<PAGE>
As filed with the Securities and Exchange Commission on June 2, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT under
THE SECURITIES ACT OF 1933
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PROCYTE CORPORATION
(Exact name of registrant as specified in its charter)
WASHINGTON 91-1307460
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
12040 115th Avenue N.E., Suite 210
Kirkland, Washington 98034-6900
(Address of Principal Executive Offices) (Zip Code)
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PROCYTE CORPORATION
1989 RESTATED STOCK OPTION PLAN
(Full title of Plan)
Karen L. Hedine
Vice President, Business Development & Administration
12040 115th Avenue N.E., Suite 210
Kirkland, WA 98034
(206) 820-4548
(Name, address and telephone number of agent for service)
------------------------------------------
Copies of communications to:
James R. Lisbakken
Perkins Coie
1201 Third Avenue, 40th Floor
Seattle, WA 98101
(206) 583-8660
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered* Offering Price Per Aggregate Registration
Share Offering Fee
Price**
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
(1989 Restated
Stock Option Plan)
Common Stock, 652,000 $2.30 $1,499,600 $520
- -------------------------------------------------------------------------------------
<FN>
* In addition, pursuant to Rule 416 (c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the employee benefit
plan described herein.
** Estimated solely for purposes of determining the registration fee, and
based upon the average of the high and low prices of a share of the
Common Stock as reported by NASDAQ/NMS on May 31, 1995.
- -------------------------------------------------------------------------------
</TABLE>
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM NO. FORM S-8
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 filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, for the year ended December 31, 1993 which contains
certified 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, since the end of the fiscal year covered by the Annual
Report referred to in (a) above; and
(c) The description of the Common Stock contained in the Registration
Statement dated December 7, 1993 filed on form 8-A under Section
12(g) of the Securities Exchange Act of 1934, as amended,
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 Securities Exchange Act of 1934, as
amended, after the data hereof and prior to the filling 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.
6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 23A.12.020 of the Washington Business Corporation Act
(the "Washington Act") authorizes a corporation to include in its
articles of incorporation a provision which limits a director's
personal liability to the corporation or its shareholders for
monetary damages for breach of duty as a director, with certain
exceptions. In addition, Section 23A.08.025 of the Washington
Act authorizes a court to award, or a corporation's Board of
Directors to grant, indemnity to directors and officers on terms
sufficiently broad to permit such indemnification under certain
circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act of 1933, as
amended. Article XI of the Registrant's Restated Articles of
Incorporation and Section II of the Registrant's Bylaws provide,
respectively, for limitation of director liability and
indemnification of its directors, officers, employees and other
agents to the maximum extent permissible under the Washington
Act. The Registrant has obtained Directors and Officers
liability insurance.
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ITEM NO. FORM S-8
8 EXHIBITS
The following is a list of all Exhibits filed with the
Registration Statement:
4.1.1 Restated Articles of Incorporation of the Registrant,
incorporated by reference to Exhibit No. 3.1 of
Registration No.33-72604 filed with the Commission on
December 7, 1993.
4.1.2 Bylaws of the Registrant, incorporated by reference to
Exhibit No. 3.2 of Registration No. 33-72604 filed
with the Commission on December 7, 1993.
4.2.1* The Registrant's 1989 Restated Stock Option Plan.
5.1* Opinion of Perkins Coie, regarding the legality of the
Common Stock being registered
23.1* Consent of Deloitte and Touche, independent public
accountants.
23.2* Consent of Perkins Coie (included in their opinion
filed as Exhibit 5.1, hereto).
24.1* Power of Attorney, provided on signature page.
- ----------------------
* filed herewith.
9 UNDERTAKINGS
RULE 415 OFFERING UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made a post-effective amended to the
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as
amended;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
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ITEM NO. FORM S-8
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii)
do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended,
that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended, each
such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
INCORPORATION BY REFERENCE UNDERTAKING
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, as amended, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934, as amended (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange
Act of 1934, as amended), that is incorporated by reference
in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed o be the initial bona fide offering therein.
INDEMNIFICATION UNDERTAKING
Insofar as indemnification for liabilities arising under the Securities Act of
1933, as amended, 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 a expressed in
the Securities Act of 1933, as amended, and is, therefor, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding (is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933, as amended, and will be governed by the final
adjudication of such issue.
