<PAGE>
As filed with the Securities and Exchange Commission on June 29, 1998
Registration No. 333-____________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------
UROCOR, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2117882
(State or other jurisdiction of incorporation (I.R.S Employer
or organization) Identification No.)
800 RESEARCH PARKWAY
OKLAHOMA CITY, OKLAHOMA 73104
(Address of Principal Executive Offices) (Zip Code)
UROCOR, INC. 1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
---------------------------
WILLIAM A. HAGSTROM
CHAIRMAN, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
UROCOR, INC.
800 RESEARCH PARKWAY
OKLAHOMA CITY, OKLAHOMA 73104
(Name and address of agent for service)
(405) 290-4000
(Telephone number, including area code, of agent for service)
WITH COPY TO:
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010-3095
(713) 651-5151
ATTENTION: ROBERT E. WILSON
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
<TABLE>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED AMOUNT TO BE REGISTERED OFFERING PRICE PER SHARE (1) AGGREGATE OFFERING PRICE (1) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value 300,000 shares (2) $6.9375 $2,081,250 $614
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457(c) and (h) solely for the purpose of
calculating the registration fee on the basis of the average of the high
and low prices of the Common Stock as reported by the Nasdaq Stock Market
on June 23, 1998.
(2) Includes an indeterminable number of shares of Common Stock issuable as a
result of the anti-dilution provisions of the UroCor, Inc. 1997 Employee
Stock Purchase Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
a. The following documents are hereby incorporated by reference in this
Registration Statement:
1. The Annual Report on Form 10-K of UroCor, Inc., a Delaware
corporation (the "Registrant"), for the fiscal year ended December 31, 1997,
filed with the Securities and Exchange Commission (the "Commission") on March
30, 1998;
2. The Quarterly Report on Form 10-Q of the Registrant for the
quarterly period ended March 31, 1998, filed with the Commission on May 15,
1998; and
3. The description of the Registrant's Common Stock, $0.01 par value
(the "Common Stock"), contained in a registration statement on Form 8-A filed
with the Commission on April 26, 1996, including any amendment or report filed
for the purpose of updating such description.
b. 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 (the
"Exchange Act"), subsequent to the date of the filing hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article X of the Registrant's Amended and Restated By-laws (the "By-laws")
provides for mandatory indemnification to at least the extent specifically
allowed by Section 145 of the General Corporation Law of the State of Delaware
(the "GCL").
Pursuant to Section 145 of the GCL, the Registrant generally has the power
to indemnify its current and former directors, officers, employees and agents
against expenses and liabilities incurred by them in connection with any suit to
which they are, or threatened to be made, a party by reason of their serving in
such positions so long as they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
Registrant, and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. With respect to suits by or in
the right of the Registrant, however, indemnification generally is limited to
attorneys' fees and other expenses actually and reasonably incurred and is not
available if such person is adjudged to be liable to the Registrant unless the
court determines that indemnification is appropriate. The statute expressly
provides that the power to indemnify authorized thereby is not exclusive of any
rights granted under any bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise. The Registrant also has the power to purchase and
maintain insurance for such persons.
The above discussion of the Registrant's By-laws and Section 145 of the GCL
is not intended to be exhaustive and is qualified in its entirety by such
document and such statute.
II-1
<PAGE>
The Registrant has entered into indemnification agreements with its
directors, executive officers and certain key employees that generally obligate
the Registrant to indemnify such persons to the extent permitted under the GCL.
The Registrant's 1997 Non-Employee Director Stock Option Plan and the
Registrant's Second Amended and Restated 1992 Stock Option Plan, as amended,
each contain a provision providing that the Registrant will, to the fullest
extent permitted by law, indemnify, defend and hold harmless any person who at
any time is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (whether civil, criminal,
administrative or investigative) in any way relating to or arising out of such
plan or any options granted thereunder by reason of the fact that that person is
or was at any time a director of the Registrant or a member of the committee
administering such plan against judgments, fines, penalties, settlements and
reasonable expenses (including attorneys' fees) actually incurred by that
person in connection with the action, suit or proceeding. The Registrant's 1997
Employee Stock Purchase Plan provides that the members of the committee
administering such plan shall be indemnified by the Registrant against the
reasonable expenses, including attorneys' fees, actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or in
connection with any appeal, to which they or any of them may be a party by
reason of any action taken or failure to act under or in connection with such
plan or any option granted thereunder and against all amounts paid in settlement
(provided the settlement is approved by independent legal counsel selected by
the Registrant) or paid by them in satisfaction of a judgment in any action,
suit or proceeding, except in relation to matters as to which it is adjudged in
the action, suit or proceeding, that such committee member is liable for gross
negligence or willful misconduct in the performance of his duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 -- Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (Reg. No. 333-3182), filed
with the Commission on April 3, 1996).
