<PAGE> 1
As filed with the Securities and Exchange Commission on June 12, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
CROSS MEDICAL PRODUCTS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 31-0992628
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
5160-A Blazer Memorial Parkway
Dublin, Ohio 43017
(Address of Registrant's principal executive offices)
------------------------
CROSS MEDICAL PRODUCTS, INC.
AMENDED AND RESTATED 1994 STOCK OPTION PLAN
(Full Title of the Plan)
------------------------
Joseph A. Mussey
President, Chief Executive Officer and Treasurer
Cross Medical Products, Inc.
5160-A Blazer Memorial Parkway
Dublin, Ohio 43017
(614) 718-0530
(Name, address and telephone number of agent for service)
------------------------
Copies of Correspondence to:
Curtis A. Loveland, Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
(614) 227-2004
------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share* Price* Fee*
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value................ 400,000 $7.3125 $2,925,000 $887.00
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purpose of computing the registration fee pursuant to
Rule 457(h)(1), based on the average of the bid and asked price of Cross
Medical Common Stock on June 9, 1997.
This Registration Statement shall be deemed to cover an indeterminate number of
additional shares of Cross Medical Common Stock, $.01 par value, as may be
issuable pursuant to future stock dividends, stock splits or similar
transactions.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information concerning the Cross
Medical Products, Inc. Amended and Restated 1994 Stock Option Plan (the
"Plan"), specified in Part I will be sent or given to employees as specified by
Rule 428(b)(1). Such documents are not filed as part of this Registration
Statement in accordance with the Note to Part I of the Form S-8 Registration
Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission by the Registrant are hereby incorporated by reference:
1. Annual Report on Form 10-K (filed on March 27, 1997) for the year
ended December 31, 1996;
2. Current Report on Form 8-K, dated March 12, 1997, and filed on
March 21, 1997;
3. Proxy Statement for the Annual Meeting of Shareholders to be held
on May 21, 1997, filed on April 21, 1997; and
4. Quarterly Report on Form 10-Q for the quarter ended March 31,
1997, filed on May 14, 1997).
The description of Cross Medical's Common Stock which is contained in
the Registrant's Form 10, as amended (SEC File No. 000-16893), filed with the
Securities and Exchange Commission pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended, as updated in any amendment or report filed
for the purpose of updating such description, is hereby incorporated by
reference.
All documents filed by the Registrant, pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
The contents of the Form S-8 Registration Statement previously filed
with the Securities and Exchange Commission by the Registrant on April 28,
1995, Registration No. 33-91710, are hereby incorporated by reference herein.
II-1
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dublin, State of Ohio, on June 11, 1997.
CROSS MEDICAL PRODUCTS, INC.
By: /s/ Joseph A. Mussey
---------------------------
Joseph A. Mussey, President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Joseph A. Mussey President, Chief Executive Officer, ) June 11, 1997
- ----------------------------------------- Treasurer and Director )
Joseph A. Mussey (Principal Executive Officer) )
)
*Paul A. Miller Vice President and Chief Financial ) June 11, 1997
- ----------------------------------------- Officer (Principal Accounting Officer) )
Paul A. Miller
*Edward R. Funk Chairman of the Board of Directors ) June 11, 1997
- ----------------------------------------- )
Edward R. Funk )
)
)
*Daniel A. Funk, M.D. Director ) June 11, 1997
- ----------------------------------------- )
Daniel A. Funk, M.D. )
)
)
*Daniel A. Gregorie, M.D. Director ) June 11, 1997
- ----------------------------------------- )
Daniel A. Gregorie, M.D. )
)
)
*Herbert J. Kahn Director ) June 11, 1997
- ----------------------------------------- )
Herbert J. Kahn )
)
)
*Curtis A. Loveland Director ) June 11, 1997
---------------------------------------- )
Curtis A. Loveland )
)
</TABLE>
II-2
<PAGE> 4
<TABLE>
<S> <C> <C>
)
*C. Craig Waldbillig Director ) June 11, 1997
- ----------------------------------------- )
C. Craig Waldbillig )
)
)
)
*Peter H. Williams Director ) June 11, 1997
- ----------------------------------------- )
Peter H. Williams )
)
)
*Robert J. Williams Director ) June 11, 1997
- ----------------------------------------- )
Robert J. Williams )
)
*By: /s/ Joseph A. Mussey
-----------------------------------
Joseph A. Mussey, attorney-in-fact
for each of the persons indicated
</TABLE>
II-3
<PAGE> 5
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CROSS MEDICAL PRODUCTS, INC.
