<PAGE>
As filed with the Securities and Exchange Commission on June 14, 1995
File No. 33-__________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
STAAR SURGICAL COMPANY
(Exact name of registrant as specified in its charter)
Delaware 95-3797439
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1911 Walker Avenue, Monrovia, California 91016
(Address of Principal Executive Office) (Zip Code)
1995 STAAR SURGICAL COMPANY CONSULTANT STOCK PLAN
(Full Title of the Plan(s))
Andrew F. Pollet, Esq.
Pollet, Skousen & Woodbury, 10900 Wilshire Boulevard, #500,
Los Angeles, California 90024
(Name and address of agent for service)
(310) 208-1182
(Telephone number, including area code, of agent for service)
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following line: X
-----
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered per Share/(1)/ Price/(1)/ Registration Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 500,000 $9.75 $4,875,000 $1,681.04
</TABLE>
- --------------------
/(1)/ Pursuant to Rule 457(h)(1), estimated solely for the purpose of computing
the registration fee on the basis of the average of the high and low
prices of the registrant's common stock as reported on the Nasdaq National
Market System on June 8, 1995 pursuant to Rule 457(c).
<PAGE>
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents are incorporated by reference in this Registration
Statement:
(1) The registrant's Annual Report on Form 10-K filed for the fiscal year
ended December 30, 1994, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended.
(2) The registrant's Quarterly Report on Form 10-Q filed for the fiscal
quarter ended March 31, 1995, and all other reports, if any, filed by
the registrant pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended, since the end of the registrant's
fiscal year ended December 30, 1994.
(3) The description of the Registrant's Common Stock contained in the
Registration Statement on Form S-8 filed with the Commission on March
11, 1994 [File No. 33-76404], including any amendment or report filed
for the purpose of updating such description.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective amendment to
this registration statement which indicates that all securities offered
hereunder have been sold, or which deregisters all securities then remaining
unsold under this registration statement, shall be deemed to be incorporated by
reference in the registration statement and to be a part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable; the class of securities to be offered is registered under
Section 12 of the Securities Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Andrew F. Pollet, director and beneficial owner of approximately 5.8% of
the registrant's common stock, is also the majority stockholder of Pollet,
Skousen & Woodbury, A Law Corporation (and its predecessor firms), attorneys for
the registrant. Pollet, Skousen & Woodbury prepared this Registration Statement
and provided an opinion of counsel as to the legality of the securities being
registered.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
-----------------------------------------
The Certificate of Incorporation of the registrant provides that the
registrant shall, to the full extent permitted by Section 145 of the Delaware
General Corporation Law, indemnify all persons whom it may indemnify pursuant to
such Section. The By-Laws of the registrant provide that the registrant shall,
to the full extent permitted by the Delaware General Corporation Law, indemnify
persons acting as directors or officers or in other capacities for the
registrant for judgments, fines and other expenses, including attorneys' fees,
incurred in connection with actions or proceedings in which such persons are
involved by reason of having been a director or officer of the registrant. The
Company has also agreed, in employment agreements with certain of its executive
officers, to indemnify such officers from losses with respect to actions taken
in their capacities as officers.
2
<PAGE>
The registrant also maintains an insurance policy insuring its directors
and officers against liability for certain acts an omissions while acting in
their official capacities.
There is no litigation pending, and neither the registrant nor any of its
directors know of any threatened litigation, which might result in a claim for
indemnification by any director or officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
--------
4.1 Certificate of Incorporation (filed as Exhibit 4.4 of the registrant's
Registration Statement under Form S-8 filed on March 11, 1994 [File
No. 33-76404]).
4.2 Bylaws (filed as Exhibit 4.5 of the registrant's Registration
Statement under Form S-8 filed on March 11, 1994 [File No. 33-76404]).
4.3 1995 STAAR Surgical Company Consultant Stock Plan.
5 Opinion of legal counsel (Pollet, Skousen & Woodbury, A Law
Corporation), regarding the legality of the securities offered (with
the consent of said firm included therein).
23.1 Consent of Independent Certified Public Accountants (BDO Seidman).
23.2 Consent of Independent Auditors (KPMG Peat Marwick LLP).
23.3 Consent of legal counsel (Pollet, Skousen & Woodbury, A Law
Corporation) (included in Exhibit 5).
24. Power of Attorney for John R. Wolf, Michael R. Deitz, Peter J. Utrata,
Joseph C. Gathe and Andrew F. Pollet.
ITEM 9. UNDERTAKINGS.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information
set forth in the Registration Statement; and
3
<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
-------- -------
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 liabilities (other than the payment by 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 that matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the questions 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.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that is 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 Monrovia, State of California, on June 14, 1995.
STAAR SURGICAL COMPANY
By: /s/ John R. Wolf *
------------------------------------------
John R. Wolf
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
/s/ John R. Wolf * Chief Executive Officer
- ---------------------------------------- and Director
John R. Wolf
/s/ William C. Huddleston Chief Financial Officer
- ----------------------------------------
William C. Huddleston
/s/ Peter J. Utrata * Director
- ----------------------------------------
Peter J. Utrata, M. D.
/s/ Michael R. Deitz * Director
- ----------------------------------------
Michael R. Deitz, M. D.
/s/ Joseph C. Gathe * Director
- ----------------------------------------
Joseph C. Gathe
/s/ Andrew F. Pollet * Director
- ----------------------------------------
Andrew F. Pollet
/s/ William C. Huddleston
- ----------------------------------------
*By William C. Huddleston,
attorney-in-fact
5
<PAGE>
STAAR SURGICAL COMPANY
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
NUMBER DESCRIPTION OF DOCUMENT
- ------ -----------------------
4.1 Certificate of Incorporation (filed as Exhibit 4.4 of the
registrant's Registration Statement under Form S-8 filed on
March 11, 1994 [File No. 33-76404]).
4.2 Bylaws (filed as Exhibit 4.5 of the registrant's Registration
Statement under Form S-8 filed on March 11, 1994 [File No. 33-76404])
4.3 STAAR Surgical Company Consultant Stock Plan.
5 Opinion of legal counsel (Pollet, Skousen & Woodbury, A Law
Corporation), regarding the legality of the securities offered
(with the consent of said firm included therein).
23.1 Consent of Independent Certified Public Accountants (BDO Seidman).
23.2 Consent of Independent Auditors (KPMG Peat Marwick LLP).
23.3 Consent of legal counsel (Pollet, Skousen & Woodbury, A Law
Corporation) (included in Exhibit 5).
24. Power of attorney for John R. Wolf, Michael R. Deitz, Peter J.
Utrata, Joseph C. Gathe and Andrew F. Pollet.
6
<PAGE>
EXHIBIT 4.3
1995 STAAR SURGICAL COMPANY CONSULTANT STOCK PLAN
STAAR Surgical Company, a corporation organized under the laws of the
State of Delaware, hereby adopts this 1995 STAAR Surgical Company Consultant
Stock Plan.
