As filed with the Securities and Exchange Commission on August 11,1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
ADVANCED TECHNOLOGY LABORATORIES, INC.
(Exact name of Registrant as specified in its charter)
Washington 91-1353386
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
22100 Bothell Everett Highway
P.O. Box 3003
Bothell, WA 98041-3003
(Address of principal executive offices, including zip code)
AMENDED 1992 NONOFFICER EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
W. BRINTON YORKS, Jr.
Vice President, General Counsel and Secretary
ADVANCED TECHNOLOGY LABORATORIES, INC.
22100 Bothell Everett Highway
P.O. Box 3003
Bothell, WA 98041-3003
(206) 487-7000
(Name, address and telephone number, including area code, of
agent for service)
__________________
CALCULATION OF REGISTRATION FEE
Title of Number to Proposed Proposed Amount
Securities Be Maximum Maximum of
to Be Registered Offering Aggregate Registration
Registered Price Per Offering Fee
Share(1) Price(1)
Common 100,000(1) $17.25 $1,725,000 $594.83
Stock, par
value $.01
per Share
(1) Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457(h). The price per share is estimated to
be $17.25 based on the average of the high and low prices for
the Common Stock in the over-the-counter market on August 9, 1995
as reported on the Nasdaq National Market.
(2) In addition to this number of shares, an indeterminate number of
additional shares which may be necessary to adjust the number of
shares reserved for issuance pursuant to such plans as the result
of any future stock split, stock dividend or similar adjustment
of the outstanding Common Stock of the Registrant.
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REGISTRATION OF ADDITIONAL SECURITIES
Pursuant to General Instruction E, this registration
statement on Form S-8 is filed by Advanced Technology
Laboratories, Inc. (the "Registrant") to register additional
securities under the Plan described in Registration
Statement Nos. 33-54757 and 33-59914 to be issued pursuant
to an amendment to the Plan approved by the Registrant's
Board of Directors on July 28, 1995. Portions of
Registration Statement Nos. 33-54757 and 33-59914 are
incorporated herein by reference.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the
year ended December 31, 1994 filed on March 31, 1995, which contains
audited financial statements for the most recent year for which such
statements have been filed;
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the fiscal year covered
by the Annual Report referred to in (a) above; and
(c) The description of the Registrant's Common Stock
contained in the Registration Statement on Form 10 (Registration No.
0-15160) filed with the Commission on December 31, 1986 under Section
12(g) of the Exchange Act, including any amendments or reports filed
for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof, and
prior to the filing of a post-effective amendment which indicates that
the securities offered hereby have been sold or which deregisters the
securities covered hereby then remaining unsold, shall also be deemed
to be incorporated by reference into this Registration Statement and
to be a part hereof commencing on the respective dates on which such
documents are filed.
Item 4. Not Applicable
Item 5. Not Applicable
Item 6. Indemnification of Directors and Officers.
The Registrant's Articles of Incorporation provide that the
Registrant may indemnify and hold harmless to the fullest extent
permitted by the Washington Business Corporation Act (the "WBCA") or
other applicable law each person who was or is made a party to or is
threatened to be made a party to or is involved (including, without
limitation, as a witness) in any actual or threatened action, suit or
other proceeding, whether civil, criminal, derivative, administrative
or investigative, by reason of the fact that he or she is or was a
director, officer, employee or agent of the Registrant or, being or
having been such a director, officer, employee or agent, he or she is
or was serving at the request of the Registrant as a director,
officer, employee, agent, trustee, or in any other capacity of another
Registrant or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action or omission in
an official capacity or in any other capacity while serving as a
director, officer, employee, agent, trustee or in any other capacity,
against all expense, liability and loss (including, without
limitation, attorneys' fees, judgments, fines, Employee Retirement
Income Security Act of 1974 excise taxes or penalties and amounts to
be paid in settlement) actually or reasonably incurred or suffered by
such person in connection therewith. The WBCA includes a provision
(Section 23B.08.320 of the Revised Code of Washington) that permits a
corporation to limit a director's liability to the corporation or its
shareholders for monetary damages for his or her acts or omissions as
a director, except in certain circumstances involving intentional
misconduct, self dealing or illegal corporate loans or distributions,
or any transaction from which the director personally benefits. Such
indemnification may continue as to a person who has ceased to be a
director, officer, employee or agent of the Registrant and shall inure
to the benefit of his or her heirs and personal representatives.
