<PAGE> 1
The Registrant requests that the Registration Statement become effective
immediately upon filing
pursuant to Securities Act Rule 462.
As filed with the Securities and Exchange Commission on May 26, 1995.
Registration No. __________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
ADAC LABORATORIES
(Exact Name of Issuer as Specified in its Charter)
California 94-1725806
----------------------- -------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
540 Alder Drive
Milpitas, California 95035
(Address of principal executive office)
1992 STOCK OPTION PLAN
(Full Title of the Plan)
David L. Lowe, Chief Executive Officer
ADAC Laboratories
540 Alder Drive
Milpitas, California 95035
(Name and Address of Agent for Service)
(408) 945-2990
(Telephone Number, Including Area Code, of Agent for Service)
----------------
Copy to:
Kriston D. Qualls, Esq.
Graven Perry Block Brody & Qualls
523 West Sixth Street, Suite 1130
Los Angeles, California 90014
(213) 680-9770
================================================================================
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share Price
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,640,602 sh $ N/A (2) $ N/A (2) $ 0(2)
780,000 sh $8.375(3) $292,500(3) $100.86(3)
------------ ------- ------
2,440,602 sh $292,500 $100.86
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus, in accordance with Rule 416(a), such indeterminate number of
shares as may become subject to options under the 1992 Stock Option
Plan (the "Plan") as a result of the adjustment provisions therein.
(2) Such shares have been previously registered and a registration fee has
been paid.
(3) The registration fee for 780,000 shares of Common Stock issuable upon
exercise of options which may be granted in the future is estimated
solely for the purpose of determining the amount of the registration
fee, based upon the last sale price of Registrant's Common Stock of
$8-3/8 on the NASDAQ National Market System on May 23, 1995.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers, if applicable, an indeterminate amount of
interests to be offered or sold pursuant to the Plan.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*.
Item 2. Registrant Information and Employee Plan Annual Information*.
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I
of Form S-8.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Registrant with the Securities and
Exchange Commission are incorporated by reference in the Registration
Statement:
(1) Registrant's Report on Form 10-K for its fiscal year ended
October 2, 1994;
(2) Registrant's Quarterly Reports on Form 10-Q for the quarters
ended January 1, 1995 and April 2, 1995;
(3) Registrant's Proxy Statement, dated February 1, 1995,
concerning the Annual Meeting of Shareholders held March 1, 1995.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
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 in this
Registration Statement 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of the Company provide for the indemnification of
directors and officers to the fullest extent permitted by the General
Corporation Law of the State of California.
Section 317 of the General Corporation Law of the State of California
authorizes indemnification when a person is made a party to any proceeding by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or was so serving at the request of the corporation in
such capacity for another corporation, and if such person acted in good faith
and in a manner reasonably believed to be in, or not opposed to, the best
interest of the corporation. With respect to any criminal proceeding, such
person must have had no reasonable cause to believe the conduct was unlawful.
If it is determined that the
3
<PAGE> 4
conduct of such person meets these standards, such person may be indemnified
for expenses incurred and amounts paid in such proceedings if actually and
reasonably incurred in connection therewith.
If such a proceeding is brought by or on behalf of the corporation
(i.e., a derivative suit), such person may be indemnified against expenses
actually and reasonably believed to be in, or not opposed to, the best
interests of the corporation. There can be no indemnification with respect to
any matter as to which such person is adjudged to be liable to the corporation
for negligence or misconduct in the performance of his or her duty; however, a
court may, even in such case, allow indemnification of such expenses as the
court deems proper. Where such person is successful in any such proceeding, he
or she is entitled to be indemnified against expenses actually and reasonable
incurred by him or her. In all other cases, indemnification is made by the
corporation upon determination by it that indemnification of such person is
proper because such person has met the applicable standard of conduct.
The California General Corporation Law permits a California
corporation to include in its Articles of Incorporation a provision eliminating
or limiting the liability of directors for monetary damages arising from
breaches of their fiduciary duty. The only limitations imposed under the
statute are that the provisions may not eliminate or limit a director's
liability (i) for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law, (ii) for acts or omissions that a
director believes to be contrary to the best interests of the corporation or
its shareholders or that involve the absence of good faith on the part of the
director, (iii) for any transaction from which a director derived an improper
personal benefit, (iv) for acts or omissions that show a reckless disregard for
the director's duty to the corporation or its shareholders in circumstances in
which the director was aware, or should have been aware, in the ordinary course
of performing a director's duties, of a risk of serious injury to the
corporation or its shareholders, (v) for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the
director's duty to the corporation or its shareholders, or (vi) for the payment
of unlawful dividends, stock purchases or redemptions. The Company's Articles
of Incorporation contain a provision eliminating the liability of the Company's
directors for breaches of their fiduciary duty, subject to the limitations
imposed by statute as described above. The provisions do not limit or
otherwise affect the personal liability or a director for violation of Federal
Securities Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
4
<PAGE> 5
ITEM 8. EXHIBITS.