------------------------
EXHIBITS
------------------------
II-4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Pagination By
Sequential
Exhibit Exhibit Numbering
Number Description System
- ------- ----------- -------------
<S> <C> <C>
4(a) * Cross Medical Products, Inc. Amended and Restated 1994 Stock Option
Plan.
4(b) Articles Fourth, Tenth, and Eleventh of the Amended and Restated
Certificate of Incorporation of the Registrant and Articles II, IV, VI, VII
and VIII of the Registrant's Amended and Restated By-Laws. (Annex
I and II of the Definitive Proxy Statement for the Annual Meeting of
Shareholders held on May 21, 1997 filed on April 21, 1997, and
incorporated herein by reference.)
5 * Opinion of Porter, Wright, Morris & Arthur regarding legality.
23(a) Consent of Porter, Wright, Morris & Arthur (included in Exhibit 5 filed
herewith).
23(b) * Consent of Coopers & Lybrand L.L.P.
24 * Powers of Attorney.
</TABLE>
* Filed with this Registration Statement
II-5
<PAGE> 1
CROSS MEDICAL PRODUCTS, INC.
------------------------
Exhibit 4(a)
------------------------
<PAGE> 2
CROSS MEDICAL PRODUCTS, INC.
AMENDED AND RESTATED
1994 STOCK OPTION PLAN
1. PURPOSE. This plan (the "Plan") is intended as an incentive and
to encourage stock ownership by certain key employees, officers and directors
of, and consultants and advisers who render services to, Cross Medical
Products, Inc., a Delaware corporation (the "Company"), and any current or
future subsidiaries or parent of the Company by the granting of stock options
(the "Options") as provided herein. By encouraging such stock ownership, the
Company seeks to attract, retain and motivate employees, officers, directors,
consultants and advisers of training, experience and ability. The Options
granted under the Plan may be either incentive stock options ("ISOs") which
meet the requirements of section 422 of the Internal Revenue Code of 1986, as
amended from time to time hereafter (the "Code"), or options which do not meet
such requirements ("Non-Statutory Options").
2. EFFECTIVE DATE. The Plan will become effective on February 10,
1994 (the "Effective Date").
3. ADMINISTRATION.
(a) The Plan will be administered by a committee (the
"Committee") appointed by the Board of Directors of the Company (the "Board")
which consists of not fewer than two members of the Board. If any class of
equity securities of the Company is registered under section 12 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), all members of
the Committee will be "disinterested persons" as defined in Rule 16b-3(c)(2)(i)
promulgated under the 1934 Act (or any successor rule of like tenor and effect)
and "outside directors" as defined in section 162(m) of the Code and the
regulations promulgated thereunder and will not be eligible to receive any
options under this Plan except pursuant to paragraph 4(b) of the Plan.
(b) Subject to the provisions of the Plan, the Committee is
authorized to establish, amend and rescind such rules and regulations as it
deems appropriate for its conduct and for the proper administration of the
Plan, to make all determinations under and interpretations of, and to take such
actions in connection with the Plan or the Options granted thereunder as it
deems necessary or advisable. All actions taken by the Committee under the Plan
are final and binding on all persons. No member of the Committee is liable for
any action taken or determination made relating to the Plan, except for willful
misconduct.
(c) The Company will indemnify each member of the Committee
against costs, expenses and liabilities (other than amounts paid in settlements
to which the Company does not consent, which consent will not be unreasonably
withheld) reasonably incurred by such member in connection with any action to
which he or she may be a party by reason of service as a member of the
Committee, except in relation to matters as to which he or she is adjudged in
such action to be personally guilty of negligence or willful misconduct in the
performance of his or her duties. The
<PAGE> 3
foregoing right to indemnification is in addition to such other rights as the
Committee member may enjoy as a matter of law, by reason of insurance coverage
of any kind, or otherwise.
4. ELIGIBILITY.
(a) The Committee may grant Options and Tax Offset Payments, as
defined in paragraph 10, to such key employees of (or, in the case of
Non-Statutory Options only, to directors who are not employees of and to
consultants and advisers who render services to) the Company or its
subsidiaries or parent as the Committee may select from time to time (the
"Optionees"); provided, however, that if any class of equity securities of the
Company is registered under section 12 of the 1934 Act, any member of the Board
who is not an employee of the Company may not receive any Option or Tax Offset
Payment under the Plan except pursuant to paragraph 4(b) of the Plan. The
Committee may grant more than one Option to an individual under the Plan.
