sv8
As filed with the Securities and Exchange Commission on August 19, 2005
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
IRIDEX CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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77-0210467
(I.R.S. Employer
Identification Number) |
1212 Terra Bella Avenue
Mountain View, California 94043
(650) 940-4700
(Address, including zip code, and telephone number, including area code, of Registrants principal executive offices)
2005 EMPLOYEE STOCK PURCHASE PLAN
1998 STOCK PLAN
CALDWELL INDUCEMENT GRANT STOCK OPTION AGREEMENT
(Full title of the plans)
Barry G. Caldwell
President and Chief Executive Officer
1212 Terra Bella Avenue
Mountain View, California 94043
(Name and address of agent for service)
(650) 940-4700
(Telephone number, including area code, of agent for service)
Copies to:
David J. Segre, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
CALCULATION OF REGISTRATION FEE
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Amount |
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Proposed Maximum |
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Proposed Maximum |
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Title of Securities to |
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to be |
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Offering Price |
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Aggregate Offering |
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Amount of |
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be Registered |
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Registered(1) |
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Per Share |
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Price |
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Registration Fee(2) |
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Common Stock, $0.01 par value per
share to be issued upon exercise of
options granted under the 2005
Employee Stock Purchase Plan (the
ESPP) |
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44,650 shares |
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$ |
6.25 |
(3) |
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$ |
279,062.50 |
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$ |
32.85 |
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Common Stock, $0.01 par value per
share, to be issued upon exercise of
options granted under the 1998 Stock
Plan (the Plan) |
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200,000 shares(4) |
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$ |
7.36 |
(5) |
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$ |
1,472,000.00 |
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$ |
173.25 |
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Common Stock, $0.01 par value per
share to be issued upon exercise of
options granted under the Caldwell
Inducement Grant Stock Option
Agreement |
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234,104 shares(4) |
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$ |
6.07 |
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$ |
1,421,011.28 |
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$ |
167.25 |
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TOTAL |
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478,754 shares |
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$ |
3,172,073.78 |
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$ |
373.35 |
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(1) |
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This Registration Statement shall also cover any additional shares of the Registrants Common Stock that become issuable by reason of any dividend, stock split,
reorganization or other similar transaction effected without receipt of consideration that increases the number of shares of the Registrants Common Stock outstanding. |
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(2) |
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Amount of registration fee was calculated pursuant to Section 6(b) of Securities Act of 1933 (the Securities Act), which provides that the fee shall be $117.70 per
$1,000,000 of the proposed maximum aggregate offering price of the securities proposed to be registered. |
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(3) |
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Estimated in accordance with Rules 457 (c) and (h) promulgated under the Securities Act solely for the purpose of calculating the registration fee based on the price of
$6.38 per share, which was 85% of the average of the high and low trading prices per share of the Registrants Common Stock as reported on the Nasdaq National Market on August
16, 2005. |
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(4) |
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Amount of securities to be registered computed in accordance with Rule 457(h) promulgated under the Securities Act, as the maximum number of the Registrants Common Stock
issuable under the 1998 Stock Plan and the Caldwell Inducement Grant Stock Option Agreement, respectively.
