0000898430-01-502438.txt : 20011008 0000898430-01-502438.hdr.sgml : 20011008 ACCESSION NUMBER: 0000898430-01-502438 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010919 EFFECTIVENESS DATE: 20010919 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VENTANA MEDICAL SYSTEMS INC CENTRAL INDEX KEY: 0000893160 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 942976937 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-69658 FILM NUMBER: 1740603 BUSINESS ADDRESS: STREET 1: 3865 N BUSINESS CENTER DRIVE CITY: TUCSON STATE: AZ ZIP: 85705 BUSINESS PHONE: 5208872155 MAIL ADDRESS: STREET 1: 3865 N BUSINESS CENTER DR CITY: TUCSON STATE: AZ ZIP: 85705 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on September 19, 2001 ========================================================================== Registration Statement No. 333- =============================== SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 _________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _______________ VENTANA MEDICAL SYSTEMS, INC. ----------------------------- (Exact Name of Registrant as Specified in Its Charter) Delaware 94-2976937 ------------------------------------------------------------------------------ (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 3865 North Business Center Drive, Tucson, Arizona 85705 ------------------------------------------------------------------------------ (Address of Principal Executive Offices) (Zip Code) 2001 Outside Director Stock Option Plan --------------------------------------- (Full Title of the Plan) Nicholas A. Malden Chief Financial Officer Ventana Medical Systems, Inc. 3865 North Business Center Drive Tucson, Arizona 85705 --------------------- (Name and Address of Agent for Service) (520) 887-2155 -------------- (Telephone Number, Including Area Code, of Agent for Service) Copies to: Christian J. Hoffmann, III, Esq. Quarles & Brady Streich Lang LLP Renaissance One Two North Central Avenue Phoenix, Arizona 85004 (602) 229-5336
CALCULATION OF REGISTRATION FEE ============================================================================================================= Proposed Maximum Proposed Maximum Title of Securities To Be Amount To Be Offering Price Aggregate Offering Amount of Registered Registered Per Share(1) Price(1) Registration Fee ------------------------------------------------------------------------------------------------------------- Common Stock, $.001 par value 500,000 $21.88 $10,940,000.00 $2,735.00 per share =============================================================================================================
(1) Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended (the "Act"), solely for purposes of calculating the registration fee. The calculation is based on the average of the high and low prices as quoted on the Nasdaq National Market on September 18, 2001 (the "Market Price"). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents and information previously filed with the Securities and Exchange Commission (the "Commission") by Ventana Medical Systems, Inc. (the "Company") are hereby incorporated by reference in this Registration Statement: (1) Annual Report on Form 10-K for the fiscal year ended December 31, 2000; (2) Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001 and June 30, 2001; (3) Definitive Proxy Statement used in connection with the Company's Annual Meeting of Stockholders held on May 3, 2001, other than the portions of such document, which by statute, by designation in such document or otherwise, are not deemed to be filed with the Commission or are not required to be incorporated herein by reference; and (4) All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities registered 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. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Pursuant to Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), Article X of the Company's Restated Certificate of Incorporation (the "Restated Certificate of Incorporation") eliminates the liability of the Company's directors to the Company or its stockholders, except for liabilities related to breach of duty of loyalty, actions not in good faith and certain other liabilities. Section 145 of the DGCL provides for indemnification by the Company of its directors and officers. In addition, Article VI of the Company's Bylaws requires the Company to indemnify any current or former director or officer to the fullest extent permitted by the DGCL. In addition, the Company has entered into indemnity agreements with its directors and executive officers that obligate the Company to indemnify such directors and executive officers to the fullest extent permitted by the DGCL. The Company also maintains officers' and directors' liability insurance, which insures against liabilities that officers and directors of the Company may incur in such capacities. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. See the Exhibit Index at Page E-1 of this Registration Statement. ITEM 9. UNDERTAKINGS. A. The undersigned Registrant hereby undertakes: 2 (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the 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 the Registration Statement; and (iii) 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. Provided, however, that paragraph (A)(1)(i) and (A)(1)(ii) do not apply if -------- ------- the Registration Statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference 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 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 that is incorporated by reference in 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 Securities Act of 1933 may be permitted to Directors, officers and controlling persons of the Company pursuant to the foregoing provisions described under Item 6 above, or otherwise, the Company 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 of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a Director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. 3 SIGNATURES Pursuant to the requirements of the Securities Act, 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, hereunto duly authorized, in the City of Tucson, State of Arizona, on this 19th day of September, 2001. VENTANA MEDICAL SYSTEMS, INC. By:/s/ Nicholas A. Malden ------------------------------- Nicholas A. Malden Chief Financial Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Nicholas A. Malden and Christopher M. Gleeson and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all 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 said attorney-in-fact, or his 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 by the following persons in the capacities indicated:
SIGNATURE TITLE DATE --------- ----- ---- /s/ Christopher M. Gleeson President, Chief Executive Officer and Director September 19, 2001 --------------------------- (Principal Executive Officer) Christopher M. Gleeson /s/ Nicholas A. Malden Chief Financial Officer September 19, 2001 --------------------------- (Principal Financial and Accounting Officer) Nicholas A. Malden /s/ Edward M. Giles Director September 19, 2001 --------------------------- Edward M. Giles /s/ Thomas M. Grogan Director September 19, 2001 --------------------------- Thomas M. Grogan /s/ John Patience Director September 19, 2001 --------------------------- John Patience /s/ Jack W. Schuler Director September 19, 2001 --------------------------- Jack W. Schuler /s/ James R. Weersing Director September 19, 2001 --------------------------- James R. Weersing /s/ Rex J. Bates Director September 19, 2001 --------------------------- Rex J. Bates /s/ Mark C. Miller Director September 19, 2001 --------------------------- Mark C. Miller
4 VENTANA MEDICAL SYSTEMS, INC. REGISTRATION STATEMENT ON FORM S-8 INDEX TO EXHIBITS Exhibit Number Description ------ ----------- 4.1 2001 Outside Director Stock Option Plan with forms of agreements used thereunder 5.1 Opinion of counsel as to legality of securities being registered 23.1 Consent of counsel (contained in Exhibit 5.1 hereto) 23.2 Consent of Ernst & Young LLP 24.1 Powers of Attorney (contained in signature pages on page 4 of this registration statement) E-1 EX-4.1 3 dex41.txt DIRECTOR STOCK OPTION PLAN EXHIBIT 4.1 VENTANA MEDICAL SYSTEMS, INC. 2001 OUTSIDE DIRECTOR STOCK OPTION PLAN 1. INTRODUCTION 1.1 Purpose. This plan shall be known as the Ventana Medical Systems, Inc. 2001 Outside Director Stock Option Plan (the "Plan"). The purpose of this Plan is to promote the growth and development of Ventana Medical Systems, Inc. (the "Company") by providing increased incentives for the directors of the Company. The Plan is to help the Company to attract and retain the best available individuals to serve as non-employee members of the Board, to reward such directors for their contributions to the Company, and to maximize the identity of interest between such directors and the Company's stockholders generally. This Plan provides for the granting of non-qualified stock options. 1.2 Effective Date. The effective date of the Plan shall be January 22, 2001, subject to approval of the Plan by the shareholders of the Company. Options granted prior to such shareholder approval shall be expressly conditioned upon such shareholder approval of the Plan. 1.3 Compliance with Rule 16b-3. It is intended that the Plan and its operation comply with the provisions of Rule 16b-3 under the Securities Exchange Act of 1934 (or any successor rule). If any provision of the Plan or any grant hereunder would disqualify the Plan or such grant under, or would not comply with, Rule 16b-3 (or any successor rule), such provision or grant shall be construed or deemed amended to conform to Rule 16b-3. 