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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, thereunder
duly authorized, in the City of Kirkland, State of Washington, on the 1st day
of June, 1995.
PROCYTE CORPORATION
By____________________________________
Joseph Ashley, Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
The officers and directors of PROCYTE CORPORATION whose signatures appear
below hereby constitute and appoint Joseph and Karen L. Hedine, and either of
them, their true and lawful attorneys and agents with full power of
substitution, each with power to act alone, to sign, execute, and file with the
Securities and Exchange Commission on behalf of the undersigned in any and all
capacities any amendment or amendments to this Registration Statement of Form S-
8, including any post-effective amendments, and each of the undersigned does
hereby ratify and confirm all that each of said attorneys and agents, or his or
her substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
________________________ Chairman, President and C.E.O. June 1, 1995
Joseph Ashley (Principal Financial Officer)
________________________ Director, Secretary June 1, 1995
Gordon W. Duncan
________________________ Vice President, Business June 1, 1995
Karen L. Hedine Development and Administration
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EXHIBITS
INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Page
- ------ ------- -------------
4.2.1 The Registrant's 1989 Restated 8
Stock Option Plan
5.1 Opinion of Perkins Coie regarding legality 16
of the Common Stock being registered
24.1 Consent of Deloitte and Touche LLP 17
24.2 Consent of Perkins Coie (included in their opinion 16
filed as Exhibit 5.1 hereto).
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Exhibit 4.2.1
1989 RESTATED STOCK OPTION PLAN
SECTION 1. PURPOSE
The purpose of the 1989 Restated Stock Option Plan (the "Plan") is to
provide a means whereby selected employees, officers, agents, consultants,
advisors, and independent contractors of ProCyte Corporation (the "Company"), or
of any parent or subsidiary (as defined in subsection 5.7 and referred to
hereinafter as "related corporations") thereof, may be granted incentive stock
options and/or nonqualified stock options to purchase the Common Stock (as
defined in Section 3) of the Company, in order to attract and retain the
services or advice of such employees, officers, agents, consultants, advisors
and independent contractors and to provide added incentive to such persons by
encouraging stock ownership in the Company.
SECTION 2. ADMINISTRATION
This Plan shall be administered by the Board of Directors of the Company
(the "Board") or, in the event the Board shall appoint and/or authorize a
committee to administer this Plan, by such committee. The administrator of this
Plan shall hereinafter be referred to as the "Plan Administrator."
In the event a member of the Board (or the committee) may be eligible,
subject to the restrictions set forth in Section 4, to participate in or receive
or hold options under this Plan, no member of the Board or the committee shall
vote with respect to the granting of an option hereunder to himself or herself,
as the case may be, and, if state corporate law does not permit a committee to
grant options to directors, then any option granted under this Plan to a
director for his or her services as such shall be approved by the full Board.
The members of any committee serving as Plan Administrator shall be
appointed by the Board for such term as the Board may determine. The Board may
from time to time remove members from, or add members to, the committee.
Vacancies on the committee, however caused, may be filled by the Board.
With respect to grants made under this Plan to officers and directors of
the Company who are subject to Section 16 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Plan Administrator shall be
constituted at all times so as to meet the requirements of Rule 16b-3
promulgated under Section 16(b) of the Exchange Act.
Currently, selection of officers and directors who are subject to Section
16 of the Exchange Act for participation and decisions concerning the timing,
pricing and amount of grant or award, shall be made by (i) the Board, if each
member of the Board is a disinterested person, or (ii) by a committee which
consists solely of not less than two disinterested directors of the Company.
For purposes of this Section 2, a disinterested director is a member of the
Board 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, for purposes of this Section 2, is a member
of the Board who has not during the one year prior to service as an
administrator of the Plan, or during such service, been granted or awarded
equity securities pursuant to the Plan or any other plan of the Company or any
of its affiliates, unless such plan meets the requirements of paragraphs (A),
(B), (C) or (D) of Rule 16b-3(c)(2)(i) promulgated under Section 16(b) of the
Exchange Act.
2.1 PROCEDURES
The Board shall designate one of the members of the Plan Administrator as
chairman. The Plan Administrator may hold meetings at such times and places as
it shall determine. The acts of a majority of the members of the Plan
Administrator present at meetings at which a quorum exists, or acts reduced to
or approved in writing by all Plan Administrator members, shall be valid acts of
the Plan Administrator.
