As filed with the Securities and Exchange Commission on April 24, 2000.
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
Sparta Surgical Corporation
----------------------------------------------------
(Exact name of Registrant as specified in its charter)
----------------
Delaware 22-2870438
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
---------------
2100 Meridian Park Boulevard, Concord, California 94520
-------------------------------------------------------
(Address of principal executive offices) (Zip Code)
1987 Stock Option Plan
(Full title of the plan)
Thomas F. Reiner, Chief Executive Officer
2100 Meridian Park Boulevard
Concord, California 94520
(925) 825-8151
-----------------------------------------------------------
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale to public: From time to
time after the Registration Statement becomes effective.
---------------------------
Exhibit Index Begins at Page II-5
<PAGE>
================================================================================
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Amount to be Proposed Proposed Amount of
Securities Registered (1) Maximum Maximum Registration
to be Offering Aggregate Fee
Registered Price Per Offering
Security (2) Price (2)
- --------------------------------------------------------------------------------
Common Stock, 250,000 Shares $1.375 $343,750 $102
$.002 par value
================================================================================
(1) This Registration Statement, pursuant to Rule 416, covers any
additional shares of no par value Common Stock ("shares") which become issuable
under the 1987 Stock Option Plan ("Plan") set forth herein by reason of any
stock dividend, stock split, recapitalization or any other similar transaction
without receipt of consideration which results in an increase in the number of
shares outstanding.
(2) Estimated solely for the purpose of computing the amount of the
Registration fee under Rule 457 of the Securities Act of 1933, as amended. A
total of 250,000 shares are issuable under the Plan at an offering price per
share based upon the closing price of the Common Stock on the Electronic
Bulletin Board on April 18, 2000, of $ 1.375 per share.
ii
<PAGE>
Sparta Surgical Corporation
PART I
------
Cross Reference Sheet Required by Item 501
Item in Form S-8 Caption In Prospectus
---------------- ---------------------
1. General Plan Information........... Cover Page; Issuer and
Participating Employees; Description
of the Plan; Tax Consequences
2. Registrant Information and
Employee Plan Annual
Information........................ Available Information
3. Incorporation of Documents
by Reference....................... Incorporation by Reference
4. Description of Securities.......... Description of the Plan
5. Interests of Named Experts
and Counsel........................ Legal Matters
6. Indemnification of
Directors and Officers............. Indemnification of Directors and
Officers--Part II
7. Exemption from Registration
Claimed............................ Not Applicable
8. Exhibits........................... Not Applicable (See Part II, Item 8)
9. Undertakings....................... Not Applicable (See Part II, Item 9)
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the requirements of the Note to Part I of Form S-8 and Rule
428(b)(1) of the Rules under the Securities Act of 1933, as amended, the
information required by Part I of Form S-8 is included in the Reoffer Prospectus
which follows. The Reoffer Prospectus together with the documents incorporated
by reference pursuant to Item 3 of Part II of this Registration Statement
constitute the Section 10(a) Prospectus.
iii
<PAGE>
REOFFER PROSPECTUS
The material which follows, up to but not including the page beginning Part
II of this Registration Statement, constitutes a prospectus, prepared on Form
S-3, in accordance with General Instruction C to Form S-8, to be used in
connection with resales of securities acquired under the Registrant's 1999 Stock
Option Plan by directors of the Registrant, as defined in Rule 405 under the
Securities Act of 1933, as amended.
iv
<PAGE>
250,000 SHARES
COMMON STOCK
Sparta Surgical Corporation
---------------
1987 STOCK OPTION PLAN
---------------
This reoffer prospectus relates to the offering by Sparta Surgical
Corporation and our employees, officers, directors and consultants of up to
250,000 shares (subject to adjustment in certain circumstances) of our $.002 par
value common stock, purchasable by our employees, officers, directors and
consultants under common stock options under our 1987 Stock Option Plan. As of
the date hereof, 225,000 options issued under our plan are outstanding.
---------------
This Prospectus will also be used by our non-affiliates as well as persons
who are "affiliates," as that term is defined under the Securities Act of 1933,
to effect resales of the shares. We will receive no part of the proceeds of any
such sales although we will receive the exercise price of the options.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
---------------
No person is authorized to give any information or to make any
representation not contained in this prospectus in connection with the offer
made hereby, and, if given or made, such information or representation must not
be relied upon as having been authorized by us. The delivery of this prospectus
does not imply that the information herein is correct as of any time subsequent
to this date.
----------------
The date of this prospectus is April 24, 2000.
1
<PAGE>
AVAILABLE INFORMATION
---------------------
We are subject to the informational requirements of the Securities Exchange
Act of 1934, as amended, including Sections 14(a) and 14(c) relating to proxy
and information statements, and in accordance therewith file reports and other
information with the Securities and Exchange Commission. Reports and other
information filed by us can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street N.W., Washington,
D.C. 20549; 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; 7
World Trade Center, New York, New York 10048; and 5670 Wilshire Boulevard, Los
Angeles, California 90036. Copies of such material can also be obtained from the
Public Reference Section of the Commission, 450 Fifth Street N.W., Washington,
D.C. 20549 at prescribed rates and on the Commission's website at www.sec.gov.
Our common stock is traded on the Electronic Bulletin Board under the symbol
"SPSG."
We furnish annual reports to our shareholders which include audited
financial statements. We may furnish such other reports as may be authorized,
from time to time, by our Board of Directors.
INCORPORATION BY REFERENCE
Certain documents have been incorporated by reference into this prospectus,
either in whole or in part. We will provide without charge (1) to each person to
whom a prospectus is delivered, upon written or oral request of such person, a
copy of any and all of the information that has been incorporated by reference
(not including exhibits to the information unless such exhibits are specifically
incorporated by reference into the information), and (2) documents and
information required to be delivered to our directors pursuant to Rule 428(b).
Requests for such information shall be addressed to us at 2100 Meridian Park
Boulevard, Concord, California 94520, (925) 825-8151.
2
<PAGE>
TABLE OF CONTENTS
-----------------
INTRODUCTION............................................................... 4
SELLING STOCKHOLDERS........................................................ 4
METHOD OF SALE.............................................................. 4
SEC POSITION REGARDING INDEMNIFICATION...................................... 5
DESCRIPTION OF THE PLAN..................................................... 5
APPLICABLE SECURITIES LAW RESTRICTIONS...................................... 6
TAX CONSEQUENCES............................................................ 7
LEGAL MATTERS............................................................... 8
EXPERTS .................................................................... 8
3
<PAGE>
INTRODUCTION
Since 1990 we have developed, manufactured and marketed surgical and
electrotherapy products for the healthcare industry. Our surgical products
include:
o Micro-surgical hand-held instruments and accessories;
o Electro-surgical products;
o Critical care hospital disposable products; and
o Oral maxillofacial implant plating systems to repair bone
fractures in the face.
