<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 9, 1995.
REGISTRATION NO. 33-_________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ACUSON CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 94-2784998
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1220 CHARLESTON ROAD, MOUNTAIN VIEW, CA 94043
(Address of Principal Executive Offices) (Zip Code)
ACUSON CORPORATION 1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
CHARLES H. DEARBORN
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ACUSON CORPORATION
1220 CHARLESTON ROAD, MOUNTAIN VIEW, CA 94043
(Name and address of agent for service)
415-969-9112
(Telephone number, including area code,
of agent for service)
-------------
Calculation of Registration Fee
--------------------------------------------------------------------------------
Proposed Proposed
Title of Number Maximum Maximum Amount of
Securities of shares Offering Aggregate Regis-
to be to be Price Per Offering tration
Registered Registered Share Price Fee
--------------------------------------------------------------------------------
Common Stock 2,000,000 $*11.56 $23,120,000 $**7,972.41
--------------------------------------------------------------------------------
* Estimate based on the average of the high and low sales prices of Acuson
Common Stock on August 1, 1995, on the New York Stock Exchange.
** Calculated pursuant to paragraphs (h)(1) and (c) of SEC Rule 457.
________________________________________________________________________________
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference herein:
(a) The Company's annual report on Form 10-K for the fiscal year ended
December 31, 1994, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) All other reports filed by the Company since December 31, 1994
with the Securities and Exchange Commission pursuant to Section
13(a) or 15(d) of the Exchange Act.
(c) The description of Acuson Common Stock contained in a registration
statement filed with the Securities and Exchange Commission under
the Exchange Act, including any amendments and reports filed for
the purpose of updating such description.
(d) All documents subsequently filed by the Company 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 hereby have been sold or which deregisters all
such securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Alison M. Nichols, who has rendered an opinion as to the validity of the
shares offered hereby, is a counsel to the Company. As of August 3, 1995, Ms.
Nichols owned 275 shares, and had options to purchase 667 shares, of the
Company's common stock.
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<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company, a Delaware corporation, is empowered by Section 145 of the
Delaware General Corporation Law (the "DGCL"), subject to the procedures and
limitations stated therein, to indemnify any person against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in the defense of any threatened, pending or
completed action, suit or proceeding in which such person is made a party by
reason of his or her being or having been a director or officer of the Company.
The statute provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise.
The Company's Bylaws provide that the Company shall indemnify its
directors and executive officers, and may indemnify its other officers,
employees and other agents, to the full extent permitted by law. The Bylaws
also provide that the Company shall, subject to certain limitations, advance all
expenses incurred by its directors and executive officers prior to the final
disposition of any proceeding for which indemnification may be available. The
Company believes that indemnification under its Bylaws covers at least
negligence and gross negligence by such directors, executive officers, other
employees and agents, and requires the Company to advance litigation expenses in
the case of stockholder derivative or other actions against an undertaking by
the indemnitee to repay such advances if it is ultimately determined that the
indemnitee is not entitled to indemnification.
The Company is also empowered by Section 102(b) of the DGCL to include a
provision in its certificate of incorporation to limit a director's liability to
the Company or its stockholders for monetary damages for breaches of fiduciary
duty as a director. Article VII of the Restated Certificate of Incorporation of
the Company provides that the personal liability of the directors of the Company
is eliminated to the fullest extent permitted by the DGCL.
The Company presently maintains directors and officers liability
insurance coverage.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
<PAGE>
ITEM 8. EXHIBITS.
Exhibit Index
-------------
Exh. No. Description
-------- -----------
(4) (a) Restated Certificate of Incorporation. Filed as Exhibit 3.8 to
the Company's Registration Statement on Form S-1 (File No. 33-
7838) and incorporated herein by reference.
(b) Bylaws. Filed as Exhibit 3.9 to the Company's Registration
Statement on Form S-1 (File No. 33-7838) and incorporated herein
by reference.
(c) Acuson Corporation 1995 Employee Stock Purchase Plan.
(5) Opinion of Alison M. Nichols, Counsel.
(23)(a) Consent of Arthur Andersen LLP.
(b) Consent of Alison M. Nichols (included in Exhibit 5).
(24) Manually executed Powers of Attorney (located on signature pages
hereof).
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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;
(b) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "Act"), each post-effective amendment
referred to in undertaking (a) above 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;
II-3
<PAGE>
(c) 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;
(d) That, for purposes of determining any liability under the Act,
each filing of the registrant's annual report pursuant to Section
13(a) or 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 be the initial bona fide offering
thereof;
(e) That, insofar as indemnification for liabilities arising under the
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 Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liability (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 Act and will be governed by the final adjudication of such
issue.
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<PAGE>
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 Mountain View, State of California on August 8,
1995.