4.2 -- Amended and Restated By-laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-3182), filed with the
Commission on April 3, 1996).
4.3 -- Form of Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to Amendment No. 2 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-3182), filed with the
Commission on May 10, 1996).
4.4 -- UroCor, Inc. 1997 Employee Stock Purchase Plan.
5.1 -- Opinion of Fulbright & Jaworski L.L.P.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Fulbright & Jaworski L.L.P. (included in Exhibit
5.1).
24.1 -- Powers of Attorney (contained on page II-4).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
II-2
<PAGE>
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (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 (the "Exchange Act"), that are incorporated by reference
in this 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 herein, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
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 Securities 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 Oklahoma City, Oklahoma on June 23, 1998.
UROCOR, INC.
By: /s/ WILLIAM A. HAGSTROM
---------------------------------------------
William A. Hagstrom
Chairman of the Board, President and Chief
Executive Officer
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.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints each of William A. Hagstrom and Michael
N. McDonald his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same and all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his or their substitute or substitutes, may
lawfully 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>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ WILLIAM A. HAGSTROM Chairman of the Board, President and June 23, 1998
- ------------------------------ Chief Executive Officer
William A. Hagstrom (Principal Executive Officer)
/s/ MICHAEL N. MCDONALD Vice President and Chief Financial Officer June 23, 1998
- ------------------------------ (Principal Financial and
Michael N. McDonald Accounting Officer)
/s/ AARON BEAM, JR. Director June 23, 1998
- ------------------------------
Aaron Beam, Jr.
- ------------------------------ Director June ___, 1998
Paul A. Brown, M.D.
/s/ HERBERT J. CONRAD Director June 23, 1998
- ------------------------------
Herbert J. Conrad
/s/ MICHAEL E. HERBERT Director June 23, 1998
- ------------------------------
Michael E. Herbert
- ------------------------------ Director June ___, 1998
Thomas C. Ramey
II-4
<PAGE>
/s/ LOUIS M. SHERWOOD, M.D. Director June 23, 1998
- ------------------------------
Louis M. Sherwood, M.D.
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
Exhibit Number Description
-------------- -----------
<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (Reg. No. 333-3182), filed
with the Commission on April 3, 1996).
4.2 Amended and Restated By-laws of the Registrant (incorporated
by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-3182), filed with the
Commission on April 3, 1996).
4.3 Form of Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to Amendment No. 2 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-3182), filed with the
Commission on May 10, 1996).
*4.4 UroCor, Inc. 1997 Employee Stock Purchase Plan.
*5.1 Opinion of Fulbright & Jaworski L.L.P.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1 to this Registration Statement).
*24.1 Powers of Attorney (included on Page II-4 of this Registration
Statement).
