As filed with the U.S. Securities and Exchange Commission on November 22, 2000
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
BSD Medical Corp.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 75-1590407
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2188 West 2200 South, West Valley, Utah 84119
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(Address of Principal Executive Offices) (Zip Code)
1998 Stock Incentive Plan
1987 Stock Option Plan
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(Full Title of the Plans)
Dixie Toolson Sells
Corporate Secretary
2188 West 2200 South
West Valley, Utah 84119
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(Name and Address of Agent For Service)
801.972.5555
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(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Maximum Maximum Amount of
Title of Each Class Amount to be Offering Price Aggregate Registration
of Securities to be Registered Registered Per Share (1) Offering Price(1) Fee
-------------------------------------------- -------------------- ---------------- ------------------ --------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 1,800,000 shares(2) $0.91 $1,638,000 $433.00
============================================ ==================== ================ ================== ==============
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, and computed to
Rule 457(h)(1) under the Securities Act of 1933, based on the average of
the high and low prices of the shares of common stock on November 15, 2000,
as reported on the Electronic Over The Counter Bulletin Board.
(2) Pursuant to Rule 416, there are also being registered additional Common
Shares as may be required to be issued in the event of an adjustment as a
result of an increase in the number of issued Common Shares resulting from
a subdivision of such shares, the payment of a stock dividend, or certain
other capital adjustments.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or delivered to
plan participants as specified by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended, by the Securities and Exchange Commission.
Such documents need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II
hereof, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act of 1933.
Item 2. Registrant Information and Employee Plan Annual Information.
In accordance with Rule 428 under the Securities Act of 1933, the
information required by this item has been omitted from this Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference and shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing of such documents:
(a) Our most recent Annual Report filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act");
(b) All other reports we filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by our most recent
Annual Report;
(c) Description of our shares of common stock contained in the
registration statement filed under the Securities Act of 1933, including any
amendment or report filed for the purpose of updating such information; and
(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 deregistered all securities then remaining unsold.
Any statement contained herein or in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or amended, to constitute
a part of this Registration Statement.
Item 4. Description of Securities.
Our shares of common stock have been registered under Section 12 of the
Exchange Act.
Item 5. Interest of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of Delaware
("Delaware Corporation Law") provides, in general, that a corporation shall have
the power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative(other than an action by
or in the right of the corporation), by reason of the fact that he is or was a
director or officer of the corporation. Such indemnity may be against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding, if the indemnified party acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and if, with respect to any criminal action or proceeding, the
indemnified party did not have reasonable cause to believe his conduct was
unlawful.
Section 145(b) of the Delaware Corporation Law provides, in general,
that a corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director or
officer of the corporation, against any expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation.
Section 145(g) of the Delaware Corporation Law provides, in general,
that a corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation
against any liability asserted against him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of the law.
Our Certificate of Incorporation limits the personal liability of
directors and officers for monetary damages to the maximum extent permitted by
the Delaware Corporation Law. Our Certificate of Incorporation also provides
that we will indemnify our directors and officers against any damages arising
from their actions as agents of ours, and that we may similarly indemnify our
other employees and agents. We are also empowered under our Certificate of
Incorporation to enter into indemnification agreements with our directors and
officers.
Our Bylaws provide that, to the full extent permitted by the our
Certificate of Incorporation and the Delaware Corporation Law, we will indemnify
(and advance expenses to) our officers, directors and employees in connection
with any action, suit or proceeding (civil or criminal) to which those persons
are made party by reason of their being a director, officer or employee). Any
such indemnification will be in addition to the advancement of expenses.
The terms of our Stock Incentive Plan provide that, to the fullest
extent permitted by our Certificate of Incorporation and Bylaws and by the
Delaware Corporation Law, no member of the committee which administers the plan
will be liable for any action or omission taken with respect to the plan or any
options issued thereunder. The Plans also provide that no member of our Board of
Directors will be liable for any action or determination made in good faith with
respect to the Plans or any option granted thereunder. There is no pending
litigation or proceeding involving any of our directors, officers, employees or
other agents as to which indemnification is being sought, nor are we aware of
any pending or threatened litigation that may result in claims for
indemnification by any director, officer, employee or other agent.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings.
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 the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(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 remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of any employee benefit
plans annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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 the
initial bona fide offering thereof.
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.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of West Valley, State of Utah, on November 22,
2000.
BSD Medical Corp.
By: /s/ Hyrum A. Mead
-----------------------------------
Hyrum A. Mead
Chief Executive Officer
By: /s/ Hyrum A. Mead
-----------------------------------
Hyrum A. Mead
Principal Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Hyrum A. Mead and Paul F. Turner, and
each of them, his attorneys-in-fact and agents, each with full power of
substitution and resubstitution, for him in any and all capacities, to sign any
and all amendments (including post-effective 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 and necessary to be done
in connection therewith, as fully as 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 any of them, or their or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
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/ Hyrum A. Mead Chief Executive Officer (Principal November 22, 2000
---------------------------------
Hyrum A. Mead Executive Officer, Principal Financial
Officer)
/s/ Paul F. Turner Chairman, Sr. VP, and Chief Technology November 22, 2000
--------------------------------- Officer
Paul F. Turner
/s/ Gerhard W. Sennewald Director November 22, 2000
---------------------------------
Gerhard W. Sennewald
/s/ J. Gordon Short Director November 22, 2000
---------------------------------
J. Gordon Short
/s/ Michael Nobel Director November 22, 2000
---------------------------------
Michael Nobel
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
4.1 1998 Stock Incentive Plan
4.2 1987 Stock Option Plan
5.1 Opinion of Parsons Behle & Latimer
15.1 Inapplicable
23.1 See Exhibit 5.1
23.2 Consent of Tanner + Co.
24.1 Power of Attorney (see signature page)
<PAGE>
Exhibit 4.1
STOCK INCENTIVE PLAN
BSD MEDICAL CORPORATION, a Delaware corporation, (the "Company") adopts
this Stock Incentive Plan (the "Plan"), effective February 9, 1998.
1. Purpose. The purpose of this Plan is to enable the Company to attract and
retain the services of and provide performance incentives to (1) selected
employees, officers and directors of the Company or of any subsidiary of the
Company "Employees") and (2) selected nonemployee agents, consultants, advisors
and independent contractors of the Company or any subsidiary.
2. Shares Subject to the Plan. Subject to adjustment as provided below and in
paragraph 13, the shares to be offered under the Plan shall consist of shares of
the common stock of the Company, par value $.01 per share ("Shares"), and the
total number of Shares that may be issued under the Plan shall not exceed two
million (2,000,000) Shares, all of which may be issued pursuant to the exercise
of options granted pursuant to the Plan. The Shares issued under the Plan may be
authorized and unissued Shares or reacquired Shares or Shares acquired in the
market. If any award granted under the Plan expires, terminates or is canceled,
the unissued Shares subject to such award shall again be available under the
Plan and if Shares which are awarded under the Plan are forfeited to the Company
or repurchased by the Company, that number of Shares shall again be available
under the Plan.
3. Effective Date and Duration of Plan.
(a) Effective Date. The Plan (as amended and restated) shall become
effective on the date adopted by the Board of Directors. Awards may be
granted and Shares may be awarded or sold under the Plan at any time
after the effective date and before termination of the Plan.
(b) Duration. The Plan shall continue in effect for a period of 10
years from the date adopted by the Board of Directors, subject to
earlier termination by the Board of Directors. The Board of Directors
may suspend or terminate the Plan at any time, except with respect to
awards then outstanding under the Plan. Termination shall not affect
the terms of any outstanding awards.