2.2 RESPONSIBILITIES
Except for the terms and conditions explicitly set forth in this Plan, the
Plan Administrator shall have the authority, in its discretion, to determine all
matters relating to the options to be granted under this Plan, including
selection of the individuals to be granted options, the number of shares to be
subject to each option, the exercise price, and all other terms and conditions
of the options. Grants under this Plan need not be identical in any respect,
even when made simultaneously. The interpretation and construction by the Plan
Administrator of any
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terms or provisions of this Plan or any option issued hereunder, or of any rule
or regulation promulgated in connection herewith, shall be conclusive and
binding on all interested parties, so long as such interpretation and
construction with respect to incentive stock options correspond to the
requirements of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), the regulations thereunder and any amendments thereto.
2.3 SECTION 16(B) COMPLIANCE AND BIFURCATION OF PLAN
It is the intention of the Company that this Plan 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 this Plan shall be construed in favor of its meeting
the requirements of Rule 16b-3. Notwithstanding anything in this Plan to the
contrary, the Board, in its absolute discretion, may bifurcate this Plan so as
to restrict, limit or condition the use of any provision of this Plan to
participants who are officers and directors subject to Section 16 of the
Exchange Act without so restricting, limiting or conditioning this Plan with
respect to other participants.
SECTION 3. STOCK SUBJECT TO THIS PLAN
The stock subject to this Plan shall be the Company's Common Stock (the
"Common Stock"), presently authorized but unissued or subsequently acquired by
the Company. Subject to adjustment as provided in Section 7, the aggregate
amount of Common Stock to be delivered upon the exercise of all options granted
under this Plan shall not exceed 1,500,000 shares as such Common Stock was
constituted on the effective date of this Plan, as amended. If any option
granted under this Plan shall expire or be surrendered, exchanged for another
option, canceled or terminated for any reason without having been exercised in
full, the unpurchased shares subject thereto shall thereupon again be available
for purposes of this Plan, including for replacement options which may be
granted in exchange for such surrendered, terminated or canceled options.
SECTION 4. ELIGIBILITY
An incentive stock option may be granted only to any individual who, at the
time the option is granted, is an employee of the Company or any related
corporation. A nonqualified stock option may be granted to any employee,
officer, agent, consultant, advisor or independent contractor of the Company or
any related corporation, whether an individual or an entity. In order to
qualify as a disinterested administrator under Section 16(b) of the Exchange
Act, a director may not, during the one year prior to service as an
administrator of the Plan, or during such service, be granted or awarded equity
securities pursuant to the Plan or any other plan of the Company or any of its
affiliates, unless such plan meets the requirements of paragraphs (A), (B), (C)
or (D) or Rule 16b-3(c)(2)(i) promulgated under Section 16(b) of the Exchange
Act. Any party to whom an option is granted under this Plan shall be referred
to hereinafter as an "Optionee."
SECTION 5. TERMS AND CONDITIONS OF OPTIONS
Options granted under this Plan shall be evidenced by written agreements
which shall contain such terms, conditions, limitations and restrictions as the
Plan Administrator shall deem advisable and which are not inconsistent with this
Plan. Notwithstanding the foregoing, options shall include or incorporate by
reference the following terms and conditions:
5.1 NUMBER OF SHARES AND PRICE
The maximum number of shares that may be purchased pursuant to the exercise
of each option and the price per share at which such option is exercisable (the
"exercise price") shall be as established by the Plan Administrator, provided,
that the maximum number of shares with respect to which an option or options may
be granted to any optionee in any one fiscal year of the Company shall not
exceed 150,000 shares (the "Maximum Annual Optionee Grant"); and provided that
the Plan Administrator shall act in good faith to establish the exercise price
which shall be not less than the fair market value per share of the Common Stock
at the time the option is granted with respect to incentive stock options and
not less than 85% of the fair market value per share of the Common Stock at the
time the option is granted with respect to nonqualified stock options, and also
provided that, with respect to incentive stock options granted to greater than
10% shareholders, the exercise price shall be as required by subsection 6.1.
