<PAGE> 1
As filed with the Securities and Exchange Commission on August 28, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
CIRCON CORPORATION
(Exact name of Registrant as specified in its charter)
-----------------
DELAWARE 95-3079904
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification Number)
6500 HOLLISTER AVENUE
SANTA BARBARA, CA 93117
(805) 685-5100
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
-----------------
CABOT MEDICAL CORPORATION 1985 INCENTIVE STOCK OPTION PLAN
CABOT MEDICAL CORPORATION NON-QUALIFIED STOCK OPTION PLAN
CABOT MEDICAL CORPORATION INDEPENDENT DIRECTORS' NON-QUALIFIED STOCK OPTION PLAN
(Full title of the Plans)
-----------------
RICHARD A. AUHLL
CHIEF EXECUTIVE OFFICER
CIRCON CORPORATION
6500 HOLLISTER AVENUE
SANTA BARBARA, CA 93117
(805) 685-5100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-----------------
Copy to:
ROBERT B. JACK, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
FAX: (415) 496-4088
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<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Amount to be Offering Price Per Aggregate Offering Amount of
Title of Securities to be Registered Registered Share (2) Price (2) Registration Fee
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value
Upon exercise of options under the
Cabot Medical Corporation 1985
Incentive Stock Option Plan, the
Cabot Medical Corporation Non-
Qualified Stock Option Plan and the
Cabot Medical Corporation
Independent Directors' Non-
Qualified Stock Option Plan(1) 1,069,446 shares $17.625 $18,848,969 $6,499.65
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to an Agreement and Plan of Reorganization dated as of April
24, 1995, as amended (the "Reorganization Agreement"), among the
Registrant, Circon Sub Corp. and Cabot Medical Corporation ("Cabot"),
the Registrant assumed all of the outstanding options to purchase common
stock of Cabot under the Cabot 1985 Incentive Stock Option Plan, the
Cabot Non-Qualified Stock Option Plan and the Cabot Independent
Directors' Non-Qualified Stock Option Plan (the "Assumed Options"), with
appropriate adjustments to the number of shares and exercise price of
each Assumed Option to reflect the ratio at which the common stock of
Cabot was converted into common stock of the Registrant under the
Reorganization Agreement.
(2) Estimated in accordance with Rule 457(h)(1) solely for the purpose of
computing the amount of the registration fee based on the average of the
high ($17.625) and low ($17.625) prices of the Company's Common Stock as
reported on the NASDAQ Stock Market on August 22, 1995.
================================================================================
<PAGE> 3
CIRCON CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
As used in this Registration Statement, unless the context otherwise
requires, the terms "Circon" and the "Company" mean Circon Corporation and its
subsidiaries.
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed by the Company with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference in
this Registration Statement, except as superseded or modified herein:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994 filed March 30, 1995, pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended (the "1934 Act");
(b) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995 filed May 15, 1995, the Form 10-Q/A to the March 31,
1995 Form 10-Q filed June 8, 1995, pursuant to Section 13 of the 1934
Act;
(c) the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995 filed August 14, 1995, pursuant to Section 13 of the
1934 Act; and
(d) the Company's Form S-4 Registration Statement filed July 20,
1995, pursuant to the Securities Act of 1933, as amended (the "Securities
Act").
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act on or after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents.
II-1
<PAGE> 4
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Delaware law authorizes a court to award, or a corporation's Board of
Directors to grant, indemnity to directors and officers in terms sufficiently
broad to permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the Securities
Act.
The Bylaws of the Company provide that: (i) the Company is required to
indemnify its officers and directors to the fullest extent permitted by law,
including those circumstances in which indemnification would otherwise be
discretionary; (ii) the Company is required to advance expenses to its officers
and directors as incurred, provided that they undertake to repay the amount
advanced if it is ultimately determined that they are not entitled to
indemnification; (iii) an officer or director may bring suit against the Company
if a claim for indemnification is not timely paid; (iv) the Company is
authorized to enter into indemnification agreements with its officers, directors
and employees; and (v) the Company may not retroactively amend the Bylaw
provision in a way which is adverse to its officers or directors or former
officers or directors.
The Company carries Directors' and Officers' Liability and Corporate
Reimbursement insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.1 Cabot Medical Corporation Non-Qualified Stock Option Plan.
5.1 Opinion of Counsel as to Legality of Securities being Registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney.
</TABLE>
II-2
<PAGE> 5
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 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.