4. Administration.
(a) Board of Directors. The Plan shall be administered by the Board of
Directors of the Company, which shall determine and designate from time
to time the individuals to whom awards shall be made, the amount of the
awards and the other terms and conditions of the awards. Subject to the
provisions of the Plan, the Board of Directors may from time to time
adopt and amend rules and regulations relating to the administration of
the Plan, advance the lapse of any waiting period, accelerate any
exercise date, waive or modify any restriction applicable to Shares
(except those restrictions imposed by law) and make all other
determinations in the judgment of the Board of Directors necessary or
desirable for the administration of the Plan. The interpretation and
construction of the provisions of the Plan and related agreements by
the Board of Directors shall be final and conclusive. The Board of
Directors may correct any defect or supply any omission or reconcile
any inconsistency in the Plan or in any related agreement in the manner
and to the extent it shall deem expedient to carry the Plan into
effect, and it shall be the sole and final judge of such expediency.
(b) Committee. The Board of Directors may delegate to a committee of
the Board of Directors (the "Committee") any or all authority for
administration of the Plan. If authority is delegated to a Committee,
all references to the Board of Directors in the Plan shall mean and
relate to the Committee except (i) as otherwise provided by the Board
of Directors and (ii) that only the Board of Directors may amend or
terminate the Plan as provided in paragraphs 3 and 14.
(c) Officer. The Board of Directors or the Committee, as applicable,
may delegate to an executive officer of the Company authority to
administer those aspects of the Plan that do not involve the
designation of individuals to receive awards or decisions concerning
the timing, amounts or other terms of awards. No officer to whom
administrative authority has been delegated pursuant to this provision
may waive or modify any restriction applicable to an award to such
officer under the Plan.
5. Types of Awards; Eligibility. The Board of Directors may, from time to time,
take the following actions, separately or in combination, under the Plan: (i)
grant "Incentive Stock Options", as defined in section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), as provided in paragraph 6; (ii)
grant options other than Incentive Stock Options ("Non-Statutory Stock Options")
as provided in paragraph 6; (iii) award Shares as provided in paragraph 7; (iv)
sell Shares subject to restrictions as provided in paragraph 8; (v) grant stock
appreciation rights as provided in paragraph 9; (vi) grant cash bonus rights as
provided in paragraph 10; (vii) grant Performance-based Rights as provided in
paragraph 11 and (viii) grant foreign qualified awards as provided in paragraph
12. Any such awards may be made to Employees, including Employees who are
officers or directors, and to other individuals described in paragraph 1 whom
the Board of Directors believes have made or will make an important contribution
to the Company or any subsidiary of the Company; provided, however, that only
Employees shall be eligible to receive Incentive Stock Options under the Plan.
The Board of Directors shall select the individuals to whom awards shall be made
and shall specify the action taken with respect to each individual to whom an
award is made. Unless otherwise determined by the Board of Directors with
respect to an award, each option, stock appreciation right, cash bonus right or
performance-based right granted pursuant to the Plan by its terms shall be
nonassignable and nontransferable by the recipient, either voluntarily or by
operation of law, except by will or by the laws of descent and distribution of
the state or country of the recipient's domicile at the time of death. No
fractional Shares shall be issued in connection with any award. In lieu of any
fractional Shares, cash may be paid in an amount equal to the value of the
fraction or, if the Board of Directors shall determine, the number of Shares may
be rounded downward to the next whole share. No Employee may be granted options
or stock appreciation rights under the Plan for more than an aggregate of
400,000 Shares in any consecutive three-year period.
6. Option Grants. With respect to each option grant, the Board of Directors
shall determine the number of Shares subject to the option, the option price,
the period of the option, the time or times at which the option may be exercised
and whether the option is an Incentive Stock Option or a Non-Statutory Stock
Option and any other terms of the grant, all of which shall be set forth in an
option agreement between the Company and the optionee. In the case of Incentive
Stock Options, all terms shall be consistent with the requirements of the Code
and applicable regulations. Upon the exercise of an option, the number of Shares
reserved for issuance under the Plan shall be reduced by the number of Shares
issued upon exercise of the option less the number of Shares surrendered or
withheld in connection with the exercise of the option and the number of Shares
surrendered or withheld to satisfy withholding obligations in accordance with
paragraph 17.
7. Award of Shares. The Board of Directors may award Shares under the Plan as
bonuses or otherwise. The aggregate number of Shares that may be awarded to any
single participant pursuant to this provision shall not exceed 100,000 Shares.
Shares awarded pursuant to this paragraph shall be subject to the terms,
conditions, and restrictions determined by the Board of Directors. The Board of
Directors may require the recipient to sign an agreement as a condition of the
award, but may not require the recipient to pay any monetary consideration other
than amounts necessary to satisfy tax withholding requirements. The agreement
may contain any other terms, conditions, restrictions, representations and
warranties required by the Board of Directors. The certificates representing the
Shares awarded shall bear any legends required by the Board of Directors. Upon
the issuance of a an award of Shares, the number of Shares available for
issuance under the Plan shall be reduced by the number of Shares issued less the
number of any Shares surrendered to satisfy withholding obligations in
accordance with paragraph 17.
8. Purchased Shares. The Board of Directors may issue Shares under the Plan for
such consideration (including promissory notes and services) as determined by
the Board of Directors. Shares issued under the Plan shall be subject to the
terms, conditions and restrictions determined by the Board of Directors. All
Shares issued pursuant to this paragraph 8 shall be subject to a purchase
agreement, which shall be executed by the Company and the prospective recipient
of the Shares prior to the delivery of certificates representing such Shares to
the recipient. The purchase agreement may contain any terms, conditions,
restrictions, representations and warranties required by the Board of Directors.
The certificates representing the Shares shall bear any legends required by the
Board of Directors. Upon the issuance of purchased Shares, the number of Shares
available for issuance under the Plan shall be reduced by the number of Shares
issued less the number of any Shares surrendered to satisfy withholding
obligations in accordance with paragraph 17.
9. Stock Appreciation Rights.
(a) Grant. Stock appreciation rights may be granted under the Plan by
the Board of Directors, subject to such rules, terms, and conditions as
the Board of Directors prescribes.
(b) Exercise. Each stock appreciation right shall entitle the holder,
upon exercise, to receive from the Company in exchange therefor an
amount equal in value to the excess of the fair market value on the
date of grant (or, in the case of a stock appreciation right granted in
connection with an option, the excess of the fair market value of one
Share over the option price per Share under the option to which the
stock appreciation right relates), multiplied by the number of Shares
covered by the stock appreciation right or the option, or portion
thereof, that is surrendered. Payment by the Company upon exercise of a
stock appreciation right may be in Shares valued at fair market value,
in cash, or partly in Shares and partly in cash, all as determined by
the Board of Directors. The Board of Directors may withdraw any stock
appreciation right granted under the Plan at any time and may impose
any conditions upon the exercise of a stock appreciation right or adopt
rules and regulations from time to time affecting the rights of holders
of stock appreciation rights. Such rules and regulations may govern the
right to exercise stock appreciation rights granted thereafter. Upon
the exercise of a stock appreciation right for Shares, the number of
Shares available for issuance under the Plan shall be reduced by the
number of Shares issued less the number of any Shares surrendered or
withheld to satisfy withholding obligations in accordance with
paragraph 17. Cash payments for stock appreciation rights shall not
reduce the number of Shares available for issuance under the Plan.
