As filed with the Securities and Exchange Commission on November 27, 1995
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDTRONIC, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-0793183
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7000 CENTRAL AVENUE N.E. 55432
MINNEAPOLIS, MINNESOTA (Zip Code)
(Address of principal executive offices)
MEDTRONIC, INC.
STOCK OPTIONS UNDER 1993 STOCK PLAN OF ACQUIRED COMPANY
(Full title of the plan)
RONALD E. LUND
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
MEDTRONIC, INC.
7000 CENTRAL AVENUE N.E.
MINNEAPOLIS, MN 55432
(Name and address of agent for service)
(612) 574-4000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Offering Amount of
to be Registered Registered Price Per Share (1) Price (1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, $.10 60,247 $51.56 $3,106,335.32 $1,071.15
par value (2) Shares
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, and based
on the average of the high and low sale prices of the registrant's Common Stock
on November 24, 1995 as reported by the New York Stock Exchange.
(2) Each share of Common Stock includes a Preferred Stock Purchase Right
pursuant to the registrant's Shareholder Rights Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed (File No. 1-7707) with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated in this
Registration Statement by reference, as of their respective dates, and made a
part hereof:
(1) The Annual Report on Form 10-K of Medtronic, Inc. (the "Company")
for the fiscal year ended April 30, 1995 filed pursuant to
Section 13(a) or 15(d) of the Exchange Act;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Annual Report referred to in (1) above; and
(3) The description of the Company's Common Stock contained in a
registration statement filed under Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all of the shares of Common Stock offered have
been sold or which deregisters all shares of the Common Stock then remaining
unsold shall be deemed to be incorporated by reference in and to be a part of
this Registration Statement from the date of filing of such documents.
Any statement contained in a document 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 incorporated herein by reference or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Business Corporation Act provides
that a corporation shall indemnify any person who was or is threatened to be
made a party to any proceeding by reason of the former or present official
capacity of such person, against judgments, penalties and fines, including
without limitation, excise taxes assessed against such person with respect to an
employee benefit plan, settlements and reasonable expenses, including attorneys'
fees and disbursements, incurred by such person in connection with the
proceeding, if, with respect to the acts or omissions of such person complained
of in the proceeding, such person has not been indemnified by another
organization or employee benefit plan for the same expenses with respect to the
same acts or omissions, acted in good faith, received no improper personal
benefit and Section 302A.255 (which pertains to director conflicts of interest),
if applicable, has been satisfied; in the case of a criminal proceeding, had no
reasonable cause to believe the conduct was unlawful; and in the case of acts or
omissions by person in their official capacity for the corporation, reasonably
believed that the conduct was in the best interests of the corporation, or in
the case of acts or omissions by persons in their capacity for other
organizations, reasonably believed that the conduct was not opposed to the best
interests of the corporation. The Company's Articles of Incorporation and Bylaws
do not limit the Company's obligation to indemnify such persons.
The Company's Articles of Incorporation limit the liability of its
directors to the full extent permitted by the Minnesota Business Corporation
Act. Specifically, directors of the Company will not be personally liable for
monetary damages for breach of fiduciary duty as directors except liability for
(i) any breach of the duty of loyalty to the Company or its shareholders, (ii)
acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) dividends or other distributions of corporate
assets that are in contravention of certain statutory or contractual
restrictions, (iv) violations of certain Minnesota securities laws, or (v) any
transaction from which the director derives an improper personal benefit.
Liability under federal securities law is not limited by the Company's Articles
of Incorporation.
Subject to exclusions and limitations, the Company maintains certain
insurance coverage against liability which a director or officer may incur in
his or her capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Description
4.1 Medtronic Restated Articles of Incorporation, as amended to date,
incorporated herein by reference to Exhibit 3.1 in Medtronic's
Quarterly Report on Form 10-Q for the quarter ended July 28,
1995, filed with the Commission on September 8, 1995.
4.2 Medtronic Bylaws, as amended to date, incorporated herein by
reference to Exhibit 3.2 in Medtronic's Annual Report on Form
10-K for the year ended April 30, 1991, filed with the Commission
under cover of Form SE dated July 24, 1991.
4.3 Form of Rights Agreement dated as of June 27, 1991 between
Medtronic and Norwest Bank Minnesota, National Association,
including as Exhibit A thereto the form of Preferred Stock
Purchase Right Certificate, incorporated by reference to Exhibit
(1) of Medtronic's Form 8-A Registration Statement dated June 27,
1991 and filed with the Commission on June 28, 1991.
5 Opinion of Ronald E. Lund, General Counsel of the Company.
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Ronald E. Lund (included in Exhibit 5)
24 Powers of Attorney
99 Form of Stock Option Agreement and1993 Stock Plan of Micro
Interventional Systems, Inc.
ITEM 9. UNDERTAKINGS
A. The Company 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 hereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in this Registration Statement; and (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 this 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
with or furnished to the Commission by the Company 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.
(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 this offering.
B. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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 of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on November 27,
1995.
MEDTRONIC, INC.
Dated: November 27, 1995 BY: /s/ William W. George
WILLIAM W. GEORGE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Dated: November 27, 1995 BY: /s/ William W. George
WILLIAM W. GEORGE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Dated: November 27, 1995 BY: /s/ Robert L. Ryan
ROBERT L. RYAN
SENIOR VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
(PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER)
F. CALEB BLODGETT
ARTHUR D. COLLINS, JR.
WILLIAM W. GEORGE
ANTONIO M. GOTTO, JR., M.D.