(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 section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in 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 Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, Circon Corporation, 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 Santa Barbara, State of
California, on August 28, 1995.
CIRCON CORPORATION
By: /s/ Richard A. Auhll
-------------------------------------------
Richard A. Auhll, Chairman, Chief Executive
Officer, President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard A. Auhll and R. Bruce Thompson,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
-------------------- ------------------------- ---------------
<S> <C> <C>
/s/ RICHARD A. AUHLL Chairman, Chief Executive August 28, 1995
-------------------- Officer, President and Director
(Richard A. Auhll) (Principal Executive Officer)
/s/ R. BRUCE THOMPSON Executive Vice President and August 28, 1995
--------------------- Chief Financial Officer
(R. Bruce Thompson) (Principal Financial and
Accounting Officer)
/s/ JOHN F. BLOKKER Director August 28, 1995
-------------------
(John F. Blokker)
/s/ HAROLD R. FRANK Director August 28, 1995
-------------------
(Harold R. Frank)
/s/ PAUL W. HARTLOFF, JR. Director August 28, 1995
-------------------------
(Paul W. Hartloff, Jr.)
/s/ RUDOLF R. SCHULTE Director August 28, 1995
---------------------
(Rudolf R. Schulte)
</TABLE>
II-4
<PAGE> 7
0
CIRCON CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
<S> <C>
4.1 Cabot Medical Corporation Non-Qualified Stock Option Plan.
5.1 Opinion of Counsel as to Legality of Securities being Registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney (included in Registration Statement on page II-4).
</TABLE>
<PAGE> 1
EXHIBIT 4.1
CABOT MEDICAL CORPORATION
NON-QUALIFIED STOCK OPTION PLAN
AS AMENDED AND RESTATED
AS OF MAY 13, 1994
(Amended pursuant to Section 4.2 to increase the total number of
Shares due to the stock dividend issued on May 13, 1994)
<PAGE> 2
ARTICLE I
DEFINITIONS
1.1. In this Stock Option Plan (hereinafter referred to as the
"Plan") unless the context otherwise requires, references to the following words
shall have the following meanings:
"Change in Control" shall mean a change in control of the
Company of a nature that would be required to be reported (assuming such event
has not been "previously reported") in response to Item 1(a) of the Current
Report on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or
15(d) of the Exchange Act; provided that, without limiting the foregoing, a
"Change in Control" shall be deemed to have occurred at such time as (a) any
Person (as defined in the Exchange Act) after the date hereof becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of 10% or more of the combined voting power of the Company's
outstanding securities ordinarily having the right to vote at elections of
directors ("Voting Securities"), or (b) during any period of two consecutive
years after the date of the initial acquisition by such Person of Voting
Securities of the Company, individuals who constitute the members of the Board
of Directors of the Company on the date of such acquisition, or at the
commencement of any two year period thereafter (the "Incumbent Board") cease for
any reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date of such acquisition whose election,
or nomination for election by the
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<PAGE> 3
Company's shareholders, was approved by a vote of at least eighty percent (80%)
of the directors comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is named as
a nominee for director, without objection to such nomination) shall be
considered as though such person were a member of the Incumbent Board, or (c)
the shareholders of the Company approve a merger or consolidation of the Company
with any other entity other than (i) a merger or consolidation that would result
in the Voting Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or being converted into
Voting Securities of the entity surviving such merger or consolidation), in
combination with Voting Securities of the Company or such surviving entity held
by a trustee or other fiduciary pursuant to any employee benefit plan of the
Company or such surviving entity or any Subsidiary of the Company or such
surviving entity, at least 75% of the combined voting power of the Voting
Securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
Person becomes the beneficial owner of securities of the Company or the entity
surviving such merger or consolidation representing more of the combined voting
power of the securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation than such Person was the
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beneficial owner of immediately prior to such recapitalization, or (d) the
shareholders of the Company approve an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets.
"Committee" shall mean the Compensation Advisory Committee of
the Board of Directors of the Company as constituted by the Board of Directors
of the Company from time to time.
"Company" shall mean Cabot Medical Corporation.
"Date of Grant" shall mean the date on which an Option is
granted to a Qualified Person by the Company pursuant to Article V hereof.
"Disability" means permanent and total disability as defined
in Section 422(c)(6) of the Internal Revenue Code of 1986, as amended.
