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Proc-Type: 2001,MIC-CLEAR
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As filed with the Securities and Exchange Commission on October 30, 2002 Registriation No. 333-________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 MENTOR CORPORATION
Minnesota |
41-0950791 |
201 Mentor Drive
Santa Barbara, California 93111
MENTOR CORPORATION AMENDED
1991 STOCK OPTION PLAN
(Full title of the Plans)
Christopher J. Conway
Chairman, President and Chief Executive Officer
Mentor Corporation
201 Mentor Drive
Santa Barbara, California 93111
(805) 879-6000
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
Amount to be Registered(1) |
Proposed |
Proposed |
Amount of |
Mentor Corporation Amended Common Stock, $0.10 par value |
3,000,000 shares |
$35.68(2) |
$107,040,000(2) |
$9,848 |
(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the Mentor Corporation Amended 1991 Stock Option Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant's receipt of consideration which results in an increase in the number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low selling prices per share of Registrant's Common Stock on October 24, 2002, as reported by the Nasdaq National Market.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
Mentor Corporation (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended March 31, 2002 filed with the Commission on June 28, 2002;
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarter ended June 30, 2002, filed with the Commission on August 14, 2002;
(c) The Registrant's definitive Proxy Statement dated July 30, 2002, filed with the Commission on July 29, 2002; and
(d) The Registrant's Registration Statement on Form 8-A filed with the SEC, in which are described the terms, rights and provisions applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements subsequently filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act") prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which de-registers all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to co nstitute a part of this Registration Statement.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 302A.521, subd. 2, of the Minnesota Statutes requires the Registrant to indemnify a person made or threatened to be made a party to a proceeding by reason of the former or present official capacity of the person with respect to the Registrant, against judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys' fees and disbursements, incurred by the person in connection with the proceeding with respect to the same acts or omissions if such person (1) has not been indemnified by another organization or employee benefit plan for the same judgments, penalties or fines; (2) acted in good faith; (3) received no improper personal benefit, and statutory procedure has been followed in the case of any conflict of interest by a director; (4) in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and (5) in the case of acts or omissions occurring in the person's performance in the official capacity of director or, for a person not a director, in the official capacity of officer, board committee member or employee, reasonably believed that the conduct was in the best interests of the Registrant, or, in the case of performance by a director, officer or employee of the Registrant involving service as a director, officer, partner, trustee, employee or agent of another organization or employee benefit plan, reasonably believed that the conduct was not opposed to the best interests of the Registrant. In addition, Section 302A.521, subd. 3, requires payment by the Registrant, upon written request, of reasonable expenses in advance of final disposition of the proceeding in certain instances. A decision as to required indemnification is made by a disinterested majority of the Board of Directors present at a meeting at which a disinterested quorum is present, or by a designated committee of the Bo ard, by special legal counsel, by the shareholders, or by a court.
Section 4.01 of the Composite Restated Bylaws of the Registrant provides that the Registrant shall indemnify such persons, for such expenses and liabilities, in such manner, under such circumstances and to such extent, as required or permitted by Minnesota Statutes, Section 302A.521, as amended from time to time, or as required or permitted by provisions of law; provided, however, that such Registrant shall not make advances to any person other than a director of the Registrant or of another corporation at least 80% of the Common Stock of all classes of which are owned directly or indirectly by the Registrant (a "Subsidiary") or an officer of the Registrant or of a Subsidiary who is elected by the directors of the Registrant or Subsidiary; and provided, further, that the Registrant shall not indemnify any person, other than a director of the Registrant or of a Subsidiary, or an officer of the Registrant or of a Subsidiary, who is elected by the directors, in respect of any judgme nt, penalty, fine, excise tax, settlement, expense or other matter for which such person shall have been finally determined to be liable by reason of his or her negligence, recklessness or willful misconduct.
As permitted by the Minnesota Statutes, Article IX of the Registrant's Composite Restated Articles of Incorporation provides that a director of the Registrant shall not be personally liable for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Sections 302A.559 or 80A.23 of the Minnesota Statutes, (iv) for any transaction from which the director derived any improper personal benefit, or (v) for any act or omission occurring prior to the effective date of Article IX.
