As filed with the Securities and Exchange Commission on April 6, 1995
Registration No. 33-57583-01
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
Post-Effective Amendment No. 1
on FORM S-8
to
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933*
Johnson & Johnson
(Exact name of Registrant as specified in its charter)
New Jersey 22-1024240
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Johnson & Johnson Plaza 08933
New Brunswick, New Jersey (Zip Code)
(Address of Principal Executive Offices)
MITEK SURGICAL PRODUCTS, INC. 1988 STOCK OPTION PLAN
MITEK SURGICAL PRODUCTS, INC. NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plans)
JAMES R. HILTON, ESQ.
One Johnson & Johnson Plaza
New Brunswick, New Jersey 08933
(908) 524-0400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
ROBERT A. KINDLER, ESQ.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
----------------
Approximate date of commencement of the proposed sale of securities
pursuant to the plans: Promptly after the filing of this Post-Effective
Amendment.
* Filed as a Post-Effective Amendment on Form S-8 to such Form S-4
Registration Statement pursuant to the procedure described herein. See
"INTRODUCTORY STATEMENT".
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<PAGE>
INTRODUCTORY STATEMENT
Johnson & Johnson ("J&J") hereby amends its Registration Statement on Form
S-4 (No.33-57583) (the "Form S-4") by filing this Post-Effective Amendment No.1
on Form S-8 (the "Post-Effective Amendment") relating to the sale of up to
267,000 shares of the common stock, par value $1.00 per share, of J&J ("J&J
Common Stock") issuable upon the exercise of stock options granted under the
Mitek Surgical Products, Inc. 1988 Stock Option Plan and the Mitek Surgical
Products, Inc. Non-Employee Director Stock Option Plan (the "Plans").
On April 5, 1995, MTS Merger Corp., a Delaware corporation and a
wholly-owned subsidiary of J&J, was merged with and into Mitek Surgical
Products, Inc., a Delaware corporation ("Mitek"). As a result of such merger
(the "Merger"), Mitek has become a wholly-owned subsidiary of J&J and each
outstanding share (other than shares owned by J&J, Mitek or any subsidiary of
J&J or Mitek) of common stock, par value $.01 per share, of Mitek ("Mitek Common
Stock") has been converted into 0.5041 of a share of J&J Common Stock. Pursuant
to the Merger, each outstanding option issued pursuant to the Plans will no
longer be exercisable for shares of Mitek Common Stock, but instead, will
constitute an option to acquire, on substantially the same terms and conditions
as were applicable under such option, shares of J&J Common Stock in lieu of
shares of Mitek Common Stock.
The designation of the Post-Effective Amendment as Registration
No.33-57583-01 denotes that the Post-Effective Amendment relates only to the
shares of J&J Common Stock issuable on the exercise of stock options under the
Plans and that this is the first Post-Effective Amendment to the Form S-4 filed
with respect to such shares.
i
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by J&J with the Securities and Exchange
Commission are incorporated herein by reference:
(a) J&J's Annual Report on Form 10-K for the fiscal year ended January 1,
1995.
(b) The description of J&J's Common Stock set forth in J&J's Registration
Statements filed pursuant to Section 12 of the Exchange Act and any
amendments or reports filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") after the
date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a 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.
The validity of the issuance of the J&J Common Stock being registered
hereby has been passed upon for J&J by George S. Frazza, Esq., Vice President
and General Counsel of J&J. Mr.Frazza is paid a salary by J&J, is a participant
in various employee benefit plans offered to employees of J&J generally and owns
and has options to purchase shares of J&J Common Stock.
Item 6. Indemnification of Directors and Officers.
The New Jersey Business Corporation Act provides that a New Jersey
corporation has the power to indemnify a director or officer against his or her
expenses and liabilities in connection with any proceeding involving the
director or officer by reason of his or her being or having been such a director
or officer, other than a proceeding by or in the right of the corporation, if
such a director or officer acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation; and with respect to any criminal proceeding, such director or
officer had no reasonable cause to believe his or her conduct was unlawful.
The indemnification and advancement of expenses shall not exclude any other
rights, including the right to be indemnified against liabilities and expenses
incurred in proceedings by or in the right of the corporation, to which a
director or officer may be entitled under a certificate of incorporation,
by-law, agreement, vote of shareholders, or otherwise; provided, that no
indemnification shall be made to or on behalf of a director or officer if a
judgment or other final adjudication adverse to the director or officer
establishes that his or her acts or omissions (a) were in breach of his or her
duty of loyalty to the corporation or its shareholders, (b) were not in good
faith or involved a knowing violation of law or (c)resulted in receipt by the
director or officer of an improper personal benefit.
The Registrant's Restated Certificate of Incorporation provides that, to
the full extent that the laws of the State of New Jersey permit the limitation
or elimination of the liability of directors and officers, no director or
officer of the Registrant shall be personally liable to the Registrant or its
stockholders for damages for breach of any duty owed to the Registrant or its
stockholders.
