0000891618-95-000504.txt : 19950829 0000891618-95-000504.hdr.sgml : 19950829 ACCESSION NUMBER: 0000891618-95-000504 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950828 EFFECTIVENESS DATE: 19950916 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CIRCON CORP CENTRAL INDEX KEY: 0000719727 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 953079904 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-62171 FILM NUMBER: 95567443 BUSINESS ADDRESS: STREET 1: 460 WARD DR CITY: SANTA BARBARA STATE: CA ZIP: 93111 BUSINESS PHONE: 8059670404 S-8 1 FORM S-8 AUG. 28, 1995 1 As filed with the Securities and Exchange Commission on August 28, 1995 Registration No. 33- -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 CIRCON CORPORATION (Exact name of Registrant as specified in its charter) ----------------- DELAWARE 95-3079904 (State or other jurisdiction of (I.R.S. Employer incorporation of organization) Identification Number) 6500 HOLLISTER AVENUE SANTA BARBARA, CA 93117 (805) 685-5100 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) ----------------- CABOT MEDICAL CORPORATION 1985 INCENTIVE STOCK OPTION PLAN CABOT MEDICAL CORPORATION NON-QUALIFIED STOCK OPTION PLAN CABOT MEDICAL CORPORATION INDEPENDENT DIRECTORS' NON-QUALIFIED STOCK OPTION PLAN (Full title of the Plans) ----------------- RICHARD A. AUHLL CHIEF EXECUTIVE OFFICER CIRCON CORPORATION 6500 HOLLISTER AVENUE SANTA BARBARA, CA 93117 (805) 685-5100 (Name, address, including zip code, and telephone number, including area code, of agent for service) ----------------- Copy to: ROBERT B. JACK, ESQ. WILSON, SONSINI, GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 PAGE MILL ROAD PALO ALTO, CA 94304-1050 (415) 493-9300 FAX: (415) 496-4088 -------------------------------------------------------------------------------- 2 CALCULATION OF REGISTRATION FEE
==================================================================================================================================== Proposed Maximum Proposed Maximum Amount to be Offering Price Per Aggregate Offering Amount of Title of Securities to be Registered Registered Share (2) Price (2) Registration Fee ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, $0.01 par value Upon exercise of options under the Cabot Medical Corporation 1985 Incentive Stock Option Plan, the Cabot Medical Corporation Non- Qualified Stock Option Plan and the Cabot Medical Corporation Independent Directors' Non- Qualified Stock Option Plan(1) 1,069,446 shares $17.625 $18,848,969 $6,499.65 ------------------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to an Agreement and Plan of Reorganization dated as of April 24, 1995, as amended (the "Reorganization Agreement"), among the Registrant, Circon Sub Corp. and Cabot Medical Corporation ("Cabot"), the Registrant assumed all of the outstanding options to purchase common stock of Cabot under the Cabot 1985 Incentive Stock Option Plan, the Cabot Non-Qualified Stock Option Plan and the Cabot Independent Directors' Non-Qualified Stock Option Plan (the "Assumed Options"), with appropriate adjustments to the number of shares and exercise price of each Assumed Option to reflect the ratio at which the common stock of Cabot was converted into common stock of the Registrant under the Reorganization Agreement. (2) Estimated in accordance with Rule 457(h)(1) solely for the purpose of computing the amount of the registration fee based on the average of the high ($17.625) and low ($17.625) prices of the Company's Common Stock as reported on the NASDAQ Stock Market on August 22, 1995. ================================================================================ 3 CIRCON CORPORATION REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT As used in this Registration Statement, unless the context otherwise requires, the terms "Circon" and the "Company" mean Circon Corporation and its subsidiaries. Item 3. Incorporation of Documents by Reference. The following documents, previously filed by the Company with the Commission pursuant to the Exchange Act, are hereby incorporated by reference in this Registration Statement, except as superseded or modified herein: (a) the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994 filed March 30, 