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(5) |
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Estimated in accordance with Rule 457(h) promulgated under the Securities Act solely for the purpose of calculating the amount of registration fee based on the price of
$7.36 per share, which was the average of the high and low prices as reported in the Nasdaq National Market on August 16, 2005. |
TABLE OF CONTENTS
IRIDEX
CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this Registration Statement the following
documents and information previously filed by the Registrant with the Securities and Exchange
Commission:
1. The Registrants Annual Report on Form 10-K for the fiscal year ended January 1, 2005 filed
pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the Exchange Act);
2. The Registrants Quarterly Report on Form 10-Q for the fiscal quarter ended April 2, 2005
filed pursuant to Section 13 of the Exchange Act;
3. The
Registrants Quarterly Report on Form 10-Q for the fiscal
quarter ended July 2, 2005 filed pursuant to Section 13 of the
Exchange Act;
4. The Registrants Current Reports on Form 8-K filed pursuant to Section 13 of the Exchange
Act on February 15, 2005, March 22, 2005, April 29, 2005, May 4, 2005, July 8, 2005 and August 3,
2005; provided, however, that the Registrant does not incorporate by reference any information
contained in, or exhibits submitted with, the Forms 8-K that was expressly furnished and not filed;
and
5. The description of the Registrants Common Stock contained in the Registrants Registration
Statement on Form 8-A filed on February 15, 1996, pursuant to Section 12(b) of the Exchange Act,
and any further amendment or report filed hereafter for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of filing of such
documents. For the purposes of this Registration Statement, any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or
superseded to the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law (the DGCL) provides in relevant part
that [a] corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right
of the corporation) by reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person reasonably believed to be
in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the persons conduct was unlawful. With respect to
derivative actions, Section 145(b) of the DGCL provides in relevant part that [a] corporation
shall have power to indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor...[by reason of the persons service in one of the capacities
specified in the preceding sentence] against expenses (including attorneys fees) actually and
reasonably incurred by the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other
court shall deem proper.
The Registrants Amended and Restated Certificate of Incorporation provides that to the
fullest extent permitted by the DGCL, no director of the Registrant shall be personally liable to
the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director.
The Restated Certificate of Incorporation also provides that no amendment or repeal of such
provision shall apply to or have any effect on the right to indemnification permitted thereunder
with respect to claims arising from acts or omissions occurring in whole or in part before the
effective date of such amendment or repeal whether asserted before or after such amendment or
repeal.
The Registrants bylaws provide for the indemnification of officers, directors and third
parties acting on behalf of the Registrant if such person acted in good faith and in a manner
reasonably believed to be in and not opposed to the best interest of the Registrant, and, with
respect to any criminal action or proceeding, the indemnified party had no reason to believe his or
her conduct was unlawful. The Registrant has entered into indemnification agreements with its
directors and executive officers and intends to enter into indemnification agreements with any new
directors and executive officers in the future.
The Registrant carries officer and director liability insurance with respect to certain
matters, including matters arising under the Securities Act.
Item 8. Exhibits.
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Exhibit |
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Number |
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Description |
4.1
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Amended and Restated Certificate of Incorporation (1) |
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4.2
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Amended and Restated Bylaws (2) |
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4.3
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Caldwell Inducement Grant Stock Option Agreement |
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4.4
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1998 Stock Plan, as amended (3) |
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4.5
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2005 Employee Stock Purchase Plan (4) |
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, counsel to the Registrant |
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered
Public Accounting Firm |
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23.2
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Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1) |
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24.1
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Power of Attorney (see page 5) |
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(1) |
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Incorporated by reference to the Exhibits filed with the Registration Statement on Form
SB-2 (No. 333-00320-LA) which was declared effective February 15, 1996. |
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(2) |
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Incorporated by reference to the Exhibits in Registrants Report on Form 10-Q for the
quarter ended October 3, 1998. |
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(3) |
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Incorporated by reference to the Exhibits in Registrants Proxy Statement for the
Companys 2005 Annual Meeting of Stockholders which was filed April 29, 2005 (File No. 000-27598). |
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(4) |
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Incorporated by reference to the Exhibits in Registrants Proxy Statement for the Companys
2004 Annual Meeting of Stockholders which was filed April 30, 2004 (File No. 000-27598). |
Item 9. Undertakings.
A) |
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The undersigned Registrant hereby undertakes: |
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1) |
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To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement to include any material information with respect
to the plan of distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement. |
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2) |
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That, for the purpose of determining any liability under the Securities Act of 1933, as
amended, 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. |
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3) |
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To remove from registration by means of a post-effective amendment any of the
securities being registered that remain unsold at the termination of the offering. |
B) |
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, as amended, each filing of the Registrants annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plans annual report pursuant to Section 15(d) of the Exchange
Act) 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) |
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Insofar as indemnification for liabilities arising under the Securities Act of 1933, as
amended, may be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities 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 Mountain View, State of California, on
August 19, 2005.