The By-laws of the Registrant provide that, to the full extent permitted by
the laws of the State of New Jersey, the Registrant shall indemnify any person
(an "Indemnitee") who was or is involved in any manner (including, without
limitation, as a party or witness) in any threatened, pending or completed
investigation, claim, action, suit or proceeding, whether civil, criminal,
administrative, arbitrative, legislative or investigative (including, without
limitation, any
II-1
<PAGE>
action, suit or proceeding by or in the right of the Registrant to procure a
judgment in its favor) (a "Proceeding"), or who is threatened with being so
involved, by reason of the fact that he or she is or was a director or officer
of the Registrant or, while serving as a director or officer of the Registrant,
is or was at the request of the Registrant also serving as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise (including, without limitation, any employee benefit plan),
against all expenses (including attorneys' fees), judgments, fines, penalties,
excise taxes and amounts paid in settlement actually and reasonably incurred by
the Indemnitee in connection with such Proceeding, provided that, there shall be
no indemnification hereunder with respect to any settlement or other
nonadjudicated disposition of any threatened or pending Proceeding unless the
Registrant has given its prior consent to such settlement or disposition. The
right of indemnification created by the By-laws shall be a contract right
enforceable by an Indemnitee against the Registrant, and it shall not be
exclusive of any other rights to which an Indemnitee may otherwise be entitled.
These provisions of the By-laws shall inure to the benefit of the heirs and
legal representatives of an Indemnitee and shall be applicable to Proceedings
commenced or continuing after the adoption of the By-laws, whether arising from
acts or omissions occurring before or after such adoption. No amendment,
alteration, change, addition or repeal of or to the By-laws shall deprive any
Indemnitee of any rights under the By-laws with respect to any act or omission
of such Indemnitee occurring prior to such amendment, alteration, change,
addition or repeal.
The Registrant enters into indemnification agreements with its directors
and officers and enters into insurance agreements on its own behalf. The
indemnification agreements provide that the Registrant agrees to hold harmless
and indemnify its directors and officers to the fullest extent authorized or
permitted by the NJBCA, or any other applicable law, or by any amendment thereof
or other statutory provisions authorizing or permitting such indemnification
that is adopted after the date hereof. Without limiting the generality of the
foregoing, the Registrant agrees to hold harmless and indemnify its directors
and officers to the fullest extent permitted by applicable law against any and
all expenses, judgments, fines, and amounts paid in settlement actually and
reasonably incurred by its directors and officers in connection with the defense
of any present or future threatened, pending, or completed claim, action, suit,
or proceeding by reason of the fact that they were, are, shall be, or shall have
been a director or officer of the Registrant, or are or were serving, shall
serve, or shall have served, at the request of the Registrant, as a director or
officer of another corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of the Registrant (incorporated by
reference to Registrant's Form 10-K Annual Report for the year ended
January 3, 1993).
4.2 By-laws of the Registrant (incorporated by reference to Registrant's Form
10-K Annual Report for the year ended January 3, 1993).
4.3 Certificate of Amendment to the Restated Certificate of Incorporation of
the Registrant dated April 23, 1992 (incorporated by reference to
Registrant's Form 10-K Annual Report for the year ended January 3, 1993).
4.4 Mitek Surgical Products, Inc. 1988 Stock Option Plan.
4.5 Mitek Surgical Products, Inc. Non-Employee Director Stock Option Plan.
5. Opinion of George S. Frazza, Esq.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of George S. Frazza (included in Exhibit 5).
24.* Power of Attorney.
- ---------------
* Previously filed.
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<PAGE>
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) 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;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(b) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offer thereof.
(c) 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.
(d) that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in this 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.
(e) insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
The Registrant. 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 New Brunswick and State of New Jersey, on the
6th day of April, 1995.
JOHNSON & JOHNSON
By GEORGE S. FRAZZA
-----------------------------
(George S. Frazza)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been duly signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman, Board of Directors and April 6, 1995
----------------------------------- Chief Executive Officer and
(R. S. Larsen) Director (Principal Executive Officer)
* Vice President, Finance and Director April 6, 1995
----------------------------------- (Principal Financial Officer)
(C. H. Johnson)
*
----------------------------------- Controller April 6, 1995
(A. W. Roulston)
*
----------------------------------- Director April 6, 1995
(J. W. Black)
----------------------------------- Director
(G. N. Burrow)
*
----------------------------------- Director April 6, 1995
(J. G. Cooney)
----------------------------------- Director
(P. M. Hawley)
----------------------------------- Director
(A. D. Jordan)
*
----------------------------------- Director April 6, 1995
(A. G. Langbo)
*
----------------------------------- Director April 6, 1995
(P. N. Larson)
*
----------------------------------- Director April 6, 1995
(J. S. Mayo)
----------------------------------- Director
(T. S. Murphy)
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
*
----------------------------------- Director April 6, 1995
(P. J. Rizzo)
*
----------------------------------- Director April 6, 1995
(M. F. Singer)
*
----------------------------------- Director April 6, 1995
(R. B. Smith)
*
----------------------------------- Director April 6, 1995
(R. N. Wilson)
*By JAMES R. HILTON
-------------------------------------
(James R. Hilton, Attorney-in-Fact)
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4.1 Restated Certificate of Incorporation of the Registrant (incorporated by
reference to Registrant's Form 10-K Annual Report for the year ended
January 3, 1993).
4.2 By-laws of the Registrant (incorporated by reference to Registrant's
Form 10-K Annual Report for the year ended January 3, 1993).
4.3 Certificate of Amendment to the Restated Certificate of Incorporation of
the Registrant dated April 23, 1992 (incorporated by reference to
Registrant's Form 10-K Annual Report for the year ended January 3, 1993).
