Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Cynosure, Inc. Form S-1/A HTML 1.38M
9: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 140K
2: EX-4.1 EX-4.1 Specimen Stock Certificate 2 11K
3: EX-10.11 EX-10.11 Form of Reimbursement Agreement 3 15K
4: EX-10.12 EX-10.12 Option Agreement, Dated December 17, 2003 10 35K
5: EX-10.13 EX-10.13 Option Agreement, Dated May 13, 2005 10 36K
6: EX-23.1 EX-23.1 Consent of Ernst & Young LLP 1 5K
7: EX-23.2 EX-23.2 Consent of T. James Hammond, CPA 1 6K
8: EX-23.3 EX-23.3 Consent of Lattimore Black Morgan and 1 6K
Cain, Pc
‘EX-10.13’ — EX-10.13 Option Agreement, Dated May 13, 2005
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Exhibit 10.13
(G MED LOGO)
ACT OF ASSIGNMENT OF OPTIONS UNDER THE PROVISIONS OF THE "2006-2007
EMPLOYEE INCENTIVE PLAN"
Dear Sir:
MICHAEL DAVIN
DELIVERED BY HAND
Registration Number:
On May 13, 2005 the Board of Directors of El.En. S.p.A. voted to assign to
you the Options specified below upon the terms and conditions as incorporated
from the regulations of the "2006-2007 Employee Incentive Plan" approved by the
Board of Directors as of such date.
[Enlarge/Download Table]
No. Of Options 20,000 (each Option carries the right, upon payment of the Underwriting
Price, to underwrite One Share of El.En. S.p.A.)
Assignment Date May 13, 2005
Subscription Price E 24.23 (twenty-four point twenty-three Euro)
Deadline for exercise of with respect to Notification of Exercise of the Option must be
option on penalty of 10,000 Options received by the Company between May 15, 2006 to
cancellation July 16, 2007
with respect to Notification of Exercise of the Option must be
10,000 Options received by the Company between May 15, 2007 and
July 16, 2007
The provisions of the "Rules of the 2006-2007 Incentive Plan" with respect
to "ordinary shares of El.En. S.p.A." stock shall be applicable to all other
matters not contemplated herein.
Please return a copy of this document signed to acknowledge acceptance.
Very truly yours,
/s/ Gabriele Clementi
-------------------------------
The Chairman of the Board of Directors
Ing. Gabriele Clementi
The undersigned Michael Davin, as an employee of Cynosure Inc, a subsidiary
of El.En. S.p.A.
EXPRESSLY DECLARES
(a) that as a premise and essential condition of the aforesaid assignment,
he accepts all of the provisions contained in the Rules of the 2006-2007
Incentive Plan in favor of the employees of the El.En Group approved by the
Board of Directors on May 13, 2005;
(b) that he shall undertake to respect all of the provisions of the Rules of
the 2006-2007 Incentive Plan;
(c) that he is well aware of the contents of the Rules of the 2006-2007
Incentive Plan;
(d) that he is well apprised of the risks connected with the operation as
governed by the Rules of the 2006-2007 Incentive Plan, and that he has
carefully considered the same.
Sincerely yours,
for acceptance
Date 9/27/05
-----------------
/s/ Michael Davin
--------------------------
[Employee Signature]
RULES FOR THE "2006-2007 EMPLOYEE INCENTIVE PLAN" WITH RESPECT TO
THE ORDINARY SHARES OF EL.EN-JOINT-STOCK COMPANY
PREMISES
The premise and objective of these Rules and of the Incentive Plan subject
thereto is that of involving certain employees (the "EMPLOYEES" as hereinafter
defined) of the GROUP (as hereinafter defined) in the future economic and
strategic development of said Group, by allowing said EMPLOYEES to share in the
benefits, not solely economic, of such development. More particularly, the
present Incentive Plan is primarily intended to provide incentives to the
EMPLOYEES of the COMPANY (as hereinafter defined) and, secondarily, to maintain
a relationship of collaboration between the EMPLOYEES and the GROUP, so as to
consolidate the technical and technological capabilities developed by the GROUP,
thus enabling the COMPANY to enjoy the internal stability which is necessary if
it is to successfully overcome the challenges of a marketplace that is
continually growing and evolving especially in terms of competition; and,
furthermore, to grow through the industrial and managerial phase that followed
the expansion of the Company and its listing on the public stock exchange.