PURPOSE OF PLAN
---------------
WHEREAS, the purpose of this 1995 STAAR Surgical Company Consultant
Stock Plan is to advance the interests of the STAAR Surgical Company by helping
STAAR Surgical Company obtain and retain the services of persons providing
consulting services upon whose judgment, initiative, efforts and/or services
STAAR Surgical Company is substantially dependent, by offering to or providing
those persons with incentives or inducements affording such persons an
opportunity to become owners of capital stock of STAAR Surgical Company.
TERMS AND CONDITIONS OF PLAN
----------------------------
1. DEFINITIONS.
-----------
Set forth below are definitions of capitalized terms which are
generally used throughout this Plan, or references to provisions containing such
definitions (capitalized terms whose use is limited to specific provisions are
not referenced in this Section):
(A) AFFILIATE - The term "Affiliate" is defined as any person
---------
controlling the Company, controlled by the Company, or under common control with
the Company.
(B) AWARD - The term "Award" is collectively and severally defined as
-----
any Options or Award Shares granted under this Plan.
(C) AWARD SHARES - The term "Award Shares" is defined as shares of
------------
Common Stock granted by the Plan Committee in accordance with Section 6 of this
---------
Plan.
(D) BOARD - The term "Board" is defined as the Board of Directors of
-----
the Company, as such body may be reconstituted from time to time.
(E) COMMON STOCK - The term "Common Stock" is defined as the
------ -----
Company's common stock, par value $.001.
(F) COMPANY - The term "Company" is defined as STAAR Surgical Company.
-------
(G) DISPOSED - The term "Disposed" (or the equivalent terms
--------
"Disposition" or "Dispose") is defined as any transfer or alienation of an Award
which would directly or indirectly change the legal or beneficial ownership
thereof, whether voluntary or by operation of law, or with or without the
payment or provision of consideration, including, by way of example and not
limitation: (i) the sale, assignment, bequest or gift of the Award; (ii) any
transaction that creates or grants an option, warrant, or right to obtain an
interest in the Award; (iii) any transaction that creates a form of joint
ownership in the Award between the Recipient and one or more other Persons; (iv)
any Disposition of the Award to a creditor of the Recipient, including the
hypothecation, encumbrance or pledge of the Award or any interest therein, or
the attachment or imposition of a lien by a creditor of the Recipient on the
Award
1
<PAGE>
or any interest therein which is not released within thirty (30) days after the
imposition thereof; (v) any distribution by an Recipient which is an entity to
its stockholders, partners, co-venturers or members, as the case may be, or (vi)
any distribution by an Recipient which is a fiduciary such as a trustee or
custodian to its settlors or beneficiaries.
(H) ELIGIBLE PERSON - The term "Eligible Person" means any Person who,
---------------
at a particular time, is a consultant to the Company or an Affiliate who
provides bona fide consulting services to the Company or the Affiliate,
provided, however, no Award hereunder may be granted to any Person in connection
- -------- -------
with the provision of any services incident to the raising of capital.
(I) FAIR MARKET VALUE - The term "Fair Market Value" means the fair
-----------------
market value as of the applicable valuation date of the Option Shares, Award
Shares, or other shares of Common Stock, as the case may be, to be valued (the
"Subject Shares"), determined in accordance with the following principles:
- -------- ------
(i) If the Common Stock is traded on a stock exchange on the date
in question, then the Fair Market Value of the Subject Shares will be equal
to the closing bid price of Common Stock on the principal exchange on which
the Common Stock is then trading, or, if Common Stock is not traded on such
date, then on the next preceding trading day during which a sale occurred;
(ii) If the Common Stock is traded over-the-counter on the Nasdaq
National Market System on the date in question, then the Fair Market Value
of the Subject Shares will equal (1) the last sales price (if the Common
Stock is then listed as a National Market Issue under the Nasdaq National
Market System) or (2) the mean between the closing representative bid and
asked price (in all other cases) for the Common Stock on such date as
reported by Nasdaq or such successor quotation system;
(iii) If the Common Stock is traded over-the-counter on Nasdaq
(other than on the Nasdaq National Market System) on the date in question,
then the Fair Market Value of the Subject Shares will equal the mean
between the closing representative bid and asked price (in all other cases)
for the Common Stock on such date as reported by Nasdaq;
(iv) If the Common Stock is not publicly traded on an exchange
and is not quoted on the Nasdaq or a successor quotation system, then the
Fair Market Value shall be determined by the Board acting in good faith on
such basis as it deems appropriate;
(v) If the Subject Shares are unregistered securities (and thus
are considered "restricted stock" within the meaning of Section 144 of the
Securities Act), or if the Subject Shares are subject to conditions, risk
of forfeiture, or repurchase rights or rights of first refusal which impair
its value including, without limitation, those conditions more particularly
described in Section 7, then the Fair Market Value of the Subject Shares
---------
shall be subject to such discount to reflect such impairments to value as
the Plan Committee may, in its sole discretion and without obligation to do
so, determine to be appropriate; and
(vi) Anything in Subsections (i) through (v) above to the
--------------- ---
contrary, in no circumstances shall the Fair Market Value of the Subject
Shares be less than its par value.
(J) ISSUED SHARES - The term "Issued Shares" is defined as shares of
-------------
Common Stock issued pursuant to the terms of this Plan (i.e, Option Shares or
Award Shares {including Option Shares or Award Shares that may also be deemed
Restricted Shares}).
2
<PAGE>
(K) OPTION - The term "Option" is defined as an option to purchase
------
Common Stock granted by the Plan Committee pursuant to the terms of the Plan
and, in particular, the terms of Section 5 of the Plan.
---------
(L) OPTION PRICE - The term "Option Price" is defined in Section 5(b)
------------ ------------
of this Plan.
(M) OPTION SHARES - The term "Option Shares" is defined as the shares
-------------
of Common Stock which an Option entitles the holder thereof to purchase.
(N) PERSON - The term "Person" is defined, in its broadest sense, as
------
any individual, entity or fiduciary such as, by way of example and not
limitation, individual or natural persons, corporations, partnerships (limited
or general), joint-ventures, associations, limited liability
companies/partnerships, or fiduciary arrangements, such as trusts.
(O) PLAN - The term "Plan" is defined as this 1995 STAAR Surgical
----
Company Consultant Stock Plan.
(P) PLAN COMMITTEE - The term "Plan Committee" is defined as that
--------------
Committee appointed by the Board to administer and interpret this Plan as more
particularly described in Section 3 of the Plan; provided, however, that the
--------- -------- -------
term Plan Committee will refer to the Board during such times as no Plan
Committee is appointed by the Board.
(Q) RESTRICTED SHARES - The term "Restricted Shares" is defined as
-----------------
Option Shares or Award Shares, as the case may be, that are subject to
restrictions as more particularly set forth in Section 7 of this Plan.