The Registrant has purchased directors' and officers' liability insurance.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "1933 Act") may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the 1933 Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number |
Exhibit |
4 |
Instruments Defining the Rights of Stockholders. Reference is made to Registrant's Registration Statement on Form 8-A, together with any exhibits thereto, which are incorporated herein by reference pursuant to Item 3(c) to this Registration Statement. |
5 |
Opinion and consent of Hewitt & O'Neil LLP. |
23.1 |
Consent of Ernst & Young LLP, Independent Auditors. |
23.2 |
Consent of Hewitt & O'Neil LLP is contained in Exhibit 5. |
24 |
Power of Attorney. Reference is made to the Signature Page of this Registration Statement. |
99.1 |
Mentor Corporation Amended 1991 Stock Option Plan. |
Item 9. Undertakings
A. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the 1933 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 thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this 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 clauses (1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports f iled by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference into this Registration Statement; (2) that for the purpose of determining any liability under the 1933 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; and (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 Mentor Corporation Amended 1991 Stock Option Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Barbara, State of California on this 28th day of October, 2002.
MENTOR CORPORATION
By: /s/CHRISTOPHER J. CONWAY
Christopher J. Conway
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Mentor Corporation, a Minnesota corporation, do hereby constitute and appoint Christopher J. Conway and Adel Michael and each of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registrat ion Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
/s/Christopher J. Conway Christopher J. Conway |
Chairman, President and Chief Executive Officer |
October 28, 2002 |
/s/Adel Michael |
Executive Vice President, Chief Financial Officer, Secretary and Treasurer |
October 28, 2002 |
/s/Eugene G. Glover Eugene G. Glover |
Senior Vice President, Advanced Development and Director |
October 28, 2002 |
/s/Walter W. Faster Walter W. Faster |
Director |
October 28, 2002 |
/s/Michael Nakonechny Michael Nakonechny |
Director |
October 28, 2002 |
/s/Dr. Richard W. Young Dr. Richard W. Young |
Director |
October 28, 2002 |
/s/Ronald J. Rossi |
Director |
October 28, 2002 |
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS TO FORM S-8
UNDER
SECURITIES ACT OF 1933
MENTOR CORPORATION
EXHIBIT INDEX
Exhibit Number |
Exhibit |
4 |
Instruments Defining the Rights of Stockholders. Reference is made to Registrant's Registration Statement on Form 8-A, together with any exhibits thereto, which are incorporated herein by reference pursuant to Item 3(c) to this Registration Statement. |
5 |
Opinion and consent of Hewitt & O'Neil LLP. |
23.1 |
Consent of Ernst & Young LLP, Independent Auditors. |
23.2 |
Consent of Hewitt & O'Neil LLP is contained in Exhibit 5. |
24 |
Power of Attorney. Reference is made to the Signature Page of this Registration Statement. |
99.1 |
Mentor Corporation Amended 1991 Stock Option Plan. |
EXHIBIT 5
OPINION AND CONSENT OF HEWITT & O'NEIL LLP
October 30, 2002
Mentor Corporation
201 Mentor Drive
Santa Barbara, CA 93111
Re: Mentor Corporation - Registration Statement for Offering of an Aggregate of 3,000,000 Shares of Common Stock
Dear Ladies and Gentlemen:
We have acted as counsel to Mentor Corporation, a Minnesota corporation (the "Company"), in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of 3,000,000 shares of the Company's common stock (the "Shares") authorized for issuance under the Company's Mentor Corporation Amended 1991 Stock Option Plan (the "Plan").
This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate proceedings taken by the Company in connection with the establishment of the Plan. Based on such review, we are of the opinion that, if, as and when the Shares have been issued and sold (and the consideration therefor received) pursuant to the provisions of option agreements duly authorized under the Plans and in accordance with the Registration Statement, such Shares will be duly authorized, legally issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement.
This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company and the Shares.