* * *
ARTICLE 1 INCENTIVE PLAN OBJECTIVES
1.1. The option rights governed herein (hereinafter defined as the
"OPTIONS") shall be assigned in conformity with the provisions: (i) of
the resolution of the Extraordinary Assembly of July 16 (sixteen), 2002
(two thousand two) (hereinafter defined as the "APPROVAL RESOLUTION")
of the company El.En., a Joint-Stock Company (hereinafter defined as
the "COMPANY"), that conferred on the Board of Directors the
authorization, under Article 2443 of the Civil Code, of effecting an
increase in the social capital up to a maximum nominal amount of
124,800 (one hundred twenty-four thousand eight hundred) Euro to be
used for purposes of a plan of incentives in favor of the employees of
the Company and of the subsidiaries controlled by it (hereinafter
defined as the "GROUP"); (ii) of the resolution of the Board of
Directors of the COMPANY adopted on May 13 (thirteen), 2005 (two
thousand five), which, in implementation of the APPROVAL RESOLUTION,
effected an increase in the social capital up to a total maximum
nominal amount of 72,800 Euro; and (iii) of any other resolutions
increasing the social capital that may be adopted by the Board of
Directors in execution of the APPROVAL RESOLUTION. The assignment of
the OPTIONS and of the rights and obligations with respect thereto is
subject to the conditions established by the present rules (the
"RULES").
ARTICLE 2 ASSIGNMENT OF THE OPTIONS FOR THE UNDERWRITING OF THE SHARES
2.1. The OPTIONS subject to these RULES shall be assigned exclusively in
favor of the class of Directors, Senior Management and Employees of the
GROUP - as personnel of the GROUP itself - who, at the time of the
assignment, enjoy a work relationship with one of the companies of the
GROUP (hereinafter severally defined as "EMPLOYEES" and each
individually defined as an "EMPLOYEE").
2.2. The Board of Directors of the COMPANY, in conformity with the powers
conferred upon it by the extraordinary assembly of the COMPANY met on
July 16 (sixteen), 2002 (two thousand two), and within the maximum
limits established by said assembly, shall have and has wide discretion
to determine: (i) which EMPLOYEES shall receive assignment of the
OPTIONS, (ii) the number of OPTIONS to be assigned to each EMPLOYEE,
(iii) the terms and conditions for the exercise of the OPTIONS, all in
application of the RULES herein.
2.3. The EMPLOYEES who are holders of the OPTIONS shall have the right to
underwrite one share of the COMPANY for each of the OPTIONS assigned to
them, and have normal entitlement thereof, upon payment of the
UNDERWRITING PRICE (as hereinafter defined) with respect to which the
portion which exceeds the nominal value shall be considered as paid-in
surplus.
2.4. The OPTIONS shall be awarded gratis to the EMPLOYEES, except for a
resolution to the contrary of the Board of Directors.
2.5. The OPTIONS and all of the rights vested in such option rights, shall
be considered strictly personal, nominal, not transferable and
non-negotiable (without prejudice to their assignment in case of death,
but always within the limitations of the present RULES), and therefore
cannot be subjected to liens or used as collateral for debts or
contractual guarantees undertaken by each of the EMPLOYEES with respect
to the GROUP or with respect to third parties.
ARTICLE 3 TERMS FOR THE EXERCISE OF THE OPTIONS
3.1. The EMPLOYEES holders of OPTIONS shall have the right to exercise said
OPTIONS and to underwrite the respective shares in the manner and under
the terms and conditions specified by these RULES and in particular by
this Article 3, as amended from time to time by additional terms
contained in resolutions that the Board of Directors may consider it
opportune to adopt from time to time.
3.2. In the event that an EMPLOYEE should desire to exercise the OPTIONS, he
or she shall notify the COMPANY in writing, by filling out the
notification form attached to these RULES as Annex "A", including the
exercise of the respective OPTIONS and his or her commitment to
underwrite the number of shares corresponding to the OPTIONS, and
payment of the UNDERWRITING PRICE (such notification is hereinafter
defined as the "NOTIFICATION OF EXERCISE").
