<PAGE>
As filed with the Securities and Exchange Commission on February 27, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
CHOLESTECH CORPORATION
(Exact name of Registrant as specified in its charter)
California 94-3065493
(State of Incorporation) (I.R.S. Employer
Identification No.)
3347 Investment Boulevard
Hayward, California 94545
(510) 732-7200
(Address and telephone number of Registrant's principal executive offices)
--------------------------
1988 STOCK INCENTIVE PROGRAM
(Full Title of the Plans)
--------------------------
Andrea J. Tiller
Vice President of Finance and
Chief Financial Officer
Cholestech Corporation
3347 Investment Boulevard
Hayward, California 94545
(510) 732-7200
(Name, address and telephone number of agent for service)
--------------------------
Copy to:
CHRIS F. FENNELL, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
--------------------------
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<PAGE>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee
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Common Stock,
no par value 500,000 shares $5.625 $2,812,500.00 $852.28
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(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee on the basis of the average of the high
and low price for the Common Stock as reported on the Nasdaq National
Market System on February 24, 1997
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<PAGE>
The contents of the Registrant's Form S-8 Registration Statements
(Registration Nos. 33-52350 and 333-04146) dated September 24, 1992 and April
26, 1996, respectively, are incorporated herein by reference.
PART II: INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 8. EXHIBITS
Exhibit
Number Documents
------------ ---------------------------------------------
4.1 1988 Stock Incentive Program, as amended
5.1 Opinion of counsel as to legality of
securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Accountants
24.1 Power of Attorney (see page 5)
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Cholestech Corporation, a corporation organized and existing under the laws of
the State of California, certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Hayward, State of California, on this
27th day of February, 1997.
CHOLESTECH CORPORATION
By: /s/ Andrea J. Tiller
-----------------------------------------------------
Andrea J. Tiller
Vice President of Finance and Chief Financial Officer
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<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Warren E. Pinckert II and Andrea J.
Tiller, jointly and severally, his or her attorneys-in-fact, each with the
power of substitution, for him or her in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------ ------------------------------------------ ---------------------
<S> <C> <C>
/s/ Warren E. Pinckert II President and Chief Executive February 27, 1997
- ------------------------------ Officer (Principal Executive Officer)
(Warren E. Pinckert II)
/s/ Andrea J. Tiller Vice President of Finance and Chief February 27, 1997
- ------------------------------ Financial Officer (Principal Financial
(Andrea J. Tiller) and Accounting Officer)
/s/ Harvey S. Sadow, Ph.D. Chairman of the Board February 27, 1997
- ------------------------------
(Harvey S. Sadow, Ph.D.)
/s/ John L. Castello Director February 27, 1997
- ------------------------------
(John L. Castello)
/s/ H.R. Shepherd Director February 27, 1997
- ------------------------------
(H.R. Shepherd)
Director
- ------------------------------
(Joseph Buchman M.D.)
</TABLE>
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<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------------------------
EXHIBITS
----------------------------------------------
REGISTRATION STATEMENT ON FORM S-8
CHOLESTECH CORPORATION
FEBRUARY 27, 1997
<PAGE>
CHOLESTECH CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
PAGE NUMBER UNDER
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION NUMBERING SYSTEM
- ---------- ------------------------------------------------------------------- ---------------------
<S> <C> <C>
4.1 1988 Stock Incentive Program, as amended . . . . . . . . . . . . 8
5.1 Opinion of counsel as to legality of securities being
registered . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Accountants . . . . . . . . . . . . . . . 21
24.1 Power of Attorney (contained in page 5)
</TABLE>
<PAGE>
CHOLESTECH CORPORATION EXHIBIT 4.1
1988 STOCK INCENTIVE PROGRAM
(As Amended through August 22, 1996)
1. PURPOSES OF THE PROGRAM. The purposes of this Stock Incentive Program
are to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to the Employees,
Consultants and certain Outside Directors of the Company and to promote the
success of the Company's business.