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IRIDEX CORPORATION
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By: |
/s/ Larry Tannenbaum
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Larry Tannenbaum |
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Chief Financial Officer and Senior Vice President
Finance and Administration |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Theodore A. Boutacoff and Larry Tannenbaum, and each of them acting
individually, as their true and lawful attorneys and agents, each with full power of substitution,
to sign and file on behalf of the undersigned any amendment or amendments to this Registration
Statement on Form S-8 (including post-effective amendments) with all exhibits thereto and other
documents in connection therewith with the Securities and Exchange Commission and granting unto
said attorneys 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 foregoing, as full to all
intents and purposes as the undersigned might or could do in person, and each of the undersigned
does hereby ratify and confirm all that said attorneys and agents, or their or his 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 on August 19, 2005 by the following persons in the capacities and on the
dates indicated.
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Signature |
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Title |
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Date |
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/s/
Barry G. Caldwell
Barry G. Caldwell
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President, Chief Executive
Officer and Director
(Principal Executive Officer)
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August 19, 2005 |
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/s/
Larry Tannenbaum
Larry Tannenbaum
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Chief Financial Officer and
Senior Vice President Finance
and Administration (Principal
Financial and Accounting Officer)
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August 19, 2005 |
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Chairman of the Board
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August , 2005 |
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/s/
Donald
L. Hammond
Donald L. Hammond
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Director
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August 19, 2005 |
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/s/
Robert
K. Anderson
Robert K. Anderson
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Director
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August 19, 2005 |
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/s/
James L. Donovan
James L. Donovan
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Director
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August 19, 2005 |
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/s/
Sanford Fitch
Sanford Fitch
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Director
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August 19, 2005 |
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/s/
Garrett A. Garrettson
Garrett A. Garrettson
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Director
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August 19, 2005 |
-5-
INDEX TO EXHIBITS
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Exhibit |
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Number |
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Description |
4.1
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Amended and Restated Certificate of Incorporation (1) |
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4.2
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Amended and Restated Bylaws (2) |
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4.3
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Caldwell Inducement Grant Stock Option Agreement |
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4.4
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1998 Stock Plan, as amended (3) |
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4.5
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2005 Employee Stock Purchase Plan (4) |
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5.1
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, counsel to the Registrant |
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered
Public Accounting Firm |
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23.2
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Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1) |
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24.1
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Power of Attorney (see page 5) |
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(1) |
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Incorporated by reference to the Exhibits filed with the Registration Statement on Form
SB-2 (No. 333-00320-LA) which was declared effective February 15, 1996. |
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(2) |
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Incorporated by reference to the Exhibits in Registrants Report on Form 10-Q for the
quarter ended October 3, 1998. |
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(3) |
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Incorporated by reference to the Exhibits in Registrants Proxy Statement for the
Companys 2005 Annual Meeting of Stockholders which was filed April 29, 2005 (File No. 000-27598). |
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(4) |
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Incorporated by reference to the Exhibits in Registrants Proxy Statement for the Companys
2004 Annual Meeting of Stockholders which was filed April 30, 2004 (File No. 000-27598). |
-6-
exv4w3
Exhibit
4.3
IRIDEX CORPORATION
CALDWELL INDUCEMENT GRANT
STOCK OPTION AGREEMENT
I. |
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NOTICE OF STOCK OPTION GRANT |
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Barry G. Caldwell
4500 Lakeside Drive
Colleyville, Texas 76034 |
Barry G. Caldwell (the Optionee) has been granted an Option to purchase Common Stock of the
Company (the Inducement Grant), subject to the terms and conditions of the Stock Option
Agreement, as follows:
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Date of Grant:
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July 5, 2005 |
Vesting Commencement Date:
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July 5, 2005 |
Exercise Price per Share:
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$6.07 |
Total Number of Shares Granted:
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234,104 |
Total Exercise Price:
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$1,421,011.28 |
Type:
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Nonstatutory Stock Option |
Term/Expiration Date:
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July 5, 2015 |
Vesting Schedule:
Subject to the Optionee continuing to be a Service Provider through each applicable date, this
Option may be exercised, in whole or in part, in accordance with the following schedule:
63,372 of the Shares subject to the Option shall vest on the one year anniversary of the
Vesting Commencement Date and the remainder of the Shares subject to the Option shall vest on a
monthly basis thereafter, subject to the Optionee continuing to be a Service Provider on each such
date, on the following schedule:
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5,281 Shares shall vest each full month following July 5, 2006 through and including
December 5, 2006: |
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4,877 Shares shall vest each full month following December 5, 2006 through and
including December 5, 2008; and |
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3,897 Shares shall vest each full month thereafter, |
such that all Shares subject to the Option shall be fully vested on the fourth anniversary of
the Vesting Commencement Date.