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The Registrant may pay the expenses of a director, officer,
employee or agent of the Registrant incurred in defending any such
proceeding in advance of the final disposition of any such proceeding;
provided, however, that the payment of such expenses in advance of the
final disposition of a proceeding shall be made to or on behalf of a
director, officer, employee or agent only upon delivery to the
Registrant of an undertaking, by or on behalf of such director,
officer, employee or agent, to repay all amounts so advanced if it
shall ultimately be determined that such director, officer, employee
or agent is not entitled to be indemnified under the Registrant's
Articles of Incorporation or otherwise, which undertaking may be
unsecured and may be accepted without reference to financial ability
to make repayment.
No indemnification shall be provided under the Registrant's
Articles of Incorporation to any such person if the Registrant is
prohibited by the provisions of the WBCA or other applicable law as
then in effect from paying such indemnification. The WBCA (Sections
23B.08.500 through 23B.08.600 of the Revised Code of Washington)
authorizes a court to award, or a corporation's Board of Directors to
grant, indemnity to directors and officers in terms sufficiently broad
to permit such indemnification under certain circumstances for
liabilities arising under the WBCA.
In addition, the Registrant maintains an insurance policy insuring
its directors and officers for certain acts or omissions while acting
in their official capacities.
Item 7. Not Applicable
Item 8. EXHIBITS
Exhibit
Number Description
------- ------------------------------------------
5.1 Opinion of Bogle & Gates
10.1 Amended 1992 Nonofficer Employee Stock
Option Plan
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Bogle & Gates (included in
opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
Item 9. UNDERTAKINGS
Incorporated by reference to Registration Statement Nos. 33-54757
and 33-59914.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Bothell,
State of Washington, on August 11, 1995.
ADVANCED TECHNOLOGY LABORATORIES, INC.
By /s/Dennis C. Fill
----------------------
Dennis C. Fill
POWER OF ATTORNEY
Each person whose individual signature appears below hereby
authorizes Dennis C. Fill, and W. Brinton Yorks Jr., and each of them as
attorneys-in-fact, with full power of substitution, to execute in the name
and on behalf of such person, individually and in each capacity stated below,
and to file, any and all amendments to this Registration Statement, including
any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities indicated on August 11, 1995.
Signature Title
/s/Dennis C. Fill Chairman of the Board, Chief
----------------------- Executive Officer
/s/Harvey N. Gillis Senior Vice President, Chief
----------------------- Financial Officer and Treasurer
Harvey N. Gillis (Principal Financial Officer)
/s/ Phillip M.. Nudelman Director
-----------------------
Phillip M. Nudelmen
/s/Kirby L. Cramer Director
-----------------------
Kirby L. Cramer
/s/Harvey Feigenbaum Director
-----------------------
Harvey Feigenbaum, M.D.
/s/Eugene A. Larson Director
-----------------------
Eugene A. Larson
/s/John R. Miller Director
-----------------------
John R. Miller
/s/Harry Woolf Director
-----------------------
Harry Woolf, Ph.D.
/s/Richard S. Totorica Corporate Controller (Chief
----------------------- Accounting Officer)
Richard S. Totorica
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INDEX TO EXHIBITS
Exhibit Sequentially
Number Description Numbered Page
------- -------------------------------- -------------
5.1 Opinion of Bogle & Gates 6
10.1 Amended 1992 Nonofficer Employee Stock 7
Option Plan
23.1 Consent of KPMG Peat Marwick LLP 14
23.2 Consent of Bogle & Gates (included in 6
opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page) 4
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Bogle & Gates Letterhead Exhibit 5.1
August 9, 1995
Advanced Technology Laboratories, Inc.
22100 Bothell Everett Highway
Bothell, WA 98041-3003
Gentlemen and Ladies:
We are acting as counsel to Advanced Technology Laboratories,
Inc., a Washington corporation (the "Company"), in connection with the
filing of a registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, with the
Securities and Exchange Commission, relating to the proposed sale by
the Company of an aggregate of 100,000 share of its common stock, par
value $0.01 per share (the "Common Stock"), issuable upon the exercise
of options granted pursuant to the Company's Amended 1992 Nonofficer
Employee Stock Option Plan.
In connection with the foregoing, we are of the opinion that the
Common stock will, when sold, be legally issued, fully paid and
nonassessable.
We hereby authorize and consent to the use of this opinion as
Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ Bogle & Gates
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May 30, 1995 Exhibit 10.1
ADVANCED TECHNOLOGY LABORATORIES, INC.