We market over 3,000 medical products. Our surgical products are used in
ophthalmic, ear, nose, throat, plastic, reconstructive, general and oral
maxillofacial surgical procedures. Our electrotherapy products, which are used
for pain management, consist of transcultaneous electrical nerve stimulators, or
TENS, and their related and reusable electrodes and accessories.
We were incorporated in Delaware in 1987, and have continuously been
engaged in the medical products business since that date. Our offices are
located at 2100 Meridian Park Boulevard, Concord, California 94520, and our
telephone number is (925) 825-8151.
SELLING STOCKHOLDERS
This prospectus covers possible sales by our officers and directors, as
well as employees whose names are not included herein, of shares they acquire
through exercise of options granted under the plan. The names of such officers
and directors who may be selling stockholders from time to time are listed
below, along with the number of shares of common stock currently owned by them
and the number of shares offered for sale hereby. The number of shares offered
for sale by such individuals may be updated in supplements to this prospectus,
which will be filed with the Securities and Exchange Commission in accordance
with Rule 424(b) under the Securities Act of 1933, as amended. The stockholders
listed below have sole voting and investment powers with respect to the shares.
Their addresses are in care of us.
Number of
Name of Selling Shareholdings Shares Offered
Stockholder Number (1) Percent for Sale
----------- ---------- ------- --------
Thomas F. Reiner 8,253,367 62.0 50,000
John O'Hanlon 25,000 -0- 25,000
(1) Includes stock options exercisable within 60 days and shares for which Mr.
Reiner acts as voting trustee.
METHOD OF SALE
Sales of the shares offered by this prospectus will be made on the
Electronic Bulletin Board where our common stock is listed for trading, in other
markets where our common stock may be traded, or in negotiated transactions.
Sales will be at prices current when the sales take place and will generally
involve payment of customary brokers' commissions. There is no present plan of
distribution.
4
<PAGE>
SEC POSITION REGARDING INDEMNIFICATION
Our Certificate of Incorporation and Bylaws provide for indemnification of
officers and directors, among other things, in instances in which they acted in
good faith and in a manner they reasonably believed to be in, or not opposed to,
our best interests and in which, with respect to criminal proceedings, they had
no reasonable cause to believe their conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers or persons
controlling us under the provisions described above, we have been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in that Act and is therefore unenforceable.
DESCRIPTION OF THE PLAN
In October 1987 we adopted our 1987 Stock Option Plan, which provides for
the grant to employees, officers, directors and consultants of options to
purchase shares of common stock, consisting of both "incentive stock options"
within the meaning of Section 422A of the United States Internal Revenue Code of
1986 (the "Code") and "non-qualified" options. Incentive stock options are
issuable only to employees, while non-qualified options may be issued to
non-employee directors, consultants and others, as well as to employees. In
January 1994, our stockholders approved an increase in the number of stock
options available under the plan to a total of 250,000 options.
The plan is administered by our Board of Directors, which determines those
individuals who are to receive options, the time period during which the options
may be partially or fully exercised, the number of shares of common stock that
may be purchased under each option, and the option price.
The per share exercise price of the common stock subject to an incentive
stock option or non-qualified option may not be less than the fair market value
of the common stock on the date the option is granted. The per share exercise
price of the common stock subject to a non-qualified option is established by
the Board of Directors. The aggregate fair market value, determined as of the
date the option is granted, of the common stock that any employee may purchase
in any calendar year pursuant to the exercise of incentive stock options, may
not exceed $100,000. No person who owns, directly or indirectly at the time of
the granting of an incentive stock option to him, more than 10% of the total
combined voting power of all classes of our stock, is eligible to receive any
incentive stock options under the plan unless the option price is at least 110%
of the fair market value of the common stock subject to the option determined on
the date of grant. Non-qualified options are not subject to this limitation.
No incentive stock option may be transferred by an optionee other than by
will or the laws of descent and distribution and, during the lifetime of an
optionee, the option will be exercisable only by him or her. In the event of
termination of employment other than by death or disability, the optionee has
three months after such termination during which he or she can exercise the
option. Upon termination of employment of an optionee by reason of death or
permanent total disability, his or her option remains exercisable for one year
thereafter to the extent it was exercisable on the date of such termination. No
similar limitation applies to non-qualified options.
5
<PAGE>
Options under the plan must be granted within ten years from the effective
date, as amended, of the plan. The incentive stock options granted under the
plan cannot be exercised more than ten years from the date of grant except that
incentive stock options issued to 10% or greater stockholders are limited to
five-year terms. All options granted under the plan provide for the payment of
the exercise price in cash or by delivery to us of shares of common stock
already owned by the optionee having a fair market value equal to the exercise
price of the options being exercised, or by a combination of such methods of
payment. Therefore, an optionee may be able to tender shares of common stock to
purchase additional shares of common stock and may theoretically exercise all of
his stock options with no additional investment other than his original shares.
Any unexercised options that expire or that terminate upon an optionee
ceasing to be an officer, director or an employee become available once again
for issuance. As of February 29, 2000, options to purchase 225,000 shares have
been granted under the plan, including 75,000 options granted to executive
officers and directors at exercise prices ranging from $0.59 to $1.00.
The provisions of the Federal Employee Retirement Income Security Act of
1974 do not apply to the plan. Shares issuable upon exercise of options will not
be purchased in open market transactions but will be issued by us from
authorized shares. There are no assets administered under the plan and,
accordingly, no investment information is furnished.
Shares issuable under the plan may be sold in the open market, without
restrictions, as free trading securities. No options may be assigned,
transferred, hypothecated or pledged by the option holder. No person may create
a lien on any securities under the plan, except by operation of law. However,
there are no restrictions on the resale of the shares underlying the options.
The plan will remain in effect until October 2007, but may be terminated or
extended by our Board of Directors. Additional information concerning the plan
and its administrators may be obtained from us at the address and telephone
number indicated under "Incorporation by Reference" above.
APPLICABLE SECURITIES LAW RESTRICTIONS
If the plan optionee is deemed to be an "affiliate," as that term is
defined under the Securities Act of 1933, as amended, the resale of the shares
purchased upon exercise of options covered hereby will be subject to certain
restrictions and requirements. Our legal counsel may be called upon to discuss
these applicable restrictions and requirements with any optionee who may be
deemed to be an affiliate, prior to exercising an option.
In addition to the requirements imposed by the Securities Act of 1933, the
anti-fraud provisions of the Securities Exchange Act of 1934 and the rules
thereunder, including Rule 10b-5, are applicable to any sale of shares acquired
pursuant to options.