10. Cash Bonus Rights. The Board of Directors may grant cash bonus rights under
the Plan in connection with (i) options granted or previously granted, (ii)
stock appreciation rights granted or previously granted, (iii) Shares awarded or
previously awarded and (iv) Shares sold or previously sold under the Plan. Cash
bonus rights will be subject to rules, terms and conditions as the Board of
Directors may prescribe. The payment of a cash bonus shall not reduce the number
of Shares available for issuance under the Plan. A cash bonus right granted in
connection with an option will entitle an optionee to a cash bonus when the
related option is exercised (or terminates in connection with the exercise of a
stock appreciation right related to the option) in whole or in part if, in the
sole discretion of the Board of Directors, the bonus right will result in a tax
deduction that the Company has sufficient taxable income to use. A cash bonus
right granted in connection with an award of Shares pursuant to paragraph 7 or
purchase of Shares pursuant to paragraph 8 will entitle the recipient to a cash
bonus payable when the award of Shares is made or the Shares are purchased or
restrictions, if any, to which the Shares are subject lapse. If the Shares
awarded or purchased are subject to restrictions and are repurchased by the
Company or forfeited by the holder, the cash bonus right granted in connection
with the Shares awarded or purchased shall terminate and may not be exercised.
11. Performance-based Awards. The Board of Directors may grant awards intended
to qualify as performance-based compensation under section 162(m) of the Code
and the regulations thereunder ("Performance-based Awards"). Performance-based
Awards shall be denominated at the time of grant either in Shares ("Stock
Performance Awards") or in dollar amounts ("Dollar Performance Awards"). Payment
under a Stock Performance Award or a Dollar Performance Award shall be made, at
the discretion of the Board of Directors, subject to the limitations set forth
in paragraph 2, in Shares ("Performance Shares"), or in cash or any combination
thereof. Performance-based Awards shall be subject to the following terms and
conditions:
(a) Award Period. The Board of Directors shall determine the period of
time for which a Performance-based Award is made (the "Award Period").
(b) Performance Goals and Payment. The Board of Directors shall
establish in writing objectives ("Performance Goals") that must be met
by the Company or any subsidiary, division or other unit of the Company
("Business Unit") during the Award Period as a condition to payment
being made under the Performance-based Award. The Performance Goals for
each award shall be one or more targeted levels of performance with
respect to one or more of the following objective measures with respect
to the Company or any Business Unit: earnings, earnings per Share,
stock price increases, total shareholder return (stock price increase
plus dividends), return on equity, return on assets, return on capital,
economic value added, revenues, operating income, cash flows or any of
the foregoing (determined according to criteria established by the
Board of Directors). The Board of Directors shall also establish the
number of Performance Shares or the amount of cash payment to be made
under a Performance-based Award if the Performance Goals are met or
exceeded, including the fixing of a maximum payment (subject to
paragraph 11(d)). The Board of Directors may establish other
restrictions to payment under a Performance-based Award, such as a
continued employment requirement, in addition to satisfaction of the
Performance Goals. Some or all of the Performance Shares may be issued
at the time of the award as restricted Shares subject to forfeiture in
whole or in part if Performance Goals, or if applicable, other
restrictions are not satisfied.
(c) Computation of Payment. During or after an Award Period, the
performance of the Company or Business Unit, as applicable, during the
period shall be measured against the Performance Goals. If the
Performance Goals are not met, no payment shall be made under a
Performance-based Award. If the Performance Goals are met or exceeded,
the Board of Directors shall certify that fact in writing and certify
the number of Performance Shares earned or the amount of cash payment
to be made under the terms of the Performance-based Award.
(d) Maximum Awards. No participant may receive Stock Performance Awards
in any fiscal year under which the maximum number of Shares issuable
under the award, when aggregated with the Shares issuable under any
awards made in the immediately preceding two fiscal years, exceeds
150,000 Shares or Dollar Performance Awards in any fiscal year under
which the maximum amount of cash payable under the award, when
aggregated with the amount of cash payable under awards made in the
immediately preceding two fiscal years, exceeds an aggregate of
$300,000.
(e) Effect on Shares Available. The payment of a Performance-based
Award in cash shall not reduce the number of Shares available for
issuance under the Plan. The number of Shares available for issuance
under the Plan shall be reduced by the number of Shares issued upon
payment of an award, less the number of Shares surrendered or withheld
to satisfy withholding obligations.
12. Foreign Qualified Grants. Awards under the Plan may be granted to such
Employees and such other persons described in paragraph 1 residing in foreign
jurisdictions as the Board of Directors may determine from time to time. The
Board of Directors may adopt such supplements to the Plan as may be necessary to
comply with the applicable laws of such foreign jurisdictions and to afford
participants favorable treatment under such laws; provided, however, that no
award shall be granted under any such supplement with terms that are more
beneficial to the participants than the terms permitted by the Plan.
13. Changes in Capital Structure.
(a) Share Splits and Dividends. If the number of outstanding Shares of
the Company is hereafter increased or decreased or changed into or
exchanged for a different number or kind of securities of the Company
by reason of any Share split, combination or dividend payable in
Shares, recapitalization or reclassification, appropriate adjustment
shall be made by the Board of Directors in the number and kind of
Shares available for grants under the Plan. In addition, the Board of
Directors shall make appropriate adjustment in the number and kind of
Shares as to which outstanding options, or portions thereof then
unexercised, shall be exercisable, so that the optionee's proportionate
interest before and after the occurrence of the event is maintained.
Notwithstanding the foregoing, the Board of Directors shall have no
obligation to effect any adjustment that would or might result in the
issuance of fractional Shares, and any fractional Shares resulting from
any adjustment may be disregarded or provided for in any manner
determined by the Board of Directors. Any such adjustments made by
Board of Directors shall be conclusive.
(b) Mergers, Reorganizations, Etc. The Board of Directors may include
such terms and conditions, including without limitation, provisions
relating to acceleration in the event of a change in control, as it
deems appropriate in connection with any award under the Plan with
respect to a merger, consolidation, plan of exchange, acquisition of
property or stock, separation, reorganization or liquidation to which
the Company or a subsidiary is a party or a sale or all or
substantially all of the Company's assets (each, a "Transaction").
Notwithstanding the foregoing, in the event of a Transaction, the Board
of Directors shall, in its sole discretion and to the extent possible
under the structure of the Transaction, select one or the following
alternatives for treating outstanding Incentive Stock Options or
Non-Statutory Stock Options under the Plan:
(i) Outstanding options shall remain in effect in accordance
with their terms; or
(ii) Outstanding options shall be converted into options to
purchase securities issued by the company that is surviving or
acquiring company in the Transaction. The amount, type of
securities subject thereto and exercise price of the converted
options shall be determined by the Board of Directors of the
Company, taking into account the relative values of the
companies involved in the Transaction and the exchange rate,
if any, used in determining securities of the surviving
corporation to be issued to holders of Shares of the Company.
Unless otherwise determined by the Board of Directors, the
converted options shall be vested only to the extent that the
vesting requirements relating to options granted hereunder
have been satisfied; or
(iii) The Board of Directors shall provide a 30-day period
prior to the consummation of the Transaction during which
outstanding options may be exercised to the extent then
exercisable, and upon the expiration of such 30-day period,
all unexercised options shall immediately terminate. The Board
of Directors may, in its sole discretion, accelerate the
exercisability of options so that they are exercisable in full
during such 30-day period.
(c) Dissolution of the Company. In the event of the dissolution of the
Company, options shall be treated in accordance with paragraph
13(b)(iii).
(d) Rights Issued by Another Corporation. The Board of Directors may
also grant options, stock appreciation rights, performance units, stock
bonuses and cash bonuses and issue restricted stock under the Plan
having terms, conditions and provisions that vary from those specified
in this Plan provided that any such awards are granted in substitution
for, or in connection with the assumption of, existing options, stock
appreciation rights, stock bonuses, cash bonuses, restricted stock and
performance units granted, awarded or issued by another corporation and
assumed or otherwise agreed to be provided for by the Company pursuant
to or by reason of a Transaction.
14. Amendment of Plan. The Board of Directors may at any time, and from time to
time, modify or amend the Plan in such respects as it shall deem advisable
because of changes in the law while the Plan is in effect or for any other
reason. Except as provided in paragraphs 9, 10 and 13, however, no change in an
award already granted shall be made without the written consent of the holder of
such award.