4.4 Mitek Surgical Products, Inc. 1988 Stock Option Plan.
4.5 Mitek Surgical Products, Inc. Non-Employee Director Stock Option Plan.
5. Opinion of George S. Frazza, Esq.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of George S. Frazza (included in Exhibit 5).
24.* Power of Attorney.
- ------------
* Previously filed.
Exhibit 4.4
MITEK SURGICAL PRODUCTS, INC.
1988 STOCK OPTION PLAN
1. Purpose.
The purpose of this plan (the "Plan") is to secure for Mitek Surgical
Products, Inc. (the "Company") and its shareholders the benefits arising from
capital stock ownership by key personnel of the Company and its subsidiaries who
are expected to contribute to the Company's future growth and success.
2. Type of Options and Administration.
(a) Types of Options. Options granted pursuant to the Plan shall be
authorized by action of the Board of Directors of the Company (or a Committee
designated by the Board of Directors) and may be either incentive stock options
("Incentive Stock Options") meeting the requirements of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") or non-statutory options
which are not intended to meet the requirements of Section 422 of the Code.
(b) Administration. The Plan will be administered by the Board of Directors
of the Company, whose construction and interpretation of the terms and
provisions of the Plan shall be final and conclusive. To the extent required by
the applicable provisions of Rule 16b-3 issued by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, no member of the Board of
Directors shall have been eligible to receive or shall have received an option
under the Plan within one year before his or her appointment or such other
period as may be prescribed by said Rule. The Board of Directors may in its sole
discretion grant options to purchase shares of the Company's Common Stock and
issue shares upon exercise of such options as provided in the Plan. The Board
shall have authority, subject to the express provisions of the Plan, to construe
the respective option agreements and the Plan, to prescribe, amend and rescind
rules and regulations relating to the Plan, to determine the terms and
provisions of the respective option agreements, which need not be identical, and
to make all other determinations in the judgment of the Board of Directors
necessary or desirable for the administration of the Plan. The Board of
Directors may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any option agreement in the manner and to the
extent it shall deem expedient to carry the Plan into effect and it shall be the
sole and final judge of such expediency. No director shall be liable for any
action or determination made in good faith. The Board of Directors may, to the
full extent permitted by law, delegate any or all of its powers under the Plan
to a committee (the "Committee") appointed by the Board of Directors, and if the
Committee is so appointed all references to the Board of Directors in the Plan
shall mean and relate to such Committee.
3. Eligibility.
(a) General. Options may be granted under the Plan to present or future key
employees of the Company or a subsidiary (a "Subsidiary") within the meaning of
Section 425(f) of the Code, and to consultants or other independent contractors
who perform services for the Company or a Subsidiary, but not to directors who
perform services for the Company solely in their capacities as directors. No
person shall be granted any Incentive Stock Option under the Plan who, at the
time such option is granted, owns, directly or indirectly, stock possessing more
than 10% of the total combined voting power of all classes of stock of the
Company, unless the requirements of paragraph (b) of Section 11 are satisfied.
The attribution of stock ownership provisions of Section 425(d) of the Code, and
any successor provisions thereto, shall be applied in determining the shares of
stock owned by a person for purposes of applying the foregoing percentage
limitation. A person who has been granted an option may, if he or she is
otherwise eligible, be granted an additional option or options if the Board of
Directors shall so determine.
(b) Grant of Options to Directors. From and after the registration of the
Common Stock of the Company under the Securities Exchange Act of 1934 (the
"Exchange Act"), the selection of a director as a participant and the number of
shares for which an option or options may be granted to such director shall be
determined either (i) by the Board of Directors, of which a majority, as well as
a majority of the directors acting in the matter, shall be "disinterested
persons" (as hereinafter defined) or (ii) by, or only in accordance with, the
recommendations of a committee of three or more persons having full authority to
act in the matter, of which all members shall be "disinterested persons". For
the purposes of the Plan, a director or member of such committee shall be deemed
to be "disinterested" only if such person qualifies as a "disinterested person"
within the meaning of paragraph (d)(3) of Rule 16b-3 under the Exchange Act (or
any successor rule), as such term is interpreted from time to time.
<PAGE>
4. Stock Subject To Plan.
Subject to adjustment as provided in Section 15 below, the maximum number
of shares of Common Stock of the Company which may be issued and sold under the
Plan is One million (1,000,000) shares. Such shares may be authorized and
unissued shares or may be shares issued and thereafter acquired by the Company.
If an option granted under the Plan shall expire or terminate for any reason
without having been exercised in full, the unpurchased shares subject to such
option shall again be available for subsequent option grants under the Plan.
5. Forms of Option Agreements.
As a condition to the grant of an option under the Plan, each recipient of
an option shall execute an option agreement in such form not inconsistent with
the Plan as may be specified by the Board of Directors. Each option agreement
shall state whether the options granted thereby are Incentive Stock Options or
non-statutory options.
6. Purchase Price.
(a) General. The purchase price per share of stock deliverable upon the
exercise of an option shall be determined by the Board of Directors, provided,
however, that (i) in the case of an Incentive Stock Option, the exercise price
shall not be less than 100% of the fair market value of such stock at the time
of grant of such option, or less than 110% of such fair market value in the case
of options described in paragraph (b) of Section 11, and (ii) in the case of a
non-statutory option, the exercise price shall not be less than 90% of the fair
market value of such stock at the time of grant of such option. For purposes
hereof, the fair market value of a share of Common Stock on any date shall be
equal to the closing sale price per share as published by a national securities
exchange on which shares of the Common Stock are traded on such date or, if
there is no sale of Common Stock on such date, the average of the bid and asked
prices on such exchange at the closing of trading on such date or, if shares of
Common Stock are not listed on a national securities exchange on such date, the
average of the bid and asked prices in the over the counter market at the close
of trading on such date, or if the Common Stock is not traded on a national
securities exchange or the over the counter market, the fair market value of a
share of the Common Stock on such date as determined in good faith by the Board
of Directors.