6
<PAGE>
Up to 250,000 shares may be issued under the plan. We have authorized
8,000,000 shares of common stock of which 8,302,094 shares were outstanding as
of April 11, 2000, subject to pending stockholder action to increase our
authorized shares to 25,000,000. Common shares outstanding and those to be
issued upon exercise of options are fully paid and non-assessable, and each
share of stock is entitled to one vote at all shareholders' meetings. All shares
are equal to each other with respect to lien rights, liquidation rights and
dividend rights. There are no preemptive rights to purchase additional shares by
virtue of the fact that a person is our shareholder. Shareholders do not have
the right to cumulate their votes for the election of directors unless a
candidate's name has been placed in nomination prior to commencement of voting
and a shareholder has given notice prior to commencement of the voting of the
shareholder's intention to cumulate votes.
Directors must comply with certain reporting requirements and resale
restrictions pursuant to Sections 16(a) and 16(b) of the Securities Exchange Act
of 1934 and the rules thereunder upon the receipt or disposition of any options.
TAX CONSEQUENCES
If an option is exercised and if the optionee does not dispose of the
shares acquired pursuant to the exercise within two years of the date of the
granting of the option nor within one year from the issuance of the shares
pursuant to exercise of the options, then there will not be any federal income
tax consequences to us from either the exercise of the option or the receipt of
the proceeds with respect to the exercise of the option. In such circumstances,
the optionee would not be required to recognize any taxable income upon the
exercise of the option. Furthermore, the sale of the shares received upon
exercise of the option would result in long-term capital gain or long-term
capital loss to the optionee based on the difference between the amount received
with respect to such sale and the amount paid upon the exercise of the option.
If an optionee exercised an option and sold the shares acquired pursuant to
such exercise either within two years from the date of the granting of the
option or within one year from the date of the transfer of such shares to him
pursuant to his exercise of the option, then in general we would be entitled to
a deduction for federal income tax purposes equal to lessor of: (1) the fair
market value of the stock on the date of exercise over the option price of the
stock; or (2) the amount realized on disposition over the adjusted basis of the
stock. The optionee would recognize income equal to the amount of our deduction.
Our deduction would be allowed, and the optionee's income would be taxable, in
the year the optionee disposed of the shares. However, if the disposition occurs
within two years of the date of the grant and the disposition is a sale or
exchange with respect to which a loss, if sustained, would be recognized
(generally any disposition other than to a related party), then the optionee's
income and our deduction would not exceed the excess (if any) of the amount
realized on such sale or exchange over the adjusted basis of such shares. We
expect that optionees will be required to exercise their options within ten
years from the date of grant although optionees may hold the shares issuable
upon exercise of the options indefinitely.
7
<PAGE>
For options exercised after 1987, an individual generally must include in
alternative minimum taxable income the amount by which the option price paid is
exceeded by the fair market value at the time the individual's rights to the
shares are freely transferable or are not subject to a substantial risk of
forfeiture. The alternative minimum tax is payable only if the alternative
minimum tax exceeds the regular income tax liability.
The provision of Section 401(a) of the Code, relating to "qualified"
pension, profit sharing and stock bonus plans, do not apply to the options or
underlying shares covered hereby.
LEGAL MATTERS
The validity of the shares of common stock offered hereby upon exercise of
options will be passed on for the us by Gary A. Agron, 5445 DTC Parkway, Suite
520, Englewood, Colorado 80111.
EXPERTS
Our financial statements contained in our Annual Report on Form 10-KSB for
the year ended February 28, 1999, were audited by Grant Thornton, LLP,
independent certified public accountants, as indicated in their report with
respect thereto, and are incorporated herein by reference.
8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents previously filed with the Securities and
Exchange Commission:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
February 28, 1999, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "Exchange Act");
(b) The Registrant's Quarterly Reports on Form 10-QSB for the quarters
ended May 31, 1999, August 31, 1999, and November 30, 1999, filed pursuant
to Section 13(a) of the Exchange Act.
(c) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form SB-2 filed under the Securities
Act of 1933, as amended (Registration No.333-34528), including any
amendments or reports filed for the purpose of updating such description.
(d) All other reports and subsequent reports filed pursuant to Section
13(a) or 15(d) of the Exchange.
All reports and definitive proxy or information statements filed by the
Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which de-registers all securities then remaining unsold at the time
of such amendment will be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
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 such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
Incorporated by reference to the Registrant's Registration Statement on
Form SB-2, File Number 333-34528.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of Exhibits filed as part of the Registration
Statement:
4.0 1987 Stock Option Plan.
4.1 Stock Option Agreement.
5. Opinion of Gary A. Agron.
24. Consent of Grant Thornton, LLP, independent certified public
accountants.
Item 9. Undertakings.
The Registrant hereby undertakes (1) to file, during any period in which
offers or sales are being made, a post-effective amendment to this Registration
Statement; to include any 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
Registration Statement; (3) that, for the purpose of determining any liability
under the Securities Act of 1933, each 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; and (4) 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 plan.
The Registrant hereby undertakes to deliver or cause to be delivered with
the prospectus to each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
II-2
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than 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 against the
Registrant 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 1933 Act, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing on Form S-8 and has caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in
Concord, California, on April 24, 2000.
Sparta Surgical Corporation
By: /s/ Thomas F. Reiner
------------------------------------------
Thomas F. Reiner, Chief Executive Officer
Pursuant to the requirements of the 1933 Act, as amended, this Registration
Statement has been signed below by the following persons on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Thomas F. Reiner Chief Executive Officer, April 24, 2000
- -------------------- President and Director
Thomas F. Reiner
/s/ John O'Hanlon Chief Financial Officer April 24, 2000
- ----------------- (Principal Accounting Officer)
John O'Hanlon
/s/ Michael Y. Granger Director April 24, 2000
- ----------------------
Michael Y. Granger
/s/ Allan J. Korn Director April 24, 2000
- -----------------
Allan J. Korn
/s/ Joel Flig Director April 24, 2000
- -------------
Joel Flig
II-3
<PAGE>
EXHIBIT INDEX
-------------
Exhibit No.: Exhibit:
------------ --------
4.0 1999 Stock Option Plan.
4.1 Stock Option Agreement.
5. Opinion of Gary A. Agron.
23. Grant Thornton, LLP, independent certified public
accountants.
II-4
Exhibit 4.0
BIO METALLICS, INC.
1987 KEY EMPLOYEES AND KEY PERSONNEL STOCK OPTION PLAN
-------------------------------------------------------
(Amended as of September 10, 1987)
1. Purpose of Plan.
----------------
(a) The purpose of this l987 Key Employees and Key Personnel Stock Option
Plan (hereinafter called the "Plan") is to further the success of BIO METALLICS,
INC., A Delaware corporation (hereinafter called the "Company"), and its
subsidiaries by making available Common Stock of the Company for purchase by
eligible directors, officers, consultants and key employees of the Company and
its subsidiaries and others who have a relationship to the Company which the
Board of Directors considers beneficial, to the Company and thus to provide an
additional incentive to such personnel aria Others to continue to serve the
Company and its subsidiaries and to continue their beneficial relationship to
the Company and to give them a greater interest as stockholders in the success
of the Company.