5.2 TERM AND MATURITY
Subject to the restrictions contained in Section 6 with respect to
granting incentive stock options to greater than 10% shareholders, the term of
each incentive stock option shall be as established by the Plan Administrator
and, if not so established, shall be 10 years from the date it is granted but in
no event shall it exceed
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10 years. The term of each nonqualified stock option shall be as established by
the Plan Administrator and, if not so established, shall be 10 years. To ensure
that the Company or any related corporation will achieve the purpose and receive
the benefits contemplated in this Plan, any option granted to any Optionee
hereunder shall, unless the condition of this sentence is waived or modified in
the agreement evidencing the option or by resolution adopted at any time by the
Plan Administrator, be exercisable according to the following schedule:
<TABLE>
<CAPTION>
Period of Optionee's
Continuous Relationship
With the Company or Related
Corporation From the Date Portion of Total Option
the Option Is Granted Which Is Exercisable
---------------------- --------------------
<S> <C>
after one year 20%
after two years 40%
after three years 60%
after four years 80%
after five years 100%
</TABLE>
5.3 EXERCISE
Subject to the vesting schedule described in subsection 5.2, each option
may be exercised in whole or in part at any time and from time to time;
provided, however, that no fewer than 100 shares (or the remaining shares then
purchasable under the option, if less than 100 shares) may be purchased upon any
exercise of option rights hereunder and that only whole shares will be issued
pursuant to the exercise of any option. During an Optionee's lifetime, any
options granted under this Plan are personal to him or her and are exercisable
solely by such Optionee or, with respect to a nonqualified option pursuant to
the terms of a qualified domestic relations order, as defined in the Code.
Options shall be exercised by delivery to the Company of notice of the number of
shares with respect to which the option is exercised, together with payment of
the exercise price.
5.4 PAYMENT OF EXERCISE PRICE
Payment of the option exercise price shall be made in full at the time the
notice of exercise of the option is delivered to the Company and shall be in
cash, bank certified or cashier's check or personal check (unless at the time of
exercise the Plan Administrator in a particular case determines not to accept a
personal check) for the Common Stock being purchased.
The Plan Administrator can determine at any time before exercise that
additional forms of payment will be permitted. To the extent permitted by the
Plan Administrator 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 by:
(a) delivery of shares of stock of the Company held by an Optionee having
a fair market value equal to the exercise price, such fair market value to be
determined in good faith by the Plan Administrator; provided, however, that
payment in stock held by an Optionee shall not be made unless the stock shall
have been owned by the Optionee for a period of at least six months;
(b) delivery of a properly executed exercise notice, together with
irrevocable instructions to a broker, all in accordance with the regulations of
the Federal Reserve Board, to promptly deliver to the Company the amount of sale
or loan proceeds to pay the exercise price and any federal, state or local
withholding tax obligations that may arise in connection with the exercise.
5.5 WITHHOLDING TAX REQUIREMENT
The Company or any related corporation shall have the right to retain and
withhold from any payment of cash or Common Stock under this Plan the amount of
taxes required by any government to be withheld or otherwise deducted and paid
with respect to such payment. At its discretion, the Company may require an
Optionee receiving shares of Common Stock to reimburse the Company for any such
taxes required to be withheld by the Company and withhold any distribution in
whole or in part until the Company is so reimbursed. In lieu thereof, the
Company shall have the right to withhold from any other cash amounts due or to
become due from the Company to the Optionee an amount equal to such taxes. The
Company may also retain and withhold or the Optionee may elect, subject to the
approval by the Company in its sole discretion, to have the Company retain and
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withhold a number of shares having a market value not less than the amount of
such taxes required to be withheld by the Company to reimburse the Company for
any such taxes and cancel (in whole or in part) any such shares so withheld. In
order to qualify such election for exemption under Rule 16b-3 promulgated under
Section 16(b) of the Exchange Act, an officer or director who is subject to
Section 16 of the Exchange Act must (i) make such election six months prior to
the date the option exercise becomes taxable or (ii) make such election and
exercise the option during a quarterly 10-day window period required under
Section 16(b) of the Exchange Act for exercises of stock appreciation rights.