Amended 1992 Nonofficer Employee Stock Option Plan
1. Definitions
The following terms have the corresponding meanings for
purposes of the Plan:
"Change of Control" means
(a) a "Board Change." For purposes of the Plan, a Board Change
shall have occurred if a majority of the seats (other than vacant
seats) on the Corporation's Board of Directors (the "Board") were to
be occupied by individuals who were neither (i) nominated by a
majority of the Incumbent Directors nor (ii) appointed by directors so
nominated. An "Incumbent Director" is a member of the Board who has
been either (i) nominated by a majority of the directors of the
Corporation then in office or (ii) appointed by directors so
nominated, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
(b) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of (i) 20% or more of either (A)
the then outstanding shares of common stock (the "Outstanding
Corporation Common Stock") or (B) the combined voting power of the
then outstanding voting securities of the Corporation entitled to vote
generally in the election of directors (the "Outstanding Corporation
Voting Securities"), in the case of either (A) or (B) of this clause
(i), which acquisition is not approved in advance by a majority of the
Incumbent Directors or (ii) 33% or more of either (A) the Outstanding
Corporation Common Stock or (B) the Outstanding Corporation Voting
Securities, in the case of either (A) or (B) of this clause (ii),
which acquisition is approved in advance by a majority of the
Incumbent Directors; provided, however, that the following
acquisitions shall not constitute a Change of Control: (x) any
acquisition by the Corporation, (y) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Corporation or any corporation controlled by the Corporation, or (z)
any acquisition by any corporation pursuant to a reorganization,
merger or consolidation, if, following such reorganization, merger or
consolidation, the conditions described in clauses (i), (ii) and (iii)
of the following subsection (c) are satisfied; or
(c) approval by the stockholders of the Corporation of a
reorganization, merger or consolidation, in each case, unless,
immediately following such reorganization, merger or consolidation,
(i) more than 60% of, respectively, the then outstanding shares of
common stock of the corporation resulting from such reorganization,
merger or consolidation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the
Outstanding Corporation Common Stock and Outstanding Corporation
Voting Securities immediately prior to such reorganization, merger or
consolidation in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or
consolidation, of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities, as the case may be, (ii) no
Person (excluding the Corporation, any employee benefit plan (or
related trust) of the Corporation or such corporation resulting from
such reorganization, merger or consolidation and any Person
beneficially owning, immediately prior to such reorganization, merger
or consolidation, directly or indirectly, 33% or more of the
Outstanding Corporation Common Stock or Outstanding Corporation Voting
Securities, as the case may be) beneficially owns, directly or
indirectly, 33% or more of, respectively, the then outstanding shares
of common stock of the corporation resulting from such reorganization,
merger or consolidation or the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors, and (iii) at least a majority
of the members of the board of directors of the corporation resulting
from such reorganization, merger or consolidation were Incumbent
Directors at the time of the execution of the initial agreement
providing for such reorganization, merger or consolidation; or
(d) approval by the stockholders of the Corporation of (i) a
complete liquidation or dissolution of the Corporation or (ii) the
sale or other disposition of all or substantially all of the assets of
the Corporation, other than to a corporation, with
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respect to which immediately following such sale or other disposition,
(A) more than 60% of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally
in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Corporation Common Stock and Outstanding Corporation
Voting Securities immediately prior to such sale or other disposition
in substantially the same proportion as their ownership, immediately
prior to such sale or other disposition, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting
Securities, as the case may be, (B) no Person (excluding the
Corporation and any employee benefit plan (or related trust) of the
Corporation or such corporation and any Person beneficially owning,
immediately prior to such sale or other disposition, directly or
indirectly, 33% or more of the Outstanding Corporation Common Stock or
Outstanding Corporation Voting Securities, as the case may be)
beneficially owns, directly or indirectly, 33% or more of,
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in
the election of directors, and (C) at least a majority of the members
of the board of directors of such corporation were approved by a
majority of the Incumbent Directors at the time of the execution of
the initial agreement or action of the Board providing for such sale
or other disposition of assets of the Corporation.
"Committee" means the Committee provided for in Section 4, which
shall administer the Plan.
"Common Stock" means common stock, par value $0.01 per share, of
the Corporation.
"Corporation" means Advanced Technology Laboratories, Inc., a
Washington corporation.