(b) The Company intends this Plan to enable the Company to issue, pursuant
hereto, incentive stock options as such term it defined in section 422A of the
Internal Revenue Code of 1954, As amended (the "Code"). The Company also intends
this Plan to enable it to issue similar options which will not, however, be
qualified as incentive stock options.
<PAGE>
2. Definitions.
------------
As used in this Plan, the following terms have the following respective
meanings;
"Board" means the Board of directors of the Company.
"Common Stock" means common stock, par value $.O01 of the Company.
"Disability" means permanent total disability as defined in Section 105(d)
(4) of the Code.
"Fair Market Value of the Option Stock" means fair market value of the
Option Stock determined as of the date of grant of the option, in accordance
with Section 422k of the Code and the Regulations thereto,
"Incentive Stock Option" means any incentive stock option as defined in
section 422A(b} of the Code to purchase stock in the employer corporation of an
optionee or in a corporation which (at the time of the granting of a given
option under this Plan) is a parent or a subsidiary corporation of the employer
corporation, or in a predecessor of any of such corporation.
"Incentive Stock Option Under this Plan" means any Incentive Stock Option
granted pursuant to this Plan
"Modification" means any change in the terms of an option which would
constitute a "modification" as defined in Section 425(h) (3) of the Code,
including, without limitation, such a modification to an option as effected by a
change in the Plan and any other change in the Plan which would increase the
number of shares reserved for options under the Plan,
-2-
<PAGE>
materially change the administration of the Plan (except as permitted in
paragraphs 4(c) and (d) hereof) or that would otherwise materially increase the
benefits accruing to, or available for, participants in the Plan, provided,
however, that registration of option shares under the securities Act of 1933, as
amended, shall not be deemed a Modification.
"Non-Incentive Stock Option" means any option granted under this Plan other
than an Incentive Stock Option under this Plan.
"Option Stock" means stock subject to an option granted under this Plan.
"10% Shareholder" means a person who owns stock possessing more than 10% of
the total combined voting power of all c1asses of stock of Company or of any
parent or subsidiary of the Company after giving effect to the attribution of
stock ownership provisions of Section 425(d) of the Code.
References in these definitions to provisions of the Code shall, when
appropriate to effectuate the purposes of this Plan, be deemed to be references
to such provisions of the Code as the same may be from time to time amended or
to successor provisions to such provisions. Terms defined elsewhere in this Plan
shall have the meanings set forth in such respective definitions.
3. Stock subject to plan.
----------------------
Subject to the provisions of paragraph 14 hereof, there shall be reserved
for issuance or transfer upon tha exercise of
-3-
<PAGE>
options to be granted from time to time under the Plan an aggregate of
500,000 shares of Common Stock, which shares may be in whole or in part, as the
Board of Directors of the Company shall from time to time determine, authorized
and unissued shares of Common Stock or issued shares of Common Stock which shall
have been reacquired by the Company. If any option granted under the Plan shall
expire or terminate for any reason without having been exercised in full, the
unpurchased shares subject thereto shall again be available for the purposes of
the Plan.
4. Administration.
---------------
(a) The soard of Directors of the Company (the "Board") shall administer
the Plan. Members of the Board shall be entitled to receive Incentive Stock
Options Under this Plan or Nonincentive Stock Options if they are employees of
the Company and/or its subsidiaries, subject to the provisions of paragraph 5
hereof. Members of the Board who are not such employees shall be eligible to
receive Non-Incentive Stock Options, subject to paragraphs 5 and 21 hereof.
(b) The Board shall have plenary authority in its discretion, but subject
to the express provisions of the Plan; to determine the purchase price of the
Common Stock covered by each option, the persons to whom, and the time or times
when, options shall be granted, and the number of shares to the subject to each
option; to determine the time or times during
-4-
<PAGE>
which options may or must be exercised and the conditions for exercise; to
determine the time or times and conditions under which option rights will vest;
to interpret the Plan; to prescribe, amend, and rescind rules and regulations
relating to it; to determine the terms and provisions (and amendments thereof)
of the respective option agreements (which need not be identical), including
such terms and provisions (and amendments thereof) as shall be required in the
judgment of the Board to conform to any change in any law or regulation
applicable thereto; and to make all other determinations deemed necessary or
advisable for the administration of the Plan. The Board's determination on the
foregoing matters shall be conclusive, except that any act constituting a
modification of a plan or of an option must receive shareholder approval in
accordance with paragraph 16 herein.
(c) The Board, by resolution, may delegate administration of the plan to a
committee composed of not less than three (3) members of the Board. If
administration is delegated to a committee, the committee shall have the powers
to administer the Plan theretofore possessed by the Board. The committee's
powers shall be subject, however, to such resolutions as may from time to time
be adopted by the Board in exercise of the Board's final power to determine
questions of policy and expediency which arise in connection with the Plan. The
Board at any time by resolution may abolish the committee and revest the
administration of the Plan let the Board.
-5-
<PAGE>
(d) if the Board so delegates administration of the Plan to a committee,
the Board may (but shall not be required to) provide and assure that none of the
members of such committee shall be eligible, and that none of such members shall
have been eligible within one year prior to the time such member exercises
discretion in administering the Plan, for benefits under the Plan or under any
other stock option, stock purchase, stock bonus, stock appreciation or similar
plan of the Company or any of its subsidiaries, parents or other affliliates.
5. Eligibility.
------------
Incentive Stock Options Under this Plan may be granted under this Plan only
to officers (who are employees) and to other key employees of (a) the Company
and (b) present or future, subsidiary corporations (hereinafter called
"subsidiaries") of the Company; such persons may also receive Non-Incentive
Stock Options. A director of the Company or subsidiary may receive an Incentive
Stock Option Under this Plan if such person is otherwise an employee of the
Company and/or one of its subsidiaries. Directors or consultants of the Company
or a subsidiary who are not otherwise employees of the Company and/or one of its
subsidiaries and others who have a relationship to the Company which the Board
of Directors considers beneficial to the Company may receive Non-Incentive Stock
Options. In determining the persons to whom options shall be granted and the
number of shares to be covered by each
-6-
<PAGE>
option, the Board may take into account the nature of the services rendered by,
and the responsibilities borne by, such respective persons, their present and
potential contributions to the Company's success and such other factors as the
Board in its discretion shall deem relevant. Options may be granted to persons
who hold or have held options under previous plans, and a person who has been
granted an option under the Plan may be granted an additional option or options
Under the Plan or under any future option plan if the Board shall so determine.
6. Option prices.
--------------
The purchase price of the Common Stock under each option shall be
determined by the Board. The purchase price may not be less than the fair market
value of the Common Stock at the time of granting except that in the case of a
10% shareholder the purchase price for an Incentive Stock Option may not be less
that 110% of such fair market value.
