<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 31, 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 94039-7393
(Address of Principal Executive Offices) (Zip Code)
ACUSON CORPORATION 1995 STOCK INCENTIVE PLAN
(Full title of the plan)
CHARLES H. DEARBORN
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ACUSON CORPORATION
1220 CHARLESTON ROAD, MOUNTAIN VIEW, CA 94039-7393
(Name and address of agent for service)
415-969-9112
(Telephone number, including area code,
of agent for service)
_____________________________
Calculation of Registration Fee
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------
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
- ---------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 3,500,000 $*11.125 $38,937,500 $**13,426.72
- ---------------------------------------------------------------------
</TABLE>
* Estimate based on the average of the high and low sales
prices of Acuson Common Stock on May 25, 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.
II-1
<PAGE>
Charles H. Dearborn, who has rendered an opinion as to the validity of
the shares offered hereby, is Vice President, General Counsel and Secretary of
the Company. As of May 25, 1995, Mr. Dearborn owned 257 shares, and had options
to purchase 120,851 shares, of the Company's common stock.
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
II-2
<PAGE>
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.
ITEM 8. EXHIBITS.
Exhibit Index
-------------
Exh. No. Description
- -------- -----------
(4)(a) Restated Certificate of Incorporation, as amended. Filed as
Exhibit 3.8 to the Company's Registration Statement on Form S-1,
as amended (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, as amended (File No. 33-7838) and
incorporated herein by reference.
(c) Acuson Corporation 1995 Stock Incentive Plan.
(5) Opinion of Charles H. Dearborn, Vice President, General Counsel
and Secretary.
(23)(a) Consent of Arthur Andersen LLP.
(b) Consent of Charles H. Dearborn (included in Exhibit 5).
II-3
<PAGE>
(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;
(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
II-4
<PAGE>
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.
II-5
<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 May 31, 1995.
ACUSON CORPORATION
By: /s/ Samuel H. Maslak
------------------------
Samuel H. Maslak
President 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 appoints Charles H. Dearborn, 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.
II-6
<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 President, Chief Executive May 31, 1995
- ------------------------
Samuel H. Maslak Officer and Director
/s/ Stephen T. Johnson Vice President, Chief May 31, 1995
- ------------------------ Financial Officer
Stephen T. Johnson and Treasurer
(principal financial
and accounting officer)
/s/ Robert J. Gallagher Director May 31, 1995
- ------------------------
Robert J. Gallagher
/s/ Royce Diener Director May 31, 1995
- ------------------------
Royce Diener
/s/ Albert L. Greene Director May 31, 1995
- ------------------------
Albert L. Greene
/s/ Karl H. Johannsmeier Director May 31, 1995
- ------------------------
Karl H. Johannsmeier
/s/ Alan C. Mendelson Director May 31, 1995
- ------------------------
Alan C. Mendelson
II-7
<PAGE>
ACUSON CORPORATION
1995 STOCK INCENTIVE PLAN
-------------------------
1. Establishment, Purpose, and Definitions.
---------------------------------------
(a) Acuson Corporation (the "Company") hereby adopts the Acuson Corporation
1995 Stock Incentive Plan (the "Plan").
(b) The purpose of the Plan is to allow the Company to provide incentives to
Eligible Individuals (as defined in Section 4, below) for employment, increased
efforts and successful achievements on behalf of or in the interests of the
Company and its Affiliates and to maximize the rewards due them for those
efforts and achievements. In the case of Employees (including officers and
directors who are Employees) of the Company and of its Affiliates such
incentives include (i) an opportunity to purchase shares of common stock, par
value $.0001 per share, of the Company ("Stock") pursuant to options which may
qualify as incentive stock options (referred to as "incentive stock options")
under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"),
(ii) an opportunity to purchase shares of Stock pursuant to options which are
not described in Sections 422 or 423 of the Code (referred to as "nonqualified
stock options"), (iii) the sale or bonus of restricted Stock ("Restricted
Stock"), and (iv) the grant of stock appreciation rights ("SARs"), either
separately or in relation ("tandem") with stock options, entitling holders to
compensation measured by appreciation in the value of Stock. The Plan also
provides for the grant of similar incentives (other than incentive stock
options) to independent contractors and consultants to the Company and its
Affiliates. Finally, the Plan provides for the automatic, nondiscretionary grant
of nonqualified stock options to directors of the Company who are not Employees
of the Company or any Affiliate ("Non-Employee Directors").
