<PAGE> 1
As Filed With the Securities and Exchange Commission on June 14, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MICRO THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0569235
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2 GOODYEAR, IRVINE, CALIFORNIA 92618
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
George Wallace, President and Chief Executive Officer
Micro Therapeutics, Inc.
2 Goodyear, Irvine, California 92618
(Name and address of agent for service)
(949) 837-3700
(Telephone number, including area code, of agent for service)
Copy to:
Bruce Feuchter, Esq.
Stradling Yocca Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(949) 725-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Price Aggregate Amount of
To Be Registered Registered(1)(2) Per Share Offering Price Registration Fee
====================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value 1,500,000 shares $7.91(3) $11,746,000(3) $ 3,265
====================================================================================================
</TABLE>
(1) Includes additional shares of Common Stock that may become issuable
pursuant to the anti-dilution adjustment provisions of the 1996 Stock
Incentive Plan (the "1996 Plan") and the Employee Stock Purchase Plan (the
"ESPP").
(2) 600,000 shares of Common Stock available for issuance under the 1996 Plan
were registered on a Registration Statement on Form S-8 on March 14, 1997
(Registration Statement 333-23367). 100,000 shares of Common Stock
available for issuance under the ESPP were registered on a Registration
Statement on Form S-8 on March 14,1997 (Registration No. 333-23361).
(3) The aggregate offering price for 1,400,000 shares of Common Stock
registered hereby which may be issued under the 1996 Plan, is estimated
solely for the purpose of calculating the registration fee, in a accordance
with Rule 457(h)(1), on the basis of the price of securities of the same
class as determined in accordance with Rule 457(c), using the average of
the high and low price reported by the Nasdaq National Market for the
Common Stock on June 11, 1999, which was $7.91. In accordance with Rule
457(h) the aggregate offering price of the 100,000 shares of Common Stock
registered hereby which may be issued under the ESPP, was estimated using a
per share price of $6.72 or 85% of $7.91, which price is the estimated
basis at which the shares will be issued pursuant to the ESPP.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below have been filed by the Registrant with the
Securities and Exchange Commission (the "Commission") and are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1998 filed with the Commission on March 31, 1999.
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the Annual Report referred to
in (a) above.
(c) The description of the Registrant's Common Stock that is
contained in the Registrant's Registration Statement on Form 8-A filed under
Section 12 of the Exchange Act, including any amendment or report filed for the
purpose of updating that description.
(d) All documents subsequently filed by the Registrant 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 offered have been
sold or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents, except as to any portion of any future annual
or quarterly report to stockholders or document that is not deemed filed under
such provisions. For the purposes of this registration statement, any statement
in a document incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement contained in this registration
statement modifies or supersedes a statement in such document. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) As permitted by the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation eliminates the liability of directors
to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent otherwise required by the
Delaware General Corporation Law.
(b) The Registrant's Bylaws provide that the Registrant will
indemnify each person who was or is made a party to any proceeding by reason of
the fact that such person is or was a director or officer of the Registrant
against all expense, liability and loss reasonably incurred or suffered by such
person in connection therewith to the fullest extent authorized by the Delaware
General Corporation Law.
(c) The Bylaws also give the Registrant the ability to enter into
indemnification agreements with each of its officers and directors. The
Registrant has entered into indemnification agreements with each of its
directors and executive officers. The indemnification agreements provide for the
indemnification of directors and officers of the against any and all expenses,
judgments, fines, penalties and amounts paid in settlement, to the fullest
extent permitted by law.
2
<PAGE> 3
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
4.1 1996 Stock Incentive Plan, as amended
4.2 Employee Stock Purchase Plan, as amended
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation,
Counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants.
24.1 Power of Attorney (included on signature page to the Registration
Statement at page S-1).
</TABLE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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)(1)(i) and (a)(1)(ii) shall not
apply if the information required to be included in a post-effective amendment
by these paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference 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.
(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.
3
<PAGE> 4
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report, to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities 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 Securities
Act and will be governed by the final adjudication of such issue.
4
<PAGE> 5
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 Irvine, State of California, on the 14th day of June
1999.
MICRO THERAPEUTICS, INC.
By: /s/ GEORGE WALLACE
------------------------------------
George Wallace
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Micro Therapeutics, Inc.,
do hereby constitute and appoint George Wallace and Harold Hurwitz, or either of
them, our true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully 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 by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ GEORGE WALLACE President, Chief Executive Officer and June 14, 1999
- ------------------------- Director (Principal Executive Officer)
George Wallace
/s/ HAROLD HURWITZ Chief Financial Officer (Principal June 14, 1999
- ------------------------- Financial and Accounting Officer)
Harold Hurwitz
/s/ H. DuBOSE MONTGOMERY Chairman of the Board June 14, 1999
- ------------------------
H. DuBose Montgomery
/s/ WENDE HUTTON Director June 14, 1999
- ------------------------
Wende Hutton
/s/ DICK ALLEN Director June 14, 1999
- ------------------------
Dick Allen
/s/ KIM BLICKENSTAFF Director June 14, 1999
- ------------------------
Kim Blickenstaff
</TABLE>
5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
- ------- ----------- -----------
<S> <C> <C>
4.1 1996 Stock Incentive Plan, as amended 7
4.2 Employee Stock Purchase Plan, as amended 16
5.1 Opinion of Stradling Yocca Carlson & Rauth, a 25
Professional Corporation, Counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a 25
Professional Corporation (included in the Opinion filed
as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLC, independent 26
accountants.
24.1 Power of Attorney (included on signature page to the 5
Registration Statement at page S-1).
</TABLE>
6
<PAGE> 1
EXHIBIT 4.1
MICRO THERAPEUTICS, INC.
SECOND AMENDED AND RESTATED
1996 STOCK INCENTIVE PLAN
This 1996 STOCK INCENTIVE PLAN (the "Plan") was established and adopted
in August 1996 (the "Effective Date") by Micro Therapeutics, Inc., a Delaware
corporation (the "Company"), was amended as of May 29, 1998, and is hereby
amended and restated as of May 27, 1999 (the "Amendment Date").
1.
PURPOSES OF THE PLAN
1.1 PURPOSES. The purposes of the Plan are (a) to enhance the
Company's ability to attract and retain the services of qualified employees,
officers and directors (including non-employee officers and directors), and
consultants and other service providers upon whose judgment, initiative and
efforts the successful conduct and development of the Company's business largely
depends, and (b) to provide additional incentives to such persons or entities to
devote their utmost effort and skill to the advancement and betterment of the
Company, by providing them an opportunity to participate in the ownership of the
Company and thereby have an interest in the success and increased value of the
Company.
2.
DEFINITIONS
For purposes of this Plan, the following terms shall have the meanings
indicated:
2.1 ADMINISTRATOR. "Administrator" means the Board or, if the Board
delegates responsibility for any matter to the Committee, the term Administrator
shall mean the Committee.