The following Exhibits are filed as a part of this Registration
Statement:
4.1 ADAC Laboratories 1992 Stock Option Plan.
4.2 Amendment No. 1 to ADAC Laboratories 1992 Stock Option Plan.
4.3 Amendment No. 2 to ADAC Laboratories 1992 Stock Option Plan.
4.4 Amendment No. 3 to ADAC Laboratories 1992 Stock Option Plan.
5.1 Opinion of Graven Perry Block Brody & Qualls.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Graven Perry Block Brody & Qualls (included in
Option of Graven Perry Block Brody & Qualls filed as Exhibit
5.1 herein).
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 of 1933;
(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 this
Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement:
Provided however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
5
<PAGE> 6
(2) 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 offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remains
unsold at the termination of the offering.
(B) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of 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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(C) (1) 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 a copy of Registrant's annual report to
shareholders for its last fiscal year, unless such employee otherwise has
received a copy of such report, in which case Registrant shall state in the
Prospectus that it will promptly furnish, without charge, a copy of such report
on written request of the employee. If the last fiscal year of Registrant has
ended within 120 days prior to the use of the Prospectus, the annual report of
Registrant for the preceding fiscal year may be so delivered, but within such
120-day period the annual report for the last fiscal year will be furnished to
each such employee.
(2) The undersigned Registrant hereby undertakes to
transmit or cause to be transmitted to all employees participating in the Plan
who do not otherwise receive such material as shareholders of Registrant, at
the time and in the manner such material is sent to its shareholders, copies of
all reports, proxy statements and other communications distributed to its
shareholders generally.
(D) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of Registrant pursuant to the foregoing provisions, or otherwise,
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 Registrant
of expenses incurred or paid by a director, officer or controlling person of
Registrant in the successful defense of any
6
<PAGE> 7
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
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.
7
<PAGE> 8
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the Registrant, ADAC Laboratories, 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 Milpitas, State of
California, on the 23rd day of May, 1995.
ADAC LABORATORIES
By /s/ David L. Lowe
------------------------------
David L. Lowe,
Chief Executive Officer
8
<PAGE> 9
POWER OF ATTORNEY
The officers and directors of ADAC Laboratories, whose signatures
appear below, hereby constitute and appoint Stanley D. Czerwinski, David L.
Lowe and Dennis R. Mahoney, and each of them, their true and lawful attorneys
and agents, with full power of substitution, each with power to act alone, to
sign and execute on behalf of the undersigned any amendment or amendments to
this Registration Statement on Form S-8, and each of the undersigned does
hereby ratify and confirm all that said attorney and agent, or his or their
substitutes, shall do or cause to be done by virtue hereof.
________________________________________________________
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
----------------------------- -------------------------------------- ------------------
<S> <C> <C>
/s/ Stanley D. Czerwinski Chairman of the Board and Director May 23, 1995
-----------------------------
Stanley D. Czerwinski
/s/ David L. Lowe Director and Chief Executive Officer (Principal May 23, 1995
------------------------------
David L. Lowe Executive Officer)
/s/ Dennis R. Mahoney Chief Financial Officer (Principal Financial May 23, 1995
---------------------------
Dennis R. Mahoney and Accounting Officer)
/s/ Thomas A. McPherson Director May 10, 1995
--------------------------
Thomas A. McPherson
/s/ Robert L. Miller Director May 4, 1995
------------------------------
Robert L. Miller
/s/ F. David Rollo Director May 10, 1995
------------------------------
F. David Rollo
/s/ Edmund H. Shea, Jr. Director May 5, 1995
---------------------------
Edmund H. Shea, Jr.
</TABLE>
9
<PAGE> 1
EXHIBIT 4.1
ADAC LABORATORIES
1992 STOCK OPTION PLAN
1. PURPOSES OF PLAN. The purposes of this 1992 Stock Option Plan
of ADAC Laboratories (the "Plan") are to attract and retain the best available
personnel for positions of substantial responsibility, and to provide
additional incentives to key employees, officers, consultants and other persons
whose efforts are deemed worthy of encouragement in order to promote the growth
and success of the Company's business.
2. DEFINITIONS. As used herein, the following definitions shall
apply:
(a) "BOARD" shall mean the Board of Directors of the
Company.