(c) Except for purposes of Section 12, the term "Affiliate" means parent or
subsidiary corporations of the Company, as defined in Sections 424(e) and (f) of
the Code (but substituting "the Company" for "employer corporation"), including
parents or subsidiaries of the Company that become such after adoption of the
Plan.
(d) The term "Employee" means any person, including officers and directors,
who is an employee of the Company or an Affiliate for purposes of income tax
withholding under the Code. Neither service as a director nor payment of a
director's fee by the Company shall be sufficient to constitute a person an
Employee.
2. Administration of the Plan.
--------------------------
(a) If permitted by Rule 16b-3 (or any successor thereto) promulgated under
the Securities Exchange Act of 1934, as amended ("Rule 16b-3"), the Plan may be
administered by different committees with respect to: (i) Non-Employee
Directors; (ii) Eligible Individuals who are (A) officers or directors subject
to Section 16(b) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or (B) "covered employees" within the meaning of Section
162(m)(3) of the Code ("Covered Employees"); and (iii) Eligible Individuals who
are neither officers or directors subject to Section 16(b) of the Exchange Act
nor Covered Employees. Each committee, in addition to satisfying any specific
requirements imposed by this Section 2, shall also satisfy any legal
requirements relating to the administration of stock-based compensation plans
under applicable state corporate and securities laws and the Code ("Applicable
Laws"). References herein to the "Plan Administrator" shall refer to the
applicable committee(s) or, if the Board of
1
<PAGE>
Directors of the Company (the "Board") does not delegate administration of some
aspects of the Plan to a committee, shall be construed to refer to the Board.
(b) The Secretary of the Company shall administer the provisions of Section
5 of the Plan (providing for stock option grants to Non-Employee Directors).
This function shall be limited to matters of interpretation and administrative
oversight.
(c) With respect to awards made to Eligible Individuals who are officers or
directors subject to Section 16(b) of the Exchange Act or Covered Employees, the
Plan shall be administered by a committee of the Board, which committee shall be
constituted to comply with the rules governing a plan intended to qualify as a
discretionary plan under Rule 16b-3 and a "committee comprised solely of two or
more outside directors" for purposes of Section 162(m) of the Code. 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, remove members (with
or without cause) and substitute new members, fill vacancies (however caused),
all to the extent permitted by Rule 16b-3, Section 162(m) of the Code, the rules
and regulations with respect to each, and Applicable Laws. The committee shall
select one of its members as chair of the committee and shall hold meetings at
such times and places as it may determine. To the extent permitted by Rule 16b-
3, Section 162(m) of the Code, the rules and regulations with respect to each,
and Applicable Laws, a majority of the committee shall constitute a quorum, and
acts of the committee at which a quorum is present, or acts reduced to or
approved in writing by all the members of the committee, shall be the valid acts
of the committee.
(d) With respect to awards made to Eligible Individuals who are neither
officers nor directors subject to Section 16(b) of the Exchange Act nor Covered
Employees, the Plan shall be administered by (i) the Board; or (ii) a committee
of one or more persons (which may be the committee established pursuant to
Section 2(c), above) designated by the Board. 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, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and remove all members
of the committee and thereafter directly administer the Plan, all to the extent
permitted by Applicable Laws. The committee shall select one of its members as
chair of the committee and shall hold meetings at such times and places as it
may determine. To the extent permitted by Applicable Laws, a majority of the
committee shall constitute a quorum, and acts of the committee at which a quorum
is present, or acts reduced to or approved in writing by all the members of the
committee, shall be the valid acts of the committee.