1995, pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "1934 Act"); (b) the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 filed May 15, 1995, the Form 10-Q/A to the March 31, 1995 Form 10-Q filed June 8, 1995, pursuant to Section 13 of the 1934 Act; (c) the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 filed August 14, 1995, pursuant to Section 13 of the 1934 Act; and (d) the Company's Form S-4 Registration Statement filed July 20, 1995, pursuant to the Securities Act of 1933, as amended (the "Securities Act"). All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act on or after the date of this Registration Statement 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 part hereof from the date of filing of such documents. II-1 4 Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Delaware law authorizes a court to award, or a corporation's Board of Directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The Bylaws of the Company provide that: (i) the Company is required to indemnify its officers and directors to the fullest extent permitted by law, including those circumstances in which indemnification would otherwise be discretionary; (ii) the Company is required to advance expenses to its officers and directors as incurred, provided that they undertake to repay the amount advanced if it is ultimately determined that they are not entitled to indemnification; (iii) an officer or director may bring suit against the Company if a claim for indemnification is not timely paid; (iv) the Company is authorized to enter into indemnification agreements with its officers, directors and employees; and (v) the Company may not retroactively amend the Bylaw provision in a way which is adverse to its officers or directors or former officers or directors. The Company carries Directors' and Officers' Liability and Corporate Reimbursement insurance. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits.
Exhibit Number Description ------ ----------- 4.1 Cabot Medical Corporation Non-Qualified Stock Option Plan. 5.1 Opinion of Counsel as to Legality of Securities being Registered. 23.1 Consent of Counsel (contained in Exhibit 5.1). 23.2 Consent of Independent Accountants. 24.1 Power of Attorney.
II-2 5 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 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 of 1933, 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 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 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 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant, Circon Corporation, 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 August 28, 1995. CIRCON CORPORATION By: /s/ Richard A. Auhll ------------------------------------------- Richard A. Auhll, Chairman, Chief Executive Officer, President and Director POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Richard A. Auhll and R. Bruce Thompson, jointly and severally, his attorneys-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 each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date -------------------- ------------------------- --------------- /s/ RICHARD A. AUHLL Chairman, Chief Executive August 28, 1995 -------------------- Officer, President and Director (Richard A. Auhll) (Principal Executive Officer) /s/ R. BRUCE THOMPSON Executive Vice President and August 28, 1995 --------------------- Chief Financial Officer (R. Bruce Thompson) (Principal Financial and Accounting Officer) /s/ JOHN F. BLOKKER Director August 28, 1995 ------------------- (John F. Blokker) /s/ HAROLD R. FRANK Director August 28, 1995 ------------------- (Harold R. Frank) /s/ PAUL W. HARTLOFF, JR. Director August 28, 1995 ------------------------- (Paul W. Hartloff, Jr.) /s/ RUDOLF R. SCHULTE Director August 28, 1995 --------------------- (Rudolf R. Schulte)
II-4 7 0 CIRCON CORPORATION REGISTRATION STATEMENT ON FORM S-8 INDEX TO EXHIBITS
Exhibit No. Description Page No. 4.1 Cabot Medical Corporation Non-Qualified Stock Option Plan. 5.1 Opinion of Counsel as to Legality of Securities being Registered. 23.1 Consent of Counsel (contained in Exhibit 5.1). 23.2 Consent of Independent Accountants. 24.1 Power of Attorney (included in Registration Statement on page II-4).