2.2 AFFILIATED COMPANY. "Affiliated Company" means any "parent
corporation" or "subsidiary corporation" of the Company, whether now existing or
hereafter created or acquired, as those terms are defined in Sections 424(e) and
424(f) of the Code, respectively.
2.3 BOARD. "Board" means the Board of Directors of the Company.
2.4 CHANGE IN CONTROL. "Change in Control" shall mean (i) the
acquisition, directly or indirectly, by any person or group (within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) of the
beneficial ownership of more than fifty percent (50%) of the outstanding
securities of the Company; (ii) a merger or consolidation in which the Company
is not the surviving entity, except for a transaction the principal purpose of
which is to change the state in which the Company is incorporated; (iii) the
sale, transfer or other disposition of all or substantially all of the assets of
the Company; (iv) a complete liquidation or dissolution of the Company; or (v)
any reverse merger in which the Company is the surviving entity but in which
securities possessing more than fifty percent (50%) of the total combined voting
power of the Company's outstanding securities are transferred to a person or
persons different from the persons holding those securities immediately prior to
such merger.
2.5 CODE. "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
<PAGE> 2
2.6 COMMITTEE. "Committee" means a committee of two or more members
of the Board appointed to administer the Plan, as set forth in Section 7.1
hereof.
2.7 COMMON STOCK. "Common Stock" means the Common Stock, $.001 par
value of the Company, subject to adjustment pursuant to Section 4.2 hereof.
2.8 DISABILITY. "Disability" means permanent and total disability as
defined in Section 22(e)(3) of the Code. The Administrator's determination of a
Disability or the absence thereof shall be conclusive and binding on all
interested parties.
2.9 EFFECTIVE DATE. "Effective Date" means August 1, 1997, which was
the date on which the Plan was originally adopted by the Board.
2.10 EXERCISE PRICE. "Exercise Price" means the purchase price per
share of Common Stock payable upon exercise of an Option.
2.11 FAIR MARKET VALUE. "Fair Market Value" on any given date means
the value of one share of Common Stock, determined as follows:
If the Common Stock is then listed or admitted to trading on a Nasdaq
market system or a stock exchange which reports closing sale prices, the Fair
Market Value shall be the closing sale price on the date of valuation on such
Nasdaq market system or principal stock exchange on which the Common Stock is
then listed or admitted to trading, or, if no closing sale price is quoted on
such day, then the Fair Market Value shall be the closing sale price of the
Common Stock on such Nasdaq market system or such exchange on the next preceding
day on which a closing sale price is quoted.
If the Common Stock is not then listed or admitted to trading on a
Nasdaq market system or a stock exchange which reports closing sale prices, the
Fair Market Value shall be the average of the closing bid and asked prices of
the Common Stock in the over-the-counter market on the date of valuation.
If neither (a) nor (b) is applicable as of the date of valuation, then
the Fair Market Value shall be determined by the Administrator in good faith
using any reasonable method of evaluation, which determination shall be
conclusive and binding on all interested parties.
2.12 INCENTIVE OPTION. "Incentive Option" means any Option designated
and qualified as an "incentive stock option" as defined in Section 422 of the
Code.
2.13 INCENTIVE OPTION AGREEMENT. "Incentive Option Agreement" means
an Option Agreement with respect to an Incentive Option.
2.14 NASD DEALER. "NASD Dealer" means a broker-dealer that is a
member of the National Association of Securities Dealers, Inc.
2.15 NONQUALIFIED OPTION. "Nonqualified Option" means any Option that
is not an Incentive Option. To the extent that any Option designated as an
Incentive Option fails in whole or in part to qualify as an Incentive Option,
including, without limitation, for failure to meet the limitations applicable to
a 10% Shareholder or because it exceeds the annual limit provided for in Section
5.6 below, it shall to that extent constitute a Nonqualified Option.
2.16 NONQUALIFIED OPTION AGREEMENT. "Nonqualified Option Agreement"
means an Option Agreement with respect to a Nonqualified Option.
<PAGE> 3
2.17 OFFEREE. "Offeree" means a Participant to whom a Right to
Purchase has been offered or who has acquired Restricted Stock under the Plan.
2.18 OPTION. "Option" means any option to purchase Common Stock
granted pursuant to the Plan.
2.19 OPTION AGREEMENT. "Option Agreement" means the written agreement
entered into between the Company and the Optionee with respect to an Option
granted under the Plan.
2.20 OPTIONEE. "Optionee" means a Participant who holds an Option.
2.21 PARTICIPANT. "Participant" means an individual or entity who
holds an Option, a Right to Purchase or Restricted Stock under the Plan.
2.22 PURCHASE PRICE. "Purchase Price" means the purchase price per
share of Restricted Stock payable upon acceptance of a Right to Purchase.
2.23 RESTRICTED STOCK. "Restricted Stock" means shares of Common
Stock issued pursuant to Article 6 hereof, subject to any restrictions and
conditions as are established pursuant to such Article 6.
2.24 RIGHT TO PURCHASE. "Right to Purchase" means a right to purchase
Restricted Stock granted to an Offeree pursuant to Article 6 hereof.
2.25 SERVICE PROVIDER. "Service Provider" means a consultant or other
person or entity who provides services to the Company or an Affiliated Company
and who the Administrator authorizes to become a Participant in the Plan.
2.26 STOCK PURCHASE AGREEMENT. "Stock Purchase Agreement" means the
written agreement entered into between the Company and the Offeree with respect
to a Right to Purchase offered under the Plan.
2.27 10% SHAREHOLDER. "10% Shareholder" means a person who, as of a
relevant date, owns or is deemed to own (by reason of the attribution rules
applicable under Section 424(d) of the Code) stock possessing more than 10% of
the total combined voting power of all classes of stock of the Company or of an
Affiliated Company.
3.
ELIGIBILITY
3.1 INCENTIVE OPTIONS. Officers and other key employees of the
Company or of an Affiliated Company (including members of the Board if they are
employees of the Company or of an Affiliated Company) are eligible to receive
Incentive Options under the Plan.
3.2 NONQUALIFIED OPTIONS AND RIGHTS TO PURCHASE. Officers and other
key employees of the Company or of an Affiliated Company, members of the Board
(whether or not employed by the Company or an Affiliated Company), and Service
Providers are eligible to receive Nonqualified Options or Rights to Purchase
under the Plan.
3.3 LIMITATION ON SHARES. In no event shall any Participant be
granted Rights to Purchase or Options in any one calendar year pursuant to which
the aggregate number of shares of Common Stock that may be acquired thereunder
exceeds 100,000 shares.
<PAGE> 4
4.