Notwithstanding the foregoing, the vesting of the Shares subject to the Option shall be
subject to the vesting acceleration provisions contained in that certain Severance and Change of
Control Agreement (the Change of Control Agreement), effective as of July 5, 2005, by and between
the Optionee and the Company.
Termination Period:
This Option may be exercised for three (3) months after termination of the Optionees status
as a Service Provider to the Company. Notwithstanding the foregoing, if, within twelve (12)
1
Exhibit
4.3
months following a Change of Control, the Optionees employment with the Company is terminated
either (i) as a result of an actual termination by the Company or its Successor other than for
Cause (as defined in the Change of Control Agreement) or (ii) Optionee terminates his employment
with the Company for Good Reason (as defined in the Change of Control Agreement), then this Option
may be exercised for twelve (12) months following such termination.
If Optionee ceases to be a Service Provider as a result of Optionees Disability, the Optionee
may exercise his or her Option for twelve (12) months following the Optionees termination. If,
after termination, the Optionee does not exercise his or her Option within the time specified
herein, the Option shall terminate. If Optionee dies while a Service Provider, the Option may be
exercised by the Optionees estate or by a person who acquires the right to exercise the Option by
bequest or inheritance, but only to the extent that the Option is vested on the date of death, for
twelve (12) months following the Optionees termination. If, at the time of death, the Optionee is
not vested as to his or her entire Option, the Option shall terminate. The Option may be exercised
by the executor or administrator of the Optionees estate or, if none, by the person(s) entitled to
exercise the Option under the Optionees will or the laws of descent or distribution. If the
Option is not so exercised within the time specified herein, the Option shall terminate. In no
event shall this Option be exercised later than the Term/Expiration Date as provided above.
II. AGREEMENT
1. Definitions. As used herein, the following definitions shall apply:
(a) Administrator means the Board or any of its Committees as shall be administering
the Inducement Grant, in accordance with the terms herein.
(b) Affiliate means any corporation or any other entity (including, but not limited
to, partnerships and joint ventures) controlling, controlled by, or under common control with the
Company.
(c) Applicable Laws means the requirements relating to the administration of the
Inducement Grant under U.S. state corporate laws, U.S. federal and state securities laws, the Code,
any stock exchange or quotation system on which the Common Stock is listed or quoted.
(d) Board means the Board of Directors of the Company.
(e) Change of Control shall mean the occurrence of any of the following events:
(i) the approval by the stockholders of the Company of a merger or consolidation of the
Company with any other corporation or entity; provided, however, that any merger or consolidation
which would result in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation shall not be deemed a Change of Control;
(ii) the approval by the stockholders of the Company of a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
2
Exhibit
4.3
substantially all of the Companys assets;
(iii) any person (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) becoming the beneficial owner (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company representing 50% or more of the
total voting power represented by the Companys then outstanding voting securities; or
(iv) a change in the composition of the Board occurring within a 12-month period, as a result
of which fewer than a majority of the directors are Incumbent Directors. Incumbent Directors
shall mean directors who either (A) are directors of the Company as of the date immediately prior
to the Change of Control, or (B) are elected, or nominated for election, to the Board with the
affirmative votes of at least a majority of those directors whose election or nomination was not in
connection with any transactions described in subsections (i), (ii), or (iii) or in connection with
an actual or threatened proxy contest relating to the election of directors of the Company.