5.6 NONTRANSFERABILITY OF OPTIONS
Options granted under this Plan and the rights and privileges conferred
hereby may not be transferred, assigned, pledged or hypothecated in any manner
(whether by operation of law or otherwise) other than by will or by the
applicable laws of descent and distribution or, with respect to nonqualified
stock options, pursuant to the terms of a qualified domestic relations order as
defined in the Code, and shall not be subject to execution, attachment or
similar process. Any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of any option under this Plan or of any right or privilege
conferred hereby, contrary to the Code or to the provision of this Plan, or the
sale or levy or any attachment or similar process upon the rights and privileges
conferred hereby shall be null and void. Notwithstanding the foregoing, if the
Company permits, an Optionee may, during the Optionee's lifetime, designate a
person who may exercise the option after the Optionee's death by giving written
notice of such designation to the Plan Administrator. Such designation may be
changed from time to time by the Optionee by giving written notice to the Plan
Administrator revoking any earlier designation and making a new designation.
5.7 TERMINATION OF RELATIONSHIP
If the Optionee's relationship with the Company or any related corporation
ceases for any reason other than termination for cause, death or total
disability, and unless by its terms the option sooner terminates or expires,
then the Optionee may exercise, for a three-month period, that portion of the
Optionee's option which is exercisable at the time of such cessation, but the
Optionee's option shall terminate at the end of such period following such
cessation as to all shares for which it has not theretofore been exercised,
unless such provision is waived in the agreement evidencing the option or by
resolution adopted at any time by the Plan Administrator. If, in the case of an
incentive stock option, an Optionee's relationship with the Company or any
related corporation changes (i.e., from employee to nonemployee, such as a
consultant), such change shall constitute a termination of an Optionee's
employment with the Company or any related corporation and the Optionee's
incentive stock option shall terminate in accordance with this subsection 5.7.
If an Optionee is terminated for cause, any option granted hereunder shall
automatically terminate as of the first discovery by the Company of any reason
for termination for cause, and such Optionee shall thereupon have no right to
purchase any shares pursuant to such option. "Termination for cause" shall mean
dismissal for dishonesty, conviction or confession of a crime punishable by law
(except minor violations), fraud, misconduct or disclosure of confidential
information. If an Optionee's relationship with the Company or any related
corporation is suspended pending an investigation of whether or not the Optionee
shall be terminated for cause, all the Optionee's rights under any option
granted hereunder likewise shall be suspended during the period of
investigation.
If an Optionee's relationship with the Company or any related corporation
ceases because of a total disability, the Optionee's option shall not terminate
or, in the case of an incentive stock option, cease to be treated as an
incentive stock option until the end of the 12-month period following such
cessation (unless by its terms it sooner terminates and expires). As used in
this Plan, the term "total disability" refers to a mental or physical impairment
of the Optionee which is expected to result in death or which has lasted or is
expected to last for a continuous period of 12 months or more and which causes
the Optionee to be unable, in the opinion of the Company and two independent
physicians, to perform his or her duties for the Company and to be engaged in
any substantial gainful activity. Total disability shall be deemed to have
occurred on the first day after the Company and the two independent physicians
have furnished their opinion of total disability to the Plan Administrator.
For purposes of this subsection 5.7, a transfer of relationship between the
Company and any related corporation shall not be deemed to constitute a
cessation of relationship with the Company or any of its related corporations.
For purposes of this subsection 5.7, with respect to incentive stock options,
employment shall be deemed to continue while the Optionee is on military leave,
sick leave or other bona fide leave of absence (as
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determined by the Plan Administrator). The foregoing notwithstanding,
employment shall not be deemed to continue beyond the first 90 days of such
leave, unless the Optionee's reemployment rights are guaranteed by statute or by
contract.
As used herein, the term "related corporation," when referring to a
subsidiary corporation, shall mean any corporation (other than the Company) in,
at the time of the granting of the option, an unbroken chain of corporations
ending with the Company, if stock possessing 50% or more of the total combined
voting power of all classes of stock of each of the corporations other than the
Company is owned by one of the other corporations in such chain. When referring
to a parent corporation, the term "related corporation" shall mean any
corporation in an unbroken chain of corporations ending with the Company if, at
the time of the granting of the option, each of the corporations other than the
Company owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in such chain.
5.8 DEATH OF OPTIONEE
If an Optionee dies while he or she has a relationship with the Company or
any related corporation or within the 3-month period (or 12-month period in the
case of totally disabled Optionees) following cessation of such relationship,
any option held by such Optionee to the extent that the Optionee would have been
entitled to exercise such option, may be exercised within one year after his or
her death by the personal representative of his or her estate or by the person
or persons to whom the Optionee's rights under the option shall pass by will or
by the applicable laws of descent and distribution.