(b) "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
(c) "COMMON STOCK" shall mean the Common Stock of the
Company.
(d) "COMPANY" shall mean ADAC Laboratories, a California
corporation.
(e) "COMMITTEE" shall mean the Committee appointed by the
Board of Directors in accordance with Section 4(a) below, if one has been
appointed.
(f) "CONSULTANT" shall mean any person who is engaged by
the Company or any Parent or Subsidiary of the Company to render consulting
services.
(g) "CONTINUOUS STATUS AS AN EMPLOYEE OR CONSULTANT"
shall mean the absence of any interruption or termination of services as an
Employee or Consultant. Continuous Status as an Employee or Consultant shall
not be considered interrupted in the case of sick leave, military leave, or any
other leave of absence approved by the Board, provided that either such leave
is for a period of not more than ninety (90) days or reemployment upon the
expiration of such leave is guaranteed by contract or statute.
(h) "EMPLOYEE" shall mean any person, including an
officer or director, employed by the Company or any Parent or Subsidiary of the
Company. The payment of a director's fee by the Company shall not be
sufficient to constitute "employment" by the Company.
<PAGE> 2
ADAC Laboratories
1992 Stock Option Plan
(i) "OFFICER" shall mean any person, including a
director, employed by the Company or any Parent or Subsidiary of the Company
who has been elected an officer of the Company by the Board of Directors and
who is required to file periodic reports under Section 16(a) of the Securities
Exchange Act of 1934.
(j) (1) "OPTION" or "OPTIONS" shall mean one
or more stock options issued pursuant to the Plan. Options may be either
"Incentive Options," which are defined as Options intended to meet the
requirements of Section 422A of the Code and any regulations promulgated
thereunder, or "Nonqualified Options," which are defined as Options not
intended to meet such requirements.
(k) "OPTIONED STOCK" shall mean the Common Stock subject
to an Option.
(l) "OPTIONEE" shall mean a person who receives an Option.
(m) "PARENT" shall mean a "parent corporation", whether
now or hereafter existing, as defined in Section 425(e) of the Code.
(n) "PLAN" shall mean this 1992 Stock Option Plan.
(o) "SHARE" shall mean a share of Common Stock, as may be
adjusted in accordance with Section 11 below.
(p) "SUBSIDIARY" shall mean a "subsidiary corporation",
whether now or hereafter existing, as defined in Section 425(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of
Section 11 below, the maximum aggregate number of shares that may be optioned
and sold under the Plan is three million (3,000,000) shares of Common Stock.
If an Option should expire or become unexercisable for any reason without
having been exercised in full, then the unpurchased shares that were subject to
the Option shall, unless the Plan has been terminated, become available for
future grant under the Plan.
4. ADMINISTRATION OF THE PLAN.
(a) APPOINTMENT OF COMMITTEE.
(i) Before any Option under the Plan is granted
to an Officer or Director of the Company, the Board shall
appoint a Committee, comprised of not less than two (2)
2
<PAGE> 3
ADAC Laboratories
1992 Stock Option Plan
members of the Board, each of whom shall be a "disinterested
person", as that term is defined from time to time in Rule
16b- 3(c)(2)(i) promulgated under the Securities Exchange Act
of 1934, as amended. The Committee may be an existing
committee of the Board or a new committee organized for the
purpose of administering the Plan. Options granted to any
person who is both an employee and a Director may be granted
only by the Committee.
(ii) An Option to an Officer may be granted by the
Board if each member thereof is then a "disinterested person"
(as hereinabove defined). Otherwise, an Option to an Officer
may be granted only by the Committee.
(iii) A Option to a person who is neither an Officer
nor a Director may be granted by either the Board or the
Committee.
(iv) Subject to the foregoing, the Board may, from
time to time, increase the size of the Committee and appoint
additional members thereof, remove members (with or without
cause) and appoint new members in substitution therefor, fill
vacancies however caused or remove all members of the
Committee. All actions of the Board or the Committee, if
taken in accordance with the Company's Bylaws, shall be valid
notwithstanding the fact that one or more of the members
thereof do not constitute "disinterested persons", as
hereinabove defined.