Options granted hereunder may be either Incentive Stock Options or
Nonstatutory Stock Options, at the discretion of the Administrator and as
reflected in the terms of the written option agreement. The Plan also provides
for automatic grants of Nonstatutory Stock Options to Outside Directors who are
not representatives of shareholders owning more than one percent (1%) of the
outstanding shares of the Company.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "ADMINISTRATOR" means the Board or any of its Committees as shall
be administering the Plan, in accordance with Section 4 of the Plan.
(b) "BOARD" shall mean the Board of Directors of the Company.
(c) "COMMON STOCK" shall mean the Common Stock of the Company.
(d) "COMPANY" shall mean Cholestech Corporation, a California
corporation.
(e) "COMMITTEE" shall mean a Committee appointed by the Board of
Directors in accordance with Section 4 of the Program.
(f) "CONSULTANT" shall mean any person who is engaged by the Company
or any parent or subsidiary to render consulting services and is compensated for
such consulting services; provided that the term Consultant shall not include
directors who are not compensated for their services or are paid only a
director's fee by the Company.
(g) "CONTINUOUS STATUS AS AN EMPLOYEE, CONSULTANT OR OUTSIDE
DIRECTOR" shall mean the absence of any interruption or termination of service
as an Employee, Consultant or Outside Director. Continuous Status as an
Employee, Consultant or Outside Director shall not be considered interrupted in
the case of sick leave, military leave, or any other leave of absence approved
by the Administrator; provided that such leave is for a period of not more than
90 days or reemployment upon the expiration of such leave is guaranteed by
contract or statute.
(h) "EMPLOYEE" shall mean any person, including officers and
directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a director's fee by the Company shall not be sufficient to
constitute "employment" by the Company.
<PAGE>
(i) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
(j) "INCENTIVE STOCK OPTION" shall mean an Option intended to qualify
as an incentive stock option within the meaning of Section 422A of the Internal
Revenue Code of 1986.
(k) "NONSTATUTORY STOCK OPTION" shall mean an Option not intended to
qualify as an Incentive Stock Option.
(l) "OPTION" shall mean a stock option granted pursuant to the
Program.
(m) "OPTIONED STOCK" shall mean the Common Stock subject to an
Option.
(n) "OPTIONEE" shall mean an Employee, Consultant or Outside Director
who receives an Option.
(o) "OUTSIDE DIRECTOR" shall mean a member of the Board of Directors
of the Company who is not an Employee or a Consultant.
(p) "PARENT" shall mean a "parent corporation", whether now or
hereafter existing, as defined in Section 425(e) of the Internal Revenue Code of
1986.
(q) "PROGRAM" shall mean this 1988 Stock Incentive Program.
(r) "SHARE" shall mean a share of the Common Stock, as adjusted in
accordance with Section 10 of the Program.
(s) "SUBSIDIARY" shall mean a "subsidiary corporation", whether now
or hereafter existing, as defined in Section 425(f) of the Internal Revenue Code
of 1986.
3. STOCK SUBJECT TO THE PROGRAM. Subject to the provisions of Section 10
of the Program, the maximum aggregate number of shares under the Program is
2,050,000 shares of Common Stock. The Shares may be authorized, but unissued,
or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were subject
thereto shall, unless the Program shall have been terminated, become available
for future grant under the Program. Notwithstanding the above, however, if
Shares are issued upon exercise of an Option and later repurchased by the
Company, such Shares shall not become available for future grant or sale under
the Program.
4. ADMINISTRATION OF THE PROGRAM.
(a) COMPOSITION OF ADMINISTRATOR.
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(i) MULTIPLE ADMINISTRATIVE BODIES. If permitted by
Rule 16b-3 promulgated under the Exchange Act or any successor rule thereto,
as in effect at the time that discretion is being exercised with respect to
the Program ("Rule 16b-3") and by the legal requirements relating to the
administration of incentive stock option plans, if any, of California
corporate and securities laws and the Internal Revenue Code of 1986, as
amended, (collectively, the "Applicable Laws"), the Program may (but need
not) be administered by different bodies with respect to Directors, Officers
who are not Directors, and Employees who are neither Directors nor Officers.