---------
(R) RECIPIENT - The term "Recipient" is defined as any Eligible Person
---------
who, at a particular time, receives the grant of an Award.
(S) SECURITIES ACT - The term "Securities Act" is defined as the
--------------
Securities Act of 1933, as amended (references herein to Sections of the
Securities Act are intended to refer to Sections of the Securities Act as
enacted at the time of the adoption of this Plan by the Board and as
subsequently amended, or to any substantially similar successor provisions of
the Securities Act resulting from recodification, renumbering or otherwise).
2. TERM OF PLAN.
------------
This Plan shall be effective as of such time and date as this Plan is
adopted by the Board, and this Plan shall terminate on the first business day
prior to the ten (10) year anniversary of the date this Plan became effective.
No grants of Options shall be made under this Plan before the date this Plan
becomes effective or after the date this Plan terminates; provided, however,
-------- -------
that (i) all Awards granted pursuant to this Plan prior to the effective date of
this Plan shall not be affected by the termination of this Plan and (ii) all
other provisions of this Plan shall remain in effect until the terms of all
outstanding Awards have been satisfied or terminated in accordance with this
Plan and the terms of such Awards.
3
<PAGE>
3. PLAN ADMINISTRATION.
-------------------
(A) PLAN COMMITTEE.
--------------
(i) The Plan shall be administered and interpreted by a committee
consisting of two (2) or more members of the Board; provided, however, no member
-------- -------
of the Board who may serve as a member of the Plan Committee if such person
serves or served as a member of the plan committee with respect to any plan
(other than this Plan) of the Company or its Affiliates which plan was or is
established to comply with the provisions of Rule 16b-3(c)(2)(i) to the
Securities and Exchange Act of 1934, as amended (i.e., pertaining to the
establishment of so-called "Section 16b-3 Plans"), and, by reason of such
person's proposed service as a member of the Plan Committee, such person would
not be considered a "disinterested" person within the meaning of said Rule with
respect to such other plan.
(ii) Members of the Plan Committee may resign at any time by
delivering written notice to the Board. Vacancies in the Plan Committee shall
be filled by the Board. The Plan Committee shall act by a majority of its
members in office. The Plan Committee may act either by vote at a meeting or by
a memorandum or other written instrument signed by a majority of the Plan
Committee.
(iii) If the Board, in its discretion, does not appoint a Plan
Committee, the Board itself will administer and interpret the Plan and take such
other actions as the Plan Committee is authorized to take hereunder; provided
that the Board may take such actions hereunder in the same manner as the Board
may take other actions under the Certificate of Incorporation and bylaws of the
Company generally.
(B) ELIGIBILITY OF PLAN COMMITTEE MEMBERS TO RECEIVE AWARDS. While
-------------------------------------------------------
serving on the Plan Committee, such members shall not be eligible for selection
as Eligible Persons to whom an Award may be granted under the Plan.
(C) POWER TO MAKE AWARDS. The Plan Committee shall have the full and
--------------------
final authority in its sole discretion, at any time and from time-to-time,
subject only to the express terms, conditions and other provisions of the
Certificate of Incorporation of the Company and this Plan, and the specific
limitations on such discretion set forth herein, to:
(i) Designate the Eligible Persons or classes of Eligible Persons
eligible to receive Awards from among the Eligible Persons;
(ii) Grant Awards to such selected Eligible Persons or classes of
Eligible Persons in such form and amount (subject to the terms of the Plan)
as the Plan Committee shall determine;
(iii) Impose such limitations, restrictions and conditions upon
any Award as the Plan Committee shall deem appropriate and necessary
including, without limitation, the term of Options and any vesting
conditions attached thereto, and any vesting and repurchase conditions
described in Sections 3 or 7 placed upon grants of Option Shares or Award
---------- -
Shares;
(iv) Interpret the Plan, adopt, amend and rescind rules and
regulations relating to the Plan, and make all other determinations and
take all other action necessary or advisable for the implementation and
administration of the Plan; and
4
<PAGE>
(v) Delegate all or a portion of its authority under subsections
(i) through (iii) of this Section 3(c) to one or more directors of the
------------
Company who are executive officers of the Company, subject to such
restrictions and limitations (such as the aggregate number of shares of
Common Stock that may be awarded) as the Plan Committee may decide to
impose on such delegate directors.
In determining the recipient, form and amount of Awards, the Plan
Committee shall consider any factors deemed relevant, including the individual's
functions, responsibilities, value of services to the Company and past and
potential contributions to the Company's profitability and sound growth.
(D) INTERPRETATION OF PLAN. The Plan Committee shall, in its sole and
----------------------
absolute discretion, interpret and determine the effect of all matters and
questions relating to this Plan. The interpretations and determinations of the
Plan Committee under the Plan (including without limitation determinations
pertaining to the eligibility of Persons to receive Awards, the form, amount and
timing of Awards, the methods of payment for Awards, the restrictions and
conditions placed upon Awards, and the other terms and provisions of Awards and
the certificates or agreements evidencing same) need not be uniform and may be
made by the Plan Committee selectively among Persons who receive, or are
eligible to receive, Awards under the Plan, whether or not such Persons are
similarly situated. All actions taken and all interpretations and
determinations made under this Plan in good faith by the Plan Committee shall be
final and binding upon the Recipient, the Company, and all other interested
Persons. No member of the Plan Committee shall be personally liable for any
action taken or decision made in good faith relating to this Plan, and all
members of the Plan Committee shall be fully protected and indemnified to the
fullest extent permitted under applicable law by the Company in respect to any
such action, determination, or interpretation.
(E) COMPENSATION; ADVISORS. Members of the Plan Committee shall
----------------------
receive such compensation for their services as members as may be determined by
the Board. All expenses and liabilities incurred by members of the Plan
Committee in connection with the administration of the Plan shall be borne by
the Company. The Plan Committee may, with the approval of the Board, employ
attorneys, consultants, accountants, appraisers, brokers, or other Persons, at
the cost of the Company. The Plan Committee, the Company and its officers and
directors shall be entitled to rely upon the advice, opinions, or valuations of
any such Persons.
4. STOCK POOL.
----------
(A) MAXIMUM NUMBER OF SHARES AUTHORIZED UNDER PLAN. Shares of stock
----------------------------------------------
which may be issued or granted under the Plan shall be authorized and unissued
or treasury shares of Common Stock. The aggregate maximum number of shares of
Common Stock which may be issued in exercise of Options or as a grant of Award
Shares, as the case may be, shall not exceed five hundred thousand (500,000)
shares of Common Stock (the "Stock Pool"); provided, however, that such number
----- ---- -------- -------
shall be increased by the following:
(i) Any shares of Common Stock tendered by a Recipient as payment
for Option Shares or Award Shares;
(ii) Any rights to shares of Common Stock surrendered by a
Recipient as payment for Option Shares or Award Shares;
(iii) Any shares of Common Stock subject to an Option which for
any reason is terminated unexercised or expires; and
5
<PAGE>
(iv) Any Restricted Shares which are granted as Option Shares or
Award Shares, and are subsequently forfeited by the holders thereof.
