As filed with the Securities and Exchange Commission on
March 25, 1996
Registration No.:
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933
BALLARD MEDICAL PRODUCTS
(Exact name of registrant as specified in its charter)
UTAH
(State of Incorporation)
87-0340144
(IRS Employer Identification Number)
12050 LONE PEAK PARKWAY
DRAPER, UTAH 84020
(Address of principal executive offices)
1995 INCENTIVE STOCK OPTION PLAN
(Full title of the Plan)
Adopted May 12, 1995
DALE H. BALLARD, President and Chief Executive Officer
BALLARD MEDICAL PRODUCTS
12050 Lone Peak Parkway
Draper, Utah 84020
(801) 572-6800
(Name, address and telephone number of agent for services)
Approximate date of commencement of proposed sale to public:
As soon as practicable after the effective date
of the Registration Statement
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount to Offering Aggregate Amount of
to be be Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee
<S> <C> <C> <C> <C>
Common
Stock, $0.10
par value 700,000 $17.31 $12,117,000 $4,178.28
</TABLE>
In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, this registration statement also
covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein.
(1) Estimated (pursuant to Rule 457(c) and (h)) solely for
the purpose of calculating the registration fee based
upon the average of the high and low prices of the
registrant's Common Stock quoted by the New York Stock
Exchange on March 21, 1996.
(2) The registration fee is calculated as follows:
$12,117,000 x 1/29 x .01 = $4,178.28
Total number of pages: 21
Index to Exhibits appears on page: 7
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference
into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1995, filed December 12,
1995;
(b) The Company's Quarterly Report on Form 10-Q
for the quarter ended December 31, 1995, filed February 14,
1996; and
(c) The Description of Common Stock contained in
the Company's Registration of Securities on the Form 8-A
(page 2) pursuant to Section 12(b) of the Securities
Exchange Act of 1934, filed with the Commission on September
3, 1993.
In addition, all documents filed subsequent to the date
hereof by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, 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 such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
This Registration Statement has been prepared, in
substantial part, by Paul W. Hess, General Counsel for the
Company. Mr. Hess has also given his opinion on the
validity of the securities being registered. Mr. Hess is
the beneficial owner of 1,466 shares of the Company's Common
Stock, together with 45,000 incentive stock options which
were granted to Mr. Hess under various plans, including
7,000 options under the 1995 Incentive Stock Option Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The general effect of the Utah statute under which any
director or officer of the Company is insured or indemnified
in any manner against liability which he or she may incur in
his or her capacity as an officer or director of the
Company, set forth in Section 16-10a-901 through 909, Utah
Code Annotated (1992, as amended), which provides generally
as follows:
The Company may indemnify any officer or director
against liability incurred in any threatened, pending, or
completed action, suit or proceeding (whether civil,
criminal, administrative or investigative, and whether
formal or informal), if: (a) his or her conduct was in good
faith; and (b) he or she reasonably believed that his or her
conduct was in, or not opposed to, the corporation's best
interest; and (c) in the case of any criminal proceeding, he
or she had no reasonable cause to believe his or her conduct
was unlawful. The determination as to whether in a specific
case indemnification of a director or officer is permissible
(i.e., whether the director or officer has met the above
applicable standard of conduct), is generally to be made by
the Board of Directors by a majority vote. The Company may
not indemnify a director or officer: (1) in connection with
a proceeding by or in the right of the Company in which the
director or officer was adjudged liable to the Company; or
(2) in connection with any other proceeding charging that
the director or officer derived an improper personal
benefit, whether or not involving action in his or her
official capacity, in which proceeding he or she was
adjudged liable on the basis that he or she derived an
improper personal benefit. Indemnification permitted in
connection with a proceeding by or in the right of the
Company is limited to reasonable expenses incurred in
connection with the proceeding.
The Company is required to indemnify a director or
officer who is successful, on the merits or otherwise, in
the defense of any proceeding, or in the defense of any
claim, issue or matter in the proceeding, to which he or she
was a party because he or she is or was a director of the
Company, against reasonable expenses incurred in connection
with the proceeding or claim with respect to which he or she
has been successful. The Company may purchase and maintain
liability insurance on behalf of directors, officers,
employees, fiduciaries, and agents of the Company, whether
or not the Company would have power to indemnify them
against liability.
The general effect of the Bylaws of the Company under
which any director or officer of the Company is insured or
indemnified in any manner against liability which he or she
may incur in his or her capacity as a director or officer is
set forth in Article VIII of the Company's Bylaws, which
contains provisions almost identical to the provisions of
Utah Code Annotated, Section 16-10a-901 et seq., summarized
above. In addition, in November, 1993, the Board of
Directors authorized and directed the Company to enter into
(and the Company has executed) an Indemnification Agreement
with each director and executive officer of the Company, by
which the Company is contractually obligated to indemnify
directors and officers in accordance with the standards,
terms, and conditions of Article VIII of the Company's
Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description of Exhibits
4.1 Restated Certificate of Incorporation, dated
September 18, 1987.
4.2 Articles of Amendment, dated July 10, 1991.
4.3 Articles of Amendment, dated September 21,
1993.
4.4 Amended and Restated Bylaws of Ballard
Medical Products, dated October 12, 1992.
4.5 1995 Incentive Stock Option Plan.