ACUSON CORPORATION
By: /s/ Samuel H. Maslak
------------------------
Samuel H. Maslak
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY AND ADDITIONAL SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned persons
hereby constitutes and Stephen T. Johnson and Robert J. Gallagher, and each of
them, whether acting individually or jointly, his true and lawful attorneys-in-
fact and agents, with full power of substitution and resubstitution, for such
person and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement (including post-effective
amendments) and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said attorneys-in-
fact and agents full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as fully
as to all intents and purposes he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or their substitutes,
may lawfully do and cause to be done by virtue hereof.
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<PAGE>
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.
Signature Title Date
-------------------------- ------------------------- --------------
/s/ Samuel H. Maslak Chairman of the Board and August 8, 1995
------------------------ Chief Executive Officer
Samuel H. Maslak
/s/ Stephen T. Johnson Vice President, Chief August 8, 1995
------------------------ Financial Officer
Stephen T. Johnson and Treasurer
(principal financial
and accounting officer)
/s/ Robert J. Gallagher President and Director August 8, 1995
------------------------
Robert J. Gallagher
/s/ Royce Diener Director August 8, 1995
------------------------
Royce Diener
/s/ Alan C. Mendelson Director August 8, 1995
------------------------
Alan C. Mendelson
II-6
<PAGE>
ACUSON CORPORATION EXHIBIT 4C
--------------------------------------------------------------------------------
ACUSON CORPORATION
1995 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
The following constitute the provisions of the 1995 Employee Stock
Purchase Plan of Acuson Corporation.
1. Purpose. The purpose of the Plan is to provide employees of the
-------
Company and its Designated Subsidiaries with an opportunity to purchase Common
Stock of the Company through accumulated payroll deductions. The Company, by
means of the Plan, seeks to retain the services of its employees, to secure and
retain the services of new employees, and to provide incentives for such persons
to exert maximum efforts for the success of the Company by providing eligible
employees with an opportunity to participate as shareholders in the Company's
future growth. It is the intention of the Company to have the Plan qualify as
an "Employee Stock Purchase Plan" under Section 423 of the Code. Accordingly,
the provisions of the Plan, and the discretion granted to the Plan Administrator
hereunder shall be construed so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.
2. Definitions.
-----------
(a) "Applicable Discount" shall mean, with respect to any given
-------------------
Purchase Period, the discount fixed by the Plan Administrator pursuant to
paragraph 4(b) with respect to such Purchase Period, which discount shall be no
less than 0% and no more than 15% (in whole percentages).
(b) "Board" shall mean the Board of Directors of the Company.
-----
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
----
(d) "Common Stock" shall mean the common stock, par value $.0001 per
------------
share, of the Company.
(e) "Company" shall mean Acuson Corporation, a Delaware corporation.
-------
(f) "Compensation" shall mean, with respect to any given Purchase
------------
Period, the components of each Participant's total compensation that will be
treated as compensation for purposes of the Plan during such Purchase Period as
determined by the Plan Administrator pursuant to paragraph 4(b).
(g) "Designated Subsidiaries" shall mean the Subsidiaries which have
-----------------------
been designated by the Plan Administrator from time to time in its sole
discretion as eligible to participate in the Plan.
(h) "Employee" shall mean any individual who is regularly engaged in
--------
the rendition of personal services to the Company or a Designated Subsidiary for
earnings considered wages under Section 3121(a) of the Code. For purposes of the
Plan, the employment relationship shall be treated as continuing intact while
the individual is on sick leave or other leave of absence approved by the
Company. Where the period of leave exceeds 90 days and the individual's right to
reemployment is not guaranteed either by statute or by contract, the employment
relationship will be deemed to have terminated on the 91st day of such leave.
1
<PAGE>
(i) "Enrollment Date" shall mean the first day of each Purchase
---------------
Period.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended.
(k) "Exercise Date" shall mean, with respect to any given Purchase
-------------
Period, the date or dates fixed by the Plan Administrator with respect to such
Purchase Period pursuant to paragraph 4(b).
(l) "Fair Market Value" shall mean, as of any date, the value of
-----------------
Common Stock determined as follows:
(1) 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 exchange (or the
exchange with the greatest volume of trading in the Common Stock) or
system on the day of such determination, if such day is a Trading Day,
or the previous Trading Day, if such day is not a Trading Day, as
reported in The Wall Street Journal or such other source as the Board
-----------------------
deems reliable; or
(2) If the Common Stock is quoted on the NASDAQ system (but not on
the National Market system thereof) or is 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 on the day of such determination, if such
day is a Trading Day, or the previous Trading Day, if such day is not
a Trading Day, as reported in The Wall Street Journal or such other
-----------------------
source as the Board deems reliable; or
(3) In the absence of an established market for the Common Stock,
the Fair Market Value thereof shall be determined in good faith by the
Board.
(m) "Participant" means an eligible Employee of the Company or
-----------
Designated Subsidiary who is actively participating in the Plan.
(n) "Plan" shall mean this Employee Stock Purchase Plan.
----
(o) "Plan Administrator" shall mean either the Board or a committee of
------------------
the Board that is responsible for the administration of the Plan.