(B) CALCULATING SHARES AVAILABLE FOR AWARDS. For purposes of
---------------------------------------
calculating the maximum number of shares of Common Stock in the Stock Pool which
may be issued under the Plan, the following rules shall apply:
(i) When Options are exercised, and when cash is used as full
payment for shares issued upon exercise of such Options, all the shares
issued (including the shares, if any, withheld for tax withholding
requirements) shall be counted;
(ii) When Options are exercised, and when shares of Common Stock
are used as full or partial payment for shares issued upon exercise of such
Options, if permitted by the Plan Committee, only the net shares issued
(including the shares, if any, withheld for tax withholding requirements)
shall be counted; and
(iii) When Award Shares are granted and the Plan Committee
elects to require payment with respect to such grant, and when shares of
Common Stock are used as full or partial payment for the grant of such
shares, only the net shares issued (including the shares, if any, withheld
for tax withholding requirements) shall be counted.
(C) DATE OF AWARD. The date an Award is granted shall mean the date
-------------
selected by the Plan Committee as of which the Plan Committee allots a specific
number of shares to a Recipient with respect to such Award pursuant to the Plan.
5. OPTIONS (TO PURCHASE OPTION SHARES).
-----------------------------------
(A) GRANT. The Plan Committee may from time to time, and subject to
-----
the provisions of the Plan and such other terms and conditions as the Plan
Committee may prescribe, grant to any Eligible Person one or more options to
purchase for cash or shares the number of shares of Common Stock ("Options")
-------
allotted by the Plan Committee; provided, however, no Option shall be granted to
-------- -------
any Eligible Person who is a member of the Plan Committee. The grant of an
Option shall be evidenced by either a written consulting agreement or a written
option certificate separate from such agreement, executed by the Company and the
Recipient, stating the number of shares of Common Stock subject to the Option,
and stating all terms and conditions of such Option.
(B) OPTION PRICE. The purchase price per Option Share deliverable
------------
upon the exercise of an Option (the "Option Price") shall be such price as may
------ -----
be determined by the Plan Committee; provided, however, the Option Price may not
-------- -------
be less than the eighty five percent (85%) of Fair Market Value of the
underlying Option Shares as of the date of the grant of the Option.
(C) OPTION TERM; EXPIRATION. The term of each Option shall commence
-----------------------
at the grant date for such Option as determined by the Plan Committee, and shall
expire, unless an earlier expiration date is expressly provided in the
underlying consulting agreement or separate option certificate or another
Section of this Plan, on the first business day prior to the ten (10) year
anniversary of the date of grant thereof.
(D) EXERCISE DATE. Unless a later exercise date is expressly provided
-------------
in the underlying consulting agreement or option certificate or another Section
of the Plan, each Option shall become exercisable on the date of its grant as
determined by the Plan Committee. No Option shall be exercisable after the
expiration of its applicable term. Subject to the foregoing, each Option shall
be
6
<PAGE>
exercisable in whole or in part during its applicable term unless expressly
provided otherwise in the underlying consulting agreement or option certificate.
(E) VESTING PROVISIONS. The Plan Committee may, in its sole
------------------
discretion, subject Options granted to Recipients to such vesting conditions
pertaining to continued provision of consulting services to the Company or any
Affiliate or the attainment of goals as the Plan Committee, in its sole
discretion, determines are appropriate; provided, however, in no case shall any
-------- -------
Option provide for the vesting of Option Shares for a period of time which
exceeds five (5) years from date of grant of the Option, or on a cumulative
incremental percentage basis which is less than twenty percent (20%) per year.
If no vesting is expressly provided in the underlying consulting agreement or
separate option certificate, the Option shares shall be deemed fully vested upon
date of grant.
(F) MANNER OF EXERCISE AND PAYMENT. An exercisable Option, or any
------------------------------
exercisable portion thereof, may be exercised solely by delivery of all of the
following to the Secretary of the Company at his or her office at the Company
prior to the time when such Option or such portion becomes unexercisable under
this Section 5:
---------
(i) Notice in writing signed by the Recipient or other Person
then entitled to exercise the Option or portion thereof stating that such
Option or portion is exercised, such notice complying with the procedures
set forth in the applicable consulting agreement or option certificate
which governs the exercise of the Option, and any other applicable rules
established by the Plan Committee.
(ii) Full payment for the shares with respect to which such
Option or portion is thereby exercised as follows (or any combination of
the following):
(1) In good funds (in U.S. dollars) by cash or by check;
and/or
(2) If expressly permitted in the underlying consulting
agreement or option certificate, or otherwise consented to by the Plan
Committee in writing:
(A) Shares of Common Stock owned by the Recipient duly
endorsed for transfer to the Company with a Fair Market Value on
the date of delivery equal to the aggregate Option Price of the
Option Shares with respect to which the Option or portion is
thereby exercised;
(B) The surrender or relinquishment of rights to
acquire Common Stock owned by the Recipient with a Fair Market
Value on the date of delivery equal to the aggregate Option Price
of the Option Shares with respect to which the Option or portion
is thereby exercised; or
(C) A full recourse promissory note bearing interest
(not less than a rate as shall then preclude the imputation
of interest under the Internal Revenue Code of 1986, as
amended) and payable upon such terms as may be prescribed by
the Plan Committee. The Plan Committee may also prescribe
the form of such note and the security to be given for such
note. Provided, however, no Option may be exercised by
-------- -------
delivery of a promissory note or by a loan from the Company
if such loan or other extension of credit is prohibited by
law at the time of exercise of this Option or does not
comply with the provisions of Regulation G promulgated by
the Federal Reserve Board with respect to "Margin Stock" if
the Company and the Recipient are then subject to such
Regulation.
7
<PAGE>
(iii) Such representations and documents as the Plan Committee,
in its absolute discretion, deems necessary or advisable to effect
compliance with all applicable provisions of the Securities Act and any
other federal or state securities laws or regulations. The Plan Committee
may, in its absolute discretion, also take whatever additional actions it
deems appropriate to effect such compliance including, without limitation,
placing legends on a share certificates and issuing stop-transfer orders to
transfer agents and registrars.
(iv) In the event that the Option or portion thereof shall be
exercised by any Person other than the Recipient, appropriate proof of the
right of such person or persons to exercise the Option or portion thereof.
(G) NON-ASSIGNABILITY. Except as expressly provided in the underlying
-----------------
consulting agreement or option certificate, Options may not be Disposed by the
Recipient, nor exercised by any Person other than the Recipient, without the
prior written consent of the Company, which consent the Company may withhold in
its sole and absolute discretion, and such Options shall, upon the Disposition
or exercise of such Option without the Company's prior written consent,
terminate and be null and void ab initio and of no further force and effect.