PLAN SHARES
4.1 SHARES SUBJECT TO THE PLAN. A total of 2,000,000 shares of
Common Stock may be issued under the Plan, subject to adjustment as to the
number and kind of shares pursuant to Section 4.2 hereof. For purposes of this
limitation, in the event that (a) all or any portion of any Option or Right to
Purchase granted or offered under the Plan can no longer under any circumstances
be exercised, or (b) any shares of Common Stock are reacquired by the Company
pursuant to an Incentive Option Agreement, Nonqualified Option Agreement or
Stock Purchase Agreement, the shares of Common Stock allocable to the
unexercised portion of such Option or such Right to Purchase, or the shares so
reacquired, shall again be available for grant or issuance under the Plan.
4.2 CHANGES IN CAPITAL STRUCTURE. In the event that the outstanding
shares of Common Stock 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 a recapitalization, stock split, combination of shares,
reclassification, stock dividend, or other change in the capital structure of
the Company, then appropriate adjustments shall be made by the Administrator to
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 Option Agreements,
Rights to Purchase and Stock Purchase Agreements in order to preserve, as nearly
as practical, but not to increase, the benefits to Participants.
5.
OPTIONS
5.1 OPTION AGREEMENT. Each Option granted pursuant to this Plan
shall be evidenced by an Option Agreement which shall specify the number of
shares subject thereto, the Exercise Price per share, and whether the Option is
an Incentive Option or Nonqualified Option. As soon as is practical following
the grant of an Option, an Option Agreement shall be duly executed and delivered
by or on behalf of the Company to the Optionee to whom such Option was granted.
Each Option Agreement shall be in such form and contain such additional terms
and conditions, not inconsistent with the provisions of this Plan, as the
Administrator shall, from time to time, deem desirable, including, without
limitation, the imposition of any rights of first refusal and resale obligations
upon any shares of Common Stock acquired pursuant to an Option Agreement. Each
Option Agreement may be different from each other Option Agreement.
5.2 EXERCISE PRICE. The Exercise Price per share of Common Stock
covered by each Option shall be determined by the Administrator, subject to the
following: (a) the Exercise Price of an Incentive Option shall not be less than
100% of Fair Market Value on the date the Incentive Option is granted, (b) the
Exercise Price of a Nonqualified Option shall not be less than 85% of Fair
Market Value on the date the Nonqualified Option is granted, and (c) if the
person to whom an Incentive Option is granted is a 10% Shareholder on the date
of grant, the Exercise Price shall not be less than 110% of Fair Market Value on
the date the Option is granted.
5.3 PAYMENT OF EXERCISE PRICE. Payment of the Exercise Price shall
be made upon exercise of an Option and may be made, in the discretion of the
Administrator, subject to any legal restrictions, by: (a) cash; (b) check; (c)
the surrender of shares of Common Stock owned by the Optionee that have been
held by the Optionee for at least six (6) months, which surrendered shares shall
be valued at Fair Market Value as of the date of such exercise; (d) the
Optionee's promissory note in a form and on terms acceptable to the
Administrator; (e) the cancellation of indebtedness of the Company to the
Optionee; (f) the waiver of compensation due or accrued to the Optionee for
services rendered; (g) provided that a public market for the Common Stock
exists, a "same day sale" commitment from the Optionee and an NASD Dealer
whereby the
<PAGE> 5
Optionee irrevocably elects to exercise the Option and to sell a portion of the
shares so purchased to pay for the Exercise Price and whereby the NASD Dealer
irrevocably commits upon receipt of such shares to forward the Exercise Price
directly to the Company; (h) provided that a public market for the Common Stock
exists, a "margin" commitment from the Optionee and an NASD Dealer whereby the
Optionee irrevocably elects to exercise the Option and to pledge the shares so
purchased to the NASD Dealer in a margin account as security for a loan from the
NASD Dealer in the amount of the Exercise Price, and whereby the NASD Dealer
irrevocably commits upon receipt of such shares to forward the Exercise Price
directly to the Company; or (i) any combination of the foregoing methods of
payment or any other consideration or method of payment as shall be permitted by
applicable corporate law.
5.4 TERM AND TERMINATION OF OPTIONS. The term and termination of
each Option shall be as fixed by the Administrator, but no Option may be
exercisable more than ten (10) years after the date it is granted. An Incentive
Option granted to a person who is a 10% Shareholder on the date of grant shall
not be exercisable more than five (5) years after the date it is granted.
5.5 VESTING AND EXERCISE OF OPTIONS. Each Option shall vest and be
exercisable in one or more installments at such time or times and subject to
such conditions, including without limitation the achievement of specified
performance goals or objectives, as shall be determined by the Administrator.
5.6 ANNUAL LIMIT ON INCENTIVE OPTIONS. To the extent required for
"incentive stock option" treatment under Section 422 of the Code, the aggregate
Fair Market Value (determined as of the time of grant) of the Common Stock shall
not, with respect to which Incentive Options granted under this Plan and any
other plan of the Company or any Affiliated Company become exercisable for the
first time by an Optionee during any calendar year, exceed $100,000.
5.7 NONTRANSFERABILITY OF OPTIONS. No Option shall be assignable or
transferable except by will or the laws of descent and distribution, and during
the life of the Optionee shall be exercisable only by such Optionee; provided,
however, that, in the discretion of the Administrator, any Option may be
assigned or transferred in any manner which an "incentive stock option" is
permitted to be assigned or transferred under the Code.
5.8 RIGHTS AS SHAREHOLDER. An Optionee or permitted transferee of an
Option shall have no rights or privileges as a shareholder with respect to any
shares covered by an Option until such Option has been duly exercised and
certificates representing shares purchased upon such exercise have been issued
to such person.
5.9 NON-EMPLOYEE DIRECTORS. Each non-employee director of the
Company shall automatically be granted a Nonqualified Option to purchase 8,000
shares of Common Stock (subject to vesting as provided below) upon his or her
commencement of service on the Board of Directors and every year thereafter
shall automatically be granted a Nonqualified Option to purchase 2,000 shares of
the Common Stock (provided, that on such date he or she is a non-employee of the
Company); provided, however, that no such director shall be issued options to
acquire shares of Common Stock, which when added to any shares of Common Stock
owned by such director or subject to an option of such director exercisable
within sixty (60) days would equal or exceed one percent 1% of the total
outstanding Common Stock of the Company plus shares of Common Stock of the
Company subject to stock options held by any person and exercisable within sixty
(60) days. The option price of such Options, in the case of the initial grant,
shall be at the Fair Market Value of the Common Stock on the date of
commencement of such director's service on the Board of Directors and,
thereafter, shall be at the Fair Market Value of the Common Stock on the date of
grant. All such options shall become exercisable twenty-five percent (25%)
immediately and the remaining seventy-five percent (75%) shall become
exercisable an additional twenty-five percent (25%) on each anniversary of the
date of the initial grant; provided, however, that upon termination of a
non-employee director's service on the Board of Directors, for any reason, all
unvested
<PAGE> 6
options held by such non-employee director shall terminate immediately and all
vested options held by such non-employee director shall be exercisable for a
period of twelve (12) months subsequent to such termination. The term of such
Options shall be ten years.