3.3. The OPTIONS may be exercised in one or more 'packets' in accordance
with the terms voted on from time to time by the Board of Directors,
which with every assignment of the OPTIONS shall also specify the
period of time within which the NOTIFICATION OF EXERCISE with respect
to the OPTIONS assigned from time to time must be communicated to the
COMPANY.
3.4. At the time of the exercise of the OPTIONS, the EMPLOYEES shall be
obligated to pay into the treasury of the COMPANY the UNDERWRITING
PRICE for each of the SHARES to be underwritten. The UNDERWRITING PRICE
shall be determined by the Board of
Directors in full conformity with the provisions prescribed by the
Extraordinary Assembly of the COMPANY on July 16 (sixteen), 2002
(two thousand two).
3.5. The exercise of the OPTIONS (hereinafter defined as the "EXERCISE OF
THE OPTIONS") shall be considered to have been validly executed on the
date that the COMPANY receives the NOTIFICATION OF EXERCISE together
with the UNDERWRITING PRICE. The underwriting date of the shares
(hereinafter defined as the "DATE OF EXERCISE") shall be the date
determined by the Board of Directors.
3.6. The underwriting of the shares shall take place simultaneously with
payment to the COMPANY of the whole of the UNDERWRITING PRICE
(naturally multiplied by the number of SHARES) as determined by the
Board of Directors at the time of the assignment of the OPTIONS. The
UNDERWRITING PRICE shall be paid to the COMPANY net commissions and
other expenses to be paid by the COMPANY. Therefore the EMPLOYEE shall
pay to the COMPANY such amounts, in conformity with the respective
administrative and accounting procedures, as the COMPANY shall
determine.
3.7. The COMPANY shall make available to the EMPLOYEE all of the shares
underwritten by said EMPLOYEE as soon as possible.
3.8. The shares of the COMPANY underwritten by the EMPLOYEES (subsequent to
the exercise of the OPTIONS) shall yield the same benefits as the
ordinary shares of the COMPANY on the date of underwriting and shall be
provided with the current coupons as of said date.
3.9. In the event that the NOTIFICATION OF EXERCISE shall not have been
received by the COMPANY within the period prescribed by the Board of
Directors for the exercise of the assigned options, or in the event of
the failure to pay the whole of the UNDERWRITING PRICE to the COMPANY
on the part of the EMPLOYEE within the period prescribed by the
preceding Article 3.6, the EMPLOYEE shall definitively lose the right
to exercise the OPTIONS assigned to him or her and the option rights
with respect to the OPTIONS shall be considered definitively annulled
with the consequent release from the commitments undertaken by the the
COMPANY and by the individual EMPLOYEE.
ARTICLE 4 CONDITIONS GOVERNING THE OPTIONS IN THE EVENT OF THE
TERMINATION OF THE WORK RELATIONSHIP
4.1. The right to exercise the OPTIONS shall be subordinate to the
employment status of the EMPLOYEE with the GROUP on the date of
reception of the NOTIFICATION OF EXERCISE.
4.2. Therefore it is understood that, if within the period between (i) the
date of the assignment of the OPTIONS and (ii) the date of the
reception of the NOTIFICATION OF EXERCISE, subject to the terms
provided for by these RULES, or by the deadline for the exercise of the
option right, as determined by the Board of Directors (hereinafter
defined as the "DEADLINE"), the work relationship between the EMPLOYEE
and the GROUP should cease to exist due to the resignation of the
EMPLOYEE or due to dismissal for just cause or in any case for default
attributable to the EMPLOYEE, the EMPLOYEE shall definitively lose his
or her right to exercise all of the OPTIONS assigned to the same under
the provisions
of these RULES, with the consequent annulment of his or her respective
right to underwrite the shares. The annulment of the aforesaid rights
shall be automatic, without obligation of notification or of any other
formality, and shall be effective as of the time of the termination of
the work relationship itself, which by express covenant shall be the
date of the beginning of any period of prior notice.
