As filed with the Securities and Exchange Commission on June 10, 2004
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAS MEDICAL SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1123096
(State or other juris- (I.R.S. Employer
diction of incorporation Identification
or organization) Number)
44 East Industrial Road
Branford, Connecticut 06405
(203) 488-6056
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(Address, including zip code, and telephone number, including area code, of registrant's principal executive offices)
CAS MEDICAL SYSTEMS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
Louis P. Scheps
Chairman of the Board, President and Chief Executive Officer CAS Medical Systems, Inc. 44 East Industrial Road Branford, Connecticut 06405 (203) 488-6056
(Name, address and telephone number, including area code, of agent for service)
Copies of all communications, including all communications sent to the agent for service, should be sent to:
Michael Grundei, Esq.
Wiggin and Dana LLP
400 Atlantic Street
Stamford, Connecticut 06901
(203) 363-7600
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share (2) Offering Price Registration Fee
--------------------------- ----------------- ------------------- ------------------- ------------------
Common Stock, $0.004 par
value per share........ 150,000 shares $1.31 $196,500.00 $25.00
========================================================================================================
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(1) Plus such additional indeterminable number of shares as may be required
pursuant to the CAS Medical Systems, Inc. Employee Stock Purchase Plan
in the event of a stock dividend, stock split, recapitalization or other
similar change in the Common Stock. In addition, pursuant to Rule 416(c)
under the Securities Act of 1933, this registration statement also
covers an indeterminate amount of interests to be offered or sold
pursuant to the CAS Medical Systems, Inc. Employee Stock Purchase Plan.
(2) Computed in accordance with Rules 457(c) and 457(h) under the Securities
Act of 1933, as amended, such computation is based on $1.31 per share
(85% of the average of the bid and asked prices of the registrant's
common stock as reported on the OTC Bulletin Board on June 4, 2004).
Pursuant to the CAS Medical Systems, Inc. Employee Stock Purchase Plan,
shares are sold at 85% of the lesser of the fair market value of such
shares on the first day of an offering period or the last day of the
applicable purchase period.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the rules and regulations of the Securities and Exchange Commission (the "Commission"), the documents containing the information called for in Part I of Form S-8 will be sent or given to individuals who participate in the CAS Medical Systems, Inc. Employee Stock Purchase Plan and are not being filed with or included in this Form S-8.
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission (the "Commission") by CAS Medical Systems, Inc. (the "Registrant" or the "Company") pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act") (File No. 0-13839), are incorporated by reference herein:
(a) The Company's Annual Report on Form 10-KSB for the year ended December 31, 2003.
(b) The Company's Quarterly Report on Form 10-QSB for the three-month period ended March 31, 2004.
(c) The Company's Proxy Statement filed on April 22, 2004.
(d) The Company's Current Reports on Form 8-K filed on February 20, 2004 and April 26, 2004.
(e) The description of the Company's Common Stock contained in the Company's Registration Statement on Form S-18 filed March 7, 1985.
In addition to the foregoing, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-effective amendment indicating that all of the securities offered hereunder have been sold or deregistering 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. Any statement contained in a document incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that is also incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
The Registrant will provide, without charge to each person, including any beneficial owner, to whom this document is delivered, upon written or oral request of such person, a copy of any or all of the documents incorporated herein by reference (other than exhibits, unless such exhibits specifically are incorporated by reference into such documents or this document). Requests for such documents should be submitted in writing, addressed to the office of the Corporate Secretary, CAS Medical Systems, Inc., 44 East Industrial Road, Branford, Connecticut 06405.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the "Delaware Law") empowers a Delaware corporation to indemnify any persons who are, or are threatened to be made, parties to any pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer or director of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such officer or director acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests, and, for criminal proceedings, had no reasonable cause to believe his conduct was illegal. A Delaware corporation may indemnify officers and directors against expenses (including attorney's fees) in connection with the defense or settlement of an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such an officer or director actually and reasonably incurred.