15. Approvals. The obligations of the Company under the Plan are subject to the
approval of state and federal authorities or agencies with jurisdiction in the
matter. The Company will use its best efforts to take steps required by state or
federal law or applicable regulations, including rules and regulations of the
Securities and Exchange Commission and any stock exchange on which the Company's
Shares may then be listed, in connection with the grants under the Plan. The
foregoing notwithstanding, the Company shall not be obligated to issue or
deliver Shares under the Plan if such issuance or delivery would violate
applicable state or federal securities laws.
16. Employment and Service Rights. Nothing in the Plan or any award pursuant to
the Plan shall (i) confer upon any Employee any right to be continued in the
employment of the Company or any subsidiary or interfere in any way with the
right of the Company or any subsidiary by whom such Employee is employed to
terminate such Employee's employment at any time, for any reason, with or
without cause, or to decrease such Employee's compensation or benefits, or (ii)
confer upon any person engaged by the Company any right to be retained or
employed by the Company or to the continuation, extension, renewal, or
modification of any compensation, contract, or arrangement with or by the
Company.
17. Taxes. Each participant who has received an award under the Plan shall, upon
notification of the amount due, pay to the Company in cash amounts necessary to
satisfy any applicable federal, state and local withholding requirements. If the
participant fails to pay the amount demanded, the Company may withhold that
amount from other amounts payable by the Company to the participant including
salary, subject to applicable law. With the consent of the Board of Directors, a
participant may satisfy this withholding obligation, in whole or in part, by
having the Company withhold from any Shares to be issued that number of Shares
that would satisfy the amount due or by delivering Shares to the Company to
satisfy the withholding amount.
18. Rights as a Shareholder. The recipient of any award under the Plan shall
have no rights as a shareholder with respect to any Shares until the date of
issue to the recipient of a stock certificate for such Shares. Except as
otherwise expressly provided in the Plan, no adjustment shall be made for
dividends or other rights for which the record date occurs prior to the date
such stock certificate is issued.
Approved by the Board of Directors: February 9, 1998.
Approved by the Stockholders: August 21, 1998.
By:/s/ Dixie Toolson Sells
------------------------------------
Secretary of BSD Medical Corporation
<PAGE>
Exhibit 4.2
1987 STOCK OPTION PLAN
Scope and Purpose of Plan
This BSD Medical Corporation 1987 Stock Option Plan (the
"Plan") provides for the granting of
(a) Incentive Options hereinafter defined) to certain key
employees of BSD Medical Corporation, a Delaware corporation
(the "Corporation"), or of its Affiliates (hereinafter
defined), and
(b) Nonqualified Stock Options (hereinafter defined) to certain
key employees and non-employee directors of the Corporation
or of its Affiliates and to certain individuals who are not
employees or directors of the Corporation or of its
Affiliates but who from time to time provide substantial
advice or other assistance or services to the Corporation or
its Affiliates.
SECTION 1. Definitions.
---------- -----------
1.1 "Act" shall mean the Securities Exchange Act of 1934, as amended.
1.2 "Affiliates" shall mean (a) any corporation, other than the
Corporation, in an unbroken chain of corporations ending with the Corporation,
owns stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain and
(b) any corporation, other than the Corporation, in an unbroken chain of
corporations beginning with the Corporation if each of the corporations, other
than the last corporation in the unbroken chain, owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
1.3 "Agreement" shall mean the written agreement between the
Corporation and a Holder evidencing the Option granted by the Company and the
understanding of the parties with respect thereto.
1.4 "Board of Directors" shall mean the board of directors of the
Corporation.
1.5 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.6 "Committee" shall mean the committee appointed pursuant to Section
3 hereof by the Board of Directors to administer this Plan.
1.7 "Eligible Individuals" shall mean (a) key employees, including
officers and directors who are also employees of the Corporation or any of its
Affiliates, (b) non-employee directors of the Corporation or of any of its
Affiliates, and (c) individuals who are not employees or directors of the
Corporation or its Affiliates but who from time to time provide substantial
advice, or other assistance or services to the Corporation or its Affiliates.
Notwithstanding the foregoing provisions of this Paragraph 1.7, to ensure that
the provisions of the third sentence of Paragraph 3.1 can be satisfied, the
Board of Directors may from time to time specify individuals who shall not be
eligible for the grant of Options or options or stock appreciation rights or
allocations of stock under any plan of the Corporation or its Affiliates;
provided, however, that the Board of Directors may at any time determine that
any individual who has been so excluded from eligibility shall become eligible
for grants of Options and grants of such options or stock appreciation rights or
allocation of stock under any plans of the corporation and its Affiliates.
1.8 "Fair Market Value" shall mean, if the Stock is traded on one or
more established markets or exchanges, the mean of the opening and closing
prices of the Stock in the primary market or exchange on which the Stock is
traded, and if the Stock is not so traded or the Stock does not trade on the
relevant date, the value determined in good faith by the Board of Directors. For
purposes of valuing Incentive Options, the Fair Market Value of stock shall be
determined without regard to any restriction other than one which, by its terms,
will never lapse.
1.9 "Holder" shall mean an Eligible Individual to whom an Option has
been granted.
1.10 "Incentive Options" shall mean stock options that satisfy the
requirements of section 422A of the Code.
1.11 "Nonqualified Options" shall mean stock options which do not
satisfy the requirements of t section 422A of the Code.
1.12 "Options" shall mean either Incentive Options or Nonqualified
Options, or both.
1.13 "Stock" shall mean the Corporation's authorized $.01 par value
common stock together with any other securities with respect to which Options
granted hereunder may become exercisable.
SECTION 2. Stock and Maximum Number of Shares Subject to the Plan.
---------- ------------------------------------------------------
2.1 Description of Stock and Maximum Shares Allocated. The Stock which
Options granted hereunder give a Holder the right to purchase may be unissued or
reacquired shares of Stock, as the Board of Directors may, in its sole and
absolute discretion, from time to time determine.
Subject to the adjustments provided for in Paragraph 6.6 hereof,
the aggregate number of shares of Stock to be issued pursuant to the exercise of
all Options granted hereunder may equal but shall not exceed 700,000 shares.
2.2 Restoration of Unpurchased Shares. If an Option granted hereunder
expires or terminates for any reason during the term of this Plan and prior to
the exercise thereof in full, the shares of Stock subject to but not issued
under such Option shall again be available for options granted hereunder
subsequent thereto.
SECTION 3. Administration of the Plan.
---------- --------------------------
3.1 Stock Option Committee. Except as is otherwise expressly provided
herein, the Plan shall be administered by the Committee. The Committee shall
consist of not less than three (3) members of the Board of Directors and may be
constituted by all members of the Board of Directors. In the event that the
Stock is registered under Section 12 of the Act, the Board of Directors may
require that all members of the Committee shall be "disinterested persons," as
defined in Rule 16b-3(d)(3) promulgated under the Act; and in such event members
of the Committee shall not be eligible to receive stock options, stock
appreciation rights, or an allocation of stock under any plan of the Corporation
or its Affiliates while they are serving as members of the Committee and must
not have been eligible to receive options, stock appreciation rights, or an
allocation of stock under any plan of the Corporation or its Affiliates within
one (1) year prior to their appointment to the Committee.
3.2 Duration, Removal, Etc. The members of the Committee shall serve at
the pleasure of the Board of Directors, which shall have the power, at any time
and from time to time, to remove members from the Committee or to add members
thereto. Vacancies on the Committee, however caused, shall be filled by action
of the Board of Directors.
3.3 Meetings and Actions of Administration Committee. The Committee
shall elect one of its members as its Chairman and shall hold its meetings at
such times and places as it may determine. All decisions and determinations of
the Committee shall be made by the majority vote or decision of all of its
members present at a meeting; provided, however, that any decision or
determination reduced to writing and signed by all of the members of the
Committee shall be as fully effective as if it had been made at a meeting duly
called and held. The Committee may make any rules and regulations for the
conduct of its business that are not inconsistent with the provisions hereof and
with the bylaws of the Corporation as it may deem advisable.