(b) Payment of Purchase Price. Options granted under the Plan may provide
for the payment of the exercise price by delivery of cash or a check to the
order of the Company in an amount equal to the exercise price of such options,
or, to the extent provided in the applicable option agreement, by delivery to
the Company of shares of Common Stock of the Company already owned by the
optionee having a fair market value equal in amount to the exercise price of the
options being exercised, or by any combination of such methods of payment. The
fair market value of any shares of the Company's Common Stock which may be
delivered upon exercise of an option shall be determined in accordance with the
terms of the applicable option agreement.
7. Option Period.
Each option and all rights thereunder shall expire on such date as the
Board of Directors shall determine, but, in the case of Incentive Stock Options,
in no event after the expiration of ten years from the day on which the option
is granted (or five years in the case of options described in paragraph (b) of
Section 11) and, in the case of non-statutory options, in no event after the
expiration of ten years plus 30 days from the day on which the option is
granted, and in either case, shall be subject to earlier termination as provided
in the Plan.
8. Exercise of Options.
Each option granted under the Plan shall be exercisable either in full or
in installments at such time or times and during such period as shall be set
forth in the agreement evidencing such option, subject to the provisions
of Section 7 above.
9. Nontransferability of Options.
No option granted under the Plan shall be assignable or transferable by the
person to whom it is granted, either voluntarily or by operation of law, except
by will or the laws of descent and distribution. During the life of the
optionee, the option shall be exercisable only by such person.
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<PAGE>
10. Effect of Termination of Employment.
No option may be exercised unless the optionee is, and has been
continuously since the date of grant of his or her option, employed by the
Company, except that if and to the extent the option agreement or instrument so
provides:
(a) the option may be exercised within the period of three months
after the date the optionee ceases to be an employee of the Company (or
within such lesser period as may be specified in the applicable option
agreement);
(b) if the optionee dies while in the employ of the Company, or within
three months after the optionee ceases to be such an employee, the option
may be exercised by the person to whom it is transferred by will or the
laws of descent and distribution within the period of one year after the
date of death (or within such lesser period as may be specified in the
applicable option agreement); and
(c) if the optionee becomes disabled (within the meaning of Section
22(e)(3) of the Code or any successor provision thereto) while in the
employ of the Company, the option may be exercised within the period of one
year after the date the optionee ceases to be such an employee because of
such disability (or within such lesser period as may be specified in the
applicable option agreement);
provided, however, that in no event may any option be exercised after the
expiration date of the option. For all purposes of the Plan and any option
granted hereunder, "employment" shall be defined in accordance with the
provisions of Section 1.421-7(h) of the Income Tax Regulations (or any successor
regulations).
11. Incentive Stock Options.
Options granted under the Plan which are intended to be Incentive Stock
Options shall be specifically designated as Incentive Stock Options and shall be
subject to the following additional terms and conditions:
(a) Dollar Limitation. Incentive Stock Options granted to any employee
under the Plan (and any other incentive stock option plans of the Company)
shall not, in the aggregate, become exercisable for the first time in any
one calendar year for shares of Common Stock with an aggregate fair market
value (determined as of the respective date or dates of grant) of more than
$100,000.
(b) 10% Shareholder. If any employee to whom an Incentive Stock Option
is to be granted under the Plan is, at the time of the grant of such
option, the owner of stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company (after taking into
account the attribution of stock ownership rules of Section 425(d) of the
Code), then the following special provisions shall be applicable to the
Incentive Stock Option granted to such individual:
(i) The purchase price per share of the Common Stock subject to
such Incentive Stock Option shall not be less than 110% of the fair
market value of one share of Common Stock at the time of grant: and
(ii) The option exercise period shall not exceed five years from
the date of grant.
12. Additional Provisions.
(a) Additional Option Provisions. The Board of Directors may, in its sole
discretion, include additional provisions in any option granted under the Plan,
including without limitation restrictions on transfer, repurchase rights,
commitments to pay cash bonuses, make or arrange for loans or transfer other
property to optionees upon exercise of options, or such other provisions as
shall be determined by the Board of Directors; provided that such additional
provisions shall not be inconsistent with any other term or condition of the
Plan and such additional provisions shall not cause any Incentive Stock Option
granted under the Plan to fail to qualify as an Incentive Stock Option within
the meaning of Section 422 of the Code.
(b) Acceleration. The Board of Directors may, in its sole discretion,
accelerate the date or dates on which all or any particular option or options
granted under the Plan may be exercised.
13. General Restrictions.
(a) Investment Representations. The Company may require any person to whom
an option is granted, as a condition of exercising such option, to give written
assurances in substance and form satisfactory to the Company to the effect that
such person is acquiring the Common Stock subject to the option for his or her
own account for invest-
3
<PAGE>
ment and not with any present intention of selling or otherwise distributing the
same, and to such other effects as the Company deems necessary or appropriate in
order to comply with federal and applicable state securities laws.