(b) If any class of equity securities of the Company is
registered under section 12 of the 1934 Act, on June 30 of each year, each
member of the Board who is not an employee of the Company, including members of
the Committee, will automatically receive under this Plan a Non-Statutory
Option to purchase 5,000 shares of the Company's common stock, $.01 par value,
at an exercise price equal to 100% of the fair market value of the shares on
the date of grant. Such Option will not be exercisable until a period of one
year from the date of grant and will terminate on the sixth anniversary of the
date of grant. This paragraph 4(b) may not be amended more than once every six
months, other than to comport with changes in the Code, the Employee Retirement
Income Security Act of 1974, as amended from time to time, or the rules
thereunder.
(c) No ISO may be granted to an individual who, at the time an
ISO is granted, is considered under section 422(b)(6) of the Code as owning
stock possessing more than 10 percent of the total combined voting power of all
classes of stock of the Company or of its parent or any subsidiary corporation
(a "10% Shareholder"); provided, however, this restriction will not apply if at
the time such ISO is granted the option price per share of such ISO is at least
110% of the fair market value of such share, and such ISO by its terms is not
exercisable after the expiration of five years from the date it is granted.
This paragraph 4(c) has no application to Options granted under the Plan as
Non-Statutory Options.
(d) The aggregate fair market value (determined as of the date
the ISO is granted) of shares with respect to which ISOs are exercisable for
the first time by any Optionee during any calendar year under the Plan or any
other incentive stock option plan of the Company or a parent or subsidiary of
the Company may not exceed $100,000. This paragraph 4(d) has no application to
Options granted under the Plan as Non-Statutory Options.
5. STOCK SUBJECT TO PLAN. The shares subject to Options under the
Plan are the shares of common stock, $.01 par value, of the Company (the
"Shares"). The Shares issued pursuant to Options granted under the Plan may be
authorized and unissued Shares, Shares purchased on the open market or in a
private transaction, or Shares held as treasury stock. The aggregate number of
2
<PAGE> 4
Shares for which Options may be granted under the Plan may not exceed
1,000,000, subject to adjustment in accordance with the terms of paragraph 13
of the Plan. The maximum number of Shares for which Options may be granted
under the Plan during the term of the Plan to any one individual may not exceed
200,000 subject to adjustment in accordance with the terms of paragraph 13 of
the Plan. The unpurchased Shares subject to terminated or expired Options may
again be offered under the Plan. The Committee, in its sole discretion, may
permit the exercise of any Option as to full Shares or fractional Shares.
Proceeds from the sale of Shares under Options will be general funds of the
Company.
6. TERMS AND CONDITIONS OF OPTIONS.
(a) At the time of grant, the Committee will determine whether
the Options granted will be ISOs or Non-Statutory Options. All Options and Tax
Offset Payments granted will be authorized by the Committee and, within a
reasonable time after the date of grant, will be evidenced by stock option
agreements in writing ("Stock Option Agreements"), in the form attached hereto
as Exhibit A, or in such other form and containing such terms and conditions
not inconsistent with the provisions of this Plan as the Committee may
determine. Any action under paragraph 13 may be reflected in an amendment to,
or restatement of, such Stock Option Agreements.
(b) The Committee may grant Options and Tax Offset Payments
having terms and provisions which vary from those specified in the Plan if such
Options or Tax Offset Payments are granted in substitution for, or in
connection with the assumption of, existing options granted by another
corporation and assumed or otherwise agreed to be provided for by the Company
pursuant to or by reason of a transaction involving a corporate merger,
consolidation, acquisition of property or stock, separation, reorganization or
liquidation to which the Company is a party.
7. PRICE. The Committee will determine the option price per Share
(the "Option Price") of each Option granted under the Plan. Notwithstanding the
foregoing, the Option Price of each ISO granted under the Plan may not be less
than the fair market value of a Share on the date of grant of such Option. The
date of grant will be the date the Committee acts to grant the Option or such
later date as the Committee specifies and the fair market value will be
determined in accordance with paragraph 25(c) and without regard to any
restrictions other than a restriction which, by its terms, will never lapse.