Very truly yours,
/s/ Hewitt & O'Neil LLP
Hewitt & O'Neil LLP
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 Mentor Corporation Amended 1991 Stock Option Plan of our report dated May 13, 2002, with respect to the consolidated financial statements and schedule of Mentor Corporation included in its Annual Report (Form 10-K) for the year ended March 31, 2002, filed with the Securities and Exchange Commission.
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/s/ Ernst & Young LLP
Ernst & Young LLP
Los Angeles, California
October 28, 2002
EXHIBIT 99.1
MENTOR CORPORATION
1991 STOCK OPTION PLAN
(as amended through May 15, 1997)
This Mentor Corporation 1991 Stock Option Plan (the "Plan") is intended to enable Mentor Corporation (the "Corporation") and its subsidiaries to attract and retain key employees and non-employee directors and, by giving such employees and non-employee directors an opportunity to acquire a proprietary interest in the corporation, to provide such employees and non-employee directors with a stronger incentive to exert their maximum effort for the continued success and growth of the Corporation and its subsidiaries.
The Plan shall be administered by a committee or committees appointed by, and consisting of one or more members of, the Board of Directors of the Corporation (the "Board"). The Board may delegate the responsibility for administration of the Plan with respect to designated classes of optionees to different committees, subject to such limitations as the Board deems appropriate. The composition of any committee responsible for administration of the Plan with respect to optionees who are subject to trading restrictions of Section 16(b) of the Securities Exchange Act of 1934 (the "1934 Act") with respect to securities of the Corporation shall comply with the applicable requirements of Rule 16b-3 of the Securities and Exchange Commission. Members of a committee shall serve for such term as the Board may determine and shall be subject to removal by the Board at any time. Any committee appointed by the Board shall have full authority to administer the Plan within the scope of its deleg ated responsibilities, including authority to interpret and construe any relevant provision of the Plan and to adopt such rules and regulations as it may deem necessary. Decisions of a committee made within the discretion delegated to it by the Board shall be final and binding on all persons who have an interest in the Plan. With respect to any matter, the term "Committee" shall hereinafter refer to such committee as shall have been delegated authority with respect to such matter.
Options may be granted under the Plan to such key employees of the Corporation and its subsidiaries (including officers, whether or not they are also members of the Board) as the Committee shall from time to time select. In addition, members of the Board who are not employees of the Corporation or one of its subsidiaries shall be eligible to receive options in accordance with, and only in accordance with, the automatic grant provisions of Section VI below.
Stock options granted under the Plan may be either incentive stock options ("Incentive Options") qualifying under Section 422 of the Internal Revenue Code of 1986, as amended ("Internal Revenue Code"), or nonstatutory options, and shall be appropriately designated. The options shall be evidenced by instruments in such form as the Committee may from time to time approve. Such instruments shall conform to the following terms and conditions:
The Committee shall determine and shall set forth in each option whether the option shall continue to be exercisable, and the terms and conditions of such exercise, on and after an optionee ceases to be employed by the Corporation or any of its subsidiaries.
In order to assist an employee (including an employee who is an officer or member of the Board) in the acquisition of shares of Common Stock pursuant to an option granted under the Plan (other than pursuant to Section VI), the Committee may authorize, at either the time of the grant of an option or the time of the acquisition of Common Stock thereunder, (i) the extension of a loan to the employee by the Corporation, (ii) the payment by the employee of the purchase price, if any, of the Common Stock in installments, or (iii) the guarantee by the Corporation of a loan obtained by the employee from a third party. The terms of any loans, guarantees or installment payments, including the interest: rate and terms of repayment, will be subject to the discretion of the Committee. Loans, installment payments and guarantees may be granted without security, the maximum credit available being the purchase price, if any, of the Common Stock acquired plus the maximum federal an d state income and employment tax liability which may be incurred in connection with the acquisition.
No option granted under the Plan shall be assignable or transferable by the optionee other than by will or by the laws of descent and distribution, and during the lifetime of the optionee options granted under the Plan may be exercised only by the optionee.
