<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 April ___, 1996
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)
EMPLOYEE STOCK PURCHASE PLAN (1994)
(Full Title of the Plan)
David L. Lowe, Chairman of the Board
ADAC Laboratories
540 Alder Drive
Milpitas, California 95035
(Name and Address of Agent for Service)
(408) 321-9100
(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 7,459 sh(2) $ N/A(2) N/A (2) $ -0-(2)
65,000 sh $ 16.625(3) $1,080,625(3) $372.63(3)
------ ---------- -------
72,459 sh $1,080,625 $372.63
_______________________________________________________________________________________________________________________
</TABLE>
(1) Plus, in accordance with Rule 416(a), such indeterminate number of
shares as may become subject to the Employee Stock Purchase Plan (the
"Plan") as a result of the adjustment provisions therein.
(2) Such shares have been previously subject to a registration statement
and a registration fee has been paid for the sale of such shares.
(3) 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 $16-5/8 on the NASDAQ National Market System on April
16, 1996. These 65,000 shares of Common Stock represent the shares
purchasable under 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 Annual Report on Form 10-K for its fiscal year
ended October 1, 1995; and
(2) Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 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
3
<PAGE> 4
believe the conduct was unlawful. If it is determined that the 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:
<TABLE>
<S> <C>
4.1 ADAC Laboratories Amended and Restated Employee Stock Purchase Plan (1994).
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 Opinion of Graven Perry Block Brody & Qualls filed as
Exhibit 5.1 herein).
</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 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.
(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.
5
<PAGE> 6
(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 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.
6
<PAGE> 7
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 16th day of April, 1996.
ADAC LABORATORIES
By /s/ David L. Lowe
-------------------------
David L. Lowe,
Chairman of the Board
<PAGE> 8
POWER OF ATTORNEY
The officers and directors of ADAC Laboratories, whose signatures
appear below, hereby constitute and appoint David L. Lowe and P. Andre Simone,
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/ David L. Lowe Chairman of the Board, Director and Chief April 16, 1996
----------------------------- Executive Officer (Principal Executive Officer)
David L. Lowe
/s/ P. Andre Simone Vice President, Finance, Treasurer and April 16, 1996
-------------------------- Secretary (Principal Financial and Accounting
P. Andre Simone Officer)
/s/ Stanley D. Czerwinski Director April 16, 1996
-------------------------
Stanley D. Czerwinski
/s/ Graham O. King Director April 16, 1996
--------------------------
Graham O. King
/s/ Robert L. Miller Director April 16, 1996
-----------------------------
Robert L. Miller
/s/ F. David Rollo Director April 16, 1996
-----------------------------
F. David Rollo
/s/ Edmund H. Shea, Jr. Director April 16, 1996
-------------------------
Edmund H. Shea, Jr.
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Description Page
- ------ ----------- -----------
<S> <C> <C>
4.1 ADAC Laboratories Amended and Restated Employee Stock
Purchase Plan (1994).
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
Opinion of Graven Perry Block Brody & Qualls filed as
Exhibit 5.1 herein).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
ADAC LABORATORIES
AMENDED AND RESTATED
EMPLOYEE STOCK PURCHASE PLAN (1994)
1. ESTABLISHMENT OF THE PLAN; PURPOSE. This Employee Stock
Purchase Plan (1994) (the "Plan") is established to provide Eligible Employees
with an opportunity through regular payroll deductions to purchase Common Stock
of ADAC Laboratories (the "Company") so that they may increase their
proprietary interest in the Company. The Plan is intended to qualify as an
"employee stock purchase plan" under Section 423 of the Internal Revenue Code.
2. DEFINITIONS. As used herein, the following definitions shall
apply:
(a) "Board of Directors" means the Committee, if one has
been appointed, or the Board of Directors of the Company if no Committee has
been appointed.
(b) "Code" means the Internal Revenue Code, as amended
from time to time.
(c) "Committee" means the committee appointed by the
Board of Directors to administer the Plan in accordance with Section 3 below,
if one is appointed.