The registrant's Restated Certificate of Incorporation, as amended, and Bylaws provide for indemnification of each officer and director of the registrant to the fullest extent permitted by Delaware Law. Section 145 of the Delaware Law also empowers corporations to purchase and maintain insurance on behalf of any person who is or was an officer or director of the corporation against liability asserted against or incurred by him in any such capacity, whether or not the corporation would have the power to indemnify such officer or director against such liability under the provisions of Section 145. The registrant has purchased and maintains a directors' and officers' liability policy for such purposes.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Exhibit
No. Description
--- -----------
4.1 Amended and Restated Certificate of Incorporation (incorporated by
reference to the Registrant's Registration Statement, dated April 15,
1985)
4.2 Amended and Restated By-laws (incorporated by reference to Exhibit 3.2
to the Company's Form 10-KSB filed March 29, 2004)
4.3 CAS Medical Systems, Inc. Employee Stock Purchase Plan
5.1 Opinion of Wiggin and Dana LLP
23.1 Consent of Independent Registered Public Accounting Firm
23.2 Consent of Wiggin & Dana LLP (filed as part of Exhibit 5)
23.3 Information Regarding Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on the signature page hereof)
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
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(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference into this registration statement;
(2) That, for the purpose of determining any liability under the 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; and
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the 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 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.
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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 Branford, State of Connecticut, on this 10th day of June, 2004.
CAS MEDICAL SYSTEMS, INC.
By: /s/ Louis P. Scheps
--------------------------------
Louis P. Scheps
Chairman of the Board, President and
Chief Executive Officer
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Louis P. Scheps and Jeffery A. Baird and each of them his or her true and lawful attorneys-in-fact and agents, each acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, including post-effective amendments, and to file the same, with all exhibits thereto, and all 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 and about the premises, as fully to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all that said attorneys-in-fact and agents, each acting alone, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Louis P. Scheps Chairman of the Board, President, June 10, 2004
------------------------- Chief Executive Officer and
Louis P. Scheps Director (principal executive
officer)
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/s/ Jeffery A. Baird Chief Financial Officer June 10, 2004 ------------------------- (principal financial officer) Jeffery A. Baird /s/ Lawrence Burstein Director June 10, 2004 ------------------------- Lawrence Burstein /s/ Jerome Baron Director June 10, 2004 ------------------------- Jerome Baron /s/ Saul Milles Director June 10, 2004 ------------------------- Saul Milles |
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INDEX TO EXHIBITS
Exhibit No. Description --- ----------- 4.1 Amended and Restated Certificate of Incorporation* 4.2 Amended and Restated By-laws* 4.3 CAS Medical Systems, Inc. Employee Stock Purchase Plan 5.1 Opinion of Wiggin and Dana LLP 23.1 Consent of Independent Registered Public Accounting Firm 23.2 Consent of Wiggin and Dana LLP (filed as part of Exhibit 5) 23.3 Information Regarding Consent of Arthur Andersen LLP 24.1 Power of Attorney (included on the signature page hereof) --------------------- |
* Incorporated herein by reference
CAS MEDICAL SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. INTRODUCTION
The CAS Medical Systems, Inc. Employee Stock Purchase Plan (the "Plan") is designed to provide Eligible Employees with the opportunity to own common stock ("Common Stock") in CAS Medical Systems, Inc. (the "Company") through a payroll-deduction based employee stock purchase plan, thereby stimulating Eligible Employees' interest in the growth and prosperity of the Company.
The Plan is intended to be a qualified employee stock purchase plan under Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, and the Plan shall be construed in accordance with such purpose.
2. ELIGIBLE EMPLOYEES
An "Eligible Employee" is any person (i) who is an employee of the Company or a U.S. subsidiary of the Company designated as a "participating subsidiary" (each such entity being referred to as a "Participating Employer") by the Company's Compensation Committee (the "Committee") and (ii) who is customarily employed for at least twenty (20) hours a week as of the Initial Payroll Deduction Date (as defined below). An Eligible Employee shall be eligible to purchase Common Stock under this Plan in accordance with the terms of the Plan.
Any provision of this Plan to the contrary notwithstanding, no otherwise Eligible Employee shall be granted a Purchase Right under this Plan:
(a) if, immediately after the grant such Eligible Employee would own shares and/or hold outstanding Purchase Rights to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the company or any subsidiary of the Company; or
(b) that permits the Eligible Employee to purchase more than $25,000 worth of Common Stock (or such greater amount as may be then permitted by Section 423, or any successor provision, of the Code), based on the Fair Market Value of the Shares determined at the time such Purchase Right is granted, for each calendar year in which such Purchase Rights are outstanding under all employee stock purchase plans of the Company and its subsidiaries; or
(c) that permits the Eligible Employee to purchase more than 1,500 shares during any Offering Period.