-- ------
(H) NO STOCKHOLDER RIGHTS. The Recipient shall not be, nor have any
---------------------
of the rights or privileges of, a stockholder of the Company with respect to the
Option Shares unless and until all conditions for exercise of the Option and the
issuance of certificates for the Option Shares shall be satisfied, at which time
the Recipient shall become a stockholder of the Company with respect to the
Option Shares and as such shall thereafter be fully entitled to receive
dividends (if any are declared and paid), to vote and to exercise all other
rights of a stockholder with respect to the Option Shares.
6. AWARD SHARES.
------------
(A) GRANT. The Plan Committee may from time to time, and subject to
-----
the provision of the Plan and such other terms and conditions as the Plan
Committee may prescribe, grant to any Eligible Person one or more shares of
Common Stock ("Award Shares") allotted by the Plan Committee. The grant of
----- ------
Award Shares or grant of the right to receive Award Shares shall be evidenced by
either a written consulting agreement or a separate written agreement confirming
such grant, executed by the Company and the Recipient, stating the number of
Award Shares granted and stating all terms and conditions of such grant.
(B) PURCHASE PRICE AND MANNER OF PAYMENT. The Plan Committee, in its
------------------------------------
sole discretion, may grant Award Shares in any of the following instances:
(i) as a "bonus" or "reward" for services previously rendered and
compensated, in which case the recipient of the Award Shares shall not be
required to pay any consideration for such Award Shares, and the value of
such Award Shares shall be the Fair Market Value of such Award Shares on
the date of grant;
(ii) as "compensation" for the previous performance or future
performance of services or attainment of goals, in which case the recipient
of the Award Shares shall not be required to pay any consideration for such
Award Shares (other than the performance of his services), and the value of
such Award Shares received (together with the value of such services or
attainment of goals attained by the Recipient), shall be the Fair Market
Value of such Award Shares on the date of grant; or
8
<PAGE>
(iii) in consideration for the payment of a purchase price for
such Award Shares in an amount established by the Plan Committee, which
purchase price may not be less than eighty-five percent (85%) of the Fair
Market Value of such Award Shares as of the date of grant of such purchase
right.
7. RESTRICTED SHARES.
-----------------
(A) VESTING CONDITIONS; FORFEITURE OF UNVESTED SHARES. The Plan
-------------------------------------------------
Committee may subject or condition the grant of Issued Shares (hereinafter
referred to as "Restricted Shares") to such vesting conditions based upon
---------- ------
continued provision of services or attainment of goals subsequent to such grant
of Restricted Shares as the Plan Committee, in its sole discretion, may deem
appropriate. In the event the Recipient does not satisfy such vesting
conditions, the Company may require the Recipient, subject to the payment terms
of Section 7(b), to forfeit such unvested Restricted Shares. All vesting
------------
conditions imposed on the grant of Restricted Shares, including payment terms
complying with Section 7(b), shall be set forth in either a written consulting
------------
agreement or a separate written restricted stock agreement, executed by the
Company and the Recipient on or before the time of the grant of such Restricted
Shares, stating the number of said Restricted Shares subject to such conditions
and further specifying the vesting conditions. If no vesting conditions are
expressly provided in the underlying consulting agreement or in a separate
restricted stock agreement, the Issued Shares shall not be deemed to be
Restricted Shares, and will not be required to be forfeited. Any grant of
Restricted Shares shall be subject to the following limitations:
(i) In no case shall such vesting conditions require continued
provision of services or attainment of goals, as the case may be,
subsequent to the grant of Restricted Shares, for a period of time which
exceeds five (5) years from the date of grant, or on a cumulative
incremental percentage basis which is less than twenty percent (20%) per
year;
(ii) In no case shall the Recipient be required to forfeit any
vested Restricted Shares; and
(iii) In the event of the forfeiture of any unvested Restricted
Shares, the Company shall pay to the Recipient with respect to all of such
unvested Restricted Shares an amount equal to the original purchase price,
if any, paid by the Recipient for such unvested Restricted Shares.
(B) REPURCHASE PRICE FOR FORFEITED RESTRICTED SHARES. In the event a
------------------------------------------------
Recipient does not satisfy applicable vesting conditions placed upon Restricted
Shares, and the Company exercises its right to require the Recipient to forfeit
such unvested Restricted Shares, the Company shall be required to pay the
Recipient an amount not less than:
(i) The higher of the original purchase price for such forfeited
Restricted Shares or the Fair Market Value of such forfeited Restricted
--
Shares on the date of the event triggering such repurchase rights; or
(ii) The original purchase price for such vested Restricted
Shares; provided, however, that the right to repurchase in favor of the
-------- -------
Company must lapse at the rate of at least twenty percent (20%) per year
over five (5) years from the date of grant of the Restricted Shares.
The payments to be made by the Company to a Recipient for forfeited
Restricted Shares pursuant to Subsection (ii) may only be in the form of cash or
---------------
cancellation of purchase money
9
<PAGE>
indebtedness with respect to the purchase of said Restricted Shares by the
Recipient, if any, and must be paid no later than ninety (90) days of the date
of termination.
(C) RESTRICTIVE LEGEND. Until such time as all conditions placed upon
------------------
Restricted Shares lapse, the Plan Committee may place a restrictive legend on
the share certificate representing such Restricted Shares which evidences said
restrictions in such form and subject to such stop instructions as the Plan
Committee shall deem appropriate. The conditions shall similarly apply to any
new, additional or different securities the Recipient may become entitled to
receive with respect to such Restricted Shares by virtue of a stock split or
stock dividend or any other change in the corporate or capital structure of the
Company. The Plan Committee shall also have the right, should it elect to do
so, to require the Recipient to deposit the share certificate for the Restricted
Shares with the Company or its agent, endorsed in blank or accompanied by a duly
executed irrevocable stock power or other instrument of transfer, until such
time as the conditions lapse. The Company shall remove the legend with respect
to any Restricted Shares which become vested.
(D) STOCKHOLDER RIGHTS. The Recipient of Restricted Shares shall have
------------------
all rights or privileges of a stockholder of the Company with respect to the
Restricted Shares notwithstanding the terms of this Section 7 (with the
---------
exception of Subsection (e) hereof) and, as such, shall be fully entitled to
--------------
receive dividends (if any are declared and paid), to vote and to exercise all
other rights of a stockholder with respect to the Restricted Shares.
(E) NON-ASSIGNABILITY. Except as expressly provided in the underlying
-----------------
consulting agreement or restricted stock agreement, unvested Restricted Shares
may not be Disposed by the Recipient without the prior written consent of the
Company, which consent the Company may withhold in its sole and absolute
discretion, and such purported Disposition shall be null and void ab initio and
-- ------
of no force and effect.