</TABLE>
------------
* Filed herewith
<PAGE>
EXHIBIT 4.4
<PAGE>
UROCOR, INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
<PAGE>
TABLE OF CONTENTS
SECTION
ARTICLE I - PURPOSE, COMMITMENT AND INTENT
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1
Share Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Intent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3
Shareholder Approval. . . . . . . . . . . . . . . . . . . . . . . . . . 1.4
ARTICLE II - DEFINITIONS
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2
Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6
Employee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
Exercise Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.8
Fair Market Value or FMV. . . . . . . . . . . . . . . . . . . . . . . . 2.9
Grant Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.10
Option. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.11
Offering Period . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.12
Option Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.13
Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.14
Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.15
Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.16
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.17
ARTICLE III - ELIGIBILITY
General Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
Limitations Upon Participation. . . . . . . . . . . . . . . . . . . . . 3.2
ARTICLE IV - PARTICIPATION
Grant of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1
Payroll Deduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2
Payroll Deductions Continuing . . . . . . . . . . . . . . . . . . . . . 4.3
Right to Decrease or Stop Payroll Deductions. . . . . . . . . . . . . . 4.4
Accounting for Funds. . . . . . . . . . . . . . . . . . . . . . . . . . 4.5
ARTICLE V - IN SERVICE WITHDRAWAL, TERMINATION OF EMPLOYMENT, RETIREMENT OR
DEATH
In Service Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . 5.1
Termination of Employment . . . . . . . . . . . . . . . . . . . . . . . 5.2
i
<PAGE>
Retirement for Age or Disability. . . . . . . . . . . . . . . . . . . . 5.3
Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
ARTICLE VI - EXERCISE OF OPTION
Purchase of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
Accounting for Stock. . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
Issuance of Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3
ARTICLE VII - ADMINISTRATION
Appointment, Term of Service & Removal. . . . . . . . . . . . . . . . . 7.1
Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
Quorum and Majority Action. . . . . . . . . . . . . . . . . . . . . . . 7.3
Standard of Judicial Review of Committee Actions. . . . . . . . . . . . 7.4
ARTICLE VIII - TERMINATION AND AMENDMENT OF THE PLAN
Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1
Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2
ARTICLE IX - MISCELLANEOUS
Plan Not An Employment Contract . . . . . . . . . . . . . . . . . . . . 9.1
All Participants' Rights are Equal. . . . . . . . . . . . . . . . . . . 9.2
Options Granted Are Not Transferable. . . . . . . . . . . . . . . . . . 9.3
Voting of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4
No Stockholder Rights . . . . . . . . . . . . . . . . . . . . . . . . . 9.5
Governmental Regulations. . . . . . . . . . . . . . . . . . . . . . . . 9.6
Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.7
Indemnification of Committee. . . . . . . . . . . . . . . . . . . . . . 9.8
Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.9
Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.10
Governing Law; Parties to Legal Actions . . . . . . . . . . . . . . . .9.11
ii
<PAGE>
ARTICLE I
PURPOSE, COMMITMENT AND INTENT
1.1 PURPOSE. The purpose of this Plan is to provide Employees of
the Company with an opportunity to purchase Stock of the Company through
offerings of options at a discount and thus develop a stronger incentive to
work for the continued success of the Company.
1.2 SHARE COMMITMENT. The aggregate number of Shares authorized to
be sold pursuant to Options granted under this Plan is 300,000 Shares,
subject to adjustment as provided in this Section. Any Shares relating to
Options that are granted, but subsequently lapse, are cancelled, or are
otherwise not exercised by the final date for exercise, shall be available
for future grants of Options.
In the event of any stock dividend, split-up, recapitalization,
merger, consolidation, combination or exchange of Shares, or the like, as a
result of which shares shall be issued in respect of the outstanding
Shares, or the Shares shall be changed into the same or a different number
of the same or another class of stock, the total number of Shares
authorized to be committed to this Plan, the number of Shares subject to
each outstanding Option and the Option Price applicable to each Option
shall be appropriately adjusted by the Committee. Adjustments must be
confirmed in writing by the auditors of the Company to be fair and
reasonable.
1.3 INTENT. It is the intention of the Company to have the Plan
qualify as an "employee stock purchase plan" under section 423 of the Code.
Therefore, the provisions of the Plan are to be construed to govern
participation in a manner consistent with the requirements of section 423
of the Code.
1.4 SHAREHOLDER APPROVAL. To be effective, this Plan must be
approved by the stockholders of the Company within 12 months before or
after the Plan is adopted by the Board of Directors. The approval of
stockholders must comply with all applicable provisions of the corporate
charter, bylaws and applicable laws of the jurisdiction prescribing the
method and degree of stockholder approval required for the issuance of
corporate stock or options.
<PAGE>
ARTICLE II
DEFINITIONS
The words and phrases defined in this Article shall have the meaning
set out in these definitions throughout this Plan, unless the context in
which any word or phrase appears reasonably requires a broader, narrower,
or different meaning.