An Eligible Employee who elects to participate as provided in Paragraph 4 shall be a referred to as a "Participant".
3. OFFERING
While the Plan is in effect, two Offering Periods shall commence in each calendar year, unless otherwise determined by the Committee. The Offering Periods shall consist of the six-month periods commencing on each January 1 and July 1, except that the first offering period shall, unless otherwise determined by the Committee, commence on July 1, 2004 and extend through December 31, 2004. The first day of the Offering Period shall be known as the "Offering Date".
For each Offering Period, the last business day of the term of the
Offering Period shall be the date of exercise (the "Purchase Date") unless the
Committee determines otherwise. For each Offering, the purchase price per share
of stock (the "Purchase Price" or "Exercise Price") will be the lower of the
average of the high and low price of the Common Stock on the OTC Bulletin Board
(the "Average Price") on (i) the Offering Date or (ii) the Purchase Date, less
fifteen percent (15%) (the "Discount"). Notwithstanding the foregoing, the
Committee may determine in its discretion and in advance of the commencement of
the Offering Period that a smaller Discount shall apply. In no event shall the
Committee determine a Purchase Price that is less than the lowest price that
employee stock purchase plans are permitted to establish under Section 423 (or
any successor provision) of the Code nor shall a Purchase Right granted under
this Plan be exercisable for a period of time longer than that permitted under
Section 423 (or any successor provision) of the Code.
The Committee shall in its discretion determine the terms and conditions under which each Offering shall be made and shall authorize and determine in advance of the Offering the aggregate number of shares of Common Stock that may be issued pursuant to each Offering. The Committee shall determine the exact number of shares of Common Stock utilized in each Offering and shall report such information to the Treasurer or his or her delegate. The terms of such Offering shall comply in all respects with Section 423 of the Code, including the Purchase Price and the duration of the exercise period for such Offering.
Notice of each Offering will be given to Eligible Employees with full details as to the aggregate number of shares offered, the Purchase Price per share for the Offering, the restrictions on the maximum number of shares purchasable by the Participant with respect to each Offering Period, the amount of payroll deductions to be made, and any pro rata reduction required in accordance with Paragraph 5.
Under the terms of this Plan, all Eligible Employees granted a Purchase Right pursuant to an Offering shall have the same rights and privileges with respect to such Purchase Right, except that the number of shares of Common Stock that may be purchased by any Eligible Employee will be based on his or her total Payroll Deductions during the Offering Period.
4. PAYROLL DEDUCTIONS; PURCHASE OF COMMON STOCK
An Eligible Employee may become a Participant in the Plan by filing
on or before the Offering Date of an Offering a completed Stock Purchase form
provided by the Company (i) authorizing Payroll Deductions (as described herein)
and (ii) subscribing to purchase that number of shares of Common Stock
purchasable based on the total Payroll Deductions deducted with respect to the
Offering Period and the Purchase Price determined in accordance with Paragraph
3. Any such Stock Purchase form pursuant to this Paragraph 4 shall remain in
effect for subsequent Offerings unless such Participant completes and files a
new Stock Purchase form and Payroll Deduction authorization, which shall be
applied only to future Offerings. A Participant may cancel his participation in
any Offering in accordance with Paragraph 8.
(a) Eligible Employees may elect to authorize their Participating Employer to make Payroll Deductions from Compensation in terms of either whole percentage amounts or whole dollar amounts (subject to any minimum percentage or dollar amount per payroll period that the Committee shall establish); provided, however, that no Payroll Deduction for any Offering Period shall exceed ten percent (10%) percent of a Participant's Compensation during the period that begins on the Offering Date and ends on the Purchase Date.
"Compensation" shall mean a Participant's base salary earnings for the Offering Period, except that, with respect to Participants paid partially or entirely on commission, "Compensation" shall mean such Participant's Average Benefit Base Rate of compensation for the Offering Period. "Average Benefit Base Rate" shall equal an amount, determined by taking the prior year's year regular earnings from January 1 through August 31 of such year, plus commissions for the same period, divided by 8 and multiplied by the number of months in the Offering Period.