(b) POWERS OF THE BOARD. Subject to the provisions of
the Plan, the Board and the Committee shall have the authority, in its
discretion:
(i) to determine, upon review of relevant
information, the fair market value of the Common Stock;
(ii) to determine the persons to whom Options
shall be granted, the time or times at which Options shall be
granted, the number of Shares to be represented by each Option
and the exercise price per Share;
(iii) to interpret the Plan;
(iv) to prescribe, adopt, amend, and rescind rules
and regulations relating to the Plan;
(v) to determine whether an Option granted shall
be an Incentive Option or a Nonqualified Option and to
3
<PAGE> 4
ADAC Laboratories
1992 Stock Option Plan
determine the terms and provisions of each Option granted
(which need not be identical) and, with the consent of the
holder thereof, to modify or amend each Option;
(vi) to determine the exercise date(s) and the
number of shares exercisable at each such date, and to
accelerate or defer (with the consent of the Optionee) the
exercise date of any Option;
(vii) to authorize any person to execute on behalf of
the Company any instrument required to effectuate the grant of
an Option previously approved by the Board or the Committee;
(viii) to reduce the exercise price of outstanding
Options if the fair market value of the shares subject to any
such Option is more than twenty percent (20%) below the
existing exercise price of such Option and, in connection
therewith, to maintain or modify the existing, or commence a
new, vesting schedule and, if required in connection
therewith, to reclassify Incentive Options to Nonqualified
Options;
(ix) to make such adjustments to Options granted
under the Plan to enable them to comply with the laws of
foreign jurisdictions and/or to make them consistent with
options customarily utilized by companies in foreign
jurisdictions; and
(x) to make all other determinations deemed
necessary or advisable for the administration of the Plan.
(c) EFFECT OF DECISIONS. All decisions, determinations,
and interpretations of the Board or the Committee shall be final and binding on
all Optionees and any other holders of any Options granted under the Plan.
5. ELIGIBILITY. Options may be granted only to Employees,
Officers, Consultants or other persons whose efforts are deemed by the Board or
the Committee to be worthy of encouragement in order to promote the growth and
success of the Company. A person who has been granted an Option may, if he/she
is otherwise eligible, be granted an additional Option or Options. Options
under the Plan may not be granted to any non-employee director.
Neither the Plan nor any Option granted hereunder shall confer
upon any Optionee any right with respect to continuation of
4
<PAGE> 5
ADAC Laboratories
1992 Stock Option Plan
employment with the Company, nor shall it interfere in any way with his/her
right or the Company's right to terminate his/her employment at any time, with
or without cause.
6. TERM OF PLAN. The Plan shall continue in effect for a term of
ten (10) years unless sooner terminated under Section 13 below. Options may be
granted hereunder immediately.
7. TERM OF OPTION. The term of any Incentive Option granted
under the Plan shall be for a period of not to exceed ten (10) years from the
date on which it is granted, as determined by the Board of Directors or the
Committee; provided, however, that any Incentive Option granted to any person
who owns shares possessing more than ten percent (10%) of the total combined
voting power or value of all classes of stock of the Company or of a Subsidiary
of the Company shall have a term of not to exceed five (5) years. The term of
a Nonqualified Option may be infinite or for a specific term.
8. EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per share exercise price for the
Shares to be issued pursuant to the exercise of an Incentive Option shall not
be less than one hundred percent (100%) of the fair market value of the
Company's Common Stock on the date of grant as determined by the Board or the
Committee; provided, however, that any Incentive Option granted to any person
who owns shares possessing more than ten percent (10%) of the total combined
voting power or value of all classes of stock of the Company or of a Subsidiary
thereof shall have a per share exercise price of one hundred ten percent (110%)
of the fair market value of the Company's Common Stock on the date of grant as
determined by the Board or the Committee. The per share exercise price for
Shares to be issued pursuant to the exercise of a Nonqualified Option shall not
be less than eighty-five percent (85%) of the fair market value of the
Company's Common Stock on the date of grant as determined by the Board or the
Committee.
(b) FAIR MARKET VALUE. The fair market value shall be
determined by the Board or the Committee in its discretion; provided, however,
that if there is a public market for the Common Stock, the fair market value
per Share shall be, in the event the Common Stock is listed on the NASDAQ
National Market System or on a stock exchange, the closing price on such
National Market System or exchange on the date of grant of the Option, as
reported in the "Wall Street Journal", and, if not so listed, fair market value
shall be the mean of the bid and asked prices of the Common Stock on the date
of the grant, as reported in the "Wall Street Journal"
5
<PAGE> 6
ADAC Laboratories
1992 Stock Option Plan
(or, if not so reported, as otherwise reported by the National Association of
Securities Dealers Automated Quotation (NASDAQ) System).
(c) CONSIDERATION. The consideration to be paid for the
Shares to be issued upon exercise of an Option, including the method of
payment, shall be determined by the Board or the Committee and may consist
entirely of cash, check, promissory note or shares of Company Common Stock
(which must have been held for at least six (6) months) having a fair market
value on the date of surrender equal to the aggregate exercise price of the
Shares as to which the Option shall be exercised, or any combination of such
methods of payment, or other consideration and method of payment for the
issuance of Shares to the extent permitted under Section 408 and 409 of the
California General Corporation Law. In making its determination as to the type
of consideration to accept, the Board or the Committee shall consider whether
such consideration may be reasonably expected to benefit the Company.