7. Certain limitations on granting and exercise of options.
--------------------------------------------------------
Any other provisions of this Plan to the contrary notwithstanding, the
granting and exercise of options hereunder shall be subject to the following
limitations (which shall be in addition to the limitations, provisions and
conditions contained elsewhere in this Plan):
(a) The aggregate Fair Market Value (determined as of the time the option
is granted) of the Option Stock for Incentive
-7-
<PAGE>
Stock Options which, as to any individual person, will become exercisable (e.g.
vest) in any calendar year (under this plan and that of any other plan) shall,
not exceed $100,000.
(b) In the case of an officer or director of the Company, the aggregate
number of shares which may be subject to all options granted to such person
under the Plan (whether Incentive Stock options Under this Plan or Non-Incentive
Stock Options) may not exceed 375,000 shares.
8. Duration of options.
--------------------
The term of options granted under the Plan shall be as fixed by the Board
of Directors at the time of grant, provided, however, that (a) in the case of
persons other than 10% Shareholders the term of an option shall not exceed 10
years from the date of grant, and (b) in the case of 10% Shareholders the term
of an option shall not exceed 5 years from the date of grant. The terms of such
options may, however, be foreshortened as provided in paragraphs 11, 12, and 13
hereof.
9. Exercise of options.
--------------------
An option granted under the Plan shall be exercisable in accordance with
the terms of such option as determined and granted by the Board. An option which
has become exercisable may be exercised in accordance with its terms as to any
or all full shares purchasable under the provisions of the option, but not at
any time as to less than 100 shares unless the remaining
-8-
<PAGE>
shares which have become so purchasable are less than 100 shares. The Purchase
price of the shares shall be paid it, full, as provided in paragraph 15 hereof,
upon the exercise of the option, and the Company shall not be required to
deliver certificates for such shares until such payment has been made. Except as
provided in paragraphs 11, 12 and 13, an option may not be exercised at any time
unless the holder thereof is then an employee of the Company or one of its
subsidiaries. (As used in this Plan, the terms "employ" and "employment" shall
be deemed to refer to employment as an employee in any such capacity, and
"termination of employment" shall be deemed to mean termination of employment as
an employee in all of such capacities and continuation of employment as an
employee in none of such capacities. Solely with respect to Non-Incentive Stock
Options, the terms "employ" arid "employment" shall also be deemed to refer to
service as a director and/or officer of the Company and/or a subsidiary, whether
or not the optionee is otherwise an employee, and "termination of employment"
shall be deemed to mean the termination of such service in all of such
capacities and the termination of all employment of the optionee by the company
and any of its subsidiaries and the continuation of such service and/or
employment in none of such capacities.)
10. Nontransferability of options.
------------------------------
No Option granted under the Plan shall be transferable
-9-
<PAGE>
otherwise than by will or the laws of descent and distribution, and an option
may be exercised, during the lifetime of the holder thereof, only by the holder.
11. Termination of employment.
--------------------------
(a) In the event of termination of employment of a person to whom an option
has been granted under the Plan, other than (x) a termination that is either (i)
for cause, or (ii) voluntary on the part of the person and without the written
consent or the Company, or (y) a termination by reason of death or disability,
the optionee may exercise his option at any time within three months after such
termination of employment, but in no event after ten years from the date of
granting thereof, or five years from the date of granting thereof in the case of
a 10% Shareholder, to the extent of the number of shares covered by his option
which were purchasable by him at the date of the termination of employment.
(b) In the event of the termination of employment of an optionee to whom
an option has been granted under the Plan that is either (i) for cause, or (ii)
voluntary on the part of the optionee and without the written consent of the
Company, any option held by him under the Plan, to the extent not theretofore
exercised, shall immediately upon termination of employment terminate.
(c) Options granted under the Plan shall not be affected by any change of
employment so long as the holder continues in the
-10-
<PAGE>
employ of the Company or a subsidiary. 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 of the Company or any of its subsidiaries or affiliates
or interfere in any way with the right of the Company or any of its subsidiaries
or affiliates to terminate his employment or occupancy of any corporate office
at any time.
12. Death of optionee.
-----------------
In the event of tile death of an optionee to whom an option has seen
granted under the Plan while he is in the employ of the Company or a subsidiary,
or within three months after the termination of employment, such option (unless
it shall have been previously terminated pursuant to the provisions at paragraph
11(b) hereof) may be exercised (to the extent of the number of shares covered by
the option which are purchasable by the optionee at the date of his death) by
the estate of the optionee, or by a person who acquired the right to exercise
such option by bequest or inheritance or by reason of the death of the Optionee,
at any time within a period of one year after his death, but not after ten years
from the date of granting of such option or five years after the date of
granting in the case of a 10% shareholder.
l3. Disability of optionee.
----------------------
In the event of termination of employment of a person to
-11-
<PAGE>
whom an option has been granted under the Plan by tenon of the disability of
such person, the optionee may exercise his option at arty time within one year
after such termination of employment but in no event after ten years from the
granting of such option, or five years from the date of granting in the case of
a 10% Shareholder, to the extent of the number of snares covered by big option
which were purchasable by him at the date of the termination of employment.
14. Adjustment upon changes in capitalization.
------------------------------------------
Notwithstanding any other provisions of the Plan, each option agreement may
contain such provisions as the Board shall determine to be appropriate for the
adjustment of the number and class of shares subject to such option and the
option price in the event of changes in the outstanding Common Stock by reason
of any stock dividend, split-up, recapitalization, combination or exchange of
shares, merger, consolidation, acquisition of property or stock separation,
reorganization or liquidation and the like, and, in the event of any such change
in the outstanding Common Stock, the aggregate number and class of shares
available under the Plan shall be appropriately adjusted by the Board, whose
determination shall be conclusive.
15. Payment of purchase price.
--------------------------
The purchase price for stock purchased pursuant to the exercise of options
granted under this Plan shall be payable in
-12-
<PAGE>
cash in full at the time of the exercise of a option; provided, however, that
the Board may provide in the option agreement for any such option that such
purchase price may be payable in whole or in part by the delivery to the Company
at the time of exercise of the option of shares of duly and validly issued and
fully paid shares of Common Stock of the Company owned by and registered in the
name of the optionee. If the purchase price or any portion thereof shall be so
permitted to be paid by the delivery of Common Stock, then for such purpose the
shares of Common Stock shall be valued at the fair market value thereof at the
time of exercise of the option as determined by the Board in accordance with the
requirements of Section 422A of the Code, the Regulations thereunder, and the
other applicable Code sections and regulations.
16. Termination and Amendment.
--------------------------
(a) Unless the Plan shall theretofore have been terminated as hereinafter
provided, it shall terminate on, and no options shall be granted thereunder
after July 1, 1997. The Plan may be terminated earlier by the stockholders 0!
the Company or by the Board.
(b) Modifications or other amendments to the Plan may be made by the
stockholders of the Company. The Plan may also be amended by the Board;
provided, however, that no amendment such shall constitute a Modification shall
be effective unless approved by the stockholders of the Company within 12 months
-13-
<PAGE>
before or after the adoption of the Modification.