2. PLAN DEFINITIONS 2.1 Definitions. For Plan purposes, except where the context clearly indicates otherwise, the following terms shall have the meanings set forth below: 2.1.1 "Board" shall mean the Board of Directors of the Company. 2.1.2 "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. 2.1.3 Commission means the Securities Exchange Commission or any successor agency. 2.1.4 "Committee" shall mean the Compensation Committee of the Board, as described in Paragraph 4.1, "Administration." 2.1.5 "Company" shall mean Ventana Medical Systems, Inc., a Delaware 1 corporation, or any successors as provided in Paragraph 6.9, "Successors." 2.1.6 "Company Stock" shall mean Common Stock of the Company, par value $.001 per share, and such other stock and securities that may be substituted for the Common Stock under Paragraph 3.2, "Changes in Company Stock." 2.1.7 "Consultant" shall mean a non-employee of the Corporation who provides services to the Company and who is designated as a Consultant by the Board. 2.1.8 "Director" shall mean any person who is elected or appointed to the Board. 2.1.9 "Fair Market Value" on any date shall mean, with respect to Company Stock, if the stock is then listed and traded on a registered national securities exchange, or is quoted in the Nasdaq National Market System, the mean of the high and low sale prices recorded in composite transactions as reported in the Wall Street Journal. In the absence of reported sales on such date, or if the stock is not so listed or quoted, but is traded in the over-the-counter market, "Fair Market Value" shall be the mean of the closing bid and asked prices for such shares on such date as reported in the Wall Street Journal, or, if not so reported as obtained from a bona fide market maker in such shares. In the absence of an established market for the Common Stock, the Fair Market Value of the Common Stock shall be determined by the Board. 2.1.10 "Exchange Act" means the Securities and Exchange Act of 1934, as amended, from time to time, and the rules and regulations promulgated thereunder. 2.1.11 "Exercise Price" shall mean, with respect to each share of Company Stock subject to the Option granted, the Fair Market Value on the date of grant. 2.1.12 "Optionee" shall mean any person who has been granted an Option under the Plan. 2.1.13 "Option" shall mean a right to purchase Company Stock granted pursuant to the Plan. 2.1.14 "Outside Director" means a member of the Board who qualifies as a "Non-Employee Director," as defined in Rule 16b-3, as promulgated by the Commission under the Exchange Act or any successor definition adopted by the Commission. 3. SHARES SUBJECT TO OPTION 3.1 Available Shares. The total number of shares of Company Stock that may be issued under the Plan shall in the aggregate not exceed five hundred thousand (500,000). Shares subject to and not issued under an Option that expires, terminates, is canceled or forfeited for any reason under the Plan shall again become available for the granting of Options. 2 3.2 Changes in Company Stock. If any stock dividend is declared upon the Company Stock, or if there is any stock split, stock distribution, or other recapitalization of the Company with respect to the Company Stock, resulting in a split or combination or exchange of shares, the aggregate number and kind of shares which may thereafter be offered under the Plan shall be proportionately and approximately adjusted and the number and kind of shares then subject to Options granted to employees under the Plan and the per share Option price therefor shall be proportionately and appropriately adjusted, without any change in the aggregate purchase prices to be paid therefor. 4. ADMINISTRATION 4.1 Administration. The Plan shall be administered by the Board, the Compensation Committee of the Board, or such other committee of the Board as the Board may from time to time determine (all of the foregoing are collectively referenced to as "the Committee"). The Committee shall be constituted so as to permit the Plan to comply with the provisions of Rule 16b-3 under the Exchange Act or any successor rule. 4.2 Committee Powers. 4.2.1 The Committee is empowered to adopt such rules, regulations and procedures and take such other action as it shall deem necessary or proper for the administration of the Plan and, in its discretion, may modify, extend or renew any Option theretofore granted. The Committee shall also have authority to interpret the Plan, and the decision of the Committee on any questions concerning the interpretation of the Plan shall be final and conclusive. The Committee may consult with counsel, who may be counsel for the Company, and shall not incur any liability for any action taken in good faith in reliance upon the advice of counsel. 