of expiration of the incentive option period, and if not so exercised
within such time shall become void and of no effect at the end of such time.
For purposes of this Plan, the term "termination of association" with the
Company shall mean (i) for any person who is an employee of the Company or a
subsidiary of the Company but not also a director of the Company, the cessation
of such person's employment with the Company or a subsidiary of the Company, or
any corporation or a parent or subsidiary of a corporation issuing and assuming
an option in a transaction to which Section 424(a) of the Internal Revenue Code
applies (collectively, an "Affiliate"), (ii) for any person who is both a
director of the Company and an employee of the Company or a subsidiary or
Affiliate of the Company, the cessation of both the employment and status as a
director of such person, and (iii) for any person who is a director of the
Company but not
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<PAGE> 5
also an employee of the Company or a subsidiary of the Company, the cessation
of such person's status as a director of the Company.
f. Death or Disability of Optionee. In the event of an
optionee's termination of association with the Company by reason of his or her
death or disability, (i) all incentive options granted to such person pursuant
to this Plan which are not exercisable at the date of such termination of
association shall terminate immediately and become void and of no effect, and
(ii) all incentive options granted to such person pursuant to this Plan which
are exercisable at the date of such termination of association may be exercised
(but only to the extent they were exercisable as of the date of such
termination of association) at any time within one (1) year after the
optionee's termination of association as a result of such death or disability,
but in any event no later than the date of expiration of the incentive option
period, by such optionee, or in the event of death, by the executors or
administrators of the optionee's estate or by any person or persons who shall
have acquired the incentive option directly from the optionee by bequest or
inheritance. At the end of such one (1) year period, all incentive options
held by such optionee, to the extent they remain unexercised, shall terminate
and become void and of no effect.
g. Rights as a Stockholder. An optionee or a transferee
of an incentive option shall have no rights as a stockholder with respect to
any shares of Common Stock covered by his or her incentive option until the
date of the issuance of a share certificate to him or her for such shares. No
adjustment shall be made for dividends or distributions or other rights for
which the record date is prior to the date such share certificate is issued.
h. Nonassignability of Rights. No incentive option
shall be assignable or transferable by the person receiving same except by will
or the laws of descent and distribution. During the life of such person, the
incentive option shall be exercisable only by him or her.
i. Limitation. Notwithstanding any other provisions of
the Plan, to the extent the aggregate fair market value (determined in
accordance with the provisions of Section 5 above as of the time the incentive
option is granted) of the shares of Common Stock with respect to which
incentive stock options are exercisable for the first time by the optionee
during any calendar year (under all such plans of the Company and any parent
and subsidiary corporations) exceeds $100,000, such excess shall be treated as
nonqualified options.
j. Notice of Disposition. Each Option Agreement which
relates to the grant of an incentive stock option shall provide that the
optionee shall give prompt written notice to the Company in the event the
optionee sells or otherwise disposes of any shares of Common Stock issued upon
the exercise of such incentive stock options.
k. Other Provisions. Any Option Agreement may contain
such other terms, provisions and conditions as may be determined by the
Committee, which are not inconsistent with the provisions of Section 422 of the
Internal Revenue Code of 1986, as amended, including the option of the Company
to repurchase any shares issued upon the exercise of an option upon
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<PAGE> 6
termination of employment. Incentive options granted to different persons, or
to the same person at different times, may be subject to terms, conditions and
restrictions which differ from each other.
7. Terms and Conditions of Nonqualified Options.
Each nonqualified option granted pursuant to this Plan shall
be evidenced by a written Option Agreement which shall specify that the options
subject thereto are nonqualified options. The granting of a nonqualified
option shall take place at the time of Committee action granting such option.
The Option Agreement shall be in such form as the Committee shall, from time to
time, recommend, but shall comply with and be subject to the following terms
and conditions:
a. Medium and Time of Payment. The nonqualified option
price shall be payable (i) in United States dollars payable in cash, certified
check, or bank draft; (ii) subject to any legal restrictions on the acquisition
or purchase of its shares by the Company, by the delivery of shares of Common
Stock which (x) in the case of shares acquired upon exercise of an option have
been owned by the optionee for more than six (6) months on the date of
surrender and (y) have an aggregate fair market value on the date of surrender
equal to the aggregate exercise price of the shares as to which the option is
being exercised; (iii) in the discretion of the Committee, by the issuance of
promissory note in a form acceptable to the Committee; (iv) delivery of a
properly executed exercise notice together with such other documentation as the
Committee and broker, if applicable, shall require to effect an exercise of the
option and delivery to the Company of the sale or loan proceeds required to pay
the exercise price; or (v) any combination of (i), (ii), (iii) or (iv) above.
b. Number of Shares. The nonqualified option shall
state the total number of shares to which it pertains.