(f) Code means the Internal Revenue Code of 1986, as amended. Any reference to a
section of the Code herein will be a reference to any successor or amended section of the Code.
(g) Committee means a committee of Directors or of other individuals satisfying
Applicable Laws appointed by the Board.
(h) Common Stock means the common stock of the Company.
(i) Company means IRIDEX Corporation, a Delaware corporation, or any successor
thereto.
(j) Consultant means any person, including an advisor, engaged by the Company or its
Affiliate to render services to such entity.
(k) Director means a member of the Board.
(l) Disability means total and permanent disability as defined in Section 22(e)(3)
of the Code, provided that the Administrator in its discretion may determine whether a permanent
and total disability exists in accordance with uniform and non-discriminatory standards adopted by
the Administrator from time to time.
(m) Employee means any person, including Officers and Directors, employed by the
Company or its Affiliates. Neither service as a Director nor payment of a directors fee by the
Company will be sufficient to constitute employment by the Company.
(n) Fair Market Value means, as of any date, the value of Common Stock as the
Administrator may determine in good faith by reference to the price of such stock on any
established stock exchange or a national market system on the day of determination if the Common
Stock is so listed on any established stock exchange or a national market system. If the Common
Stock is not listed on any established stock exchange or a national market system, the value of the
Common Stock as the Administrator may determine in good faith.
(o) Nonstatutory Stock Option or NSO means an Option that by its terms
does not qualify or is not intended to qualify as an Incentive Stock Option.
3
Exhibit
4.3
(p) Officer means a person who is an officer of the Company within the meaning of
Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.
(q) Option means a stock option granted pursuant to the terms herein..
(r) Optioned Stock means the Common Stock subject to the Option.
(s) Parent means a parent corporation, whether now or hereafter existing, as
defined in Section 424(e) of the Code.
(t) Service Provider means an Employee, Director or Consultant.
(u) Share means a share of the Common Stock, as adjusted in accordance with Section
7.
(v) Subsidiary means a subsidiary corporation, whether now or hereafter existing,
as defined in Section 424(f) of the Code.
2. Grant of Option. The Administrator hereby grants to the Optionee the Option to
purchase the number of Shares, as set forth in the Notice of Grant, at the exercise price per share
set forth in the Notice of Grant (the Exercise Price), subject to the terms and conditions
herein. This Option is intended to be a Nonstatutory Stock Option.
3. Exercise of Option.
(a) Right to Exercise. This Option is exercisable during its term in accordance with
the Vesting Schedule set out in the Notice of Grant and this Option Agreement.
(b) Method of Exercise. This Option is exercisable by delivery of an exercise notice,
in the form attached as Exhibit A (the Exercise Notice) or in such other form and manner as
determined by the Administrator, which shall state the election to exercise the Option, the number
of Shares in respect of which the Option is being exercised (the Exercised Shares), and such
other representations and agreements as may be required by the Company pursuant to this Option
Agreement. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as
to all Exercised Shares, together with any applicable withholding taxes. This Option shall be
deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice
accompanied by such aggregate Exercise Price and any applicable withholding taxes.
(c) Legal Compliance. No Shares shall be issued pursuant to the exercise of this
Option unless such issuance and exercise complies with all relevant provisions of the Applicable
Laws and the requirements of any stock exchange or quotation service upon which the Shares are then
listed. Assuming such compliance, for income tax purposes the Exercised Shares shall be considered
transferred to the Optionee on the date the Option is exercised with respect to such Exercised
Shares.
4. Method of Payment. Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
(a) Cash or check; or
(b) delivery of a properly executed exercise notice together with such other documentation as
the Administrator and the broker, if applicable, shall require to effect an
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Exhibit
4.3
exercise of the Option and delivery to the Company of the sale or loan proceeds required to
pay the exercise price; or
(c) surrender of other Shares which (i) in the case of Shares acquired from the Company, have
been owned by the Optionee and not subject to a substantial risk of forfeiture for more than six
(6) months on the date of surrender, and (ii) have a Fair Market Value on the date of surrender
equal to the aggregate Exercise Price of the Exercised Shares.