(d) RE-LOAD OPTION. Whenever an Optionee exercises an
Option by surrendering already-owned shares to pay all or a portion of the
exercise price, if the Option Agreement so provides or if permitted by the
Board or the Committee, at its discretion, at the time of such exercise, the
Optionee shall receive a new Option for the purchase of a number of Shares
equal to the number of Shares so surrendered, and such new Option shall have an
exercise price of not less than the fair market value of a Share of Common
Stock on the date of such surrender and shall vest and become exercisable as
may be determined by the Board or the Committee.
(e) WITHHOLDING TO PAY TAXES. Option Agreements under
the Plan may contain a provision to the effect that all Federal and state taxes
required to be withheld or collected from an Optionee upon exercise of an
Option may be satisfied by either (i) delivering outstanding shares of Common
Stock of the Company previously owned for six (6) months by the Optionee or
(ii) the withholding of a sufficient number of exercised Option shares which,
valued at fair market value on the date of exercise, would be equal to the
total withholding obligation of the Optionee; provided, however, that no person
who is an "officer" of the Company, as such term is defined in Rule 3b-2 under
the Securities Exchange Act of 1934, may elect to satisfy the withholding of
Federal and state taxes upon the exercise of an Option by the withholding of
Optioned Stock unless such election is made either (i) at least six months
prior to the date that the exercise of the Option becomes a taxable event or
(ii) during any of the periods beginning on the third business day following
the date on which the Company releases publicly the operating results of a
fiscal quarter or fiscal year and ending on
6
<PAGE> 7
ADAC Laboratories
1992 Stock Option Plan
the twelfth (12th) business day following such date. Such election shall be
deemed made upon receipt of notice thereof by an officer of the Company, by
mail, personal delivery or by facsimile message, and shall be operative for all
Option exercises which occur following the election, until terminated by a
notice revoking such withholding election (such termination shall become
effective six (6) months after the date of such new notice).
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER.
(i) Any Option granted hereunder shall be
exercisable at such times and under such conditions as determined by the Board
or the Committee, including performance criteria with respect to the Company
and/or the Optionee, and as otherwise permissible under the terms of the Plan.
(ii) An Option may not be exercised for a fraction
of a Share.
(iii) An Option shall be deemed to be exercised when
written notice of such exercise has been given to the Company in accordance
with the terms of the Option by the person entitled to exercise the Option and
full payment for the Shares with respect to which the Option is exercised has
been received by the Company; provided, however, that the Board or the
Committee may prescribe and adopt rules and procedures allowing an Optionee to
exercise an Option and sell the Optioned Stock simultaneously (or on the same
business day) under circumstances which provide reasonable certainty that the
Company will receive the Option exercise price by the settlement date of the
sale of the Optioned Stock. Until the issuance (as evidenced by an appropriate
entry on the books of the Company or of a duly authorized transfer agent of the
Company) of the stock certificate evidencing such Shares, no right to vote or
receive dividends or any other rights as a shareholder shall exist with respect
to the Optioned Stock, notwithstanding the exercise of the Option. No
adjustment shall be made for a dividend or other right for which the record
date is prior to the date the stock certificate is issued, except as provided
in Section 11 below.
(iv) Exercise of an Option in any manner shall
result in a decrease in the number of Shares which thereafter may be available,
both for purposes of the Plan and for exercise under the Option, by the number
of Shares as to which the Option is exercised.
7
<PAGE> 8
ADAC Laboratories
1992 Stock Option Plan
(b) TERMINATION OF CONTINUOUS STATUS AS AN EMPLOYEE OR
CONSULTANT.
(i) Except as set forth in Section 9(b)(ii)
below, if an Employee or Consultant ceases his/her Continuous Status as an
Employee or Consultant (as the case may be), he/she may, but only within ninety
(90) days (or, with respect to Nonqualified Options, such longer period of time
as may be determined by the Board or the Committee), after the date he/she
ceases to have such Continuous Status, exercise his/her Option to the extent
that he/she was entitled to exercise it at the date of such termination.