(p) "Purchase Period" shall mean a purchase period established by the
---------------
Plan Administrator pursuant to paragraph 4 hereof.
(q) "Purchase Price" shall mean, with respect to any given Exercise
Date, the amount determined by applying the Applicable Discount to the lower of
(i) the Fair Market Value of the Common Stock as of such Exercise Date and (ii)
the Fair Market Value of the Common Stock as of the first date of the Purchase
Period in which such Exercise Date falls; provided, however, that the Plan
Administrator may, in its discretion, determine that the Purchase Price for all
Exercise Dates within a given Purchase Period shall be the amount determined by
applying the Applicable Discount to the Fair Market Value of the Common Stock as
of the first date of such Purchase Period, but only if the Plan Administrator
does so upon establishing such Purchase Period.
(r) "Replacement Purchase Period" shall mean a replacement purchase
---------------------------
period established pursuant to paragraph 4(e) hereof.
2
<PAGE>
(s) "Reserves" shall mean the number of shares of Common Stock
--------
covered by all purchase rights granted under the Plan which have not yet been
exercised and the number of shares of Common Stock which have been authorized
for issuance under the Plan but as to which purchase rights have not yet been
granted (or as to which purchase rights have previously been granted but have
expired unexercised).
(t) "Subsidiary" shall mean a corporation, domestic or foreign, of
----------
which not less than 50% of the voting shares are held by the Company or a
Subsidiary, whether or not such corporation now exists or is hereafter organized
or acquired by the Company or a Subsidiary, except that as used in paragraph
18(b), "Subsidiary" shall have the meaning set forth in paragraph 18(c).
(u) "Trading Day" shall mean a day on which The New York Stock
-----------
Exchange is open for trading.
3. Eligibility.
-----------
(a) Any Employee who has been continuously employed by the Company
prior to the applicable Enrollment Date for such minimum period of time (not to
exceed two years), if any, as the Plan Administrator may require and who is
employed by the Company on such Enrollment Date shall be eligible to participate
in the Plan for the Purchase Period commencing with such Enrollment Date.
Members of the Board who are eligible Employees are permitted to participate in
the Plan except to the extent limited by paragraph 13(b).
(b) Any provisions of the Plan to the contrary notwithstanding, no
Employee shall be granted purchase rights under the Plan (i) if, immediately
after the grant, such Employee (taking into account stock owned by any other
person whose stock would be attributed to such Employee pursuant to Section
424(d) of the Code) would own stock and/or hold outstanding options or rights to
purchase stock possessing five percent (5%) or more of the total combined voting
power or value of all classes of stock of the Company or of any Subsidiary, or
(ii) which permits his/her rights to purchase stock under all employee stock
purchase plans of the Company and its Subsidiaries to accrue at a rate which
exceeds Twenty-Five Thousand Dollars ($25,000) worth of stock (determined at the
Fair Market Value of the shares at the time such purchase right is granted) for
each calendar year in which such purchase right is outstanding at any time. The
determination of the accrual of the right to purchase stock shall be made in
accordance with Section 423(b)(8) of the Code and the regulations thereunder.
(c) Notwithstanding paragraph (a) above, the Plan Administrator shall
have the discretion to exclude any one or more of the following categories of
Employees from participation in the Plan: (i) Employees whose customary
employment is 20 hours or less per week; (ii) Employees whose customary
employment is five months or less in any calendar year; (iii) Employees who have
been employed by the Company or any Designated Subsidiary for less than two
years; and (iv) highly compensated Employees (within the meaning of Section
414(q) of the Code).
4. Purchase Periods.
----------------
(a) The Plan shall be implemented by Purchase Periods until such time
as (i) the maximum number of shares of Common Stock available for issuance under
the Plan shall have been purchased or (ii) the Plan shall have terminated in
accordance with paragraph 19 or paragraph 24 hereof. Each Purchase Period shall
be of such duration (not to exceed twenty-seven months per Purchase Period) as
determined by the Plan Administrator upon establishment of such Purchase Period.
Purchase Periods will commence on such dates as may be determined by the Plan
Administrator during the period in which the Plan remains in existence. The Plan
Administrator shall have the discretion to establish overlapping Purchase
Periods.
3
<PAGE>
(b) Upon establishing each Purchase Period, the Plan Administrator
shall fix (i) one or more Exercise Dates with respect to such Purchase Period,
one of which shall be on the last day of such Purchase Period, (ii) the
Applicable Discount with respect to such Purchase Period, (iii) the Compensation
with respect to such Purchase Period and (iv) the maximum number of shares that
may be purchased by any Participant on any Exercise Date during such Purchase
Period (the "Per-Participant Limit"). In addition, the Plan Administrator may,
in its discretion, fix a maximum number of shares of Common Stock that may be
purchased by all Participants in the aggregate during such Purchase Period
and/or on any given Exercise Date therein. Once fixed, the Exercise Date or
Dates, the Applicable Discount, the Compensation, the Per-Participant Limit and
any aggregate share purchase limits with respect to a given Purchase Period may
not be changed, except upon the occurrence of a Corporate Transaction as
provided in paragraph 18(b).