5. Non-Transferability of Option. This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution and may be exercised during the
lifetime of Optionee only by the Optionee. The terms of this Option Agreement shall be binding
upon the executors, administrators, heirs, successors and assigns of the Optionee.
6. Term of Option. This Option may be exercised only within the term set out in the
Notice of Grant, and may be exercised during such term only in accordance with the terms of this
Option Agreement.
7. Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset Sale.
(a) Changes in Capitalization. In the event that any dividend or other distribution
(whether in the form of cash, Shares, other securities, or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares or other securities of the Company, or other change in the
corporate structure of the Company affecting the Shares occurs, the Board, in order to prevent
diminution or enlargement of the benefits or potential benefits intended to be made available under
the Option, may (in its sole discretion) adjust the number, class, and Exercise Price of Shares
covered by the Option.
(b) Dissolution or Liquidation. In the event of the proposed dissolution or
liquidation of the Company, the Administrator shall notify the Optionee as soon as practicable
prior to the effective date of such proposed transaction. The Administrator in its discretion may
provide for the Optionee to have the right to exercise his or her Option until ten (10) days prior
to such transaction as to all of the Optioned Stock covered thereby, including Shares as to which
the Option would not otherwise be exercisable. To the extent it has not been previously exercised,
the Option will terminate immediately prior to the consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the Company with or into another
corporation or the sale of all or substantially all of the Companys assets, the Option will be
assumed or an equivalent award substituted by the successor corporation or a Parent or Subsidiary
of the successor corporation. In the event that the successor corporation refuses to assume or
substitute for the Option, the Optionee will fully vest in and have the right to exercise the
Option as to all of the Optioned Stock, including Shares subject to this Option that would not
otherwise be vested or exercisable. In addition, if the Option becomes fully vested and
exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the
Administrator will notify the Optionee in writing or electronically that the Option will be fully
vested and exercisable for a period of time determined by the Administrator in its sole discretion,
and the Option will terminate upon the expiration of such period. For the purposes of this
subsection (c), the Option will be considered assumed if, following the merger or sale of assets,
the Option confers the right to purchase or receive, for each Share subject to the Option
immediately prior to the merger or sale of assets, the consideration (whether stock, cash, or other
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Exhibit
4.3
securities or property) the fair market value of the consideration received in the merger or
sale of assets by holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of consideration
chosen by the holders of a majority of the outstanding Shares); provided, however, that if such
consideration received in the merger or sale of assets is not solely common stock of the successor
corporation or its Parent, the Administrator may, with the consent of the successor corporation,
provide for the consideration to be received upon the exercise of the Option to be solely common
stock of the successor corporation or its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the merger or sale of assets.
8. Leaves of Absence. Unless the Administrator provides otherwise, vesting of the
Option granted hereunder will be suspended during any unpaid leave of absence. The Optionee will
not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii)
transfers between locations of the Company or between the Company, its Parent, or any Subsidiary.
9. Effect of Administrators Decision. The Administrators decisions, determinations
and interpretations shall be final and binding.
10. Notices. Any notice to be given to the Company hereunder will be in writing and
will be addressed to the Company at its then current principal executive office or to such other
address as the Company may hereafter designate to the Optionee by notice as provided in this
section. Any notice to be given to the Optionee hereunder will be addressed to the Optionee at the
address set forth beneath his signature hereto, or at such other address as the Optionee may
hereafter designate to the Company by notice as provided herein. A notice will be deemed to have
been duly given when personally delivered or mailed by registered or certified mail to the party
entitled to receive it.
11. Tax Withholding.
(a) Withholding Requirements. Prior to delivery of any Shares pursuant to the Option
(or exercise thereof), the Company will have the power and the right to deduct or withhold, or
require the Optionee to remit to the Company, an amount sufficient to satisfy federal, state,
local, foreign or other taxes (including the Optionees FICA obligation) required to be withheld
with respect to the grant of the Option (or exercise thereof).