BERNADINE P. HEALY, M.D.
VERNON H. HEATH
THOMAS E. HOLLORAN
EDITH W. MARTIN, PH.D. DIRECTORS
GLEN D. NELSON, M.D.
RICHARD L. SCHALL
JACK W. SCHULER
GERALD W. SIMONSON
GORDON M. SPRENGER
RICHARD W. SWALIN, PH.D.
WINSTON R. WALLIN
Ronald E. Lund, Senior Vice President, General Counsel and Secretary of
the Registrant, by signing his name hereto, does hereby sign this document on
behalf of each of the above named directors of the Registrant pursuant to powers
of attorney duly executed by such persons.
Dated: November 27, 1995 BY: /s/ Ronald E. Lund
RONALD E. LUND
ATTORNEY-IN-FACT
INDEX TO EXHIBITS
Exhibit
4.1 Medtronic Restated Articles of Incorporation, as amended to
date, incorporated herein by reference to Exhibit 3.1 in
Medtronic's Quarterly Report on Form 10-Q for the quarter
ended July 28, 1995, filed with the Commission on September 8,
1995.
4.2 Medtronic Bylaws, as amended to date, incorporated herein by
reference to Exhibit 3.2 in Medtronic's Annual Report on Form
10-K for the year ended April 30, 1991, filed with the
Commission under cover of Form SE dated July 24, 1991.
4.3 Form of Rights Agreement dated as of June 27, 1991 between
Medtronic and Norwest Bank Minnesota, National Association,
including as Exhibit A thereto the form of Preferred Stock
Purchase Right Certificate, incorporated by reference to
Exhibit (1) of Medtronic's Form 8-A Registration Statement
dated June 27, 1991 and filed with the Commission on June 28,
1991.
5 Opinion of Ronald E. Lund, General Counsel of the Company.
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Ronald E. Lund (included in Exhibit 5)
24 Powers of Attorney
99 Form of Stock Option Agreement and 1993 Stock Plan
of Micro Interventional Systems, Inc.
November 21, 1995
Medtronic, Inc.
7000 Central Avenue N.E.
Minneapolis, MN 55432
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 under the Securities
Act of 1933, as amended (the "Registration Statement"), relating to the offering
of up to 60,247 shares of Common Stock, $ .10 par value (the "Shares"), of
Medtronic, Inc., a Minnesota corporation (the "Company"), pursuant to
outstanding stock options assumed by Medtronic, Inc. in connection with its
acquisition of Micro Interventional Systems, Inc., I have examined such
corporate records and other documents, including the Registration Statement, and
have reviewed such matters of law as I have deemed relevant hereto and, based
upon such examination and review, it is my opinion that all necessary corporate
action on the part of the Company has been taken to authorize the issuance and
sale of the Shares and that, when issued and sold as contemplated in the
Registration Statement, the Shares will be legally issued, fully paid and
nonassessable under the current laws of the State of Minnesota.
I am admitted to the practice of law in the State of Minnesota and the foregoing
opinions are limited to the laws of that state and the federal laws of the
United States of America.
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Ronald E. Lund
Ronald E. Lund
Senior Vice President,
General Counsel and Secretary
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 22, 1995 appearing on page 38 of
the 1995 Annual Shareholder Report of Medtronic, Inc., which is incorporated by
reference in Medtronic's Annual Report on Form 10-K for the year ended April 30,
1995. We also consent to the incorporation by reference of our report on the
Financial Statement Schedule which appears on page 11 of such Annual Report on
Form 10-K.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Minneapolis, Minnesota
November 21, 1995
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned directors and
officers of Medtronic, Inc., a Minnesota corporation, hereby constitutes and
appoints WILLIAM W. GEORGE and RONALD E. LUND, or either of them, their true and
lawful attorneys-in-fact and agents, each with full power and authority to act
as such without the other, with full power of substitution and resubstitution,
for the undersigned and in the undersigned's name, place and stead, in any and
all capacities, to do any and all acts and things and to execute any and all
instruments that any of said attorneys and agents may deem necessary or
advisable in connection with Medtronic's acquisition of Micro Interventional
Systems, Inc. ("MIS") to enable the shareholders of MIS receiving Medtronic
common stock in connection with such acquisition (including but not limited to
option holders under the MIS 1993 Stock Plan, as amended, who will receive
Medtronic common stock upon any exercise of options under such plan) to receive
registered Medtronic common stock or to resell such Medtronic common stock in
compliance with the Securities Act of 1933, as amended, with any regulations,
rules or requirements of the Securities and Exchange Commission thereunder, and
with any state Blue Sky laws or regulations in connection therewith, including
specifically, but without limiting the generality of the foregoing, power and
authority to sign the names of the undersigned to the Registration Statement on
Form S-3 (or other appropriate Form) and the Registration Statement on Form S-8
therefor, to any amendment to such Registration Statements, and to any
instrument or document filed with said Commission as a part of or in connection
with such Registration Statements or any amendment thereto; and the undersigned
hereby ratify and confirm all that said attorneys and agents, or their
substitutes or resubstitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned have subscribed their presents
effective as of the 12th day of October, 1995.
<TABLE>
<C> <S>
By/s/ F. Caleb Blodgett By/s/ Edith W. Martin, Ph.D.
F. Caleb Blodgett Edith W. Martin, Ph.D.
By/s/ Arthur D. Collins, Jr. By/s/ Glen D. Nelson, M.D.
Arthur D. Collins, Jr. Glen D. Nelson, M.D.
