-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SZHi7jXAb8eh03VAhiGwSqzAyn0X+vETU/+b2HqLFf2oTY2UKmo6LA2qjcOQWUwm JCLNmGYfw3vbLmZMiX0ANA== 0000929624-99-001094.txt : 19990615 0000929624-99-001094.hdr.sgml : 19990615 ACCESSION NUMBER: 0000929624-99-001094 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990611 EFFECTIVENESS DATE: 19990611 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BEI MEDICAL SYSTEMS CO INC /DE/ CENTRAL INDEX KEY: 0000851478 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL INSTRUMENTS FOR MEASUREMENT, DISPLAY, AND CONTROL [3823] IRS NUMBER: 710455756 STATE OF INCORPORATION: DE FISCAL YEAR END: 0927 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-80433 FILM NUMBER: 99644479 BUSINESS ADDRESS: STREET 1: 100 HOLLISTER ROAD STREET 2: STE 2500 CITY: TETERBOR STATE: NJ ZIP: 07608 BUSINESS PHONE: (201)727-4971 MAIL ADDRESS: STREET 1: 100 HOLLISTER ROAD CITY: TETERBOR STATE: NJ ZIP: 07608 FORMER COMPANY: FORMER CONFORMED NAME: BEI ELECTRONICS INC DATE OF NAME CHANGE: 19920703 S-8 1 BEI MEDICAL SYSTEMS - FORM S-8 As filed with the Securities and Exchange Commission on June 11, 1999 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------- BEI MEDICAL SYSTEMS COMPANY, INC. (Exact name of registrant as specified in its charter) Delaware 71-0455756 -------------------------- ------------------------------------ (State of Incorporation) (I.R.S. Employer Identification No.) 100 HOLLISTER ROAD TETERBORO, NEW JERSEY 07608 (Address of principal executive offices) AMENDED 1987 STOCK OPTION PLAN 1992 RESTRICTED STOCK PLAN (Full title of the plans) THOMAS W. FRY VICE PRESIDENT, FINANCE AND ADMINISTRATION, TREASURER AND SECRETARY BEI MEDICAL SYSTEMS COMPANY, INC. 100 HOLLISTER ROAD TETERBORO, NEW JERSEY 07608 (201) 727-4900 (Name, address, including zip code, and telephone number, including area code, of agent for service) ---------------------------- Copies to: CHRISTOPHER A. WESTOVER VIRGINIA C. EDWARDS COOLEY GODWARD LLP ONE MARITIME PLAZA, 20TH FLOOR SAN FRANCISCO, CA 94111 (415) 693-2000 ---------------------------- Page 1 of 24 Exhibit Index at Page 6 CALCULATION OF REGISTRATION FEE
================================================================================================================= ================================================================================================================= Proposed Maximum Proposed Maximum Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of to be Registered Registered Share (1) Price (1) Registration Fee - ----------------------------------------------------------------------------------------------------------------- Shares of Common Stock, par value $.001 per share, reserved for 500,000 $1.141 $570,500.00 $158.60 future grant under the Amended 1987 Stock Option Plan ================================================================================================================= Shares of Common Stock, par value $.001 per share, reserved for 200,000 $1.141 $228,200.00 $ 63.44 future issuance under the 1992 Restricted Stock Plan ================================================================================================================= Totals: 700,000 $1.141 $798,700.00 $222.04 =================================================================================================================
================================================================================ (1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c). The price per share and aggregate offering price are based upon the closing sales price of Registrant's Common Stock on June 7, 1999 as reported on the NASDAQ National Market System. ================================================================================ INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENTS ON FORM S-8 NOS. 33-31459, 33-46766 AND 333-64155 The contents of Registration Statements on Form S-8 Nos. 33-31459 and 33- 46766 filed with the Securities and Exchange Commission on October 11, 1989 (as amended October 30, 1989), March 27, 1992 and September 24, 1998, respectively, are incorporated by reference herein with such modifications as are set forth below. Amendments to the 1987 Incentive Stock Option Plan (the "Incentive Plan") and 1987 Supplemental Stock Option Plan (the "Supplemental Plan") by the Board in December 1989 and January 1997, approved by the stockholders in February 1990 and March 1997, respectively, combined the Incentive Plan and the Supplemental Plan into one plan, changed its name to the Amended 1987 Stock Option Plan (the "Amended Plan"), increased the number of shares of the Company's Common Stock authorized for issuance from 900,000 shares to 1,350,000 shares, allowed for the issuance of both incentive stock options and nonstatutory stock options, allowed stock options to be granted to consultants, extended the term of the Amended Plan to January 15, 2007, made changes to the Amended Plan in response to the requirements of Code Section 162(m) of the Internal Revenue Code of 1986, as amended (the "Code") and made conforming changes to the Amended Plan in accordance with Rule 16b-3 under the Securities Exchange Act of 1934, as amended. In November 1997, the Board approved an amendment to the Amended Plan, approved by the stockholders in March 1998, to enhance the flexibility of the Board and the Compensation Committee in granting of stock options to the Company's employees and to increase the number of shares authorized for issuance under the Amended Plan from a total of 1,350,000 shares to 1,600,000 shares. In January 1997, the Board approved an amendment to the 1992 Restricted Stock Plan (the "Restricted Plan"), approved by the stockholders in March 1997, to increase the number of shares authorized for issuance under the Restricted Plan from a total of 350,000 to 700,000 shares. In January 1999, the Board