*Total Number of Pages:
Index to Exhibits at Page:
As filed with the Securities and Exchange Commission on January 7, 1999
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
---------------------------
VIDAMED, INC.
(Exact name of Registrant as specified in its charter)
---------------------------
Delaware 77-0314454
- ------------------------ ------------------------------------
(State of incorporation) (I.R.S. Employer Identification No.)
46107 Landing Parkway
Fremont, California 94538
(Address, including zip code, of Registrant's principal executive offices)
---------------------------
1999 NONSTATUTORY STOCK OPTION PLAN
(Full titles of the plans)
---------------------------
VidaMed, Inc.
46107 Landing Parkway
Fremont, California 94538
(510) 492-4900
(Name, address, and telephone number, including area code, of agent for service)
---------------------------
Copies to:
Christoper D. Mitchell, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 493-9300
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<PAGE>
<TABLE>
====================================================================================================================================
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
<CAPTION>
Proposed Proposed
Maximum Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered (1) Registered Per Share Offering Price Fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value (1)...... 950,000 shares (2) $2.375 (3) $2,256,250 $627.24
TOTAL
====================================================================================================================================
====================================================================================================================================
<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933
(the "Act"), this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee
benefit plans described herein.
(2) This number represents the number of shares being registered pursuant
to this Registration Statement which are issuable pursuant to stock
rights and upon exercise of options which have not yet been granted
under the 1999 Nonstatutory Stock Option Plan as of the date of this
Registration Statement.
(3) Estimated in accordance with Rule 457(h) under the Act solely for the
purpose of calculating the total registration fee based upon the
average of the high and low prices of the Common Stock on January 5,
1999 as reported on the Nasdaq National Market.
</FN>
</TABLE>
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
Item 1. Plan Information
The Registrant will provide the documents containing the information
specified in Item 1 as specified by Rule 428(b)(1). In accordance with the rules
and regulations of the Securities and Exchange Commission (the "Commission") and
the instructions to Form S-8, the Registrant is not filing such documents with
the Commission either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424.
Item 2. Registration Information and Employee Plan Annual Information
The Registrant will provide the documents containing the information
specified in Item 2 as specified by Rule 428(b)(1). In accordance with the rules
and regulations of the Commission and the instructions to Form S-8, the
Registrant is not filing such documents with the Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K (the "Annual Report") for
the fiscal year ended December 31, 1997 filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Registrant's definitive Proxy Statement dated April 6, 1998 filed
in connection with the Registrant's 1998 Annual Meeting of
Stockholders;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998, filed pursuant to Section 13 or 15(d) of the
Exchange Act;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998, filed pursuant to Section 13 or 15(d) of the Exchange
Act;
(e) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998, filed pursuant to Section 13 or 15(d) of the Exchange
Act;
(f) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A12G filed on January 31,
1997 (File No. 000-26082); and
(g) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on May 17, 1995.
All documents subsequently filed with the Commission by Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold under this Registration Statement, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
II-1
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain members of Wilson Sonsini Goodrich and Rosati, Professional
Corporation, and investment partnerships of which such persons are partners
beneficially own 8,809 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware provides for the
indemnification of officers, directors and other corporate agents in terms
sufficiently broad to indemnify such persons, under certain circumstances, for
certain liabilities (including reimbursement of expenses incurred) arising under
the Securities Act of 1933 (the "Securities Act").
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and executive officers and may indemnify its other officers and
employees and other agents to the fullest extent permitted by law, including
circumstances in which indemnification is otherwise discretionary under Delaware
law.
The Registrant has adopted provisions in its Certificate of
Incorporation that limit the personal liability of its directors and officers
for monetary damages arising from a breach of their fiduciary duties in certain
circumstances to the fullest extent permitted by law. Such limitation of
liability does not affect the availability of equitable remedies such as
injunctive relief or rescission.
The Registrant entered into indemnification agreements with its
executive officers and directors containing provisions which are in some
respects broader that the specific indemnification provisions contained in the
General Corporation Law of Delaware. The indemnification agreements may require
the Company, among other things, to indemnify such officers and directors
against certain liabilities that may arise by reason of their status or service
as directors or officers (other than liabilities arising from willful misconduct
of a culpable nature). These agreements also indemnify the directors and
executive officers for certain expenses (including attorney's fees), judgments,
fines and settlement amounts incurred as a result of any proceeding against them
as to which they could be indemnified.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Document
------ --------------------------------------------------------------
4.1 1999 Nonstatutory Stock Option Plan.