3.4 Committee's Powers. Subject to the express provisions hereof, the
Committee shall have the authority, in its sole and absolute discretion, (a) to
adopt, amend, and rescind administrative and interpretive rules and regulations
relating to the Plan; (b) to determine the terms and provisions of the
respective Agreements (which need not be identical), including provisions
defining or otherwise relating to (i) subject to Section 6 of the Plan, the term
and the period or periods and extent of exercisability of the Options, (ii) the
extent to which the transferability of shares of Stock issued upon exercise of
Options is restricted, (iii) the effect of termination of employment upon the
exercisability of the Options, and (iv) the effect of approved leaves of absence
(consistent with any applicable regulations of the Internal Revenue Service);
(c) subject to Paragraph 6.5, to accelerate the time of exercisability of any
Option that has been granted; (d) to construe the respective Option Agreements
and the Plan; and (e) to make all other determinations necessary or advisable
for administering the Plan. The Committee may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in any Agreement in the
manner and to the extent it shall deem expedient to carry it into effect, and it
shall be the sole and final judge of such expediency. The determinations of the
Committee on the matters referred to in this Paragraph 3.4 shall be final and
conclusive.
SECTION 4. Eligibility and Participation.
---------- -----------------------------
4.1 Eligible Individuals. Options may be granted hereunder only to
persons who are Eligible Individuals at the time of the grant thereof.
Notwithstanding any provision contained herein to the contrary, a person shall
not be eligible to receive an Incentive Option hereunder unless he is an
employee of the Corporation or an Affiliates, nor shall a person be eligible to
receive an Incentive Option hereunder if he, at the time such option is granted,
would own (within the meaning of sections 422A and 425 of the Code) stock
possessing more than ten percent (10%) of the total combined voting power or
value of all classes of stock of the Corporation or an Affiliate unless at the
time such Incentive Option is granted the exercise price per share of Stock is
at least one hundred and ten percent (110%) of the Fair Market Value of each
share of Stock to which the Incentive Option relates and the Incentive Option is
not exercisable after the expiration of five (5) years from the date it is
granted.
4.2 No Right to Option. The adoption of the Plan shall not bee deemed
to give any person a right to be granted an Option.
SECTION 5. Grant of Options and Certain Terms of the Agreements.
---------- ----------------------------------------------------
The Board of Directors shall authorize the initial grant of
Options under the Plan and with respect to such initial grant shall have all
authority conferred hereunder on the Committee. In addition, at all times that
the Plan is in effect the Board of Directors may grant, but shall not be
required to grant, any Options that are granted to members of the Board of
Directors, and with respect to any such grant the Board of Directors shall have
all authority conferred hereunder on the Committee. Subject to the immediately
preceding two sentences and the express provisions hereof, the Committee shall
determine which Eligible Individuals shall be granted Options hereunder from
time to time. The Committee shall also determine the number of shares subject to
each of such Options, and shall authorize and cause the Corporation to grant
Options in accordance with such determinations; provided, however, that no more
than 20,000 shares of stock may be first made subject to Options in favor of any
member of the Board of Directors in any calendar year. Each Option granted
hereunder shall be evidenced by an Agreement, executed by the Corporation and
the Eligible Individual to whom the Option is granted, incorporating such terms
as the Committee shall deem necessary or desirable. More than one Option may be
granted hereunder to the same Eligible Individual and be outstanding
concurrently hereunder. In the event an Eligible Individual is granted both one
or more Incentive Options and one or more Nonqualified Options, such grants
shall be evidenced by separate Agreements, one for each of the Incentive Option
grants and one for each of the Nonqualified Options grants.
Each Agreement may contain or otherwise provide for conditions
giving rise to the forfeiture of the stock acquired pursuant to an Option
granted hereunder or otherwise and such restrictions on the transferability of
shares of the Stock acquired pursuant to an Option granted hereunder or
otherwise as the Committee in its sole and absolute discretion shall deem proper
or advisable. Such conditions giving rise to forfeiture may include, but need
not be limited to, the requirement that the Holder render substantial services
to the Corporation or its Affiliates for a specified period of time. Such
restrictions on transferability may include, but need not be limited to, options
and rights of first refusal in favor of the Corporation and shareholders of the
Corporation other than the Holder of such share of Stock who is a party to the
particular Agreement or a subsequent holder of the shares of Stock who is bound
by such Agreement. Each Agreement between the Corporation and a member of the
Board of Directors shall provide that twenty percent (20%) of the shares of
stock subject to the Option evidenced by the Agreement, and no more than twenty
percent (20%) of such shares, shall first become subject to purchase on each of
first five (5) anniversaries of the date of grant of the Option and that each
such twenty percent (20%) increment that becomes first purchasable as of a given
anniversary date shall thereafter remain subject to purchase until the Option
terminates.
SECTION 6. Terms and Conditions of Options.
---------- -------------------------------
All Options granted hereunder shall comply with, be deemed to
include, and shall be subject to the following terms and conditions:
6.1 Number of Shares. Each Agreement shall state the number of shares
of Stock to which it relates.
6.2 Exercise Price. Each Agreement shall state the exercise price per
share of Stock. The exercise price per share of Stock subject to an Option shall
not be less than the greater of (a) the par value per share of said Stock on the
date of the grant of the Option; provided, however, that in the case of Options
granted to members of the Board of Directors the exercise price shall equal the
greater of such amounts unless Paragraph 4.1 requires an exercise price of at
least one hundred and ten percent (110%) of the Fair Market Value of the shares
of Stock subject to the Option, in which case the exercise price shall be the
greater of (a) the par value per share of said Stock or (b) 110% of the Fair
Market Value per share of the Stock on the date of grant of the option.
6.3 Medium, Time of Payment, and Method of Exercise. The exercise price
of an Option shall be payable upon the exercise of the Option in cash, by
certified or cashier's check, or, with the consent of the Committee, with shares
of Stock of the Corporation owned by the Holder, including a multiple series of
exchanges of such Stock; provided, however, that the exercise price of Options
granted to members of the Board of Directors shall not be payable with shares of
Stock. Exercise of an Option shall not be effective until the Corporation has
received written notice of exercise. Such notice must specify the number of
whole shares to be purchased and be accompanied by payment in full of the
aggregate Option price of the number of shares purchased. The Corporation shall
not in any case be required to sell, issue, or deliver a fractional share with
respect to any Option.
6.4 Term, Time of Exercise, and Transferability of Options. In addition
to such other terms and conditions as may be included in a particular Agreement
granting an Option, an Option shall be exercisable during a Holder's lifetime
only by him or by his guardian or legal representative. An Option shall not be
transferrable other than by will or the laws of descent and distribution. Each
Option shall also be subject to the following terms and conditions:
(a) Termination of Employment. The provisions of this
Paragraph 6.4(a) shall apply to the extent a Holder's Agreement does not
expressly provide otherwise. If a Holder ceases to be employed by at least one
of the employers in the group of employers consistent of the Corporation and its
Affiliates because the Holder voluntarily terminates employment with such group
of employers, the portion, if any, of an Option that remains unexercised,
including that portion, if any, that pursuant to the Agreement is not yet
exercisable, on the date of the Holder's termination of employment shall
terminate and cease to be exercisable as of such date. If a Holder ceases to be
employed by at least one of the employers in the group of employers consisting
of the Corporation and its Affiliate because any of such entities terminates the
Holder's employment for cause, the portion, if any, of an Option that remains
unexercised, including that portion, if any, that pursuant to the Agreement is
not yet exercisable, on the date of the Holder's termination of employment,
shall terminate and cease to be exercisable as of such date. A Holder's
employment shall be deemed terminated "for cause" if terminated by the Board of
Directors of the Corporation or the board of directors of an Affiliate because
of incompetence, insubordination, dishonesty, other acts detrimental to the
interest of the Corporation or its Affiliates, or any material breach by the
Holder of any employment, nondisclosure, noncompetition, or other contract with
the Corporation or one of its Affiliates. Whether cause exists shall be
determined by such board of directors in its sole discretion and in good faith.