approved an amendment to the Amended Plan, approved by the stockholders in March 1999, to increase the number of shares authorized for issuance under the Amended Plan from a total of 1,600,000 to 2,100,000 shares. In January 1999, the Board approved an amendment to the Restricted Plan, approved by the stockholders in March 1999, to increase the number of shares authorized for issuance under the Restricted Plan from a total of 700,000 to 900,000 shares. EXHIBITS Exhibit Number - ------ 5.1 Opinion of Cooley Godward LLP 23.1 Consent of Ernst & Young LLP 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this Registration Statement 24 Power of Attorney is contained on the signature pages 99.1 Amended 1987 Stock Option Plan, as amended 99.2 1992 Restricted Stock Plan, as amended 3 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 Teterboro, State of New Jersey, on May 31, 1999. BEI MEDICAL SYSTEMS COMPANY, INC. By: /s/ Richard W. Turner -------------------------- Title: President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Richard W. Turner and Thomas W. Fry, and each or any one of them, 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, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, 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.
Signature Title Date - --------- ----- ---- /s/ Charles Crocker Chairman of the Board May 29, 1999 - ----------------------------------------------- (Charles Crocker) /s/ Richard W. Turner President and Chief Executive Officer May 31, 1999 - ----------------------------------------------- (Principal Executive Officer) (Richard W. Turner)
4
Signature Title Date - --------- ----- ---- /s/ Thomas W. Fry Vice President, Finance and May 31, 1999 - ----------------------------------------------- Administration, Treasurer and Secretary (Thomas W. Fry) (Principal Financial and Accounting Officer) - ----------------------------------------------- (Gary D. Wrench) Director June ___, 1999 /s/ Dr. Ralph M. Richart Director May 30, 1999 - ----------------------------------------------- (Dr. Ralph M. Richart) /s/ Dr. Lawrence A. Wan Director May 31, 1999 - ----------------------------------------------- (Dr. Lawrence A. Wan)
5 EXHIBIT INDEX
Exhibit Sequential Page Number Description Number - ------ ----------- --------------- 5.1 Opinion of Cooley Godward LLP 23.1 Consent of Ernst & Young LLP 23.2 Consent of Cooley Godward LLP is contained in Exhibit 5 to this Registration Statement 24 Power of Attorney is contained on the signature pages 99.1 Amended 1987 Stock Option Plan 99.2 1992 Restricted Stock Plan
6 EX-5.1 2 OPINION OF COOLEY GODWARD LLP EXHIBIT 5.1 June 10, 1999 BEI Medical Systems Company, Inc. 100 Hollister Road Teterboro, NJ 07608 Ladies and Gentlemen: You have requested our opinion with respect to certain matters in connection with the filing by BEI Medical Systems Company, Inc. (the "Company") of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission covering the offering of up to 700,000 shares of the Company's Common Stock, $.001 par value, (the "Shares") pursuant to its Amended 1987 Stock Option Plan (the "Option Plan") and 1992 Restricted Stock Plan (the "Restricted Plan") (the Option Plan and Restricted Plan being hereinafter collectively referred to as the "Plans"). In connection with this opinion, we have examined the Registration Statement and related Prospectus, your Certificate of Incorporation and By-laws, as amended, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full). We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, Cooley Godward LLP By: /s/ Christopher A. Westover --------------------------- Christopher A. Westover EX-23.1 3 CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Amended 1987 Stock Option Plan and the 1992 Restricted Stock Plan of BEI Medical Systems Company, Inc. (formerly BEI Electronics, Inc.) of our report dated November 13, 1998, with respect to the consolidated financial statements and schedule of BEI Medical Systems Company, Inc. included in its Annual Report (Form 10-K) for the year ended October 3, 1998, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP - --------------------- Hackensack, New Jersey June 8, 1999 EX-99.1 4 AMENDED 1987 STOCK OPTION PLAN EXHIBIT 99.1 AMENDED 1987 STOCK OPTION PLAN BEI MEDICAL SYSTEMS COMPANY, INC. AMENDED 1987 STOCK OPTION PLAN ------------------------------ Adopted November 10, 1987 Approved by Stockholders February 22, 1988 Amended January 1997 Approved by Stockholders March 1997 Amended November 1997 Approved by Stockholders March 1998 Amended January 1999 Approved by Stockholders March 1999 INTRODUCTION ------------ This Amended 1987 Stock Option Plan (the "Plan") was initially adopted in 1987 as the 1987 Incentive Stock Option Plan (the "Incentive Plan"), and provided only for the grant of options intended to qualify as incentive stock options. In 1987 the Company also adopted the 1987 Supplemental Stock Option Plan (the "Supplemental Plan") to provide for the grant of options not intended to qualify as incentive stock options. In January 1997, the Incentive Plan was amended and restated to provide for, among other things, the grant of options which are not intended to qualify as incentive stock options. No options will be granted under the Supplemental Plan after the date of the January 1997 amendments to this Plan. 1. PURPOSE. ------- (a) The purpose of this Plan is to provide a means by which selected key employees and directors of and consultants to BEI Medical Systems Company, Inc. (the "Company") and its Affiliates, as defined in subparagraph 1(b), may be given an opportunity to purchase stock of the Company. (b) The word "Affiliate" as used in the Plan means any parent corporation or subsidiary corporation of the Company, as those terms are defined in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986, as amended from time to time (the "Code"). (c) The Company, by means of the Plan, seeks to retain the services of persons now holding key positions, to secure and retain the services of persons capable of filling such positions, and to provide incentives for such persons to exert maximum efforts for the success of the Company. (d) The Company intends that the options designated as "incentive stock options" be incentive stock options as that term is used in Section 422 of the Code. Options which are not intended to qualify as "incentive stock options" are designated as "nonstatutory stock options." 