By/s/ Gary L. Ellis By/s/ Robert L. Ryan
Gary L. Ellis Robert L. Ryan
By/s/ William W. George By/s/ Richard L. Schall
William W. George Richard L. Schall
By/s/ Antonio M. Gotto, Jr., M.D. By/s/ Jack W. Schuler
Antonio M. Gotto, Jr., M.D. Jack W. Schuler
By/s/ Bernadine P. Healy, M.D. By/s/ Gerald W. Simonson
Bernadine P. Healy, M.D. Gerald W. Simonson
By/s/ Vernon H. Heath By/s/ Gordon M. Sprenger
Vernon H. Heath Gordon M. Sprenger
By/s/ Thomas E. Holloran By/s/ Richard A. Swalin, Ph.D.
Thomas E. Holloran Richard A. Swalin, Ph.D.
By/s/ Winston R. Wallin
Winston R. Wallin
</TABLE>
MICRO INTERVENTIONAL SYSTEMS, INC.
1993 STOCK PLAN
1. PURPOSES OF THE PLAN. The purposes of this Stock Plan are to attract and
retain the best available personnel for positions of substantial responsibility,
to provide additional incentive to Employees and Consultants of the Company and
its Subsidiaries and to promote the success of the Company's business. Options
granted under the Plan may be incentive stock options (as defined under Section
422 of the Code) or non-statutory stock options, as determined by the
Administrator at the time of grant of an option and subject to the applicable
provisions of Section 422 of the Code, as amended, and the regulations
promulgated thereunder.
2. CERTAIN DEFINITIONS. As used herein, the following definitions shall apply:
a. "Administrator" means the Board or any of its Committees appointed
pursuant to Section 4 of the Plan.
b. "Board" means the Board of Directors of the Company.
c. "Code" means the Internal Revenue Code of 1986, as amended.
d. "Committee" means the Committee appointed by the Board of Directors in
accordance with paragraph (a) of Section 4 of the Plan.
e. "Common Stock" means the Common Stock of the Company.
f. "Company" means Micro Interventional Systems, Inc., a California
corporation.
g. "Consultant" means any person including an advisor, who is engaged by
the Company or any Parent or Subsidiary to render services and is
compensated for such services, and any director of the Company whether
compensated for such services or not provided that if and in the event the
Company registers any class of any equity security pursuant to the Exchange
Act, the term Consultant shall thereafter not include directors who are not
compensated for their services or are paid only a director's fee by the
Company.
h. "Continuous Status as an Employee" means the absence of any interruption
or termination of the employment relationship by the Company or any
Subsidiary. Continuous Status as an Employee shall not be considered
interrupted in the case of: (i) sick leave; (ii) military leave; (iii) any
other leave of absence approved by the Board, provided that such leaves is
for a period of not more than ninety (90) days, unless reemployment upon
the expiration of such leave is guaranteed by contract or statute, or
unless provided otherwise pursuant to Company policy adopted from time to
time; or (iv) in the case of transfers between locations of the Company or
between the Company, its Subsidiaries or its successor.
i. "Employee" means any person, including officers and directors, employed
by the Company or any Parent or Subsidiary of the Company. The payment of a
director's fee by the Company shall not be sufficient to constitute
"employment" by the Company.
j. "Exchange Act" means the Securities Exchange Act of 1934, as amended.
k. "Fair Market Value" means, as of any date, the value of Common Stock
determined as follows:
i. If the Common Stock is listed on any established stock exchange or
a national market system including without limitation the National
Market System of the National Association of Securities Dealers, Inc.
Automated Quotation ("NASDAQ") System, its Fair Market Value shall be
the closing sales price for such stock (or the closing bid, if no
sales were reported, as quoted on such system or exchange for the last
market trading day prior to the time of determination) as reported in
the Wall Street Journal or such other source as the Administrator
deems reliable;
ii. If the Common Stock is quoted on the NASDAQ System (but not on the
National Market System thereof) or regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market
Value shall be the mean between the high and low asked prices for the
Common Stock or;
iii. In the absence of an established market for the Common Stock, the
Fair Market Value thereof shall be determined in good faith by the
Administrator.
l. "Incentive Stock Option" means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of the Code.
m. "Nonstatutory Stock Option" means an Option not intended to qualify as
an Incentive Stock Option.
n. "Option" means a stock option granted pursuant to the Plan.
o. "Optioned Stock" means the Common Stock subject to an Option.
p. "Optionee" means an Employee or Consultant who receives an Option.
q. "Parent" means a "parent corporation", whether now or hereafter
existing, as defined in Section 424(e) of the Code.
r. "Plan" means this 1993 Stock Plan.
s. "Share" means a share of the Common Stock, as adjusted in accordance
with Section 12 of the Plan.
t. "Subsidiary" means a "subsidiary corporation", whether now or hereafter
existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Section 12 of the
Plan, the maximum aggregate number of shares which may be optioned and sold
under the Plan is 600,000 shares of Common Stock. The shares may be authorized,
but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason without having
been exercised in full, the unpurchased Shares which were subject thereto shall,
unless the Plan shall have been terminated, become available for future grant
under the Plan.