"Designated Beneficiary" means any person designated in writing
by a Participant as a legal recipient of payments due under an award
in the event of the Participant's death, or in the absence of such
designation, the Participant's estate. Such designation must be on
file with the Corporation in order to be effective but, unless the
Participant has made an irrevocable designation, may be changed from
time to time by the Participant.
"Fair Market Value" of the Common Stock as of any trading day
means the average (rounded to the next highest cent in the case of
fractions of a cent) of the high and low sales prices of the Common
Stock as reported on such trading day by the NASDAQ National Market
System. If no sales price is reported for the Common Stock on such
trading day, then "Fair Market Value" shall mean the highest bid price
reported for the Common Stock on such trading day by the National
Quotation Bureau Incorporated or any similar nationally recognized
organization. The Committee, in its sole discretion, shall make all
determinations required by this definition.
"Participant" means an employee who has received an award under
the Plan.
"Plan" means this Advanced Technology Laboratories, Inc. Amended
1992 Nonofficer Employee Stock Option Plan.
"Retirement" means the termination of the services of a
Participant because of early or normal retirement as defined in the
Corporation's Retirement Plan.
"Withholding Tax" means any tax, including any federal, state or
local income tax or payroll tax, required by any governmental entity
to be withheld or otherwise deducted and paid with respect to the
transfer of shares of Common Stock as a result of the exercise of an
option.
2. Stock Subject to the Plan
There are reserved for issuance upon the exercise of options
under the Plan 250,000 shares of Common Stock. Such shares may be
authorized and unissued shares of Common Stock or previously
outstanding shares of Common Stock then held in the Corporation's
treasury. If any option granted under the Plan shall expire or
terminate for any reason (including, without limitation, by reason of
its surrender, pursuant to the provisions of Section 6(f) or the third
paragraph of Section 6(b) or otherwise, or cancellation, in whole or
in part, pursuant to the provisions of Section 6(c) or otherwise, or
the substitution in place thereof of a new option) without having been
exercised in full, the shares subject thereto shall again be available
for the purposes of issuance under the Plan
3. Administration
(a) The Plan shall be administered by the Committee. Subject to
the express provisions of the Plan, the Committee shall have plenary
authority, in its discretion, to determine the individuals to whom,
and the time or times at which options shall be granted and the number
of shares to be covered by each such grant. In making such
determinations, the Committee
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may take into account the nature of the services rendered by the respective
Participants, their present and potential contributions to the Corporation's
success and such other factors as the Committee in its discretion may deem
relevant. Subject to the express provisions of the Plan, the Committee shall
have plenary authority to interpret the Plan, to prescribe, amend and
rescind rules and regulations relating to it, to determine the terms
and provisions of option agreements (which need not be identical) and
to make all other determinations necessary or advisable for the
administration of the Plan. The Committee's determinations of the
matters referred to in this Section 3 shall be conclusive. It is the
intention of the Corporation that the Plan and the administration
hereof comply in all respects with Section 16(b) of the Exchange Act,
and the rules and regulations promulgated thereunder, and if any Plan
provision is later found not to be in compliance with Section 16(b),
the provision shall be deemed null and void, and in all events the
Plan shall be construed in favor of its meeting the requirements of
Rule 16b-3.
(b) The Committee may in its discretion delegate to a committee
appointed by the Board consisting of one or more officers of the
Corporation (the "Grant Committee") the authority to grant, pursuant
to this Plan, options for a total number of shares of Common Stock
determined by the Committee, and under terms, conditions and criteria
which are approved by the Committee. Such authorization may include
the ability to determine the Participants to whom, the number of
shares in respect of which, and the time or times at which, such
options shall be granted. In the event the Committee shall grant such
authority to the Grant Committee, the Grant Committee shall report to
the Committee in writing, at times determined by the Committee, (i)
the names of Participants who have received any such grants, (ii) the
number of shares covered by each option so granted, (iii) the date
upon which each such option was granted and (iv) such other
information as the committee may request. Any action of the Grant
Committee pursuant to authority granted by the Committee under this
Section 3(b) in accordance with the Committee resolution granting such
authority shall be deemed to be the action of the Committee.
4. The Committee
(a) The Board shall designate a Committee of members of the
Board which shall meet the requirements of Section 16(b) of the
Exchange Act. Currently, the Committee shall consist solely of two or
more members of the Board who are disinterested. If at any time an
insufficient number of disinterested directors is available to serve
on such Committee, interested directors may serve on the Committee;
however, during such time, no options shall be granted under the Plan
to any person if the granting of such options would not meet the
requirements of Section 16(b) of the Exchange Act.