(e) The Plan Administrator shall determine which Eligible Individuals shall
be granted options under the Plan, the timing of such grants, the terms thereof
(including any restrictions on the Stock), and the number of shares subject to
such options.
(f) The Plan Administrator shall also determine which Eligible Individuals
shall be granted or issued SARs or Restricted Stock (other than pursuant to the
exercise of options) under the Plan, the timing of such grants or issuances, the
terms thereof (including any restrictions and the consideration, if any, to be
paid therefor) and the number of shares or SARs to be granted.
(g) Except for options granted to Non-Employee Directors pursuant to Section
5, the Plan Administrator may amend the terms of any outstanding option or SAR
granted under this Plan, but any amendment that would adversely affect the
holder's rights under an outstanding option or SAR shall not be made without the
holder's written consent. The Plan Administrator may, with the holder's written
consent, cancel any outstanding option or SAR or accept any outstanding option
or SAR in exchange for a new option or SAR. The Plan Administrator also may
amend any Restricted Stock purchase agreement or Restricted Stock bonus
agreement relating to sales or bonuses of Restricted Stock under the Plan, but
any
2
<PAGE>
amendment that would adversely affect the individual's rights to the Restricted
Stock shall not be made without his or her written consent.
(h) The Plan Administrator shall have the sole authority, in its absolute
discretion, to adopt, amend, and rescind such rules and regulations as, in its
opinion, may be advisable for the administration of the Plan, to construe and
interpret the Plan, the rules and the regulations, and the instruments
evidencing options, SARs or Restricted Stock granted or issued under the Plan
and to make all other determinations deemed necessary or advisable for the
administration of the Plan. All decisions, determinations, and interpretations
of the Plan Administrator shall be binding on all participants. Notwithstanding
the foregoing, the Plan Administrator shall not exercise any discretionary
functions with respect to options granted to Non-Employee Directors pursuant to
Section 5.
3. Stock Subject to the Plan.
-------------------------
(a) The maximum aggregate number of shares of Stock available for issuance
under the Plan and during the life of the Plan shall equal 3,500,000 shares,
subject to adjustment from time to time in accordance with this Section 3. The
Stock subject to the Plan may be unissued shares, treasury shares or shares
purchased by the Company on the open market or otherwise.
(b) For purposes of the limitation specified in Section 3(a), the following
principles shall apply, provided that no Stock shall be treated as issuable
under the Plan to persons subject to Section 16 of the Exchange Act if otherwise
prohibited from issuance under Rule 16b-3:
(1) the following transactions, if granted pursuant to this Plan, shall
count against and decrease the number of shares of Stock that may be
issued for purposes of Section 3(a): (i) shares of Stock subject to
outstanding options, outstanding shares of Restricted Stock, and shares
subject to SARs granted independently of options (based upon a good
faith estimate by the Company or the Plan Administrator of the maximum
number of shares for which the SAR may be settled (assuming payment in
full in shares of Stock), and (ii) in the case of options granted in
tandem with SARs, the greater of the number of shares of Stock that
would be counted if one or the other alone was outstanding (determined
as described in clause (i) above);
(2) the following shall be added back to the number of shares of Stock
that may be issued for purposes of Section 3(a): (i) shares of Stock
with respect to which options, SARs granted independent of options, or
Restricted Stock awards expire, are cancelled, or otherwise terminate
without being exercised, converted, or vested, as applicable, and (ii)
in the case of options granted in tandem with SARs, shares of Stock as
to which an option has been surrendered in connection with the exercise
of a tandem SAR, to the extent the number surrendered exceeds the
number issued upon exercise of the SAR; provided that, in any case, the
-------------
holder of such awards did not receive any dividends or other benefits
of ownership with respect to the underlying shares being added back,
other than voting rights and the accumulation (but not payment) of
dividends of Stock;
(3) shares of Stock subject to SARs granted independently of options
(calculated as provided in clause (1) above) that are exercised and
paid in cash shall be added back to the number of shares of Stock that
may be issued for purposes of Section 3(a), provided that the holder of
such SAR did not receive any dividends or other benefits of ownership,
other than
3
<PAGE>
voting rights and the accumulation (but not payment) of dividends,
relative to the shares of Stock subject to the SARs;
(4) shares of Stock that are transferred by a holder of an award (or
withheld by the Company) as full or partial payment to the Company of
the purchase price of shares of Stock subject to an option or the
Company's or any Affiliate's tax withholding obligations shall not be
added back to the number of shares of Stock that may be issued for
purposes of Section 3(a) and shall not again be subject to awards; and
(5) if the number of shares of Stock counted against the number of
shares that may be issued for purposes of Section 3(a) is based upon an
estimate made by the Company or the Plan Administrator as provided in
clause (1) above and the actual number of shares of Stock issued
pursuant to the applicable award is greater or less than the estimated
number, then upon such issuance, the number of shares of Stock that may
be issued pursuant to Section 3(a) shall be further reduced by the
excess issuance or increased by the shortfall, as applicable.