EX-4.1 2 NON-QUALIFIED STOCK OPTION PLAN 1 EXHIBIT 4.1 CABOT MEDICAL CORPORATION NON-QUALIFIED STOCK OPTION PLAN AS AMENDED AND RESTATED AS OF MAY 13, 1994 (Amended pursuant to Section 4.2 to increase the total number of Shares due to the stock dividend issued on May 13, 1994) 2 ARTICLE I DEFINITIONS 1.1. In this Stock Option Plan (hereinafter referred to as the "Plan") unless the context otherwise requires, references to the following words shall have the following meanings: "Change in Control" shall mean a change in control of the Company of a nature that would be required to be reported (assuming such event has not been "previously reported") in response to Item 1(a) of the Current Report on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the Exchange Act; provided that, without limiting the foregoing, a "Change in Control" shall be deemed to have occurred at such time as (a) any Person (as defined in the Exchange Act) after the date hereof becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 10% or more of the combined voting power of the Company's outstanding securities ordinarily having the right to vote at elections of directors ("Voting Securities"), or (b) during any period of two consecutive years after the date of the initial acquisition by such Person of Voting Securities of the Company, individuals who constitute the members of the Board of Directors of the Company on the date of such acquisition, or at the commencement of any two year period thereafter (the "Incumbent Board") cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to the date of such acquisition whose election, or nomination for election by the -1- 3 Company's shareholders, was approved by a vote of at least eighty percent (80%) of the directors comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) shall be considered as though such person were a member of the Incumbent Board, or (c) the shareholders of the Company approve a merger or consolidation of the Company with any other entity other than (i) a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or being converted into Voting Securities of the entity surviving such merger or consolidation), in combination with Voting Securities of the Company or such surviving entity held by a trustee or other fiduciary pursuant to any employee benefit plan of the Company or such surviving entity or any Subsidiary of the Company or such surviving entity, at least 75% of the combined voting power of the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person becomes the beneficial owner of securities of the Company or the entity surviving such merger or consolidation representing more of the combined voting power of the securities of the Company or such surviving entity outstanding immediately after such merger or consolidation than such Person was the -2- 4 beneficial owner of immediately prior to such recapitalization, or (d) the shareholders of the Company approve an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. "Committee" shall mean the Compensation Advisory Committee of the Board of Directors of the Company as constituted by the Board of Directors of the Company from time to time. "Company" shall mean Cabot Medical Corporation. "Date of Grant" shall mean the date on which an Option is granted to a Qualified Person by the Company pursuant to Article V hereof. "Disability" means permanent and total disability as defined in Section 422(c)(6) of the Internal Revenue Code of 1986, as amended. "Disinterested Administrators" shall mean those members of the Committee who are "disinterested persons" within the meaning of Rule 16b-3, as adopted by the Securities and Exchange Commission on February 8, 1991, pursuant to the Exchange Act and as it may be amended from time to time hereafter, or any successor provision. "Exchange Act" shall mean the Securities Exchange Act of 1934, as it may be amended from time to time, or any successor act or statute. "Expiration Date" for each Option, shall mean the date fixed by the Committee pursuant to section 7.1 of the Plan. -3- 5 "Market Value," on the Date of Grant of any Option, shall mean (i) the last sale price (regular way) of the Shares on the Date of Grant or, if no such sale takes place on such day, the average of the closing bid and asked prices on the New York Stock Exchange Composite Tape or, if the Shares are not listed or admitted to trading on the New York Stock Exchange on the Date of Grant, on the national securities exchange in or nearest the City of New York on which the Shares are listed or admitted to trading, or (ii) if on the Date of Grant the Shares are not listed or admitted to trading on any national securities exchange, the last sale price (regular way) of the Shares on the Date of Grant or, if no such sale takes place on such day, the average of the highest reported bid and lowest reported asked prices as furnished