(ii) Notwithstanding the provisions of Section
9(b)(i) above, if the holder of an Option (A) is terminated due to Optionee's
willful refusal to perform the normal and/or reasonable duties and
responsibilities delegated to Optionee as an Employee of the Company, (B) is
terminated due to Optionee's expropriation of Company property (including trade
secrets or other proprietary rights), or (C) leaves the employment of the
Company in order to directly (or indirectly, as an employee or agent of another
business or business entity) compete with the Company, the Board or the
Committee shall have the authority, by notice to the holder of an Option, to
immediately terminate such Option, effective on the date of termination, and
such Option shall no longer be exercisable to any extent whatsoever.
(c) RETIREMENT. Notwithstanding the provisions of
Section 9(a) above, if an Optionee ceases Continuous Status as an Employee or
Consultant as a result of retiring as an active Employee or Consultant of the
Company at age 62 or older, such ninety-day period shall be extended to one (1)
year. To the extent that Optionee was not entitled to exercise the Option at
the date of such termination, or if Optionee does not exercise such Option
within the time specified herein, the Option shall terminate.
(d) DISABILITY. Notwithstanding the provisions of
Section 9(a) above, in the event an Employee or Consultant is unable to
continue his/her employment or consulting relationship (as the case may be)
with the Company as a result of his/her total and permanent disability (as
defined in Section 105(d)(4) of the Code), he/she may, but only within a period
of up to twenty-four (24) months (or such shorter or longer period of time as
is determined by the Board or the Committee or as set forth in the Option
Agreement) from the date of termination, exercise the Option to the extent
Optionee was entitled to exercise it at the date of such termination. To the
extent that Optionee was not entitled to exercise the Option at the date of
termination, or if Optionee does
8
<PAGE> 9
ADAC Laboratories
1992 Stock Option Plan
not exercise such Option within the time specified herein, the Option shall
terminate.
(e) DEATH OF OPTIONEE. In the event of the death of an
Optionee which occurs during the time in which an Option may be exercised, such
Option may be exercised at any time within two (2) years following the date of
death or such shorter period as may be set forth in the Option Agreement, by
the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to
exercise that would have accrued had the Optionee continued living and remained
in Continuous Status as an Employee or Consultant for two (2) years after the
date of death.
(f) DESIGNATION OF BENEFICIARY. Notwithstanding anything
in the Plan to the contrary, any Option Agreement issued under the Plan may
provide for the designation of a beneficiary of the Optionee (which may be an
individual or a trust) who may exercise the Option after the Optionee's death
and enjoy the economic benefits thereof, subject to the consent of Optionee's
spouse if required by law.
10. NON-TRANSFERABILITY OF OPTIONS.
Options shall not be transferable by the holder thereof
otherwise than (i) by will, (ii) pursuant to the laws of descent and
distribution or (iii) if then permitted by Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended, pursuant to a qualified domestic
relations order as defined in the Code or Title I of the Employee Retirement
Income Security Act (ERISA), or the rules thereunder; provided, however, that
an Optionee may designate a beneficiary who, upon Optionee's death, may
exercise the Option to the extent permitted in Section 9 of the Plan.
11. ADJUSTMENTS.
(a) STOCK SPLITS, DIVIDENDS AND OTHER COMBINATIONS.
Subject to any required action by the shareholders of the Company, the number
of shares of Common Stock covered by each outstanding Option, and the number of
shares of Common Stock which have been authorized for issuance under the Plan
but as to which no Options have yet been granted or which have been returned to
the Plan upon cancellation or expiration of an Option, as well as the price per
share of Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or
9
<PAGE> 10
ADAC Laboratories
1992 Stock Option Plan
reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been
"effected without receipt of consideration." Such adjustment shall be made by
the Board or the Committee, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance 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 Common Stock
subject to an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the
proposed dissolution or liquidation of the Company, each Option shall terminate
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Board or the Committee. The Board or the Committee may, in the
exercise of its sole discretion in such instances, declare that any Option
shall terminate as of a date fixed by the Board or the Committee and give each
Optionee the right to exercise his/her Option as to all or any part of the
Optioned Stock, including Shares as to which the Option would not otherwise be
exercisable.
(c) SALE OF ASSETS OR MERGER. In the event of a proposed
sale of all or substantially all of the assets of the Company, or the merger of
the Company with or into another corporation, the Option shall be assumed or an
equivalent option (containing the same vesting schedule and equivalent exercise
price) shall be substituted by such successor corporation or a parent or
subsidiary of such successor corporation, unless the Board or the Committee
determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, that the Optionee shall have the right to exercise
the Option as to all of the Optioned Stock, including Shares as to which the
Option would not otherwise be exercisable. If the Board or the Committee makes
an Option fully exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, then the Board shall notify the Optionee that
the Option shall be fully exercisable for a period of thirty (30) days from the
date of such notice, and the Option shall terminate upon the expiration of such
period.