(b) Compliance with Securities Laws. Each option shall be subject to the
requirement that if, at any time, counsel to the Company shall determine that
the listing, registration or qualification of the shares subject to such option
upon any securities exchange or under any state or federal law, or the consent
or approval of any governmental or regulatory body, is necessary as a condition
of, or in connection with, the issuance or purchase of shares thereunder, such
option may not be exercised, in whole or in part, unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained on conditions acceptable to the Board of Directors. Nothing herein
shall be deemed to require the Company to apply for or to obtain such listing,
registration or qualification.
14. Rights as a Shareholder.
The holder of an option shall have no rights as a shareholder with respect
to any shares covered by the option until the date of issue of a stock
certificate to him or her for such shares. No adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
stock certificate is issued.
15. Adjustments.
(a) General. If, as a result of a merger, consolidation, sale of all or
substantially all of the assets of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split or other distribution with respect to the outstanding shares of Common
Stock or other securities, the outstanding shares of Common Stock are increased
or decreased, or are exchanged for a different number or kind of shares or other
securities, or additional shares or new or different shares or other securities
are distributed with respect to such shares of Common Stock or other securities,
an appropriate and proportionate adjustment may be made in (i) the maximum
number and kind of shares reserved for issuance under the Plan, (ii) the number
and kind of shares or other securities subject to then outstanding options under
the Plan, and (iii) the price for each share subject to any then outstanding
options under the Plan, without changing the aggregate purchase price as to
which such options remain exercisable.
(b) Board Authority to Make Adjustments. Adjustments under this Section 15
will be made by the Board of Directors, whose determination as to what
adjustments, if any, will be made and the extent thereof will be final, binding
and conclusive. No fractional shares will be issued under the Plan on account of
any such adjustments.
16. Reorganization.
(a) General. In the event of a consolidation or merger in which the Company
is not the surviving corporation, or which results in the acquisition of
substantially all of the Company's outstanding Common Stock by a single person,
entity or group of persons or entities acting in concert, or in the event of the
sale or transfer of all or substantially all of the assets of the Company, or in
the event of a reorganization or liquidation of the Company, the Board of
Directors of the Company, or the board of directors of any corporation assuming
the obligations of the Company, shall, as to outstanding options, either (i)
provide that such options shall be assumed, or equivalent options shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof), provided that any such options substituted for Incentive Stock Options
shall meet the requirements of Section 425 (a) of the Code, (ii) upon written
notice to the optionees, provide that all unexercised options will terminate
immediately prior to the consummation of such merger, consolidation,
acquisition, reorganization, liquidation, sale or transfer unless exercised by
the optionee within a specified number of days following the date of such
notice, or (iii) in the event of a merger under the terms of which holders of
the Common Stock of the Company will receive upon consummation thereof a cash
payment for each share surrendered in the merger (the "Merger Price"), make or
provide for a cash payment to the optionees equal to the difference between (A)
the Merger Price times the number of shares of Common Stock subject to such
outstanding options (to the extent exercisable) and (b) the aggregate exercise
price of all such outstanding options in exchange for the termination of such
options. In any such case, the Board of Directors may, in its discretion,
advance the lapse of any waiting or installment periods and exercise dates.
(b) Substitute Options. The Company may grant options under the Plan in
substitution for options held by employees of another corporation who become
employees of the Company, or a subsidiary of the Company, as the result of a
merger or consolidation of the employing corporation with the Company or a
subsidiary of the Company, or as a result of the acquisition by the Company, or
one of its subsidiaries, of property or stock of the employing corpora-
4
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tion. The Company may direct that substitute options be granted on such terms
and conditions as the Board of Directors considers appropriate in the
circumstances.
17. No Special Employment Rights.
Nothing contained in the Plan or in any option shall confer upon any
optionee any right with respect to the continuation of his or her employment by
the Company at any time to terminate such employment or to increase or decrease
the compensation of the optionee. Whether an authorized leave of absence, or
absence in military or government service, shall constitute termination of
employment shall be determined at the time of such absence in accordance with
the provisions of Section 1.421-7(h) of the Income Tax Regulations (or any
successor regulations).
18. Other Employee Benefits.
The amount of any compensation deemed to be received by an employee as a
result of the exercise of an option or the sale of shares received upon such
exercise will not constitute compensation with respect to which any other
employee benefits of such employee are determined, including, without
limitation, benefits under any bonus, pension, profit-sharing, life insurance or
salary continuation plan, except as otherwise specifically determined by the
Board of Directors.
19. Amendment of the Plan.
The Board of Directors may at any time, and from time to time, modify or
amend the Plan in any respect, except that without the approval of the
shareholders of the Company the Board of Directors may not (a) materially
increase the benefits accruing to individuals who participate in the Plan, (b)
increase the maximum number of shares which may be issued under the Plan (except
for adjustments specifically provided in the Plan), or (c) materially modify the
requirements as to eligibility for participation in the Plan. The termination or
any modification or amendment of the Plan shall not, without the consent of an
optionee, affect his or her rights under an option previously granted to him or
her. With the consent of the optionee affected, the Board of Directors may amend
outstanding option agreements in a manner not inconsistent with the Plan. The
Board of Directors shall have the right to amend or modify the terms and
provisions of the Plan and of any outstanding Incentive Stock Options granted
under the Plan to the extent necessary to qualify any or all such options for
such favorable federal income tax treatment (including deferral of taxation upon
exercise) as may be afforded incentive stock options under Section 422 of the
Code.