If a Holder ceases to be employed by at least one of the employers in the group
of employers consisting of the Corporation and its Affiliates because one or
more of such entities terminates the employment of the Holder but not for cause,
the Holder shall have the right for ninety (90) days after such termination of
employment to exercise the Option with respect to that portion thereof that has
become exercisable pursuant to Holder's Agreement as of the date of the Holder's
termination of employment.
(b) Disability. The provisions of this Paragraph 6.4(b) shall
apply to the extent a Holder's Agreement does not expressly provide otherwise.
If a Holder ceases to be employed by at least one of the employers in the group
of employers consisting of the Corporation and its Affiliates by reason of
disability (as defined in Section 105(d)(4) of the Code), the Holder shall have
the right for six (6) months after the date of termination of employment with
such group of employers by reason of disability to exercise an Option to the
extent such Option is exercisable on the date of his termination of employment.
(c) Death. The provisions of this Paragraph 6.4(c) shall
apply to the extent a Holder's Agreement does not expressly provide otherwise.
If a Holder dies while in the employ of the Corporation or an Affiliate an
Option shall be exercisable by the Holder's legal representatives, legatees, or
distributees for six (6) months following the date of the Holder's death to the
extent such Option is exercisable on the Holder's date of death.
Notwithstanding any other provision of this Plan, including the
provisions of items (a), (b), and (c) of this Paragraph 6.4, no Incentive Option
shall be exercisable after the expiration of ten (10) years from the date it is
granted, or the period specified in Paragraph 4.01, if applicable. The Committee
shall have authority to prescribe in any Agreement that the Option evidenced
thereby may be exercised in full or in part as to any number of shares subject
thereto at any time or from time to time during the term of the Option, or in
such installments at such times during said term as the Committee may prescribe.
Except as provided above and unless otherwise provided in any Agreement, an
Option may be exercised at any time or from time to time during the term of the
Option. Such exercise may be as to any or all whole (but no fractional) shares
which have become purchasable under the Option.
Within a reasonable time or such time as may be permitted by law
after the Corporation receives a written notice that the Holder has elected to
exercise all or a portion of an Option, such notice to be accompanied by payment
in full of the aggregate Option price of the number of shares purchased, the
Corporation shall issue and deliver a certificate representing the shares
acquired in consequence of the exercise and any other amounts payable in
consequence of such exercise. In the event that a Holder exercises both an
Incentive Option, or portion thereof, and a Nonqualified Stock Option, or a
portion thereof, separate Stock certificates shall be issued, one for the Stock
subject to the Incentive Option and one for the Stock subject to the
Nonqualified Stock Option. The number of the shares of Stock transferrable due
to an exercise of an Option under this Plan shall not be increased due to the
passage of time, except as may be provided in an Agreement.
Nothing herein or in any Option granted hereunder shall require
the Corporation to issue any shares upon exercise of any Option if such issuance
would, in the opinion of counsel for the Corporation, constitute a violation of
the Securities Act of 1933, as amended, or any similar or superseding statute or
statutes, or any other applicable statute or regulation, as then in effect. At
the time of any exercise of an Option, the Corporation may, as a condition
precedent to the exercise of such Option, require from the Holder of the Option
(or in the event of his death, his legal representatives, legatees, or
distributees) such written representations, if any, concerning his intentions
with regard to the retention or disposition of the shares being acquired by
exercise of such Option and such written covenants and agreements, if any, as to
the manner of disposal of such shares as, in the opinion of counsel to the
Corporation, may be necessary to ensure that any disposition by such Holder (or
in the event of his death, his legal representatives, legatees, or
distributees), will not involve a violation of the Securities Act of 1933, as
amended, or any similar or superseding statute or statutes, or any other
applicable state or federal statute or regulation, as then in effect.
Certificates for shares of Stock, when issued, may have the following legend, or
statements of other applicable restrictions, endorsed thereon, and may not be
immediately transferable:
The shares of Stock evidenced by this certificate have been
issued to the registered owner in reliance upon written
representations that these shares have been purchased for
investment. These shares may not be sold, transferred, or
assigned unless, in the opinion of the Corporation and its
legal counsel, such sale, transfer, or assignment will not be
in violation of the Securities Act of 1933, as amended,
applicable rules and regulations of the Securities and
Exchange Commission, and any applicable state securities law.
6.5 Limitation on Aggregate Value of Shares That May Become First
Exercisable During Any Calendar Year Under an Incentive Option. With respect to
any Incentive Option granted under this Plan, the aggregate Fair Market Value of
shares of Stock subject to such Incentive Option and the aggregate Fair Market
Value of shares of Stock or stock of any Affiliate (or a predecessor of the
Corporation or an Affiliate) subject to any other incentive stock option (within
the meaning of section 422A of the Code) of the Corporation or its Affiliates
(or a predecessor corporation of any such corporation), that first become
purchasable in any calendar year under such Option, may not (with respect to any
Holder) exceed $100,000, with such Fair Market Value to be determined as of the
date the Incentive Option is granted. For purposes of this Paragraph 6.5,
"predecessor corporation" means a corporation that was a party to a transaction
described in section 425(a) of the Code (or which would be so described if a
substitution or assumption under such section had been effected) with the
Corporation, or a corporation which, at the time the new incentive stock option
(within the meaning of section 422A of the Code) is granted, is an Affiliate of
the Corporation or a predecessor corporation of any such corporations, or a
predecessor corporation of any such corporations.
6.6 Adjustments Upon Changes in Capitalization. Notwithstanding any
other provisions hereof, in the event of any change in the number of outstanding
shares of Stock effected without receipt of consideration therefor by the
Corporation, by reason of a stock dividend, or split, combination, exchange of
shares or other recapitalization, merger, or otherwise, in which the Corporation
is the surviving corporation, the aggregate number and class of the reserved
shares, the number and class of shares subject to each outstanding Option and
the Option price of each outstanding Option shall be automatically adjusted to
accurately and equitably reflect the effect thereon of such change, provided
that any fractional share resulting from such adjustment may be eliminated. In
the event of a dispute concerning such adjustment, the decision of the Committee
shall be conclusive. The number of reserved shares or the number of shares
subject to any outstanding Option shall be automatically reduced by any fraction
included therein which results from any adjustment made pursuant to this
Paragraph 6.6. A dissolution or liquidation of the Corporation, a merger (other
than a merger effecting a reincorporation of the Corporation in another state)
or consolidation in which the Corporation is not the surviving corporation, or a
transaction in which another corporation becomes the owner of 50% or more of the
total combined voting power of all classes of stock of the Corporation shall
cause every Option then outstanding to terminate, but the Holder of each such
then outstanding Options shall, in any event, subject to the limitation on the
number of shares that may become first exercisable during any calendar year set
forth in Paragraph 6.5, have the right, immediately prior to such dissolution,
liquidation, merger, consolidation, or transaction, to exercise such Options, to
the extent not theretofore exercised, without regard to the determination as to
the periods and installments of exercisability made pursuant to Paragraph 6.12
if (and only if) such Options have not at that time expired or been terminated.
Such acceleration of exercisability shall not apply to a given Option if any
surviving or acquiring corporation agrees to assume such Option in connection
with the merger, consolidation, or transaction.
