As filed with the Securities and Exchange Commission on
July 20, 1998.
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)
1997 INCENTIVE STOCK OPTION PLAN
(Full title of the Plan)
Adopted July 15, 1997
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
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
Common
Stock, $0.10
par value 750,000 $19 $14,250,000 $4,203.75
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 July 9, 1998.
(2) The registration fee is calculated as follows:
Maximum aggregate offering price
($14,250,000) x .000295 = $4,203.75
Total number of pages:
Index to Exhibits appears on page:
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, 1997, filed December 15,
1997, as amended and restated by the Company's Current
Report on Form 8-K, filed with the Commission on July 14,
1998 (as further amended and restated by the Company's
Current Report on Form 8-K/A, filed with the Commission on
July 20, 1998);
(b) The Description of Common Stock contained in
the Company's Registration of Securities on the Form 8-A
pursuant to Section 12(b) of the Securities Exchange Act of
1934, filed with the Commission on September 3, 1993;
(c) The Company's Proxy Statement and Annual
Report for the Annual Meeting held January 26, 1998, filed
with the Commission on December 12, 1997;
(d) The Company's Quarterly Report on Form 10-
Q/A, for the quarter ended December 31, 1997, filed with the
Commission on July 10, 1998; and
(e) The Company's Current Report on Form 8-K,
filed with the Commission on March 10, 1998;
(f) The Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1998, filed May 15, 1998;
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
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.
Not Applicable.
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 1996 Incentive Stock Option Plan.
4.6 Example of Incentive Stock Option Agreement
used under the 1996 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 Independent Auditors.
23.3 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 20th
day of July, 1998.
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.
July 20, 1998 Dale H. Ballard
President, Chief Executive Officer
and Chairman of the Board
July 20, 1998 Kenneth R. Sorenson,
Treasurer and Chief Financial Officer
July 20, 1998 E. Martin Chamberlain,
Director and Secretary
July 20, 1998 Dale H. Ballard, Jr.
Director
July 20, 1998 Paul W. Hess
Director
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE NO.
4.1 Restated Certificate of Incorporated by
Incorporation, dated reference from July
September 18, 1987 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 1997 Incentive Stock Option p.
Plan
4.6 Example of Incentive Stock
Option Agreement used under
the 1997 Incentive Stock p.
Option Plan
5 Opinion of counsel as to
legality of securities being p.
registered
23.1 Consent of Independent p.
Auditors
23.2 Consent of Independent p.
Auditors
23.1 Consent of Counsel Contained in
Exhibit 5
24 Power of Attorney Contained on
signature page
EXHIBIT 4.5
BALLARD MEDICAL PRODUCTS
1997 INCENTIVE STOCK OPTION PLAN
Adopted effective July 15, 1997
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 1997 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 750,000 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". A
"disinterested person" is a director who is not, during the one
year prior to service as an administrator of the applicable Plan,
or during such service, granted or awarded options pursuant to
any Plan of the Company.
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 (3) 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 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.
(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 option grants hereunder to officers
and directors who are also employees of the Company qualify as
exempt transactions under Reg. 240.16b-3(d)(3), promulgated by
the Securities and Exchange Commission under Section 16(b) of the
Securities Exchange Act of 1934.
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 1997 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 July 15,
1997; 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 26, 1998; and that the above
1997 Incentive Stock Option Plan is now in full force and effect.
Dated this day of , 1997.
_____________________________________________
Secretary
(Corporate Seal)
EXHIBIT 4.6
THIS OPTION AND THE SHARES UNDERLYING THIS OPTION HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1993 (ACT), AND ARE
"RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144
PROMULGATED UNDER THE ACT. THIS OPTION IS NONTRANSFERABLE AND
THE SHARES UNDERLYING THIS OPTION MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH MUST
BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
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.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO SHARES
OF THE CORPORATION STOCK SHALL BE ISSUED PURSUANT TO AN OPTION
UNDER THE 1997 INCENTIVE STOCK OPTION PLAN UNLESS THE
CORPORATION'S 1997 PLAN SHALL HAVE FIRST BEEN APPROVED BY
SHAREHOLDERS OF THE CORPORATION, BY MAJORITY VOTE, AT A DULY HELD
SHAREHOLDERS MEETING.
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 1997, 1996, 1995, 1994, 1993, 1992, and 1991
Incentive Stock Option Plans)
THIS AGREEMENT (the "Agreement") is made effective _________
______________________________________ , 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 $______________________ 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
______ under 19__ Plan _______
shares year(s)
______ under 19__ Plan _______
shares year(s)
______ under 19__ Plan _______
shares year(s)
(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 the 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 no
later than the earlier of fifteen (15) business days following
the Exercise Date or the first to occur of the possible
termination dates under Section 3 above. To the extent of shares
with respect to which such funds are not so received before said
deadline 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 by the New York Stock Exchange
or 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: July 20, 1998
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 July 20, 1998 (the
"Registration Statement"), in connection with the registration
under the Securities Act of 1933, as amended, of 750,000 shares
of the Company's common stock, $.10 par value (the "Shares"),
issuable upon exercise of options granted or to be granted under
the 1997 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, and
upon completion of the filings and proceedings, if any, 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 AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Ballard Medical Products on Form S-8 of our report
dated November 13, 1997 (February 25, 1998 as to Note 12) which
expresses an unqualified opinion and includes an explanatory
paragraph relating to the Company's change in its method of
accounting for investment securities to conform with Statement of
Financial Accounting Standards No. 115, appearing in the Current
Report on Form 8-K/A dated July 17, 1998 of Ballard Medical
Products.
Deloitte & Touche LLP
Salt Lake City, Utah
July 17, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of Ballard Medical Products of our report
dated January 30, 1998, on our audits of the financial statements
of Tri-Med Specialties, Inc. as of September 30, 1997 and 1996
and the year ended September 30, 1997 which report is included in
Ballard Medical Products' Current Report on Form 8-K filed with
the Commission on July 13, 1998.
Kansas City, Missouri PricewaterhouseCoopers LLP
July 15, 1998