12. SPECIAL PROVISIONS RELATING TO INCENTIVE OPTIONS. The Company
shall not grant Incentive Options under the Plan to any Optionee to the extent
that the aggregate fair market value of the Common Stock covered by such
Incentive Options which are exercisable for the first time during any calendar
year, when combined
10
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ADAC Laboratories
1992 Stock Option Plan
with the aggregate fair market value of all stock covered by incentive stock
options granted to such Optionee after December 31, 1986 by the Company, its
Parent or a Subsidiary thereof which are exercisable for the first time during
the same calendar year, exceeds $100,000. Incentive Options shall be granted
only to persons who, on the date of grant, are Employees of the Company or a
Parent or a Subsidiary of the Company. Notwithstanding the above, to the
extent the fair market value of Shares subject to Incentive Stock Options first
exercisable in a calendar year is greater than $100,000, the excess Options
shall be treated as Non-qualified Options.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board or the
Committee may at any time suspend, amend or terminate the Plan with or without
shareholder approval; provided, however, that if the Plan has been previously
approved by the shareholders, no amendment or modification may be adopted
without shareholder approval if the amendment would (i) materially increase the
benefits accruing to participants under the Plan; (ii) materially increase the
number of Shares which may be issued under the Plan or (iii) materially modify
the requirements as to the eligibility for participation in the Plan.
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such
amendment or termination of the Plan shall not affect Options already granted
and such Options shall remain in full force and effect as if the Plan had not
been amended or terminated, unless mutually agreed otherwise between the
Optionee and the Board or the Committee, which agreement must be in writing and
signed by the Optionee and the Company.
14. CONDITIONS UPON ISSUANCE OF SHARES.
(a) COMPLIANCE WITH SECURITIES LAWS. Shares shall not be
issued pursuant to the exercise of an Option unless the exercise of such Option
and the issuance and delivery of such Shares pursuant thereto complies with all
relevant provisions of law, including, without limitation, the Securities Act
of 1933, the Securities Exchange Act of 1934, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the Shares may then be listed. The exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall be further subject to the
approval of counsel for the Company with respect to such compliance.
11
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ADAC Laboratories
1992 Stock Option Plan
(b) INVESTMENT REPRESENTATION. As a condition to the
exercise of an Option, the Company may require the person exercising such
Option to represent and warrant at the time of any such exercise that the
Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
15. RESERVATION OF SHARES. The Company, during the term of the
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan. The inability of
the Company to obtain authority from any regulatory body having jurisdiction,
which authority is deemed by the Company's counsel to be necessary to the
lawful issuance and sale of any Shares hereunder, shall relieve the Company of
any liability in respect of the failure to issue or sell such Shares as to
which such requisite authority shall not have been obtained.
16. OPTION AGREEMENTS. Options shall be evidenced by written
Option Agreements in such form as the Board or the Committee shall approve.
17. SHAREHOLDER APPROVAL. The Plan shall become effective when
approved by the Board or any committee thereof having authority to do so. The
Plan may be submitted to the shareholders for approval, but the lack of such
shareholder approval shall not affect the validity or effectiveness of any
Option granted hereunder.
Adopted and Approved
Effective July 8, 1992
12
<PAGE> 1
EXHIBIT 4.2
AMENDMENT NO. 1 TO
ADAC LABORATORIES
1992 STOCK OPTION PLAN
The 1992 Stock Option Plan of ADAC Laboratories (the "Plan") is hereby
amended, effective immediately, as follows:
1. Section 4(b)(viii), providing for the reduction of the
exercise price of outstanding options under certain circumstances, is hereby
deleted.
2. The last full sentence of Section 8(a) of the Plan, providing
for the determination of the exercise price of stock options granted, is hereby
amended to read in full as follows:
"The per share exercise price for Shares to be issued pursuant
to the exercise of a Nonqualified Option shall not be less
than one hundred percent (100%) of the fair market value of
the Company's Common Stock on the date of grant as determined
by the Board or the Committee."
3. In all other respects the Plan is hereby ratified and
confirmed.
4. The amendments to the Plan herein set forth have been approved
and are effective as of the fifteenth (15th) day of March, 1993.
By order of the Board of Directors:
By /s/ Stanley D. Czerwinski
------------------------------
Stanley D. Czerwinski,
Chairman of the Board
<PAGE> 1
EXHIBIT 4.3
AMENDMENT NO. 2
TO
ADAC LABORATORIES
1992 STOCK OPTION PLAN
The 1992 Stock Option Plan of ADAC Laboratories (the "Plan") is hereby
amended, effective immediately, as follows:
1. Section 3, providing for the number of shares subject to the
Plan, is hereby amended to provide that the maximum aggregate number of shares
that may be optioned and sold under the Plan is 1,666,000 shares of Common
Stock (such number reflects the prior 1-for-3 reverse stock split).