(d) "Company" means ADAC Laboratories and such present or
future Subsidiaries, as defined in Section 424 of the Code, of the Company as
the Board of Directors shall from time to time designate.
(e) "Compensation" means the annual base rate of pay of a
Participant, determined in accordance with nondiscriminatory rules adopted by
the Board of Directors, including commissions, but excluding bonuses, income
with respect to stock options or other stock purchases, moving expense
reimbursements, shift differentials or any pay for work outside the regular
work schedule.
(f) "Eligible Employee" means any regular employee of the
Company who is customarily employed for at least 20 hours per week and more
than five (5) months in any calendar year.
(g) "Fair Market Value" of a share of Stock means the
NASDAQ closing price on the applicable date. In the event the Stock is not
traded on the date as of which the Fair Market Value is to be determined, Fair
Market Value shall be determined as of the next preceding date on which the
Stock is traded.
(h) "Interim Offering Period" means each period (of up to
three months in duration) during and within an Offering Period, all as
established by the Board of Directors.
<PAGE> 2
ADAC Laboratories
Amended and Restated
Employee Stock Purchase Plan (1994)
(i) "Option" means the right of a Participant to purchase
Stock during the applicable Offering Period.
(j) "Offering Date" means the first day of each Offering
Period.
(k) "Offering Period" means, in the absence of a specific
determination to the contrary by the Board of Directors or the Committee, a
27-month period during which contributions may be made toward the purchase of
Stock under the Plan. The Board of Directors or the Committee shall establish
from time to time Option Periods which shall be up to twenty-seven (27) months.
The first Offering Period under the Plan shall commence March 1, 1994.
(l) "Participant" means an Eligible Employee who elects
to participate in the Plan.
(m) "Plan Account" means the account established for each
Participant pursuant to the Plan. No interest shall accrue for the Participant
in the Plan Account.
(n) "Purchase Price" means the price at which
Participants may purchase Stock as determined pursuant to the Plan.
(o) "Stock" means the Common Stock of the Company.
(p) "Subsidiary" means a corporation a majority of whose
voting shares are owned by the Company.
3. ADMINISTRATION. The Plan shall be administered by the Board
of Directors and/or by a duly appointed Committee consisting of two or more
persons, at least two of which shall be members of the Board of Directors, and
having such powers as shall be specified by the Board. The Board of Directors
may from time to time remove members from, or add members to, the Committee.
Vacancies on the Committee, howsoever caused, shall be filled by the Board of
Directors. The Committee shall select one of its members as Chairman, and shall
hold meetings at such times and places as it may determine. The interpretation
and construction by the Board of Directors or the Committee of any provision of
the Plan or of any right to purchase Stock shall be conclusive and binding on
all persons.
4. NUMBER OF SHARES TO BE OFFERED. The maximum aggregate number
of shares which shall be offered under the Plan shall be 185,000 shares of
Stock, subject to adjustment as provided in Section 8 hereof. In the event
that any Option granted under the Plan expires or is terminated for any reason,
such shares allocable to the unexercised portion of such Option shall again be
subject to an Option under the Plan.
2
<PAGE> 3
ADAC Laboratories
Amended and Restated
Employee Stock Purchase Plan (1994)
5. ELIGIBILITY AND PARTICIPATION.
(a) INITIAL PARTICIPATION. An Eligible Employee shall
become a Participant on the Offering Date after satisfying the eligibility
requirements by delivering to the Company's payroll office an enrollment form
authorizing payroll deductions not less than ten (10) business days prior to
such Offering Date. An Eligible Employee who did not enroll in the Plan prior
to the Offering Date, or a person who becomes an Eligible Employee after an
Offering Date, may enroll in the Plan for the remainder of the Offering Period
as of the beginning of the next Interim Offering Period by completing and
filing an enrollment form prior to the commencement date of such Interim
Offering Period.
(b) CONTINUED PARTICIPATION. A Participant shall
automatically participate in each successive Offering Period (including Interim
Offering Periods) until such time as such Participant withdraws from the Plan
as set forth below. A Participant is not required to file any additional
enrollment forms for subsequent Offering Periods in order to continue
participation in the Plan.