5.1 Opinion of Wilson Sonsini Goodrich and Rosati, Professional
Corporation regarding legality.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1 hereto).
II-2
<PAGE>
24.1 Power of Attorney (see page II-4).
- ---------------------------
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, post-effective amendment to this Registration Statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (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) that is
incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities therein,
and the offering of such securities at that time shall be deemed to be
an initial bona fide offering thereof.
(c) 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 Securities Act and is, therefore,
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 Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fremont, State of California, on this 6th day of
January, 1999
VidaMed, Inc.
By: /s/ David J. Illingworth
---------------------------------
David J. Illingworth
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David J. Illingworth and Richard D.
Brounstein, jointly and severally, as his attorney-in-fact, each with the power
of substitution, for him 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 the said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
<TABLE>
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 date indicated.
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ David J. Illingworth Chairman, President and Chief January 6, 1999
- ------------------------------------ Executive Officer (Principal Executive
David J. Illingworth Officer)*
/s/ Richard D. Brounstein Vice President of Finance and Chief January 6, 1999
- ------------------------------------ Financial Officer (Principal Financial
Richard D. Brounstein and Accounting Officer)
/s/ Franklin D. Brown Director* January 6, 1999
- ------------------------------------
Franklin D. Brown
/s/ Robert Erra Director* January 6, 1999
- ------------------------------------
Robert Erra
/s/ Wayne I. Roe Director* January 6, 1999
- ------------------------------------
Wayne I. Roe
Director* January 6, 1999
- ------------------------------------
Michael H. Spindler
<FN>
* The 1999 Nonstatutory Stock Option Plan is being registered pursuant to this
Registration Statement and is subject to administration by the Board of
Directors of the Registrant.
</FN>
</TABLE>
II-4
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
EXHIBITS
----------------------------------
Registration Statement on Form S-8
VidaMed, Inc.
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
- --------------------------------------------------------------------------------
4.1 1999 Nonstatutory Stock Option Plan
5.1 Opinion of Wilson Sonsini Goodrich and Rosati,
Professional Corporation regarding legality.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation (contained in Exhibit 5.1
hereto)
24.1 Power of Attorney (see Page II-4)
- ---------------------------
VIDAMED, INC.
1999 NONSTATUTORY STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Nonstatutory Stock Option
Plan are:
o to attract and retain the best available personnel for
positions of substantial responsibility,
o to provide additional incentive to Employees and Consultants,
and
o to promote the success of the Company's business.
Options granted under the Plan will be Nonstatutory Stock Options.
Stock Rights may also be granted under the Plan.
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) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options are, or will be, granted under
the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a committee of Directors appointed by the Board
in accordance with Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means VidaMed, Inc., a Delaware corporation.
(h) "Consultant" means any person, including an advisor, engaged by
the Company or a Parent or Subsidiary to render services to such entity.
(i) "Director" means a member of the Board.
(j) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(k) "Employee" means any person, excluding Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. A Service
Provider shall not cease to be an
<PAGE>
Employee in the case of (i) any leave of absence approved by the Company or (ii)
transfers between locations of the Company or between the Company, its Parent,
any Subsidiary, or any successor. Neither service as a Director nor payment of a
director's fee by the Company shall be sufficient to constitute "employment" by
the Company.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(m) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including without limitation the Nasdaq
National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its
Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the last market trading day prior to the day of
determination, as reported in The Wall Street Journal or such other source as
the Administrator deems reliable;
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
(n) "Notice of Grant" means a written or electronic notice evidencing
certain terms and conditions of an individual Option grant. The Notice of Grant
is part of the Option Agreement.
(o) "Officer" means a person who is an officer of the Company within
the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(p) "Option" means a nonstatutory stock option granted pursuant to the
Plan, that is not intended to qualify as an incentive stock option within the
meaning of Section 422 of the Code and the regulations promulgated thereunder.