4. ADMINISTRATION OF THE PLAN.
a. Procedure.
i. Administration With Respect to Directors and Officers. With respect
to grants of Options to Employees who are also officers or directors
of the Company, the Plan shall be administered by (A) the Board if the
Board may administer the Plan in compliance with Rule 16b-3
promulgated under the Exchange Act or any successor thereto ("Rule
16b-3") with respect to a plan intended to qualify thereunder as a
discretionary plan, or (B) a Committee designated by the Board to
administer the Plan, which Committee shall be constituted in such a
manner as to permit the Plan to comply with Rule 16b-3 with respect to
a plan intended to qualify thereunder as a discretionary plan. Once
appointed, such Committee shall continue to serve in its designated
capacity until otherwise directed by the Board. From time to time the
Board may increase the size of the Committee and appoint additional
members thereof, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies, however caused,
and remove all members of the Committee and thereafter directly
administer the Plan, all to the extent permitted by Rule 16b-3 with
respect to a plan intended to qualify thereunder as a discretionary
plan.
ii. Multiple Administrative Bodies. If permitted by Rule 16b-3, the
Plan may be administered by different bodies with respect to
directors, nondirector officers and Employees who are neither
directors nor officers.
iii. Administration With Respect to Consultants and Other Employees.
With respect to grants of Options to Employees or Consultants who are
neither directors nor officers of the Company, the Plan shall be
administered by (A) the Board or (B) a Committee designated by the
Board, which Committee shall be constituted in such a manner as to
satisfy the legal requirements relating to the administration of
incentive stock option plans, if any, of California corporate and
securities laws and of the Code (the "Applicable Laws"). Once
appointed, such Committee shall continue to serve in its designated
capacity until otherwise directed by the Board. From time to time the
Board may increase the size of the Committee and appoint additional
members thereof, remove members (with or without cause) and appoint
new members in substitution therefor, fill vacancies, however caused,
and remove all members of the Committee and thereafter directly
administer the Plan, all to the extent permitted by the Applicable
Laws.
b. Powers of the Administrator. Subject to the provisions of the Plan and
in the case of a Committee, the specific duties delegated by the Board to
such Committee, the Administrator shall have the authority, in its
discretion:
i. to determine the Fair Market Value of the Common Stock, in
accordance with Section 2(k) of the Plan;
ii. to select the officers, Consultants and Employees to whom Options
may from time to time be granted hereunder;
iii. to determine whether and to what extent Options are granted
hereunder;
iv. to determine the number of shares of Common Stock to be covered by
each such award granted hereunder;
v. to approve forms of agreement for use under the Plan;
vi. to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any award granted hereunder (including, but not
limited to, the share price and any restriction or limitation or
waiver of forfeiture restrictions regarding any Option or other award
and/or the shares of Common Stock relating thereto, based in each case
on such factors as the Administrator shall determine, in its sole
discretion);
vii. to determine whether and under what circumstances an Option may
be settled in cash under subsection 9(f) instead of Common Stock; and
c. Effect of Committee's Decision. All decisions, determinations and
interpretations of the Administrator shall be final and binding on all
Options and any other holders of any Options.
5. ELIGIBILITY.
a. Nonstatutory Stock Options may be granted to Employees and Consultants.
Incentive Stock Options may be granted only to Employees. An Employee or
Consultant who has been granted an Option may, if he is otherwise eligible,
be granted an additional Option or Options.
b. Each Option shall be designated in the written option agreement as
either an Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designations, to the extent that the aggregate Fair
Market Value of the Shares with respect to which Options designated as
Incentive Stock Options are exercisable for the first time by any Optionee
during any calendar year (under all plans of the Company or any Parent or
Subsidiary) exceeds $100,000, such excess Options shall be treated as
Nonstatutory Stock Options.
c. For purposes of Section 5(b), Incentive Stock Options shall be taken
into account in order in which they were granted, and the Fair Market Value
of the Shares shall be determined as of the time the Option with respect to
such Shares is granted.
d. The Plan shall not confer upon any Optionee any right with respect to
continuation of employment or consulting relationship with the Company, nor
shall it interfere in any way with his right or the Company's right to
terminate his employment or consulting relationship at any time, with or
without cause.
6. TERM OF PLAN. The Plan shall become effective upon the earlier to occur of
its adoption by the Board of Directors or it approval of the shareholders of the
Company as described in Section l8 of the Plan. It shall continue in effect for
a term of ten (10) years unless sooner terminated under Section 14 of the Plan.
7. TERM OF OPTION. The term of each Option shall be the term stated in the
Option Agreement; provided, however, that in the case of an Incentive Stock
Option, the term shall be no more than ten (10) years from the date of grant
thereof or such shorter term as may be provided in the Option Agreement.
However, in the case of an Option granted to a Optionee who, at the time the
Option is granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary,
the term of the Option shall be five (5) years from the date of grant thereof or
such shorter term as may be provided in the Option Agreement.
8. OPTION EXERCISE PRICE AND CONSIDERATION.
a. The per share exercise price for the Shares to be issued pursuant to
exercise of an Option shall be such price as is determined by the Board,
but shall be subject to the following:
i. In the case of an Incentive Stock Option
A. granted to an Employee who, at the time of the grant of such
Incentive Stock Option, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, the per Share exercise price
shall be no less than 110% of the Fair Market Value per Share on
the date of grant.
B. granted to any Employee, the per Share exercise price shall be
no less than 100% of the Fair Market Value per Share on the date
of grant.
ii. In the case of a Nonstatutory Stock Option
A. granted to a person who, at the time of the grant of such
Option, owns stock representing more than ten percent (10%) of
the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the per Share exercise price shall be no
less than 110% of the Fair Market Value per Share on the date of
the grant.