8. REGISTRATION OF ISSUED SHARES.
------------------------------
(A) REGISTRATION OR EXEMPTION FROM REGISTRATION. Unless expressly
--------------------------------------------
stipulated in the underlying consulting agreement or separate option certificate
or agreement, in no event shall the Company be required at any time to register
the Issued Shares under the Securities Act (including, without limitation, as
part of any primary or secondary offering, or pursuant to Form S-8) or to
register or qualify the Issued Shares under the securities laws of any state or
territory (including, without limitation, pursuant to Section 25110 of the
California Securities Act).
In the event the Company is not required to register or qualify the
Issued Shares, the Issued Shares shall be issued in reliance upon such
exemptions from registration or qualification under federal and state securities
laws, as the case may be, that the Company and its legal counsel, in their
reasonable discretion, shall determine to be appropriate, including, without
limitation:
(i) In the case of federal securities laws, any of the
following, if available: Section 3(b) of the Securities Act for Limited
Offerings and Rules 504 and/or 505 of Regulation D promulgated thereto,
and/or Section 4(2) of the Securities Act for private offerings and Rule
506 of Regulation D promulgated thereto, and
(ii) In the case of California securities laws, Section 25102(f)
of the California Securities Act of 1968, as amended, or, if the Recipient
is then a resident of and/or domiciled within another state, the
requirements of any applicable exemptions from registration or
qualification afforded by the securities laws of such state.
10
<PAGE>
If requested by the Company, the Recipient shall provide such further
representations or documents as the Company or its legal counsel, in their
reasonable discretion, deem necessary or advisable in order to effect compliance
with the conditions of any and all of the aforesaid exemptions from federal or
state registration or qualification which it is relying upon, or with all
applicable rules and regulations of any applicable securities exchanges. If
required by the Company, the Recipient shall provide a letter from a purchaser
representative with credentials reasonably acceptable to the Company to the
effect that such purchaser representative has reviewed the Recipient's proposed
investment in the Issued Shares and has determined that an investment in the
Issued Shares: (A) is appropriate in light of the Recipient's financial
circumstances, (B) that the purchaser representative and, if applicable, the
Recipient, have such knowledge and experience in financial and business matters
that the such persons are capable of evaluating the merits and risks of an
investment in the Issued Shares, and (C) that the purchaser representative and,
if applicable, the Recipient, have such business or financial experience to be
reasonably assumed to have the capacity to protect the Recipient's interests in
connection with the purchase of the Issued Shares.
In the event the Company is unable to obtain, without undue burden or
expense, such consents or approvals that may be required from any applicable
regulatory authority (or may be deemed reasonably necessary or advisable by
legal counsel for the Company) with respect to the applicable exemptions from
federal or state registration or qualification which the Company is reasonably
relying upon, the Company shall have no obligation under this Agreement to issue
or sell the Issued Shares until such time as such consents or approvals may be
reasonably obtained without undue burden or expense, and the Company shall be
relieved of all liability with respect to its inability to issue or sell the
Issued Shares.
(B) LEGEND. In the event the Company delivers unregistered shares,
------
the Company reserves the right to place the following legend or such other
legend as its deems necessary on the share certificate or certificates to comply
with the Securities Act and any state and territory securities laws or any
exemption from registration or qualification thereunder which is being relied
upon by the Company.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN (1)
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED,
IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION AFFORDED BY SUCH ACT,
OR (2) REGISTERED OR QUALIFIED, AS THE CASE MAY BE, UNDER THE
SECURITIES LAWS OF ANY STATE OR TERRITORY OF THE UNITED STATES WHICH
MAY BE APPLICABLE INCLUDING, WITHOUT LIMITATION, THE CALIFORNIA
SECURITIES ACT OF 1968, AS AMENDED, IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION OR QUALIFICATION, AS THE CASE MAY BE, AFFORDED BY SUCH
STATE OR TERRITORIAL SECURITIES LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR THE HOLDER'S OWN ACCOUNT FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW FOR RESALE OR DISTRIBUTION. THESE SECURITIES MAY NOT BE
SOLD OR TRANSFERRED UNLESS (A) THEY HAVE BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 AS WELL AS UNDER THE SECURITIES
LAWS OF ANY STATE OR TERRITORY OF THE UNITED STATES AS MAY THEN BE
APPLICABLE, OR (B) THE TRANSFER AGENT (OR THE COMPANY IF THEN ACTING
AS ITS TRANSFER AGENT) IS PRESENTED WITH EITHER A WRITTEN OPINION
SATISFACTORY TO COUNSEL FOR THE COMPANY OR A NO-ACTION OR INTERPRETIVE
LETTER FROM THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION AND
ANY APPLICABLE STATE OR TERRITORIAL SECURITIES REGULATORY AGENCY TO
THE EFFECT THAT SUCH REGISTRATION OR
11
<PAGE>
QUALIFICATION, AS THE CASE MAY BE, IS NOT REQUIRED UNDER THE
CIRCUMSTANCES OF SUCH SALE OR TRANSFER.
9. ADJUSTMENTS.
-----------
(A) SUBDIVISION OR STOCK DIVIDEND. If outstanding shares of Common
-----------------------------
Stock shall be subdivided into a greater number of shares by reason of
recapitalization or reclassification, the number of shares of Common Stock, if
any, available for issuance in the Stock Pool, and the Option Price of any
outstanding Options in effect immediately prior to such subdivision or at the
record date of such dividend shall, simultaneously with the effectiveness of
such subdivision or immediately after the record date of such dividend, be
proportionately reduced, and conversely, if the outstanding shares of Common
Stock shall be combined into a smaller number of shares, the number of shares of
Common Stock, if any, available for issuance in the Stock Pool, and the Option
Price of any outstanding Option in effect immediately prior to such combination
shall, simultaneously with the effectiveness of such combination, be
proportionately increased.
(B) ADJUSTMENT TO OPTION PRICE. When any adjustment is required to be
--------------------------
made in the Option Price, the number of shares purchasable upon the exercise of
any outstanding Option shall be adjusted to that number of shares determined by:
(i) multiplying an amount equal to the number of shares purchasable upon the
exercise of the Option immediately prior to such adjustment by the Option Price
in effect immediately prior to such adjustment, and then (ii) dividing that
product by the Option Price in effect immediately after such adjustment.
Provided, however, no fractional shares shall be issued, and any fractional
- -------- -------
shares resulting from the computations pursuant to this Section 10 shall be
----------
eliminated from the Option.
(C) CAPITAL REORGANIZATION OR RECLASSIFICATION; CONSOLIDATION OR
------------------------------------------------------------
MERGER. In case of any capital reorganization or any reclassification of Common
- ------
Stock (other than a recapitalization hereinabove described in Section 10(a), or
-------------
the consolidation, merger, combination or exchange of shares with another
entity, or the divisive reorganization of the Company, the Recipient shall
thereafter be entitled upon exercise of the Option to purchase the kind and
number of shares of stock or other securities or property of the Company (or its
successor{s}) receivable upon such event by a Recipient of the number of shares
of Common Stock of the Company which such Option entitles the Recipient to
purchase from the Company immediately prior to such event. In every such case,
the Company may appropriately adjust the number of shares of Common Stock in the
Pool which may be issued under the Plan, the number of shares of Common Stock
subject to Options theretofore granted under the Plan, the Option Price of
Options theretofore granted under the Plan, and any and all other matters deemed
appropriate by the Plan Committee.