2.1 "AFFILIATE" means any parent corporation and any subsidiary
corporation. The term "parent corporation" means any corporation (other
than the Company) in an unbroken chain of corporations ending with the
Company if, at the time of the action or transaction, 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 the chain. The term "subsidiary corporation" means any
corporation (other than the Company) in an unbroken chain of corporations
beginning with the Company if, at the time of the granting of the Option,
each of the corporations other than the last corporation in the unbroken
chain owns stock possessing 50% or more of the total combined voting power
of all classes of stock in one of the other corporations in the chain.
2.2 "BOARD OF DIRECTORS" means the board of directors of the
Company.
2.3 "CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
2.4 "COMMITTEE" means the committee appointed to administer the
Plan which shall be comprised solely of members of the Board of Directors
who qualify as non-employee directors as defined in Rule 16b-3(b)(3) of the
Securities Exchange Act of 1934, as amended.
2.5 "COMPANY" means UroCor, Inc., a Delaware corporation.
2.6 COMPENSATION" means the Employee's wages from the Company as
defined in section 3401(a) of the Code for purposes of Federal income tax
withholding at the source, reduced by all of the following items (even if
includible in gross income): reimbursements or other expense allowances,
fringe benefits (cash and non-cash), moving expenses, deferred
compensation, and welfare benefits; and modified by including elective
contributions under a cafeteria plan described in section 125 of the Code
and elective contributions to any plan qualified under section 401(k) of
the Code.
2.7 "EMPLOYEE" means any person who is a common law employee of the
Company excluding only those whose customary employment with the Company is
20 hours or less per week.
2.8 "EXERCISE DATE" means the last business day of the Offering
Period, which is the day that all Options that eligible Employees have
elected to exercise are to be exercised.
2.9 "FAIR MARKET VALUE" OR "FMV" of the Stock as of any date means
(a) the average of the high and low sale prices of the Stock on that date
(or if there was no sale on a given date, the next preceding date on which
there was a sale) on the principal securities exchange on which the Stock
is listed.
2.10 "GRANT DATE" means the first business day of the Offering
Period, which is the day the Committee grants all eligible Employees an
Option under this Plan.
2.11 "OFFERING PERIOD" means the period commencing on October 1,
1997, and ending on June 30, 1997; thereafter, the Offering Periods shall
be six month periods commencing on July 1 and January 1.
<PAGE>
2.12 "OPTION" means an option granted under this Plan to purchase
shares of Stock at the Option Price on the Exercise Date.
2.13 "OPTION PRICE" means the price to be paid for each Share upon
exercise of an Option, which shall be the lesser of (a) 85% of the FMV of a
Share on the Grant Date or (b) 85% of the FMV of a Share on the Exercise
Date.
2.14 "PARTICIPANT" means a person who is eligible to be granted an
Option under this Plan and who elects to have payroll deductions withheld
under the Plan for the purpose of exercising that Option on the Exercise
Date.
2.15 "PLAN" means the UroCor, Inc. 1997 Employee Stock Purchase
Plan, as set out in this document and as it may be amended from time to
time.
2.16 "SHARES" means shares of stock.
2.17 "STOCK" means the Company's common stock, $.01 par value.
<PAGE>
ARTICLE III
ELIGIBILITY
3.1 GENERAL REQUIREMENTS. Each Employee is eligible to participate
in the Plan for a given Offering Period if he is an Employee on the Grant
Date, subject to the limitations imposed in Section 3.2.
3.2 LIMITATIONS UPON PARTICIPATION. Any provision of this Plan to
the contrary notwithstanding, no Employee shall be granted an Option:
(a) if, immediately after the grant, the Employee would
own, including all outstanding options which are still
exercisable to purchase Stock, five percent or more of the
total combined voting power or value of all classes of Stock of
the Company or of any parent or subsidiary of the Company
within the meaning of sections 423 and 424 of the Code;
(b) which permits the Employee to purchase Stock under
all employee stock purchase plans, as defined in section 423 of
the Code, of the Company and all Affiliates at a rate which
exceeds $25,000 in Fair Market Value of the Stock (determined
at the time the Option is granted) for each calendar year in
which the option granted to the Employee is outstanding at any
time as provided in sections 423 and 424 of the Code; or
(c) which permits the Employee rights to purchase Stock
in excess of the number of Shares set by the Committee if it
deems such a restriction to be appropriate.