B. granted to any person, the per Share exercise price shall be
no less than 85% of the Fair Market Value per Share on the date
of grant.
b. The consideration to be paid for the Shares to be issued upon exercise
of an Option, including the method of payment, shall be determined by the
Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the time of grant) and may consist entirely of (1) cash, (2)
check, (3) other Shares which (x) in the case of Shares acquired upon
exercise of an Option either have been owned by the Optionee for more than
six months on the date of surrender or were not acquired, directly or
indirectly, from the Company, and (y) have a Fair Market Value on the date
of surrender equal to the aggregate exercise price of the Shares as to
which said Option shall be exercised, (4) authorization from the Company to
retain from the total number of Shares as to which the Option is exercised
that number of Shares having a Fair Market Value on the date of exercise
equal to the exercise price for the total number of Shares as to which the
Option is exercised, (5) delivery of a properly executed exercise notice
together with irrevocable instructions to a broker to promptly deliver to
the Company the amount of sale or loan proceeds required to pay the Company
the amount of sale or loan proceeds required to pay the exercise price, (6)
by delivering an irrevocable subscription agreement for the Shares which
irrevocable obligates the option holder to take and pay for the Shares not
more than twelve months after the date of delivery of the subscription
agreement, (7) any combination of the foregoing methods of payment, or (8)
such other consideration and method of payment for the issuance of Shares
to the extent permitted under Applicable Laws. In making its determination
as to the type of consideration to accept, the Board shall consider if
acceptance of such consideration may be reasonably expected to ben efit the
Company (Section 315(b) of the California Corporation law).
9. EXERCISE OF OPTION.
a. Procedure for Exercise; Rights as a Shareholder. Any Option granted
hereunder shall be exercisable at such times and under such conditions as
determined by the Board, including performance criteria with respect to the
Company and/or the Optionee, and as shall be permissible under the terms of
the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received
by the Company. Full payment may, as authorized by the Board, consist of
any consideration and method of payment allowable under Section 8(b) of the
Plan. Until the issuance (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company)
of the stock certificate evidencing such Shares, no right to vote or
receive dividends or any other rights as a shareholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such stock certificate
promptly upon exercise of the Option. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the
stock certificate if issued, except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares which thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which
the Option is exercised.
b. Termination of Employment. In the event of termination of an Optionee's
consulting relationship or Continuous Status as an Employee with the
Company (as the case may be), such Optionee may, but only within thirty
(30) days (or such other period of time as is determined by the Board, with
such determination in the case of an Incentive Stock Option being made at
the time of grant of the Option and not less than thirty (30) days after
the date of such termination (but in no event later than the expiration
date of the term of such Option as set forth in the Option Agreement),
exercise his Option to the extent that Optionee was not entitled to
exercise the Option at the date of such termination, or if Optionee does
not exercise such Option to the extent so entitled within the time
specified herein, the Option shall terminate.
c. Disability of Optionee. Notwithstanding the provisions of Section 9(b)
above, in the event of termination of an Optionee's Consulting relationship
or Continuous Status as an Employee as a result of his total and permanent
disability (as defined in Section 22(e) of the Code), Optionee may, but
only within twelve (12) months from the date of such termination (but in no
event later than the expiration date of the term of such Option as set
forth in the Option Agreement), exercise the Option to the extent otherwise
entitled to exercise it at the date of such termination. To the extent that
Optionee was not entitled to exercise the Option at the date of
termination, or if Optionee does not exercise such Option to the extent so
entitled within the time specified herein, the Option shall terminate.
d. Death of Optionee. In the event of the death of an Optionee, the Option
may be exercised, at any time within twelve (12) months following the date
of death (but in no event later than the expiration date of the term of
such Option as set forth in the Option Agreement), by the Optionee's estate
or by a person who acquired the right to exercise the Option by bequest or
inheritance, but only to the extent the Optionee was entitled to exercise
the Option at the date of death. To the extent that Optionee was not
entitled to exercise the Option at the date of termination, or if Optionee
does not exercise such Option to the extent so entitled within the time
specified herein, the Option shall terminate.
e. Rule 16b-3. Options granted to persons subject to Section 16(b) of the
Exchange Act must comply with Rule 16b-3 and shall contain such additional
conditions or restrictions as may be required thereunder to qualify for the
maximum exemption from Section 16 of the Exchange Act with respect to Plan
transactions.
f. Buyout Provisions. The Administrator may at any time offer to buy out
for a payment in cash or Shares, an Option previously granted, based on
such terms and conditions as the Administrator shall establish and
communicate to the Optionee at the time that such offer is made.
10. NON-TRANSFERABILITY OF OPTIONS. The Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. STOCK WITHHOLDING TO SATISFY WITHHOLDING TAX OBLIGATIONS. At the discretion
of the Administrator, Optionees may satisfy withholding obligations as provided
in this paragraph. When an Optionee incurs tax liability in connection with an
Option, which tax liability is subject to tax withholding under applicable tax
laws, and the Optionee is obligated by electing to pay the Company an amount
required to be withheld under applicable tax laws, the Optionee may satisfy the
withholding tax obligation by electing to have the Company withhold from the
Shares to be issued upon exercise of the Option that number of Shares having a
Fair Market Value equal to the amount required to be withheld. The Fair Market
Value of the Shares to be withheld shall be determined on the date that the
amount of tax to be withheld is to be determined (the "Tax Date").