by the National Association of Securities Dealers, Inc. through the National Association of Securities Dealers Automated Quotation System ("NASDAQ") or a similar organization if NASDAQ is no longer reporting such information, or (iii) if on the Date of Grant the Shares are not quoted by any such organization, the fair market value of the Shares on the Date of Grant as determined by the Committee. "Option" shall mean a right to subscribe for Shares granted to a Qualified Person pursuant to the Plan. "Option Holder" shall mean a Qualified Person or former Qualified Person who holds an Option or another person who has acquired an Option in accordance with the terms and provisions of the Plan and the Stock Option Agreement covering such Option. -4- 6 "Option Shares" shall mean unissued Shares in respect of which Options are granted. "Plan" shall mean the Cabot Medical Corporation Non- Qualified Stock Option Plan. "Qualified Person" shall mean any employee or officer of, or consultant to, the Company or any Subsidiary. "Retirement" means retirement from active employment with the Company or any Subsidiary at or after the age established by the Committee from time to time for purposes of the Plan, or earlier in any particular case with the consent of the Committee. "Shares" shall mean the authorized no par value shares of common stock of the Company. "Stock Option Agreement" shall mean the Stock Option Agreement substantially in the form set out in Appendix B to the Plan, as such agreement may be amended by the Committee from time to time. "Subscription Price" shall mean the price payable for a Share on the exercise of an Option, as determined in accordance with Article VI herein and as it may be adjusted pursuant to section 4.2 hereof. "Subsidiary" shall mean any corporation which at the time qualifies as subsidiary of the Company under the definition of "subsidiary corporation" in Section 424(f) of the Internal Revenue of Code of 1986, as amended. -5- 7 "Termination Date" shall mean the first to occur of the dates described in Article VII hereof. ARTICLE II GENERAL 2.1. The purpose of the Plan is to advance the interest of the Company and its shareholders by affording to Qualified Persons an opportunity to acquire or increase their proprietary interest in the Company by the grant to such Qualified Persons of Options. By thus encouraging such Qualified Persons to become owners of the common stock of the Company, the Company seeks to motivate, retain, and attract those highly competent individuals upon whose judgment, initiative, leadership, and continued efforts the success of the Company in large measure depends. 2.2. The Company shall pay any and all fees and expenses incurred in connection with the exercise of any Options hereunder, other than the Subscription Price, and federal, state or local taxes incident to the exercise of Options and any professional fees incurred by Option Holders in connection with the exercise of Options. ARTICLE III ADMINISTRATION OF PLAN 3.1. The Plan shall be administered by the Committee. The Committee may at its discretion grant an Option to any Qualified Person on the terms set forth herein in respect of the number of Option Shares that the Committee shall specify. -6- 8 3.2. Subject to the limitations contained in Article IV hereof, the total number of Option Shares for which any Options may be granted shall be such number as determined by the Committee. 3.3. Subject to the express provisions of the Plan, the Committee shall also have complete authority to interpret the Plan, to prescribe, amend, and rescind rules and regulations relating to it, to determine the details and provisions of each Option, and to make all other determinations necessary or advisable in the administration of the Plan. ARTICLE IV LIMITATIONS 4.1. Subject to adjustment pursuant to the provisions of Section 4.2 hereof, the total number of Shares which may be issued and sold hereunder shall not exceed three million eight hundred fifteen thousand two hundred forty (3,815,240) Shares. 4.2. If and to the extent that the Shares shall be increased or reduced by reason of a recapitalization, a reclassification, a distribution or a dividend payable in stock, a rights issue, a sub-division or consolidation of Shares or an increase or reduction of capital, then the number of Shares subject to Options, the Subscription Price per Share and the number of Shares subject to the Plan shall be proportionately adjusted. If the Company is reorganized or consolidated or merged with another entity, each Option Holder shall be entitled to receive an Option in exchange for each Option then held by the -7- 9 Option Holder, but only if such Option has not terminated pursuant to Section 8.1 of the Plan and only to the extent such Option has not theretofore been exercised, covering Shares or such other ownership interest of such