2. In all other respects the Plan is hereby ratified and
confirmed.
3. The amendments to the Plan herein set forth have been approved
by the Board of Directors on November 3, 1993 and approved by the shareholders
on March 2, 1994, and are effective as of such later date.
By order of the Board of Directors:
By /s/ Stanley D. Czerwinski
--------------------------------
Stanley D. Czerwinski,
Chairman of the Board
<PAGE> 1
EXHIBIT 4.4
AMENDMENT NO. 3
TO
ADAC LABORATORIES
1992 STOCK OPTION PLAN
The 1992 Stock Option Plan of ADAC Laboratories (the "Plan") is hereby
amended, effective immediately, as follows:
1. Section 3, providing for the number of shares subject to the
Plan, is hereby amended to provide that the maximum aggregate number of shares
that may be optioned and sold under the Plan is 2,446,000 shares of Common
Stock
2. Section 5, entitled "Eligibility," is hereby amended to change
the title to "Eligibility; Maximum Annual Limitation" and to add a new last
sentence to the first paragraph as follows:
"The aggregate number of shares of Common Stock with
respect to which Options may be granted to any one Optionee shall not
exceed 300,000 shares in any calendar year, subject to adjustment in
accordance with Section 11."
3. The first sentence of Section 4(a)(i), entitled
"Administration of the Plan -- (a) Appointment of Committee," is hereby amended
as follows:
"(i) Before any Option under the Plan is granted to
an Officer or Director of the Company, the Board shall appoint a
Committee, comprised of at least two (2) members of the Board, each of
whom shall be "disinterested," as that term is defined from time to
time in Rule 16b-3 promulgated under the Securities Exchange Act of
1934, and, in addition, as may be further defined under Section 162
(m) of the Internal Revenue Code of 1986."
4. In all other respects the Plan is hereby ratified and
confirmed.
5. The amendments to the Plan herein set forth have been approved
by the Board of Directors on November 2, 1994 and approved by the shareholders
on March 1, 1995, and are effective as of such later date.
By order of the Board of Directors:
By /s/ Stanley D. Czerwinski
--------------------------------
Stanley D. Czerwinski,
Chairman of the Board
<PAGE> 1
EXHIBIT 5.1
[GRAVEN PERRY BLOCK BRODY & QUALLS LETTERHEAD]
May 25, 1995
A-176-4.1
ADAC Laboratories
540 Alder Drive
Milpitas, California 95035
Gentlemen:
We are acting as counsel for ADAC Laboratories (the "Company") in connection
with the preparation and filing of the Company's Registration Statement on Form
S-8 pursuant to the Securities Act of 1933, as amended (the "Act"), for the
registration under the Act of 2,420,602 shares (including 1,640,602 shares
which have been previously subject to a registration statement) of the
Company's Common Stock, without par value (the "Shares"), which may be issued
pursuant to the exercise of options granted under the Company's 1992 Stock
Option Plan.
We are familiar with the proceedings taken by the Company relating to the
authorization and issuance of the Shares in the manner set forth in the
Registration Statement. We have examined and relied upon the originals, or
copies, of such corporate records, certificates, documents and other
instruments, and reviewed such questions of law as we have considered necessary
and appropriate in order to enable us to render the opinion expressed below,
and on the basis of such, we hereby advise you as follows:
Subject to the taking of certain proceedings, to the extent required, in
certain states which may have jurisdiction with respect thereto, the Shares,
when issued and sold in the manner set forth in the Registration Statement
and in the manner provided in the 1992 Stock Option Plan pursuant to which
such issuance and sale will be undertaken, will be legally and validly issued
and outstanding, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
GRAVEN PERRY BLOCK BRODY & QUALLS
A PROFESSIONAL CORPORATION
By /s/ Kriston D. Qualls
------------------------------
Kriston D. Qualls
KDQ:llr
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
ADAC Laboratories on Form S-8 of our report dated October 25, 1994, except for
Note 10 as to which the date is December 7, 1994, on our audits of the
consolidated financial statements and financial statement schedules of ADAC
Laboratories as of October 2, 1994 and October 3, 1993, and for each of the
three fiscal years in the period ended October 2, 1994, which report is
incorporated by reference in Form 10-K for the fiscal year ended October 2,
1994.
/s/ Coopers & Lybrand L.L.P.
San Jose, California
May 26, 1995