(c) PAYROLL DEDUCTION RATE. The Participant shall
designate on the enrollment form the percentage of Compensation which he or she
elects to have withheld for the purchase of Stock, which may be any whole
percentage from 1% to 10% of the Participant's Compensation. A Participant may
reduce (but not increase) the rate of payroll withholding during an Offering
Period by filing an amended enrollment form with the Committee at any time
prior to the last day of any Interim Offering Period (for which such change is
to be effective), but not more than three (3) changes may be made in any
Offering Period (or such other number of changes as may be approved by the
Board or the Committee). A Participant may increase or decrease the rate of
payroll deduction for any subsequent Offering Period by filing with the Company
a new authorization for payroll deductions not less than ten (10) days prior to
the Offering Date for such subsequent Offering Period.
By enrolling in the Plan, a Participant shall be deemed to
have elected to purchase the maximum number of whole shares of Stock which can
be purchased with the amount of the Participant's Compensation which is
withheld during the Offering Period; provided, however, that with respect to
any Interim Offering Period no Participant may purchase more than 100 shares of
Stock or shares of Stock in excess of the amount permitted under Section 9.
(d) OFFERING PERIOD. Any Options granted pursuant to the
Plan shall be subject to the Company obtaining all necessary governmental
approvals and/or qualifications of the sale and/or issuance of Options and/or
Stock.
3
<PAGE> 4
ADAC Laboratories
Amended and Restated
Employee Stock Purchase Plan (1994)
(e) PURCHASE PRICE. The Purchase Price for each share of
Stock to be purchased under the Plan shall be eighty-five percent (85%) of the
Fair Market Value of such share on either (i) the Offering Date (or the date of
entry for new or re-enrolling employees) or (ii) the last day of each Interim
Offering Period, whichever is less.
(f) CONTRIBUTIONS. The Purchase Price of the Stock shall
be accumulated by payroll deductions throughout the Offering Period, which
shall be applied automatically to purchase Stock at the end of each Interim
Offering Period. In the absence of a contrary determination prior to the
commencement of an Offering Period, each Interim Offering Period shall have the
durations described in Section 2(h) of the Plan. At the end of each Interim
Offering Period, accrued payroll deductions will be automatically applied to
the purchase of Stock at the Purchase Price as hereinabove defined. Payroll
deductions shall commence on the first payday following the Offering Date (or,
in the case of a new or re-enrolling employee, on the first payday following
the commencement of the applicable Interim Offering Period) and shall continue
to the end of the Offering Period unless sooner altered or terminated as
provided in the Plan.
(g) EFFECT OF LEAVE OF ABSENCE. During a leave of
absence approved by the Company, a Participant may, for such period as the
Committee shall deem reasonable, continue contributions to the Plan by making
cash payments to the Company on his normal paydays in an amount equal to the
difference between the amount of his regular payroll deductions taken while
such employee was participating under the Plan and the amount of his payroll
deductions taken while on such leave of absence. Failure to pay any
installment within ten (10) days after the payday on which it is due shall be
treated as a withdrawal from the Plan.
(h) PURCHASE OF STOCK. The Company will maintain a Plan
Account on its books in the name of each Participant. On each payday the
amount deducted from the Participant's Compensation will be credited to the
Participant's Plan Account. No interest shall accrue on any such payroll
deductions. As of the last day of each Interim Offering Period the amount then
in the Participant's Plan Account will be divided by the Purchase Price and the
amount in the Participant's Plan Account shall be used to purchase the number
of whole shares of Stock which result. Share certificates representing the
number of shares of Stock so purchased shall be issued and delivered to the
Participant as soon as reasonably practicable after the close of each Interim
Offering Period. Any amount remaining in the Participant's Plan Account at the
end of an Offering Period after deducting the amount of the Purchase Price for
the number of whole shares issued to the Participant shall remain in the
Participant's Plan Account, without any accrual of
4
<PAGE> 5
ADAC Laboratories
Amended and Restated
Employee Stock Purchase Plan (1994)
interest, and shall be applied against the purchases to be made during the next
Interim Offering Period.