6.
RIGHTS TO PURCHASE
6.1 NATURE OF RIGHT TO PURCHASE. A Right to Purchase granted to an
Offeree entitles the Offeree to purchase, for a Purchase Price determined by the
Administrator, shares of Common Stock subject to such terms, restrictions and
conditions as the Administrator may determine at the time of grant ("Restricted
Stock"). Such conditions may include, but are not limited to, continued
employment or the achievement of specified performance goals or objectives.
6.2 ACCEPTANCE OF RIGHT TO PURCHASE. An Offeree shall have no rights
with respect to the Restricted Stock subject to a Right to Purchase unless the
Offeree shall have accepted the Right to Purchase within ten (10) days (or such
longer or shorter period as the Administrator may specify) following the grant
of the Right to Purchase by making payment of the full Purchase Price to the
Company in the manner set forth in Section 6.3 hereof and by executing and
delivering to the Company a Stock Purchase Agreement. Each Stock Purchase
Agreement shall be in such form, and shall set forth the Purchase Price and such
other terms, conditions and restrictions of the Restricted Stock, not
inconsistent with the provisions of this Plan, as the Administrator shall, from
time to time, deem desirable. Each Stock Purchase Agreement may be different
from each other Stock Purchase Agreement.
6.3 PAYMENT OF PURCHASE PRICE. Subject to any legal restrictions,
payment of the Purchase Price upon acceptance of a Right to Purchase Restricted
Stock may be made, in the discretion of the Administrator, by: (a) cash; (b)
check; (c) the surrender of shares of Common Stock owned by the Offeree that
have been held by the Offeree for at least six (6) months, which surrendered
shares shall be valued at Fair Market Value as of the date of such exercise; (d)
the Offeree's promissory note in a form and on terms acceptable to the
Administrator; (e) the cancellation of indebtedness of the Company to the
Offeree; (f) the waiver of compensation due or accrued to the Offeree for
services rendered; or (g) any combination of the foregoing methods of payment or
any other consideration or method of payment as shall be permitted by applicable
corporate law.
6.4 RIGHTS AS A SHAREHOLDER. Upon complying with the provisions of
Section 6.2 hereof, an Offeree shall have the rights of a shareholder with
respect to the Restricted Stock purchased pursuant to the Right to Purchase,
including voting and dividend rights, subject to the terms, restrictions and
conditions as are set forth in the Stock Purchase Agreement. Unless the
Administrator shall determine otherwise, certificates evidencing shares of
Restricted Stock shall remain in the possession of the Company in accordance
with the terms of the Stock Purchase Agreement.
6.5 RESTRICTIONS. Shares of Restricted Stock may not be sold,
assigned, transferred, pledged or otherwise encumbered or disposed of except as
specifically provided in the Stock Purchase Agreement or by the Administrator.
In the event of termination of a Participant's employment, service as a director
of the Company or Service Provider status for any reason whatsoever (including
death or disability), the Stock Purchase Agreement may provide, in the
discretion of the Administrator, that the Company shall have the right,
exercisable at the discretion of the Administrator, to repurchase (i) at the
original Purchase Price, any shares of Restricted Stock which have not vested as
of the date of termination, and (ii) at Fair Market Value, any shares of
Restricted Stock which have vested as of such date, on such terms as may be
provided in the Stock Purchase Agreement.
<PAGE> 7
6.6 VESTING OF RESTRICTED STOCK. The Stock Purchase Agreement shall
specify the date or dates, the performance goals or objectives which must be
achieved, and any other conditions on which the Restricted Stock may vest.
6.7 DIVIDENDS. If payment for shares of Restricted Stock is made by
promissory note, any cash dividends paid with respect to the Restricted Stock
may be applied, in the discretion of the Administrator, to repayment of such
note.
6.8 NONASSIGNABILITY OF RIGHTS. No Right to Purchase shall be
assignable or transferable except by will or the laws of descent and
distribution or as otherwise provided by the Administrator.
7.
ADMINISTRATION OF THE PLAN
7.1 ADMINISTRATOR. Authority to control and manage the operation and
administration of the Plan shall be vested in the Board, which may delegate such
responsibilities in whole or in part to a committee consisting of two (2) or
more members of the Board (the "Committee"). Members of the Committee may be
appointed from time to time by, and shall serve at the pleasure of, the Board.
As used herein, the term "Administrator" means the Board or, with respect to any
matter as to which responsibility has been delegated to the Committee, the term
Administrator shall mean the Committee.
7.2 POWERS OF THE ADMINISTRATOR. In addition to any other powers or
authority conferred upon the Administrator elsewhere in the Plan or by law, the
Administrator shall have full power and authority: (a) to determine the persons
to whom, and the time or times at which, Incentive Options or Nonqualified
Options shall be granted and Rights to Purchase shall be offered, the number of
shares to be represented by each Option and Right to Purchase and the
consideration to be received by the Company upon the exercise thereof; (b) to
interpret the Plan; (c) to create, amend or rescind rules and regulations
relating to the Plan; (d) to determine the terms, conditions and restrictions
contained in, and the form of, Option Agreements and Stock Purchase Agreements;
(e) to determine the identity or capacity of any persons who may be entitled to
exercise a Participant's rights under any Option or Right to Purchase under the
Plan; (f) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan or in any Option Agreement or Stock Purchase
Agreement; (g) to accelerate the vesting of any Option or release or waive any
repurchase rights of the Company with respect to Restricted Stock; (h) to extend
the exercise date of any Option or acceptance date of any Right to Purchase; (i)
to provide for rights of first refusal and/or repurchase rights; (j) to amend
outstanding Option Agreements and Stock Purchase Agreements to provide for,
among other things, any change or modification which the Administrator could
have provided for upon the grant of an Option or Right to Purchase or in
furtherance of the powers provided for herein; and (k) 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 made in good faith by the
Administrator in the exercise of its authority conferred upon it under the Plan
shall be final and binding on the Company and all Participants.
7.3 LIMITATION ON LIABILITY. No employee of the Company or member of
the Board or Committee shall be subject to any liability with respect to duties
under the Plan unless the person acts fraudulently or in bad faith. To the
extent permitted by law, the Company shall indemnify each member of the Board or
Committee, and any employee of the Company with duties under the Plan, who was
or is a party, or is threatened to be made a party, to any threatened, pending
or completed proceeding, whether civil, criminal, administrative or
investigative, by reason of such person's conduct in the performance of duties
under the Plan.
<PAGE> 8
8.