(a) No termination, Modification, or amendment of the Plan, may, without
the consent of the Optionee to whom any Option shall, theretofore have been
granted, adversely affect the rights of such optionee under such option; nor
shall any such Modification or amendment be deemed to effect a Modification,
extension or renewal of any such option previously granted except pursuant to an
express written agreement to such effect, executed by the Company and the
optionee.
17. Time of Granting Options.
--------------------------
Nothing contained in the Plan shall constitute the granting of any option
hereunder. The granting of an option pursuant to the Plan shall take place only
upon approval by the Board (or its delegate under paragraph 4 hereunder) of a
resolution granting adoption under this plan. After the granting of an option
under this plan a written option agreement shall be duly executed by or on
behalf of the Company.
18. Form and terms of option agreement.
-----------------------------------
Option agreements evidencing options granted pursuant to the Plan shall be
in such form and shall contain such terms not inconsistent with the Plan as the
Board may approve. Option agreements may contain such restrictions upon the
exercise of options and upon the transfer of Common Stock acquired upon
-14-
<PAGE>
exercise of options (and such provisions for the enforcement of such
restrictions) as the Board may consider necessary to insure compliance with the
Securities Act of 1933, as amended, and/or with state "Blue Sky" laws.
19. Partial Invalidity.
-------------------
The invalidity or unenforceability of any particular provision of this Plan
shall not affect the other provisions of this Plan nor affect the validity or
entorceability of the other provisions of options granted under this Plan, and
this Plan and the options granted hereunder shall be construed in all respects
as if such invalid or unenforceable provision were omitted,
20. Special provisions with respect to Incentive Stock Options Under this Plan
and Non-Incentive Stock Options.
- --------------------------------------------------------------------------------
It is intended that Incentive Stock Options Under this Plan shall be
granted only to employees; and the Board in granting any stock option shall
indicate whether it intends the option to be an Incentive Stock Option Under
this Plan or a Non-Incentive Stock Option and shall cause the option agreement
with respect thereto to indicate such intention. Should a person hold both one
or more Incentive Stock Options Under this Plan and one or more Non-Incentive
Stock Options all of such options shall be exercisable in accordance with their
respective terms and limitations, and nothing in this Plan shall be construed as
-15-
<PAGE>
causing the exercise of any such option to preclude the exercise of any such
other option in accordance with its terms. Plan Adopted by the Board of
Directors as of July 1, 1987 and by the stockholders as of July 1, 1987 (and
amended as of September 10, 1987).
-16-
Exhibit 4.1
THE INTERESTS EVIDENCED BY THIS OPTION AGREEMENT HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED OR ANY STATE SECURITIES REGISTRATION LAW; HAVE BEEN TAKEN FOR
INVESTMENT; AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTECATED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. ANY
AUTHORIZED ASSIGNMENT OR TRANSFER OF AN INTEREST REPRESENTED BY THIS AGREEMENT
SHALL BE NULL AND VOID.
THE SPARTA SURGICAL CORPORATION 1987 KEY EMPLOYEES AND KEY PERSONNEL STOCK
OPTION PLAN ("PLAN") AND THIS OPTION AGREEMENT ARE SUBJECT TO THE APPROVAL OF
THE BOARD OF DIRECTORS AND UNTIL SUCH TIME, THESE OPTIONS WILL NOT BE EFFECTIVE.
STOCK OPTION AGREEMENT
AGREEMENT made by and between Sparta Surgical Corporation, a Delaware
corporation, having its principal place of business at 7066 Koll Center Parkway,
Pleasanton, California ("SPARTA") and Thomas F. Reiner ("Optionee") this 19th
day of January, 1995.
RECITALS
WHEREAS, Optionee Is presently an employee or director of the Company; and
WHEREAS, Company is desirous of increasing the incentive of Optionee to
exert Optionee's utmost efforts to improve the business and increase the assets
of the Company.
NOW, THEREFORE, the Company hereby grants to the Optionee an option to
purchase the common stock of the Company on the terms and conditions set forth
below.
1. Option.
-------
(a) The option granted herein is intended as a "non-statutory" stock
option. Subject to the vesting rights specified in Section 3 (a) below, the
Company hereby grants to the Optionee the option to purchase up to 50,000 fully
paid an non-assessable shares of the common stock of the Company ("Share"). The
option granted herein shall expire and terminate at 5:00 p.m.. on January
19,2005.
(b) For purposes herein, the date of commencement ("Date of
commencement) of the option shall be the date on which the shareholders of
Sparta Surgical Corporation approve the Plan.
2. Purchase Price.
--------------
The purchase price shall be $0.59 per share for the Shares that vest
and become exercisable under this option.
<PAGE>
The Company shall pay all fees and expenses necessarily incurred by
the Company in the connection with the exercise of the option, but shall not pay
for the registration of such securities pursuant to applicable securities laws.
3. Vesting; Exercise of Option.
---------------------------
This option may be exercised by the Optionee (or, after his death, by
the person designed in Section 4) only in accordance with the following
provisions:
(a) This option may be exercised by the Optionee upon delivery of the
following to the Company at its principal executive offices:
(i) a written notice of exercise which identifies this Agreement
and states the number of shares of stock then being
purchased;
(ii) a check or cash in the amount of the purchase price in such
other form of lawful consideration as the Company's Board of
Directors may approve from time to time under the provisions
of Section 6 of the Plan);
(iii) a letter of agreement, if requested by the Company, in such
form and substance as the Company may require, setting forth
the investment intent of the Optionee and such other
agreements and representations as specified by the Plan; and
(iv) a check or cash, if requested by the Company either before
or after the Company's receipt of the notice of exercise, in
the amount of any taxes (other than stock issue or transfer
taxes) which the Company is obligated to collect or withhold
by reason of the exercises of the Option.
(b) This option shall be exercisable and vest on and after the dates
set forth below, the Optionee shall be entitled to purchase all or any portion
of the shares of stock indicated opposite those respective dates.
Date Shares/Options
---- --------------
January 19, 1998 50,000
(c) Notwithstanding any contrary provisions to this Agreement, this
option may not be exercised until the Plan has been approved by the shareholders
of the Company as provided for in the Plan.
2
<PAGE>
4. Exercise in the Event of Termination of Optionee's Employment.
--------------------------------------------------------------
(a) In the event all positions of the Optionee as a director of
employee (including his position as an officer) are terminated, either
voluntarily or involuntarily, the option granted to the Optionee hereunder may
be exercised by the Optionee within three (3) months from the date of the
Optionee is terminated to the extent Optionee was entitled to exercise this
option on the date of termination. This option shall terminate thereafter and in
no event may this option be exercised after the expiration of the term of this
option as set forth in Section 1 (a).