(b) Unless the Committee shall specify otherwise, deductions shall begin in the first pay period commencing after the Offering Date (the "Initial Payroll Deduction Date"). All Payroll Deductions may be used by the Company for general corporate purposes. A separate bookkeeping account ("Book Account") shall be maintained by the Company for each Participant, and the amount of each Participant's Payroll Deductions shall be credited to such account. Except as provided in Paragraph 9, no interest shall be paid on the balance of the Employee's Book Account. Payroll Deductions shall not be held in any segregated account or trust fund and may be commingled with the general assets of the Company and used for general corporate purposes.
(c) Unless the Committee shall specify otherwise, each Participant will be granted an allotment for the number of shares of Common Stock which are purchasable, computed as the aggregate Payroll Deduction designated by such Participant on such Participant's Stock Purchase form to be deducted during the term of the Offering divided by the Purchase Price (determined in accordance with Paragraph 3), subject to the provisions of Paragraph 5 below. If such amount does not result in a whole number of shares of Common Stock, the number of shares will be decreased to the next lowest whole number.
(d) Unless an Employee exercises his right to cancel and makes a request of the Committee prior to the Purchase Date to withdraw his Book Account in cash, the amount of an Employee's Book Account shall automatically be used to exercise his Purchase Right on the Purchase Date. The Employee's Purchase Right will be exercised, in purchases of whole shares of Common Stock, to the extent of the amount in the Employee's Book Account; provided, however, the Employee is not limited in the exercise of his Purchase Right to the amount credited to his Book Account. The Employee may supplement the amount of his Book Account to exercise his Purchase Right (for the number of shares of Common Stock that the Employee had elected to purchase during the Offering Period pursuant to Paragraph 4) by paying cash and/or tendering Shares (if permitted) to the Plan Administrator.
(e) Any Payroll Deductions not applied to the purchase of Shares on the Purchase Date (because not sufficient to purchase whole Shares) shall remain in the Participant's Book Account for the purchase of shares of Common Stock under the next Offering, unless such Participant withdraws from such next Offering, or is not eligible to participate in such Offering (including because of his premature disposition of Shares acquired under the Plan under subparagraph (f) below), in which case such amount shall be distributed in cash to the Participant after the Purchase Date without interest. Any Payroll Deductions not applied to the purchase of shares of Common Stock by reason of the limitation on the maximum number of Shares purchasable by an Employee on the Purchase Date shall be promptly returned in cash to the Employee without interest.
(f) If a Participant Disposes of Shares acquired under this Plan prior to having held such Shares for a twelve (12) month period from the Purchase Date, then the Participant shall be ineligible to purchase additional shares under any Offering in effect as of the date of disposition, any Payroll Deductions taken with respect to the Offering Period for such Offering shall be returned in accordance subparagraph (e), and the Participant shall further be ineligible to participate in the purchase of Shares during the next succeeding Offering Period.
5. OVERSUBSCRIPTIONS
In the event the number of shares for which subscriptions are received exceeds the number of shares offered as determined under Paragraph 3, the number of shares allotted to each Participant will be proportionately reduced.
6. RIGHTS AS A STOCKHOLDER
A Participant will have none of the rights or privileges of a stockholder of the Company until the full purchase price of such Participant's shares has been paid and such shares of Common Stock have been issued to the Participant and recorded in the books of the Company (or its transfer agent).
7. ISSUANCE OF STOCK
Unless a Participant cancels such Participant's Purchase Right as provided below, it will be exercised and become an obligation to take the shares of Common Stock as of the Purchase Date. Within a reasonable time after the Purchase Date, the number of shares purchased by a Participant, determined as provided in Paragraph 4, will be credited to such Participant.
The shares will be issued in the name of the employee or, upon such employee's request, jointly in such employee's name and that of a family member as specified on such employee's Stock Purchase Registration form.
The Committee, in its discretion, may impose restrictions on the transferability of shares of Common Stock acquired pursuant to this Plan, and may cause to be placed on all stock certificates, other evidences of ownership, legends or other indicators setting forth any such restrictions on transferability instructing the transfer agent to notify the Company of any transfer of such shares, and may require that any shares acquired pursuant to the Plan be held in the Participants' Book Accounts until the expiration of any restrictions. Such restrictions, if any, shall apply uniformly to all Participants with respect to any Offering.