(c) If there is any change in the Stock through merger, consolidation,
reorganization, recapitalization, reincorporation, stock split, stock dividend
(in excess of 2%), or other change in the capital structure of the Company,
appropriate adjustments shall be made by the Plan Administrator, in order to
preserve but not to increase the benefits to the outstanding options, SARs and
Restricted Stock purchase or Restricted Stock bonus awards under the Plan,
including adjustments to the aggregate number and kind of shares subject to the
Plan, or to outstanding Restricted Stock purchase or Restricted Stock bonus
agreements, or SAR agreements, and the number and kind of shares and the price
per share subject to outstanding options.
(d) The Plan Administrator shall have the discretion, to the extent
permitted by Applicable Law, to include provisions in any agreements evidencing
awards granted under the Plan providing that, in the event of a dissolution,
liquidation, merger or consolidation of the Company, or any other event that the
Plan Administrator deems to have effected a change in control of the Company,
any such awards shall accelerate and become fully vested, and all forfeiture
and/or transfer restrictions with respect thereto shall lapse, regardless of
whether such awards are otherwise to be assumed or replaced in connection with
such event.
4. Eligible Individuals. Individuals who shall be eligible to have the Plan
--------------------
Administrator grant to them options, SARs or Restricted Stock under the Plan
("Eligible Individuals") shall be such employees, officers (including officers
who are directors of the Company), independent contractors, and consultants of
the Company or an Affiliate as the Plan Administrator, in its discretion, shall
designate from time to time. Notwithstanding the foregoing, only Employees
shall be eligible to receive incentive stock options. Eligible Individuals
shall not include Non-Employee Directors. Non-Employee Directors shall receive
automatic and nondiscretionary option grants pursuant to Section 5 and will not
be otherwise eligible to receive any other option grants or awards of SARs or
Restricted Stock under the Plan or any other stock plan of the Company or any
Affiliate.
5. Automatic Option Grants to Non-Employee Directors.
-------------------------------------------------
(a) All grants of options pursuant to this Section 5 shall be automatic and
nondiscretionary and shall be made strictly in accordance with the provisions of
this Section 5. No person shall have any discretion to determine which Non-
Employee Directors shall be granted options, the number of shares of Stock to be
covered by options granted to Non-Employee Directors, the timing of such option
grants or the exercise price thereof.
4
<PAGE>
(b) An option to purchase 5,000 shares of Stock shall be granted to each
Non-Employee Director continuing in office immediately following each annual
meeting of the Company's stockholders which occurs on or after the date of
approval of the Plan by the stockholders of the Company and prior to the
termination of the Plan.
(c) The term of each option granted pursuant to this Section 5 shall be ten
years from the date of grant, unless a shorter period is required to comply with
any Applicable Law, and except for the early termination provisions contained in
the written stock option agreement in the form of Exhibit A hereto, in either of
which cases such shorter period shall apply.