20. Withholding.
(a) The Company shall have the right to deduct from payments of any kind
otherwise due to the optionee any federal, state or local taxes of any kind
required by law to be withheld with respect to any shares issued upon exercise
of Options under the Plan. Subject to the prior approval of the Company, which
may be withheld by the Company in its sole discretion, the optionee may elect to
satisfy such obligations, in whole or in part, (i) by causing the Company to
withhold shares of Common Stock otherwise issuable pursuant to the exercise of
an Option or (ii) by delivering to the Company shares of Common Stock already
owned by the optionee. The shares so delivered or withheld shall have a fair
market value equal to such withholding obligation. The fair market value of the
shares used to satisfy such withholding obligation shall be determined by the
Company as of the date that the amount of tax to be withheld is to be
determined. An optionee who has made an election pursuant to this Section 20(a)
may only satisfy his or her withholding obligation with shares of Common Stock
which are not subject to any repurchase, forfeiture, unfulfilled vesting or
other similar requirements.
(b) Notwithstanding the foregoing, in the case of an optionee subject to
the reporting requirements of Section 16(a) of the Exchange Act, no election to
use shares for the payment of withholding taxes shall be effective unless made
in compliance with any applicable requirements of Rule 16b-3(e) or any successor
rule under such Act.
21. Cancellation and New Grant of Options.
The Board of Directors shall have the authority to effect, at any time and
from time to time, with the consent of the affected optionees, the cancellation
of any or all outstanding options under the Plan and the grant in substitution
therefor of new options under the Plan covering the same or different numbers of
shares of Common Stock having an option exercise price per share which may be
lower or higher than the exercise price per share of the cancelled options.
5
<PAGE>
22. Effective Date and Duration of the Plan.
(a) Effective Date. The Plan shall become effective when adopted by the
Board of Directors, but no Incentive Stock Option granted under the Plan shall
become exercisable unless and until the Plan shall have been approved by the
Company's shareholders. If such shareholder approval is not obtained within
twelve months after the date of the Board's adoption of the Plan, any Incentive
Stock Options previously granted under the Plan shall terminate and no further
Incentive Stock Options shall be granted. Amendments to the Plan not requiring
shareholder approval shall become effective when adopted by the Board of
Directors; amendments requiring shareholder approval (as provided in Section 19)
shall become effective when adopted by the Board of Directors, but no Incentive
Stock Option issued after the date of such amendment shall become exercisable
(to the extent that such amendment to the Plan was required to enable the
Company to grant such Incentive Stock Option to a particular Optionee) unless
and until such amendment shall have been approved by the Company's shareholders.
If such shareholder approval is not obtained within twelve months of the Board's
adoption of such amendment, any Incentive Stock Options granted on or after the
date of such amendment shall terminate to the extent that such amendment to the
Plan was required to enable the Company to grant such option to a particular
optionee. Subject to this limitation, options may be granted under the Plan at
any time after the effective date and before the date fixed for termination of
the Plan.
(b) Termination. The Plan shall terminate upon the earlier of (i) the close
of business on the day next preceding the tenth anniversary of the date of its
adoption by the Board of Directors, or (ii) the date on which all shares
available for issuance under the Plan shall have been issued pursuant to the
exercise or cancellation of options granted under the Plan. If the date of
termination is determined under (i) above, then options outstanding on such date
shall continue to have force and effect in accordance with the provisions of the
instruments evidencing such options.
6
Exhibit 4.5
MITEK SURGICAL PRODUCTS, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose.
The purpose of this Non-Employee Director Stock Option Plan (the "Plan") is
to enable Mitek Surgical Products, Inc. (the "Company") to provide compensatory
stock options to members of its Board of Directors (the "Board") who are not
also employees of or consultants to the Company ("Non-Employee Directors"). It
is intended that the Plan will constitute a "formula plan" within the meaning
and for the purposes of Rule 16b-3 issued by the Securities and Exchange
Commission under Section 16 of the Securities Exchange Act of 1934. The
provisions of the Plan and of any option agreement made pursuant to the Plan
will be interpreted and applied accordingly.
2. Stock Subject to the Plan.
The Company may issue and sell a total of 150,000 shares of its common
stock, $.01 par value (the "Common Stock"), pursuant to the Plan. Such shares
may be either authorized and unissued or held by the Company in its treasury.
New options may be granted under the Plan with respect to shares of Common Stock
which are covered by the unexercised portion of an option which has terminated
or expired.
3. Administration.
The Plan shall be administered by the Board. Subject to the provisions of
the Plan and applicable law, the Board, acting in its sole and absolute
discretion, shall have full power and authority to interpret the provisions of
the Plan and option agreements made under the Plan, to supervise the
administration of the Plan, and to take such other action as may be necessary or
desirable in order to carry out the provisions of the Plan. The decisions of the
Board as to any disputed question, including questions of construction,
interpretation and administration, shall be final and conclusive on all persons.