(i) WITHDRAWAL. A Participant may elect to withdraw from
participation in the Plan at any time up to the last day of an Interim Offering
Period by filing the prescribed form with the Committee. At the time of
withdrawal, the amount credited to the Participant's Plan Account will be
refunded in cash, without interest. Upon withdrawal from the Plan, the
accumulated payroll deductions shall be returned to the withdrawn Participant
and the withdrawn Participant's interest in the Plan shall terminate. In the
event a Participant voluntarily elects to withdraw from the Plan, such
Participant may not resume participation in the Plan until after the expiration
of one complete Interim Offering Period; provided, however, notwithstanding the
duration of any Interim Offering Period, any officer or director of the Company
participating under the Plan may not resume participation in the Plan for at
least six (6) months after his or her withdrawal. Re-enrollment in the Plan
shall be made in the same manner as set forth above for initial participation
in the Plan.
(j) PRO RATA ALLOCATION. In the event that the aggregate
number of shares which all Participants elect to purchase during an Interim
Offering Period shall exceed the number of shares remaining available for
issuance under the Plan, the number of shares to which each Participant shall
become entitled shall be determined by multiplying the number of shares
available for issuance by a fraction, the numerator of which is the sum of the
number of shares the Participant has elected to purchase and the denominator of
which is the sum of the number of shares which all Participants have elected to
purchase.
6. EFFECT OF TERMINATION OF EMPLOYMENT. Termination of a
Participant's employment for any reason, including retirement or death, or the
failure of a Participant to remain an Eligible Employee shall be treated as a
withdrawal under the Plan. In the event of the Participant's death, the refund
of the Participant's Plan Account shall be paid, without interest, to the
representative of the Participant's estate. A transfer by a Participant from
the Company to a Subsidiary, from one Subsidiary to another, or from a
Subsidiary to the Company shall not be treated as a termination of employment.
7. RIGHTS NOT TRANSFERABLE.
The rights or interests of any Participant in the Plan, in any
Option granted under the Plan, or in any Stock or moneys to which he or she may
be entitled under the Plan, shall not be transferable by voluntary or
involuntary assignment or by operation of law, or by any other manner otherwise
than by will or the applicable laws of descent and distribution. If the
Participant
5
<PAGE> 6
ADAC Laboratories
Amended and Restated
Employee Stock Purchase Plan (1994)
shall in any manner attempt to transfer, assign or otherwise encumber his or
her rights or interests under the Plan, other than by will, such act shall be
treated as a withdrawal from the Plan.
8. RECAPITALIZATION, ETC.
Subject to any required action by the shareholders of the
Company, the number of shares of Stock covered by each Option under the Plan
which has not yet been exercised and the number of shares of Stock which have
been authorized for issuance under the Plan but have not yet been placed under
an Option (collectively the "Reserves"), as well as the price per share of
Stock covered by each Option 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 Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of Stock, or any other increase or
decrease in the number of shares of 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, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issue by the Company of
the 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 Stock
subject to an Option.
In the event of the proposed dissolution or liquidation of the
Company, the Offering Period will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the Board.
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,
each Option under the Plan shall be assumed or an equivalent option shall be
substituted by such successor corporation, unless the Board determines, in the
exercise of its sole discretion and in lieu of such assumption or substitution,
that the Participant 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 makes an Option fully exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Board shall notify the Participant that the Option shall be fully exercisable
for a period of thirty (30) days from the date of such notice, and the Option
will terminate upon the expiration of such period.
The Board may also, if it so determines in the exercise of its
sole discretion, make provision for adjusting the Reserves, as well as the
price per share of Stock covered by each outstanding Option, in the event that
the Company effects one or more reorganizations,
6
<PAGE> 7
ADAC Laboratories
Amended and Restated
Employee Stock Purchase Plan (1994)
recapitalization, rights offerings or other increases or reductions of shares
of its outstanding Stock, and in the event of the Company being consolidated
with or merged into any other corporation.