<PAGE>
ARTICLE IV
PARTICIPATION
4.1 GRANT OF OPTION. Effective as of the Grant Date the Committee
shall grant an Option to each Participant which shall be exercisable only
on the Exercise Date only through funds accumulated by the Employee through
payroll deductions made during the Offering Period together with any funds
remaining in the Participant's payroll deduction account at the beginning
of the Offering Period. The maximum number of Shares each Participant may
be granted during an Offering Period shall be determined by dividing the
total amount of the Participant's expected payroll deductions during the
Offering Period (determined by multiplying the payroll deductions withheld
during the first pay period by the number of complete pay periods during
the Offering Period) by 85% of the FMV of the Shares on the Grant Date.
4.2 PAYROLL DEDUCTION. In order for a Participant to elect to
exercise his Option granted for a given Offering Period, the Participant
must complete a payroll deduction form and file it with the Company no
earlier than 60 nor later than 15 days prior to the beginning of the
Offering Period. The payroll deduction form shall permit a Participant to
elect to have withheld from his cash compensation no less than one percent
nor more than ten percent of his Compensation (only in whole percentages),
taken pro rata from the Compensation paid to him by the Company. Each
payroll deduction shall begin on the first pay period ending after the
beginning of an Offering Period and shall continue through the last pay
period ending prior to the Exercise Date. No Participant shall be
permitted to begin payroll deductions at any other time.
4.3 PAYROLL DEDUCTIONS CONTINUING. A Participant's election to
have payroll deductions shall remain in effect for all ensuing Offering
Periods until changed by the Participant by filing an appropriate amended
payroll deduction form not earlier than 60 nor later than 15 days prior to
the commencement of the Offering Period for which it is to be effective.
4.4 RIGHT TO DECREASE OR STOP PAYROLL DEDUCTIONS. A Participant
shall have the right to reduce, but not below one percent, or discontinue
payroll deductions beginning on the first day of any calendar quarter by
filing an amended payroll deduction form at least five days prior to the
beginning of the calendar quarter with the Company.
4.5 ACCOUNTING FOR FUNDS. As of each payroll deduction period the
Company shall cause to be credited to the Participant's payroll deduction
account in a ledger established for that purpose the funds withheld from
and attributable to the Employee's cash compensation for that period. No
interest shall be credited to the Participant's payroll deduction account
at any time. The obligation of the Company to the Participant for this
account shall be a general corporate obligation and shall not be funded
through a trust nor secured by any assets which would cause the Participant
to be other than a general creditor of the Company.
<PAGE>
ARTICLE V
IN SERVICE WITHDRAWAL,
TERMINATION OF EMPLOYMENT,
RETIREMENT OR DEATH
5.1 IN SERVICE WITHDRAWAL. A Participant may, at any time on or
before 15 days prior to the Exercise Date, or such other date as shall be
elected by the Committee from time to time, elect to withdraw all funds
then credited to his payroll deduction account by giving written notice to
his Employer in accordance with the rules established by the Committee.
All funds credited to the Participant's payroll deduction account shall be
paid to him as soon as administratively feasible. The withdrawal election
terminates the Participant's right to exercise his Option on the Exercise
Date and his entitlement to elect any further payroll deductions for the
then current Offering Period. Should the Participant wish to participate
in any given future Offering Period, the Participant must file a new
payroll deduction election within the time frame required for participation
for that Offering Period.
5.2 TERMINATION OF EMPLOYMENT. If a Participant's employment is
terminated for any reason other than death, disability or retirement prior
to the Exercise Date, the Option granted to the Participant for that Option
Period shall lapse. The Participant's payroll deduction account shall be
returned to him as soon as administratively feasible.
5.3 RETIREMENT FOR AGE OR DISABILITY. If a Participant retires for
age or disability under the then established rules of the Company, his
Exercise Date shall be the last day of the month prior to his retirement
for age or disability. At that time his Option shall be exercised in
accordance with the terms of the Plan. Then any funds remaining in his
payroll deduction account shall be returned to him as soon as
administratively feasible.
5.4 DEATH. If a Participant dies before the Exercise Date, the
Option granted to the Participant for that Offering Period shall lapse.