(b) Withholding Arrangements. The Administrator, in its sole discretion and pursuant
to such procedures as it may specify from time to time, may permit the Optionee to satisfy such tax
withholding obligation, in whole or in part by (without limitation) (a) paying cash, (b) electing
to have the Company withhold otherwise deliverable cash or Shares having a Fair Market Value equal
to the amount required to be withheld, (c) delivering to the Company already owned Shares having a
Fair Market Value equal to the amount required to be withheld, or (d) selling a sufficient number
of Shares otherwise deliverable to the Optionee through such means as the Administrator may
determine in its sole discretion (whether through a broker or otherwise) equal to the amount
required to be withheld. The amount of the withholding requirement will be deemed to include any
amount which the Administrator agrees may be withheld at the time the election is made, not to
exceed the amount determined by using the maximum federal, state or local marginal income tax rates
applicable to the Optionee with respect to the Option on the date that the amount of tax to be
withheld is to be determined. The Fair Market Value of the Shares to be withheld or delivered will
be determined as of the date that the taxes are required to be
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Exhibit
4.3
withheld.
12. Entire Agreement; Governing Law. This Option Agreement and the Change of Control
Agreement constitute the entire agreement of the parties with respect to the subject matter hereof
and supersede in their entirety all prior undertakings and agreements of the Company and Optionee
with respect to the subject matter hereof, and may not be modified adversely to the Optionees
interest except by means of a writing signed by the Company and Optionee. This Option is governed
by California law except for that body of law pertaining to conflict of laws.
13. NO GUARANTEE OF CONTINUED SERVICE. OPTIONEE ACKNOWLEDGES AND AGREES THAT THE
VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE
PROVIDER AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED AN
OPTION OR PURCHASING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT
CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE
VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE WITH OPTIONEES RIGHT OR THE
COMPANYS RIGHT TO TERMINATE OPTIONEES RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR
WITHOUT CAUSE.
By Optionees signature and the signature of the Companys representative below, you and the
Company agree that this Option is granted under and governed by the terms and conditions set forth
herein. Optionee has reviewed this Option Agreement in its entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option Agreement and fully understands all
provisions of this Option Agreement. Optionee hereby agrees to accept as binding, conclusive and
final all decisions or interpretations of the Administrator upon any questions relating to this
Option Agreement. Optionee further agrees to notify the Company upon any change in the residence
address indicated below.
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OPTIONEE: |
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IRIDEX CORPORATION |
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By: |
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Signature
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Larry Tannenbaum |
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Barry G. Caldwell
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Title:
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CFO and Sr. Vice President |
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Residence Address
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7
EXHIBIT A
IRIDEX CORPORATION
EXERCISE NOTICE
IRIDEX Corporation
1212 Terra Bella
Mountain View, CA 94043
Attention: Chief Financial Officer
1. Exercise of Option. Effective as of today, ___, 200___, the
undersigned (Purchaser) hereby elects to purchase ___shares (the Shares) of the
Common Stock of IRIDEX Corporation (the Company) under the Caldwell Inducement Grant Stock Option
Agreement dated ___(the Option Agreement). The purchase price for the Shares shall be
$___, as required by the Option Agreement.
Capitalized terms not otherwise defined herein shall have the meanings set forth in the Option
Agreement
2. Delivery of Payment. Purchaser herewith delivers to the Company the full purchase
price for the Shares together with any applicable withholding taxes.
3. Representations of Purchaser. Purchaser acknowledges that Purchaser has received,
read and understood the Option Agreement and agrees to abide by and be bound by its terms and
conditions.
4. Rights as Stockholder. Until the issuance (as evidenced by the appropriate entry
on the books of the Company or of a duly authorized transfer agent of the Company) of the Shares,
no right to vote or receive dividends or any other rights as a stockholder shall exist with respect
to the Optioned Stock, notwithstanding the exercise of the Option. The Shares so acquired shall be
issued to the Purchaser as soon as practicable after exercise of the Option. No adjustment will be
made for a dividend or other right for which the record date is prior to the date of issuance,
except as provided in the Option Agreement.