4.6 Example of Incentive Stock Option Agreement
intended to be used under the 1995 Incentive
Stock Option Plan.
5 Opinion of counsel as to legality of
securities being registered.
15 Not applicable.
23.1 Consent of Independent Auditors.
23.2 Consent of Counsel (contained in
Exhibit 5).
24 Power of Attorney (contained on signature
page).
27 Not applicable.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(1) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(2) 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 statements; and
(3) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement.
(b) That, for the purpose of determining any liability
under the Securities Act of 1933, 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.
(c) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
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.
Insofar as indemnification of 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant, Ballard Medical Products, a
corporation organized and existing under the laws of the
State of Utah, 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 Salt Lake City, State of Utah, on this 25th
day of March, 1996.
BALLARD MEDICAL PRODUCTS
By: Dale H.Ballard,
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints Dale
H. Ballard, his attorney-in-fact, 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 said
attorney-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 by the
following persons in the capacities indicated and on the
dates indicated.
March 25, 1996 Dale H. Ballard
President, Chief Executive Officer
and Chairman of the Board
March 25, 1996 Kenneth R. Sorenson
Treasurer and Chief Financial Officer
March 25, 1996 E. Martin Chamberlain
Director and Secretary
March 25, 1996 Dale H. Ballard, Jr.
Director
March 25, 1996 Paul W. Hess
Director
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE NO.
<S> <C> <C>
4.1 Restated Certificate of Incorporated by
Incorporation, dated reference from
September 18, 1987 July 10, 1991 Form S-8
Registration Statement
Exhibit 4.1
Registration No. 33-41720
4.2 Articles of Amendment, Incorporated by
to Articles of Incorporation reference from
dated July 10, 1991 Exhibit 4.2 to the
Registration Statement
on Form S-3, filed
November 13, 1991,
Registration No. 33-43910
4.3 Articles of Amendment, Incorporated by
to Articles of Incorporation reference from
Dated September 21, 1993 Exhibit 4.3 to the
Registration Statement
on Form S-8, filed
December 20, 1993
Registration No. 33-73194
4.4 Amended and Restated Bylaws Incorporated by
of Ballard Medical Products, reference from
dated October 12, 1992 Exhibit 3.3 to
Form 10-K filed
December 24, 1992
4.5 1995 Incentive Stock Option p. 7
Plan
4.6 Example of Incentive Stock
Option Agreement intended to
be used under the 1995
Incentive Stock Option Plan p. 13
5 Opinion of counsel as to
legality of securities being
registered p. 20
23.1 Consent of Independent Auditors p. 21
23.2 Consent of Counsel Contained in
Exhibit 5
24 Power of Attorney Contained on
signature page
</TABLE>
EXHIBIT 4.5
BALLARD MEDICAL PRODUCTS
1995 INCENTIVE STOCK OPTION PLAN
Adopted effective May 12, 1995
1. GRANT OF OPTIONS. The two stock Option
Committees, appointed by the Board of Directors of BALLARD
MEDICAL PRODUCTS (the "Company"), a corporation organized
under the laws of the State of Utah, with its principal
place of business located at 12050 Lone Peak Parkway,
Draper, Utah 84020, are hereby authorized to issue stock
options from time to time on the Company's behalf to any one
or more persons who, at the date of such grant, are
employees of the Company or a subsidiary of the Company and
meet the requirements contained in the remaining portions of
this 1995 Incentive Stock Option Plan (the "Plan"). Stock
Option Committee A ("Committee A") is authorized to grant
options to employees who are not also officers or directors
of the Company. Stock Option Committee B ("Committee B") is
authorized to grant options only to employees who are also
officers or Directors of the Company. Any option to be
granted pursuant to this Plan must be granted within ten
(10) years from the date hereof.
2. AMOUNT OF STOCK AVAILABLE TO THIS PLAN. The
aggregate amount of stock which may be purchased pursuant to
options granted under this Plan shall be 700,000 shares of
the Company's Common Stock (the "Stock"), said number to be
automatically increased or decreased, as the case may be, by
any increase or decrease in the number of shares of Stock
outstanding because of any:
(a) change in par value;
(b) split up, or reverse split;
(c) reclassification, or
(d) distribution of a dividend payable in stock.
3. ELIGIBLE EMPLOYEES. This Plan is available, at
the discretion of the Stock Option Committees, to all
employees of the Company and all employees of the Company's
subsidiaries.
4. PARTICIPATION. Subject to the express provisions
of the Plan, the Stock Option Committees shall:
(a) select from employees the individuals to whom
options shall be granted;
(b) determine the number of shares to be subject
to each option granted; and
(c) grant such options to such individuals.
5. PARTICIPATION BY DIRECTORS AND OFFICERS. With
respect to any and all options granted under the Plan to
employees who are either officers or Directors of the
Company, the decisions as to the selection of the officer or
Director to whom stock options may be granted and the number
or maximum number of shares which may be covered by stock
options granted to any such officer or Director shall be
made only by Committee B. All the members of which
Committee B shall be "disinterested persons" within the
meaning of Reg. Section 240.16b-3(c)(2)(i), promulgated
under the Securities Exchange Act of 1934.