8. RIGHT TO CANCEL
Prior to the final Payroll Deduction to be made pursuant to any Offering, a Participant may cancel all or any part of such Participant's right to purchase by filing a notice of cancellation with the Company. Promptly after the Company's receipt of such notice, the Participant will receive the Payroll Deductions then credited to his Book Account, without interest thereon. Rights to purchase which have been canceled pursuant to this Paragraph may not be reinstated at a later date. However, the Participant may participate with respect to future Offerings, provided he remains an Eligible Employee.
9. TERMINATION OF EMPLOYMENT
If a Participant (i) dies, (ii) retires on or after reaching age 55 with 10 years of service, or (iii) terminates due to disability (as defined in the Company's long-term disability plan) prior to such Participant's final Payroll Deduction for an Offering, such Participant or such Participant's legal representative may, within a period of three (3) months following the Participant's death or retirement either:
(a) cancel such Participant's Purchase Right and request payment in cash of the entire amount which has been deducted under the Plan plus interest as computed below, or
(b) receive the number of full shares of Common Stock which the Payroll Deductions will purchase, at the Purchase Price, and receive the balance, if any, in cash.
Notice of choice between (a) and (b) above shall be given to the Company in writing and if such notice is not received within the prescribed period, the Company shall act in accordance with (a) above.
If a Participant's employment is otherwise terminated, such Participant's only right will be to receive in cash the amount which has been deducted under the Plan, together with interest, calculated at the average passbook rate (or such other rate as the Committee shall determine), on the average balance of Payroll Deductions credited to such Participant's Book Account during the during the Offering Period up to the Participant's termination date.
A Participant who remains an employee, but whose name is temporarily taken off the payroll because of leave of absence, temporary disability, temporary layoff, military service or for service with another organization to the mutual benefit of the Company and the employee, may cancel such Participant's right to purchase and receive the amounts accumulated to such Participant's credit, or make special arrangements to continue payments, or to suspend them. In the event that the Participant's Payroll Deductions are suspended pursuant to this paragraph, but the Participant nevertheless wishes to exercise his Purchase Right in full, then payment of the Purchase Price must be made not later than the Purchase Date.
10. DESIGNATION OF BENEFICIARY.
(a) A Participant may file a written designation of a beneficiary who is to receive any shares of Common Stock and/or cash, if any from the Participant's Book Account under the Plan in the event of such Participant's death subsequent to the end of an Offering but prior to delivery to the Participant of such shares of Common Stock or cash. In addition, a Participant may file a written designation of a beneficiary who is to receive any cash from the Participant's Book Account under the Plan in the event of such Participant's death during an Offering.
(b) The Participant may change such beneficiary designation at any time by written notice to the Committee. In the event of the death of the Participant and in the absence of a validly designated, surviving, beneficiary under the Plan, the Company shall deliver such shares of Common Stock and/or cash to the executor or administrator of the estate of the Participant, or if none has been appointed, then to the surviving spouse of the Participant or, if none, to such other person as the Company may designate.
11. RIGHTS NOT TRANSFERABLE
No right under this Plan, other than stock issued pursuant to the terms of the Plan not otherwise subject to restrictions on transfer ("Released Stock"), shall be assignable, alienable, saleable, or transferable by a
Participant other than by will or by the laws of descent and distribution. Each right under this Plan shall be exercisable during the Participant's lifetime only by the Participant, or, if permissible under applicable law, by the Participant's guardian or legal representative. No right hereunder (other than Released Stock) may be pledged, alienated, attached, or otherwise encumbered and any purported pledge, alienation, attachment, or encumbrance thereof shall be void and unenforceable against the Company or any affiliate.
12. ADMINISTRATION
The Plan shall be administered by the Compensation Committee (the "Committee") designated by the Board of Directors of the Company to administer the Plan, which committee shall be composed of persons then serving as Directors of the Company. The Committee shall have full authority to:
(i) determine when and how Purchase Rights shall be granted and the provisions of each Offering of such Purchase Rights;
(ii) designate from time to time which subsidiaries of the Company shall be eligible to participate in the Plan;
(iii) construe and interpret the Plan and Purchase Rights granted under the Plan;
(iv) establish rules for the administration of the Plan and make administrative decisions regarding the Plan; and
(v) remedy any defect, or omission or inconsistency in the Plan in a manner and to the extent necessary or expedient to make the Plan fully effective.