CHANGE IN CONTROL
8.1 CHANGE IN CONTROL. In order to preserve a Participant's rights
in the event of a Change in Control of the Company, (i) the time period relating
to the exercise or realization of all outstanding Options, Rights to Purchase
and Restricted Stock shall automatically accelerate immediately prior to the
consummation of such Change in Control and (ii) with respect to Options and
Rights to Purchase, the Administrator in its discretion may, at any time an
Option or Right to Purchase is granted, or at any time thereafter, take one or
more of the following actions: (A) provide for the purchase of each Option or
Right to Purchase for an amount of cash or other property that could have been
received upon the exercise of the Option or Right to Purchase had the Option
been currently exercisable, (B) adjust the terms of the Options and Rights to
Purchase in a manner determined by the Administrator to reflect the Change in
Control, (C) cause the Options and Rights to Purchase to be assumed, or new
rights substituted therefor, by another entity, through the continuance of the
Plan and the assumption of outstanding Options and Rights to Purchase, or the
substitution for such Options and Rights to Purchase of new options and new
rights to purchase of comparable value covering shares of a successor
corporation, with appropriate adjustments as to the number and kind of shares
and Exercise Prices, in which event the Plan and such Options and Rights to
Purchase, or the new options and rights to purchase substituted therefor, shall
continue in the manner and under the terms so provided or (D) make such other
provision as the Committee may consider equitable. If the Administrator does not
take any of the forgoing actions, all Options and Rights to Purchase shall
terminate upon the consummation of the Change in Control and the Administrator
shall cause written notice of the proposed transaction to be given to all
Participants not less than fifteen (15) days prior to the anticipated effective
date of the proposed transaction.
9.
AMENDMENT AND TERMINATION OF THE PLAN
9.1 AMENDMENTS. The Board may from time to time alter, amend,
suspend or terminate the Plan in such respects as the Board may deem advisable.
No such alteration, amendment, suspension or termination shall be made which
shall substantially affect or impair the rights of any Participant under an
outstanding Option Agreement or Stock Purchase Agreement without such
Participant's consent. The Board may alter or amend the Plan to comply with
requirements under the Code relating to Incentive Options or other types of
options which give Optionee more favorable tax treatment than that applicable to
Options granted under this Plan as of the date of its adoption. Upon any such
alteration or amendment, any outstanding Option granted hereunder may, if the
Administrator so determines and if permitted by applicable law, be subject to
the more favorable tax treatment afforded to an Optionee pursuant to such terms
and conditions.
9.2 PLAN TERMINATION. Unless the Plan shall theretofore have been
terminated, the Plan shall terminate on the tenth (10th) anniversary of the
Effective Date and no Options or Rights to Purchase may be granted under the
Plan thereafter, but Option Agreements, Stock Purchase Agreements and Rights to
Purchase then outstanding shall continue in effect in accordance with their
respective terms.
10.
TAX WITHHOLDING
10.1 WITHHOLDING. The Company shall have the power to withhold, or
require a Participant to remit to the Company, an amount sufficient to satisfy
any applicable Federal, state, and local tax withholding requirements with
respect to any Options exercised or Restricted Stock issued under the Plan.
<PAGE> 9
To the extent permissible under applicable tax, securities and other laws, the
Administrator may, in its sole discretion and upon such terms and conditions as
it may deem appropriate, permit a Participant to satisfy his or her obligation
to pay any such tax, in whole or in part, up to an amount determined on the
basis of the highest marginal tax rate applicable to such Participant, by (a)
directing the Company to apply shares of Common Stock to which the Participant
is entitled as a result of the exercise of an Option or as a result of the
purchase of or lapse of restrictions on Restricted Stock or (b) delivering to
the Company shares of Common Stock owned by the Participant. The shares of
Common Stock so applied or delivered in satisfaction of the Participant's tax
withholding obligation shall be valued at their Fair Market Value as of the date
of measurement of the amount of income subject to withholding.
11.
MISCELLANEOUS
11.1 BENEFITS NOT ALIENABLE. Other than as provided above, benefits
under the Plan may not be assigned or alienated, whether voluntarily or
involuntarily. Any unauthorized attempt at assignment, transfer, pledge or other
disposition shall be without effect.
11.2 NO ENLARGEMENT OF EMPLOYEE RIGHTS. This Plan is strictly a
voluntary undertaking on the part of the Company and shall not be deemed to
constitute a contract between the Company and any Participant to be
consideration for, or an inducement to, or a condition of, the employment of any
Participant. Nothing contained in the Plan shall be deemed to give the right to
any Participant to be retained as an employee of the Company or any Affiliated
Company or to interfere with the right of the Company or any Affiliated Company
to discharge any Participant at any time.
11.3 APPLICATION OF FUNDS. The proceeds received by the Company from
the sale of Common Stock pursuant to Option Agreements and Stock Purchase
Agreements, except as otherwise provided herein, will be used for general
corporate purposes.
<PAGE> 1
EXHIBIT 4.2
MICRO THERAPEUTICS, INC.
SECOND AMENDED AND RESTATED
EMPLOYEE STOCK PURCHASE PLAN
The MICRO THERAPEUTICS, INC. EMPLOYEE STOCK PURCHASE PLAN (the "Plan")
was adopted effective February 18, 1997, was amended May 29, 1998, and is hereby
amended and restated by MICRO THERAPEUTICS, INC., a Delaware corporation (the
"Company") to be effective on May 27, 1999 (the "Amendment Date").
1.
PURPOSE OF THE PLAN
1.1 Purpose. The Company has determined that it is in its best
interest to provide incentives to attract and retain employees and to increase
employee morale by providing a program through which employees of the Company,
and of such of the Company's subsidiaries as the Company's Board of Directors
(the "Board of Directors") may from time to time designate (each a "Designated
Subsidiary", and collectively, "Designated Subsidiaries"), may acquire a
proprietary interest in the Company through the purchase of shares of the common
stock of the Company ("Company Stock"). The Plan was established by the Company
to permit employees to subscribe for and purchase directly from the Company
shares of the Company Stock at a discount from the market price, and to pay the
purchase price in installments by payroll deductions. The Plan is intended to
qualify as an "employee stock purchase plan" under Section 423 of the Internal
Revenue Code of 1986, as amended from time to time (the "Code"). The provisions
of the Plan are to be construed in a manner consistent with the requirements of
Section 423 of the Code. The Plan is not intended to be an employee benefit plan
under the Employee Retirement Income Security Act of 1974, and therefore is not
required to comply with that Act.
2.
DEFINITIONS
2.1 Amendment Date. "Amendment Date" means May 27, 1999.
2.2 Compensation. "Compensation" means the amount indicated on the
Form W-2, including any elective deferrals with respect to a plan of the Company
qualified under either Section 125 or Section 401(a) of the Code, issued to an
employee by the Company.