6. NONTRANSFERABILITY. All options granted under
this Plan shall be nontransferable by the optionee, other
than by will or the laws of descent and distribution upon
death, and shall be exercisable during the optionee's
lifetime only by the optionee or by the optionee's guardian
or legal representative.
7. CONTINUED EMPLOYMENT REQUIREMENT. Any option
granted pursuant to this Plan may contain such provisions
established by the applicable Stock Option Committee as the
Committee deems appropriate and desirable regarding the
manner of exercise of such option, subject to the other
provisions of this Plan. No option granted under this Plan
may be exercised in whole or in part unless the optionee
continues to be an employee of the Company or a subsidiary
for a period of at least one (1) year following the date
such option is granted. In his discretion, the President of
the Company may extend this one-year continued employment
period up to three years. However, the occurrence of either
of the following events will cause all of an optionee's
options to become immediately and fully exercisable,
notwithstanding the above requirement:
(a) The death of the optionee; or
(b) The occurrence of a Business Combination
which is not approved by a two-thirds vote of the Continuing
Directors.
For purposes of this paragraph, the following
definitions apply:
(c) "Acquiring Person" shall mean any individual,
corporation (other than this corporation or any of its
subsidiaries), partnership, other person or entity which,
together with its affiliates and associates (as defined in
the Exchange Act or the rules and regulations promulgated
thereunder), and together with any other individual,
corporation (other than the Company or any of its
subsidiaries), partnership, person or entity with which it
or they have any agreement, arrangement, or understanding
with respect to acquiring, holding, voting, or disposing of
the Company's stock, beneficially owns (within the meaning
of the Exchange Act or the rules and regulations promulgated
thereunder) in the aggregate 10% or more of the outstanding
Voting Stock of the Company. "Acquiring Person" shall also
include any assignee of, or person or entity which has
succeeded to any shares of the Company's stock which were at
any time prior to the date of assignment or succession
beneficially owned by, a 10% Voting Stock owner, or an
affiliate or associate of a 10% Voting Stock owner, if such
assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of
1933, as amended. A person or entity, its affiliates and
associates, assignees and successors, and all such other
persons or entities with whom they have any such agreement,
arrangement, or understanding shall be deemed a single
Acquiring Person for purposes of this paragraph. Also for
purposes of this paragraph, the Continuing Directors shall
by majority vote have the power to determine, on the basis
of information known to the Board, if and when there is an
Acquiring Person. Any such determination shall be
conclusive and binding for all purposes of this paragraph,
provided such determination is reasonable and made in
accordance with applicable law.
(d) "Business Combination" shall mean:
(i) any merger, consolidation, or share
exchange of the Company or a subsidiary of the Company with
or into an Acquiring Person;
(ii) any purchase for cash and/or securities
by an Acquiring Person of 20% or more of the Company's
outstanding shares of Voting Stock (including the
purchase(s) which cause(s) the purchaser to become an
Acquiring Person hereunder);
(iii) any sale, lease, exchange, transfer or
other disposition (including without limitation, a mortgage
or other security device) in a single transaction or related
series of transactions, of all or any Substantial Part (as
hereinafter defined) of the assets either of the Company
(including without limitation, any voting securities of a
subsidiary) or of a subsidiary of the Company to or with an
Acquiring Person;
(iv) any merger or consolidation of an
Acquiring Person with or into the Company or a subsidiary of
the Company;
(v) any sale, lease, exchange, transfer or
other disposition (including without limitation, a mortgage
or other security device) in a single transaction or related
series of transactions, of all or any Substantial Part of
the assets of an Acquiring Person to the Company or a
subsidiary of the Company;
(vi) the issuance or transfer of any
securities of the Company or a subsidiary of the Company to
an Acquiring Person;
(vii) the adoption of any plan or proposal for
the liquidation or dissolution of the Company proposed,
directly or indirectly, by or on behalf of, or pursuant to
any agreement, arrangement or understanding (whether or not
in writing) with an Acquiring Person;
(viii) any merger or consolidation of the
Company with a subsidiary of the Company proposed by or on
behalf of an Acquiring Person;
(ix) any reclassification of securities
(including without limitation, any stock split, stock
dividend, or other distribution of stock in respect of
stock, or any reverse stock split), or recapitalization of
the Company or any merger or consolidation of the Company
with any subsidiary of the Company, or any other transaction
(whether or not with or into, or otherwise involving the
Acquiring Person), proposed by, on behalf of, or pursuant to
any agreement, arrangement or understanding (whether or not
in writing) with the Acquiring Person or any affiliate or
associate of the Acquiring Person which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of stock of the Company or
any subsidiary of the Company which is directly or
indirectly owned by the Acquiring Person, except as a result
of immaterial fractional share adjustments;
(x) any agreement, contract, or other
arrangement providing for any of the transactions described
in this definition of Business Combination; and
(xi) any other transaction with an Acquiring
Person which requires the approval of the Company's
stockholders under the Utah Revised Business Company Act.
A person who is an Acquiring Person as of:
(xii) the time any definitive agreement
relating to a Business Combination is entered into;
(xiii) the record date for the determination of
stockholders entitled to notice of and to vote on a Business
Combination; or
(xiv) immediately prior to the consummation of
a Business Combination,
shall be an Acquiring Person for purposes of this
definition.