2. ADMINISTRATION. -------------- (a) The Plan shall be administered by the Board of Directors (the "Board") of the Company unless and until the Board delegates administration to a committee, as provided in subparagraph 2(c). Whether or not the Board has delegated administration, the Board shall have the final power to determine all questions of policy and expediency that may arise in the administration of the Plan. (b) The Board shall have the power, subject to, and within the limitations of, the express provisions of the Plan: (1) To determine from time to time which of the persons eligible under the Plan shall be granted options; whether an option shall be an incentive stock option or a nonstatutory stock option; when and how the option shall be granted; the provisions of each option granted (which need not be identical), including the time or times during the term of each option within which all or portions of such option may be exercised; and the number of shares for which an option shall be granted to each such person. (2) To construe and interpret the Plan and options granted under it, and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any option agreement, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective. (3) To amend the Plan as provided in paragraph 10. (4) Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Company. (c) The Board may delegate administration of the Plan to a committee composed of two (2) or more persons (the "Committee"). In the discretion of the Board, a Committee may consist solely of two (2) or more Outside Directors, in accordance with Code Section 162(m), or solely of two (2) or more Non-Employee Directors, in accordance with Rule 16b-3 ("Rule 16b-3") promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board (and references in this Plan to the Board of Directors shall thereafter be to the Committee). The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. (d) The term "Non-Employee Director" as used in this Plan shall mean a member of the Board who either (i) is not a current employee or officer of the Company or any Affiliate, does not receive compensation (directly or indirectly) from the Company or any Affiliate for services rendered as a consultant or in any capacity other than as a member of the Board (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act of 1933 ("Regulation S-K")), does not possess an interest in any other transaction as to which disclosure would be required under Item 404(a) of Regulation S-K, and is not engaged in a business relationship as to which disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is otherwise considered a "non-employee director" for purposes of Rule 16b-3. (e) The term "Outside Director" as used in this Plan shall mean a director who either (i) is not a current employee of the Company or an "affiliated corporation" (within the meaning of Treasury regulations promulgated under Section 162(m) of the Code), is not a former employee of the Company or an "affiliated corporation" receiving compensation for prior services (other than benefits under a tax qualified pension plan), was not an officer of the Company or an "affiliated corporation" at any time, and is not currently receiving direct or indirect remuneration from the Company or an "affiliated corporation" for services in any capacity other than as a director, or (ii) is otherwise considered an "outside director" for purposes of Section 162(m) of the Code. 3. SHARES SUBJECT TO THE PLAN. -------------------------- (a) Subject to the provisions of paragraph 9 relating to adjustments upon changes in stock, the stock that may be sold pursuant to options granted under the Plan shall not exceed in the aggregate two million one hundred thousand (2,100,000) shares of the Company's common stock. If any option granted under this Plan, the Incentive Plan or the Supplemental Plan shall for any reason expire or otherwise terminate without having been exercised in full, the stock not purchased under such option shall again become available for this Plan. (b) The stock subject to the Plan may be unissued shares or reacquired shares, bought on the market or otherwise. (c) An incentive stock option may not be granted to an eligible person under the Plan if the aggregate fair market value (determined at the time the option is granted) of the stock with respect to which incentive stock options are exercisable for the first time by such optionee during any calendar year under all incentive stock option plans of the Company and its Affiliates exceeds one hundred thousand dollars ($100,000). Should it be determined that the options or portions thereof exceeds such maximum, such options or portions thereof which exceed such limit (according to the order in which they were granted) shall be treated as nonstatutory stock options. 