(q) "Option Agreement" means an agreement between the Company and an
Optionee evidencing the terms and conditions of an individual Option grant. The
Option Agreement is subject to the terms and conditions of the Plan.
(r) "Option Exchange Program" means a program whereby outstanding
options are surrendered in exchange for options with a lower exercise price.
(s) "Optioned Stock" means the Common Stock subject to an Option.
-2-
<PAGE>
(t) "Optionee" means the holder of an outstanding Option granted under
the Plan.
(u) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(v) "Plan" means this 1999 Nonstatutory Stock Option Plan.
(w) "Restricted Stock" means shares of Common Stock acquired pursuant
to a grant of a Stock Right under Section 11 of the Plan.
(x) "Restricted Stock Agreement" means a written agreement between the
Company and the Optionee evidencing the terms and restrictions applying to stock
received under a Stock Right. The Restricted Stock Agreement is subject to the
terms and conditions of the Plan and the Notice of Grant.
(y) "Service Provider" means an Employee, excluding an Officer or
Director.
(z) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 12 of the Plan.
(aa) "Stock Right" means a right to acquire Common Stock pursuant to
Section 11 of the Plan, as evidenced by a Notice of Grant.
(bb) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 13 of
the Plan, the maximum aggregate number of Shares which may be optioned and sold
under the Plan is 950,000 Shares. The Shares may be authorized, but unissued, or
reacquired Common Stock.
If an Option expires or becomes unexercisable without having been
exercised in full, or is surrendered pursuant to an Option Exchange Program, the
unpurchased Shares which were subject thereto shall become available for future
grant or sale under the Plan (unless the Plan has terminated).
4. Administration of the Plan.
(a) Administration. The Plan shall be administered by (i) the Board or
(ii) a Committee, which committee shall be constituted to satisfy Applicable
Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan,
and in the case of a Committee, subject to the specific duties delegated by the
Board to such Committee, the Administrator shall have the authority, in its
discretion:
(i) to determine the Fair Market Value of the Common Stock;
-3-
<PAGE>
(ii) to select the Service Providers to whom Options and Stock
Rights may be granted hereunder;
(iii) to determine whether and to what extent Options and Stock
Rights are granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each Option and Stock Right granted hereunder;
(v) to approve forms of agreement for use under the Plan;
(vi) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder. Such terms and
conditions include, but are not limited to, the exercise price, the time or
times when Options or Stock Rights may be exercised (which may be based on
performance criteria), any vesting acceleration or waiver of forfeiture
restrictions, and any restriction or limitation regarding any Option or Stock
Rights or the shares of Common Stock relating thereto, based in each case on
such factors as the Administrator, in its sole discretion, shall determine;
(vii) to reduce the exercise price of any Option or Stock Right
to the then current Fair Market Value if the Fair Market Value of the Common
Stock covered by such Option or Stock Right shall have declined since the date
the Option or Stock Right was granted;
(viii) to institute an Option Exchange Program;
(ix) to construe and interpret the terms of the Plan and awards
granted pursuant to the Plan;
(x) to prescribe, amend and rescind rules and regulations
relating to the Plan, including rules and regulations relating to sub-plans
established for the purpose of qualifying for preferred tax treatment under
foreign tax laws;
(xi) to modify or amend each Option or Stock Right (subject to
Section 15(b) of the Plan), including the discretionary authority to extend the
post-termination exercisability period of Options longer than is otherwise
provided for in the Plan;
(xii) to authorize any person to execute on behalf of the
Company any instrument required to effect the grant of an Option or Stock Right
previously granted by the Administrator;
(xiii) to determine the terms and restrictions applicable to
Options or Stock Rights;
(xiv) to allow Optionees to satisfy withholding tax obligations
by electing to have the Company withhold from the Shares to be issued upon
exercise of an Option or Stock Right that number of Shares having a Fair Market
Value equal to the amount required to be withheld. The Fair
-4-
<PAGE>
Market Value of the Shares to be withheld shall be determined on the date that
the amount of tax to be withheld is to be determined. All elections by an
Optionee to have Shares withheld for this purpose shall be made in such form and
under such conditions as the Administrator may deem necessary or advisable; and
(xv) to make all other determinations deemed necessary or
advisable for administering the Plan.