c. Term of Nonqualified Option. Each nonqualified
option granted under the Plan shall expire within a period of not more than ten
(10) years from the date the nonqualified option is granted.
d. Date of Exercise. Each nonqualified option granted
pursuant to this Plan shall become exercisable on each successive anniversary
of the grant date of such options in increments of twenty five percent (25%);
provided, however, that in the Committee's absolute discretion, individual
Option Agreements may contain different exercise schedules.
e. Termination of Association Except Upon Death or
Disability. In the event of an optionee's termination of association with the
Company or any subsidiary or Affiliate of the Company, for any reason other
than his or her death or disability, (i) all nonqualified options granted to
any such optionee pursuant to this Plan which are not exercisable at the date
of such termination of association shall terminate immediately and become void
and of no effect, and (ii) all nonqualified options granted to any such
optionee pursuant to this Plan which are exercisable at the date of such
termination of association may be exercised (but only to the extent they were
exercisable as of the date of the termination of association) at any time
within three (3) months of the date of such termination of association, but in
any event no later than the date of expiration of the nonqualified
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<PAGE> 7
option period, and if not so exercised within such time shall become void and
of no effect at the end of such time.
f. Death or Disability of Optionee. In the event of an
optionee's termination of association with the Company by reason of his or her
death or disability, (i) all nonqualified options granted to such optionee
pursuant to this Plan which are not exercisable at the date of such termination
of association shall terminate immediately and become void and of no effect,
and (ii) all nonqualified options granted to such optionee pursuant to this
Plan which are exercisable at the date of such termination of association may
be exercised (but only to the extent they were exercisable as of the date of
the termination of association) at any time within one (1) year after the
optionee's death or disability, but in any event no later than the date of
expiration of the nonqualified option period, by such optionee, or in the event
of death, by the executors or administrators of the optionee's estate or by any
person or persons who shall have acquired the nonqualified option directly from
the optionee by bequest or inheritance. At the end of such one (1) year
period, all nonqualified options held by such optionee, to the extent they
remain unexercised, shall terminate and become void and of no effect.
g. Rights as a Stockholder. An optionee or an offeree
or a transferee of a nonqualified option shall have no rights as a stockholder
with respect to any shares of Common Stock covered by his or her nonqualified
option until the date of the issuance of a share certificate to such optionee
for such shares. No adjustment shall be made for dividends or distributions or
other rights for which the record date is prior to the date such share
certificate is issued.
h. Nonassignability of Rights. Except as provided by
the Committee, no nonqualified option shall be assignable or transferable by
the person receiving same except by will or the laws of descent and
distribution. During the life of such person, the nonqualified option shall be
exercisable only by him or her.
i. Other Provisions. Any Option Agreement may contain
such other terms, provisions and conditions as may be determined by the
Committee. Nonqualified options granted to different persons, or to the same
person at different times, may be subject to terms, conditions and restrictions
which differ from each other.
8. Changes in Capital Structure.
In the event that the outstanding shares of Common Stock of
the Company are hereafter increased or decreased or changed into or exchanged
for a different number or kind of shares or other securities of the Company by
reason of merger, consolidation or reorganization in which the Company is the
surviving corporation or of a recapitalization, stock split, combination of
shares, reclassification, reincorporation, stock dividend (in excess of 2%), or
other change in the corporate structure of the Company, appropriate adjustments
shall be made by the Board of Directors in the aggregate number and kind of
shares subject to this Plan, and the number and kind of shares and the price
per share subject to outstanding incentive options and nonqualified options in
order to
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preserve, but not to increase, the benefits to persons then holding incentive
options and/or nonqualified options.
In the event that the Company at any time proposes to (i)
merge into, consolidate with or to enter into any other reorganization
(including the sale of substantially all of its assets) in which the Company is
not the surviving corporation, or (ii) enter into a merger or other
reorganization as a result of which the outstanding shares of Common Stock of
the Company will be changed into or exchanged for shares of the capital stock
or other securities of another corporation or for cash or property, then the
Plan and all unexercised incentive options and nonqualified options granted
hereunder shall terminate, unless provision is made in writing in connection
with such transaction for the assumption of incentive options and nonqualified
options theretofore granted, or the substitution for such incentive options and
nonqualified options of new options covering shares of a successor corporation,
with appropriate adjustments as to number and kind of shares and prices, in
which event the Plan and the incentive options and nonqualified options
theretofore granted, or the new incentive options and nonqualified options
substituted therefor, shall continue in the manner and under the terms so
provided. If such provision is not made in such transaction for the
continuance of the Plan and the assumption of incentive options and
nonqualified options theretofore granted or the substitution for such incentive
options and nonqualified options of new incentive options and nonqualified
options covering the shares of a successor corporation, then the Committee
shall cause written notice of the proposed transaction to be given to the
persons holding incentive options or nonqualified options not less than thirty
(30) days prior to the anticipated effective date of the proposed transaction,
and all incentive options and nonqualified options shall be accelerated and,
concurrent with the effective date of the proposed transaction, such person
shall have the right to exercise incentive options and nonqualified options in
respect of any or all shares then subject thereto.