4. ELIGIBILITY. ----------- (a) Incentive stock options may be granted only to key employees (including officers) of the Company or its Affiliates. Nonstatutory stock options may be granted only to key employees (including officers), directors and consultants of the Company or its Affiliates. (b) No person shall be eligible for the grant of an incentive stock option under the Plan if, at the time of grant, such person owns (or is deemed to own pursuant to the attribution rules of Section 424(d) of the Code) stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any of its Affiliates unless the option price is at least one hundred ten percent (110%) of the fair market value of such stock at the date of grant and the term of the option does not exceed five (5) years from the date of grant. (c) Subject to the provisions of paragraph 9 relating to adjustments upon changes in stock, no person shall be eligible to be granted Options covering more than two hundred fifty thousand (250,000) shares of the Company's common stock in any fiscal year. 5. OPTION PROVISIONS. ----------------- Each option shall be in such form and shall contain such terms and conditions as the Board or the Committee shall deem appropriate. The provisions of separate options need not be identical, but each option shall include (through incorporation of provisions hereof by reference in the option or otherwise) the substance of each of the following provisions: (a) The term of any option shall not be greater than ten (10) years from the date it was granted. (b) The exercise price of each option shall be not less than one hundred percent (100%) of the fair market value of the stock subject to the option on the date the option is granted. (c) The purchase price of stock acquired pursuant to an option shall be paid, to the extent permitted by applicable statutes and regulations, either (i) in cash at the time the option is exercised, or (ii) at the discretion of the Board or the Committee, either at the time of grant or exercise of the option (A) by delivery to the Company of other common stock of the Company, (B) according to a deferred payment or other arrangement (which may include, without limiting the generality of the foregoing, the use of other common stock of the Company) with the person to whom the option is granted or to whom the option is transferred pursuant to subparagraph 5(d), or (C) in any other form of legal consideration that may be acceptable to the Board or Committee in their discretion. In the case of any deferred payment arrangement, interest shall be payable at least annually and shall be charged at the minimum rate of interest necessary to avoid the treatment as interest, under any applicable provisions of the Code, of any amounts other than amounts stated to be interest under the deferred payment arrangement. (d) An incentive stock option shall not be transferable except by will or by the laws of descent and distribution, and shall be exercisable during the lifetime of the person to whom the option is granted only by such person. A nonstatutory stock option shall be transferable to the extent specifically provided for in the option agreement; provided, however, that if the option agreement does not specifically provide for the transferability of the nonstatutory stock option, then such option shall not be transferable except by will or by the laws of descent and distribution or pursuant to a domestic relations order satisfying the requirements of Rule 16b-3 and any administrative interpretations or pronouncements thereunder, and shall be exercisable during the lifetime of the person to whom the option is granted only by such person or any transferee pursuant to such domestic relations order. Notwithstanding the foregoing, the person to whom the option is granted may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the optionee, shall thereafter be entitled to exercise the option. (e) The total number of shares of stock subject to an option may, but need not, vest in periodic installments (which may, but need not, be equal). From time to time, the option may be exercised with respect to some or all of the vested shares which have not previously been exercised. The provisions of this subparagraph 5(e) are subject to any option provisions governing the minimum number of shares as to which an option may be exercised. (f) The Company may require any optionee, or any person to whom an option is transferred under subparagraph 5(d), as a condition of exercising any such option: (1) to give written assurances satisfactory to the Company as to the optionee's knowledge and experience in financial and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business matters, and that he or she is capable of evaluating, alone or together with the purchaser representative, the merits and risks of exercising the option; and (2) to give written assurances satisfactory to the Company stating that such person is acquiring the stock subject to the option for such person's own account and not with any present intention of selling or otherwise distributing the stock. These requirements, and any assurances given pursuant to such requirements, shall be inoperative if (i) the issuance of the shares upon the exercise of the option has been registered under a then currently effective registration statement under the Securities Act of 1933, as amended (the "Securities Act"), or (ii), as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws. (g) An option shall terminate three (3) months after termination of the optionee's employment or service with the Company or an Affiliate, unless (i) the termination of employment or service of the optionee is due to such person's permanent and total disability, within the meaning of Section 422(c)(6) of the Code, in which case the option may, but need not, provide that it may be exercised at any time within one (1) year following such termination; or (ii) the optionee dies while in the employ or service of the Company or an Affiliate, or within not more than three (3) months after termination of such employment or service, in which case the option may, but need not, provide that it may be exercised at any time within eighteen (18) months following the death of the optionee by the person or