(ii) ADMINISTRATION WITH RESPECT TO DIRECTORS AND OFFICERS
SUBJECT TO SECTION 16(b). With respect to Option grants made to Employees
who are also Officers or Directors subject to Section 16(b) of the Exchange
Act, the Program shall be administered by (A) the Board, if the Board may
administer the Program in compliance with the rules governing a plan intended
to qualify as a discretionary plan under Rule 16b-3, or (B) a committee
designated by the Board to administer the Program, which committee shall be
constituted to comply with the rules governing a plan intended to qualify as
a discretionary plan under Rule 16b-3. Once appointed, such Committee shall
continue to serve in its designated capacity until otherwise directed by the
Board. From time to time the Board may increase the size of the Committee
and appoint additional members, remove members (with or without cause) and
substitute new members, fill vacancies (however caused), and remove all
members of the Committee and thereafter directly administer the Program, all
to the extent permitted by the rules governing a plan intended to qualify as
a discretionary plan under Rule 16b-3.
(iii) ADMINISTRATION WITH RESPECT TO OTHER PERSONS. With
respect to Option grants made to Employees or Consultants who are neither
Directors nor Officers of the Company, the Program shall be administered by
(A) the Board or (B) a committee designated by the Board, which committee
shall be constituted to satisfy Applicable Laws. Once appointed, such
Committee shall serve in its designated capacity until otherwise directed by
the Board. The Board may increase the size of the Committee and appoint
additional members, remove members (with or without cause) and substitute new
members, fill vacancies (however caused), and remove all members of the
Committee and thereafter directly administer the Program, all to the extent
permitted by Applicable Laws.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of the
Program, the Administrator shall have the authority, in its discretion: (i)
to grant Incentive Stock Options or Nonstatutory Stock Options; (ii) to
determine, upon review of relevant information and in accordance with Section
7 of the Program, the fair market value of the Common Stock; (iii) to
determine the exercise price per share of Options to be granted, which
exercise price shall be determined in accordance with Section 7 of the
Program; (iv) to determine the Employees or Consultants to whom, and the time
or times at which, Options shall be granted and the number of shares to be
represented by each Option (except with respect to automatic Option grants
made to certain Outside Directors); (v) to interpret the Program; (vi) to
prescribe, amend and rescind rules and regulations relating to the Program;
(vii) to determine the terms and provisions of each Option granted (which
need not be identical) and, with the consent of the holder thereof, modify or
amend each Option; (viii) to accelerate or defer (with the consent of the
Optionee) the exercise date of any Option; (ix) to authorize any person to
execute on behalf of the Company any instrument required to effectuate the
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<PAGE>
grant of an Option previously granted by the Administrator; and (x) to make
all other determinations deemed necessary or advisable for the administration
of the Program.
(c) EFFECT OF ADMINISTRATOR'S DECISION. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options granted under the
Program.
5. ELIGIBILITY.
(a) Options may be granted to Employees, Consultants and Outside
Directors who are not representatives of shareholders owning more than one
percent (1%) of the outstanding shares of the Company, provided that (i)
Incentive Stock Options may only be granted to Employees and (ii) Options may
only be granted to Outside Directors who are not representatives of shareholders
owning more than one percent (1%) of the outstanding shares of the Company in
accordance with the provisions of Section 8(b)(ii) hereof. An Employee,
Consultant or Outside Director who has been granted an Option may, if he is
otherwise eligible, be granted an additional Option or Options.
(b) To the extent that the aggregate fair market value of Shares
subject to an Optionee's incentive stock options granted by the Company, any
Parent or Subsidiary, which become exercisable for the first time during any
calendar year (under all plans or programs of the Company or any Parent or
Subsidiary) exceeds $100,000, such excess Options shall be treated as
Nonstatutory Stock Options. For purposes of this Section 5(b), incentive stock
options shall be taken into account in the order in which they were granted, and
the fair market value of the Shares shall be determined as of the time of grant.