8. OPTION PERIOD. The Committee will determine the period during
which each Option may be exercised (the "Option Period"); provided, however,
any ISO granted under the Plan will have an Option Period which does not exceed
10 years from the date of grant.
9. NONTRANSFERABILITY OF OPTIONS. An Option will not be transferable
by the Optionee otherwise than by will or the laws of descent and distribution
and may be exercised, during the lifetime of the Optionee, only by the Optionee
or by the Optionee's guardian or legal representative. Notwithstanding the
foregoing, an Optionee may transfer a Non-Statutory Option to members of his or
her immediate family (as defined in Rule 16a-1 promulgated under the 1934 Act),
to one or more
3
<PAGE> 5
trusts for the benefit of such family members or to partnerships in which such
family members are the only partners if (a) the stock option agreement with
respect to such Non-Statutory Option as approved by the Committee expressly so
provides and (b) the Optionee does not receive any consideration for the
transfer. Non-Statutory Options held by such transferees are subject to the
same terms and conditions that applied to such Non-Statutory Options
immediately prior to transfer.
10. TAX OFFSET PAYMENTS. The Committee has the authority and
discretion under the Plan to make cash grants to Optionees to offset a portion
of the taxes which may become payable upon exercise of Non-Statutory Options or
on certain dispositions of Shares acquired under ISOs ("Tax Offset Payments").
In the case of Non-Statutory Options, such Tax Offset Payments will be in an
amount determined by multiplying a percentage established by the Committee by
the difference between the fair market value of a Share on the date of exercise
and the Option Price, and by the number of Shares as to which the Option is
being exercised. If the Tax Offset Payment is being made on account of the
disposition of Shares acquired under an ISO, such Tax Offset Payments will be
in an amount determined by multiplying a percentage established by the
Committee by the difference between the fair market value of a Share on the
date of disposition, if less than the fair market value on the date of
exercise, and the Option Price, and by the number of Shares acquired under an
ISO of which an Optionee is disposing. The percentage will be established, from
time to time, by the Committee at that rate which the Committee, in its sole
discretion, determines to be appropriate and in the best interest of the
Company to assist Optionees in the payment of taxes. The Company has the right
to withhold and pay over to any governmental entities (federal, state or local)
all amounts under a Tax Offset Payment for payment of any income or other taxes
incurred on exercise.
11. EXERCISE OF OPTIONS.
(a) The Committee, in its sole discretion, will determine the
terms and conditions of exercise and vesting percentages of Options granted
hereunder. Notwithstanding the foregoing or the terms and conditions of any
Stock Option Agreement to the contrary, (i) if the Optionee's employment is
terminated as a result of disability or death, his or her Options will be
exercisable to the extent and for the period specified in paragraph 12(b); (ii)
if the Optionee's employment is terminated other than as a result of disability
or death or for cause, his or her Options will be exercisable to the extent and
for the period specified in paragraph 12(a); (iii) if a merger or similar
reorganization or sale of substantially all of the Company's assets occurs, all
outstanding Options will be exercisable to the extent and for the period
specified in paragraph 13(b) or paragraph 13(c), whichever paragraph applies;
and (iv) if a change in control occurs, all outstanding Options will be
exercisable for the period specified in paragraph 13(d).
(b) An Option may be exercised only upon delivery of a written
notice to the Committee, any member of the Committee, or any officer of the
Company designated by the Committee to accept such notices on its behalf,
specifying the number of Shares for which it is exercised.
4
<PAGE> 6
(c) Within five business days following the date of exercise of
an Option, the Optionee or other person exercising the Option will make full
payment of the Option Price in cash or, with the consent of the Committee, (i)
by tendering previously acquired Shares (valued at fair market value, as
determined by the Committee, as of such date of tender); (ii) with a full
recourse promissory note of the Optionee for the portion of the Option Price in
excess of the par value of Shares subject to the Option, under terms and
conditions determined by the Committee; (iii) any combination of the foregoing;
or (iv) if the Shares subject to the Option have been registered under the
Securities Act of 1933, as amended (the "1933 Act") and there is a regular
public market for the Shares, by delivering to the Company on the date of
exercise of the Option written notice of exercise together with:
(A) written instructions to forward a copy of such
notice of exercise to a broker or dealer, as defined in section
3(a)(4) and 3(a)(5) of the 1934 Act ("Broker"), designated in
such notice and to deliver to the specified account maintained
with the Broker by the person exercising the Option a
certificate for the Shares purchased upon the exercise of the
Option, and
(B) a copy of irrevocable instructions to the Broker
to deliver promptly to the Company a sum equal to the purchase
price of the Shares purchased upon exercise of the Option and
any other sums required to be paid to the Company under
paragraph 17 of the Plan.