2.3 Employee. "Employee" means each person currently employed by the
Company or any of its Designated Subsidiaries, any portion of whose income is
subject to withholding of income tax or for whom Social Security retirement
contributions are made by the Company or any Designated Subsidiary.
2.4 Effective Date. "Effective Date" means the effective date of the
Company's first Registration Statement filed with the Securities and Exchange
Commission registering Company Stock.
2.5 5% Owner. "5% Owner" means an Employee who, immediately after
the grant of any rights under the Plan, would own Company Stock or hold
outstanding options to purchase Company Stock possessing 5% or more of the total
combined voting power of all classes of stock of the Company. For purposes of
this Section, the ownership attribution rules of Code Section 425(d) shall
apply.
<PAGE> 2
2.6 Grant Date. "Grant Date" means the first day of each Offering
Period (July 1 and January 1) under the Plan. However, for the first Offering
Period, the Grant Date shall be the Effective Date.
2.7 Participant. "Participant" means an Employee who has satisfied
the eligibility requirements of Section 3.1 and has become a participant in the
Plan in accordance with Section 3.2.
2.8 Plan Year. "Plan Year" means the twelve consecutive month period
ending on the last day of December.
2.9 Offering Period. "Offering Period" means the six-month periods
from July 1 through December 31 and January 1 through June 30 of each Plan Year.
However, the first Offering Period shall commence on the Effective Date and end
on June 30, 1997, regardless of whether such initial Offering Period is more or
less than six months.
2.10 Purchase Date. "Purchase Date" means the last day of each
Offering Period (December 31 or June 30).
3.
ELIGIBILITY AND PARTICIPATION
3.1 Eligibility. Each Employee of the Company, or any Designated
Subsidiary, who, on the Grant Date, is customarily engaged on a
regularly-scheduled basis of more than twenty (20) hours per week for more than
five (5) months per calendar year and who has been employed for at least ninety
(90) days (or, for the initial Offering Period only, such Employees who are
employed on the Effective Date) in the rendition of personal services to the
Company, or any Designated Subsidiary, may become a Participant in the Plan on
the Grant Date coincident with or next following his satisfaction of such
requirements of employment with the Company or any Designated Subsidiary.
3.2 Participation. An Employee who has satisfied the eligibility
requirements of Section 3.1 may become a Participant in the Plan upon his
completion and delivery to the Human Resources Department of the Company of a
stock purchase agreement provided by the Company (the "Stock Purchase
Agreement") authorizing payroll deductions. Payroll deductions for a Participant
shall commence on the Grant Date coincident with or next following the filing of
the Participant's Stock Purchase Agreement and shall remain in effect until
revoked by the Participant by the filing of a notice of withdrawal from the Plan
under Article VIII or by the filing of a new Stock Purchase Agreement providing
for a change in the Participant's payroll deduction rate under Section 5.2.
3.3 Special Rules. Under no circumstances shall
(a) A 5% Owner be granted a right to purchase Company Stock
under the Plan;
(b) A Participant be entitled to purchase Company Stock
under the Plan which, when aggregated with all other employee stock purchase
plans of the Company, exceed an amount equal to the Aggregate Maximum.
"Aggregate Maximum" means an amount equal to $25,000 worth of Company Stock
(determined using the fair market value of such Company Stock at each applicable
Grant Date) during each calendar year; or
(c) The number of shares of Company Stock purchasable by a
Participant on any Purchase Date exceed 2,500 shares, subject to periodic
adjustments under Section 10.4.
<PAGE> 3
4.
OFFERING PERIODS
4.1 Offering Periods. The initial grant of the right to purchase
Company Stock under the Plan shall occur on the Effective Date and terminate on
June 30, 1997. Thereafter, the Plan shall provide for Offering Periods
commencing on each Grant Date and terminating on the next following Purchase
Date.
5.
PAYROLL DEDUCTIONS
5.1 Participant Election. Upon completion of the Stock Purchase
Agreement, each Participant shall designate the amount of payroll deductions to
be made from his or her paycheck to purchase Company Stock under the Plan. The
amount of payroll deductions shall be designated in whole percentages of
Compensation or in whole dollar amounts, not to exceed 20% of Compensation. The
amount so designated upon the Stock Purchase Agreement shall be effective as of
the next Grant Date and shall continue until terminated or altered in accordance
with Section 5.2 below.
5.2 Changes in Election. A Participant may terminate participation
in the Plan at any time prior to the close of an Offering Period as provided in
Article 8. A Participant may decrease or increase the rate of payroll deductions
one time during any Offering Period by completing and delivering to the Human
Resources Department of the Company a new Stock Purchase Agreement setting forth
the desired change. A Participant may also terminate payroll deductions and have
accumulated deductions for the Offering Period applied to the purchase of
Company Stock as of the next Purchase Date by completing and delivering to the
Human Resources Department a new Stock Purchase Agreement setting forth the
desired change. Any change under this Section shall become effective on the next
payroll period (to the extent practical under the Company's payroll practices)
following the delivery of the new Stock Purchase Agreement.
5.3 Participant Accounts. The Company shall establish and maintain a
separate account ("Account") for each Participant. The amount of each
Participant's payroll deductions shall be credited to his Account. No interest
will be paid or allowed on amounts credited to a Participant's Account. All
payroll deductions received by the Company under the Plan are general corporate
assets of the Company and may be used by the Company for any corporate purpose.
The Company is not obligated to segregate such payroll deductions.
6.
GRANT OF PURCHASE RIGHTS
6.1 Right to Purchase Shares. On each Grant Date, each Participant
shall be granted a right to purchase at the price determined under Section 6.2
that number of shares and partial shares of Company Stock that can be purchased
or issued by the Company based upon that price with the amounts held in his
Account, subject to the limits set forth in Section 3.3. In the event that there
are amounts held in a Participant's Account that are not used to purchase
Company Stock, such amounts shall remain in the Participant's Account and shall
be eligible to purchase Company Stock in any subsequent Offering Period.
6.2 Purchase Price. The purchase price for any Offering Period shall
be the lesser of:
(a) 85% of the Fair Market Value of Company Stock on the
Grant Date; or
<PAGE> 4
(b) 85% of the Fair Market Value of Company Stock on the
Purchase Date.
6.3 Fair Market Value. "Fair Market Value" means for the initial
Grant Date (which is the Effective Date), the price per share at which the
Common Stock is to be sold to the public in the initial public offering of the
Common Stock. For any subsequent date thereafter, "Fair Market Value" shall mean
the value of one share of Company Stock, determined as follows:
(a) If the Company Stock is then listed or admitted to
trading on the Nasdaq National Market System or a stock exchange which reports
closing sale prices, the Fair Market Value shall be the closing sale price on
the date of valuation on the Nasdaq National Market System or principal stock
exchange on which the Company Stock is then listed or admitted to trading, or,
if no closing sale price is quoted or no sale takes place on such day, then the
Fair Market Value shall be the closing sale price of the Company Stock on the
Nasdaq National Market System or such exchange on the next preceding day on
which a sale occurred.