(c) The Program shall not confer upon any Optionee any right with
respect to continuation of employment or consulting relationship with the
Company, nor shall it interfere in any way with his right or the Company's right
to terminate his employment or consulting relationship at any time.
6. TERM OF PROGRAM. The Program shall become effective upon the earlier
to occur of its adoption by the Board of Directors or its approval by vote of
the shareholders of the Company as described in Section 16 of the Program. It
shall continue in effect for a term of ten (10) years unless sooner terminated
under Section 12 of the Program.
7. EXERCISE PRICE AND CONSIDERATION OF SHARES.
(a) The per Share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as is determined by the
Administrator, but in no event shall it be (i) less than 85% of the fair market
value per Share on the date of grant and (ii) in the case of an Incentive Stock
Option, not less than 100% of the fair market value per Share on the date of
grant. In the case of an Incentive Stock Option granted to an Employee who, at
the time of grant of such Incentive Stock Option, owns stock representing more
than ten percent (10%) of the voting power of all
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<PAGE>
classes of stock of the Company or any Parent or Subsidiary, the per Share
exercise price shall be no less than 110% of the fair market value per Share
on the date of grant.
(b) The fair market value shall be determined by the Administrator
in its discretion; provided, however, that where there is a public market for
the Common Stock, the fair market value per Share shall be the mean of the
bid and asked prices (or the closing price per share if the Common Stock is
listed on the National Association of Securities Dealers Automated Quotation
("NASDAQ") National Market System) of the Common Stock for the date of grant,
as reported in the Wall Street Journal (or, if not so reported, as otherwise
reported by the NASDAQ System) or, in the event the Common Stock is listed on
a stock exchange, the fair market value per Share shall be the closing price
on such exchange on the date of grant of the Option, as reported in the Wall
Street Journal.
(c) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined
by the Administrator and may consist entirely of:
(i) cash,
(ii) check,
(iii) promissory note,
(iv) other Shares of Common Stock which (i) either have been
owned by the Optionee for more than six (6) months on the
date of surrender or were not acquired, directly or
indirectly, from the Company, and (ii) have a fair market
value on the date of surrender equal to the aggregate
exercise price of the Shares as to which said option shall
be exercised,
(v) delivery of a properly executed exercise notice together
with such other documentation as the Administrator and the
broker, if applicable, shall require to effect an exercise
of the Option and delivery to the Company of the sale or
loan proceeds required to pay the exercise price, or
(vi) any combination of such methods of payment, or such other
consideration and method of payment for the issuance of
Shares to the extent permitted under Sections 408 and 409
of the California General Corporation Law.
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<PAGE>
In making its determination as to the type of consideration to accept, the
Administrator shall consider if acceptance of such consideration may be
reasonably expected to benefit the Company (Section 315(b) of the California
General Corporation Law).
8. OPTIONS.
(a) TERM OF OPTION. The term of each Option shall be ten (10) years
from the date of grant thereof or such shorter term as may be provided in the
Stock Option Agreement. The term of each Option that is not an Incentive Stock
Option shall be ten (10) years and one (1) day from the date of grant thereof or
such shorter term as may be provided in the Nonstatutory Stock Option Agreement.
However, in the case of an Option granted to an Optionee who, at the time the
Option is granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary,
(a) if the Option is an Incentive Stock Option, the term of the Option shall be
five (5) years from the date of grant thereof or such shorter time as may be
provided in the Incentive Stock Option Agreement, or (b) if the Option is not an
Incentive Stock Option, the term of the Option shall be five (5) years and one
(1) day from the date of grant thereof or such shorter term as may be provided
in the Nonstatutory Stock Option Agreement.
(b) EXERCISE OF OPTION.
(i) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option
granted hereunder, except for Options granted to certain Outside Directors in
accordance with Section 8(b)(ii) below, shall be exercisable at such times and
under such conditions as determined by the Administrator, including performance
criteria with respect to the Company and/or the Optionee, and shall be
permissible under the terms of the Program; provided, however, that the vesting
schedule shall provide for the exercise of at least 20% of the shares each year
over five years.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for the
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Administrator, consist of any
consideration and method of payment allowable under Section 7(c) of the Program.
Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, which issuance shall be made as soon as is
practicable, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding the
exercise of the Option. The Company shall issue (or cause to be issued) such
stock certificate promptly upon exercise of the Option.
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<PAGE>
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both for purposes of
the Program and for sale under the Option, by the number of Shares as to which
the Option is exercised.
(ii) AUTOMATIC OPTION GRANTS TO CERTAIN OUTSIDE DIRECTORS. The
provisions set forth in this Section 8(b)(ii) shall not be amended more than
once every six months, other than to comport with changes in the Internal
Revenue Code of 1986, as amended, or the rules thereunder. All grants of
Options to Outside Directors under this Program shall be automatic and non-
discretionary and shall be made strictly in accordance with the following
provisions:
(A) No person shall have any discretion to select which
Outside Directors shall be granted Options or to determine the number of shares
to be covered by Options granted to Outside Directors; provided, however, that
nothing in this Program shall be construed to prevent an Outside Director from
declining to receive an Option under this Program.
(B) On the date on which the Company's registration
statement on Form S-1 (or any successor form thereof) is declared effective by
the Securities and Exchange Commission, each person who is then an Outside
Director who is not a representative of shareholders owning more than one
percent (1%) of the outstanding shares of the Company will automatically receive
an Option to purchase 5,000 Shares immediately following such declaration of
effectiveness.
(C) Subsequently, on the date of each annual meeting of
the Company's shareholders (beginning with the 1993 meeting of shareholders),
each person who is then an Outside Director who is not a representative of
shareholders owning more than one percent (1%) of the outstanding shares of the
Company will automatically receive an Option to purchase 10,000 Shares.
(D) Each new Outside Director who is not a representative
of shareholders owning more than one percent (1%) of the outstanding shares of
the Company who becomes a new Outside Director within six months after an annual
meeting of the Company's shareholders will automatically receive an Option to
purchase 5,000 Shares upon the date on which such person becomes an Outside
Director.
(E) The terms of an Option granted pursuant to this
Section 8(b)(ii) shall be as follows:
(1) the term of the Option shall be five (5) years;
(2) except as provided in Sections 8(b)(iii),
8(b)(iv) and 8(b)(v) of this Program, the Option
shall be exercisable only while the Outside
Director remains a director;
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<PAGE>
(3) the exercise price per share of Common Stock
shall be 100% of the fair market value on the
date of grant of the Option, provided that, with
respect to the Options granted on the date on
which the Company's registration statement on
Form S-1 (or any successor form thereof) is
declared effective by the Securities and
Exchange Commission, the fair market value of
the Common Stock shall be the Price to Public as
set forth in the final prospectus filed with the
Securities and Exchange Commission pursuant to
Rule 424 under the Securities Act of 1933, as
amended.
(4) the Option shall become exercisable in
installments cumulatively with respect to
twenty-five percent (25%) of the Optioned Stock
one calendar quarter after the date of grant and
as to an additional twenty-five percent (25%) of
the Optioned Stock each calendar quarter
thereafter, so that one hundred percent (100%)
of the Optioned Stock shall be exercisable one
year after the date of grant; provided, however,
that in no event shall any Option be exercisable
prior to obtaining shareholder approval of the
Program.
(iii) TERMINATION OF STATUS AS AN EMPLOYEE, CONSULTANT OR OUTSIDE
DIRECTOR. Unless otherwise set forth in the Option Agreement, if an Employee,
Consultant or Outside Director ceases to serve as an Employee, Consultant or
Outside Director (including termination by reason of his retirement), he may,
but only within three (3) months after the date he ceases to be an Employee,
Consultant or Outside Director of the Company (but in no event later than the
date of expiration of the term of such Option as set forth in the Option
Agreement), exercise his Option to the extent that he was entitled to exercise
it at the date of such termination; provided, however, that if such exercise of
the Option would result in liability for the Employee, Consultant or Outside
Director under Section 16(b) of the Exchange Act, then such three (3) month
period shall be extended until the tenth (10th) day following the last date upon
which the Employee, Consultant or Outside Director has any liability under
Section 16(b). To the extent that he was not entitled to exercise the Option at
the date of such termination, or if he does not exercise such Option (which he
was entitled to exercise) within the time specified herein, the Option shall
terminate.