6.7 Rights as a Shareholder. A Holder shall have no right as a
shareholder with respect to any shares covered by his Option until a certificate
representing such shares is issued to him. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash or other property) or
distributions or other rights for which the record date is prior to the date
such certificate is issued, except as provided in Paragraph 6.6 hereof.
6.8 Modification, Extension and Renewal of the Options. Subject to the
terms and conditions of and within the limitations of the Plan, the Committee
may modify, extend or renew outstanding Options granted under the Plan, or
accept the surrender of Options outstanding hereunder (to the extent not
theretofore exercised) and authorize the granting of new opts hereunder in
substitution therefor (to the extent not theretofore exercised). The Committee
may not, however, without the consent of the Holder, modify any outstanding
Options so as to specify a lower exercise price or Base Amount or accept the
surrender of outstanding Incentive Options and authorize the granting of new
Options in substitution therefor specifying a lower option price. In addition,
no modification of an Option granted hereunder shall, without the consent of the
Holder, alter or impair any rights or obligations under any Option theretofore
granted hereunder to such Holder under the Plan, except as may be necessary,
with respect to Incentive Options, to satisfy the requirements of section 422A
of the Code.
6.9 Furnish Information. Each Holder shall furnish to the Corporation
all information requested by the Corporation to enable it to comply with any
reporting or other requirement imposed upon the Corporation by or under any
applicable statute or regulation.
6.10 Obligation to Exercise; Termination of Employment. The granting of
an Option hereunder shall impose no obligation upon the Holder to exercise the
same or any part thereof. In the event of a Holder's termination of employment
with the Corporation or an Affiliate, the unexercised portion of an Option
granted hereunder shall terminate in accordance with Paragraph 6.4 hereof.
6.11 Redemption. At such time that the Stock is not registered under
section 12 of the Securities Exchange Act, if a Holder or any other holder of
Stock received upon exercise of an Option granted hereunder, proposes to sell,
give, pledge, exchange or otherwise transfer or dispose of any of the Stock
received upon the exercise of an Option granted under the Plan or of any
interests therein owned by him, whether for cash or other consideration, the
Holder or such other holder shall promptly give notice (the "Redemption Notice")
to the Committee setting forth in detail the circumstances of such event. The
Redemption Notice shall state the name and address of the proposed transferee
and the proposed consideration for and terms of the transfer. The Corporation
shall have an option to purchase such Stock within ten (10) days after receipt
by the Committee of the Redemption Notice, on the terms hereinafter set forth
and as may be set forth in the Agreement. The Corporation shall exercise such
option by giving the Holder or such other holder notice thereof. Such option may
be exercised by the Corporation as to all, but not less than all, of such Stock,
and such option shall expire to the extent not exercised by the Corporation
within ten (10) days after receipt by the Committee of the Redemption Notice.
The price per share for the Stock purchased by the Corporation pursuant to this
Paragraph 6.11 shall be:
(a) The Fair Market Value per share of such Stock on the date
the Committee receives the Redemption Notice, if the proposed transfer is a
gift, or
(b) the price per share for which the Holder has received a
bona fide offer, as described in he Redemption Notice, if the proposed transfer
is other than a gift.
The value of any noncash consideration included in such bona fide offer shall be
determined in good faith by the Board of Directors, with the assistance of a
third party to the extent the Board of Directors deems appropriate.
Upon exercise of its option pursuant to this Paragraph 6.11, the
Corporation shall pay the Holder or such other holder the purchase price (i)
within 60 days after receipt of the Redemption Notice by the Committee in the
manner provided in the Agreement between Corporation and the Holder or (ii) at
the election of the Corporation, in accordance with the terms embodied in any
bona fide offer received by the Holder or such other Holder and described in the
Redemption Notice. Any Stock that the Corporation does not purchase as herein
provided may be transferred by the Holder or such other holder to the persons
and upon terms and conditions no more favorable to the purchasers than those set
forth in the Redemption Notice, such transfer to be consummated within ninety
(90) days after receipt of the Redemption Notice by the Committee, and not
otherwise.
6.12 Agreement Provisions. The Agreements authorized under the Plan
shall contain such other provisions (including, without limitation, restrictions
or the removal of restrictions upon the exercise of the Option and the transfer
of shares thereby acquired) as the Committee shall deem advisable. Each such
Agreement relating to Incentive Options granted hereunder shall contain such
limitations and restrictions upon the exercise of the Incentive Option to which
it relates as shall be necessary for the Incentive Option to which such
Agreement related to constitute an incentive stock option, as defined in section
422A of the Code.
SECTION 7. Remedies and Legend.
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7.1 Remedies. The Corporation shall be entitled to recover from a
Holder reasonable attorneys' fees incurred in connection with the enforcement of
the terms and provisions of the Plan and any Agreement whether by an action to
enforce specific performance or for damages for its breach or otherwise.
7.2 Legend. Each certificate representing shares issued to a Holder
upon exercise of an Option granted under the Plan shall, if such share is
subject to any transfer restriction, including a right of first refusal,
provided for under this Plan or an Agreement, bear a legend that complies with
applicable law with respect to the restrictions on transferability contained in
this Section 7:
The shares represented by this certificate are subject to
restrictions on transferability imposed by that certain
instrument entitled "BSD Medical Corporation 1987 Stock Option
Plan" dated May 21, 1986, and an agreement thereunder between
BSD Medical Corporation and [Holder], which grants to the
Corporation an option to purchase such shares in certain
instances. A copy of such plan and agreement is on file at the
principal office of the Corporation, and is subject to the
same right of examination by a shareholder of the Corporation
(in person or by agent, attorney, or accountant) as are the
books and records of the Corporation.
SECTION 8. Term of Plan.
---------- ------------
No Options may be granted hereunder after the date that is ten
(10) years from the earlier of (i) the date the Plan is adopted by the Board of
Directors or (ii) the date the Plan is approved by the shareholders of the
Corporation.
SECTION 9. Amendment of Plan.
---------- -----------------
The Board of Directors may, insofar as permitted by law, with
respect to any shares at the time are not subject to Options, suspend or
discontinue the Plan or revise or amend it in any respect whatsoever; provided,
however, that, without the approval of the holders of a majority of the
outstanding shares of voting stock of all classes of the Corporation, no such
revision or amendment shall (a) change the number of shares of the Stock subject
to the Plan, (b) change the designation of the class of employees eligible to
receive Options, (c) decrease the price at which Incentive Options may be
granted, (d) remove the administration of the Plan from the Committee, (e)
render the members of the Committee eligible to receive Options under the Plan
while serving as such, or (f) without the consent of the affected Holder, cause
the Incentive Options granted hereunder and outstanding at such time that
satisfied the requirements of section 422A of the Code to no longer satisfy such
requirements. Furthermore, the Plan shall not, without such approval of the
shareholders, be amended in any manner that will cause Incentive Options issued
under it to fail to satisfy the requirements applicable to incentive stock
options as defined in section 422A of the Code.
SECTION 10. General.
----------- -------
10.1 Application of Funds. The proceeds received by the Corporation
from the sale of shares pursuant to opts shall be used for general corporate
purposes.
10.2 right of the Corporation and Affiliates to Terminate Employment.
Nothing contained in the Plan, or in any Agreement, shall confer upon any Holder
the right to continue in the employ of the Corporation or any Affiliate, or
interfere in any way with the rights of the Corporation or any Affiliate to
terminate his employment any time.
10.3 No Liability for Good Faith Determinations. Neither the members of
the Board of Directors nor any member of the Committee shall be liable for any
act, omission, or determination taken or made in good faith with respect to the
Plan or any Option granted under it.