4.2.2 Subject to the provisions of the Plan, the Committee shall have full and final authority to: 4.2.3 designate the Outside Directors and Consultants to whom Options shall be granted; 4.2.4 grant Options in such form and amount as the Committee shall determine; 4.2.5 impose such limitations, restrictions and conditions upon any such Option as the Committee shall deem appropriate; and 4.2.6 waive in whole or in part any limitations, restrictions or conditions imposed upon any such Option as the Committee shall deem appropriate. 3 5. STOCK OPTIONS 5.1 General. Each option granted under the Plan shall be a nonqualified stock option. The option grant shall be evidenced by a stock option agreement between the Company and the Optionee, which shall contain the terms and conditions required by this Article 5 and such other terms and conditions, consistent with the Plan, as the Committee may deem appropriate in each case. The provisions of option grants need not be the same with respect to each recipient. The Options granted under this Plan shall be subject to adjustment under Paragraph 5.6, "Merger, Consolidation or Reorganization." 5.2 Date Option Granted. For purposes of the Plan, a stock option shall be considered as having been granted on the date on which the Committee authorized the grant of the Option, except where the Committee has designated a later date, in which event the later date shall constitute the date of grant of the Option; provided, however, that in either case notice of the grant of the Option shall be given to the Optionee within a reasonable time. 5.3 Option Price. The price at which each share of Company Stock covered by an Option may be purchased shall be one hundred percent (100%) of the Fair Market Value of the Company Stock on the date the Option is granted. 5.4 Period for Exercise. Unless otherwise determined by the Committee, each Option granted shall have a term expiring on the tenth anniversary of the date on which it was granted (the "Expiration Date"), subject to early expiration as provided in Paragraph 5.5, "Early Expiration." Each Option granted under the Plan may be exercised by the Optionee, in whole or in part, at any time prior to its Expiration Date to the extent that it is vested. 5.5 Early Expiration. If an Optionee ceases to serve as an Outside Director, any unvested portion of the Option shall expire on the date on which the Optionee ceases to serve as an Outside Director, subject to this Paragraph 5.5, "Early Termination," and Paragraph 5.10, "Change of Control." The vested portion of the Option shall expire or remain exercisable in accordance with this Paragraph 5.5, "Early Termination." 5.5.1 If the service of an Optionee as an Outside Director ceases because of death or disability, as such disability is determined by the Board, the Option, whether or not vested or exercisable at the time of such termination, shall vest and be exercisable in full at any time prior to the Expiration Date by the personal representative of the Optionee's estate or the person or persons to whom the Option is transferred by will or the laws of decent and distribution, or by the Optionee or the Optionee's designated representative in the event of the Optionee's disability. 5.5.2 If the service of any Optionee as an Outside Director ceases for any reason other than death, disability or any of the matters set forth in Paragraph 5.5.4 below and provided the Board determines that the Outside Director had discharged his duties as a Director in a manner acceptable to the Board, then the Optionee may exercise the Option to the extent that it had vested as of the date of the Outside Director's termination through the Expiration Date; 4 5.5.3 If the service of an Optionee as an Outside Director ceases for any reason other than death, disability or any of the matters set forth in Paragraph 5.5.4 and the Board determines that the Optionee had failed to discharge his duties as a Director in a manner acceptable to the Board, then the Optionee may exercise the Option to the extent it had vested as of the date of termination of the Outside Director's service for a period of thirty (30) days from the date of termination; and 5.5.4 If the Optionee is terminated as an Outside Director by the Board for (i) misconduct, which includes, but is not limited to, any act of dishonesty, moral turpitude, fraud or embezzlement, (ii) unauthorized use of any disclosure of confidential information or trade secrets of the Company, or (iii) acting in such a manner deemed by the Board not in the best interest of the Company, then, notwithstanding any other provision in the Plan to the contrary, the Option shall immediately expire and cease to be outstanding. 