(e) "Continuing Director" shall mean any
director of the Company who was a director prior to the time
the Acquiring Person became such, and any other director
whose election or appointment as a director was recommended
or approved by a majority vote of the Continuing Directors.
A majority or two-thirds vote of the Continuing Directors
shall mean, respectively, a vote of the majority of the
Continuing Directors, a vote of or two-thirds of the
Continuing Directors, then in office, provided that at least
two Continuing Directors are then in office and participate
in such vote.
(f) "Exchange Act" shall mean the Securities
Exchange Act of 1934.
(g) "Substantial Part" shall mean an amount of
assets having an aggregate fair market value of at least
$500,000.
(h) "Voting Stock" shall mean Common Stock and
all other securities of the Company entitled to vote
generally for the election of directors.
8. OTHER RESTRICTIONS.
(a) In no event will any option granted to a
person be, by its terms, exercisable after the expiration of
ten (10) years from the date such option is granted, and any
option granted pursuant to this Plan and not exercised
within said ten (10)-year period shall be void; provided,
however, that such period shall be only five (5) years,
instead of ten (10), for an optionee who, immediately before
the grant of the option, owns more than ten percent (10%) of
the voting power of all classes of the Company's Stock.
(b) No option granted under this Plan or any
part hereof may be exercised more than three (3) months
after the optionee ceases to be an employee of the Company.
However, if the optionee ceases employment with the Company
or subsidiary because of permanent and total disability,
then an option granted under this Plan may be exercised
within one (1) year of such cessation of employment so long
as the optionee has been an employee of the Company or
subsidiary for at least the period specified in the Stock
Option Agreement entered into by the Company and said
optionee. For purposes of this Plan, the term "permanent
and total disability" shall mean that the optionee is unable
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not
less than twelve months.
(c) No option or installment thereof shall be
exercisable except in respect of whole shares, and
fractional share interests shall be disregarded. No fewer
than one hundred (100) shares may be purchased at one time
unless the number purchased is the total number which may be
purchased at said time under the option.
9. PURCHASE PRICE. For any option granted hereunder,
the purchase price for a share of Stock shall be determined
by the applicable Stock Option Committee but shall not be
less than (but may be greater than) the fair market value of
the Stock on the date such option is granted. The fair
market value of such Stock shall be determined in accordance
with any reasonable valuation method, including the
valuation methods described in Treasury Regulations.
However, in the case of any person then owning more than ten
percent (10%) of the voting power of all classes of the
Company's capital stock, options will be granted at a
purchase price of not less than one hundred ten percent
(110%) of the fair market value of the Stock on the date
such option is granted. In either case, the applicable
Stock Option Committee will use good faith to determine the
fair market value of the Stock.
For so long as the Company's Stock is traded on the New
York Stock Exchange, the fair market value shall mean the
reported closing price on the last trading day preceding the
grant of the option. If the Company's Stock is traded in
the over-the-counter market, the fair market value shall
mean the reported closing price on the last trading day
preceding the grant of the option.
10. PAYMENT OF PURCHASE PRICE WITH COMPANY STOCK. The
optionee may, if the optionee chooses, pay the purchase
price to exercise an option granted under this Plan with
other shares of the Company's stock which the optionee owns.
In such cases, credit will be given the optionee for the
fair market value of such outstanding shares used in
payment, as of the date of payment, less any applicable
brokerage fees. The Company's Board of Directors will use
good faith to determine the fair market value of the stocks
thus used in payment as of the date of such payment.
11. RECLASSIFICATION, CONSOLIDATION, OR MERGER.
(a) If options issued under this Plan are
outstanding when the total number of issued shares of the
Stock is increased or decreased by any:
(i) change in par value;
(ii) split up, or reverse split;
(iii) reclassification; or
(iv) distribution of a dividend payable in
stock;
then the number of shares subject to such options and the
option price per share shall be proportionately adjusted.
(b) If the Company is reorganized, consolidated,
or merged with another corporation (regardless of which
entity will be the surviving corporation), the optionees of
any options then outstanding pursuant to this Plan shall be
entitled to receive options covering shares of the surviving
corporation:
(i) in substantially the same proportion;
(ii) at a substantially equivalent option
price; and
(iii) subject to the same conditions as their
prior, outstanding options granted under
this Plan.
12. AMENDMENTS TO THIS PLAN. The Board of Directors
is hereby authorized to amend this Plan as necessary to
comply with state and federal laws or as the Board deems to
be necessary or appropriate for the benefit of the Company,
its subsidiaries, or their employees.
13. DATE OF GRANT OF OPTIONS. The date of grant of an
option shall be the day of the grant of the option by the
applicable Stock Option Committee; provided, however, that
if the appropriate resolution of the Stock Option Committee
indicates that an option is to be granted as of and on some
future date, then the date of grant shall be such future
date. The applicable Stock Option Committee may also select
a past effective date for option grants, so long as the
Committee action is within a reasonable period of time
following the effective date of the grant.
14. STOCK OWNERSHIP. No optionee shall be entitled to
the privileges of Stock ownership as to any shares of Stock
not actually issued and delivered to such optionee in
certificate form.
15. STOCKHOLDER APPROVAL; EFFECTIVE DATE. This Plan
is subject to approval by the Shareholders of the Company
and will not remain in force unless approved by the
Shareholders within twelve (12) months after the date the
Plan is adopted.