(b) For purposes of this Section 4, a "disinterested director"
is a person who meets the definition of "disinterested person" as set
forth in the rules and regulations promulgated under Section 16(b) of
the Exchange Act. Currently, a disinterested director is a member of
the Board who is not (and, during the 12-month period preceding his
appointment as a member of the Committee has not been) granted or
awarded stock, stock appreciation rights or other equity securities of
the Corporation or any affiliated corporation pursuant to the Plan or
any other plan of the Corporation or any affiliated corporation except
for formula plans (as such term is defined in Rule 16b-3(c)(2)(ii)
issued under the Exchange Act) or ongoing securities acquisition plans
(as described in Rule 16b-3(d)(2)(i) issued under the Exchange Act).
The Committee shall be appointed by the Board, which may from time to
time appoint members of the Committee in substitution for members
previously appointed and may fill vacancies, however caused, in the
Committee. The Committee shall select one of its members as its
Chairman and shall hold its meetings at such times and places as it
may determine. A majority of its members shall constitute a quorum.
All determinations of the Committee shall be made by not less than a
majority of its members. Any decision or determination reduced to
writing and signed by all the members shall be fully as effective as
if it had been made by a majority vote at a meeting duly called and
held. The Committee may appoint a secretary, shall keep minutes of
its meetings and shall make such rules and regulations for the conduct
of its business as it shall deem advisable.
5. Eligibility
The Committee may grant options only to employees of the
Corporation and of its present and future subsidiary corporations
("subsidiaries") who, at the time of the grant, are not officers or
directors (within the meaning of Section 16 of the Exchange Act and
the rules and regulations promulgated thereunder) of the Corporation
or any of its present and future subsidiary corporations. Any person
eligible under the Plan may receive one or more grants of options as
the Committee shall from time to time determine, and such
determinations may be different as to different Participants.
6. Option Grants
(a) The Committee is authorized under the Plan, in its
discretion, to issue only options which do not qualify as "incentive
stock options" as defined in Section 422 of the United States Internal
Revenue Code of 1986, as amended ("Nonqualified Stock Options") and
the options shall be designated as Nonqualified Stock Options in the
applicable option agreement. The purchase price of the Common Stock
under each option granted under the Plan shall be determined by the
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Committee but shall be not less than the average Fair Market Value of
the Common Stock over any continuous period of trading days beginning
and ending no more than 30 business days before or after the date such
option is granted.
(b) The Committee shall be authorized in its discretion to
prescribe in the option grant the installments, if any, in which an
option granted under the Plan shall become exercisable, provided that
no option shall be exercisable prior to the first anniversary of the
date of grant thereof except as provided in Section 6(c), (d), (g),
and (h) or except as the Committee otherwise determines. In no case
may an option be exercised as to less than 100 shares at any one time
(or the remaining shares covered by the option if less than 100)
during the term of the option. The Committee shall also be authorized
to establish the manner of the exercise of an option. The term of
each option shall be not more than 10 years from the date of grant
thereof. In general, upon exercise, the option price is to be paid in
full in cash; however, the Committee can determine at any time prior
to exercise that additional forms of payment will be permitted. To
the extent permitted by the Committee and applicable laws and
regulations (including, but not limited to, federal tax and securities
laws and regulations and state corporate law), an option may be
exercised (i) in Common Stock owned by the option holder having a Fair
Market Value on the date of exercise equal to the aggregate option
price, or in a combination of cash and stock; provided, however, that
payment in stock shall not be made unless such stock shall have been
owned by the option holder for a period of at least three months prior
thereto; or (ii) by delivery of a properly executed exercise notice,
together with irrevocable instructions to a broker designated by the
Corporation, all in accordance with the regulations of the Federal
Reserve Board, to deliver promptly to the Corporation the amount of
sale or loan proceeds to pay the exercise price and any Withholding
Tax obligations that may arise in connection with the exercise.
In lieu of requiring an option holder to pay cash or stock and to
receive in turn certificates for shares of Common Stock upon the
exercise of an option, if the option agreement so provides, the
Committee may elect to require the option holder to surrender the
option to the Corporation for cancellation as to all or any portion of
the number of shares covered by the intended exercise and receive in
exchange for such surrender a payment, at the election of the
Committee, in cash, in shares of Common Stock or in a combination of
cash and shares of Common Stock, equivalent to the appreciated value
of the shares covered by the option surrendered for cancellation.