(d) If Tax Offset Payments sufficient to allow for withholding of
taxes are not being made at the time of exercise of an Option, the Optionee or
other person exercising such Option will pay to the Company an amount equal to
the withholding amount required to be made less any amount withheld by the
Company under paragraph 17.
12. TERMINATION OF EMPLOYMENT.
(a) Upon termination of an Optionee's employment with the
Company, any parent or subsidiary of the Company, or any successor corporation
to either the Company or any parent or subsidiary of the Company, other than
(i) termination of employment by reason of death or disability, as defined in
paragraph 25(b), or (ii) termination of employment for cause, as defined in
paragraph 25(f), the Optionee will have 30 days after the date of termination
(but not later than the expiration date of the Stock Option Agreement) to
exercise all Options held by him or her to the extent the same were exercisable
on the date of termination; provided, however, if such termination is a result
of the Optionee's retirement with the consent of the Company, the Committee, in
its sole discretion, may permit the exercise of all or any portion of any
Option granted to such Optionee not otherwise exercisable. The Committee will
determine in each case whether a termination of employment is a retirement with
the consent of the Company and, subject to applicable law, whether a leave of
absence is a termination of employment. The Committee may cancel an Option
during the 30-day period after termination of employment referred to in this
5
<PAGE> 7
paragraph if the Optionee engages in employment or activities contrary, in the
opinion of the Committee, to the best interests of the Company or any parent or
subsidiary of the Company.
(b) Upon termination of employment by reason of death or
disability, the Optionee's personal representative, or the person or persons to
whom his or her rights under the Options pass by will or the laws of descent or
distribution, will have one year after the date of such termination (but not
later than the expiration date of the Stock Option Agreement) to exercise all
Options held by Optionee to the extent the same were exercisable on the date of
termination; provided, however, the Committee, in its sole discretion, may
permit the exercise of all or any portion of any Option granted to such
Optionee not otherwise exercisable.
(c) Upon termination of employment for cause (as defined in
paragraph 25(f)), all Options held by such Optionee will terminate on the date
of termination.
13. REORGANIZATIONS.
(a) If a stock split, stock dividend, combination or exchange of
shares, exchange for other securities, reclassification, reorganization,
redesignation or other change in the Company's capitalization occurs, the
Committee will proportionately adjust or substitute the aggregate number of
Shares for which Options may be granted under this Plan, the number of Shares
subject to outstanding Options and the Option Price of the Shares subject to
outstanding Options to reflect the same. The Committee will make such other
adjustments to the Options, the provisions of the Plan and the Stock Option
Agreements as may be appropriate and equitable, which adjustments may provide
for the elimination of fractional Shares.
(b) In the event of a change of the Company's common stock, $.01
par value, resulting from a merger or similar reorganization as to which the
Company is the surviving corporation, or a merger or similar reorganization
involving only a change in the state of incorporation or an internal
reorganization not involving a change in control as defined in paragraph 25(a),
the number and kind of Shares which thereafter may be purchased pursuant to an
Option under the Plan and the number and kind of Shares then subject to Options
granted hereunder and the price per Share thereof will be appropriately
adjusted in such manner as the Board may deem equitable to prevent dilution or
enlargement of the rights available or granted hereunder.
(c) Except as otherwise determined by the Board, a merger or a
similar reorganization which the Company does not survive (other than a merger
or similar reorganization involving only a change in the state of incorporation
or an internal reorganization not involving a change in control as defined in
paragraph 25(a)), or a sale of all or substantially all of the assets of the
Company, will cause every Option hereunder to terminate, to the extent not then
exercised, unless any surviving entity agrees to assume the obligations
hereunder on terms reasonably acceptable to the Board; provided, however, that,
in the case of such a merger or similar reorganization, or such a sale of all
or substantially all of the assets of the Company, if there is no
6
<PAGE> 8
such assumption, the Board, in its sole discretion, may provide that some or
all of the unexercised portion of any one or more of the outstanding Options
will be immediately exercisable and vested as of such date prior to such
merger, similar reorganization or sale of assets as the Board determines. If
the Board makes an Option fully exercisable under this paragraph 13(c), the
Board will notify the Optionee that the Option will be fully exercisable for a
period of twenty (20) days from the date of such notice, and the Option will
terminate upon the expiration of such period.