5. Tax Consultation. Purchaser understands that Purchaser may suffer adverse tax
consequences as a result of Purchasers purchase or disposition of the Shares. Purchaser
represents that Purchaser has consulted with any tax consultants Purchaser deems advisable in
connection with the purchase or disposition of the Shares and that Purchaser is not relying on the
Company for any tax advice.
6. Entire Agreement; Governing Law. The Option Agreement and the Change of Control
Agreement constitute the entire agreement of the parties with respect to the subject matter hereof
and supersede in their entirety all prior undertakings and agreements of the Company and Purchaser
with respect to the subject matter hereof, and may not be modified adversely to the Purchasers
interest except by means of a writing signed by the Company and Purchaser. The agreements are
governed by the internal substantive laws, but not the choice of law rules, of California.
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Submitted by:
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Accepted by: |
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PURCHASER:
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IRIDEX CORPORATION |
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Signature
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Barry G. Caldwell |
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Its |
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Address:
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Address: |
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IRIDEX Corporation |
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1212 Terra Bella |
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Mountain View, CA 94043 |
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Date Received |
Exhibit A-1
Additional Information for Exercise Notice
IRIDEX Corporation
1212 Terra Bella Avenue
Mountain View, CA 94043
The undersigned hereby elects to exercise the option indicated below with respect to the number of
shares of Common Stock of IRIDEX Corporation (the Company) set forth:
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Option Grant Date: |
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Number of shares being exercised:
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shares |
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Exercise price per share:
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$ |
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Total Exercise Price:
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$ |
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Type of Transaction: ____ Sale ____ Sell at Market ____Sell at Min $ /share ____ Exercise Only |
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(Market Order)
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(Market Limit Order) |
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Agent Instructions:
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Transfer shares to my account |
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Issue a Stock Certificate |
Method of Payment:
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Cash |
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Check |
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Cashless/Same Day Sale |
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My exact name, address and social security number for purposes of the stock certificates to be
issued and the shareholder list of the Company are:
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Name:
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Address: |
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Social Security: |
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Sincerely, |
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Date:
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(Optionees Signature) |
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exv5w1
Exhibit 5.1
August 19, 2005
IRIDEX Corporation
1212 Terra Bella Avenue
Mountain View, CA 94043
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you with the Securities
and Exchange Commission on or about August 19, 2005 (the Registration Statement) in connection
with the registration under the Securities Act of 1933, as amended (the Act) of 44,650 additional
shares of Common Stock available for issuance under your 2005 Employee Stock Purchase Plan, 200,000
additional shares of Common Stock available for issuance under your 1998 Stock Plan and 234,104
shares of Common Stock available for issuance pursuant to the Caldwell Inducement Grant Stock
Option Agreement. Such shares of Common Stock are referred to herein as the Shares and such
plans are referred to herein as the Plans. As your counsel in connection with this transaction,
we have examined the proceedings taken and are familiar with the proceedings proposed to be taken
by you in connection with the issuance and sale of the Shares pursuant to the Plans.
It is our opinion that, upon the completion of the proceedings to be taken prior to issuance
of the Shares pursuant to the Registration Statement and upon completion of the proceedings to be
taken in order to permit such transactions to be carried out in accordance with the securities laws
of the various states where required, the Shares, when issued and sold in the manner referred to in
the Plans and the agreements which accompany the Plans will be legally and validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement, and consent
to the use of our name wherever appearing in the Registration Statement and any amendments thereto.
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Sincerely, |
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WILSON SONSINI GOODRICH & ROSATI
Professional Corporation |
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/s/ Wilson Sonsini Goodrich & Rosati,
P.C. |
exv23w1
Exhibit 23.1
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 April 1, 2005, relating to the consolidated financial statements and financial
statement schedule of IRIDEX Corporation, which appears in IRIDEX Corporations Annual Report on
Form 10-K for the year ended January 1, 2005.
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/s/ PRICEWATERHOUSECOOPERS LLP
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San Jose, California |
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August 18, 2005 |
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