(D) ADJUSTMENTS DETERMINED IN SOLE DISCRETION OF BOARD. To the extent
--------------------------------------------------
that the foregoing adjustments relate to stock or securities of the Company,
such adjustments shall be made by the Plan Committee, whose determination in
that respect shall be final, binding and conclusive.
(E) NO OTHER RIGHTS TO RECIPIENT. Except as expressly provided in
----------------------------
this Section 10, (i) the Recipient shall have no rights by reason of any
----------
subdivision or consolidation of shares of stock of any class or the payment of
any stock dividend or any other increase or decrease in the number of shares of
stock of any class, and (ii) the dissolution, liquidation, merger, consolidation
or divisive reorganization or sale of assets or stock to another corporation, or
any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number of, or
the Option Price for, the shares. The grant of an Award pursuant to this Plan
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital or
business
12
<PAGE>
structure or to merge, consolidate, dissolve or liquidate, or to sell or
transfer all or any part of its business or assets.
10. PERFORMANCE ON BUSINESS DAY.
---------------------------
In the event the date on which a party to this Plan is required to
take any action under the terms of this Plan is not a business day, the action
shall, unless otherwise provided herein, be deemed to be required to be taken on
the next succeeding business day.
11. EMPLOYMENT STATUS.
-----------------
In no event shall the granting of an Award be construed as granting a
continued right of employment to a Recipient if such Person is employed by the
Company, nor effect any right which the Company may have to terminate the
employment of such Person, at any time, with or without cause, except to the
extent that such Person and the Company have agreed otherwise in writing.
12. NON-LIABILITY FOR DEBTS.
-----------------------
No Options granted hereunder, or unvested Restricted Shares granted
hereunder, or any part thereof, shall be liable for the debts, contracts, or
engagements of a Recipient or such Recipient's successors in interest or shall
be subject to disposition by transfer, alienation, or any other means whether
such disposition be voluntary or involuntary or by operation of law, by
judgment, levy, attachment, garnishment, or any other legal or equitable
proceeding (including bankruptcy), and any attempted disposition thereof shall
be null and void ab initio and of no further force and effect.
-- ------
13. AMENDMENT AND DISCONTINUATION OF PLAN; MODIFICATION OF AWARDS.
-------------------------------------------------------------
(A) AMENDMENT, MODIFICATION OR TERMINATION OF PLAN. The Board may
----------------------------------------------
amend the Plan or suspend or discontinue the Plan at any time or from time-to-
time; provided, however no such action may adversely alter or impair any Award
-------- -------
previously granted under this Plan without the consent of each Recipient
affected thereby.
(B) MODIFICATION OF TERMS OF OUTSTANDING OPTIONS. Subject to the
--------------------------------------------
terms and conditions and within the limitations of this Plan, the Plan Committee
may modify, extend or renew outstanding Options granted under this Plan,
including vesting conditions, or accept the surrender of outstanding Options (to
the extent not theretofore exercised) and authorize the granting of new Options
in substitution therefor (to the extent not theretofore exercised).
Notwithstanding the foregoing, however, no modification of any outstanding
Option may, without the consent of the Recipient affected thereby, adversely
alter or impair such Recipients rights under such Option.
(C) MODIFICATION OF RESTRICTED SHARE VESTING CONDITIONS. Subject to
---------------------------------------------------
the terms and conditions and within the limitations of this Plan, including
vesting conditions, the Plan Committee may modify the conditions placed upon the
grant of any Restricted Shares, provided, however, no modification of any
-------- -------
conditions placed upon Restricted Shares may, without the consent of the
Recipient thereof, adversely alter or impair such Recipient's rights with
respect to such Restricted Shares.
(D) COMPLIANCE WITH LAWS. The Plan Committee may at any time or from
--------------------
time-to-time, without receiving further consideration from any Person who may
become entitled to receive or who has received the grant of an Award hereunder,
modify or amend Awards granted under this Plan as required to: (i) comport with
changes in securities, tax or other laws or rules, regulations or
13
<PAGE>
regulatory interpretations thereof applicable to this Plan or Awards thereunder
or to comply with stock exchange rules or requirements and/or (ii) ensure that
this Plan is and remains or shall become exempt from the application of any
participation, vesting, benefit accrual, funding, fiduciary, reporting,
disclosure, administration or enforcement requirement of either the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or the
corresponding provisions of the Internal Revenue Code of 1986, as amended
(Subchapter D of Title A, Chapter 1 of the Code {encompassing Sections 400 to
------------
420 of the Code}). Provided, however, no such modification may, without the
- --- -------- -------
consent of the holder thereof, adversely alter or impair his or her rights with
respect to such Award Shares.
14. WITHHOLDING TAXES.
-----------------
As a condition of the grant of any Award and/or exercise of any
Option, as the case may be, the Company shall have the right to require the
Recipient to remit to the Company an amount sufficient to satisfy any federal,
state and/or local withholding tax requirements incident to such grant or
exercise. Provided, however, whenever the Company is delivering any shares of
-------- -------
Common Stock the Company may, in its sole discretion, but without obligation to
do so, issue or transfer such shares of Common Stock net of the number of shares
sufficient to satisfy any withholding tax requirements incident to such issuance
or transfer. For withholding tax purposes, the shares of Common Stock shall be
valued on the date the withholding obligation is incurred.
* * * * *
The undersigned hereby certifies that the foregoing 1995 STAAR Surgical
Company Consultant Stock Plan was duly adopted effective as of the 31st day of
May, 1995, by the Board of Directors of STAAR Surgical Company.
/s/ WILLIAM C. HUDDLESTON
--------------------------------------
William C. Huddleston, Secretary
14
<PAGE>
EXHIBIT 5
June 14, 1995
STAAR Surgical Company
1911 Walker Avenue
Monrovia, California 91016
RE: STAAR SURGICAL COMPANY - REGISTRATION STATEMENT ON FORM S-8
OUR FILE NO.: 0808-011
----------------------------------
Ladies and Gentlemen:
In connection with the registration by STAAR Surgical Company (the
"Company") of the STAAR Surgical Company Consultant Stock Plan adopted by the
Board of Directors of the Company on May 31, 1995 (the "1995 Plan") on Form S-
8 under the Securities Act of 1993, as amended, and the Rules and Regulations of
the Securities and Exchange Commission promulgated thereunder, and the sale and
issuance by the Company pursuant to the terms of the 1995 Plan to its
consultants of up to 500,000 shares of the Company's common stock, par value
$.01 (the "Shares") by means of either an outright grant of the Shares to the
consultants or the grant to and exercise by the consultants of options to
purchase the Shares (collectively, the "Awards"), you have requested our opinion
as counsel for the Company as to the legality of the issuance of the Shares.