(c) Effect of Administrator's Decision. The Administrator's decisions,
determinations and interpretations shall be final and binding on all Optionees
and any other holders of Options or Stock Rights.
5. Eligibility. Options or Stock Rights may be granted to Service
Providers; provided, however, that notwithstanding anything to the contrary
contained in the Plan, Options or Stock Rights may not be granted to Officers
and Directors.
6. Limitation. Neither the Plan nor any Option or Stock Right shall confer
upon an Optionee any right with respect to continuing the Optionee's
relationship as a Service Provider with the Company, nor shall they interfere in
any way with the Optionee's right or the Company's right to terminate such
relationship at any time, with or without cause.
7. Term of Plan. The Plan shall become effective upon its adoption by the
Board. It shall continue in effect for ten (10) years, unless sooner terminated
under Section 14 of the Plan.
8. Term of Option. The term of each Option shall be stated in the Option
Agreement.
9. Option Exercise Price and Consideration.
(a) Exercise Price. The per share exercise price for the Shares to be
issued pursuant to exercise of an Option shall be determined by the
Administrator.
(b) Waiting Period and Exercise Dates. At the time an Option is
granted, the Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be satisfied before the
Option may be exercised.
(c) Form of Consideration. The Administrator shall determine the
acceptable form of consideration for exercising an Option, including the method
of payment. Such consideration may consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
-5-
<PAGE>
(iv) other Shares which (A) in the case of Shares acquired upon
exercise of an option, have been owned by the Optionee for more than six months
on the date of surrender, and (B) 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) consideration received by the Company under a cashless
exercise program implemented by the Company in connection with the Plan;
(vi) a reduction in the amount of any Company liability to the
Optionee, including any liability attributable to the Optionee's participation
in any Company-sponsored deferred compensation program or arrangement;
(vii) such other consideration and method of payment for the
issuance of Shares to the extent permitted by Applicable Laws; or
(viii) any combination of the foregoing methods of payment.
10. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option granted
hereunder shall be exercisable according to the terms of the Plan and at such
times and under such conditions as determined by the Administrator and set forth
in the Option Agreement. An Option may not be exercised for a fraction of a
Share.
An Option shall be deemed exercised when the Company receives: (i)
written or electronic notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment authorized by the
Administrator and permitted by the Option Agreement and the Plan. Shares issued
upon exercise of an Option shall be issued in the name of the Optionee or, if
requested by the Optionee, in the name of the Optionee and his or her spouse.
Until the Shares are issued (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company), 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 Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are issued, except as
provided in Section 12 of the Plan.
Exercising an Option in any manner shall decrease the number of Shares
thereafter available, both for purposes of the Plan and for sale under the
Option, by the number of Shares as to which the Option is exercised.
(b) Termination of Relationship as a Service Provider. If an Optionee
ceases to be a Service Provider, other than upon the Optionee's death or
Disability, the Optionee may exercise his or her Option, but only within such
period of time as is specified in the Option Agreement, and only to the extent
that the Option is vested on the date of termination (but in no event later than
the expiration
-6-
<PAGE>
of the term of such Option as set forth in the Option Agreement). In the absence
of a specified time in the Option Agreement, the Option shall remain exercisable
for three (3) months following the Optionee's termination. If, on the date of
termination, the Optionee is not vested as to his or her entire Option, the
Shares covered by the unvested portion of the Option shall revert to the Plan.
If, after termination, the Optionee does not exercise his or her Option within
the time specified by the Administrator, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
(c) Disability of Optionee. If an Optionee ceases to be a Service
Provider as a result of the Optionee's Disability, the Optionee may exercise his
or her Option within such period of time as is specified in the Option
Agreement, to the extent the Option is vested on the date of termination (but in
no event later than the expiration of the term of such Option as set forth in
the Option Agreement). In the absence of a specified time in the Option
Agreement, the Option shall remain exercisable for twelve (12) months following
the Optionee's termination. If, on the date of termination, the Optionee is not
vested as to his or her entire Option, the Shares covered by the unvested
portion of the Option shall revert to the Plan. If, after termination, the
Optionee does not exercise his or her Option within the time specified herein,
the Option shall terminate, and the Shares covered by such Option shall revert
to the Plan.