(d) Each option granted pursuant to this Section 5 shall vest and become
fully exercisable as to fifty percent (50%) of the shares subject to the option
on the date which is six (6) months from the date the option is granted, then
daily thereafter as to 1/365th of the total shares subject to the option so that
the option is fully exercisable no later than one year following the date the
option is granted.
(e) Each option grant to an Non-Employee Director pursuant to this Section 5
shall be evidenced by a written stock option agreement, in the form of Exhibit A
hereto, executed by the Company and the Non-Employee Director to whom such
option is automatically granted.
(f) This Section 5 shall be deemed to contain such additional conditions and
restrictions as may be required for the Plan with respect to options granted
pursuant to this Section 5 to qualify as a "formula plan" under Rule 16b-3 as
then applicable to the Company or any Affiliate.
6. Terms and Conditions of Options.
-------------------------------
(a) Each option granted pursuant to the Plan will be evidenced by a written
stock option agreement executed by the Company and the person to whom such
option is granted.
(b) Except for options granted under Section 5 above, the Plan Administrator
shall determine the term of each option granted under the Plan; provided,
however, that the term of an incentive stock option shall not be for more than
ten years and that, in the case of an incentive stock option granted to a person
possessing more than 10% of the combined voting power of the Company or an
Affiliate on the date the option is granted, the term of each incentive stock
option shall be no more than five years.
(c) In the case of incentive stock options, the aggregate fair market value
(determined as of the time such option is granted) of the Stock with respect to
which incentive stock options are exercisable for the first time by an Eligible
Individual in any calendar year (under this Plan and any other plans of the
Company or its Affiliates) shall not exceed $100,000. If the aggregate fair
market value of the Stock with respect to which incentive stock options are
exercisable by an optionee for the first time in any calendar year exceeds
$100,000, such options shall be treated, to the minimum extent required to
preserve incentive stock option treatment for as many options as possible, as
nonqualified stock options. The rule set forth in the preceding sentence shall
be applied by taking options into account in the order in which they were
granted.
(d) The exercise price of each incentive stock option shall be not less than
the per share fair market value of the Stock subject to such option on the date
the option is granted. The exercise price of each nonqualified stock option
shall be as determined by the Plan Administrator. Notwithstanding the
foregoing, (i) in the case of an incentive stock option granted to a person
possessing more than 10% of the combined voting power of the Company or an
Affiliate on the date the option is granted, the exercise price shall be not
less than 110% of the fair market value of the Stock on the date the option is
granted, and
5
<PAGE>
(ii) in the case of an option granted pursuant to Section 5 above, the exercise
price shall be not less than the per share fair market value of the Stock
subject to such option on the date the option is granted. The exercise price of
an option shall be subject to adjustment to the extent provided in Section 3(c),
above.
(e) Except for options granted under Section 5 above, the stock option
agreement may contain such other terms, provisions, and conditions consistent
with this Plan as may be determined by the Plan Administrator. If an option, or
any part thereof, is intended to qualify as an incentive stock option, the stock
option agreement shall contain those terms and conditions which are necessary to
so qualify it.
(f) The maximum number of shares of Stock with respect to which SARs or
options to acquire Stock may be granted to any individual during any calendar
year shall not exceed 1,000,000 shares (which number may be increased without
stockholder approval to reflect adjustments under Section 3(c), above, to the
extent such increase does not cause the grant to fail to qualify as remuneration
payable solely on account of one or more performance goals within the meaning of
Section 162(m) of the Code). To the extent required by Section 162(m) of the
Code or the regulations thereunder, in applying the foregoing limitation with
respect to any employee, if any option is cancelled, the cancelled option shall
continue to count against the maximum number of shares for which options may be
granted to the employee under this Section 6(f). For this purpose, the repricing
of an option shall be treated as a cancellation of the existing option and the
grant of a new option to the extent required by Section 162(m) of the Code or
the regulations thereunder.