16. STOCK RESERVE. The Company will, at all times
during the term of this Plan, reserve and keep available
such number of authorized but unissued shares of its Stock
and/or Treasury Stock as will be sufficient to satisfy the
requirements of this Plan. The Company will pay all fees
and expenses incurred by the Company in connection with the
exercise of options granted under this Plan. If any option
shall expire for any reason without having been exercised in
full, the unpurchased shares subject thereto shall again be
available for purposes of the Plan.
17. INTERPRETATION OF PLAN. Options granted pursuant
to the Plan are intended to be "Incentive Stock Options"
within the meaning of Section 422 of the Internal Revenue
Code (the "Code"), and the Plan shall be construed to
implement that intent. If all or any part of an option
shall not be deemed an "Incentive Stock Option" within the
meaning of Section 422 of the Code, said option shall
nevertheless be valid and carried into effect.
It is also intended that the Plan and its provisions
satisfy the conditions and requirements of Reg. Section
240.16b-3 promulgated by the Securities and Exchange
Commission under Section 16(b) of the Securities Exchange
Act of 1934, both before and after May 1, 1991 (the
effective date of Release No. 34-28869).
18. OTHER TERMS. Any option granted under this Plan
may contain such other and additional terms as are deemed
necessary or desirable by the applicable Stock Option
Committee, or the President of the Company, so long as such
terms do not materially differ from the terms of this Plan.
CERTIFICATE OF SECRETARY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned does hereby certify that he is the
Secretary of BALLARD MEDICAL PRODUCTS, a Utah corporation;
that the above and foregoing 1995 Incentive Stock Option
Plan was duly and regularly adopted as such by the Board of
Directors of the Company by unanimous Consent Resolution
dated effective May 12, 1995; that said Plan, as adopted by
the Board, was duly approved by a majority of Shareholders
of the Company at the Annual Meeting of Shareholders held
January 22, 1996; and that the above 1995 Incentive Stock
Option Plan is now in full force and effect.
Dated this 29th day of February, 1996.
E. Martin Chamberlain,
Secretary
(Corporate Seal)
EXHIBIT 4.6
NOTHING CONTAINED IN THIS AGREEMENT IS INTENDED TO ALTER THE AT-
WILL EMPLOYMENT RELATIONSHIP BETWEEN OPTIONEE AND THE COMPANY.
EITHER PARTY MAY TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY
TIME, FOR ANY REASON, OR FOR NO REASON AT ALL.
OPTIONEE SHOULD CONSULT HIS OR HER OWN TAX ADVISOR FOR A
DETERMINATION OF THE PROPER TAX TREATMENT OF THIS OPTION UNDER
FEDERAL AND STATE INCOME TAX LAWS.
BALLARD MEDICAL PRODUCTS
INCENTIVE STOCK OPTION AGREEMENT
(under 1995, 1994, 1993, 1992, 1991, and 1990
Incentive Stock Option Plans)
THIS AGREEMENT (the "Agreement") is made effective ---------
-, 199--, by and between BALLARD MEDICAL PRODUCTS, a corporation
organized under the laws of the State of Utah (the "Company"),
and --------------, an employee of the Company ("Optionee").
WHEREAS, Optionee is an employee of the Company, and the
Company desires to grant Optionee an option to purchase shares of
the Company's common stock (the "Stock"), in accordance with one
or more of six incentive stock option plans of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and
promises hereafter set forth, it is agreed by and between the
parties as follows:
1. GRANT OF OPTION.
(a) The Company hereby grants to Optionee the right
and option (the "Option") to purchase upon and subject to the
terms and conditions of the Applicable Plan or Plans (as defined
below), all or part of the following shares of Stock at a
purchase price of $10.75 per share (the "Option Price"), in the
manner and subject to the terms and conditions set forth herein:
Continued
Employment
Required (following
the effective date
Option to of this
Purchase Applicable Plan Agreement) for
-- shares under 1995 Plan 1 year
-- shares under 19-- Plan -- years
-- shares under 19-- Plan -- years
(b) The effective date of this grant by the applicable
Stock Option Committee of the Board of Directors is the same as
the effective date of this Agreement first shown above.
(c) For all purposes of this Agreement, the term
"Applicable Plan" shall mean the incentive stock option plan or
plans under which Optionee is being granted an option to purchase
Stock, as identified in paragraph (a) above.
(d) The Option Price is not less than one hundred
percent (100%) of the fair market value of such stock as of the
effective date of action of the Stock Option Committee granting
this Option.
2. CONTINUED EMPLOYMENT REQUIREMENT. This Option may be
exercised, in whole or in part, at any time only after Optionee
has served as an employee of the Company following the effective
date of this Agreement for at least the period shown in paragraph
1(a) above. However, the occurrence of either of the following
events will cause the Option to become immediately and fully
exercisable, notwithstanding the above requirement:
(a) The death of Optionee; or
(b) The occurrence of a Business Combination (as
defined below) which is not approved by a two-thirds vote of the
Continuing Directors (as defined below).