The Participant's payroll deduction account shall be returned to him as
soon as administratively feasible. If the Participant dies after the
Exercise Date but prior to the delivery of his certificate, and there is a
joint tenant, with the right or survivorship, named pursuant to the rules
of the Committee, the Stock shall be delivered to the named joint tenant.
If there is no joint tenant, with the right of survivorship, named, the
Stock shall be held until the representative of the estate has been
appointed and provides such evidence as may be required by the Committee
before the certificate is delivered to the proper beneficiary together with
a check in the amount of any remaining funds in the Participant's payroll
deduction account.
<PAGE>
ARTICLE VI
EXERCISE OF OPTION
6.1 PURCHASE OF STOCK. On the Exercise Date of each Offering
Period each Participant's payroll deduction account shall be used to
purchase the maximum number of whole shares of Stock that can be purchased
at the Option Price for that Offering Period. Any funds remaining in a
Participant's payroll deduction account after the exercise of his Option
for an Offering Period shall remain in the Participant's account to be used
in the ensuing Offering Period, together with new payroll deductions, if
any, for that Offering Period to exercise the next succeeding Option which
is to be exercised. If in any Offering Period the total number of shares
of Stock to be purchased by all Participants exceed the number of shares of
Stock committed to the Plan, then each Participant shall be entitled to
purchase only his pro rata portion of the shares of Stock remaining
available under the Plan based on the balances in each Participant's
payroll deduction account as of the Exercise Date. No fractional shares of
Stock may be purchased under this Plan. After the purchase of all shares
of Stock available on Exercise Date, all Options granted for the Offering
Period to the extent not used shall terminate.
6.2 ACCOUNTING FOR STOCK. After the Exercise Date of each Offering
Period a report shall be given to each Participant stating the amount of
his payroll deduction account, the number of shares of Stock purchased and
the applicable Option Price.
6.3 ISSUANCE OF SHARES. As soon as administratively feasible after
the end of the Offering Period the Committee shall advise the appropriate
officer of the Company that the terms of the Plan have been complied with
and that it is appropriate for the officer to cause to be issued the shares
of Stock upon which Options have been exercised under the Plan. The
Committee may determine in its discretion the manner of delivery of the
shares of Stock purchased under the Plan, which may be by electronic
account entry into new or existing accounts, delivery of certificates or
any other means as the Committee, in its discretion, deems appropriate.
The Committee may, in its discretion, hold the certificate for any shares
of Stock or cause it to be legended in order to comply with the securities
laws of the applicable jurisdiction.
<PAGE>
ARTICLE VII
ADMINISTRATION
7.1 APPOINTMENT, TERM OF SERVICE & REMOVAL. The Board of Directors
shall appoint a Committee to administer this Plan. The members shall serve
until their resignation, death or removal. Any member may resign at any
time by mailing a written resignation to the Board of Directors. Any
member may be removed by the Board of Directors, with or without cause.
Vacancies may be filled by the Board of Directors from time to time.
7.2 POWERS. The Committee has the exclusive responsibility for the
general administration of the Plan, and has all powers necessary to
accomplish that purpose, including but not limited to the following rights,
powers, and authorities:
(a) to make rules for administering the Plan so long as
they are not inconsistent with the terms of the Plan;
(b) to construe all provisions of the Plan;
(c) to correct any defect, supply any omission, or
reconcile any inconsistency which may appear in the Plan;
(d) to select, employ, and compensate at any time any
consultants, accountants, attorneys, and other agents the
Committee believes necessary or advisable for the proper
administration of the Plan;
(e) to determine all questions relating to eligibility,
Fair Market Value, Option Price and all other matters relating
to benefits or Participants' entitlement to benefits;
(f) to determine all controversies relating to the
administration of the Plan, including but not limited to any
differences of opinion arising between the Company and a
Participant, and any questions it believes advisable for the
proper administration of the Plan; and
(g) to delegate any clerical or recordation duties of
the Committee as the Committee believes is advisable to
properly administer the Plan.
7.3 QUORUM AND MAJORITY ACTION. A majority of the Committee
constitutes a quorum for the transaction of business. The vote of a
majority of the members present at any meeting shall decide any question
brought before that meeting. In addition, the Committee may decide any
question by a vote, taken without a meeting, of a majority of its members
via telephone, computer, fax or any other media of communication.