7. Payment Upon Exercise of Options.
--------------------------------
(a) Payment of the purchase price upon exercise of any option granted under
this Plan shall be made in cash, by optionee's personal check, a certified
check, bank draft, or postal or express money order payable to the order of the
Company in lawful money of the United States (collectively, "Cash
Consideration"); provided, however, that, except for options granted under
Section 5 above, the Plan Administrator, in its sole discretion, may permit an
optionee to pay the option price in whole or in part (i) with shares of Stock
owned by the optionee or with shares of Stock withheld from the shares otherwise
deliverable to the optionee upon exercise of an option; (ii) by delivery on a
form prescribed by the Company of an irrevocable direction to a securities
broker approved by the Company to sell shares of Stock and deliver all or a
portion of the proceeds to the Company in payment for the Stock; (iii) by
delivery of the optionee's promissory note with such recourse, interest,
security, and redemption provisions as the Plan Administrator in its discretion
determines appropriate; or (iv) in any combination of the foregoing. The
exercise price of any options granted under Section 5 above, shall be paid in
Cash Consideration, the consideration specified in clauses (i) or (ii) of the
preceding sentence or in any combination thereof. Any Stock used to exercise
options shall be valued at its fair market value on the date of the exercise of
the option. In addition, the Plan Administrator, in its sole discretion, may
authorize the surrender by an optionee of all or part of an unexercised option
(excluding options granted under Section 5 above) and authorize a payment in
consideration thereof of an amount equal to the difference between the aggregate
fair market value of the Stock subject to such option and the aggregate option
price of such Stock. In the Plan Administrator's discretion, such payment may
be made in cash, shares of Stock with a fair market value on the date of
surrender equal to the payment amount, or some combination thereof.
(b) In the event that the exercise price is satisfied by shares withheld
from the shares of Stock otherwise deliverable to the optionee, the Plan
Administrator may issue the optionee an additional option, with terms identical
to the option agreement under which the option was exercised, entitling the
optionee to purchase additional shares of Stock equal to the number of shares so
withheld but at an exercise price equal to the fair market value of the Stock on
the grant date of the new option; provided, however, that no such additional
options may be granted with respect to options granted pursuant to Section 5,
above.
6
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8 Terms and Conditions of Restricted Stock Purchases and Bonuses
--------------------------------------------------------------
(a) Each sale (other than upon exercise of options) or bonus grant of
Restricted Stock pursuant to the Plan will be evidenced by a written Restricted
Stock purchase or Restricted Stock bonus agreement, as applicable, executed by
the Company and the person to whom such Restricted Stock is sold or granted.
(b) The Restricted Stock purchase agreement or Restricted Stock bonus
agreement may contain such terms, provisions, and conditions consistent with
this Plan as may be determined by the Plan Administrator, including not by way
of limitation, payment terms, restrictions on transfer, forfeiture provisions,
repurchase provisions, and vesting provisions.
(c) The Plan Administrator may condition the award or the exercise of any
right under an award under this Section 8 upon the attainment of one or more
preestablished objective performance goals meeting the requirements of Section
162(m) of the Code and the regulations thereunder.
9. Terms and Conditions of SARs. The Plan Administrator may, under such terms
----------------------------
and conditions as it deems appropriate, authorize the issuance of SARs evidenced
by a written SAR agreement (which, in the case of tandem options, may be part of
the option agreement to which the SAR relates) executed by the Company and the
person to whom the SARs are granted. The SAR agreement shall specify the term
for the SARs covered thereby and contain such other terms, provisions and
conditions consistent with this Plan as may be determined by the Plan
Administrator.
10. Withholding Taxes.
-----------------
(a) No Stock shall be granted or sold under the Plan to any Eligible
Individual, and no SAR may be exercised, until the individual has made
arrangements acceptable to the Plan Administrator for the satisfaction of
federal, state, and local income and employment tax withholding obligations,
including without limitation obligations incident to the receipt of Stock under
the Plan, the lapsing of restrictions applicable to such Stock, the failure to
satisfy the conditions for treatment as incentive stock options under applicable
tax law, or the receipt of cash payments. Upon the exercise of an option or the
lapsing of a restriction on Stock issued under the Plan, the Company (or the
optionee's or stockholder's employer) may withhold from the shares otherwise
deliverable to the optionee upon such exercise, or require the stockholder to
surrender shares of Stock as to which the restriction has lapsed, such number of
shares having a fair market value sufficient to satisfy federal, state and local
income and employment tax withholding obligations.