For purposes of this Section, the following definitions
apply:
(c) "Acquiring Person" shall mean any individual,
corporation (other than this corporation or any of its
subsidiaries), partnership, other person or entity which,
together with its affiliates and associates (as defined in the
Exchange Act or rules and regulations promulgated thereunder),
and together with any other individual, corporation (other than
the Company or any of its subsidiaries), partnership, person or
entity with which it or they have any agreement, arrangement, or
understanding with respect to acquiring, holding, voting, or
disposing of the Company's Stock, beneficially owns (within the
meaning of the Exchange Act or rules and regulations promulgated
thereunder) in the aggregate 10% or more of the outstanding
Voting Stock of the Company. "Acquiring Person" shall also
include any assignee of, or person or entity which has succeeded
to any shares of the Company's stock which were at any time prior
to the date of assignment or succession beneficially owned by, a
10% Voting Stock owner, or an affiliate or associate of a 10%
Voting Stock owner, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions
not involving a public offering within the meaning of the
Securities Act of 1933, as amended. A person or entity, its
affiliates and associates, assignees and successors, and all such
other persons or entities with whom they have any such agreement,
arrangement, or understanding shall be deemed a single Acquiring
Person for purposes of this paragraph. Also for purposes of this
paragraph, the Continuing Directors shall by majority vote have
the power to determine, on the basis of information known to the
Board, if and when there is an Acquiring Person. Any such
determination shall be conclusive and binding for all purposes of
this paragraph, provided such determination is reasonable and
made in accordance with applicable law.
(d) "Business Combination" shall mean:
(i) any merger, consolidation, or share exchange
of the Company or a subsidiary of the Company with or into an
Acquiring Person;
(ii) any purchase for cash and/or securities by an
Acquiring Person of 20% or more of the Company's outstanding
shares of Voting Stock (including the purchase(s) which cause(s)
the purchaser to become an Acquiring Person hereunder);
(iii) any sale, lease, exchange, transfer or other
disposition (including without limitation, a mortgage or other
security device) in a single transaction or related series of
transactions, of all or any Substantial Part (as hereinafter
defined) of the assets either of the Company (including without
limitation, any voting securities of a subsidiary) or of a
subsidiary of the Company to or with an Acquiring Person;
(iv) any merger or consolidation of an Acquiring
Person with or into the Company or a subsidiary of the Company;
(v) any sale, lease, exchange, transfer or other
disposition (including without limitation, a mortgage or other
security device) in a single transaction or related series of
transactions, of all or any Substantial Part of the assets of an
Acquiring Person to the Company or a subsidiary of the Company;
(vi) the issuance or transfer of any securities of
the Company or a subsidiary of the Company to an Acquiring
Person;
(vii) the adoption of any plan or proposal for the
liquidation or dissolution of the Company proposed, directly or
indirectly, by or on behalf of, or pursuant to any agreement,
arrangement or understanding (whether or not in writing) with an
Acquiring Person;
(viii) any merger or consolidation of the Company
with a subsidiary of the Company proposed by or on behalf of an
Acquiring Person;
(ix) any reclassification of securities (including
without limitation, any stock split, stock dividend, or other
distribution of stock in respect of stock, or any reverse stock
split), or recapitalization of the Company or any merger or
consolidation of the Company with any subsidiary of the Company,
or any other transaction (whether or not with or into, or
otherwise involving the Acquiring Person), proposed by, on behalf
of, or pursuant to any agreement, arrangement or understanding
(whether or not in writing) with the Acquiring Person or any
affiliate or associate of the Acquiring Person which has the
effect, directly or indirectly, of increasing the proportionate
share of the outstanding shares of stock of the Company or any
subsidiary of the Company which is directly or indirectly owned
by the Acquiring Person, except as a result of immaterial
fractional share adjustments;
(x) any agreement, contract, or other arrangement
providing for any of the transactions described in this
definition of Business Combination; and
(xi) any other transaction with an Acquiring
Person which requires the approval of the Company's stockholders
under the Utah Revised Business Corporation Act.
A person who is an Acquiring Person as of:
(xii) the time any definitive agreement relating to
a Business Combination is entered into;
(xiii) the record date for the determination of
stockholders entitled to notice of and to vote on a Business
Combination; or
(xiv) immediately prior to the consummation of a
Business Combination,
shall be an Acquiring Person for purposes of this definition.
(e) "Continuing Director" shall mean any director of
the Company who was a director prior to the time the Acquiring
Person became such, and any other director whose election or
appointment as a director was recommended or approved by a
majority vote of the Continuing Directors. A majority or two-
thirds vote of the Continuing Directors shall mean, respectively,
a vote of the majority of the Continuing Directors, a vote of or
two-thirds of the Continuing Directors, then in office, provided
that at least two Continuing Directors are then in office and
participate in such vote.
(f) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
(g) "Substantial Part" shall mean an amount of assets
having an aggregate fair market value of at least $500,000.
(h) "Voting Stock" shall mean Common Stock and all
other securities of the Company entitled to vote generally for
the election of directors.
3. TERMINATION OF OPTION. Notwithstanding contrary
provisions of this Agreement, the Option and any part thereof, to
the extent not theretofore exercised, will terminate upon the
first to occur of the following dates:
(a) The expiration of three (3) months after the date
on which Optionee's employment by the Company is terminated
(except if such termination is by reason of permanent and total
disability);
(b) The expiration of twelve (12) months after the
date on which Optionee's employment by the Company is terminated,
if such termination is by reason of Optionee's permanent and
total disability; or
(c) The expiration of seven (7) years from the date
hereof.