4. Automatic Option Grants.
An option to purchase 3,000 shares of Common Stock will automatically be
granted to each Non-Employee Director on the date of the 1993 annual meeting of
the Company's stockholders or, if later, on the date of his or her initial
appointment or election (by the Board or the stockholders, as the case may be)
as a director, and an option to purchase an additional 3,000 shares of Common
Stock will automatically be granted to each Non-Employee Director on each
anniversary of his or her initial grant date on which he or she is still serving
as a director; provided, however, that (a) no Non-Employee Director shall be
granted options hereunder to purchase more than 30,000 shares of Common Stock;
and (b) no option will be granted to a Non-Employee Director who, on the grant
date, beneficially owns (as defined in Rule 13d-3 issued by the Securities and
Exchange Commission under Section 13d of the Securities Exchange Act of 1934, as
amended) 5% or more of the Common Stock of the Company.
5. Terms and Conditions of Options.
Each option granted under the Plan shall be evidenced by a written
agreement containing the following terms and conditions:
(a) Option Price. The purchase price per share shall be equal to the
fair market value of a share of Common Stock on the date the option is
granted. For purposes hereof, the fair market value of a share of Common
Stock on any date shall be equal to the closing sale price per share as
published by a national securities exchange on which shares of the Common
Stock are traded on such date or, if there is no sale of Common Stock on
such date, the average of the bid and asked prices on such exchange at the
closing of trading on such date or, if shares of the Common Stock are not
listed on a national securities exchange on such date, the closing sale
price per share as listed on the NASDAQ National Market System or, if
shares of the Common Stock are not listed on the NASDAQ National Market
System on such date, the average of the bid and asked prices in the over
the counter market at the close of trading on such date.
(b) Option Period. The period during which an option may be exercised
shall be 10 years from the date the option is granted.
<PAGE>
(c) Exercise of Options. No option shall be exercisable unless the
Non-Employee Director to whom the option was granted remains in the
continuous service as a director of the Company for at least one year from
the date the option is granted. All or part of the exercisable portion of
an option may be exercised at any time during the option period, except
that, without the consent of the Board, no partial exercise of an option
shall be made for less than 100 shares. An option may be exercised by
transmitting to the Company (1) a written notice specifying the number of
shares to be purchased, and (2) payment in full of the purchase price,
together with the amount, if any, deemed necessary to enable the Company to
satisfy its income tax withholding obligations with respect to such
exercise (unless other arrangements acceptable to the Board are made with
respect to the satisfaction of such withholding obligations).
(d) Payment of Option Price. The purchase price of shares of Common
Stock acquired pursuant to the exercise of an option granted under the Plan
shall be payable in cash or check and/or such other form of payment as may
be permitted by the Board, including, without limitation, previously owned
shares of Common Stock.
(e) Rights as a Stockholder. No shares of Common Stock shall be issued
in respect of an option granted under the Plan until full payment therefor
has been made. The holder of an option shall have no right as a stockholder
with respect to any shares covered by an option until the date a stock
certificate for such shares is issued to him or her. Except as otherwise
provided herein, no adjustments shall be made for dividends or
distributions of other rights for which the record date is prior to the
date such stock certificate is issued.
(f) Nontransferability of Options. No option shall be assignable or
transferable except upon the optionee's death to a beneficiary designated
by the optionee in accordance with procedures established by the Board or,
if no designated beneficiary shall survive the optionee, pursuant to the
optionee's will or by the laws of descent and distribution. During an
optionee's lifetime, options may be exercised only by the optionee or the
optionee's guardian or legal representative.
(g) Termination of Service. If an optionee ceases to perform services
as a director of the Company for any reason other than death or disability,
then each outstanding option granted to him or her under the Plan shall
terminate on the date three months after the date of such termination of
service (or, if earlier, the date specified in the option agreement). If an
optionee's service as a director of the Company is terminated by reason of
the optionee's death or disability (or if the optionee's service as a
director of the Company is terminated by reason of his or her disability
and the optionee dies within one year after such termination of service as
a director), then each outstanding option granted to the optionee under the
Plan shall terminate on the date one year after the date of such
termination of service (or one year after the later death of a disabled
optionee) or, if earlier, the date specified in the option agreement. For
the purposes hereof, the term "disability" means the inability of an
optionee to perform the customary duties of his or her service as a
director by reason of a physical or mental illness or injury which is
expected to result in death or to last indefinitely.
(h) Other Provisions. The Board may impose such other conditions with
respect to the exercise of options, including, without limitation, any
conditions relating to the application of federal or state securities laws,
as it may deem necessary or advisable.
6. Capital Changes, Reorganization, Sale.
(a) Adjustments Upon Changes in Capitalization. The aggregate number and
class of shares for which options may be granted under the Plan, the number and
class of shares covered by each outstanding option and the exercise price per
share shall all be adjusted proportionately or as otherwise appropriate to
reflect any increase or decrease in the number of issued shares of Common Stock
resulting from a split-up or consolidation of shares or any like capital
adjustment, or the payment of any stock dividend, and/or to reflect a change in
the character or class of shares covered by the Plan arising from a readjustment
or recapitalization of the Company's capital stock.