(b) If the Company Stock is not then listed or admitted to
trading on the Nasdaq National Market System or a stock exchange which reports
closing sale prices, the Fair Market Value shall be the average of the closing
bid and asked prices of the Company Stock in the over-the-counter market on the
date of valuation.
(c) If neither (a) nor (b) is applicable as of the date of
valuation, then the Fair Market Value shall be determined by the Administrator
in good faith using any reasonable method of valuation, which determination
shall be conclusive and binding on all interested parties.
7.
PURCHASE OF STOCK
7.1 Purchase of Company Stock. Absent an election by the Participant
to terminate and have his or her Account returned, on each Purchase Date, the
Plan shall purchase on behalf of each Participant the maximum number of whole
shares of Company Stock at the purchase price determined under Section 6.2 above
as can be purchased with the amounts held in each Participant's Account. In the
event that there are amounts held in a Participant's Account that are not used
to purchase Company Stock, all such amounts shall be held in the Participant's
Account and carried forward to the next Offering Period.
7.2 Delivery of Company Stock.
(a) Company Stock acquired under the Plan may either be
issued directly to Participants or may be issued to a contract administrator
("Administrator") engaged by the Company to administer the Plan under Article 9.
If the Company Stock is issued in the name of the Administrator, all Company
Stock so issued ("Plan Held Stock") shall be held in the name of the
Administrator for the benefit of the Plan. The Administrator shall maintain
accounts for the benefit of the Participants which shall reflect each
Participant's interest in the Plan Held Stock. Such accounts shall reflect the
number of whole and partial shares of Company Stock that are being held by the
Administrator for the benefit of each Participant.
(b) Any Participant may elect to have the Company Stock
purchased under the Plan from his or her Account be issued directly to the
Participant. Any election under this paragraph shall be on the forms provided by
the Company and shall be issued in accordance with paragraph (c) below.
(c) In the event that Company Stock under the Plan is issued
directly to a Participant, the Company will deliver to each Participant a stock
certificate or certificates issued in his name for the number of shares of
Company Stock purchased as soon as practicable after the Purchase Date. Where
<PAGE> 5
Company Stock is issued under this paragraph, only full shares of stock will be
issued to a Participant. The time of issuance and delivery of shares may be
postponed for such period as may be necessary to comply with the registration
requirements under the Securities Act of 1933, as amended, the listing
requirements of any securities exchange on which the Company Stock may then be
listed, or the requirements under other laws or regulations applicable to the
issuance or sale of such shares.
8.
WITHDRAWAL
8.1 In Service Withdrawals. At any time prior to the Purchase Date
of an Offering Period, any Participant may withdraw the amounts held in his
Account by executing and delivering to the Human Resources Department for the
Company written notice of withdrawal on the form provided by the Company. In
such a case, the entire balance of the Participant's Account shall be paid to
the Participant, without interest, as soon as is practicable. Upon such
notification, the Participant shall cease to participate in the Plan for the
remainder of the Offering Period, and for the immediately following Offering
Period in which the notice is given. Any Employee who has withdrawn under this
Section shall be excluded from participation in the Plan for the remainder of
the Offering Period and for the immediately following Offering Period, but may
then be reinstated as a participant for a subsequent Offering Period by
executing and delivering a new Stock Purchase Agreement to the Human Resources
Department of the Company.
8.2 Termination of Employment.
(a) In the event that a Participant's employment with the
Company terminates for any reason, the Participant shall cease to participate in
the Plan on the date of termination. As soon as is practical following the date
of termination, the entire balance of the Participant's Account shall be paid to
the Participant or his beneficiary, without interest.
(b) A Participant may file a written designation of a
beneficiary who is to receive any shares of Company Stock purchased under the
Plan or any cash from the Participant's Account in the event of his or her death
subsequent to a Purchase Date, but prior to delivery of such shares and cash. In
addition, a Participant may file a written designation of a beneficiary who is
to receive any cash from the Participant's Account under the Plan in the event
of his death prior to a Purchase Date under paragraph (a) above.
(c) Any beneficiary designation under paragraph (b) above
may be changed by the Participant at any time by written notice. In the event of
the death of a Participant, the Committee may rely upon the most recent
beneficiary designation it has on file as being the appropriate beneficiary. In
the event of the death of a Participant where no valid beneficiary designation
exists or the beneficiary has predeceased the Participant, the Committee shall
deliver any cash or shares of Company Stock to the executor or administrator of
the estate of the Participant, or if no such executor or administrator has been
appointed to the knowledge of the Committee, the Committee, in its sole
discretion, may deliver such shares of Company Stock or cash to the spouse or
any one or more dependents or relatives of the Participant, or if no spouse,
dependent or relative is known to the Committee, then to such other person as
the Committee may designate.
<PAGE> 6
9.
PLAN ADMINISTRATION
9.1 Plan Administration.
(a) Authority to control and manage the operation and
administration of the Plan shall be vested in the Board of Directors (the
"Board") for the Company, or a committee ("Committee") thereof. The Board or
Committee shall have all powers necessary to supervise the administration of the
Plan and control its operations.
(b) In addition to any powers and authority conferred on the
Board or Committee elsewhere in the Plan or by law, the Board or the Committee
shall have the following powers and authority:
(i) To designate agents to carry out
responsibilities relating to the Plan;
(ii) To administer, interpret, construe and apply
this Plan and to answer all questions which may arise or which may be raised
under this Plan by a Participant, his beneficiary or any other person
whatsoever;
(iii) To establish rules and procedures from time to
time for the conduct of its business and for the administration and effectuation
of its responsibilities under the Plan; and
(iv) To perform or cause to be performed such further
acts as it may deem to be necessary, appropriate, or convenient for the
operation of the Plan.
(c) Any action taken in good faith by the Board or Committee
in the exercise of authority conferred upon it by this Plan shall be conclusive
and binding upon a Participant and his beneficiaries. All discretionary powers
conferred upon the Board shall be absolute.
9.2 Limitation on Liability. No Employee of the Company nor member
of the Board or Committee shall be subject to any liability with respect to his
duties under the Plan unless the person acts fraudulently or in bad faith. To
the extent permitted by law, the Company shall indemnify each member of the
Board or Committee, and any other Employee of the Company with duties under the
Plan who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed proceeding, whether civil, criminal,
administrative, or investigative, by reason of the person's conduct in the
performance of his duties under the Plan.
10.
COMPANY STOCK
10.1 Limitations on Purchase of Shares. Initially, the maximum number
of shares of Company Stock that shall be made available for sale under the Plan
shall be 100,000 shares, subject to adjustment under Section 10.4 below. As of
May 29, 1998, an additional 50,000 shares, subject to adjustment under Section
10.4 below were made available for sale under the Plan. The shares of Company
Stock to be sold to Participants under the Plan will be issued by the Company.