For purposes of this Agreement, the term "permanent and
total disability" shall mean that Optionee is unable to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than twelve months. Optionee
acknowledges and agrees that the Company will have no obligation
to give Optionee any notice or reminder of the expiration of any
of the periods described in the foregoing subparagraphs or
similar periods described in any previous Incentive Stock Option
Agreements executed by the Company and Optionee.
4. METHOD OF EXERCISE.
(a) This Option will be exercised by written notice
("Notice") by Optionee sent to the Company's Secretary (original
Notice or via facsimile) at the Company's principal place of
business stating the number of shares with respect to which this
Option is being exercised. Such Notice must be accompanied by:
(i) Cash or a check in payment of the Option
Price for the number of shares specified; or
(ii) If Optionee desires to use Company Stock
owned by Optionee as payment of all or part of the Option Price,
Stock certificates (duly endorsed for transfer) representing said
shares of Stock to be used as payment (the "Exchange Shares"); or
(iii) Cash (or a check) and Exchange Shares; or
(iv) In the event of a "cashless", broker-assisted
Option exercise, a copy of a letter (executed by Optionee) to
Optionee's broker instructing the broker to deliver the exercise
price to the Company.
For all purposes of this Agreement and the calculation of
applicable federal taxes, the date the Company Secretary receives
the Notice and the applicable required items set forth in
subparagraphs (i) through (iv) above shall be deemed to be and
treated by the parties (and is referred to herein) as the
"Exercise Date".
NOTWITHSTANDING the foregoing:
(v) Any attempted "cashless", broker-assisted
Option exercised by Optionee will be void and of no effect unless
the broker who so assists in such Option exercise is on a list of
"Approved Option Exercise Brokers" to be maintained by the
Company Secretary; and
(vi) If Optionee makes a "cashless", broker-
assisted Option exercise, then the Company must receive payment
in full of the Option Price in cash and/or transferred funds
within fifteen (15) business days after the Exercise Date. To
the extent of shares with respect to which such funds are not so
received within said fifteen-business-day period, then the
attempted Option exercise will be void and of no effect
hereunder.
(b) Upon Optionee's strict compliance with the
provisions hereof, including without limitation the Company's
receipt of cash or transferred funds and/or sufficient Exchange
Shares as payment in full of the Option Price, then the Company
will notify its transfer agent to make immediate delivery of the
shares of Stock covered by such Option exercise. However, if any
law or regulation requires the Company to take any action with
respect to the shares specified in such Notice before the
issuance thereof, the delivery date of such shares may be
extended for the period necessary to take such action.
(c) If Exchange Shares are used as payment of all or
part of the Option Price, the Company will in good faith
determine the fair market value of the Exchange Shares used as
payment as of the date the Notice is received by the Company's
Secretary. Only whole Exchange Shares will be used as any part
of payment of the Option Price for purposes of this Section. The
Company will cancel the Stock certificates of such Exchange
Shares submitted and reissue balance certificates for any
remaining shares not needed to complete the purchase.
(d) In any exercise of any part of this Option, unless
Optionee directs otherwise in Optionee's Notice to the Company,
the Option Price of any shares purchased will be paid in the
following order:
(i) First, from cash or other funds transferred
from Optionee to the Company; and
(ii) Second, from the Exchange Shares, the
certificate(s) for which shares are submitted along with the
Notice.
5. MINIMUM SHARES PURCHASED.
(a) No fewer than one hundred (100) shares may be
purchased at one time unless the number purchased is the total
number which may be purchased at said time under the Option.
(b) No option or installment thereof shall be
exercisable except in respect of whole shares, and fractional
share interests shall be disregarded.
6. RECLASSIFICATION. If this Option is outstanding when
the total number of issued shares of the Stock is increased or
decreased by any:
(a) change in par value;
(b) split up, or reverse split;
(c) reclassification; or
(d) distribution of a dividend payable in stock;
then the number of shares subject to this Option and the Option
Price per share shall be proportionately adjusted.
7. RIGHTS PRIOR TO EXERCISE OF OPTION. This Option is
non-transferable by Optionee, other than by will or the laws of
descent and distribution in the event of Optionee's death.
During Optionee's lifetime, this Option is exercisable only by
Optionee or Optionee's guardian or legal representative.
Optionee has no rights as a shareholder with respect to the
Option shares until payment of the Option Price and delivery to
Optionee of such shares as herein provided.
8. RESTRICTION ON DISPOSITION OF STOCK. All shares
acquired by Optionee pursuant to this Agreement are subject to
any restrictions on sale, encumbrance, or other disposition now
or hereafter contained in the Company's Bylaws or Articles of
Incorporation.
9. INCOME TAXES.
(a) Optionee has the sole responsibility to pay
federal and state income taxes with respect to his or her
exercise of the Option and sale of the Stock received by such
exercise. Optionee understands and acknowledges that if Optionee
disposes of the shares of Stock acquired by Optionee pursuant to
this Agreement within two (2) years from the date of this Option
or within one (1) year after the transfer of such shares to
Optionee, then this Option may not qualify as an Incentive Stock
Option and all of the income realized by Optionee may constitute
ordinary income. (Such a disqualifying sale is referred to
herein as a "Disqualifying Disposition".) Upon such a
Disqualifying Disposition, Optionee agrees to promptly notify the
Company in writing of the number of shares sold, the selling
price per share, and the date of the sale.