(c) A Participant shall be granted a separate purchase right for each
Purchase Period in which he/she participates. The purchase right shall be
granted on the first day of the Purchase Period and shall be automatically
exercised in successive installments on each Exercise Date during the Purchase
Period.
(d) If the Plan Administrator establishes overlapping Purchase
Periods, the Plan Administrator may, in its discretion, permit Participants to
participate in more than one Purchase Period at a time.
(e) If on the Trading Day following any Exercise Date in a Purchase
Period the Fair Market Value of the Common Stock is less than the Fair Market
Value of the Common Stock on the first day of such Purchase Period (after taking
into account any adjustment during the Purchase Period pursuant to paragraph
18(a)), the Plan Administrator may, in its discretion, provide that the Purchase
Period shall be terminated and that all Participants therein shall be enrolled
in a new Purchase Period, other than any such Participants who are not eligible
to participate in the Plan on that date or who have elected to terminate
participation in the Plan. Any such new Purchase Period (a "Replacement
Purchase Period") shall be established by the Plan Administrator pursuant to
paragraph 4(a) and shall commence on the date that such previous Purchase Period
is terminated. The Plan Administrator shall fix one or more Exercise Dates, the
Applicable Discount, the Compensation and the Per-Participant Limit, and may fix
aggregate share purchase limits, pursuant to paragraph 4(b) with respect to such
Replacement Purchase Period.
(f) Except as specifically provided herein, the acquisition of Common
Stock through participation in the Plan for any Purchase Period shall neither
limit nor require the acquisition of Common Stock by a Participant in any
subsequent Purchase Period.
5. Participation.
-------------
(a) An eligible Employee may become a Participant in the Plan by
completing a subscription agreement authorizing payroll deductions in a form
designated by the Company and filing it with the Company's payroll office prior
to the Enrollment Date for the Purchase Period in which such participation will
commence in accordance with the filing deadline established by the Company.
Such agreement will remain effective under subsequent Purchase Periods unless
and until such Employee files a new agreement or terminates his/her
participation in the Plan in accordance with paragraph 6(c), provided that such
Employee must file a new subscription agreement to enroll in any Purchase Period
that overlaps with a Purchase Period in which such Employee has previously
enrolled.
(b) Payroll deductions for a Participant shall commence with the first
payroll following the Enrollment Date and shall end on the last complete payroll
period during the Purchase Period, unless sooner terminated by the Participant
as provided in paragraph 10.
6. Payroll Deductions.
------------------
4
<PAGE>
(a) At the time a Participant files his/her subscription agreement,
he/she shall elect to have payroll deductions made on each pay day during the
Purchase Period in an amount from three to fifteen percent (in whole percentages
only) of the Compensation which he/she receives on each such pay day.
(b) All payroll deductions made for a Participant shall be credited to
his/her account under the Plan. A Participant may not make any additional
payments into such account.
(c) A Participant may discontinue his/her participation in the Plan as
provided in paragraph 10. A Participant's subscription agreement shall remain
in effect for successive Purchase Periods unless and until such Participant
files a new agreement or terminates his/her participation in the Plan as
provided in paragraph 10. The Plan Administrator may, in its discretion, permit
Participants to amend their subscription agreements to increase and/or decrease
the rate of their payroll deductions during any given Purchase Period.
(d) Notwithstanding the foregoing, to the extent necessary to comply
with Section 423(b)(8) of the Code and paragraph 3(b) herein, a Participant's
payroll deductions may be decreased to 0% at such time during any Purchase
Period which is scheduled to end during the current calendar year (the "Current
Purchase Period") that the aggregate of all payroll deductions which were
previously used to purchase stock under the Plan in any other Purchase Period
that ended or that will end during that calendar year plus all payroll
deductions accumulated with respect to the Current Purchase Period equal the
maximum amount permitted under Section 423 of the Code. Payroll deductions shall
recommence at the rate provided in such Participant's subscription agreement at
the beginning of the first Purchase Period which is scheduled to end in the
following calendar year, unless terminated by the Participant as provided in
paragraph 10.
7. Grant of Purchase Right. On the first day of each Purchase
-----------------------
Period, each Participant in such Purchase Period shall be granted the right to
purchase on each Exercise Date of such Purchase Period (at the applicable
Purchase Price) up to a number of shares of Common Stock determined by dividing
such Participant's payroll deductions accumulated prior to such Exercise Date
and retained in the Participant's account as of the Exercise Date by the
applicable Purchase Price; provided that such purchase shall be subject to the
limitations set forth in paragraphs 3(b), 4(b), 6(d), 8(b) and 12(a) hereof.