(d) Death of Optionee. If an Optionee dies while a Service Provider,
the Option may be exercised within such period of time as is specified in the
Option Agreement (but in no event later than the expiration of the term of such
Option as set forth in the Notice of Grant), by the Optionee's estate or by a
person who acquires the right to exercise the Option by bequest or inheritance,
but only to the extent that the Option is vested on the date of death. In the
absence of a specified time in the Option Agreement, the Option shall remain
exercisable for twelve (12) months following the Optionee's termination. If, at
the time of death, the Optionee is not vested as to his or her entire Option,
the Shares covered by the unvested portion of the Option shall immediately
revert to the Plan. The Option may be exercised by the executor or administrator
of the Optionee's estate or, if none, by the person(s) entitled to exercise the
Option under the Optionee's will or the laws of descent or distribution. If the
Option is not so exercised within the time specified herein, the Option shall
terminate, and the Shares covered by such Option shall revert to the Plan.
(e) Buyout Provisions. The Administrator may at any time offer to buy
out for a payment in cash or Shares, an Option previously granted based on such
terms and conditions as the Administrator shall establish and communicate to the
Optionee at the time that such offer is made.
11. Stock Rights.
(a) Grant. Stock Rights may be issued either alone, in addition to, or
in tandem with other awards granted under the Plan and/or cash awards made
outside of the Plan. After the Administrator determines that it will offer Stock
Rights under the Plan, it shall advise the offeree in writing or electronically,
by means of a Notice of Grant, of the terms, conditions and restrictions related
to the offer, including the number of Shares subject to the Stock Right, the
price to be paid (if any), and the time within which the offeree must accept
such offer. The offer shall be accepted by execution of a Restricted Stock
Agreement in such form as is determined by the Administrator.
-7-
<PAGE>
(b) Reacquisition Option. Unless the Administrator determines
otherwise, the Restricted Stock Agreement shall grant the Company a
reacquisition option exercisable upon the voluntary or involuntary termination
of the recipient's status as a Service Provider for any reason (including death
or Disability) . The reacquisition price (if any) for Shares reacquired pursuant
to the Restricted Stock Agreement shall be determined by the Administrator and
may be paid by cancellation of any indebtedness of the recipient to the Company.
The reacquisition option shall lapse at a rate determined by the Administrator.
(c) Other Provisions. The Restricted Stock Agreement shall contain such
other terms, provisions and conditions not inconsistent with the Plan as may be
determined by the Administrator in its sole discretion.
(d) Rights as a Shareholder. Once Restricted Stock is acquired pursuant
to a Stock Right, the recipient shall have rights equivalent to those of a
shareholder, and shall be a shareholder when his or her acquisition is entered
upon the records of the duly authorized transfer agent of the Company. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date of issuance of Common Stock pursuant to a Stock Right,
except as provided in Section 13 of the Plan.
12. Non-Transferability of Options and Stock Rights. Unless determined
otherwise by the Administrator, an Option or Stock Right 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, only by the Optionee. If the Administrator
makes an Option or Stock Right transferable, such Option or Stock Right shall
contain such additional terms and conditions as the Administrator deems
appropriate.
13. Adjustments Upon Changes in Capitalization, Dissolution, Merger or
Asset Sale.
(a) Changes in Capitalization. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option or Stock Right, and the number of shares of Common Stock
which have been authorized for issuance under the Plan but as to which no
Options or Stock Rights have yet been granted or which have been returned to the
Plan upon cancellation or expiration of an Option or Stock Right, as well as the
price per share of Common Stock covered by each such outstanding Option or Stock
Right, 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 Board, whose determination in that respect shall
be final, binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares 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 or Stock Right.