4.3. It shall be understood that, if during the period between (i) the date
of the assignment of the OPTIONS and (ii) the DEADLINE, the work
relationship between the EMPLOYEE and the GROUP should cease to exist,
due to (a) death or (b) a degree of invalidity such as to not permit
the continuation of the work relationship or (c) the dismissal of the
EMPLOYEE, for different reasons than those indicated in the preceding
Article 4.2, the EMPLOYEE and/or the successors and assigns of said
EMPLOYEE shall have the right to exercise all of the OPTIONS assigned
to the EMPLOYEE under the present RULES. The exercise of the OPTIONS
shall not be executed in a manner other than that provided for in the
present RULES and different from that provided for from time to time by
the Board of Directors with respect to the assignment of the OPTIONS.
ARTICLE 5 PROHIBITIONS WITH RESPECT TO THE SHARES
5.1. The Board of Directors of the COMPANY has and shall have the authority
to enact by means of its own resolution prohibitions regarding the
circulation of the shares that are subject to the assigned OPTIONS.
ARTICLE 6 EXTRAORDINARY OPERATIONS OF THE COMPANY
6.1. The Board of Directors, in its exclusive judgment, shall have the
authority to revise, in complete respect of the law, of the procedures
and conditions with respect to the exercise of the OPTIONS, in the
event of extraordinary operations such as, for illustrative purposes
only:
(i) free increase of capital;
(ii) increase of capital paid for with the issuance of options for new
shares, including service of convertible bonds either with warrant or
with service of warrants valid for their underwriting, and in any case
all of the operations on the capital and/or reserves that give rise to
the issuance of a negotiable right;
(iii) reductions due to losses;
(vi) operations of merging or splitting of the COMPANY;
(v) distribution of extraordinary dividends of the shares;
(vi) reductions of the capital by means of cancellation of shares, except
for any shares held by the COMPANY;
(vii) any Public Offerings for Purchase or Exchange.
ARTICLE 7 COMMUNICATIONS
7.1. All communications among the COMPANY and the EMPLOYEES with respect to
the present RULES shall be in writing and delivered by registered
letter with return receipt, or by registered letter delivered by hand
with receipt of delivery signed by the addressee, and they shall be
deemed to have been validly effected upon the date of reception by the
addressee. Those communications sent to the COMPANY shall be sent to
the address of its legal domicile to the attention of the Chairman of
the Board of Directors, and those communications sent to each EMPLOYEE
shall be sent to the address provided by the respective EMPLOYEE and in
the absence of said address to the address known to the COMPANY at the
time of the termination of the work relationship.
ARTICLE 8 ACCEPTANCE OF THE PRESENT RULES
8.1. Signature of the present RULES shall entail the full acceptance of all
of the provisions, conditions and terms fixed and regulated by the said
RULES.
ARTICLE 9 CHANGES IN RETIREMENT AND TAX REGULATIONS
9.1. In the event that, due to intervening amendments to the present
retirement and tax regulations and of any other applicable regulations
or changes in the respective interpretation or application thereof, the
enactment of the present RULES should entail additional
retirement-related, tax or other responsibilities on the part of the
COMPANY, the present RULES may be amended or annulled by the COMPANY
with respect to the part that has not yet been executed, and this shall
not give the affected parties any right to indemnification or to
compensation for the OPTIONS which have not yet been assigned or
exercised.
ARTICLE 10 MISCELLANEOUS
10.1 It is expressly covenanted that the participation of the EMPLOYEE in
the OPTION assignment program subject of the present RULES does not
constitute, nor does it confer any right or expectation or claim of any
kind whatsoever, including in the future, with respect to or in
connection with the work relationship of the EMPLOYEE. Said work
relationship shall continue to be governed by the existing laws and
covenants.
10.2 All of the time periods provided for in the present RULES shall be
understood to be absolute, except that in the event that a period falls
on a non-working day in Italy, said period shall be automatically
deferred to the immediately following work day.
10.3 With the acceptance of the present RULES the EMPLOYEES declare and
acknowledge jointly with the COMPANY that the present RULES supersede
and replace any preceding negotiations or understanding between the
COMPANY and the EMPLOYEES whether oral or written with respect to the
incentive plans as generally understood.