5.9 NO STATUS AS SHAREHOLDER
Neither the Optionee nor any party to which the Optionee's rights and
privileges under the option may pass shall be, or have any of the rights or
privileges of, a shareholder of the Company with respect to any of the shares
issuable upon the exercise of any option granted under this Plan unless and
until such option has been exercised.
5.10 CONTINUATION OF EMPLOYMENT
Nothing in this Plan or in any option granted pursuant to the Plan shall
confer upon any Optionee any right to continue in the employ of the Company or
of a related corporation, or to interfere in any way with the right of the
Company or of any such related corporation to terminate his or her employment or
other relationship with the Company at any time.
5.11 MODIFICATION AND AMENDMENT OF OPTION
Subject to the requirements of Code Section 422 with respect to incentive
stock options and to the terms and conditions and within the limitations of this
Plan, the Plan Administrator may modify or amend outstanding options granted
under this Plan. The modification or amendment of an outstanding option shall
not, without the consent of the Optionee, impair or diminish any of his or her
rights or any of the obligations of the Company under such option. Except as
otherwise provided in this Plan, no outstanding option shall be terminated
without the consent of the Optionee. Unless the Optionee agrees otherwise, any
changes or adjustments made to outstanding incentive stock options granted under
this Plan shall be made in such a manner so as not to constitute a
"modification" as defined in Code Section 425(h) and so as not to cause any
incentive stock option issued hereunder to fail to continue to qualify as an
incentive stock option as defined in Code Section 422(b).
5.12 LIMITATION ON VALUE FOR INCENTIVE STOCK OPTIONS
As to all incentive stock options granted under the terms of this Plan, to
the extent that the aggregate fair market value of the stock (determined at the
time the incentive stock option is granted) with respect to which incentive
stock options are exercisable for the first time by the Optionee during any
calendar year (under this Plan and all other incentive stock option plans of the
Company, a related corporation or a predecessor corporation) exceeds $100,000,
such options shall be treated as nonqualified stock options. The previous
sentence shall not apply if the Internal Revenue Service issues a public rule,
issues a private ruling to the Company, any Optionee or any legatee, personal
representative or distributee of an Optionee or issues regulations changing or
eliminating such annual limit.
SECTION 6. GREATER THAN 10% SHAREHOLDERS
6.1 EXERCISE PRICE AND TERM OF INCENTIVE STOCK OPTION
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If incentive stock options are granted under this Plan to employees who own
more than 10% of the total combined voting power of all classes of stock of the
Company or any related corporation, the term of such incentive stock options
shall not exceed five years and the exercise price shall be not less than 110%
of the fair market value of the Common Stock at the time the incentive stock
option is granted. This provision shall control notwithstanding any contrary
terms continued in an option agreement or any other document.
6.2 ATTRIBUTION RULE
For purposes of subsection 6.1, in determining stock ownership, an employee
shall be deemed to own the stock owned, directly or indirectly, by or for his or
her brothers, sisters, spouse, ancestors and lineal descendants. Stock owned,
directly or indirectly, by or for a corporation, partnership, estate or trust
shall be deemed to be owned proportionately by or for its shareholders, partners
or beneficiaries. If an employee or a person related to the employee owns an
unexercised option or warrant to purchase stock of the Company, the stock
subject to that portion of the option or warrant which is unexercised shall not
be counted in determining stock ownership. For purposes of this Section 6,
stock owned by an employee shall include all stock actually issued and
outstanding immediately before the grant of the incentive stock option to the
employee.
SECTION 7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
The aggregate number and class of shares for which options may be granted
under this Plan, the Maximum Annual Optionee Grant set forth in Section 5.1, the
number and class of shares covered by each outstanding option, and the exercise
price per share thereof (but not the total price), and each such option, shall
all be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock of the Company resulting from a split-up or
consolidation of shares or any like capital adjustment, or the payment of any
stock dividend.