5.6 Method of Exercise. Each Option may be exercised in whole or in part from time to time as specified in the Stock Option Agreement. Each Optionee may exercise an Option by giving written notice of the exercise to the Company, specifying the number of shares to be purchased, accompanied by payment in full of the purchase price therefor. The purchase price may be paid in cash, by check, or, with the approval of the Committee, by delivering shares of Company Stock that have been beneficially owned by the Optionee, the Optionee's spouse, or both of them for a period of at least six months prior to the time of exercise ("Delivered Stock") or a combination of cash and Delivered Stock. Delivered Stock shall be valued at its Fair Market Value determined as of the date of exercise of the Option. No Optionee shall be under any obligation to exercise any Option hereunder. An Optionee shall not have any rights of a stockholder with respect to the shares subject to the Option until such shares shall have been delivered to the Optionee. 5.7 Merger, Consolidation or Reorganization. In the event of a merger, consolidation or reorganization with another corporation in which the Company is not the surviving corporation, the Committee may, subject to the approval of the Board of Directors of the Company, or the board of directors of any corporation assuming the obligations of the Company hereunder, take action regarding each outstanding and unexercised Option pursuant to either Paragraph 5.7.1 or 5.7.2 below: 5.7.1 Appropriate provision may be made for the protection of such Option by the substitution on an equitable basis of appropriate shares of the surviving corporation, provided that the excess of the aggregate Fair Market Value of the shares subject to such Option immediately before such substitution over the exercise price thereof is not more than the excess of the aggregate fair market value of the substituted shares made subject to Option immediately after such substitution over the exercise price thereof; or 5.7.2 The Committee may cancel such Option. In such event, the Company, or the corporation assuming the obligations of the Company hereunder, shall pay the Optionee an amount of cash (less normal withholding taxes) equal to the excess of the highest Fair Market Value per 5 share of the Company Stock during the 60-day period immediately preceding the merger, consolidation or reorganization over the Option exercise price, multiplied by the number of shares subject to such Option. 5.8 Withholding Taxes. Pursuant to applicable federal and state laws, the Company is or may be required to collect withholding taxes upon the exercise of an Option or the lapse of stock restrictions. The Company may require, as a condition to the exercise of an Option or the issuance of a stock certificate, that the Optionee concurrently pay to the Company (either in cash or, at the request of Grantee but in the discretion of the Committee and subject to such rules and regulations as the Committee may adopt from time to time, in shares of Delivered Stock) the entire amount or a portion of any taxes which the Company is required to withhold by reason of such exercise or lapse of restrictions, in such amount as the Committee or the Company in its discretion may determine. In lieu of part or all of any such payment, the Optionee may elect, subject to such rules and regulations as the Committee may adopt from time to time, or the Company may require that the Company withhold from the shares to be issued that number of shares having a Fair Market Value equal to the amount which the Company is required to withhold. 5.9 Conditions Upon Issuance of Shares. The Plan, the grant, the exercise of Options and the obligations of the Company shall be subject to all applicable federal and state laws, rules and regulations, and to such approvals by any regulatory or governmental agency as may be required. The Company shall not be required to issue or deliver any certificate or certificates for shares of the Company Stock prior to (i) the admission of such shares to listing on any stock exchange on which the Company Stock may then be listed, and (ii) the completion of any registration or other qualification of such shares under any state or federal law (including, without limitation, the Securities Act of 1933, as amended, and the Exchange Act), or rulings or regulations of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable. 5.10 Change of Control. 