9. LIMITATION ON STOCK OWNERSHIP.
Notwithstanding any provision herein to the contrary, no
Participant shall be granted a right to purchase Stock pursuant to Section 5 if
such Participant, immediately after electing to purchase such Stock, would own
Stock possessing five percent (5%) or more of the total combined voting power
or value of all classes of stock of the Company or any parent or Subsidiary of
the Company, or (ii) if under the terms of the Plan the rights of the employee
to purchase Stock under this and all other qualified employee stock purchase
plans of the Company or its Subsidiaries would accrue at a rate that exceeds
$25,000 of fair market value of such Stock (determined at the time such right
is granted) for each calendar year for which such right is outstanding at any
time. For purposes of this Section 9, ownership of Stock shall be determined by
the attribution rules of Section 424(d) of the Code and Participants shall be
considered to own any Stock which they have a right or option to purchase under
this or any other plan.
10. RIGHTS AS AN EMPLOYEE.
Nothing in the Plan shall be construed to give any Participant
the right to remain in the employ of the Company or a Subsidiary or to affect
the right of the Company and its Subsidiaries or the Participant to terminate
such employment at any time with or without cause.
11. RIGHTS AS A SHAREHOLDER.
A Participant shall have no rights as a shareholder with
respect to any shares of Stock he or she may have a right to purchase under the
Plan until the date of issuance of a stock certificate to such Participant for
shares issued pursuant to the Plan.
12. AMENDMENT OR TERMINATION OF THE PLAN.
The Board of Directors shall have the right to amend, modify
or terminate the Plan at any time without notice, provided that no
Participant's existing rights are adversely affected thereby, and provided
further that no amendment to the Plan shall be effective until such amendment
is approved by a vote of the holders of at least a majority of the outstanding
shares of Common Stock of the Company within twelve months before or after the
date upon which such action is taken by the Board of Directors, if such
amendment would:
7
<PAGE> 8
ADAC Laboratories
Amended and Restated
Employee Stock Purchase Plan (1994)
(a) Increase the aggregate number of shares of Stock to
be issued under the Plan (except as provided in Section 8 hereof);
(b) Materially modify the requirements for eligibility to
participate in the Plan;
(c) Increase the maximum number of shares of Stock which
a Participant may purchase in any Offering Period;
(d) Extend the term of the Plan;
(e) Alter the Purchase Price formula so as to reduce the
price for shares of Stock to be purchased under the Plan;
(f) Otherwise materially increase the benefits accruing
to Participants under the Plan; or
(g) Cause the Plan to fail to meet the requirements of an
"employee stock purchase plan" under Section 423 of the Code.
The Plan shall terminate on December 31, 2003, unless it has
been earlier terminated pursuant to this Section 12, but the Plan shall remain
in full force and effect until the end of the Offering Period then in effect.
Adopted by the Board of Directors on November 3, 1993 and approved by the
Shareholders on March 2, 1994; amended by the Board of Directors on June 11,
1995; and amended by the Board of Directors on November 2, 1995 and approved by
the Shareholders on March 6, 1996.
8
<PAGE> 1
ADAC Laboratories
Amended and Restated
Employee Stock Purchase Plan (1994)
EXHIBIT 5.1
April 16, 1996
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 72,459 shares of the Company's Common Stock,
without par value (the "Shares") (of which 7,459 shares were previously subject
to a Registration Statement), which may sold under the Company's Employee Stock
Purchase Plan (1994).
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 Employee Stock Purchase Plan (1994)
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 November 1, 1995, on our
audits of the consolidated financial statements and financial statements
schedules of ADAC Laboratories as of October 1, 1995 and October 2, 1994, and
for each of the three fiscal years in the period ended October 1, 1995, which
report is incorporated by reference in Form 10-K for the fiscal year ended
October 1, 1995.
COOPERS & LYBRAND L.L.P.
San Jose, California
April 22, 1996