7.4 STANDARD OF JUDICIAL REVIEW OF COMMITTEE ACTIONS. The
Committee has full and absolute discretion in the exercise of each and
every aspect of its authority under the Plan. Notwithstanding any
provision of law or any explicit or implicit provision of this document or,
any action taken, or ruling or decision made, by the Committee in the
exercise of any of its powers and authorities under the Plan shall be final
and conclusive as to all parties other than the Company, including without
limitation all Participants and their beneficiaries, regardless of whether
the Committee or one or more of its members may have an actual or potential
conflict of interest with respect to the subject matter of the action,
ruling, or decision. No final action, ruling, or decision of the Committee
shall be subject to de novo review in any judicial proceeding; and no final
action, ruling, or decision of the Committee may be set aside unless it is
held to have been arbitrary and capricious by a final judgment of a court
having jurisdiction with respect to the issue.
<PAGE>
ARTICLE VIII
TERMINATION AND AMENDMENT OF THE PLAN
8.1 TERMINATION. The Company may, by action of the Board of
Directors, terminate the Plan at any time and for any reason. The Plan
shall automatically terminate upon the purchase by Participants of all
shares of Stock committed to the Plan, unless the number of Shares
committed to the Plan are increased by the Board of Directors and approved
by the shareholders of the Company. Upon termination of the Plan, as soon
as administratively feasible there shall be refunded to each Participant
the remaining funds in his payroll deduction account, and there shall be
forwarded to the Participants certificates for all shares of Stock held
under the Plan for the account of Participants. The termination of this
Plan shall not affect the current Options already outstanding under the
Plan to the extent there are Shares committed, unless the Participants
agree.
8.2 AMENDMENT. The Board of Directors reserves the right to
modify, alter or amend the Plan at any time and from time to time to any
extent that it deems advisable, including, without limiting the generality
of the foregoing, any amendment deemed necessary to ensure compliance of
the Plan with Section 423 of the Code. The Board of Directors may suspend
operation of the Plan for any period as it may deem advisable. However, no
amendment or suspension shall operate to reduce any amounts previously
allocated to a Participant's payroll deduction account, to reduce a
Participant's rights with respect to shares of Stock previously purchased
and held on his behalf under the Plan nor to affect the current Option a
Participant already has outstanding under the Plan without the
Participant's agreement. Any amendment changing the aggregate number of
Shares to be committed to the Plan or the class of employees eligible to
receive Options under the Plan must have stockholder approval as set forth
in Section 1.4.
<PAGE>
ARTICLE IX
MISCELLANEOUS
9.1 PLAN NOT AN EMPLOYMENT CONTRACT. The adoption and maintenance
of this Plan is not a contract between the Company and its Employees which
gives any Employee the right to be retained in its employment. Likewise,
it is not intended to interfere with the rights of the Company to discharge
any Employee at any time or to interfere with the Employee's right to
terminate his employment at any time.
9.2 ALL PARTICIPANTS' RIGHTS ARE EQUAL. All Participants will have
the same rights and privileges under this Plan as are required by section
423 of the Code and section 1.423-2(f) of the regulations promulgated under
that section of the Code.
9.3 OPTIONS GRANTED ARE NOT TRANSFERABLE. No Option granted a
Participant under this Plan is transferable by the Participant otherwise
than by will or the laws of descent and distribution, and must be
exercisable, during his lifetime, only by him. In the event any
Participant attempts to violate the terms of this Section, any Option held
by the Participant shall be terminated by the Company and upon return to
the Participant of the remaining funds in his payroll deduction account,
all of his rights under the Plan will terminate.
9.4 VOTING OF STOCK. Shares of Stock held under the Plan for the
account of each Participant shall be voted by the holder of record of those
shares in accordance with the Participant's instructions.
9.5 NO STOCKHOLDER RIGHTS. No eligible Employee or Participant
shall by reason of participation in the Plan have any rights of a
stockholder of the Company until he acquires shares of Stock as provided in
this Plan.
9.6 GOVERNMENTAL REGULATIONS. The obligation to sell or deliver
the shares of Stock under this Plan is subject to the approval of all
governmental authorities required in connection with the authorization,
purchase, issuance or sale of that Stock.