In rendering our opinion, we have reviewed and examined the following
documents and certificates of officers and directors of the Company.
(1) Certificate of Incorporation of the Company, as amended from time to
time (the "Certificate") as certified to us by the Secretary of State
of the State of Delaware and as recorded in the office of the
appropriate county recorder;
(2) The Bylaws of the Company, as certified to us by the Secretary of the
Company;
<PAGE>
STAAR Surgical Company
June 14, 1995
Page 2
(3) Certified resolutions adopted by the Board of Directors of the Company
authorizing the adoption of the 1995 Plan and the grant of Awards to
the consultants of the Company thereunder and the issuance of the
Shares in connection therewith; and
(4) A Registration Statement on Form S-8 with respect to the 1995 Plan and
the Shares to be filed on June 14, 1995 with the Securities Exchange
Commission (the "Registration Statement").
In giving our opinion, we have assumed without investigation the
authenticity, accuracy and completeness of any document or instrument submitted
to us as an original, the conformity to the original of any document or
instrument submitted to us as a copy, and the genuineness of all signatures on
such originals or copies.
We have not undertaken, nor do we intend to undertake, any independent
investigation beyond such documents or instruments and records, or to verify the
adequacy of accuracy of such documents, instruments and records.
Based upon the foregoing, we are of the opinion that, after the
Registration Statement becomes effective and after any post-effective amendment
required by law is duly completed, filed and becomes effective (such
Registration Statement as it finally becomes effective, or, if required to be
post-effectively amended, then as it is so amended, is referred to hereinafter
as the "Final Registration Statement"), and when the applicable provisions of
"blue sky" and other state securities laws shall have been complied with, and
when the Shares are issued and sold in accordance with the Final Registration
Statement, the Shares will be legally authorized, fully paid and nonassessable.
We express no opinion as to compliance with "blue sky" or state securities
laws of any state in which the Shares are proposed to be offered and sold or as
to the effect, if any, which non-compliance with such laws might have on the
validity of issuance of the Shares.
<PAGE>
STAAR Surgical Company
June 14, 1995
Page 3
We consent to the reference to our firm under item number 8 of the
Registration Statement and further consent to the filing of this opinion as an
exhibit to any filing made with the Securities and Exchange Commission or under
any state or other jurisdiction's securities act for the purpose of registering,
qualifying or establishing eligibility for an exemption from registration or
qualification of the Shares in connection with the offering described in the
Registration Statement. Other than as provided in the preceding sentence, this
opinion (i) is addressed solely to you for your benefit in accordance with the
subject transaction, (ii) may not be relied upon by any other party, (iii)
covers only matters of United States federal law and the internal (and not the
conflict of law) laws of the States of Delaware and California, and nothing in
this opinion shall be deemed to imply any opinion related to the laws of any
other jurisdiction, (iv) may not be used, circulated, reproduced, quoted,
referred to or delivered by you to any other person, and (v) may not be relied
upon for any other purpose whatsoever. Nothing herein shall be deemed to relate
to or constitute an opinion concerning any matters not specifically set forth
above.
By giving you this opinion, we do not admit that this firm or any member
hereof comes within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the Rules and
Regulations of the Securities and Exchange Commission promulgated thereunder, or
within the meaning of Section 11(a)(4) of the Securities Act of 1933, as
amended, or the Rules and Regulations of the Securities and Exchange Commission
promulgated thereunder.
The information set forth herein is as of the date of this letter. We
disclaim any undertaking to advise you of changes which may be brought to our
attention after the effective date of the Registration Statement.
Very truly yours,
/s/ POLLET, SKOUSEN & WOODBURY,
A LAW CORPORATION
<PAGE>
EXHIBIT 23.1
Consent of Independent Certified Public Accountants
Board of Directors
STAAR Surgical Company
We consent to incorporation by reference in the Registration Statement on
Form S-8 of STAAR Surgical Company of our reports dated March 17, 1995,
relating to the consolidated financial statements and schedule of STAAR Surgical
Company and subsidiaries at December 30, 1994 and December 31, 1993, and for
each of the years ended December 30, 1994 and December 30, 1993, which report
appears in the Annual Report on Form 10-K of STAAR Surgical Company for its year
ended December 30, 1994.
/s/ BDO Seidman
BDO Seidman
Los Angeles, California
June 13, 1995
<PAGE>
EXHIBIT 23.2
Consent of Independent Auditors
The Board of Directors
STAAR Surgical Company
We consent to incorporation by reference in the Registration Statement on
Form S-8 of STAAR Surgical Company [relating to the registration of that certain
1995 STAAR Surgical Company Consultant Stock Plan] of our report dated March 19,
1993, relating to the consolidated statements of operations, stockholders'
equity, and cash flows of STAAR Surgical Company and subsidiaries for the year
ended January 1, 1993, and all related schedules, which report appears in the
Annual Report on Form 10-K of STAAR Surgical Company.
/s/ KPMG Peat Marwick LLP
Ontario, California
June 2, 1995
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
DIRECTORS OF STAAR SURGICAL COMPANY
The undersigned members of the Board or Directors of STAAR Surgical
Company, a Delaware corporation (the "Company"), and each of them, hereby
constitute and appoint John R. Wolf and William C. Huddleston, and each of them,
as the true and lawful attorney-in-fact and agent, each with full power of
substitution and resubstitution, for and in the name, place and stead of the
undersigned, and each of them, in any and all capacities, to sign on the behalf
of the undersigned and each of them any and all registration statements on Form
S-8 under the provisions of the Securities Act of 1933, as amended (the
"Registration Statement") to be filed in 1995 with respect to common stock to be
issued under the STAAR Surgical Company Consultant Stock Plan and any and all
amendments thereto (including post-effective amendments), to execute any and all
certificates, applications or other documents to be filed in connection with the
Registration Statement with the Securities and Exchange Commission or with any
states or other jurisdictions in which registration is necessary to provide for
notice of sales of all or part of the securities to be registered pursuant to
the Registration Statement, and to file the Registration Statement, with all
exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, with the full power and authority to do and
perform each and every act and thing necessary or advisable to be done in
connection therewith, as fully and to all intents and purposes as the
undersigned and each of them might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or each of them, or their
or their substitutes, may lawfully do or cause to be done by virtue thereof.
Executed this 31st day of May, 1995.
----
/s/ John R. Wolf
----------------------------------------------
JOHN R. WOLF
/s/ Michael R. Deitz, M.D.
----------------------------------------------
MICHAEL R. DEITZ, M. D.
/s/ Joseph C. Gathe, M.D.
----------------------------------------------
JOSEPH C. GATHE, M. D.
/s/ Peter J. Utrata, M.D.
----------------------------------------------
PETER J. UTRATA, M. D.
/s/ Andrew F. Pollet
----------------------------------------------
ANDREW F. POLLET