persons to whom the optionee's rights under such option pass by will or by the laws of descent and distribution; or (iii) the option by its terms specifies either (a) that it shall terminate sooner than three (3) months after termination of the optionee's employment or service, or (b) that it may be exercised more than three (3) months after termination of the optionee's employment or service with the Company or an Affiliate. This subparagraph 5(g) shall not be construed to extend the term of any option or to permit anyone to exercise the option after expiration of its term, nor shall it be construed to increase the number of shares as to which any option is exercisable from the amount exercisable on the date of termination of the optionee's employment or service. (h) The option may, but need not, include a provision whereby the optionee may elect at any time during the term of his or her employment or service with the Company or any Affiliate to exercise the option as to any part or all of the shares subject to the option prior to the stated vesting date of the option or of any installment or installments specified in the option. Any shares so purchased from any unvested installment or option may be subject to a repurchase right in favor of the Company or to any other restriction the Board or the Committee determines to be appropriate. 6. COVENANTS OF THE COMPANY. ------------------------ (a) During the terms of the options granted under the Plan, the Company shall keep available at all times the number of shares of stock required to satisfy such options. (b) The Company shall seek to obtain from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to issue and sell shares of stock upon exercise of the options granted under the Plan; provided, however, that this undertaking shall not require the Company to register under the Securities Act either the Plan, any option granted under the Plan or any stock issued or issuable pursuant to any such option. If, after reasonable efforts, the Company is unable to obtain from any such regulatory commission or agency the authority that counsel for the Company deems necessary for the lawful issuance and sale of stock under the Plan, the Company shall be relieved from any liability for failure to issue and sell stock upon exercise of such options unless and until such authority is obtained. 7. USE OF PROCEEDS FROM STOCK. -------------------------- Proceeds from the sale of stock pursuant to options granted under the Plan shall constitute general funds of the Company. 8. MISCELLANEOUS. ------------- (a) The Board or the Committee shall have the power to accelerate the time during which an option may be exercised, or the time during which an option or any portion thereof will vest pursuant to subparagraph 5(e), notwithstanding the provisions in the option stating the time during which it may be exercised or the time during which it will vest. (b) Neither an optionee nor any person to whom an option is transferred under subparagraph 5(d) shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares subject to such option unless and until such person has satisfied all requirements for exercise of the option pursuant to its terms. (d) Nothing in the Plan or any instrument executed or option granted pursuant thereto shall confer upon any eligible employee or optionee any right to continue in the employ or service of the Company or any Affiliate or shall affect the right of the Company or any Affiliate to terminate the employment or service of any eligible employee or optionee with or without cause. 9. ADJUSTMENTS UPON CHANGES IN STOCK. --------------------------------- (a) If any change is made in the stock subject to the Plan, or subject to any option granted under the Plan (through merger, consolidation, reorganization, recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or otherwise), the Plan and outstanding options will be appropriately adjusted in the class(es) and maximum number of shares subject to the Plan and the class(es) and number of shares and price per share of stock subject to outstanding options. (b) In the event of: (1) a dissolution or liquidation of the Company; (2) a merger or consolidation in which the Company is not the surviving corporation; (3) a reverse merger in which the Company is the surviving corporation but the shares of the Company's common stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise; or (4) any other capital reorganization in which more than fifty percent (50%) of the shares of the Company entitled to vote are exchanged, then, at the sole discretion of the Board and to the extent permitted by applicable law: (i) any surviving corporation shall assume any options outstanding under the Plan or shall substitute similar options for those outstanding under the Plan, or (ii) the time during which such options may be exercised shall be accelerated and the options terminated if not exercised prior to such event, or (iii) such options shall continue in full force and effect. 10. AMENDMENT OF THE PLAN. --------------------- (a) The Board at any time, and from time to time, may amend the Plan. However, except as provided in paragraph 9 relating to adjustments upon changes in stock, no amendment shall be effective unless approved by the stockholders of the Company to the extent stockholder approval is necessary for the Plan to satisfy the requirements of Section 422 of the Code, Rule 16b-3 or any Nasdaq or securities exchange listing requirements. (b) It is expressly contemplated that the Board may amend the Plan in any respect the Board deems necessary or advisable to provide optionees with the maximum benefits provided or to be provided under the provisions of the Code and the regulations promulgated thereunder relating to incentive stock options and/or to bring the Plan and/or incentive stock options granted under it into compliance therewith. (c) Rights and obligations under any option granted before amendment of the Plan shall not be impaired by any amendment of the Plan unless (i) the Company requests the consent of the person to whom the option was granted and (ii) such person consents in writing. 