(b) Cash, Stock or Other Property for Stock. Except as otherwise provided
in this subparagraph, in the event of an Exchange Transaction (as defined
below), all optionees will be permitted to exercise their outstanding options in
whole or in part (whether or not otherwise exercisable) immediately prior to
such Exchange Transaction, and any outstanding options which are not exercised
before the Exchange Transaction will thereupon terminate. Notwithstanding the
preceding sentence, if, as part of the Exchange Transaction, the stockholders of
the Company receive capital stock of another corporation ("Exchange Stock") in
exchange for their shares of Common Stock, and if the Board, in its sole
discretion, so directs, then all outstanding options will be converted into
options to purchase shares
2
<PAGE>
of Exchange Stock. The amount and price of converted options will be
determined by adjusting the amount and price of the options granted hereunder on
the same basis as the determination of the number of shares of Exchange Stock
the holders of Common Stock will receive in the Exchange Transaction and, unless
the Board determines otherwise, the vesting conditions with respect to the
converted options will be substantially the same as the vesting conditions set
forth in the original option agreement.
(c) Definition of Exchange Transaction. For purposes hereof, the term
"Exchange Transaction" means a merger (other than a merger of the Company in
which the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, separation,
reorganization (other than a mere reincorporation or the creation of a holding
company), liquidation of the Company or other similar transaction as a result of
which the stockholders of the Company receive cash, stock or other property in
exchange for or in connection with their shares of Common Stock.
(d) Fractional Shares. In the event of any adjustment in the number of
shares covered by any option pursuant to the provisions hereof, any fractional
shares resulting from such adjustment will be disregarded, and each such option
will cover only the number of full shares resulting from the adjustment.
(e) Determination of Board to be Final. All adjustments under this
paragraph 6 shall be made by the Board, and its determination as to what
adjustments shall be made, and the extent thereof, shall be final, binding and
conclusive.
7. Amendment and Termination of the Plan.
The Board may amend or terminate the Plan. Except as otherwise provided in
the Plan with respect to equity changes, any amendment which would increase the
aggregate number of shares of Common Stock as to which options may be granted
under the Plan, materially increase the benefits under the Plan, or modify the
class of persons eligible to receive options under the Plan shall be subject to
the approval of the stockholders of the Company. No amendment or termination may
adversely affect any outstanding option without the written consent of the
optionee. Notwithstanding anything to the contrary contained herein or in any
option agreement made hereunder, the provisions of paragraphs 4 and 5(a) of the
Plan and any other provision of the Plan or of an option agreement relating to
the timing of option grants, the amount of shares covered thereby and the
exercise price thereunder may not be amended more than once every six months,
and no amendment may be made to the Plan or an option agreement if, as a result
of such amendment, the Plan would no longer qualify as a "formula plan" under
Rule 16b-3 issued by the Securities and Exchange Commission under Section 16 of
the Securities Exchange Act of 1934.
8. No Rights Conferred.
Nothing contained herein will be deemed to give any individual any right to
receive an option under the Plan or to be retained in the employ or service of
the Company.
9. Governing Law.
The Plan and each option agreement shall be governed by the laws of the
State of Delaware.
10. Term of the Plan.
The Plan shall be effective as of the date on which stockholder approval of
the Plan is obtained at the 1993 Annual Meeting of Stockholders. The Plan will
terminate on the date ten years after the date on which it is approved by the
stockholders of the Company, unless sooner terminated by the Board. The rights
of optionees under options outstanding at the time of the termination of the
Plan shall not be affected solely by reason of the termination and shall
continue in accordance with the terms of the option.
3
Exhibit 5
April 6, 1995
Johnson & Johnson
One Johnson & Johnson Plaza
New Brunswick, NJ 08933
Ladies and Gentlemen:
I am General Counsel of Johnson & Johnson, a New Jersey corporation (the
"Company"), and I am familiar with the post-effective amendment (the
"Post-Effective Amendment") on Form S-8 to the Company's registration statement
on Form S-4 (Registration Number 33-57583) (the "Registration Statement") filed
by the Company with the Securities and Exchange Commission under the Securities
Act of 1933, as amended. The Post-Effective Amendment relates to 267,000 shares
of the Company's common stock, par value $1.00 per share (the "Shares"), which
will be issuable upon the exercise of stock options granted under the Mitek
Surgical Products, Inc. 1988 Stock Option Plan and the Mitek Surgical Products,
Inc. Non-Employee Director Stock Option Plan (together, the "Plans"), which have
been assumed by the Company in connection with the merger of MTS Merger Corp., a
Delaware corporation and a wholly-owned subsidiary of the Company ("MTS"), into
Mitek Surgical Products, Inc., a Delaware corporation ("Mitek"), pursuant to the
terms of an Agreement and Plan of Merger dated as of January 3, 1995 (the
"Merger Agreement") among the Company, MTS and Mitek.
I have reviewed the Company's Restated Certificate of Incorporation and
By-Laws and such other corporate records of the Company and documents and
certificates of public officials and others as I have deemed necessary as a
basis for the opinion hereinafter expressed.
Based on the foregoing and having regard for such legal considerations as I
deem relevant, I am of the opinion that the Shares when issued and delivered in
accordance with the terms of the options issued under the Plans, as assumed by
the Company pursuant to the Merger Agreement, will be duly authorized, validly
issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Post-Effective Amendment.
Very truly yours,
GEORGE S. FRAZZA
----------------------------
George S. Frazza
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Registration Statement No.
33-57583-01, Post-Effective Amendment No. 1 on Form S-8 to Form S-4, of our
report dated January 23, 1995 on our audits of the consolidated financial
statements and financial statement schedule of Johnson & Johnson and
subsidiaries as of January 1, 1995 and January 2, 1994, and for each of the
three fiscal years in the period ended January 1, 1995, which reports are
included in or incorporated by reference in the Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
New York, New York
April 6, 1995