Exercise of the purchase right shall occur as provided in paragraph 8, unless
the Participant has withdrawn from the Plan pursuant to paragraph 10, and the
purchase right, to the extent not exercised, shall expire on the last day of the
Purchase Period.
8. Exercise of Purchase Right.
--------------------------
(a) Unless a Participant withdraws from the Plan as provided in
paragraph 10 below, his/her right to purchase shares will be exercised
automatically on each Exercise Date, and the maximum number of full shares
subject to such right shall be purchased for such Participant at the applicable
Purchase Price with the accumulated payroll deductions in his/her account. No
fractional shares will be purchased; any payroll deductions accumulated in a
Participant's account which are not sufficient to purchase a full share shall be
carried over to the next Exercise Date under the Plan or returned to the
Participant, provided that, if the next Exercise Date falls within a new
Purchase Period, such payroll deductions shall be carried over to such Exercise
Date only if the Participant participates in such new Purchase Period. Any
amount remaining in a Participant's account at the close of any Exercise Date
caused by anything other than a surplus due to fractional shares (including the
accumulated payroll deductions in any Participant's account as of any Exercise
Date that are in excess of the amount needed to purchase the maximum number of
full shares which may be purchased by such Participant based on the limitations
in paragraphs 3(b), 4(b), 6(d), 8(b) and 12(a) hereof) shall be refunded to the
Participant in cash as soon as practicable and shall not be carried over to the
next Exercise Date. During a Participant's lifetime, a Participant's right to
purchase shares hereunder is exercisable only by him/her.
5
<PAGE>
(b) If, on a given Exercise Date, the aggregate purchase of shares
upon the exercise in full of all purchase rights would exceed the aggregate
share purchase limit, if any, fixed by the Plan Administrator pursuant to
paragraph 4(b) with respect to the applicable Purchase Period, the Company shall
make a pro-rata allocation of the available shares in as nearly uniform a manner
as shall be practicable and as it shall determine to be equitable.
9. Delivery. The Company shall arrange the delivery to each
--------
Participant of a certificate representing the shares of Common Stock purchased
upon exercise of his/her purchase right based upon instructions provided to the
Company by the Participant from time to time, but subject to paragraph 12(c).
10. Withdrawal; Termination of Employment.
-------------------------------------
(a) A Participant may withdraw all but not less than all the payroll
deductions credited to his/her account and not yet used to exercise his/her
purchase right under the Plan at any time by giving written notice to the
Company in a form designated by the Company. All of the Participant's payroll
deductions credited to his/her account will be paid to such Participant as soon
as practicable after receipt of such notice of withdrawal. Upon receipt of such
notice of withdrawal, the Participant's purchase right for the Purchase Period
will be automatically terminated, and no further payroll deductions for the
purchase of shares will be made during the Purchase Period. If a Participant
withdraws from a Purchase Period, payroll deductions will not resume at the
beginning of the succeeding Purchase Period unless the Participant delivers to
the Company a new subscription agreement.
(b) Upon a Participant's ceasing to be an eligible Employee for any
reason other than retirement, the payroll deductions credited to such
Participant's account during the Purchase Period but not yet used to exercise
his/her purchase right will be returned to such Participant or, in the case of
his/her death, to the person or persons entitled thereto under paragraph 14, and
such Participant's purchase right will be automatically terminated.
(c) Upon a Participant's ceasing to be an eligible Employee by reason
of his/her retirement, the provisions of this paragraph 10(c) shall apply. If
such retirement occurs three months or less prior to the next Exercise Date, the
retired Participant shall have the option of withdrawing from the Plan as
provided in paragraph 10(a), or taking no action and thereby continuing
participation in the Purchase Period in which he/she was participating at the
time of retirement. If retirement occurs more than three months prior to the
next Exercise Date, the payroll deductions credited to such retired
Participant's account during the Purchase Period but not yet used to exercise
his/her purchase right will be returned to such Participant and such
Participant's purchase right will be automatically terminated. The Plan
Administrator shall have the discretion to shorten or lengthen such period from
time to time during the term of the Plan, but such period shall in no event
exceed three months.
11. Interest. No interest shall accrue on the payroll deductions of
--------
a Participant in the Plan.
12. Stock.
-----
(a) The maximum number of shares of the Company's Common Stock which
shall be made available for sale under the Plan shall be 2,000,000 shares,
subject to adjustment upon changes in capitalization of the Company as provided
in paragraph 18. If on a given Exercise Date the aggregate number of shares
with respect to which purchase rights are to be exercised exceeds the number of
shares then available under the Plan, the Company shall make a pro rata
allocation of the shares remaining available for purchase in as uniform a manner
as shall be practicable and as it shall determine to be equitable. If any
purchase right granted under the Plan shall terminate for any reason without
having
6
<PAGE>
been exercised, the Common Stock not purchased under such right shall
again become available under the Plan.