(b.) In the event that such tax withholding is satisfied by the Company or
the optionee's employer withholding shares of Stock otherwise deliverable to the
optionee, the Plan Administrator may issue the optionee an additional option,
with terms identical to the option agreement under which the option was
exercised, entitling the optionee to purchase additional shares of Stock equal
to the number of shares so withheld but at an exercise price equal to the fair
market value of the Stock on the grant date of the new option; provided,
however, that no such additional options may be granted with respect to options
granted pursuant to Section 5, above.
11. Assignability. To the extent required by Rule 16b-3, no option or SAR
-------------
granted pursuant to this Plan shall be transferable by the holder except by
operation of law or by will or the laws of descent and distribution; provided
that, if Rule 16b-3 is amended after the date of the Board's adoption of the
Plan to permit broader transferability of options or SARs under that Rule, (i)
options granted under Section 5 to Non-Employee Directors shall be transferable
to the fullest extent permitted by Rule 16b-3 as so amended, (ii) any other
option or SAR shall be transferable to the extent provided in the option
agreement or SAR agreement covering the option or SAR, and the Plan
Administrator shall have the discretion to amend any
7
<PAGE>
such outstanding option or SAR to provide for broader transferability of the
option or SAR as the Plan Administrator may authorize within the limitations of
Rule 16b-3. Stock subject to a Restricted Stock purchase agreement or a
Restricted Stock bonus agreement shall be transferable only as provided in such
agreement. Notwithstanding the foregoing, if required by the Code, each
incentive stock option under the Plan shall be transferable by the optionee only
by will or the laws of descent and distribution, and, during the optionee's
lifetime, be exercisable only by the optionee. In the event of any Rule 16b-3
permitted transfer of an option hereunder, the transferee shall be entitled to
exercise the option in the same manner and only to the same extent as the
optionee (or his/her personal representative or the person who would have
acquired the right to exercise the option by bequest or intestate succession)
would have been entitled to exercise the option under Sections 5, 6 and 7 had
the option not been transferred.
12. Change in Control.
-----------------
(a) Notwithstanding anything to the contrary contained in the Plan, each
stock option, SAR, Restricted Stock bonus or Restricted Stock purchase agreement
(or an amendment thereto) evidencing an option, SAR, Restricted Stock bonus or
Restricted Stock purchase hereunder shall automatically and without further
action be fully vested, nonforfeitable and become exercisable, and any
Restricted Stock covered by such an agreement shall be released from
restrictions on transfer and repurchase or forfeiture rights, on the twenty-
second day after any Share Acquisition Date, unless prior to such twenty-second
day a majority of the Continuing Directors then in office has determined that
the transaction pursuant to which a Person has become an Acquiring Person is an
Approved Transaction.
(b) Certain Definitions. For purposes of this Section 12, 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 Shares 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 Shares 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 Shares 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 Shares of the Company then
outstanding; provided, however, that if a Person becomes the Beneficial
-------- -------
Owner of 20% or more of the Common Shares of the Company then
outstanding by reason of share purchases by the Company and shall,
after such share purchases by the Company, becomes the Beneficial Owner
of any additional Common Shares 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
8
<PAGE>
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 Section 12 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 Shares" means the shares of common stock, par value $.0001 per
-------------
share, of the Company.
"Continuing Director" means (i) any member of the Board of Directors of
-------------------
the Company, 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 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" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated thereunder.
"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 Shares 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.
9
<PAGE>
"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.