(b) If the Optionee dies (1) while acting in a position with the
Company as a director, officer, or employee, or (ii) after the termination of
all positions as a director, officer or employee of the Company, subject to the
provisions of subsections (a) and (c) of this Section 4, this option may be
exercised by a legatee or legatees of such Optionee under such individual's last
will or by the duly authorized administrator or special administrator of
Optionee's estate or by Optionee had the right to exercise this option on the
date of such death.
(c) An option may not be exercised pursuant to this Section 4 except
to the extent that the Optionee was vested or otherwise entitled to exercise
this option, or any part thereof, on the earlier of (i) the date of the
termination of all positions as a director, officer or employee held by or (ii)
the date of Optionee's death; provided, however, in no event may the option be
exercised after the original expiration date of the option, as set forth in
Section 1(a).
5. Transfer of Control.
--------------------
"Transfer of Control" shall be deemed to have occurred in the event
any of the following occurs with respect to the Control Company (for the purpose
of 'applying this paragraph 5, the "Control Company" shall mean the corporation
whose stock is or will be subject to this option):
(a) The direct or indirect sale or exchange by the shareholders of the
Control Company of all or substantially all of the stock of the Control Company
where that shareholders of the Control Company before such sale or exchange do
note retain, directly or indirectly, at least a majority of the beneficial
interest in the voting stock of the Control Company.
(b) A merger in which the shareholders of the Control Company before such
merger do not retain, directly or indirectly, at least majority of the
beneficial interest in the voting stock of the Control Company.
(c) The sale, exchange, or transfer of all or substantially all of the
Control Company's assets (other than a sale, exchange, or transfer to one or
more corporations where the shareholders of the Control Company before such
sale, exchange or transfer retain, directly or indirectly, at least a majority
of the beneficial interest in the voting stock of the corporation(s) to which
the assets were transferred).
3
<PAGE>
In the event of a Transfer of Control, the Board, in its sole discretion,
shall either (i) provide that this option become vested and exercisable for
purpose of paragraph 3 of this Option Agreement effective upon the Transfer of
Control, or (ii) arrange with the surviving, continuing, successor, or
purchasing corporation, as the case may be, that such corporation either assume
the Company's rights and obligations under outstanding Option Agreements or
substitute an option for such corporations' stock for such outstanding Options.
Any Options which are neither exercised as the date of the Transfer of Control
nor assumed by the surviving, continuing, successor, or purchasing corporation,
as the case may be, shall terminate as of the date of the Transfer of Control.
6. Divisibility and Non-Assignability of the Options.
--------------------------------------------------
(a) The Optionee may exercise the options herein granted from time to
time during the periods of their respective effectiveness with respect to any
whole number of Shares included therein, but in no event may an option be
exercised as to a fractional share.
(b) The Optionee may not give, grant, sell, exchange, transfer legal
title, pledge, assign or otherwise encumber or dispose of the options herein
granted or any interest therein, otherwise than Optionee's lifetime only by the
Optionee. Any purported transfer or assignment of this option shall be void and
of no effect, and shall give the Company the right to terminate this option as
of the date of such purported transfer or assignment.
7. Stock as Investment.
-------------------
By accepting this option, the Optionee agrees for Optionee, Optionee's
heirs and legatees that this option and any Optionee, Optionee's heirs and
legatees that this option and any and all Shares purchased upon exercise of the
options granted hereunder shall be acquired for investment and not for
distribution and, upon acceptance of the option and the exercise of the options
granted hereunder, shall deliver to the Company an Investor Certificate, in the
form attached hereto as Exhibit "A" and incorporated by reference, representing
that such Shares are being acquired in good faith for investment and not for
distribution. The Optionee further acknowledges that he or his financial advisor
has a personal or business relationship with the Company such as to enable a
reasonable prudent purchaser to be aware of the character, business acumen and
general business and financial circumstances of the Company. The Company may
place all restrictive legends deemed by it to be appropriate on the
certificates(s) representing Shares to be issued pursuant to the agreement. Upon
exercise of the options granted hereunder, Optionee agrees the shares
represented by the certificate are subject to an irrevocable voting trust
appointing Thomas F. Reiner, as Trustee, with full authority and voting power
over such shares.
4
<PAGE>
8. Risk Factors.
------------
The options exercised hereunder by the Optionee is an investment in the
Company that should be considered to be a speculatory investment. The shares
being offered involve a high degree of risk and prospective Optionee should
carefully consider the specific factors and risk factors including history of
losses and negative cash flows the Company has experienced in the previous
fiscal year of operations. An investment in the Company provides limited
liquidity since the shares are not freely transferable. No market exists for the
resale of the shares. The company's ability to carry out its expansion plans and
increase its results and operating cash flows will depend in part on its raising
additional capital. There can be no assurance that the Company will be able to
accomplish the foregoing in a timely or profitable manner. Before you decide to
exercise any options under this ESOP, the Company urges you to read the
Management's Discussion and Analysis of Financial Condition and Results of
Operation sections contained in Form 1OKSB and 10QSB.
9. Restriction on Issuance of Shares.
----------------------------------
This option and the obligation of the Company to transfer shares hereunder
shall be subject to all applicable federal and state laws, rules and
regulations, including those related to disclosure of financial and other
information to the Optionee, and to such approvals by any governmental or
regulatory agency as may be required. The Company shall not be required to issue
or deliver any certificate for Shares of its common stock purchased upon the
exercise of any option prior to (a) the completion of all registrations or
qualifications of such shares under any federal or state law, or any rule or
regulation of any governmental body which the Company shall, in its sole
discretion, determine may be necessary or advisable; and (b) permission for the
listing of such shares shall have been given by any national securities exchange
on which the common stock of the Company is at the time of issuance listed, or
(c) counsel to the Company has determined, in his professional judgment, that
such registration, qualification, or listing is not necessary.
10. Adjustment Upon Changes in Capitalization.
------------------------------------------
(a) In the event of changes in the outstanding common stock of the
Company by reason of stock dividends, stock splits, recapitalization, mergers,
consolidations, combinations, exchanges of shares, separations, reorganizations,
and assuming the Company is a surviving corporation, the number and class of
shares as to which the options may be exercised shall be correspondingly
adjusted by the Company. Such adjustment shall be made by the Board of Directors
of the Company, whose determination in that respect shall be final, binding and
conclusive.
(b) Any adjustment in the number of Shares shall apply proportionately
only to the unexercised portion of an option granted hereunder If fractions of a
share would result from any such adjustment, the adjustment shall be revised to
the next higher whole number of shares.
(c) Any issue by the Company for consideration of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
not affect the number or price of Shares subject to the option, and no
adjustment by reason thereof shall be made.
5
<PAGE>
11. No Rights in Option Stock.
-------------------------
Optionee shall have no rights as a shareholder in respect of Shares as to
which the option granted hereunder shall not have been exercised and payment
made as herein provided.