Effective on the Amendment Date, an additional 50,000 shares will be made
available under the Plan, subject to adjustment under Section 10.4 below. If the
total number of shares of Company Stock that would otherwise be issuable
pursuant to rights granted pursuant to Section 6.1 of the Plan at the Purchase
Date exceeds the number of shares then available under the Plan, the Company
shall make a pro rata allocation of the shares remaining available in as uniform
and equitable manner as is practicable. In such event, the Company shall give
written notice of
<PAGE> 7
such reduction of the number of shares to each participant affected thereby and
any unused payroll deductions shall be returned to such participant if
necessary.
10.2 Company Stock. The Participant will have no interest or voting
right in shares to be purchased under Section 6.1 of the Plan until such shares
have been purchased.
10.3 Registration of Company Stock. Shares to be delivered to a
Participant under the Plan will be registered in the name of the Participant
unless designated otherwise by the Participant.
10.4 Changes in Capitalization of the Company. Subject to any
required action by the stockholders of the Company, the number of shares of
Company Stock covered by each right under the Plan which has not yet been
exercised and the number of shares of Company Stock which have been authorized
for issuance under the Plan but have not yet been placed under rights or which
have been returned to the Plan upon the cancellation of a right, as well as the
Purchase Price per share of Company Stock covered by each right under the Plan
which has not yet been exercised, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Company Stock resulting
from a stock split, stock dividend, spin-off, reorganization, recapitalization,
merger, consolidation, exchange of shares or the like. Such adjustment shall be
made by the Board of Directors for the Company, whose determination in that
respect shall be final, binding and conclusive. Except as expressly provided
herein, no issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
of Company Stock subject to any right granted hereunder.
10.5 Merger of Company. In the event that the Company at any time
proposes to merge into, consolidate with or enter into any other reorganization
pursuant to which the Company is not the surviving entity (including the sale of
substantially all of its assets or a "reverse" merger in which the Company is
the surviving entity), the Plan shall terminate, unless provision is made in
writing in connection with such transaction for the continuance of the Plan and
for the assumption of rights theretofore granted, or the substitution for such
rights of new rights covering the shares of a successor corporation, with
appropriate adjustments as to number and kind of shares and prices, in which
event the Plan and the rights theretofore granted or the new rights 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 rights theretofore granted or the substitution for such rights
of new rights covering the shares of a successor corporation, then the Board of
Directors or its committee shall cause written notice of the proposed
transaction to be given to the persons holding rights not less than 10 days
prior to the anticipated effective date of the proposed transaction, and,
concurrent with the effective date of the proposed transaction, such rights
shall be exercised automatically in accordance with Section 7.1 as if such
effective date were a Purchase Date of the applicable Offering Period unless a
Participant withdraws from the Plan as provided in Section 8.1.
11.
MISCELLANEOUS MATTERS
11.1 Amendment and Termination. The Plan shall terminate ten (10)
years after the Effective Date. Since future conditions affecting the Company
cannot be anticipated or foreseen, the Company reserves the right to amend,
modify, or terminate the Plan at any time. Upon termination of the Plan, all
benefits shall become payable immediately. Notwithstanding the foregoing, no
such amendment or termination shall affect rights previously granted, nor may an
amendment make any change in any right previously granted which adversely
affects the rights of any Participant. In addition, no amendment may be made
without prior approval of the stockholders of the Company if such amendment
would:
<PAGE> 8
(a) Increase the number of shares of Company Stock that may
be issued under the Plan;
(b) Materially modify the requirements as to eligibility for
participation in the Plan; or
(c) Materially increase the benefits which accrue to
Participants under the Plan.
11.2 Stockholder Approval. Continuance of the Plan and the
effectiveness of any right granted hereunder shall be subject to approval by the
stockholders of the Company, within twelve months before or after the date the
Plan is adopted by the Board.
11.3 Benefits Not Alienable. Benefits under the Plan may not be
assigned or alienated, whether voluntarily or involuntarily. Any attempt at
assignment, transfer, pledge or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds in
accordance with Article VIII.
11.4 No Enlargement of Employee Rights. This Plan is strictly a
voluntary undertaking on the part of the Company and shall not be deemed to
constitute a contract between the Company and any Employee or to be
consideration for, or an inducement to, or a condition of, the employment of any
Employee. Nothing contained in the Plan shall be deemed to give the right to any
Employee to be retained in the employ of the Company or to interfere with the
right of the Company to discharge any Employee at any time.
11.5 Governing Law. To the extent not preempted by Federal law, all
legal questions pertaining to the Plan shall be determined in accordance with
the laws of the State of Delaware.
11.6 Non-business Days. When any act under the Plan is required to be
performed on a day that falls on a Saturday, Sunday or legal holiday, that act
shall be performed on the next succeeding day which is not a Saturday, Sunday or
legal holiday. Notwithstanding the above, Fair Market Value shall be determined
in accordance with Section 6.3.
11.7 Compliance With Securities Laws. Notwithstanding any provision
of the Plan, the Committee shall administer the Plan in such a way to ensure
that the Plan at all times complies with any requirements of Federal Securities
Laws. For example, affiliates may be required to make irrevocable elections in
accordance with the rules set forth under Section 16b-3 of the Securities
Exchange Act of 1934.
<PAGE> 1
EXHIBIT 5.1
[STRADLING YOCCA CARLSON & RAUTH LETTERHEAD]
June 11, 1999
Micro Therapeutics, Inc.
2 Goodyear
Irvine, California 92618
RE: Registration Statement on Form S-8 (Employee Stock Purchase Plan and 1996
Stock Incentive Plan)
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by Micro Therapeutics, Inc.,
a Delaware corporation (the "Company"), with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended, of an aggregate of 100,000 shares of the Company's common stock,
$.001 par value ("Common Stock"), issuable under the Company's Employee Stock
Purchase Plan (the "ESPP") and 1,400,000 shares of the Company's Common Stock
the 1996 Stock Incentive Plan (the "1996 Plans").
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that:
1. stock options, when issued in accordance with the 1996 Plan,
will be legally issued and binding obligations of the Company; and
2. 1,500,000 shares of Common Stock, when issued under the ESPP and
1996 Plan and against full payment therefor in accordance with the respective
terms and conditions of the ESPP and 1996 Plan, 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.
Very truly yours,
/s/ STRADLING YOCCA CARLSON & RAUTH
---------------------------------------
STRADLING YOCCA CARLSON & RAUTH
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 17, 1999 relating to the
consolidated financial statements of Micro Therapeutics, Inc., which appears
in the Micro Therapeutics, Inc. Annual Report on Form 10-KSB for the year
ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP
June 10, 1999