7.1 EFFECT OF LIQUIDATION OR REORGANIZATION
7.1.1 CASH, STOCK OR OTHER PROPERTY FOR STOCK
Except as provided in subsection 7.1.2, upon a merger (other than a
merger of the Company in which the holders of Common Stock immediately prior to
the merger have the same proportionate ownership of Common Stock in the
surviving corporation immediately after the merger), consolidation, acquisition
of property or stock, separation, reorganization (other than a mere
reincorporation or the creation of a holding company) or liquidation of the
Company, as a result of which the shareholders of the Company receive cash,
stock or other property in exchange for or in connection with their shares of
Common Stock, any option granted hereunder shall terminate, but the Optionee
shall have the right immediately prior to any such merger, consolidation,
acquisition of property or stock, separation, reorganization or liquidation to
exercise such Optionee's option in whole or in part whether or not the vesting
requirements set forth in the option agreement have been satisfied.
7.1.2 CONVERSION OF OPTIONS ON STOCK FOR STOCK EXCHANGE
If the shareholders of the Company receive capital stock of another
corporation ("Exchange Stock") in exchange for their shares of Common Stock in
any transaction involving a merger (other than a merger of the Company in which
the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of Common Stock in the surviving corporation immediately
after the merger), consolidation, acquisition of property or stock, separation
or reorganization (other than a mere reincorporation or the creation of a
holding company), all options granted hereunder shall be converted into options
to purchase shares of Exchange Stock unless the Company and the corporation
issuing the Exchange Stock, in their sole discretion, determine that any or all
such options granted hereunder shall not be converted into options to purchase
shares of Exchange Stock but instead shall terminate in accordance with the
provisions of subsection 7.1.1. The amount and price of converted options shall
be determined by adjusting the amount and price of the options granted hereunder
in the same proportion as used for determining the number of shares of Exchange
Stock the holders of the Common Stock receive in such merger, consolidation,
acquisition of property or stock, separation or reorganization. Unless the Board
determines otherwise, the converted options shall be fully vested whether or not
the vesting requirements set forth in the option agreement have been satisfied.
7.2 FRACTIONAL SHARES
In the event of any adjustment in the number of shares covered by any
option, any fractional shares resulting from such adjustment shall be
disregarded and each such option shall cover only the number of full shares
resulting from such adjustment.
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7.3 DETERMINATION OF THE BOARD TO BE FINAL
All Section 7 adjustments shall be made by the Board, and its determination
as to what adjustments shall be made, and the extent thereof, shall be final,
binding and conclusive. Unless an Optionee agrees otherwise, any change or
adjustment to an incentive stock option shall be made in such a manner so as not
to constitute a "modification" as defined in Code Section 425(h) and so as not
to cause his or her incentive stock option issued hereunder to fail to continue
to qualify as an incentive stock option as defined in Code Section 422(b).
SECTION 8. SECURITIES REGULATION
Shares shall not be issued with respect to an option granted under this
Plan unless the exercise of such option and the issuance and delivery of such
shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, any applicable state securities laws, the
Securities Act of 1933, as amended, the Exchange Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance, including the
availability of an exemption from registration for the issuance and sale of any
shares hereunder. Inability of the Company to obtain from any regulatory body
having jurisdiction, the authority deemed by the Company's counsel to be
necessary for the lawful issuance and sale of any shares hereunder or the
unavailability of an exemption from registration for the issuance and sale of
any shares hereunder shall relieve the Company of any liability in respect of
the nonissuance or sale of such shares as to which such requisite authority
shall not have been obtained.
As a condition to the exercise of an option, the Company may require the
Optionee to represent and warrant at the time of any such exercise that the
shares are being purchased only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such representation is required by any relevant provision of the aforementioned
laws. At the option of the Company, a stop-transfer order against any shares of
stock may be placed on the official stock books and records of the Company, and
a legend indicating that the stock may not be pledged, sold or otherwise
transferred unless an opinion of counsel is provided (concurred in by counsel
for the Company) stating that such transfer is not in violation of any
applicable law or regulation, may be stamped on stock certificates in order to
assure exemption from registration. The Plan Administrator may also require
such other action or agreement by the Optionees as may from time to time be
necessary to comply with the federal and state securities laws. THIS PROVISION
SHALL NOT OBLIGATE THE COMPANY TO UNDERTAKE REGISTRATION OF THE OPTIONS OR STOCK
HEREUNDER.
Should any of the Company's capital stock of the same class as the stock
subject to options granted hereunder be listed on a national securities
exchange, all stock issued hereunder if not previously listed on such exchange
shall be authorized by that exchange for listing thereon prior to the issuance
thereof.