13. Amendment, Suspension, or Termination of the Plan.
-------------------------------------------------
(a) The Board may at any time amend, suspend or terminate the Plan as it
deems advisable; provided that such amendment, suspension or termination
complies with all applicable requirements of state and federal law, including
any applicable requirement that the Plan or an amendment to the Plan be approved
by the stockholders, and provided further that, except as provided in Section
3(c) above, the Board shall in no event amend the Plan in the following respects
without the consent of stockholders then sufficient to approve the Plan in the
first instance:
(1) To materially increase the benefits accruing to participants under
the Plan;
(2) To materially increase the number of shares of Stock available
under the Plan or to increase the number of shares of Stock available
for grant of incentive stock options under the Plan; or
(3) To materially modify the eligibility requirements for participation
in the Plan or the class of employees eligible to receive options under
the Plan or to change the designation or class of persons eligible to
receive incentive stock options under the Plan.
(b) No option or SAR may be granted nor may any Stock be issued (other than
upon exercise of outstanding options) under the Plan during any suspension or
after the termination of the Plan, and no amendment, suspension, or termination
of the Plan shall, without the affected individual's consent, alter or impair
any rights or obligations under any option or SAR previously granted under the
Plan.
(c) In addition to the limitations on amendments provided in Sections 13(a)
and 13(b) above, the provisions set forth in Section 5 of the Plan (and any
other sections of the Plan that affect the formula award terms of option grants
to Non-Employee Directors required to be specified in the Plan by Rule 16b-3)
shall not be amended periodically and in no event more than once every six
months, other than to comport with changes in the Code, the Employee Retirement
Income Security Act of 1974, as amended, or any applicable rules and regulations
thereunder.
14. Term of Plan. The Plan shall terminate with respect to the grant of
------------
additional awards on the tenth anniversary of the date the Plan is approved by
the stockholders, unless previously terminated by the Board pursuant to Section
13.
15. Use of Proceeds. Cash proceeds realized from the exercise of options
---------------
granted under the Plan or from other sales of Stock under the Plan shall
constitute general funds of the Company.
16. Stockholder Approval. The Plan shall become effective, and awards may be
--------------------
granted hereunder, only upon approval by the holders of a majority of the
Company's shares voting (in person or by proxy) at a stockholders' meeting held
within 12 months of the Board's adoption of the Plan.
17. Rule 16b-3 Compliance. Transactions under the Plan are intended to comply
---------------------
with all applicable conditions of Rule 16b-3 or its successors under the
Exchange Act. To the extent any provision of the Plan or action by the Board or
the Plan Administrator fails to so comply, it shall be deemed null and void, to
the extent permitted by law and deemed advisable by the Board or the Plan
Administrator. Moreover, in the
10
<PAGE>
event the Plan does not include a provision required by Rule 16b-3 to be stated
therein in order to qualify the grants under Section 5 hereof as grants under a
non-discretionary formula under Rule 16b-3 such provision (other than one
relating to eligibility requirements, or the price and amount of awards) shall
be deemed automatically to be incorporated by reference into the Plan with
respect to grants of options to Non-Employee Directors.
18. No Employment Right. Nothing in this Plan or any instrument executed or any
-------------------
award granted pursuant thereto shall confer upon any employee, independent
contractor, consultant or director any right to continue in the employ of the
Company or any Affiliate (or to continue acting as an independent contractor,
consultant or director) or shall affect the right of the Company or any
Affiliate to terminate the employment, contractual or consulting relationship or
directorship of any person, with or without cause.
11
<PAGE>
EXHIBIT 5
May 31, 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 3,500,000 shares of Acuson Common Stock which
may be issued pursuant to, or pursuant to the exercise of options granted under,
the Acuson Corporation 1995 Stock Incentive Plan.
It is my opinion that:
1. All necessary corporate action has been duly taken to adopt said Plan.
2. Said 3,500,000 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
non-assessable.
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/ Charles H. Dearborn
Charles H. Dearborn
<PAGE>
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
-----------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 3, 1995,
included 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
May 31, 1995