10.4 Information Confidential. As partial consideration for the
granting of each Option hereunder, the Holder shall agree with the Corporation
that he will keep confidential all information and knowledge which he has
relating to the manner and amount of his participation in the Plan; provided,
however, that such information may be disclosed as required by law and may be
given in confidence to the Holder's spouse, tax and financial advisors, or to a
financial institution to the extent that such information is necessary in order
to secure a loan. In the event any breach of this promise comes to the attention
of the Committee, it shall take into consideration such breach, in determining
whether to recommend the grant of any future Option to such Holder, as a factor
militating against the advisability of granting any such future Option to such
individual.
10.5 Other Benefits. Participation in the Plan shall not preclude the
Holder from eligibility in any other stock option plan of the Corporation or any
Affiliate or any old age benefit, insurance, pension, profit sharing retirement,
bonus, or other extra compensation plans which the Corporation or any Affiliate
has adopted, or may, at any time, adopt for the benefit of its employees.
10.6 Execution of Receipts and Releases. Any payment of cash or any
issuance or transfer of shares of Stock to the Holder, or to his legal
representative, heir, legatee, or distributee, in accordance with the provisions
hereof, shall, to the extent thereof, be in full satisfaction of all claims of
such persons hereunder. The Committee may require any Holder, legal
representative, heir, legatee, or distributee, as a condition precedent to such
payment, to execute a release and receipt therefor in such form as it shall
determine.
10.7 No Guarantee of Interests. Neither the Committee nor the
Corporation guarantees the Stock of the Corporation from loss or depreciation.
10.8 Payment of Expenses. All expenses incident to the administration,
termination, or protection of the Plan, including, but not limited to, legal and
accounting fees, shall be paid by the Corporation or its Affiliates; provided,
however, the Corporation or an Affiliate may recover any and all damages, fees,
expenses, and/or costs arising out of any actions taken by the Corporation to
enforce its right to purchase Stock under Paragraph 6.11 hereof.
10.9 Corporation Records. Records of the Corporation or its Affiliates
regarding the Holder's period of employment, termination of employment and the
reason therefor, leaves of absence, re-employment, and other matters shall be
conclusive for all purposes hereunder, unless determined by the Committee to be
incorrect.
10.10 Information. The Corporation and its Affiliates shall, upon
request or as may be specifically required hereunder, furnish or cause to be
furnished, all of the information or documentation which is necessary or
required by the Committee to perform its duties and functions under the Plan.
10.11 No Liability of Corporation. The Corporation assumes no
obligation or responsibility to the Holder or his personal representatives,
heirs, legatees, or distributees for any act of, or failure to act on the part
of, the Committee.
10.12 Corporation Action. Any action required of the Corporation shall
be by resolution of its Board of Directors or by a person ;authorized to act by
resolution of the Board of Directors.
10.13 Severability. If any provision of this Plan is held to be illegal
or invalid for any reason, the illegality or invalidity shall not affect the
remaining provisions hereof, but such provision shall be fully severable and the
Plan shall be construed and enforced as if the illegal or invalid provision had
never been included herein.
10.14 Notices. Whenever any notice is required or permitted hereunder,
such notice must be in writing and personally delivered or sent by mail. Any
notice required or permitted to be delivered hereunder shall be deemed to be
delivered on the date on which it is personally delivered, or, whether actually
received or not, on the third business day after it is deposited in the United
States mail, certified or registered, postage prepaid, addressed to the person
who is to receive it at the address which such person has theretofore specified
by written notice delivered in accordance herewith. The Corporation or a Holder
may change, at any time and from time to time, by written notice to the other,
the address which it or he had theretofore specified for receiving notices.
Until changed in accordance herewith, the Corporation and each Holder shall
specify as its and his address for receiving notices the address set forth in
the Agreement pertaining to the shares to which such notice relates.
10.15 Waiver of Notice. Any person entitled to notice hereunder may
waive such notice.
10.16 Successors. The Plan shall be binding upon the Holder, his heirs,
legatees, and legal representatives, upon the Corporation, its successors, and
assigns, and upon the Committee, and its successors.
10.17 Headings. The titles and headings of Sections and Paragraphs are
included for convenience of reference only and are not to be considered in
construction of the provisions hereof.
10.18 Governing Law. All questions arising with respect to the
provisions of the Plan shall be determined by application of the laws of the
State of Delaware except to the extent Delaware law is preempted by federal law.
The obligation of the Corporation to sell and deliver Stock hereunder is subject
to applicable laws and to the approval of any governmental authority required in
connection with the authorization, issuance, sale, or delivery of such Stock.
10.19 Word Usage. Words used in the masculine shall apply to the
feminine where applicable, and wherever the context of this Plan dictates, the
plural shall be read as the singular and the singular as the plural.
SECTION 11. Approval of Shareholders.
----------- ------------------------
The Plan shall take effect on the date it is adopted by the
Board of Directors. However, if this Plan is not approved by the holders of a
majority of the outstanding shares of common stock, par value $.01 per share, of
the Corporation, within the period beginning on the date the Board of Directors
adopts the Plan and ending twelve (12) months after the date the Plan is adopted
by the Board of Directors, none of the Options granted hereunder shall
constitute Incentive Options; and if the Plan is not so approved at or before
the first annual meeting of stockholders of the Corporation following the date
the Board of Directors adopts the Plan, any Options granted under the Plan
before the date such stockholders do approve the Plan to individuals subject to
suit under Section 16b of the Act at the time of grant shall be null, void, and
of no force and effect.
IN WITNESS WHEREOF, BSD Medical Corporation, acting by and
through its officers hereunto daily authorized has executed this instrument, as
of the 21st day of May, 1987.
BSD MEDICAL CORPORATION
On Behalf of BSD Board of Directors
By:/s/ Victor A. Vaguine
---------------------
Title: President
<PAGE>
Exhibit 5.1 / Opinion of Counsel
OPINION OF COUNSEL
BSD Medical Corp.
2188 South 2200 South
West Valley, Utah 84119
Re: BSD Medical Corp. Registration Statement on Form S-8, filed November
22, 2000
Gentlemen:
We have acted as counsel to BSD Medical Corp., a Delaware corporation
(the "Company"), in connection with the preparation of the above-referenced
Registration Statement on Form S-8 (the "Registration Statement"), filed by the
Company with the Securities and Exchange Commission (the "Commission") on
November 22, 2000. The Registration Statement relates to the registration under
the Securities Act of 1933, as amended (the "Act"), of up to 1,800,000 shares of
common stock (the "Shares"), par value $.01 per share, to be issued and sold by
the Company pursuant to the 1987 Stock Option Plan and the 1998 Stock Incentive
Plan of the Company.
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K promulgated under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Certificate of
Incorporation of the Company; (ii) the Bylaws of the Company as amended to date;
(iii) certain resolutions and written consents of the Board of Directors of the
Company relating to the offering of the Shares; (iv) the Registration Statement,
and (v) such other documents as we have deemed necessary or appropriate as the
basis for the opinions set forth below. In such examination, we have assumed the
authenticity of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents. As to any
facts material to this opinion which we did not independently establish or
verify, we have relied upon statements and representations of officers and other
representatives of the Company and others.
Members of our firm are admitted to the practice of law in the State of
Utah, and we express no opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, we are of the opinion that
when (i) the Registration Statement becomes effective, and (ii) certificates
representing the Shares are duly executed, countersigned, registered and
delivered upon payment of the agreed upon consideration therefor, the Shares
will be duly authorized, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Prospectus contained
therein. In giving such consent we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Parsons Behle & Latimer
<PAGE>
Exhibit 23.2 / Consent of Auditors
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this
Registration Statement (Form S-8) dated November 22, 2000, pertaining to the
1987 Stock Option Plan and 1998 Stock Incentive Plan of BSD Medical Corp. of our
report dated October 6, 1999, with respect to the financial statements of BSD
Medical Corp. included in its Annual Report filed on Form 10-KSB for the fiscal
year ended August 31, 1999, filed with the Securities and Exchange commission.
/s/ Tanner+Co.
Salt Lake City, Utah
November 22, 2000