9. Amendment and Termination of the Plan.
The Board of Directors of the Company may from time to time
alter, amend, suspend or terminate the Plan in such respects as the Board of
Directors may deem advisable; provided, however, that no such alteration,
amendment, suspension or termination shall be made which shall substantially
affect or impair the rights of any person under any incentive option or
nonqualified option theretofore granted to such person without his or her
consent; provided further, however, that the approval of the Company's
stockholders shall be obtained to the extent necessary and desirable to comply
with applicable law.
Unless the Plan shall theretofore have been terminated, the
Plan shall be effective on September 22, 1993, and shall terminate on September
21, 2003.
10. Application of Funds.
The proceeds received by the Company from the sale of Common
Stock pursuant to incentive options and nonqualified options will be used for
general corporate purposes.
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<PAGE> 9
11. No Obligation to Exercise Option.
The granting of an incentive option or nonqualified option
shall impose no obligation upon the optionee to exercise such incentive option
or nonqualified option.
12. Continuance of Employment or Status as Director.
The Plan or the granting of any incentive option or
nonqualified option thereunder shall not impose any obligation on the Company
or its stockholders to continue the employment of any optionee who is an
employee, or to retain as a director any optionee who is a director.
13. Tax Withholding.
Whenever shares are to be issued under the Plan, the Company
or any subsidiary of the Company employing the recipient shall have the right
to deduct from the recipient's compensation or require the recipient to remit
to the employer corporation, prior to the issuance of the shares, an amount
sufficient to satisfy federal, state and local withholding tax requirements.
The Committee shall have the discretion to allow an optionee to satisfy tax
withholding obligations by electing to have the Company withhold from the
shares to be issued upon exercise of an Option that number of shares having a
fair market value equal to the amount required to be withheld. The fair market
value of the shares to be withheld shall be determined on the date that the
amount of tax to be withheld is determined.
14. Stockholder Approval.
This Plan must be approved by the Company's stockholders
within twelve (12) months following its approval by the Board of Directors of
the Company. Any stock option exercised before stockholder approval is
obtained must be rescinded if stockholder approval is not obtained within
twelve (12) months following approval of the Plan by the Board of Directors.
15. General Provisions.
Notwithstanding any other provision of this Plan or agreements
made pursuant thereto, the Company shall not be required to issue or deliver
any certificate or certificates for shares of stock upon the exercise of
options granted under this Plan prior to fulfillment of all of the following
conditions:
(a) Any registration or other qualification of such
shares under any state or federal law or regulation, or the maintaining in
effect of any such registration or other qualification which the Committee
shall, in its absolute discretion, deem necessary or advisable;
(b) The obtaining of any other consent, approval or
permit from any state or federal governmental agency which the Committee shall,
in its absolute discretion, determine to be necessary or advisable; and
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(c) The execution and delivery to the Company by the
recipient of an investment representation letter containing such assurances
and/or representations as the Committee shall, in its absolute discretion,
determine to be necessary or advisable to satisfy the requirements for
exemptions from registration and qualification under applicable state and
federal securities laws.
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EXHIBIT 5.1
August 15, 1997
VitalCom Inc.
15222 Del Amo Avenue
Tustin, California 92780
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on August 15, 1997 (as such may
thereafter be amended or supplemented, the "Registration Statement"), in
connection with the registration under the Securities Act of 1933, as amended,
of 850,000 shares of your Common Stock, $.0001 par value (the "Shares"), of
which 750,000 are to be issued pursuant to the 1993 Stock Option Plan and
100,000 are to be issued pursuant to the 1996 Stock Option Plan. As your legal
counsel, we have examined the proceedings taken, and are familiar with the
proceedings proposed to be taken, by you in connection with the sale and
issuance of the Shares.
It is our opinion that, upon completion of the proceedings being taken
or contemplated by us, as your counsel, to be taken prior to the issuance of
the Shares, the Shares, when issued and sold in the manner described in the
Registration Statement and in accordance with the resolutions adopted by the
Board of Directors of the Company, will be legally and validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement No.
333-03727 and this Registration Statement on Form S-8 of VitalCom Inc. of our
reports dated February 14, 1997 appearing in the Annual Report on Form 10-K of
VitalCom Inc. for the year ended December 31, 1996.
Deloitte & Touche LLP
/s/ DELOITTE & TOUCHE LLP
Costa Mesa, California
August 15, 1997