reorganized, consolidated, or merged entity in the same proportion, at an equivalent price and subject to the same terms and conditions; provided, however, that the issuance of securities by the Company as consideration for the acquisition by the Company of securities of another corporation or any other asset shall not be regarded as a circumstance requiring adjustment. ARTICLE V GRANT OF OPTIONS 5.1. Each Option granted hereunder shall be recorded in the minutes of a meeting of or the written consent of the Committee and evidenced by a Stock Option Agreement dated as of the Date of the Grant and executed by the Company and the Option Holder, which Stock Option Agreement shall set forth such terms and conditions as may be determined by the Committee in its sole discretion consistent with the Plan. 5.2. Subject to the express provisions of the Plan and the rules of the Plan, the form, manner of exercise and timing of grants and vesting of Options and the number of Shares comprised in an Option shall be at the absolute discretion of the Committee. 5.3. The terms of any Option granted under the Plan shall include a provision making such Option nontransferable by -8- 10 the Option Holder (other than by will or the laws of descent and distribution or pursuant to a qualified domestic relations order as defined by the Internal Revenue Code of 1986, as amended, or Title I of the Employee Retirement Income Security Act, or the rules thereunder), unless such requirement shall be expressly waived or modified by the Committee in writing, and in any event only upon receipt by the Company of evidence of such transfer, in form and substance satisfactory to the Company, and recordation of such transfer on the books and records of the Company. ARTICLE VI SUBSCRIPTION PRICE 6.1. The Subscription Price for a Share subject to an Option granted hereunder shall not be less than the Market Value of the Share on the Date of Grant of the Option. The Subscription Price shall be adjusted pursuant to Section 4.2 of the Plan. At the time of exercise of the Option by the Option Holder, the Subscription Price for such Shares shall be paid in full in United States dollars. ARTICLE VII RIGHT TO EXERCISE AN OPTION 7.1. Each Option granted pursuant to the Plan shall contain provisions, established by the Committee, setting forth the manner of exercise of such Option, the date or dates on which and the number of Shares for which such Option becomes vested and exercisable, and the Expiration Date of such Option. In no -9- 11 event, however, shall any Option granted hereunder be exercisable by its terms after the expiration of ten (10) years from the Date of Grant thereof. In addition, if the employment of an Option Holder by the Company or any Subsidiary is terminated (other than by reason of Retirement, death or Disability), each Option of such Option Holder shall be exercisable prior to its Expiration Date (subject to Section 8.1 hereof) only if, and only to the extnet that, such Option, in accordance with its terms, is vested and exercisable on the date on which the employment of such Option Holder by the Company or such Subsidiary is terminated. Each Option shall automatically be vested and exercisable in full (subject to termination pursuant to Section 8.1) if the employment of the Option Holder by the Company or any Subsidiary is terminated by the Company or such Subsidiary (other than by reason of death or Disability) within six (6) months after the occurrence of any Change in Control. ARTICLE VIII TERMINATION OF OPTION 8.1. Except as otherwise stated herein, each Option held by a Qualified Person shall terminate on the first to occur of the following dates (the "Termination Date"): (a) The expiration of thirty (30) calendar days after the date on which the employment of such Qualified Person by the Company or any Subsidiary is terminated by the Company or such Subsidiary for cause (except if such termination occurs -10- 12 within six (6) months after the occurrence of any Change in Control. (b) The expiration of ninety (90) calendar days after the date on which the employment of such Qualified Person by the Company or any Subsidiary is terminated by such Qualified Person (except if such termination occurs by reason of Retirement, death or Disability). (c) The Expiration Date. The granting of an Option to a Qualified Person does not alter in any way the existing rights of the Company or any Subsidiary to terminate the employment of such Qualified Person with or without cause and does not create an actual or implied contract of employment. Except as otherwise stated herein, each Option held by an Option Holder who is not a Qualified Person shall terminate on the Expiration Date or on such earlier date as the Committee may prescribe in the Stock Option Agreement covering such Option. If an Option is to terminate on either of the dates described in