(d) If a change in control (as defined in paragraph 25(a))
occurs, all outstanding Options granted under this Plan will become immediately
exercisable to the extent of 100% of the Shares subject thereto notwithstanding
any contrary waiting or vesting periods specified in this Plan or in any
applicable Stock Option Agreement.
14. RIGHTS AS SHAREHOLDER. The Optionee has no rights as a
shareholder with respect to any Shares covered by an Option until the date of
issuance of a stock certificate to the Optionee for such Shares.
15. NO CONTRACT OF EMPLOYMENT. Nothing in the Plan or in any Option
or Stock Option Agreement confers on any Optionee any right to continue in the
employment or service of the Company or any parent or subsidiary of the Company
or interfere with the right of the Company to terminate such Optionee's
employment or other services at any time. The establishment of the Plan will in
no way, now or hereafter, reduce, enlarge or modify the employment relationship
between the Company or any parent or subsidiary of the Company and the
Optionee. Options granted under the Plan will not be affected by any change of
duties or position as long as the Optionee continues to be employed by the
Company or any parent or subsidiary of the Company.
16. AGREEMENTS AND REPRESENTATIONS OF OPTIONEES. As a condition to
the exercise of an Option, the Committee, in its sole determination, may
require the Optionee to represent in writing that the Shares being purchased
are being purchased only for investment and without any present intent at the
time of the acquisition of such Shares to sell or otherwise dispose of the
same.
17. WITHHOLDING TAXES. The Company or any parent or subsidiary of the
Company has the right (a) to withhold from any salary, wages, or other
compensation for services payable by the Company or any parent or subsidiary of
the Company to or with respect to an Optionee, or to demand payment from the
Optionee or other person to whom the Company is delivering certificates for
Shares purchased upon exercise of an Option of, amounts sufficient to satisfy
any federal, state or local withholding tax liability attributable to such
Optionee's (or any beneficiary's or personal representative's) receipt or
disposition of Shares purchased under any Option or (b) to take any such other
action as it deems necessary to enable it to satisfy any such tax withholding
obligations. The Committee, in its sole discretion, may permit an Optionee to
elect to have Shares that would be acquired upon exercise of Options (valued at
fair market value as of the date of exercise) withheld by the Company in
satisfaction of such Optionee's withholding tax liabilities.
7
<PAGE> 9
18. EXCHANGES. The Committee may permit the voluntary surrender of
all or a portion of any Option granted under the Plan to be conditioned upon
the granting to the Optionee of a new Option for the same or a different number
of Shares as the Option surrendered, or may require such voluntary surrender as
a condition precedent to a grant of a new Option to such Optionee. Subject to
the provisions of the Plan, such new Option will be exercisable at the same
price, during such period and on such other terms and conditions as are
specified by the Committee at the time the new Option is granted. Upon
surrender, the Options surrendered will be cancelled, and the Shares previously
subject to them will be available for the grant of other Options. The Committee
also may grant Tax Offset Payments to any Optionee surrendering such Option for
a new Option.
19. COMPLIANCE WITH LAWS AND REGULATIONS. The Plan, the grant and
exercise of Options thereunder, and the obligation of the Company to sell and
deliver the Shares under such Options, will be subject to all applicable
federal and state laws, rules and regulations and to such approvals by any
government or regulatory agency as may be required. Options issued under this
Plan are not exercisable prior to (i) the date upon which the Company has
registered the Shares for which Options may be issued under the l933 Act and
the completion of any registration or qualification of such Shares under state
law, or any ruling or regulation of any government body which the Company, in
its sole discretion, determines to be necessary or advisable in connection
therewith, or (ii) receipt by the Company of an opinion from counsel to the
Company stating that the exercise of such Options may be effected without
registering the Shares subject to such Options under the l933 Act or under
state or other law.
20. ASSUMPTION. The Plan may be assumed by the successors and assigns
of the Company.
21. EXPENSES. The Company will bear all expenses and costs in
connection with administration of the Plan.