10.4 Without prejudice to the provisions of the present RULES, changes to
the present RULES may be effected only in writing and shall have the
approval of the COMPANY on the one hand and by a number of EMPLOYEES at
least equal to 51% (fifty-one per cent) of the EMPLOYEES who have
accepted the present RULES.
10.5 Neither the COMPANY nor any of the EMPLOYEES shall be able to transfer
in whole or in part the rights and obligations provided for by the
present RULES, except for transfers, evidently, that are due to death.
10.6 Every information with respect to the Plan, or to the covenants with
the individuals affected, shall be of a confidential and private nature
and therefore shall not be disclosed, communicated and/or transmitted
in any manner to other EMPLOYEES or to third parties for the entire
duration of the Plan and for the three subsequent years, without
prejudice to the obligations imposed by law.
ARTICLE 11 APPLICABLE LAW
11.1. The present RULES and consequently all of the rights with respect to
the OPTIONS shall be governed by Italian law and shall be interpreted
on the basis thereof.
ARTICLE 12 ARBITRATION
12.1. Any dispute arising between the COMPANY on the one hand, and each of
the EMPLOYEES (his or her successors or assignees), on the other,
arising out of the present RULES and from the covenants accessory
thereto (including any dispute regarding the validity, interpretation
and application of the present arbitration clause) shall be settled by
means of legal arbitration procedure effected by a board of three
arbiters appointed as follows.
The first Arbiter shall be appointed by the Party that calls for the
arbitration decision by means of a notification inviting the other
Party to appoint its respective arbiter. The Party to whom the
invitation is addressed shall provide notification of the identity of
the Arbiter appointed by it no later than twenty days from such
invitation. The third Arbiter, who shall assume the role of Chairman of
the Board of Arbitration, shall be appointed by the joint consent of
the first two Arbiters previously appointed by the Parties no later
than twenty days after the appointment of the second Arbiter, or, in
the absence of such joint consent, by the President of the Court of
Florence. The latter shall (upon request of the Party initiating the
petition) shall also designate (i) the second Arbiter in the event that
the Party who had the obligation to make such appointment has not
provided therefore by the aforesaid deadline; and (ii) the person
called upon to replace any Arbiter who has failed to respond or who has
not accepted the appointment, but only in the event in which said
replacement has not been made by the Party obligated to provide
therefor, or, in the case of the President, by the other two Arbiters
within 20 days from the date on which said Arbiter fails to appear.
The decision of the Arbiters shall be taken in a legal manner in
conformity with the applicable legal norms and shall have the validity
and effect of a judicial decision between the Parties under the
applicable provisions of the Code of Civil Procedure.
12.2. The arbitration proceedings shall take place in Florence.
12.3. With respect to proceedings involving the COMPANY and more than one
EMPLOYEE, the latter group shall be considered as a single Party for
purposes of the arbitration.
12.4. The arbitration proceeding expenses shall be borne by the Parties in
accordance with the applicable resolutions of the board of arbitration.
ADDENDUM A TO THE RULES OF THE "2006-2007 EMPLOYEE INCENTIVE PLAN" REGARDING THE
ORDINARY SHARES OF THE COMPANY El.En. S.p.A
El.En. S.p.A..
Via Baldanzese, 17
Calenzano (FI)
to the attention of Mr.
[Calenzano] ------------
Under the provisions and for purposes of Article 3 of the Rules of the 2006-2007
Employee Incentive Plan, I hereby forward to you the Notification of Exercise
for ____________ Options assigned to me, including the payment of the
Underwriting price under the provisions of the said Rules.
I hereby request that you kindly proceed to issue the Shares due to me in
correspondence with the Options exercised hereby, as provided for by the Rules.
Very truly yours,
The Employee
--------------------
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 7/16/07 | | 1 |
| | 5/15/07 | | 1 | | | | | 4 |
| | 5/15/06 | | 1 |
| Filed as of: | | 11/3/05 |
| Filed on: | | 11/2/05 |
| | 5/13/05 | | 1 | | 2 |
| List all Filings |
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