11. TERMINATION OR SUSPENSION OF THE PLAN. ------------------------------------- (a) The Board may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate on January 15, 2007. No options may be granted under the Plan while the Plan is suspended or after it is terminated. (b) Rights and obligations under any option granted while the Plan is in effect shall not be impaired by suspension or termination of the Plan, except with the consent of the person to whom the option was granted. 12. EFFECTIVE DATE OF PLAN. ---------------------- The Plan shall become effective as determined by the Board, but no options granted under the Plan shall be exercised unless and until the Plan has been approved by the vote of the holders of a majority of the outstanding shares of the Company entitled to vote. EX-99.2 5 1992 RESTRICTED STOCK PLAN EXHIBIT 99.2 1992 RESTRICTED STOCK PLAN BEI MEDICAL SYSTEMS COMPANY, INC. 1992 Restricted Stock Plan As amended through January 1999 1. PURPOSE. The purpose of this Plan is to promote the long-term growth and profitability of the Company and the value of its Common Stock by (i) providing certain individuals who provide services to the Company with increased incentive to contribute to the success of the Company and (ii) enabling the Company to attract, retain and reward persons of exceptional skill for positions of substantial responsibility. 2. DEFINITIONS. Whenever used herein, the following terms shall have the meanings set forth below: (a) "Board" or "Board of Directors" means the Board of Directors of BEI Medical Systems Company, Inc. "Code" means the Internal Revenue Code of 1986, as amended. "Committee" means the Compensation Committee designated by the Board which shall consist of two (2) or more members of the Board who shall, in the discretion of the Board, consist solely of two (2) or more Outside Directors, in accordance with Section 162(m) of the Code, and/or solely of two (2) or more Non-Employee Directors, in accordance with Rule 16b-3. "Common Stock" shall mean the Common Stock, $.001 par value, of BEI Medical Systems Company, Inc. "Company" means BEI Medical Systems Company, Inc. and/or its Subsidiaries. "Disability" means a permanent and total disability as defined in the BEI Long-term Disability Plan or, if designated by the Committee with respect to a grant under the Plan, Section 22(e)(3) of the Code. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Fair Market Value" means the closing price of the Common Stock as reported on the Nasdaq National Market (or other securities exchange) for the date in question, or if no sales of the Common Stock were reported on such day, the closing price of the Common Stock on the last preceding day when the sale of Common Stock was reported on the Nasdaq National Market. "Non-Employee Director" means a member of the Board who either (i) is not a current employee or officer of the Company or any "affiliate," does not receive compensation (directly or indirectly) from the Company or any "affiliate" for services rendered as a consultant or in any capacity other than as a member of the Board (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act of 1933, as amended ("Regulation S-K"), does not possess an interest in any other transaction as to which disclosure would be required under Item 404(a) of Regulation S-K, and is not engaged in a business relationship as to which disclosure would be required under Item 404(b) of Regulation S- K; or (ii) is otherwise considered a "non-employee director" for purposes of Rule 16b-3. "Outside Director" means a member of the Board who either (i) is not a current employee of the Company or an "affiliated corporation" (within the meaning of Treasury regulations promulgated under Section 162(m) of the Code), is not a former employee of the Company or an "affiliated corporation" receiving compensation for prior services (other than benefits under a tax qualified pension plan), was not an officer of the Company or an "affiliated corporation" at any time, and is not currently receiving direct or indirect remuneration from the Company or an "affiliated corporation" for services in any capacity other than as a member of the Board, or (ii) is otherwise considered an "outside director" for purposes of Section 162(m) of the Code. "Participant" means an individual to whom Restricted Stock is granted under the Plan. "Restricted Stock" means Common Stock granted to a Participant pursuant to section 6 of the Plan. "Retirement" means termination of Participant's employment with a Company: (i) after Participant has reached 65 years of age, and (ii) after Participant has ten or more years of service with the Companies. "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3 in effect when discretion is being exercised with respect to the Plan. "Subsidiary" means a corporation, 50% or more of whose voting securities are owned by the Company. 3. ADMINISTRATION. The Plan shall be administered by the Committee. Subject to the provisions of the Plan, the Committee is authorized to (i) select Participants, (ii) determine the form and substance of grants made under the Plan to each Participant, and the conditions and restrictions, if any, subject to which such grants will be made, (iii) interpret the Plan and (iv) adopt, amend, or rescind such rules and regulations for carrying out the Plan as it may deem appropriate. Decisions of the Committee on all matters relating to the Plan shall be in the Committee's sole discretion and shall be conclusive and binding on all parties, including the Company, its stockholders and the Participants in the Plan. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan. 4. SHARES AVAILABLE FOR THE PLAN. Subject to adjustments as provided in section 12 of the Plan, up to an aggregate of 900,000 shares of Common Stock may be issued pursuant to the Plan. Such reserve is comprised of (i) 350,000 shares reserved for issuance upon adoption of the Plan plus (ii) an additional 350,000 shares approved by the Committee in January 1997 and (iii) 200,000 shares approved by the Board in January 1999. Shares issued under the Plan may be authorized but unissued shares, shares held in the treasury of the Company, or shares purchased on the open market. To the extent any grant under the Plan expires, terminates unexercised, becomes unexercisable or is forfeited, such shares shall thereafter be available for further grants under the Plan. 5. PARTICIPATION. Participation in the Plan shall be limited to those officers, directors , other employees and consultants of the Company who are believed by the Committee to be in a position to make substantial contribution to the success of the Company. Nothing in the Plan or in any grant thereunder shall confer any right on any employee, director or consultant to continue in the employ or service of the Company or shall interfere in any way with the right of the Company to terminate an employee, director or consultant at any time. Subject to the provisions of section 12 relating to adjustments upon changes in stock, no person shall be eligible to receive more than one hundred twenty thousand (120,000) shares of Restricted Stock in any fiscal year. 6. RESTRICTED STOCK. The Committee may at any time and from time to time grant shares of Restricted Stock under the Plan to such Participants and in such amounts as it determines. Each grant of Restricted Stock under the Plan shall be evidenced by a restricted stock agreement which shall contain such terms and conditions not inconsistent with the Plan as the Committee shall determine; provided, however, that each grant of Restricted Stock shall satisfy the following requirements: Shares of Restricted Stock may be granted as a bonus and issued for no consideration other than services rendered, or may be sold to a Participant at such price and for such consideration as may be determined by the Committee, provided, however, that the Company shall receive the minimum amount required for such shares to be fully paid, nonassessable shares under Delaware law. Each grant of Restricted Stock shall specify the restrictions applicable thereto, the duration of such restrictions, and the time or times at which such restrictions shall lapse with respect to all or a specified number of shares that are part of the grant. The restricted period shall terminate for 15% of the shares so granted on each of the first five anniversaries of the grant and the final 25% restriction will terminate on the sixth anniversary of the grant unless the Committee shall otherwise determine. The Committee may elect to accelerate vesting. The Committee may require, at its discretion, that Participants surrender for cancellation any outstanding stock options granted to such Participants pursuant to the Company's stock option plans. The Participant shall be required to deposit the shares of Restricted Stock with the Company during the restriction period and to execute a blank stock power therefor. The Participant shall, during the restriction period, have all of the rights of a stockholder of the Company, including the right to vote the shares and to receive dividends (or amounts equivalent to dividends), unless the Committee shall otherwise determine. Upon termination of a Participant's employment during the restriction period, all shares of Restricted Stock as to which restrictions have not lapsed shall be forfeited; provided, however, that no shares of Restricted Stock shall be forfeited upon termination of employment due to Retirement, Disability or death. In any such event, any remaining restriction period shall terminate for all Restricted Stock of the retired, disabled or deceased Participant, as the case may be. In the event that a Participant forfeits any shares of Restricted Stock, the Company shall reacquire such shares and shall pay to the Participant an amount equal to the amount, if any, paid by the Participant for such shares. 7. CHANGE IN CONTROL. In the event of a Change in Control, any remaining restrictions on all shares of Restricted Stock shall immediately terminate and the Committee, as constituted before such Change in Control, may take any one or more of the following actions: (i) provide for the purchase of such Restricted Stock by the Company, upon a Participant's request in an amount equal to such stock's Fair Market Value; (ii) make additional grants of Restricted Stock as the Committee deems appropriate to reflect such Change in Control; or (iii) cause any grant to be assumed by the acquiring or surviving corporation upon such Change in Control. The Committee may, in its discretion, include such further provisions and limitations in any agreement pertaining to such grants as it may deem equitable and in the best interests of the Company. For purposes of the Plan, "Change in Control" shall be deemed to have occurred if (a) any entity, person or Group (other than the Company or a Subsidiary) acquires shares of Common Stock in a transaction or in a series of transactions that result in such entity, person or Group directly or indirectly owning beneficially more than fifty percent (50%) of the outstanding shares of Common Stock; (b) there is a merger or consolidation of the Company with or into any other corporation or other entity or person, or any other corporate reorganization, in which the stockholders of the Company immediately prior to such merger, consolidation