All elections by an Optionee to have Shares withheld for this purpose shall be
made in writing in a form acceptable to the Administrator and shall be subject
to the following restrictions:
a. the election must be made on or prior to the applicable Tax Date;
b. once made, the election shall be irrevocable as to the particular Shares
of the Option as to which the election is made;
c. all elections shall be subject to the consent or disapproval of the
Administrator;
d. if the Optionee is subject to Rule 16b-3, the election must comply with
the applicable provisions of Rule 16b-3 and shall be subject to such
additional conditions or restrictions as may be required thereunder to
qualify for the maximum exemption from Section 16 of the Exchange Act with
respect to Plan transactions.
In the event the election to have Shares withheld is made by an Optionee and the
Tax Date is deferred under Section 83 of the Code because no election is filed
under Section 83(b) of the Code, the Optionee shall receive the full number of
Shares with respect to which the Option is exercised but such Optionee shall be
unconditionally obligated to tender back to the Company the proper number of
Shares on the Tax Date.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any
required action by the shareholders of the Company, the number ofshares of
Common Stock covered by each outstanding Option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an Option.
In the event of the proposed dissolution or liquidation of the Company, the
Board shall notify the Optionee at least fifteen (15) days prior to such
proposed action. To the extent it has not been previously exercised, the Option
will terminate immediately prior to the consummation of such proposed action. In
the event of a merger of the Company with or into another corporation, the
Option shall be assumed or an equivalent option shall be substituted by such
successor corporation or a parent or subsidiary of such successor corporation.
In the event that such successor corporation does not agree to assume the Option
or to substitute an equivalent option, the Board shall notify the Optionee that
the Option shall be exercisable for a period of fifteen (15) days from the date
of such notice, and the Option will terminate upon the expiration of such
period.
13. TIME OF GRANTING OPTIONS. The date of grant of an Option shall, for all
purposes, be the date on which the Administrator makes the determination
granting such other date as is determined by the Board. Notice of the
determination shall be given to each Employee or Consultant to whom an Option is
so granted within a reasonable time after the date of such grant.
14. AMENDMENT AND TERMINATION OF THE PLAN.
a. Amendment and Termination. The Board may at any time amend, alter,
suspend or discontinue the Plan, but no amendment, alteration, suspension
or discontinuation shall be made which would impair the rights of any
Optionee under any grant theretofore made, without his or her consent. In
addition, to the extent necessary and desirable to comply with Rule 16b-3
under the Exchange Act or with Section 422 of the Code (or any other
applicable law or regulation, including the requirements of the NASD or an
established stock exchange), the Company shall obtain shareholder approval
of any Plan amendment in such a manner and to such a degree as required.
b. Effect of Amendment or Termination. Any such amendment or termination of
the Plan shall not affect Options already granted and such Options shall
remain in full force and effect as if this Plan had not been amended or
terminated, unless mutually agreed otherwise between the Optionee and the
Board, which agreement must be in writing and signed by the Optionee and
the Company.
15. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued pursuant to
the exercise of an Option unless the exercise of such Options and the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the Shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
16. RESERVATION OF SHARES. The Company, during the term of this Plan, will at
all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company's counsel to be necessary
to the lawful issuance and sale of any Shares hereunder, shall relieve the
Company of any liability in respect of the failure to issue or sell such Shares
as to which such requisite authority shall not have been obtained.
17. AGREEMENTS. Options shall be evidenced by written agreements in such form as
the Board shall approve from time to time.
18. SHAREHOLDER APPROVAL. Continuance of the Plan shall be subject to approval
by the shareholders of the Company within twelve (12) months before or after the
date the Plan is adopted. Such shareholder approval shall be obtained in the
degree and manner required under applicable state and federal law.
19. INFORMATION TO OPTIONEES. The Company shall provide to each Optionee, during
the period for which such Optionee has one or more Options outstanding, a
balance sheet and an income statement at least annually.
SAMPLE STOCK OPTION
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY OR ANY INTEREST
THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA, EXCEPT
AS PERMITTED IN THE COMMISSIONER'S RULES.
THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF.
NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN EXEMPTION FROM SUCH REGISTRATION UNDER THE
SECURITIES ACT OF 1933.
STOCK OPTION AGREEMENT
Micro Interventional Systems, Inc., a California corporation (the "Company"),
hereby grants to ___________ (the "Optionee") an Option to purchase a total of
___ shares (the "Shares") of Common Stock, at the price determined as provided
herein, and in all respects subject to the terms, definitions and provisions of
the 1993 Stock Plan (the "Plan") adopted by the Company which is incorporated
herein by reference. The terms defined in the Plan shall have the same defined
meanings herein.
1. NATURE OF THE OPTION. If Optionee is an Employee of the Company, this
Option is intended to qualify as an Incentive Stock Option as defined in
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
If Optionee is a Consultant of the Company, this Option is a nonstatutory
option and is not intended to qualify for any special tax benefits to the
Optionee.
2. EXERCISE PRICE. The exercise price is $____ for each share of Common
Stock, which price is not less than the fair market value per share of
Common Stock on the Date of Grant, as determined by the Board.
3. EXERCISE OF OPTION. This Option shall be exercisable during its term in
accordance with the provisions of Section 9 of the Plan as follows:
i. Right to Exercise.
a. Subject to Subsection 3(i)(b) and (c), below, 25% of the total
number of shares to this Option shall be exercisable per year from the
date of grant of this option until all of such shares are exercisable.
In no event shall this Option provide for vesting at a rate of less
than 20% per year over five years from the date of grant of this
Option.
b. This Option may not be exercised for a fraction of a Share.
c. In the event of Optionee's death, disability or other termination
of employment, the exercisability of the Option is governed by
Sections 7, 8 and 9 below.
ii. Method of Exercise. This Option shall be exercisable by written
notice which shall state the election to exercise the Option, the
number of Shares in respect of which the Option is being exercised,
and such other representations and such shares of Common Stock as may
be required by the Company pursuant to the provisions of the Plan.