"Disinterested Administrators" shall mean those members of the
Committee who are "disinterested persons" within the meaning of Rule 16b-3, as
adopted by the Securities and Exchange Commission on February 8, 1991, pursuant
to the Exchange Act and as it may be amended from time to time hereafter, or any
successor provision.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as it may be amended from time to time, or any successor act or statute.
"Expiration Date" for each Option, shall mean the date fixed
by the Committee pursuant to section 7.1 of the Plan.
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"Market Value," on the Date of Grant of any Option, shall mean
(i) the last sale price (regular way) of the Shares on the Date of Grant or, if
no such sale takes place on such day, the average of the closing bid and asked
prices on the New York Stock Exchange Composite Tape or, if the Shares are not
listed or admitted to trading on the New York Stock Exchange on the Date of
Grant, on the national securities exchange in or nearest the City of New York on
which the Shares are listed or admitted to trading, or (ii) if on the Date of
Grant the Shares are not listed or admitted to trading on any national
securities exchange, the last sale price (regular way) of the Shares on the Date
of Grant or, if no such sale takes place on such day, the average of the highest
reported bid and lowest reported asked prices as furnished by the National
Association of Securities Dealers, Inc. through the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or a similar
organization if NASDAQ is no longer reporting such information, or (iii) if on
the Date of Grant the Shares are not quoted by any such organization, the fair
market value of the Shares on the Date of Grant as determined by the Committee.
"Option" shall mean a right to subscribe for Shares granted to
a Qualified Person pursuant to the Plan.
"Option Holder" shall mean a Qualified Person or former
Qualified Person who holds an Option or another person who has acquired an
Option in accordance with the terms and provisions of the Plan and the Stock
Option Agreement covering such Option.
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<PAGE> 6
"Option Shares" shall mean unissued Shares in respect of which
Options are granted.
"Plan" shall mean the Cabot Medical Corporation Non-
Qualified Stock Option Plan.
"Qualified Person" shall mean any employee or officer
of, or consultant to, the Company or any Subsidiary.
"Retirement" means retirement from active employment with the
Company or any Subsidiary at or after the age established by the Committee from
time to time for purposes of the Plan, or earlier in any particular case with
the consent of the Committee.
"Shares" shall mean the authorized no par value shares
of common stock of the Company.
"Stock Option Agreement" shall mean the Stock Option Agreement
substantially in the form set out in Appendix B to the Plan, as such agreement
may be amended by the Committee from time to time.
"Subscription Price" shall mean the price payable for a Share
on the exercise of an Option, as determined in accordance with Article VI herein
and as it may be adjusted pursuant to section 4.2 hereof.
"Subsidiary" shall mean any corporation which at the time
qualifies as subsidiary of the Company under the definition of "subsidiary
corporation" in Section 424(f) of the Internal Revenue of Code of 1986, as
amended.
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<PAGE> 7
"Termination Date" shall mean the first to occur of the dates
described in Article VII hereof.
ARTICLE II
GENERAL
2.1. The purpose of the Plan is to advance the interest of the
Company and its shareholders by affording to Qualified Persons an opportunity to
acquire or increase their proprietary interest in the Company by the grant to
such Qualified Persons of Options. By thus encouraging such Qualified Persons to
become owners of the common stock of the Company, the Company seeks to motivate,
retain, and attract those highly competent individuals upon whose judgment,
initiative, leadership, and continued efforts the success of the Company in
large measure depends.
2.2. The Company shall pay any and all fees and expenses
incurred in connection with the exercise of any Options hereunder, other than
the Subscription Price, and federal, state or local taxes incident to the
exercise of Options and any professional fees incurred by Option Holders in
connection with the exercise of Options.
ARTICLE III
ADMINISTRATION OF PLAN
3.1. The Plan shall be administered by the Committee. The
Committee may at its discretion grant an Option to any Qualified Person on the
terms set forth herein in respect of the number of Option Shares that the
Committee shall specify.
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<PAGE> 8
3.2. Subject to the limitations contained in Article IV
hereof, the total number of Option Shares for which any Options may be granted
shall be such number as determined by the Committee.
3.3. Subject to the express provisions of the Plan, the
Committee shall also have complete authority to interpret the Plan, to
prescribe, amend, and rescind rules and regulations relating to it, to determine
the details and provisions of each Option, and to make all other determinations
necessary or advisable in the administration of the Plan.