Such appreciated value shall be the difference between the option
price of such shares (as adjusted pursuant to Section 15) and the Fair
Market Value of such shares, which shall for this purpose be
determined by the Committee taking into consideration all relevant
factors, but which shall not be less than the Fair Market Value of
such shares on the date on which the option holder's notice of
exercise is received by the Corporation. Upon delivery to the
Corporation of a notice of exercise of option, the Committee may avail
itself of its right to require the option holder to surrender the
option to the Corporation for cancellation as to shares covered by
such intended exercise. The Committee's right of election shall
expire, if not exercised, at the close of business on the fifth
business day following the delivery to the Corporation of such notice.
Should the Committee not exercise such right of election, the delivery
of the aforesaid notice of exercise shall constitute an exercise by
the option holder of the option to the extent therein set forth, and
payment for the shares covered by such exercise shall become due
immediately.
(c) In the event that a Participant's services for the
Corporation or one of its subsidiaries shall cease and the termination
of such individual's service is for cause, the option shall
automatically terminate upon first notification to the option holder
of such termination of services, unless the Committee determines
otherwise, and such option shall automatically terminate upon the date
of such termination of services for all shares which were not
purchasable upon such date. For purposes of this Section 6(c),
"cause" is defined as a determination by the Committee that the option
holder (i) has committed a felony, (ii) has engaged in an act or acts
of deliberate and intentional dishonesty resulting or intended to
result directly or indirectly in improper material gain to or personal
enrichment of the individual at the Corporation's expense, or (iii)
has willfully disobeyed the Corporation's appropriate rules,
instructions or orders, and such willful disobedience has continued
for a period of 10 days following notice thereof from the Corporation.
In the event of the termination of the services of the holder of
an option because of Retirement or disability, he or she may (unless
such option shall have been previously terminated pursuant to the
provisions of the preceding paragraph or unless otherwise provided in
the option grant) exercise such option at any time prior to the
expiration of the option, (i) in the event of disability or normal
Retirement, to the extent of the number of shares covered by such
option, whether or not such shares had become purchasable by him or
her at the date of the termination of his or her services and (ii) in
the event of early Retirement, to the extent of the number of shares
covered by such option at such time or times as such option becomes
purchasable by him or her in accordance with its terms.
In the event of the death of an individual to whom an option has
been granted under the Plan, while he or she is performing services
for the Corporation or a subsidiary, the option theretofore granted to
him or her (unless the option shall have been previously terminated
pursuant to the provisions of this Section 6(c) or unless otherwise
provided in the option grant) may, subject to the limitations
described in Section 6(g), be exercised by his or her Designated
Beneficiary, by his or her legatee or legatees of the option under his
last will, or by his or her personal representatives or distributees,
at any time within a period of one year after his or her death, but
not after the expiration of the option, to the extent of the remaining
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shares covered by the option whether or not such shares had become
purchasable by such an individual at the date of death. In the event
of the death of an individual (i) during the one-year period following
termination of his or her services or (ii) following termination of
his or her services by reason of Retirement or disability, then the
option (if not previously terminated pursuant to the provisions of
this Section 6(c)) may be exercised during the remainder of such one-
year period or during the remaining term of the option, respectively,
by his or her Designated Beneficiary, by his or her legatee under his
or her last will, or by his or her personal representative or
distributee, but only to the extent of the number of shares
purchasable by such Participant pursuant to the provisions of Section
6(d) at the date of termination of services.
In the event of the termination of the services of the holder of
an option, other than by reason of Retirement, disability or death, he
or she may (unless the option shall have been previously terminated
pursuant to the provisions of this Section 6(c) or unless otherwise
provided in the option grant) exercise the option at any time within
one year after such termination but not after the expiration of the
option, to the extent of the number of shares covered by the option
which were purchasable by him or her at the date of the termination of
services, and such option shall automatically terminate upon the date
of such termination of services for all shares which were not
purchasable upon such date.