22. AMENDMENT, MODIFICATION AND TERMINATION OF THE PLAN. The Board
may terminate, amend or modify the Plan at any time without further action on
the part of the shareholders of the Company; provided, however, that (a) no
amendment to the Plan may cause the ISOs granted hereunder to fail to qualify
as incentive stock options under the Code; and (b) any amendment to the Plan
which requires the approval of the shareholders of the Company under the Code,
the regulations promulgated thereunder or the rules promulgated under section
16 of the 1934 Act will be subject to approval by the shareholders of the
Company in accordance with the Code, such regulations or such rules. No
amendment, modification or termination of the Plan may adversely affect in any
manner any Option previously granted to an Optionee under the Plan without the
consent of the Optionee or the transferee of such Option.
23. TERM OF PLAN. The Plan will become effective on the Effective
Date, subject to the approval of the Plan by the holders of a majority of the
shares of stock of the Company entitled to vote within twelve months of the
date of the Plan's adoption by the Board, and the exercise of all
8
<PAGE> 10
Options granted prior to such approval will be subject to such approval. The
Plan will terminate on the tenth anniversary of the Effective Date, or such
earlier date as may be determined by the Board. Termination of the Plan,
however, will not affect the rights of Optionees under Options previously
granted to them, and all unexpired Options will continue in force and operation
after termination of the Plan except as they may lapse or terminate by their
own terms and conditions.
24. LIMITATION OF LIABILITY. The liability of the Company under this
Plan or in connection with any exercise of an Option is limited to the
obligations expressly set forth in the Plan and in any Stock Option Agreements,
and no term or provision of this Plan or of any Stock Option Agreements will be
construed to impose any further or additional duties, obligations or costs on
the Company not expressly set forth in the Plan or the Stock Option Agreements.
25. DEFINITIONS.
(a) Change In Control. A "change in control" will be deemed to
have occurred if and when (i) a person, partnership, corporation, trust or
other entity ("Person") acquires or combines with the Company, or 50 percent or
more of its assets or earning power, in one or more transactions, and after
such acquisition or combination, less than a majority of the outstanding voting
shares of the Person surviving such transaction (or the ultimate parent of the
surviving Person) is owned by the owners of the voting shares of the Company
outstanding immediately prior to such acquisition or combination; or (ii)
during any period of two consecutive years during the term of this Plan,
individuals who at the beginning of such period are members of the Board
("Original Board Members") cease for any reason to constitute at least a
majority of the Board, unless the election of each Board member who was not an
Original Board Member has been approved in advance by Board members
representing at least two-thirds of the Board members then in office who were
Original Board Members.
(b) Disability. The term "disability" means a physical or mental
condition resulting from bodily injury, disease, or mental disorder which
renders the Optionee incapable of continuing the Optionee's usual and customary
employment or service with the Company or any parent or subsidiary of the
Company.
(c) Fair Market Value. If the Shares are publicly traded, the
term "fair market value" as used in this Plan means (i) the closing price
quoted in the NASDAQ National Market, if the shares are so quoted, (ii) the
last quote reported by NASDAQ for small-cap issues, if the shares are so
quoted, (iii) the mean between the bid and asked prices as reported by NASDAQ,
if the Shares are so quoted, or (iv) if the Shares are listed on a securities
exchange, the closing price at which the Shares are quoted on such exchange, in
each case at the close of the date immediately before the Option is granted or,
if there be no quotation or sale on that date, the next preceding date on which
the Shares were quoted or traded. In all other cases, the fair market value
will be determined in accordance with procedures established in good faith by
the Committee and with
9
<PAGE> 11
respect to ISOs, conforming to regulations issued by the Internal Revenue
Service regarding incentive stock options.
(d) Key Employees. The term "key employees" means those
executive, administrative, operational and managerial employees who are
determined by the Committee to be eligible for Options under the Plan.
(e) Parent and Subsidiary. The terms "subsidiary" and "parent" as
used in the Plan have the respective meanings set forth in sections 424(f) and
(e) of the Code.
(f) Termination For Cause. The term "termination of employment
for cause" means termination of employment for (a) the commission of an act of
dishonesty, including but not limited to misappropriation of funds or property
of the Company; (b) the engagement in activities or conduct injurious to the
reputation of the Company; (c) the conviction or entry of a guilty or no
contest plea to a misdemeanor (involving an act of moral turpitude) or a
felony; (d) the violation of any of the terms and conditions of any written
agreement the Optionee may have with the Company or its parent or subsidiary
(following 30 days' written notice from the Company specifying the violation
and the employee's failure to cure such violation within such 30-day period) or
(e) any refusal to comply with the written directives, policies or regulations
established from time to time by the Board.