ARTICLE IV
LIMITATIONS
4.1. Subject to adjustment pursuant to the provisions of
Section 4.2 hereof, the total number of Shares which may be issued and sold
hereunder shall not exceed three million eight hundred fifteen thousand two
hundred forty (3,815,240) Shares.
4.2. If and to the extent that the Shares shall be increased
or reduced by reason of a recapitalization, a reclassification, a distribution
or a dividend payable in stock, a rights issue, a sub-division or consolidation
of Shares or an increase or reduction of capital, then the number of Shares
subject to Options, the Subscription Price per Share and the number of Shares
subject to the Plan shall be proportionately adjusted. If the Company is
reorganized or consolidated or merged with another entity, each Option Holder
shall be entitled to receive an Option in exchange for each Option then held by
the
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<PAGE> 9
Option Holder, but only if such Option has not terminated pursuant to Section
8.1 of the Plan and only to the extent such Option has not theretofore been
exercised, covering Shares or such other ownership interest of such reorganized,
consolidated, or merged entity in the same proportion, at an equivalent price
and subject to the same terms and conditions; provided, however, that the
issuance of securities by the Company as consideration for the acquisition by
the Company of securities of another corporation or any other asset shall not be
regarded as a circumstance requiring adjustment.
ARTICLE V
GRANT OF OPTIONS
5.1. Each Option granted hereunder shall be recorded in the
minutes of a meeting of or the written consent of the Committee and evidenced by
a Stock Option Agreement dated as of the Date of the Grant and executed by the
Company and the Option Holder, which Stock Option Agreement shall set forth such
terms and conditions as may be determined by the Committee in its sole
discretion consistent with the Plan.
5.2. Subject to the express provisions of the Plan and the
rules of the Plan, the form, manner of exercise and timing of grants and vesting
of Options and the number of Shares comprised in an Option shall be at the
absolute discretion of the Committee.
5.3. The terms of any Option granted under the Plan
shall include a provision making such Option nontransferable by
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<PAGE> 10
the Option Holder (other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the Internal
Revenue Code of 1986, as amended, or Title I of the Employee Retirement Income
Security Act, or the rules thereunder), unless such requirement shall be
expressly waived or modified by the Committee in writing, and in any event only
upon receipt by the Company of evidence of such transfer, in form and substance
satisfactory to the Company, and recordation of such transfer on the books and
records of the Company.
ARTICLE VI
SUBSCRIPTION PRICE
6.1. The Subscription Price for a Share subject to an Option
granted hereunder shall not be less than the Market Value of the Share on the
Date of Grant of the Option. The Subscription Price shall be adjusted pursuant
to Section 4.2 of the Plan. At the time of exercise of the Option by the Option
Holder, the Subscription Price for such Shares shall be paid in full in United
States dollars.
ARTICLE VII
RIGHT TO EXERCISE AN OPTION
7.1. Each Option granted pursuant to the Plan shall contain
provisions, established by the Committee, setting forth the manner of exercise
of such Option, the date or dates on which and the number of Shares for which
such Option becomes vested and exercisable, and the Expiration Date of such
Option. In no
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<PAGE> 11
event, however, shall any Option granted hereunder be exercisable by its terms
after the expiration of ten (10) years from the Date of Grant thereof. In
addition, if the employment of an Option Holder by the Company or any Subsidiary
is terminated (other than by reason of Retirement, death or Disability), each
Option of such Option Holder shall be exercisable prior to its Expiration Date
(subject to Section 8.1 hereof) only if, and only to the extnet that, such
Option, in accordance with its terms, is vested and exercisable on the date on
which the employment of such Option Holder by the Company or such Subsidiary is
terminated. Each Option shall automatically be vested and exercisable in full
(subject to termination pursuant to Section 8.1) if the employment of the Option
Holder by the Company or any Subsidiary is terminated by the Company or such
Subsidiary (other than by reason of death or Disability) within six (6) months
after the occurrence of any Change in Control.
ARTICLE VIII
TERMINATION OF OPTION
8.1. Except as otherwise stated herein, each Option held by a
Qualified Person shall terminate on the first to occur of the following dates
(the "Termination Date"):
(a) The expiration of thirty (30) calendar days
after the date on which the employment of such Qualified Person by the Company
or any Subsidiary is terminated by the Company or such Subsidiary for cause
(except if such termination occurs
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<PAGE> 12
within six (6) months after the occurrence of any Change in Control.