or reorganization own less than fifty percent (50%) of the Company's voting power immediately after such merger, consolidation or reorganization (c) there is a sale, lease or other disposition of all or substantially all of the assets of the Company; (d) there is a contested election of directors of the Company which results in a majority of the members of the Board recommended by the Company not being elected (e) there is a change in composition within a sixty (60) day period of a majority of the Company's Board of Directors; or (f) there is any other event or series of events which results in a change in voting power sufficient to elect a majority of the Board. Notwithstanding the foregoing, in no event shall (a) the dividend to be paid to shareholders of the Company on the record date for such dividend of one share of the Common Stock of BEI Technologies, Inc. for each share of Common Stock of the Company then owned by each such shareholder, (b) any transfer of assets of the Company in connection with such dividend, or (c) a change in the composition of the Board of Directors of the Company in connection with such dividend constitute a "Change in Control" for any purpose under the Plan. A "Group" shall consist of two or more persons acting as a partnership, limited partnership, syndicated, or other group for the purpose of acquiring, holding or disposing of voting securities of the Company. 8. WITHHOLDING TAXES. The Company may require, as a condition to any grant under the Plan or to the delivery of certificates for Common Stock issued thereunder, that the Participant pay to the Company, in cash, any federal, state or local taxes of any kind required by law to be withheld with respect to any grant or any delivery of Common Stock. The Company, to the extent permitted or required by law, shall have the right to deduct from any payment of any kind (including salary or bonus) otherwise due to a Participant any federal, state or local taxes of any kind required by law or be withheld with respect to any grant or to the delivery of Common Stock under the Plan. Subject to Committee approval, a Participant may elect to deliver shares of Common Stock (or have the Company withhold shares of Restricted Stock) to satisfy, in whole or in part, the amount the Company is required to withhold for taxes in connection with a grant or a delivery of Common Stock under the Plan. Such election must be made on or before the date the amount of tax is to be withheld is determined and, if applicable, subject to rules and regulations under Section 16(b) of the Exchange Act. Once made, the election shall be irrevocable. The fair market value of the shares to be withheld or delivered will be the Fair Market Value on the date last preceding the date the amount of tax to be withheld is determined. 9. TRANSFERABILITY. No Restricted Stock granted under the Plan shall be transferable other than by will or the laws of descent and distribution during the restriction period. 10. LISTING AND REGISTRATION. If the Committee determines that the listing, registration, or qualification upon any securities exchange or under any law of shares subject to any Restricted Stock grant is necessary or desirable as a condition of, or in connection with, the granting of same or the issue or purchase of shares thereunder, no such shares shall be issued unless such listing, registration or qualification is effected free of any conditions not acceptable to the Committee. 11. TRANSFERS. Transfer of a Participant from the Company to a Subsidiary, from a Subsidiary to the Company, and from one Subsidiary to another shall not be considered a termination of employment or service. Nor shall it be considered a termination of employment or service if a Participant is placed on military or sick leave or such other leave of absence which is considered as continuing intact the employment or service relationship; in such a case, the employment or service relationship shall be continued until the date when the Participant's employment or service shall be terminated. 12. ADJUSTMENTS. In the event of any change affecting shares of Common Stock by reason of any reorganization, recapitalization, stock split, stock dividend, combination or exchange of shares, merger, consolidation, spin-off, or any other change in the corporate structure of BEI Medical Systems Company, Inc. or the Common Stock, the Committee shall make such substitution or adjustment as appropriate in the number and kind of shares reserved for issuance under the Plan and in the number and kind of shares covered by grants made under the Plan. 13. TERMINATION AND MODIFICATION OF PLAN. The Board of Directors, without further approval of the stockholders, may amend, suspend or terminate the Plan, except that no amendment shall become effective without prior approval of the stockholders of the Company if such approval would be required for continued compliance with Rule 16b-3 or any Nasdaq or securities exchange listing requirements. The Committee may amend or modify the grant of any outstanding Restricted Stock in any manner to the extent that the Committee would have had the authority to make such grant as so modified or amended, including without limitation to change the date or dates as of which restrictions on shares are to be removed, except that no modification may be made that would materially adversely affect any grant previously made under the Plan without the written approval of the Participant. The Committee is authorized to make minor or administrative modifications to the Plan as well as modifications to the Plan that may be dictated by requirements of federal or state laws applicable to the Company or that may be authorized or made desirable by such laws. 14. EFFECTIVE DATE. The Plan shall be effective as of January 1, 1992. -----END PRIVACY-ENHANCED MESSAGE-----