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<PAGE>
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify each
Optionee as soon as practicable prior to the effective date of such proposed
transaction. The Administrator in its discretion may provide for an Optionee to
have the right to exercise his or her Option until ten (10) days prior to such
transaction as to all of the Optioned Stock covered thereby, including Shares as
to which the Option would not otherwise be exercisable. In addition, in such
event, any Company repurchase option applicable to any Shares purchased upon
exercise of an Option or Stock Right shall lapse as to all such Shares, provided
the proposed dissolution or liquidation takes place at the time and in the
manner contemplated. To the extent it has not been previously exercised, an
Option or Stock Right will terminate immediately prior to the consummation of
such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the Company with
or into another corporation, or the sale of substantially all of the assets of
the Company, each outstanding Option or Stock Right shall be assumed or an
equivalent option or right substituted by the successor corporation or a Parent
or Subsidiary of the successor corporation. In the event that the successor
corporation refuses to assume or substitute for the Option or Stock Right, the
Optionee shall fully vest in and have the right to exercise the Option or Stock
Right as to all of the Optioned Stock, including Shares as to which it would not
otherwise be vested or exercisable. In addition, in such event, any Company
repurchase option applicable to any Shares purchased upon exercise of an Option
or Stock Right shall lapse as to all such Shares. If an Option or Stock Right
becomes fully vested and exercisable in lieu of assumption or substitution in
the event of a merger or sale of assets, the Administrator shall notify the
Optionee in writing or electronically that the Option or Stock Right shall be
fully vested and exercisable for a period of fifteen (15) days from the date of
such notice, and the Option or Stock Right shall terminate upon the expiration
of such period. For the purposes of this paragraph, the Option or Stock Right
shall be considered assumed if, following the merger or sale of assets, the
option or right confers the right to purchase or receive, for each Share of
Optioned Stock, subject to the Option or Stock Right immediately prior to the
merger or sale of assets, the consideration (whether stock, cash, or other
securities or property) received in the merger or sale of assets by holders of
Common Stock for each Share held on the effective date of the transaction (and
if holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided,
however, that if such consideration received in the merger or sale of assets is
not solely common stock of the successor corporation or its Parent, the
Administrator may, with the consent of the successor corporation, provide for
the consideration to be received upon the exercise of the Option or Stock Right,
for each Share of Optioned Stock subject to the Option or Stock Right, to be
solely common stock of the successor corporation or its Parent equal in fair
market value to the per share consideration received by holders of Common Stock
in the merger or sale of assets.
14. Date of Grant. The date of grant of an Option or Stock Right shall be,
for all purposes, the date on which the Administrator makes the determination
granting such Option or Stock Right, or such other later date as is determined
by the Administrator. Notice of the determination shall be provided to each
Optionee within a reasonable time after the date of such grant.
15. Amendment and Termination of the Plan.
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<PAGE>
(a) Amendment and Termination. The Board may at any time amend, alter,
suspend or terminate the Plan.
(b) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any Optionee,
unless mutually agreed otherwise between the Optionee and the Administrator,
which agreement must be in writing and signed by the Optionee and the Company.
Termination of the Plan shall not affect the Administrator's ability to exercise
the powers granted to it hereunder with respect to options granted under the
Plan prior to the date of such termination.
16. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued pursuant to the
exercise of an Option or Stock Right unless the exercise of such Option or Stock
Right and the issuance and delivery of such Shares shall comply with Applicable
Laws and shall be further subject to the approval of counsel for the Company
with respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
Option or Stock Right the Company may require the person exercising such Option
or Stock Right 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.
17. Inability to Obtain Authority. The 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.
18. Reservation of Shares. The Company, during the term of this Plan, will
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
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Exhibit 5.1
January 6, 1999
VidaMed, Inc.
46107 Landing Parkway
Fremont, California 94538
Re: Registration Statement on Form S-8
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 January 7, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 950,000 shares of your
Common Stock, par value $0.001 per share (the "Shares"), which are to be issued
pursuant to the 1999 Nonstatutory Stock Option Plan (the "Plan"). As legal
counsel for VidaMed, Inc., we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
issuance and sale of the Shares pursuant to the Plan.
It is our opinion that, when issued and sold in the manner described in
the Plan and pursuant to the agreement which accompany each grant under the
Plan, the Shares will be legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1999 Nonstatutory Stock Option Plan of VidaMed, Inc. of
our reports dated January 16, 1998 with respect to the consolidated financial
statements of VidaMed, Inc. incorporated by reference in its Annual Report (Form
10-K) for the year ended December 31, 1997 and the related financial statement
schedule included therein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
January 4, 1999