All designations, determinations, interpretations, and other decisions made by the Committee under or with respect to the Plan shall be final, conclusive, and binding upon all persons, including the Company, any affiliate, any Participant, any holder or beneficiary of any right of participation, and any employee of the Company or of any affiliate.
The Committee may delegate any one or more of its administrative functions (other than those set forth in (i) and (ii) above) to any individual(s) of its choice, in which case the use of the term "Committee" when used in reference to such functions under the Plan shall refer to such delegatee.
13. ADJUSTMENT UPON CHANGES IN SECURITIES; CORPORATE TRANSACTIONS.
(a) In the event a stock dividend, extraordinary cash dividend, spin-off, split-up, combination, exchange of shares, merger, consolidation, reorganization, recapitalization, or other similar corporate event affects the Common Stock such that an adjustment is required in order to preserve the
benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in its sole discretion, and in such manner as the Committee may deem equitable, adjust the maximum number of shares available under the Plan, the number and kind of shares subject to outstanding rights to purchase, and the terms relating to the purchase price with respect to such outstanding rights and take such other actions as the Committee, in its opinion, deems appropriate under the circumstances.
(b) In the event of a Corporate Transaction, then (i) any surviving or acquiring entity may continue or assume the Purchase Rights outstanding under the Plan or may substitute similar rights (including a right to acquire the same consideration paid to stockholders in the Corporate Transaction) for those outstanding under the Plan, or (ii) if any surviving or acquiring entity does not assume such Purchase Rights or substitute similar rights for Purchase Rights outstanding under the Plan, then the Participants' accumulated Payroll Deductions shall be used to purchase shares of Common Stock immediately prior to the Corporate Transaction under the then ongoing Offering, and the Participants' Purchase Rights under the ongoing Offering shall terminate immediately after such purchase.
14. AMENDMENT OR TERMINATION
The Board of Directors of the Company may, from time to time amend, suspend or discontinue this Plan for the purpose of meeting any changes in legal requirements or for any other purpose permitted by law; provided however that shareholder approval will be required for any amendment that (i) increases the number of shares of Common Stock that can be issued under the Plan (except for any adjustment authorized in Paragraph 12(a), or (ii) changes the corporations whose employees may be offered Purchase Rights under the Plan (except for changes authorized in Paragraph 2(i). The Committee may also amend or alter the Plan from time to time in a manner not inconsistent with the Board's power to amend, suspend or discontinue the Plan.
15. SHARES OF COMMON STOCK SUBJECT TO THE PLAN; SHAREHOLDER APPROVAL
(a) The number of shares of Common Stock that may be purchased through the exercise of Purchase Rights under the Plan shall not exceed one hundred fifty-thousand (150,000) shares. The shares subject to purchase under the Plan may consist, in whole or in part, of authorized but unissued shares, not reserved for any other purpose, or shares acquired by the Plan Administrator in the market. If any Purchase Right or portion thereof terminates for any reason without being exercised, then the shares not purchased under such Purchase Right shall again become available for issuance under the Plan.
(b) The Plan will be submitted for the approval of the Company's shareholders within twelve (12) months before or after the Effective Date. No Purchase Rights may be exercised prior to such shareholder approval. If Company shareholders do not grant such approval, this Plan shall be rendered void and without effect and any Payroll Deductions collected from Participants shall be refunded.
16. DEFINITIONS
Whenever used herein, the following terms shall have the respective meanings set forth below:
"Board" means the Board of Directors of the Company. Any power reserved to the Board hereunder may be exercised by the Committee or by any other duly authorized committee of the Board that the Board may designate from time to time.
"Committee" means the Executive Compensation and Development Committee, or a successor committee, appointed by the Board in accordance with Paragraph 12.
"Company" means CAS Medical Systems, Inc. and any successor thereto.
"Corporate Transaction" means the occurrence, in a singe transaction or in a series of related transactions of any one or more of the following events:
(i) a sale, lease, license or other disposition of all or substantially all of the assets of the Company;
(ii) a sale or other disposition of more than 50% of the outstanding securities of the Company;
(iii) a merger, consolidation or similar transaction following which the Company is the surviving corporation, but the shares of Common Stock outstanding immediately preceding such transaction are converted or exchanged by virtue of the merger, consolidation or similar transaction into other property, whether in the form of cash, securities, or otherwise; or
(iv) a merger, consolidation or similar transaction following which the Company is not the surviving corporation.