(b) The expiration of ninety (90) calendar days
after the date on which the employment of such Qualified Person by the Company
or any Subsidiary is terminated by such Qualified Person (except if such
termination occurs by reason of Retirement, death or Disability).
(c) The Expiration Date.
The granting of an Option to a Qualified Person does not alter
in any way the existing rights of the Company or any Subsidiary to terminate the
employment of such Qualified Person with or without cause and does not create an
actual or implied contract of employment.
Except as otherwise stated herein, each Option held by an
Option Holder who is not a Qualified Person shall terminate on the Expiration
Date or on such earlier date as the Committee may prescribe in the Stock Option
Agreement covering such Option.
If an Option is to terminate on either of the dates described
in subsections (a) and (b) of this Section 8.1 or on a date prior to the
Expiration Date pursuant to any provision of the Stock Option Agreement covering
such Option, the Option may be exercised prior to the Termination Date only if,
and only to the extent that, the Option, in accordance with its terms, is vested
and exercisable (i) on the date on which the employment of the Qualified Person
by the Company or any Subsidiary is terminated or (ii) on the date prescribed by
the Stock Option
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<PAGE> 13
Agreement covering such Option, if other than the date described in clause (i)
of this sentence.
ARTICLE IX
EXERCISE OF OPTIONS AND SHAREHOLDERS RIGHTS
9.1 An Option may be exercised only for full Shares.
No fractional Shares shall be issued.
9.2 No Option may be exercised in whole or in part and the
Company shall not be required to issue or deliver any certificate evidencing
Shares purchasable upon the exercise of any Option prior to fulfillment of all
of the following conditions:
(a) receipt by the Secretary of the Company from
the Option Holder or his executor or administrator of a written notice of
exercise of the Option specifying the number of Shares for which the Option is
to be exercised, substantially in the form set out as Exhibit 1 to such Option
Holder's Stock Option Agreement, together with full payment of the Subscription
Price per Share in United States dollars for each Share for which the Option is
to be exercised;
(b) if the Option is to be exercised by an
executor or administrator of the Option Holder, receipt by the Secretary of the
Company from such executor or administrator of evidence satisfactory to the
Company of such person's right to exercise the Option;
(c) (i) receipt by the Secretary of the Company
from the Option Holder or his executor or administrator of such
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<PAGE> 14
documents as the Company shall deem necessary to determine whether registration
of the Shares is required under the Securities Act of 1933 or to comply with
such act or any other law and (ii) the completion of any such registration or
other qualification of such Shares under any federal or state law or under the
rulings or regulations of the Securities and Exchange Commission or any other
governmental regulatory body that the Committee shall in its sole discretion
deem necessary or advisable;
(d) receipt by the Company of any approval or
other consent from any federal, state of foreign governmental agency that the
Committee shall in its sole discretion deem necessary or advisable;
(e) if requested by the Company, receipt by the
Secretary of the Company from the Option Holder or his executor or administrator
of a letter representing that the Shares to be acquired upon exercise of the
Option are to be acquired for the account of the Option Holder or for the
account of his executor or administrator for investment and not with a view to
distribution of such Shares; and
(f) for issuance of certificates evidencing Shares
for which the Option has been exercised, the lapse of such reasonable period of
time following the exercise of the Option as the Committee from time to time may
establish for reasons of administrative convenience.
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<PAGE> 15
9.3 If notice is duly given of a Resolution for the voluntary
winding up of the Company an Option Holder may forthwith and before the
commencement of the winding-up exercise his Option up to the full extent to
which it remains vested and unexercised (but so that such exercise shall be
conditional upon such Resolution being passed) provided that an Option shall not
be exercisable later than the Termination Date.
9.4 No Option Holder shall have any rights as a shareholder
with respect to Shares subject to an Option until the date of exercise of such
Option in accordance with the Plan and the issuance of the Shares for which the
Option has been exercised. All Shares acquired by an Option Holder pursuant to
the Plan shall be subject to the restrictions contained in the Certificate of
Incorporation and By-Laws of the Company, as in effect on the date hereof and as
they may be amended or restated from time to time, and (subject thereto) shall
be effective on the date of issue thereof and rank pari passu with the Shares of
the Company then issued and outstanding (including the right to receive all
dividends or other distributions thereafter declared, paid or made by reference
to a record date falling on or after the date of issue thereof). Except for
adjustments to be made to Options pursuant to the terms of the Plan, no
adjustment shall be made for dividends or other rights that have accrued to
shareholders of the Company prior to the date of issue of such Shares.