10
<PAGE> 1
CROSS MEDICAL PRODUCTS, INC.
------------------------
Exhibit 5
------------------------
<PAGE> 2
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, Ohio 43215
Telephone: (614)227-2000
Fax: (614)227-2100
June 12, 1997
Cross Medical Products, Inc.
5160 -A Blazer Memorial Parkway
Dublin, Ohio 43017
Re: Registration Statement on Form S-8 Cross Medical Products,
Inc. Amended and Restated 1994 Stock Option Plan (the "Plan")
Gentlemen:
We have acted as counsel for Cross Medical Products, Inc. a Delaware
corporation ("Cross"), in connection with the Registration Statement on Form
S-8 (the "Registration Statement"), filed by Cross with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, with respect
to the registration of an additional 400,000 shares of Cross Common Stock, $.01
par value (the "Shares"), to be issued under the Plan.
In connection with this opinion, we have examined such corporate
records, documents and other instruments of Cross as we have deemed necessary.
Based on the foregoing, we are of the opinion that the Shares will,
when issued and paid for in accordance with the provisions of the Plan, be
legally issued, fully paid and nonassessable, and entitled to the benefits of
the Plan.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Porter, Wright, Morris & Arthur
PORTER, WRIGHT, MORRIS & ARTHUR
<PAGE> 1
CROSS MEDICAL PRODUCTS, INC.
------------------------
Exhibit 23(b)
------------------------
<PAGE> 2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of Cross Medical Products, Inc. on Form S-8 of our reports dated
March 12, 1997, on our audits of the consolidated financial statements and
financial statement schedule of Cross Medical Products, Inc. as of December 31,
1996 and 1995, and for the years ended December 31, 1996, 1995 and 1994.
/s/ Coopers & Lybrand L.L.P.
Columbus, Ohio
June 11, 1997
<PAGE> 1
CROSS MEDICAL PRODUCTS, INC.
------------------------
Exhibit 24
------------------------
<PAGE> 2
POWER OF ATTORNEY
Each of the undersigned officers and/or directors of Cross Medical
Products, Inc., a Delaware corporation (the "Company"), hereby appoints Joseph
A. Mussey and Curtis A. Loveland, as his true and lawful attorneys-in-fact, or
any of them, with power to act without the others, as his true and lawful
attorney-in-fact, in his name and on his behalf, and in any and all capacities
stated below, to sign and to cause to be filed with the Securities and Exchange
Commission the Company's Registration Statement on Form S-8 (the "Registration
Statement") to register under the Securities Act of 1933, as amended, an
additional 400,000 shares of Common Stock, $.01 par value, of the Company to be
sold and distributed by the Company pursuant to the Company's Amended and
Restated 1994 Stock Option Plan (the "Plan") and such other number of shares as
may be issued under the anti-dilution provisions of the Plan, and any and all
amendments, including post-effective amendments, to the Registration Statement,
hereby granting unto such attorneys-in-fact, and to each of them, full power
and authority to do and perform in the name and on behalf of the undersigned,
in any and all such capacities, every act and thing whatsoever necessary to be
done in and about the premises as fully as the undersigned could or might do in
person, hereby granting to each such attorney-in-fact full power of
substitution and revocation, and hereby ratifying all that any such
attorney-in-fact or his substitute may do by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 6th day of June,
1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Joseph A. Mussey President, Chief Executive Officer
- --------------------------------------- Treasurer and Director
Joseph A. Mussey (Principal Executive Officer)
/s/ Paul A. Miller Vice President and Chief Financial
- --------------------------------------- Officer (Principal Accounting Officer)
Paul A. Miller
/s/ Edward R. Funk Chairman of the Board of Directors
- ---------------------------------------
Edward R. Funk
/s/ Daniel A. Funk Director
- ---------------------------------------
Daniel A. Funk, M.D.
/s/ Daniel A. Gregorie Director
- ---------------------------------------
Daniel A. Gregorie, M.D.
/s/ Herbert J. Kahn Director
- ---------------------------------------
Herbert J. Kahn
/s/ Curtis A. Loveland Director
- ---------------------------------------
Curtis A. Loveland
/s/ C. Craig Waldbillig Director
- ---------------------------------------
C. Craig Waldbillig
/s/ Peter H. Williams Director
- ---------------------------------------
Peter H. Williams
/s/ Robert J. Williams Director
- ---------------------------------------
Robert J. Williams
</TABLE>