5.10.1 If a Change of Control, as defined below, occurs during the term of an Option, each outstanding Option shall 5.10.1.1 be assumed or an equivalent option or right be substituted by the successor corporation or by a parent or subsidiary of the successor corporation; and 5.10.1.2 fully vest and the Optionee shall have the right to exercise the Option in full if the Optionee ceases to serve as an Outside Director for any reason within 24 months of a Change of Control, including Shares as to which the Optionee would not otherwise be vested or exercisable, provided that the Option shall not vest and be exercisable if the Optionee ceases to be an Outside Director for any of the reasons set forth in Paragraph 5.5.4. 5.10.2 For the purposes of this Paragraph 5.10, "Change of Control" shall mean an event or the last of a series of related events by which: 6 5.10.2.1 any Person directly or indirectly acquires or otherwise becomes entitled to vote stock more than 50% of the voting power in elections for Directors of the Company; or 5.10.2.2 during any 24-month period a majority of the members of the Board ceases to consist of Directors who were: 5.10.2.2.1 Directors at the beginning of the period ("Continuing Directors"), or 5.10.2.2.2 appointed to office after the start of the period by the Board with the approval of two-thirds of the incumbent Continuing Directors ("Appointed Directors"); or 5.10.2.2.3 elected to office after the start of the period by the stockholders following nomination for election by the Board with the approval of two-thirds of the incumbent Continuing Directors ("Elected Directors"); or 5.10.2.2.4 appointed to office after the start of the period by the Board of Directors with the approval of two-thirds of the incumbent Continuing, Appointed and Elected Directors; or 5.10.2.2.5 elected to office after the start of the period by the Company's stockholders following nomination for election by the Board with the approval of two-thirds of the incumbent Continuing, Appointed and Elected Directors; or 5.10.2.3 the Company merges or consolidates with another corporation, and holders of outstanding shares of the Common Stock immediately prior to the merger or consolidation do not own stock in the survivor of the merger or consolidation having more than 51% of the voting power in elections for Directors; or 5.10.2.4 the Company sells all or a substantial portion of the consolidated assets of the Company and its subsidiaries, and the Company does not own stock in the purchaser having more than 51% of the voting power in elections for Directors. 5.10.2.5 As used in this Paragraph 12, a "Person" means any "person" as that term is used in Paragraphs 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, together with all of that person's "affiliates" and "associates," as those terms are defined in Rule 12b-2 of such Act. 5.10.2.6 The following events shall not constitute a "Change of Control": 5.10.2.6.1 sale of securities by the Company; 7 5.10.2.6.2 any acquisition by the Company of another corporation, business or entity; or 5.10.2.6.3 any acquisition of the Company by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company. 6. GENERAL 6.1 Nontransferability. No Option shall be transferable by an Optionee otherwise than by will or the laws of descent and distribution, provided that in accordance with Internal Revenue Service guidance, the Committee, in its discretion, may grant Options that are transferable, without payment of consideration, to family members of the Optionee or to trusts or partnerships for such family members. The Committee may also amend outstanding stock options to provide for such transferability. In the event of the Optionee's death, the Optionee's beneficiary designated pursuant to Paragraph 6.10, "Beneficiary Designation," or in the absence of any such designation, the personal representative of the Optionee's estate or the person or persons to whom the option is transferred by will or the laws of descent and distribution may exercise the option in accordance with its terms. 6.2 General Restriction. Each Option shall be subject to the requirement that if at any time the Board or the Committee shall determine, in its discretion, that the listing, registration, or qualification of securities upon any securities exchange or under any state or federal law, or the consent or approval of any government regulatory body, is necessary or desirable as a condition of, or in connection with, the granting of such Option or the issue or purchase of securities thereunder, such Option may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board or the Committee. 