If a director or officer subject to Section 16 of the Exchange Act sells
shares of Common Stock obtained upon exercise of an option within six months
after the date the option was granted, the option grant will no longer be exempt
from Section 16(b) and will retroactively be deemed a nonexempt purchase as of
the date of the option grant.
SECTION 9. AMENDMENT AND TERMINATION
9.1 BOARD ACTION
The Board may at any time suspend, amend or terminate this Plan, provided
that, to the extent required for compliance with Rule 16b-3 under the Exchange
Act, Section 422 of the Code, or by any applicable law or regulation, the
Company's shareholders must approve any amendment which will:
(a) increase the number of shares that may be issued under this Plan:
(b) with respect to nonqualified stock options, materially modify the
requirements as to eligibility for participation in this Plan or, with
respect to incentive stock options, change the designation of the
participants or class of participants eligible for participation in this Plan;
(c) materially increase the benefits accruing to the participants under
this Plan; or
(d) otherwise require shareholder approval under any applicable law or
regulation.
Such shareholder approval must be obtained (a) within 12 months of the
adoption by the Board of such amendment or (b) if earlier, and to the extent
required for compliance with Rule 16b-3 under the Exchange Act, at the next
annual meeting of shareholders after such adoption by the Board.
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Any amendment made to this Plan which would constitute a "modification" to
incentive stock options outstanding on the date of such amendment, shall not be
applicable to such outstanding incentive stock options, but shall have
prospective effect only, unless the Optionee agrees otherwise.
9.2 AUTOMATIC TERMINATION
Unless sooner terminated by the Board, this Plan shall terminate ten years
from the earlier of (a) the date on which this Plan is adopted by the Board or
(b) the date on which this Plan is approved by the shareholders of the Company.
No option may be granted after such termination or during any suspension of this
Plan. The amendment or termination of this Plan shall not, without the consent
of the option holder, alter or impair any rights or obligations under any option
theretofore granted under this Plan.
SECTION 10. EFFECTIVENESS OF THIS PLAN
This Plan shall become effective upon adoption by the Board so long as it
is approved by the holders of a majority of the Company's outstanding shares of
voting capital stock any time within 12 months before or after the adoption of
this Plan.
Plan adopted by the Board of Directors on September 15, 1989 and approved by the
shareholders on September 29, 1989. Plan restated by the Board on February 21,
1992 and approved by the shareholders on May 8, 1992.
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EXHIBIT 5.1
CONSENT OF DELOITTE AND TOUCHE LLP
PERKINS COIE
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
1201 THIRD AVENUE, 40TH FLOOR * SEATTLE, WASHINGTON 98101-3099
TELEPHONE: (206) 583-8888 * FACSIMILE: (206) 583-8500
June 1, 1995
ProCyte Corporation
12040 115th Avenue N.E.
Suite 210
Kirkland, WA 98034-6900
Re: Registration Statement on Form S-8
Gentlemen and Ladies:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), which you are filing with the
Securities and Exchange Commission with respect to 652,000 shares of Common
Stock, $.01 par value (the "Shares"), which may be issued upon the exercise of
stock options granted or to be granted pursuant to the ProCyte Corporation 1989
Restated Stock Option Plan (the "Plan"). We have examined the Registration
Statement and such documents and records of the Company and other documents as
we have deemed necessary for the purpose of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock that may be issued upon the exercise of stock options
granted or to be granted pursuant to the Plan have been duly authorized and
that, upon the due execution by the Company and the registration by its
registrars of the Common Stock and the sale thereof by the Company in accordance
with the terms of the Plan, and the receipt of the consideration therefor in
accordance with the terms of the Plan, the Common Stock will be legally issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
s/ Perkins Coie
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EXHIBIT 24.1
CONSENT OF DELOITTE AND TOUCHE LLP
INDEPENDENT AUDITOR'S CONSENT
ProCyte Corporation
We consent to the incorporation by reference in this Registration Statement of
ProCyte Corporation on Form S-8 of the report of Deloitte & Touche LLP dated
February 14, 1995, appearing in and incorporated by reference in the Annual
Report on Form 10-K of ProCyte Corporation for the year ended December 31, 1994.
DELOITTE & TOUCHE LLP
Seattle, Washington
June 1, 1995
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