subsections (a) and (b) of this Section 8.1 or on a date prior to the Expiration Date pursuant to any provision of the Stock Option Agreement covering such Option, the Option may be exercised prior to the Termination Date only if, and only to the extent that, the Option, in accordance with its terms, is vested and exercisable (i) on the date on which the employment of the Qualified Person by the Company or any Subsidiary is terminated or (ii) on the date prescribed by the Stock Option -11- 13 Agreement covering such Option, if other than the date described in clause (i) of this sentence. ARTICLE IX EXERCISE OF OPTIONS AND SHAREHOLDERS RIGHTS 9.1 An Option may be exercised only for full Shares. No fractional Shares shall be issued. 9.2 No Option may be exercised in whole or in part and the Company shall not be required to issue or deliver any certificate evidencing Shares purchasable upon the exercise of any Option prior to fulfillment of all of the following conditions: (a) receipt by the Secretary of the Company from the Option Holder or his executor or administrator of a written notice of exercise of the Option specifying the number of Shares for which the Option is to be exercised, substantially in the form set out as Exhibit 1 to such Option Holder's Stock Option Agreement, together with full payment of the Subscription Price per Share in United States dollars for each Share for which the Option is to be exercised; (b) if the Option is to be exercised by an executor or administrator of the Option Holder, receipt by the Secretary of the Company from such executor or administrator of evidence satisfactory to the Company of such person's right to exercise the Option; (c) (i) receipt by the Secretary of the Company from the Option Holder or his executor or administrator of such -12- 14 documents as the Company shall deem necessary to determine whether registration of the Shares is required under the Securities Act of 1933 or to comply with such act or any other law and (ii) the completion of any such registration or other qualification of such Shares under any federal or state law or under the rulings or regulations of the Securities and Exchange Commission or any other governmental regulatory body that the Committee shall in its sole discretion deem necessary or advisable; (d) receipt by the Company of any approval or other consent from any federal, state of foreign governmental agency that the Committee shall in its sole discretion deem necessary or advisable; (e) if requested by the Company, receipt by the Secretary of the Company from the Option Holder or his executor or administrator of a letter representing that the Shares to be acquired upon exercise of the Option are to be acquired for the account of the Option Holder or for the account of his executor or administrator for investment and not with a view to distribution of such Shares; and (f) for issuance of certificates evidencing Shares for which the Option has been exercised, the lapse of such reasonable period of time following the exercise of the Option as the Committee from time to time may establish for reasons of administrative convenience. -13- 15 9.3 If notice is duly given of a Resolution for the voluntary winding up of the Company an Option Holder may forthwith and before the commencement of the winding-up exercise his Option up to the full extent to which it remains vested and unexercised (but so that such exercise shall be conditional upon such Resolution being passed) provided that an Option shall not be exercisable later than the Termination Date. 9.4 No Option Holder shall have any rights as a shareholder with respect to Shares subject to an Option until the date of exercise of such Option in accordance with the Plan and the issuance of the Shares for which the Option has been exercised. All Shares acquired by an Option Holder pursuant to the Plan shall be subject to the restrictions contained in the Certificate of Incorporation and By-Laws of the Company, as in effect on the date hereof and as they may be amended or restated from time to time, and (subject thereto) shall be effective on the date of issue thereof and rank pari passu with the Shares of the Company then issued and outstanding (including the right to receive all dividends or other distributions thereafter declared, paid or made by reference to a record date falling on or after the date of issue thereof). Except for adjustments to be made to Options pursuant to the terms of the Plan, no adjustment shall be made for dividends or other rights that have accrued to shareholders of the Company prior to the date of issue of such Shares. -14- 16 ARTICLE X TERMINATION, AMENDMENT, AND MODIFICATION OF PLAN 10.1. The Board of Directors of the Company may at any time terminate the Plan and may at any time and from time to time and in any respect amend or modify the Plan; provided, that no termination, amendment, or modification of the Plan shall in any manner affect any Option theretofore granted under the Plan without the consent of the Option Holder or (in the event of his death) his executors and administrators. 