(b) Optionee also understands and acknowledges that
his or her exercise of this Option may generate federal
alternative minimum taxable income and a resulting federal tax
owed thereon.
(c) If the Option is not qualified, at the time it
becomes exercisable hereunder for the first time, as an Incentive
Stock Option because of the application of Internal Revenue Code
Section 422(d), then for purposes of calculating Optionee's
taxable income as of the Exercise Date, the fair market value of
the Stock will be based upon the closing price of Ballard's Stock
on the Exercise Date, as published in the WALL STREET JOURNAL
10. BINDING EFFECT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their
respective heirs, executors, administrators, successors and
assigns.
11. STOCK RESERVE.
(a) The Company shall, at all times during the term of
this Agreement, reserve and keep available sufficient Stock to
satisfy the requirements of this Agreement.
(b) The Company will pay all fees and expenses
necessarily incurred by the Company in connection with the
exercise of the Option.
(c) Notwithstanding paragraph (b) above, Optionee will
pay all brokerage fees incurred by Optionee in the use of any of
the Exchange Shares as payment for the exercise of this Option.
12. RESERVATION OF RIGHT TO TERMINATE EMPLOYMENT. NOTHING
CONTAINED IN THIS AGREEMENT RESTRICTS THE RIGHT OF THE COMPANY TO
TERMINATE THE EMPLOYMENT OF OPTIONEE AT ANY TIME WITH OR WITHOUT
CAUSE, OR TO REDUCE OPTIONEE'S COMPENSATION AT ANY TIME. The
parties acknowledge and agree that a termination of Optionee's
employment by the Company without cause will not be deemed in any
way to constitute a violation of any duty of good faith and fair
dealing owed by the Company to Optionee.
13. PARTIES BOUND BY PLAN. Each determination,
interpretation, or other action taken by the Board of Directors
or the applicable Stock Option Committee pursuant to the
provisions of the Plan is final, binding, and conclusive for all
purposes of the Company and Optionee and their respective
successors in interest.
14. CONDITIONAL EXERCISE. If at any time the Board of
Directors of the Company determines that listing, additional
registration, or qualification of the shares of Stock upon any
securities exchange, or under any state or federal law is
necessary or desirable, this Option may not be exercised unless
and until such listing, registration, or qualification of the
shares has been effected upon conditions acceptable to the Board
of Directors of the Company.
15. INTERPRETATION OF PLAN. Options granted pursuant to
the Plan are intended to be "Incentive Stock Options" within the
meaning of Section 422 of the Internal Revenue Code (the "Code"),
and the Applicable Plan and this Agreement shall be construed to
implement that interest. If all or any part of this Option shall
not be deemed an "Incentive Stock Option" within the meaning of
Section 422 of the Code, the Option shall nevertheless be valid
and carried into effect.
16. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of Utah.
17. PLACE OF SUIT. Any action at law, suit in equity or
judicial proceeding for the enforcement of this contract or any
provision thereof shall be instituted only in state or federal
courts located in Salt Lake County, Utah. Optionee hereby
submits himself or herself to the jurisdiction of such courts
located in Salt Lake County.
18. SEVERABILITY. If and to the extent that any court of
competent jurisdiction holds any provision or any part thereof of
this Agreement to be invalid or unenforceable, such holding shall
in no way affect the validity of the remainder of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day and year first above written.
BALLARD MEDICAL PRODUCTS
By: Dale H. Ballard, President
Optionee:
(Signature)
(Print name and address)
EXHIBIT 5
M E M O R A N D U M
To: Board of Directors
From: Paul W. Hess, General Counsel
Date: March 25, 1996
Re: Registration Statement on Form S-8
I have examined the Registration Statement on Form S-8 to be
filed by Ballard Medical Products (the "Company") with the
Securities and Exchange Commission on or about March 25, 1996
(the "Registration Statement"), in connection with the
registration under the Securities Act of 1933, as amended, of
700,000 shares of the Company's common stock, $.10 par value (the
"Shares"), issuable upon exercise of options granted or to be
granted under the 1995 Stock Option Plan (the "Plan"), including
all exhibits to the Registration Statement.
It is my opinion that, upon completion of the proceedings
being taken or contemplated by the Company to be taken prior to
the issuance and sale of the Shares pursuant to the Plan,
including shareholder approval of the Plan, and upon completion
of the filings and proceedings required 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 Plan and the
Registration Statement, will be legally and validly issued, fully
paid and nonassessable. This opinion is being rendered pursuant
to Regulation Section 229.601(b)(5).
I consent to the use of this opinion as an exhibit to the
Registration Statement, and further consent to the use of my name
wherever appearing in the Registration Statement and any
amendments thereto.
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of Ballard Medical Products on Form S-8 of our reports
dated November 9, 1995 (November 14, 1995, as to the fourth and
fifth paragraphs of Note 8), appearing in the Annual Report on
Form 10-K of Ballard Medical Products for the year ended
September 30, 1995.
DELOITTE & TOUCHE LLP
Salt Lake City, Utah
March 12, 1996