6.3 No Promise of Continued Service as a Director. Nothing in the Plan or in any Option granted under the Plan shall confer on any director any right to continue as a director of the Company or affect the right of the Company to terminate his or her service to the Company at any time. 6.4 Expiration and Termination of the Plan. The Plan will terminate on January 21, 2011, except as to Options then outstanding under the Plan, which Options shall remain in effect until they have been exercised, the restrictions have lapsed or the Options have expired or been forfeited. The Plan may be abandoned or terminated at any time by the Board, except with respect to any Options then outstanding under the Plan. 6.5 Amendments, Modification and Termination. The Board may from time to time amend, modify, suspend or terminate the Plan; provided, however, that no such action shall be made without shareholder approval where such change would be required in order to comply with Rule 16b-3 under the Exchange Act, or any successor rule, or the Code. Subject to the terms and 8 conditions and within the limitations of the Plan, the Committee may modify, extend or renew outstanding Options granted under the Plan, accept the surrender of outstanding Options (to the extent not theretofore exercised), reduce the exercise price of outstanding Options, or authorize the granting of new Options in substitution therefor (to the extent not theretofore exercised). Notwithstanding the foregoing, no modification of an Option (either directly or through modification of the Plan) shall, without the consent of the Optionee, alter or impair any rights of the Optionee under the Option. 6.6 Plan Expense. Any expenses of administering this Plan shall be borne by the Company. 6.7. Construction of Plan. The place of administration of the Plan shall be in the State of Arizona, and except as otherwise required by applicable federal laws, the Plan shall be governed by, and construed in accordance with, the laws of the State of Arizona. The validity, construction, interpretation, administration and effect of the Plan and of its rules and regulations, and rights relating to the Plan, shall be determined in accordance with the laws of the State of Arizona. 6.8 Gender. For purposes of this Plan, words used in the masculine gender shall include the feminine and neuter, and the singular shall include the plural and vice versa, as appropriate. 6.9 Successors. All obligations of the Company under the Plan shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company. 6.10 Beneficiary Designation. Each Optionee may, from time to time, name any beneficiary or beneficiaries (who may be named continently or successively) who shall be entitled to exercise his or her options in accordance with their terms in the event of his or her death before he or she exercises all of his or her outstanding options. Each such designation shall revoke all prior designations by the same Optionee, shall be in a form prescribed by the Company, and will be effective only when filed by the Optionee in writing with the Secretary of the Company during the Optionee's lifetime. 9 EX-5.1 4 dex51.txt OPINION OF QUARLES & BRADY, STRETCH LANG EXHIBIT 5.1 [QUARLES & BRADY, STREICH LANG L.L.P.] September 19, 2001 Ventana Medical Systems, Inc. 3865 North Business Center Drive Tucson, AZ 85705 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We are familiar with the proceedings taken and proposed to be taken by Ventana Medical Systems, Inc., a Delaware corporation (the "Company"), with respect to 500,000 shares of Common Stock, par value $.001 per share (the "Shares"), of the Company to be offered and sold from time to time pursuant to the Company's 2001 Outside Director Stock Option Plan (the "Plan"). As counsel for the Company, we have assisted in the preparation of a Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission to effect the registration of the Shares under the Securities Act of 1933, as amended. In this connection, we have examined the Certificate of Incorporation and By-Laws of the Company, records of proceedings of the Board of Directors and stockholders of the Company, and such other records and documents as we have deemed necessary or advisable to render the opinion contained herein. Based upon our examination and inquiries, we are of the opinion that the Shares, when issued pursuant to the terms and conditions of the Plan, will be duly authorized, validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement described above. Very truly yours, Christian J. Hoffmann, III For the Firm EX-23.2 5 dex232.txt CONSENT OF ERNST & YOUNG EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2001 Outside Direct Stock Option Plan of Ventana Medial Systems, Inc. of our report dated January 25, 2001, with respect to the consolidated financial statements of Ventana Medical Systems, Inc. included in its Annual Report (Form 10K) for the year ended December 31, 2000 and our report dated January 25, 2001 on the financial statement schedule included therein, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Phoenix, Arizona September 19, 2001