(b) A Participant will have no interest or voting right in shares
covered by his/her purchase right until such shares are actually purchased on
the Participant's behalf in accordance with the applicable provisions of the
Plan. No adjustment shall be made for dividends, distributions or other rights
for which the record date is prior to the date of such purchase.
(c) Shares to be delivered to a Participant under the Plan will be
registered in the name of the Participant, in the name of the Participant and
his/her spouse, in the name of the stockbroker at which the Participant
maintains an account in accordance with instructions provided to the Company by
the Participant pursuant to paragraph 9 or in the name of any permitted
transferee of the Participant pursuant to paragraph 15.
(d) The Common Stock subject to the Plan may be unissued shares,
treasury shares or shares purchased by the Company on the open market or
otherwise.
13. Administration.
--------------
(a) The Plan shall be administered by the Plan Administrator, which
shall have full and exclusive discretionary authority to construe, interpret and
apply the terms of the Plan, to determine eligibility and to adjudicate all
disputed claims filed under the Plan. Every finding, decision and determination
made by the Plan Administrator shall, to the full extent permitted by law, be
final and binding upon all parties.
(b) Notwithstanding the provisions of paragraph 13(a), in the event
that Rule 16b-3 promulgated under the Exchange Act or any successor provision
("Rule 16b-3") provides specific requirements for the administrators of plans of
this type, the Plan shall be only administered by such a body and in such a
manner as shall comply with the applicable requirements of Rule 16b-3. Unless
permitted by Rule 16b-3, no discretion concerning decisions regarding the Plan
shall be afforded to any committee or person that is not "disinterested" as that
term is used in Rule 16b-3.
14. Designation of Beneficiary.
--------------------------
(a) Participants may file a written designation of a beneficiary, on a
form designated by the Company, who is to receive any shares and cash, if any,
from the Participant's account under the Plan in the event of such Participant's
death. If a Participant is married and the designated beneficiary is not the
spouse, spousal consent shall be required for such designation to be effective.
(b) Such designation of beneficiary may be changed by the Participant
(and his/her spouse, if any) at any time by written notice. In the event of the
death of a Participant and in the absence of a beneficiary validly designated
under the Plan who is living at the time of such Participant's death, the
Company shall deliver such shares and/or cash to the executor or administrator
of the estate of the Participant, or if no such executor or administrator has
been appointed (to the knowledge of the Company), the Company, in its
discretion, may deliver such shares and/or cash to the spouse or to any one or
more dependents or relatives of the Participant, or if no spouse, dependent or
relative is known to the Company, then to such other person as the Company may
designate.
15. Transferability. Neither payroll deductions credited to a
---------------
Participant's account nor any rights with regard to the exercise of a purchase
right or to receive shares under the Plan may be assigned, transferred, pledged
or otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in paragraph 14 hereof) by the Participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Company may treat such act as an election to withdraw
funds from a Purchase Period in accordance with paragraph 10.
7
<PAGE>
16. Use of Funds. All payroll deductions received or held by the
------------
Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
17. Reports. Individual accounts will be maintained for each
-------
Participant in the Plan. Such accounts will be unfunded. Statements of account
will be given to Participants as soon as practicable following each Exercise
Date, which statements will set forth the amounts of payroll deductions, the
Purchase Price, the number of shares purchased and the remaining cash balance,
if any.
18. Adjustments Upon Changes in Capitalization or Ownership.
-------------------------------------------------------
(a) Subject to any required action by the shareholders of the Company,
the Reserves, as well as the Purchase Price with respect to each purchase right
under the Plan that has not yet been exercised, 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 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 Plan
Administrator, 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 purchase
rights granted under the Plan. The Plan Administrator may, if it so determines
in the exercise of its sole discretion, make provision for adjusting the
Reserves, as well as the price per share of Common Stock covered by each
outstanding purchase right, in the event the Company effects one or more
reorganizations, recapitalizations, rights offerings or other increases or
reductions of shares of its outstanding Common Stock.
(b) In the event that any Corporate Transaction occurs or becomes
imminent, the Board may determine, in the exercise of its sole discretion, to
shorten any Purchase Period or Purchase Periods then in progress by setting a
new Exercise Date (the "New Exercise Date"). If it elects to fix a New Exercise
Date, the Board also may, in its discretion, change the Applicable Discount, the
Compensation, the Per-Participant Limit and any aggregate share purchase limits
previously established with respect to the shortened Purchase Period or Periods.
If the Board shortens any such Purchase Period, the Board shall notify each
Participant in writing that the Exercise Date for his/her purchase right has
been changed to the New Exercise Date and that his/her purchase right will be
exercised automatically on the New Exercise Date, unless prior to such date
he/she has withdrawn from such Purchase Period as provided in paragraph 10.
Such written notice shall also include a description of any changes made to the
Applicable Discount, the Compensation, the Per-Participant Limit and any
aggregate share purchase limits made pursuant to this paragraph 18(b).