The Committee shall have the authority to effect, at any time and from time to time, with the consent of the affected option holders, the cancellation of any or all outstanding options under the Plan or the Prior Plans (other than options granted under Section VI) and to grant in substitution therefor new options under the Plan covering the same or different numbers of shares of Common Stock but having an option price per share not less than the fair market value on the new grant date (or, in the case of an Incentive Option to be granted to a 10% Shareholder, one hundred ten percent (110%) of such fair market value). If one or more of the cancelled options is an Incentive Option granted before 1987 under one of the Prior Plans, then such option shall, solely for purposes of the "sequential exercise" rule applicable to other outstanding Incentive options granted before 1987 under the Prior Plans or any other plan of the Corporation or parent or subsidiary, be considered to be outs tanding until the expiration date initially specified for the option term of such option.
No such action by the Committee shall in any way affect the acceleration of the exercisability of options pursuant to Section X(a), and each optionee shall have the right, during the period preceding the Change in Control, to exercise his or her option as; to all or any part of the shares covered thereby in accordance with said Section X(a). In the event of a declaration pursuant to this Section X(b), each outstanding option granted pursuant to this Plan that shall not have been exercised prior to the Change in Control shall be cancelled at the time of the Change in Control, and this Plan shall terminate at the time of such cancellation, subject to the obligations of the Corporation provided in this Section X(b).
Any action taken by the Committee under this Section X(b) in contemplation of an expected Change in Control shall be null and void in the event such Change in Control does not actually occur.
unless, as to any optionee, more than twenty-five percent (25%) of the voting stock (or the voting equity interest) of the surviving corporation or the corporation or other entity acquiring all or substantially all of the assets of the Corporation (in the case of a merger, consolidation or disposition of assets) or of the Corporation or its resulting parent corporation (in the case of a statutory share exchange) is beneficially owned by such optionee or a Group that includes such optionee.
For all valuation purposes under the Plan, the fair market value of a share of Common Stock on any relevant date shall be determined in accordance with the following provisions:
If, however, the Committee determines that, as a result of circumstances existing on any date, the use of the above rules is not a reasonable method of determining fair market value on that date, the Committee may use such other method as, in its judgment, is reasonable.
The Board may amend, suspend or discontinue the Plan in whole or in part at any time; provided, however, that (1) except to the extent necessary to qualify as Incentive options any or all options granted under the Plan which are intended to so qualify, such action shall not adversely affect rights and obligations with respect to options at the time outstanding under the Plan; (2) the provisions of the Plan concerning the eligibility of outside directors for awards and the amount, price and timing of their awards may not be amended more than once every six months, other than to comport with changes in the Internal Revenue Code or rules thereunder; and (3) the Board shall not, without the approval of the Corporation's shareholders (i) increase the number of shares of Common Stock which may be issued under the Plan (unless necessary to effect the adjustments required under Section IV(c)), (ii) modify the eligibility requirements for awards under the Plan or ( iii) make any other change with respect to which the Board determines that shareholder approval is required by applicable law or regulatory standards.
Nothing contained in the Plan (or in any option granted under the Plan) shall confer upon any employee any right to continue in the employ of the Corporation or any affiliate or constitute any contract or agreement of employment or interfere in any way with the right of the Corporation or an affiliate to reduce such employee's compensation from the rate in existence at. the time of the granting of an option or to terminate such employee's employment at any time, with or without cause; but nothing contained herein or in any option shall affect any contractual rights of an employee pursuant to a written employment agreement.
The cash proceeds received by the Corporation from the issuance of shares pursuant to options under the Plan shall be used for general corporate purposes.
The implementation of the Plan, the granting of any option under the Plan, and the issuance of Common Stock upon the exercise of any such option or lapse of restrictions on any Common Stock issued under the Plan shall be subject to the Corporation's procurement of all approvals and permits required by regulatory authorities having jurisdiction over the Plan, the options granted under the Plan or the Common Stock issued pursuant to such an option.
To the extent not otherwise governed by federal law, the Plan and its implementation shall be governed by and construed in accordance with the laws of the State of California.
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