"Disposes" means, for purposes of Paragraph 4(f), any sale or disposition of Shares or the withdrawal of Shares from the Book Account maintained for a Participant by the Plan Administrator.
"Effective Date" means July 1, 2004.
"Fair Market Value" means, on any date, the average of the high and the low price of a share of Common Stock as reported on the OTC Bulletin Board, or any other established stock exchange on which the Common Stock is traded.
"Offering" means the grant to Eligible Employees of Purchase Rights to purchase shares of Common Stock under the Plan.
"Offering Date" means the date selected by the Committee for an Offering to commence, which unless otherwise specified by the Committee shall be January 1 and July 1 of each year. The Offering Date shall be the date on which the Purchase Right is granted in accordance with Treasury Regulation Section 1.421-7(c)(1).
"Plan Administrator" means the Committee, unless the Committee has delegated the particular administrative function to another person in accordance with Paragraph 12, in which case "Plan Administrator" shall refer to that person as regards that particular function.
"Purchase Date" means the date on which Purchase Rights granted under the Plan shall be exercised and as of which purchases of shares of Common Stock shall be carried out in accordance with such Offering.
"Purchase Right" means a right to purchase shares of Common Stock granted pursuant to the Plan.
Dated as of February 19, 2004
WIGGIN & DANA LLP
400 Atlantic Street
Stamford, CT 06901
(203) 363-7600 (Phone)
(203) 363-7676 (fax)
June 10, 2004
CAS Medical Systems, Inc.
44 East Industrial Road
Branford, Connecticut 06405
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), on behalf of CAS Medical Systems, Inc. (the "Company"), relating to 150,000 shares of the Company's Common Stock, $0.004 par value per share (the "Shares"), to be issued under the CAS Medical Systems, Inc. Employee Stock Purchase Plan (the "Plan").
As counsel for the Company, we have examined such corporate records, other documents, and such questions of law as we have considered necessary or appropriate for the purposes of this opinion and, upon the basis of such examination, advise you that in our opinion, any original issuance Shares distributed pursuant to the Plan being registered pursuant to the Registration Statement, when issued and paid for under the Plan in accordance with the terms of the Plan, will be legally issued, fully paid and non-assessable.
This opinion set forth herein is limited to the General Corporation Law of the State of Delaware and the federal laws of the United States.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. This consent is not be construed as an admission that we are a person whose consent is required to be filed with the Registration Statement under the provisions of the Act.
Very truly yours,
/s/ WIGGIN AND DANA LLP |
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 17, 2004 relating to the financial statements of CAS Medical Systems, Inc., which appears in CAS Medical Systems, Inc.'s Annual Report on Form 10-KSB for the year ended December 31, 2003.
/s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Hartford, Connecticut June 9, 2004 |
INFORMATION REGARDING CONSENT OF ARTHUR ANDERSON LLP
Section 11(a) of the Securities Act of 1933, as amended (Securities Act), provides that if part of a registration statement at the time it becomes effective contains an untrue statement of a material fact, or omits a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring a security pursuant to such registration statement (unless it is proved that at the time of such acquisition such person knew of such untruth or omission) may assert a claim against, among others, an accountant who has consented to be named as having certified any part of the registration statement or as having prepared any report for use in connection with the registration statement.
In 2002, Arthur Anderson LLP (Anderson) ceased practicing before the
Securities and Exchange Commission (Commission). The consolidated financial
statements of the Company for the year ended December 31, 2001 incorporated by
reference in this registration statement have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their report with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said report. Arthur Andersen LLP has not consented to the
inclusion of their report in the registration statement, and in reliance upon
Rule 437a of the Securities Act, we have not therefore filed their consent.
Because Arthur Andersen LLP has not consented to the inclusion of their report
in the registration statement, it may become more difficult for you to seek
remedies against Arthur Andersen LLP in connection with any material
misstatement or omission that may be contained in our consolidated financial
statements and schedules for such periods. In particular, and without
limitation, you will not be able to recover against Arthur Andersen LLP under
Section 11 of the Securities Act for any untrue statement of a material fact
contained in the financial statements audited by Arthur Andersen LLP or any
omission of a material fact required to be statement in those financial
statements.