12. Certain Corporate Transactions.
------------------------------
Nothing in this agreement shall in any way prohibit or affect the right and
power of the Company to make adjustments, reclassifications or changes of its
capital or business structures, or from merging with or consolidating into
another corporation, or from selling or transferring all or substantially all of
its assets, or from distributing all or substantially all of its assets to its
stockholders in liquidation, or from dissolving and terminating its corporate
existence.
13. No Effect Upon Employment.
-------------------------
This agreement does not give the Optionee any right to continued employment
by the Company, whether as officer, employee or consultant
14. Bindinq Effect.
---------------
Except as herein otherwise expressly provided, this agreement shall be
binding upon and insure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
15. Subject to Terms of the Plan.
-----------------------------
This Agreement shall be subject in all respects to the terms and conditions
of the Plan. Your signature herein represents your acknowledgment of receipt of
a copy of the Plan. Any dispute or disagreement which shall arise under to as a
result of or pursuant to this Agreement shall be finally and conclusively
determined by the Board in its sole discretion, and such determination shall be
binding upon all parties.
16. Tax Effects
------------
THE FEDERAL TAX CONSEQUENCES OF STOCK OPTIONS ARE COMPLEX AND SUBJECT TO
CHANGE. ACCORDINGLY, AN OPTIONEE (OR HIS OR HER GUARDIAN, ESTATE OR LEGATEE) ANY
OPTION OR DISPOSING OF ANY SHARES ACQUIRED UPON THE EXERCISE OF AN OPTION.
17. Notification of Sale.
---------------------
Optionee, or any person acquiring Shares upon exercise of this Option,
shall notify the Company not more than five (5) days after any sale or
disposition of such Shares.
6
<PAGE>
18. Miscellaneous.
-------------
This Agreement shall be construed under the laws of the State of
California. Headings have been included herein for convenience of reference
only, and shall not be deemed a part of the Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
Sparta Surgical Corporation
By: /s/ Tom Reiner
-------------------------
Its: CHM/President
------------------------
ACCEPTANCE
Optionee acknowledges receipt of the Nonqualified Stock Option Agreement,
copies of the Company's Annual Reports and SEC filings since the end of the last
fiscal year, and an Investor's Certificate. Optionee represents that Optionee
has read and understands the terms and provisions thereof, and hereby accepts
this option subject to all of the terms and conditions thereof. Optionee hereby
agrees to accept as binding, conclusive, and final all decisions or
interpretations required of the Board of Directors of the Company by and as to
this Option.
By: /s/ Tom Reiner
-------------------------------
7
<PAGE>
EXHIBIT A
INVESTOR'S CERTIFICATE
(For Use With Offerings Under SEC Regulation D
and California Corporations Code Section 25102 (f)
The undersigned, as a condition to purchase shares of the common, no par
stock (the "Securities") of Sparta Surgical Corporation, a Delaware corporation
(the "Company"), certifies to the Company as follows:
1. My full name, residence address and business address are as follows:
Name Address
---- -------
Thomas F. Reiner 4478 Fleetwood Rd
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CHM/President/CEO Danville, Calif. 94506
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2. I am purchasing the Securities in my own name and for my own account (or
for a trust account if I am a trustee), and no other person has any interest or
right with respect to the Securities, nor have I agreed to give any person any
such interest or right in the future.
3. 1 am acquiring the Securities for investment and not with a view to or
for sale in connection with any distribution of the Securities. I recognize that
the Securities have not been registered under the Federal Securities Act of
1933, nor qualified under the California Corporate Securities Law of 1968, that
any disposition of the Securities is subject to restrictions imposed by federal
and state law and that the certificates representing the Securities may bear a
restrictive legend. I also recognize that I cannot dispose of the Securities
absent registration and qualification, and that no undertaking has been made
with regard to registering or qualifying the Securities in the future. I
understand that the availability of an exemption in the future will depend in
part on circumstances outside my control and that I may be required to hold the
Securities for a substantial period. I recognize that no representation has been
made to me that a public market with respect to the Securities will exist at a
future date. I understand that the California Commissioner of Corporations has
made no finding or determination relating to the fairness for investment of the
Securities offered by the Company and that the Commissioner has not and will not
recommend or endorse the Securities.
8
<PAGE>
4. 1 have not seen or received any advertisement or general solicitation
with respect to the sale of the Securities.
5. I believe, by reason of my business or financial experience that I am
capable of evaluating the merits and risks of this investment and of protecting
my own interests in connection with this investment.
6. 1 acknowledge that during the course of this transaction and prior to
purchasing the Securities I have been provided with financial and other written
information about the Company, I have been given the opportunity by the Company
to obtain such information and ask such questions concerning the Company, the
Securities, and my investment as I felt necessary, and to the extent I availed
myself of such opportunity, I received satisfactory information and answers. If
I requested any additional information which the Company possessed or could
acquire without unreasonable effort or expense and which was necessary to verify
the accuracy of the financial and other written information furnished to me by
the Company, that additional information was provided to me. In reaching the
decision to invest in the Securities, I have carefully evaluated my financial
resources and investment position and the risks associated with this investment,
and I acknowledge that I am able to bear the economic risks of this investment.
I further acknowledge that my financial condition is such that I am under any
present necessity or constraint to dispose of the Securities to satisfy any
existent or contemplated debt or undertaking.
Dated: This 31st day of March, 2000.
/s/ Thomas F. Reiner
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Signature
9
Exhibit 5
April 24, 2000
Sparta Surgical Corporation
2100 Meridian Park Boulevard
Concord, California 94520
Ladies and Gentlemen:
We have assisted in the preparation and filing by Sparta Surgical
Corporation (the "Company") of a Registration Statement on Form S-8 (the
"Registration Statement") with the Securities and Exchange Commission relating
to 250,000 shares of $.002 par value Common Stock (the "Option Shares") of the
Company issuable upon exercise of options granted under the Company's 1987 Stock
Option Plan, as amended (the "Option").
We have examined such records and documents and have made such examination
of laws as we considered necessary to form a basis for the opinions set forth
herein. In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity with the originals of all documents submitted to us as copies
thereof.
Based upon and subject to the foregoing, we are of the opinion that the
Option Shares have been duly authorized and reserved for issuance and such
Option Shares, when issued in accordance with the terms of the Option against
payment therefor, will be duly and validly issued, fully paid and
non-assessable.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Securities Act of 1933, as amended, and applicable state
laws relating to the offer and sales of securities.
We consent to the filing of a copy of this opinion in the Registration
Statement and the use of our opinion in connection therewith.
Very truly yours,
/s/ Gary A. Agron
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Gary A. Agron
Exhibit 23
Consent of Independent Certified Public Accountants
We have issued our report dated June 10, 1999, accompanying the consolidated
financial statements of Sparta Surgical Corporation included in the Annual
Report on Form 10-KSB for the year ended February 28, 1999, which is
incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
report and to the use of our name as it appears under the caption "Experts."
/s/ Grant Thornton LLP
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Grant Thornton LLP
San Jose, California
April 24, 2000