Such written notice shall be signed by Optionee and shall be delivered
in person or by certified mail to the President, Secretary or Chief
Financial Officer of the Company. The written notice shall be
accompanied by payment of the exercise price. This Option shall be
deemed to be exercised upon receipt by the Company of such written
notice accompanied by the exercise price.
No Shares will be issued pursuant to the exercise of an Option unless
such issuance and such exercise shall comply with all relevant
provisions of law and the requirements of any stock exchange upon
which the Shares may then be listed. Assuming such compliance, the
Shares shall be considered transferred to the Optionee on the date on
which the Option is exercised with respect to such Shares.
4. INVESTMENT REPRESENTATIONS: RESTRICTIONS ON TRANSFER.
i. By receipt of this Option, by its execution and by its exercise in
whole or in part, Optionee represents to the Company the following:
a. Optionee understands that this Option and any Shares purchased
upon its exercise are securities, the issuance of which requires
compliance with federal and state securities laws.
b. Optionee is aware of the Company's business affairs and
financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision to
acquire the securities. Optionee is acquiring these securities
for investment for Optionee's own account only and not with a
view to, or for resale in connection with, any "distribution"
thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
c. Optionee acknowledges and understands that the securities
constitute "restricted securities" under the Securities Act and
must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration
is available. Optionee further acknowledges and understands that
the Company is under no obligation to register the securities.
Optionee understands that the certificate evidencing the
securities will be imprinted with a legend which prohibits the
transfer of the securities unless they are registered or such
registration is not required under an exemption under applicable
securities laws, a legend prohibiting their transfer without the
consent of the Commissioner of Corporations of the State of
California and any other legend required under applicable state
securities laws.
d. Optionee is familiar with the provisions of Rule 701 and Rule
144, each promulgated under the Securities Act, which, in
substance, permit limited public resale of "restricted
securities" acquired, directly or indirectly, from the issuer
thereof, in a nonpublic offering subject to the satisfaction of
certain conditions. Rule 701 provides that if the issuer
qualifies under Rule 701 at the time of exercise of the Option by
the Optionee, such exercise will be exempt from registration
under the Securities Act. In the event the Company later becomes
subject to the reporting requirements of Section 13 or 15(d) of
the Securities Exchange Act of 1934, ninety (90) days thereafter
the securities exempt under Rule 701 not be resold, subject to
the satisfaction of certain of the conditions specified by Rule
144, including among other things: (1) the sale being made
through a broker in an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934); and, in the
case of an affiliate, (2) the availability of certain public
information about the Company, and the amount of securities being
sold during any three month period not exceeding the limitations
specified in Rule l44(e), if applicable. Notwithstanding this
paragraph 4(i)(d), the Optionee acknowledges and agrees to the
restrictions set forth in paragraph 4(ii).
e. Optionee understands that in the event that the Company does
not qualify under Rule 701 at the time of exercise of the Option,
then the securities may be resold in certain limited
circumstances subject to the provisions of Rule l44, which
requires among other things: (l) the availability of certain
public information about the Company; (2) the resale occurring
not less than two years after the party has purchased, and made
full payment for, within the meaning of Rule 144, the securities
to be sold; and (3) in the case of an affiliate, or of a
non-affiliate who has held the securities less than three years,
the sale being made through a broker in an unsolicited "brokers
transaction" or in transactions directly with a market maker (as
said term is defined under the Securities Exchange Act of 1934)
and the amount of securities being sold during any three month
period not exceeding the specified limitations stated therein, if
applicable.
ii. Optionee agrees, in connection with the Company's initial
underwritten public offering of the Company's securities, (1) not to
sell, make short sale of, loan, grant any options for the purchase of,
or otherwise dispose of any shares of Common Stock of the Company held
by Optionee (other than those shares included in the registration)
without the prior written consent of the Company or the underwriters
managing such initial underwritten public offering of the Company's
securities for one hundred eighty (180) days from the effective date
of registration, and (2) further agrees to execute any agreement
reflecting (1) above as may be requested by the underwriters at the
time of the public offering.
5. METHOD OF PAYMENT. Payment of the purchase price shall be made in cash
or check.
6. RESTRICTIONS ON EXERCISE. This Option may not be exercised until such
time as the Plan has been approved by the shareholders of the Company, or
if the issuance of such Shares upon such exercise or the method of payment
of consideration for such shares would constitute a violation of any
applicable federal or state securities or other law or regulation,
including any rule under Part 207 of Title 12 of the Code of Federal
Regulations ("Regulation G") as promulgated by the Federal Reserve Board.
As a condition to the exercise of this Option, the Company may require
Optionee to make any representation and warranty to the Company as may be
required by any applicable law or regulation.
7. TERMINATION OF STATUS AS AN EMPLOYEE OR CONSULTANT. If Optionee is an
Employee and ceases to serve as an Employee or if Optionee is a Consultant
and ceases to serve as a Consultant, then Optionee may, but only within
thirty (30) days after the date he ceases to be an Employee or Consultant
(as the case may be), exercise this Option to the extent that he was
entitled to exercise it at the date of such termination. To the extent that
Optionee was not entitled to exercise this Option at the date of such
termination, or if he does not exercise this Option within the time
specified herein, this Option shall terminate.