10.2. Notwithstanding anything herein to the contrary, no variation of the number of Shares comprised in an Option or the Subscription Price thereof shall be made pursuant to any of the provisions contained in the Plan until the auditors of the Company shall have notified the Committee in writing that such variation is, in their opinion, fair and reasonable. ARTICLE XI MISCELLANEOUS 11.1. The adoption of the Plan shall not affect any other stock option or incentive stock option or other compensation plans in effect for the Company or any Subsidiary, nor shall the Plan preclude the Company or any Subsidiary from establishing any other forms of incentive or other compensation for employees of the Company or any Subsidiary. 11.2. The Plan shall be binding upon the successors and assigns of the Company. -15- 17 11.3. The place of administration of the Plan shall conclusively be deemed to be within the Commonwealth of Pennsylvania and the validity, construction, interpretation, administration, and effect of the Plan and of its rules and regulations and the rights of any and all personnel having or claiming to have an interest therein or thereunder shall be governed by and determined exclusively and solely in accordance with the laws of the State of New Jersey. 11.4. No member of the Board of Directors of the Company shall be liable, in respect to this Plan, for any act whether of commission or omission taken by any other member or by any officer, agent, or employee of the Company, any Subsidiary or any affiliated company, nor, except in circumstances involving his own bad faith, for anything done or omitted to be done by himself. ARTICLE XII EXCHANGE ACT COMPLIANCE 12.1. Notwithstanding anything to the contrary herein, each grant of an Option to an officer of the Company and the terms of such Option shall be subject to approval of the Disinterested Administrators, in their sole discretion. 12.2. With respect to persons who are subject to Section 16 of the Exchange Act, transactions under the Plan are intended to comply with Rule 16b-3 or its successor provisions under the Exchange Act. To the extent that any provision of the Plan or action by the Committee fails to so comply, it shall be -16- 18 deemed null and void to the extent permitted by law and deemed advisable by the Committee. Attest: Cabot Medical Corporation By:/s/Harry Brener By:/s/Warren G. Wood --------------- ------------------------ Harry Brener Warren G. Wood Secretary Chief Executive Officer (SEAL) -17- EX-5.1 3 WILSON SONSINI LETTER 1 WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Palo Alto, CA 94304-1050 Exhibit 5.1 August 28, 1995 Circon Corporation 6500 Hollister Avenue Santa Barbara, CA 93117 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 or about August 28, 1995 (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of 1,069,446 shares of Common Stock reserved for issuance under the Cabot Medical Corporation 1985 Incentive Stock Option Plan, the Cabot Medical Corporation Non-Qualified Stock Option Plan and the Cabot Medical Corporation Independent Directors' Non-Qualified Stock Option Plan (the "Plans"). As your legal counsel, we have examined the proceedings proposed to be taken by you in connection with the sale and issuance of said shares. It is our opinion that, upon completion of the proceedings to be taken prior to issuance of the shares pursuant to the Prospectus constituting part of the Registration Statement on Form S-8 and upon completion of the proceedings being taken in order to permit such transactions to be carried out in accordance with the securities laws of the various states where required, the shares, when issued and sold in the manner referred to in the Plans and the agreements which accompany the Plans, and in accordance with the Company's Articles of Incorporation, will be legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to said Registration Statement and further consent to the use of our name wherever appearing in said Registration Statement, and amendments thereto. Very truly yours, WILSON, SONSINI, GOODRICH & ROSATI Professional Corporation /s/ WILSON, SONSINI, GOODRICH & ROSATI EX-23.2 4 ARTHURE ANDERSON CONSENT 1 Exhibit 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement on Form S-8 of Circon Corporation of our report dated February 6, 1995 with respect to the financial statements and schedules of Circon Corporation included and/or incorporated by reference in its Annual Report on Form 10-K for the fiscal year ended December 31, 1994 as filed with the Securities and Exchange Commission. ARTHUR ANDERSEN LLP /s/ ARTHUR ANDERSEN LLP Stamford, Connecticut August 25, 1995