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<PAGE> 16
ARTICLE X
TERMINATION, AMENDMENT, AND MODIFICATION OF PLAN
10.1. The Board of Directors of the Company may at any time
terminate the Plan and may at any time and from time to time and in any respect
amend or modify the Plan; provided, that no termination, amendment, or
modification of the Plan shall in any manner affect any Option theretofore
granted under the Plan without the consent of the Option Holder or (in the event
of his death) his executors and administrators.
10.2. Notwithstanding anything herein to the contrary, no
variation of the number of Shares comprised in an Option or the Subscription
Price thereof shall be made pursuant to any of the provisions contained in the
Plan until the auditors of the Company shall have notified the Committee in
writing that such variation is, in their opinion, fair and reasonable.
ARTICLE XI
MISCELLANEOUS
11.1. The adoption of the Plan shall not affect any other
stock option or incentive stock option or other compensation plans in effect for
the Company or any Subsidiary, nor shall the Plan preclude the Company or any
Subsidiary from establishing any other forms of incentive or other compensation
for employees of the Company or any Subsidiary.
11.2. The Plan shall be binding upon the successors
and assigns of the Company.
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<PAGE> 17
11.3. The place of administration of the Plan shall
conclusively be deemed to be within the Commonwealth of Pennsylvania and the
validity, construction, interpretation, administration, and effect of the Plan
and of its rules and regulations and the rights of any and all personnel having
or claiming to have an interest therein or thereunder shall be governed by and
determined exclusively and solely in accordance with the laws of the State of
New Jersey.
11.4. No member of the Board of Directors of the Company shall
be liable, in respect to this Plan, for any act whether of commission or
omission taken by any other member or by any officer, agent, or employee of the
Company, any Subsidiary or any affiliated company, nor, except in circumstances
involving his own bad faith, for anything done or omitted to be done by himself.
ARTICLE XII
EXCHANGE ACT COMPLIANCE
12.1. Notwithstanding anything to the contrary herein, each
grant of an Option to an officer of the Company and the terms of such Option
shall be subject to approval of the Disinterested Administrators, in their sole
discretion.
12.2. With respect to persons who are subject to Section 16 of
the Exchange Act, transactions under the Plan are intended to comply with Rule
16b-3 or its successor provisions under the Exchange Act. To the extent that any
provision of the Plan or action by the Committee fails to so comply, it shall be
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<PAGE> 18
deemed null and void to the extent permitted by law and deemed advisable by the
Committee.
Attest: Cabot Medical Corporation
By:/s/Harry Brener By:/s/Warren G. Wood
--------------- ------------------------
Harry Brener Warren G. Wood
Secretary Chief Executive Officer
(SEAL)
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<PAGE> 1
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304-1050
Exhibit 5.1
August 28, 1995
Circon Corporation
6500 Hollister Avenue
Santa Barbara, CA 93117
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about August 28, 1995 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 1,069,446 shares of Common Stock reserved
for issuance under the Cabot Medical Corporation 1985 Incentive Stock Option
Plan, the Cabot Medical Corporation Non-Qualified Stock Option Plan and the
Cabot Medical Corporation Independent Directors' Non-Qualified Stock Option Plan
(the "Plans"). As your legal counsel, we have examined the proceedings proposed
to be taken by you in connection with the sale and issuance of said shares.
It is our opinion that, upon completion of the proceedings to be taken
prior to issuance of the shares pursuant to the Prospectus constituting part of
the Registration Statement on Form S-8 and upon completion of the proceedings
being taken in order to permit such transactions to be carried out in accordance
with the securities laws of the various states where required, the shares, when
issued and sold in the manner referred to in the Plans and the agreements which
accompany the Plans, and in accordance with the Company's Articles of
Incorporation, will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said Registration
Statement and further consent to the use of our name wherever appearing in said
Registration Statement, and amendments thereto.
Very truly yours,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
/s/ WILSON, SONSINI, GOODRICH & ROSATI
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Circon Corporation of our report dated February 6, 1995
with respect to the financial statements and schedules of Circon Corporation
included and/or incorporated by reference in its Annual Report on Form 10-K for
the fiscal year ended December 31, 1994 as filed with the Securities and
Exchange Commission.
ARTHUR ANDERSEN LLP
/s/ ARTHUR ANDERSEN LLP
Stamford, Connecticut
August 25, 1995