(iv) DISABILITY OF OPTIONEE. Notwithstanding the provisions of
Section 8(b)(iii) above and unless otherwise set forth in the Option Agreement,
in the event an Employee, Consultant or Outside Director is unable to continue
his employment with or to perform services for the benefit of the Company as a
result of his total and permanent disability (as defined in Section 105(d)(4) of
the Internal Revenue Code), he may, but only within one (1) year from the date
of disability (but in no event later than the date of expiration of the term of
such Option as set forth in the Option
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<PAGE>
Agreement), exercise his Option to the extent he was entitled to exercise it
at the date of such disability. To the extent that he was not entitled to
exercise the Option at the date of disability, or if he does not exercise
such Option (which he was entitled to exercise) within the time specified
herein, the Option shall terminate.
(v) DEATH OF OPTIONEE. Unless otherwise set forth in the
Option Agreement, in the event of the death of an Optionee:
(A) during the term of the Option who is at the time of
his death an Employee, Consultant or Outside Director of the
Company and who shall have been in Continuous Status as an
Employee, Consultant or Outside Director since the date of grant
of the Option, the Option may be exercised, at any time within
one (1) year following the date of death, by the Optionee's
estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, to the extent that he was
entitled to exercise it at the date of death; or
(B) within three (3) months after the termination of
Continuous Status as an Employee, Consultant or Outside Director
for any reason other than for cause or a voluntary termination
initiated by the Optionee, the Option may be exercised, at any
time within one (1) year following the date of death, by the
Optionee's estate or by a person who acquired the right to
exercise the Option by bequest or inheritance, but only to the
extent of the right to exercise that had accrued at the date of
termination.
9. NON-TRANSFERABILITY OF OPTIONS. The Options may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee or Purchaser, only by the Optionee or Purchaser.
10. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any
required action by the shareholders of the Company, the number of shares of
Common Stock covered by each outstanding Option, and the number of shares of
Common Stock which have been authorized for issuance under the Program but as to
which no Options have yet been granted or which have been returned to the
Program upon cancellation or expiration of an Option, as well as the price per
share of Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." Such adjustment shall be
made by the Administrator, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by the
Company of shares
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<PAGE>
of stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an
Option.
In the event of the proposed dissolution or liquidation of the
Company, the Option will terminate immediately prior to the consummation of
such proposed action, unless otherwise provided by the Administrator. The
Administrator may, in the exercise of its sole discretion in such instances,
declare that any Option shall terminate as of a date fixed by the
Administrator and give each Optionee the right to exercise his Option as to
all or any part of the Optioned Stock, including Shares as to which the
Option would not otherwise be exercisable. In the event of a proposed sale
of all or substantially all of the assets of the Company, or the merger of
the Company with or into another corporation, the Option shall be assumed or
an equivalent option shall be substituted by such successor corporation or a
parent or subsidiary of such successor corporation. In the event that such
successor corporation refuses to assume the Option or to substitute an
equivalent option, the Administrator shall, in lieu of such assumption or
substitution, provide for the Optionee to have the right to exercise the
Option as to all of the Optioned Stock, including Shares as to which the
Option would not otherwise be exercisable. If the Administrator makes an
Option fully exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Administrator shall notify the Optionee
that the Option shall be fully exercisable for a period of thirty (30) days
from the date of such notice, and the Option will terminate upon the
expiration of such period.
11. TIME OF GRANTING OPTIONS. The date of grant of an Option shall,
for all purposes, be the date on which the Administrator makes the
determination granting such Option. Notice of the determination shall be
given to each Employee or Consultant to whom an Option is so granted within a
reasonable time after the date of such grant.