8. DISABILITY OF OPTIONEE. Notwithstanding the provisions of Section 7
above, if Optionee is unable to continue his employment or consulting
relationship with the Company as a result of his permanent an total
disability (as defined in Section 22(e)(3) of the Code), he may, but only
within six (6) months from the date of termination of employment or
consulting relationship, exercise it at the date of such termination. To
the extent that he was not entitled to exercise this Option at the date of
termination, or if he does not exercise such Option (which he was entitled
to exercise) within the time specified herein, this Option shall terminate.
9. DEATH OF OPTIONEE. In the event of the death of Optionee:
i. during the term of this Option and while an Employee or Consultant
of the Company and having been in Continuous Status as an Employee or
Consultant since the date of grant of this Option, this Option may be
exercised, at any time within six (6) months following the date of
death, by Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the extent
of the right to exercise that would have accrued had Optionee
continued living and remained in Continuous Status as an Employee or
Consultant six (6) months after the date of death; or
ii. within thirty (30) days after the termination of Optionee's
Continuous Status as an Employee or Consultant, this Option may be
exercised, and at any time within six (6) months following the date of
death, by Optionee's estate or by a person who acquired the right to
exercise this Option by bequest or inheritance, but only to the extent
of the right to exercise that had accrued at the date of termination.
10. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in
any manner otherwise than by will or by the laws of descent or distribution
and may be exercised during the lifetime of Optionee only by Optionee. The
terms of this Option shall be binding upon the executors, administrators,
heirs, successors and assigns of Optionee.
11. TERM OF OPTION. Notwithstanding Section 9, this Option may not be
exercised more than ten (10) years from the date of grant of this Option,
and may be exercised during such term only in accordance with the Plan and
the terms of this Option.
12. EARLY DISPOSITION OF STOCK. If Optionee is an Employee, Optionee
understands that if he disposes of any Shares received under this Option
within two (2) years after the date of this Agreement or within one (1)
year after such Shares were transferred to him, he will be treated for
federal income tax purposes as having received ordinary income at the time
of such disposition in an amount generally measured by the difference
between the exercise price and the lower of the fair market value of the
Shares at the date of the exercise or the fair market value of the Shares
at the date of disposition. The amount of such ordinary income may be
measured differently if Optionee is an officer, director or 10% shareholder
of the Company, or if the Shares were subject to a substantial risk of
forfeiture at the time they were transferred to Optionee. Optionee hereby
agrees to notify the Company in writing within 30 days after the date of
any such disposition. Optionee understands that if he disposes of such
Shares at any time after the expiration of such two-year and one-year
holding periods, any gain on such sale will be taxed as long-term capital
gain.
13. TAXATION UPON EXERCISE OF OPTION. If Optionee is a Consultant, he
understands that, upon exercise of this Option, he will recognize income
for tax purposes in an amount equal to the excess of the then fair market
value of the Shares over the exercise price. The Company will be required
to withhold tax from Optionee's current compensation with respect to such
income; to the extent that Optionee's current compensation is insufficient
to satisfy the withholding tax liability, the Company may require the
Optionee to make a cash payment to cover such liability as condition of
exercise of this Option. Upon a resale of such shares by the Optionee, any
difference between the sale price and the fair market value of the shares
on the date of exercise of the Option will be treated as capital gain or
loss.
14. MISCELLANEOUS. The recipient of this Option acknowledges that the
Company has no additional obligation to issue or sell securities to the
Optionee.
DATE OF GRANT: ____________, 1995
MICRO INTERVENTIONAL SYSTEMS, INC.
By:
Title: PRESIDENT AND
CHIEF EXECUTIVE OFFICER
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO SECTION
3 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE OR CONSULTANT AT
THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS
OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES
THAT THIS OPTION, THE COMPANY'S PLAN WHICH IS INCORPORATE HEREIN BY REFERENCE,
THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH
HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT
AS AN EMPLOYEE OR CONSULTANT FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL,
AND SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S EMPLOYMENT OR CONSULTING RELATIONSHIP AT ANY TIME, WITH OR
WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan, a copy of which is annexed
hereto, and represents that Optionee is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all of the terms and
provisions thereof. Optionee hereby agrees to accept as binding, conclusive and
final all decisions or interpretations of the Board or of the Committee upon any
questions arising under the Plan.
Dated:___________________ _______________________________________
OPTIONEE
Residence Address:
_______________________________________
_______________________________________
Social Security Number:
_______________________________________
EXHIBIT A
NOTICE OF EXERCISE
STOCK OPTION
TO:
FROM:
DATE:
REGARDING: EXERCISE OF STOCK OPTION
I hereby exercise my option to purchase __________ shares of Common Stock at
$________ per share (total exercise price of $ _______ , effective today's date.
This notice is given in accordance with the terms of my Stock Option Agreement
dated ______________, 199_. The option price and vested amount is in accordance
with Sections 2 and 3 of the Stock Option Agreement.
Attached is a check payable to Micro Interventional Systems, Inc. for the total
exercise price of the shares being purchased. The undersigned confirms the
representations made in Section 4 of the Stock Option Agreement.
Please prepare the stock certificate in the following name(s):
____________________________
____________________________
If the stock is to be registered in a name other than your name, please so
advise the Company. The Stock Option Agreement requires the Company's approval
for registration in a name other than your name and requires certain agreements
from any joint owner.
Sincerely,
_______________________________________
(Signature)
_______________________________________
(Print or Type)
Letter and consideration
received on __________________, 199_.
By: _______________________________________