9.7 NOTICES. All notices and other communication in connection
with the Plan shall be in the form specified by the Committee and shall be
deemed to have been duly given when sent to the Participant at his last
known address or to his designated personal representative or beneficiary,
or to the Company or its designated representative, as the case may be.
9.8 INDEMNIFICATION OF COMMITTEE. In addition to all other rights
of indemnification as they may have as directors or as members of the
Committee, the members of the Committee shall be indemnified by the Company
against the reasonable expenses, including attorneys' fees, actually and
necessarily incurred in connection with the defense of any action, suit or
proceeding, or in connection with any appeal, to which they or any of them
may be a party by reason of any action taken or failure to act under or in
connection with the Plan or any Option granted under the Plan, and against
all amounts paid in settlement (provided the settlement is approved by
independent legal counsel selected by the Company) or paid by them in
satisfaction of a judgment in any action, suit or proceeding, except in
relation to matters as to which it is adjudged in the action, suit or
proceeding, that the Committee member is liable for gross negligence or
willful misconduct in the performance of his duties.
9.9 GENDER AND NUMBER. If the context requires it, words of one
gender when used in this Plan shall include the other genders, and words
used in the singular or plural shall include the other.
9.10 SEVERABILITY. Each provision of this Plan may be severed. If
any provision is determined to be invalid or unenforceable, that
determination shall not affect the validity or enforceability of any other
provision.
<PAGE>
9.11 GOVERNING LAW; PARTIES TO LEGAL ACTIONS. The provisions of
this Plan shall be construed, administered, and governed under the laws of
the State of Delaware and, to the extent applicable, by the securities,
tax, employment and other laws of the United States which are applicable to
an employee stock purchase plan.
<PAGE>
EXHIBIT 5.1
<PAGE>
FULBRIGHT & JAWORSKI L.L.P.
A REGISTERED LIMITED LIABILITY PARTNERSHIP HOUSTON
1301 MCKINNEY, SUITE 5100 WASHINGTON, D.C.
HOUSTON, TEXAS 77010-3095 AUSTIN
TELEPHONE: 713/651-5151 SAN ANTONIO
FACSIMILE: 713/651-5246 DALLAS
LOS ANGELES
LONDON
HONG KONG
June 29, 1998
UroCor, Inc.
800 Research Parkway
Oklahoma City, OK 73104
Gentlemen:
We have acted as counsel for UroCor, Inc., a Delaware corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended, of 300,000 shares of the Company's common stock, par value
$.01 per share (the "Shares"), which are planned to be offered upon the terms
and subject to the conditions set forth in the UroCor, Inc. 1997 Employee Stock
Purchase Plan (the "Employee Plan").
In connection therewith, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Restated Certificate of
Incorporation of the Company, the Amended and Restated By-laws of the Company,
the Employee Plan, the records of relevant corporate proceedings with respect to
the offering of the Shares and such other documents and instruments as we have
deemed necessary or appropriate for the expression of the opinions contained
herein. We also have examined the Company's Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission with respect to the Shares.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to us as copies, the authenticity and completeness of the originals of
those records, certificates and other instruments submitted to us as copies and
the correctness of all statements of fact contained in all records, certificates
and other instruments that we have examined.
Based on the foregoing, and having regard for such legal considerations as
we have deemed relevant, we are of the opinion that the Shares have been duly
and validly authorized for issuance and, when issued in accordance with the
terms of the Employee Plan, will be duly and validly issued, fully paid and
nonassessable.
The opinions expressed herein relate solely to, are based solely upon and
are limited exclusively to the laws of the State of Texas, the Delaware General
Corporation Law and the federal laws of the United States of America, to the
extent applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ FULBRIGHT & JAWORSKI L.L.P.
-----------------------------------
Fulbright & Jaworski L.L.P.
<PAGE>
EXHIBIT 23.1
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference into the UroCor, Inc. Registration Statement on Form S-8 relating
to the UroCor, Inc. 1997 Employee Stock Purchase Plan of our report dated
January 28, 1998, included in UroCor, Inc.'s Annual Report on Form 10-K, for the
year ended December 31, 1997.
ARTHUR ANDERSEN LLP
Oklahoma City, Oklahoma
June 25, 1998.