(d) Notwithstanding the foregoing provisions, the Committee may
determine, in its sole discretion, in the case of any termination of
services, that the holder of an option may exercise such option to the
extent of some or all of the remaining shares covered thereby whether
or not such shares had become purchasable by such an individual at the
date of the termination of his services and may exercise such option
at any time prior to the expiration of the original term of the
option. Options granted under the Plan shall not be affected by any
change of relationship with the Corporation so long as the holder
continues to be an employee of the Corporation or of a subsidiary;
however, a change in a Participant's status from an employee to a
nonemployee shall result in the termination of an outstanding option
held by such Participant in accordance with Section 6(c). The
Committee, in its absolute discretion, may determine all questions of
whether particular leaves of absence constitute a termination of
service. Nothing in the Plan or in any option granted pursuant to the
Plan shall confer on any individual any right to continue in the
employ or other service of the Corporation or any other person or
interfere in any way with the right of the Corporation or any other
person to terminate his or her employment or other services at any
time.
(e) The date of grant of an option pursuant to the Plan shall be
the date specified by the Committee, or the Grant Committee acting
pursuant to authority granted under Section 3(b), at the time it
grants such option, provided that such date shall not be prior to the
date of such action by the Committee or the grant Committee, and that
the price shall be determined in accordance with Section 6(a) on such
date. The Committee or Grant Committee shall promptly notify a
grantee of an award and a written option grant shall promptly be duly
executed and delivered by or on behalf of the Corporation.
(f) The Committee shall be authorized, in its absolute
discretion, to permit option holders to surrender outstanding options
in exchange for the grant of new options or to require option holders
to surrender outstanding options as a condition precedent to the grant
of new options. The number of shares covered by the new options, the
option price (subject to the provisions of Section 6(a)), the option
period and other terms and conditions of the new options shall all be
determined in accordance with the Plan and may be different from the
provisions of the surrendered options.
(g) Notwithstanding any contrary waiting period, installment
period or other limitation or restriction in any option agreement or
in the Plan, in the event of a Change of Control, each option
outstanding under the Plan shall thereupon become exercisable at any
time during the remaining term of the option, but not after the term
of the option, to the extent of the number of shares covered by the
option, whether or not such shares had become purchasable by the
Participant thereunder immediately prior to such Change of Control.
(h) Anything in the Plan to the contrary notwithstanding, during
the 90 calendar days from and after a Change of Control (x) an
optionee (other than an optionee who initiated a Change of Control in
a capacity other than as an officer or a Director of the Corporation)
who is an officer or a Director of the Corporation (within the meaning
of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder) with respect to an option that was granted at
least six months prior to the date of exercise pursuant to this
sentence and (y) any other optionee who is not an officer or a
Director with respect to an option shall, unless the Committee shall
determine otherwise at the time of grant, have the right, in lieu of
the payment of the full purchase price of the shares of Common Stock
being purchased under the option and by giving written notice to the
Corporation, to elect (within such 90-day period) to surrender all or
part of the option to the Corporation and to receive in cash an amount
equal to the amount by which the Fair Market Value of the Common Stock
on the date of exercise shall exceed the purchase price per share
under the option multiplied by the number of shares of Common Stock
granted under the stock option as to which the right granted by this
sentence shall have been exercised. Such written notice shall specify
the optionee's election to purchase shares granted under the option or
to receive the cash payment referred to in the immediately preceding
sentence.
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7. Withholding Taxes
In connection with the transfer of shares of Common Stock as a
result of the exercise of an option the Corporation (a) shall not
issue a certificate for such shares until it has received payment from
the Participant of any Withholding Tax in cash or by the retention by
the Corporation or acceptance by the Corporation upon delivery thereof
by the Participant of shares of Common Stock sufficient in Fair Market
Value to cover the amount of such Withholding Tax and (b) shall have
the right to retain or sell without notice, or to demand surrender of,
shares of Common Stock in value sufficient to cover any Withholding
Tax. The Corporation shall have the right to withhold from any cash
amounts due from the Corporation to the Participant pursuant to the
Plan an amount equal to the Withholding Tax. In either case, the
Corporation shall make payment (or reimburse itself for payment made)
to the appropriate taxing authority of an amount in cash equal to the
amount of such Withholding Tax, remitting any balance to the
Participant. For purposes of this Section 7, the value of shares of
Common Stock so retained or surrendered shall be equal to the Fair
Market Value of such shares on the date that the amount of the
Withholding Tax is to be determined (the "Tax Date"), and the value of
shares of Common Stock so sold shall be the actual net sale price per
share (after deduction of commissions) received by the Corporation.