12. AMENDMENT AND TERMINATION OF THE PROGRAM.
(a) AMENDMENT AND TERMINATION. The Board may amend or terminate
the Program from time to time in such respects as the Board may deem
advisable; provided that, the following revisions or amendments shall require
approval of the shareholders of the Company in the manner described in
Section 18 of the Program:
(i) any increase in the number of Shares subject to the
Program, other than in connection with an adjustment under Section 10
of the Program;
(ii) any change in the designation of the class of employees,
Consultants or Outside Directors eligible to be granted Options; or
(iii) any material increase in the benefits accruing to
individuals subject to Section 16 of the Exchange Act under the
Program.
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<PAGE>
(b) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or
termination of the Program shall not affect Options already granted and such
Options shall remain in full force and effect as if this Program had not been
amended or terminated, unless mutually agreed otherwise between the Optionee
and the Administrator, which agreement must be in writing and signed by the
Optionee and the Company.
13. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option 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, 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.
As a condition to the exercise of an Option, the Company may require
the person exercising such Option or making such purchase 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 a representation is
required by any of the aforementioned relevant provisions of law.
14. RESERVATION OF SHARES. The Company, during the term of this Program,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Program.
Inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's counsel
to be necessary to the lawful issuance and sale of any Shares hereunder,
shall relieve the Company of any liability in respect of the failure to issue
or sell such Shares as to which such requisite authority shall not have been
obtained.
15. OPTION AGREEMENTS. Options shall be evidenced by an Incentive Stock
Option Agreement, in the form attached hereto as Exhibit A, and by a
Nonstatutory Stock Option Agreement, in the form attached hereto as Exhibit B.
Such agreements shall be subject to amendment from time to time as shall be
determined by the Administrator.
16. SHAREHOLDER APPROVAL.
(a) Continuance of the Program shall be subject to approval by the
shareholders of the Company within twelve months before or after the date the
Program is adopted.
(b) Any required approval of the shareholders of the Company
obtained shall be solicited substantially in accordance with Section 14(a) of
the Exchange Act and the rules and regulations promulgated thereunder.
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<PAGE>
(c) If any required approval by the shareholders of the Program
itself or of any amendment thereto is solicited at any time otherwise than in
the manner described in Section 16(b) hereof, then the Company shall, at or
prior to the first annual meeting of shareholders held subsequent to the later
of (1) the first registration of any class of equity securities of the Company
under Section 12 of the Exchange Act or (2) the granting of an Option hereunder
to an officer or director after such registration, do the following:
(i) furnish in writing to the holders entitled to vote for the
Program substantially the same information which would be required (if proxies
to be voted with respect to approval or disapproval of the Program or amendment
were then being solicited) by the rules and regulations in effect under
Section 14(a) of the Exchange Act at the time such information is furnished; and
(ii) file with, or mail for filing to, the Securities and
Exchange Commission four copies of the written information referred to in
subsection (i) hereof not later than the date on which such information is first
sent or given to shareholders.
17. INFORMATION TO OPTIONEES. The Company shall provide all Optionees
with the same audited financial statements and other information generally
distributed to the shareholders of the Company.
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<PAGE>
Wilson, Sonsini, Goodrich & Rosati EXHIBIT 5.1
650 Page Mill Road
Palo Alto, CA 94304
(415) 493-9300
February 27, 1997
Cholestech Corporation
3347 Investment Boulevard
Hayward, California 94545
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about February 27, 1997, in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 500,000 additional shares of your Common Stock reserved for
issuance under the 1988 Stock Incentive Program (the "1988 Plan").
As your legal counsel, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
sale and issuance of said shares. It is our opinion that the additional shares,
when issued and sold in the manner referred to in the 1988 Plan and pursuant to
the agreements which accompany the 1988 Plan, will be legally and validly
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said Registration
Statement and further consent to the use of our name wherever appearing in said
Registration Statement and any amendments thereto.
Sincerely,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 24, 1996, except as to Note 11,
which is as of May 9, 1996, appearing on page F-2 of Cholestech Corporation's
Annual Report on Form 10-K for the year ended March 29, 1996.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
San Jose, California
February 24, 1997