(c) For purposes of paragraph 18(b), the following definitions shall
apply:
"Acquiring Person" means any Person who or which, together with all
----------------
Affiliates and Associates of such Person, shall be the Beneficial
Owner of 20% or more of the Common Stock then outstanding, but shall
not include the Company, any Subsidiary of the Company or any employee
benefit plan of the Company or any Subsidiary of the Company, or any
entity holding Common Stock for or pursuant to the terms of any such
plan. Notwithstanding the foregoing, no Person shall become an
Acquiring Person as the result of an acquisition of Common Stock by
the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by
such Person to 20% or more of the Common Stock of the Company then
outstanding; provided, however, that if a Person becomes the
-----------------
Beneficial Owner of 20% or more of the Common Stock of the
8
<PAGE>
Company then outstanding by reason of share purchases by the Company
and shall, after such share purchases by the Company, become the
Beneficial Owner of any additional Common Stock of the Company, then
such Person shall be deemed to be an Acquiring Person.
"Affiliate" and "Associate" have the respective meanings ascribed to
--------- ---------
such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act.
"Approved Transaction" means any transaction that occurs at a time
--------------------
when Continuing Directors are in office and a majority of the
Continuing Directors then in office has determined that the
transaction is in the best interest of the Company and its
stockholders.
A Person shall be deemed the "Beneficial Owner" of and shall be deemed
----------------
to "beneficially own" any securities: (i) which such Person or any of
such Person's Affiliates or Associates beneficially owns, directly or
indirectly; (ii) which such Person or any of such Person's Affiliates
or Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person
-----------------
shall not be deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase or
exchange; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; provided, however, that a Person shall
-----------------
not be deemed the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent given to
such person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations of the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or (iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of such
Person's Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting (except to
the extent contemplated by the proviso to clause (ii)(B) of this
definition) or disposing of any securities of the Company; provided
further, however, that nothing in this paragraph 18 shall cause a
Person to be the Beneficial Owner of, or to beneficially own, any
securities (x) acquired through such Person's participation in the
business of underwriting securities in good faith in a firm commitment
underwriting until the expiration of forty days after the date of such
acquisition or (y) which such Person has reported on Schedule 13G
under the Exchange Act and has not ceased to be eligible to report on
Schedule 13G pursuant to Rule 13d-1 under the Exchange Act.
"Common Stock" has the meaning set forth in paragraph 2(d).
------------
"Corporate Transaction" means any of the following events: (a) a Share
---------------------
Acquisition Date; (b) a dissolution or liquidation of the Company; (c)
a merger or consolidation in which the Company is not the surviving
corporation; (d) a merger in which the Company is the surviving
corporation but the shares of Common Stock outstanding immediately
prior to the merger are converted by virtue of the merger into other
property, whether in the form of securities, cash or otherwise; (e)
any capital reorganization in which more than 50% of the shares of the
Company entitled to vote are exchanged; and (f) any other event that
the Board deems, in its discretion, to constitute a change in control
of the Company.
"Continuing Director" means (i) any member of the Board, while such
-------------------
Person is a member of the Board, who is not an Acquiring Person, or an
Affiliate or Associate of an Acquiring Person, or a representative of
an Acquiring Person or of any such Affiliate or Associate, and
9
<PAGE>
who was, if applicable, a member of the Board prior to the time that
any Person becomes an Acquiring Person, or (ii) any Person who
subsequently becomes a member of the Board, while such Person is a
member of the Board, who is not an Acquiring Person, or an Affiliate
or Associate of an Acquiring Person, or a representative of an
Acquiring Person or of any such Affiliate or Associate, if such
Person's nomination for election or election to the Board is
recommended or approved by a majority of Continuing Directors.
"Exchange Act" has the meaning set forth in paragraph 2(j).
------------
"Person" means any individual, firm, partnership, corporation or other
------
entity, and shall include any successor (by merger or otherwise) of
such entity.
"Rights" means the rights granted to the Company's shareholders to
------
purchase additional Common Stock under certain circumstances, as
described in that certain Rights Agreement, dated as of May 5, 1988,
by and between the Company and The First National Bank of Boston, as
rights agent.
"Share Acquisition Date" means the first date of public announcement
----------------------
by the Company or an Acquiring Person that a Person has become an
Acquiring Person; provided, however, that no "Share Acquisition Date"
-----------------
shall occur as a result of any Person becoming an Acquiring Person
pursuant to an Approved Transaction.
"Subsidiary" of any Person means any corporation or other entity of
----------
which a majority of the voting power of the voting equity securities
or equity interest is owned, directly or indirectly, by such Person,
or which is otherwise controlled by such Person.