Notwithstanding the foregoing, the Participant may elect, subject
to approval by the Committee, to satisfy the obligation to pay any
Withholding Tax, in whole or in part, by providing the Corporation
with funds sufficient to enable the Corporation to pay such
Withholding Tax or by having the Corporation retain or accept upon
delivery thereof by the Participant shares of Common Stock sufficient
in Fair Market Value to cover the amount of such Withholding Tax.
Each election by a Participant to have shares retained or to deliver
shares for this purpose shall be subject to the following
restrictions: (i) the election must be in writing and made on or
prior to the Tax Date and (ii) if the Participant is subject to
Section 16 of the Exchange Act, an election to have shares retained to
satisfy the Withholding Tax must be an irrevocable election made at
least six months prior to the Tax Date or the withholding election
must become effective during the 10-business-day period beginning on
the third business day following the date on which the Corporation
releases for publication its annual or quarterly summary statements of
sales and earnings and ending on the twelfth business day following
the date of release thereof.
8. Transferability and Ownership Rights of Options
No option awarded under the Plan shall be transferable otherwise
than pursuant to the designation of a Designated Beneficiary or by
will, descent or distribution, and an option may be exercised, during
the lifetime of the holder thereof, only by him or her. The holder of
an option shall have none of the rights of a stockholder until the
shares subject thereto shall have been registered in the name of such
holder on the transfer books of the Corporation.
9. Section 16(b) Compliance and Bifurcation of Plan
It is the intention of the Corporation that, if any of the
Corporation's equity securities are registered pursuant to Section
12(b) or 12(g) of the Exchange Act, the Plan shall comply in all
respects with Rule 16b-3 under the Exchange Act and, if any Plan
provision is later found not to be in compliance with such Section,
the provision shall be deemed null and void, and in all events the
plan shall be construed in favor of its meeting the requirements of
Rule 16b-3. Notwithstanding anything in the Plan to the contrary, the
Board, in its absolute discretion, may bifurcate the Plan so as to
restrict, limit or condition the use of any provision of the Plan to
participants who are officers and directors subject to Section 16 of
the Exchange Act without so restricting, limiting or conditioning the
Plan with respect to other participants.
10. Adjustments Upon Changes in Capitalization
Except as otherwise provided in Section 6(h) and Section 6(i), in
the event of any changes in the outstanding stock of the Corporation
by reason of stock dividends, stock splits, recapitalizations,
mergers, consolidations, combinations or exchanges of shares, split-
ups, split-offs, spin-offs, liquidations or other similar changes in
capitalization, or any distribution to stockholders other than cash
dividends, the Committee shall make such adjustments, if any, in light
of the change or distribution as the Committee in its sole discretion
shall determine to be appropriate, in the number and class of shares
or rights subject to options and the exercise prices of the options
covered thereby. In the event of any such change in the outstanding
Common Stock of the Corporation, the aggregate number and class of
shares available under the Plan and the maximum number of shares as to
which options may be granted shall be appropriately adjusted by the
Committee.
11. Amendment and Termination
Unless the Plan shall theretofore have been terminated as
hereinafter provided, the Plan shall terminate on, and no awards of
options shall be made after, October 31, 2002; provided, however, that
such termination shall have no effect on awards of options made prior
thereto. The Plan may be terminated, modified or amended by the
stockholders of the
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Corporation. The Board of Directors of the Corporation may also terminate
the Plan, or modify or amend the Plan in such respects as it shall deem
advisable in order to conform to any change in any law or regulation
applicable thereto, or in other respects. The amendment or termination of
the Plan shall not, without the consent of the recipient of any award
under the Plan, alter or impair any rights or obligations under any award
theretofore granted under the Plan.
12. Effectiveness of the Plan
The Plan shall become effective on November 1, 1992. The
Committee may in its discretion authorize the granting of options, the
exercise of which shall be expressly subject to the conditions that
(a) the shares of Common Stock reserved for issuance under the Plan
shall have been duly listed, upon official notice of issuance, upon
each stock exchange in the United States upon which the Common Stock
is traded and (b) a registration statement under the Securities Act of
1933, as amended, with respect to such shares shall have become
effective.
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KPMG Peat Marwick Letterhead Exhibit 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Advanced Tehcnology Laboratories, Inc.:
We consent to the use of our reports incorporated herein by reference.
Our report refers to a change in the method of accounting for
investments by adopting Statement of Financial Accounting Standards
No. 115, Accounting for Certain Investments in Debt and Equity
Securities.
KPMG Peat Marwick LLP
Seattle, Washington
August 8, 1995
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