19. Amendment or Termination.
------------------------
(a) The Board may at any time and for any reason terminate or amend
the Plan. Except as provided in paragraph 18 and paragraph 19(b), no such
termination can affect purchase rights previously granted, provided that a
Purchase Period may be terminated by the Board on any Exercise Date if the Board
determines that the termination of the Plan is in the best interests of the
Company and its shareholders. Except as provided in paragraph 18, no amendment
may make any change in any purchase rights theretofore granted which adversely
affects the rights of any Participant. To the extent necessary to comply with
Rule 16b-3 or Section 423 of the Code (or any successor rule or provision or any
other applicable law or regulation), the Company shall obtain shareholder
approval of any amendment to the Plan in such a manner and to such a degree as
required.
(b) Without shareholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the Plan
Administrator shall be entitled to change Purchase Periods, limit the frequency
and/or number of changes in the amount withheld during Purchase Periods,
establish the exchange ratio applicable to amounts withheld in a currency other
than U.S. dollars, permit payroll withholding in excess of the amount designated
by a Participant in order to adjust for delays or mistakes in the Company's
processing of properly completed withholding elections, establish reasonable
waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for each
Participant properly correspond with amounts withheld from the Participant's
Compensation, and establish such other limitations or procedures as the Plan
Administrator determines in its sole discretion are advisable and that are
consistent with the Plan.
20. Notices. All notices or other communications by a Participant to
-------
the Company under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Company at the location,
or by the person, designated by the Company for the receipt thereof.
10
<PAGE>
21. Conditions Upon Issuance of Shares. Shares of Common Stock shall
----------------------------------
not be issued with respect to a purchase right unless the exercise of such
purchase right and the issuance and delivery of such shares pursuant thereto
shall comply with all applicable provisions of law, domestic or foreign,
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 or any automated inter-dealer quotation
system maintained by the National Association of Securities Dealers, Inc. upon
which the Common Stock may then be listed, and shall be further subject to the
approval of counsel for the Company with respect to such compliance. As a
condition to the exercise of a purchase right, the Company may require the
person exercising such purchase right to represent and warrant at the time of
any such exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law.
22. Additional Restrictions of Rule 16b-3. The terms and conditions
-------------------------------------
of purchase rights granted hereunder to, and the purchase of shares by, persons
subject to Section 16 of the Exchange Act shall comply with the applicable
provisions of Rule 16b-3. This Plan shall be deemed to contain, such purchase
rights shall contain, and the shares issued upon exercise thereof shall be
subject to, such additional conditions and restrictions as may be required by
Rule 16b-3 to qualify for the maximum exemption from Section 16 of the Exchange
Act with respect to Plan transactions.
23. Effective Date. The Plan shall become effective on the date it
--------------
is approved by the stockholders (the "Effective Date").
24. Term of Plan. The Plan shall continue in effect for a term of
------------
ten (10) years after the Effective Date unless sooner terminated under paragraph
19. No rights may be granted under the Plan following its termination.
25. 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 by the Board. If such shareholder approval
is obtained at a duly held shareholders' meeting, the Plan must be approved by a
majority of the votes cast at a shareholders' meeting at which a quorum
(consisting of at least a majority of all outstanding voting stock of the
Company) is, either in person or by proxy, present and voting on the Plan, or,
if such shareholder approval is obtained by written consent, it must be obtained
by the written consent of the holders of a majority of all outstanding voting
stock of the Company; provided, however, that approval at a meeting or by
written consent may be obtained by a lesser degree of shareholder approval if
the Board determines, in its discretion after consultation with the Company's
legal counsel, that such a lesser degree of shareholder approval will comply
with all applicable laws and will not adversely affect the qualification of the
Plan under Section 423 of the Code.
26. No Employment Rights. The Plan does not, directly or indirectly,
--------------------
create any right for the benefit of any employee or class of employees to
purchase any shares under the Plan, or create in any employee or class of
employees any right with respect to continuation of employment by the Company,
and it shall not be deemed to interfere in any way with the Company's right to
terminate, or otherwise modify, an employee's employment at any time.
27. Effect of Plan. The provisions of the Plan shall, in accordance
--------------
with its terms, be binding upon, and inure to the benefit of, all successors of
each Participant, including, without limitation, such Participant's estate and
the executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
28. Governing Law. The law of the State of California will govern
-------------
all matters relating to this Plan except to the extent it is superseded by the
laws of the United States.
11
<PAGE>
EXHIBIT 5
August 8, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
This is with respect to the Registration Statement on Form S-8, to which this
opinion is an exhibit, covering 2,000,000 shares of Acuson Common Stock which
may be issued pursuant to the Acuson Corporation 1995 Employee Stock Purchase
Plan.
It is my opinion that:
1. All necessary corporate action has been duly taken to adopt said Plan.
2. Said 2,000,000 shares of Acuson Common Stock have been reserved for
purposes of said Plan and such shares, when issued in accordance with the
terms and conditions of said Plan, will be legally issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the aforesaid registration statement.
Very truly yours,
/s/ ALISON M. NICHOLS
Alison M. Nichols
Counsel
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 3, 1995,
included or incorporated by reference in Acuson Corporation's Form 10-K for the
year ended December 31, 1994, and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
San Jose, California
August 9, 1995
