<PAGE>
As filed with the Securities and Exchange Commission on August 2, 1996.
Subject to amendment.
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------
IMPATH INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3459685
(State or other jurisdic- (I.R.S. Employer
tion of incorporation Identification No.)
or organization)
----------
1010 Third Avenue
Suite 302
New York, New York 10021
(Address of principal executive offices; zip code)
----------
IMPATH INC.
1989 STOCK OPTION PLAN
(Full titles of the plans)
----------
Anu D. Saad, Ph.D.
President and Chief Executive Officer
1010 Third Avenue, Suite 302
New York, New York 10021
(212) 702-8300
(Name, address and telephone number,
including area code, of agent for service)
----------
Copy to:
John J. Butler, Esq.
Haythe & Curley
237 Park Avenue
New York, New York 10017
----------
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION> Proposed
Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered price per share/*/ price registration fee
- ------------------- ------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock
(par value $0.005
per share) 793,141 $13.875 $11,004,831.38 $3,794.77
</TABLE>
================================================================================
*Estimated solely for purposes of calculating the registration fee pursuant to
Rule 457(c) on the basis of the average of the high and low prices reported of
the Common Stock on July 29, 1996, as reported on the Nasdaq National Market.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The Registrant hereby states that the documents listed in (a)
through (c) below are incorporated by reference in this Registration
Statement and all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended, 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 a part hereof from the
date of filing of such documents.
(a) The Registrant's Prospectus dated February 20, 1996 filed
pursuant to Rule 424(b)(3) of the Securities Act of 1933, registration no.
33-98916 and the Registrant's Special Report on Form 10-K for the year ended
December 31, 1995.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996.
(c) The description of the Registrant's Common Stock contained in
the Registrant's registration statement on Form 8-A filed on February 9,
1996.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article Five, Section 7 of the Registrant's Certificate of
Incorporation (the "Certificate") provides that, to the fullest extent
permitted by Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law"), or any comparable successor law, as the same
may be amended and supplemented from time to time, the Registrant (i) may
indemnify all persons whom it shall have power to indemnify under the
Delaware Law from and against any and all of the expenses, liabilities or
other matters referred to in or covered thereby, (ii) shall indemnify each
such person if he is or is threatened to be made a party to an action, suit
or proceeding by reason of the fact that he is
<PAGE>
or was a director, officer, employee or agent of the Registrant or because he
was serving the Registrant or any other legal entity in any capacity at the
request of the Registrant while a director, officer, employee or agent of the
Registrant and (iii) shall pay the expenses of such a current or former
director, officer, employee or agent incurred in connection with any such
action, suit or proceeding in advance of the final disposition of such
action, suit or proceeding. The Certificate further provides that the
indemnification and advancement of expenses provided for therein shall not be
deemed exclusive of any other rights to which those entitled to
indemnification or advancement of expenses may be entitled under any by-law,
agreement, contract or vote of stockholders or disinterested directors or
pursuant to the direction (however embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
The Registrant has entered into indemnification agreements with all
directors and executive officers of the Registrant. These agreements provide
that the directors and executive officers will be indemnified to the fullest
possible extent permitted by Delaware law against all expenses (including
attorneys' fees), judgments, fines, penalties, taxes and settlement amounts
paid or incurred by them in any action or proceeding, including any action by
or in the right of the Registrant or any of its subsidiaries or affiliates,
on account of their service as directors, officers, employees, fiduciaries or
agents of the Registrant or any of its subsidiaries or affiliates, and their
service at the request of the Registrant or any of its subsidiaries or
affiliates as directors, officers, employees, fiduciaries or agents of
another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise.
The Registrant maintains liability insurance for its officers and
directors, insuring them against certain losses arising from claims or
charges made against them while acting in their capacities as officers or
directors of the Registrant.
Article Five, Section 6 of the Certificate provides that a director of
the Registrant shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the Registrant or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) for the unlawful payment of dividends or unlawful stock purchases under
Section 174 of the Delaware Law, or (iv) for any transaction from which the
director derived any improper personal benefit. If the Delaware Law is
amended to eliminate further or limit the personal liability of directors,
then the liability of a director of the Registrant shall be eliminated or
limited to the fullest extent permitted by the Delaware Law, as so amended.
Any repeal or modification of such provision of the Certificate by the
stockholders of the Registrant shall be prospective only and shall not
adversely affect any right or protection of a director of the Registrant
existing at the time of such repeal or modification.
II-2
<PAGE>
While the Certificate provides directors with protection from awards for
monetary damages for breaches of their duty of care, it does not eliminate
such duty. Accordingly, the Certificate will have no effect on the
availability of equitable remedies such as an injunction or rescission based
on a director's breach of his or her duty of care. The provisions of the
Certificate described above apply to an officer of the Registrant only if he
or she is a director of the Registrant and is acting in his or her capacity
as director, and do not apply to officers of the Registrant who are not
directors.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
Item 9. Undertakings.
------------
The undersigned Registrant hereby undertakes, except as otherwise
specifically provided in the rules of the Securities and Exchange Commission
promulgated under the Securities Act of 1933:
(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 this Registration Statement (or the most recent post-
effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
(iii) 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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this Registration Statement;
II-3
<PAGE>
(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.
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 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.
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 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 Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby
appoints each of Anu D. Saad, Ph.D. and John P. Gandolfo as attorneys-in-fact
with full power of substitution, severally, to execute in the name and on
behalf of the Registrant and each such person, individually and in each
capacity stated below, one or more amendments to this Registration Statement
as the attorney-in-fact acting in the premises deems appropriate and to file
any such amendment to this Registration Statement with the Securities and
Exchange Commission.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 New York and State of New York on
the 31st day of July, 1996.
IMPATH INC.
By/s/ Anu D. Saad
---------------------------------
Anu D. Saad, Ph.D.
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Anu D. Saad President, Chief Executive July 31, 1996
--------------------------- Officer and Director
Anu D. Saad, Ph.D.
/s/ John P. Gandolfo Executive Vice President, July 31, 1996
--------------------------- Chief Financial Officer and
John P. Gandolfo Principal Accounting Officer
II-5
<PAGE>
Signature Title Date
--------- ----- ----
/s/ John L. Cassis Chairman of the Board July 31, 1996
--------------------------- and Director
John L. Cassis
___________________________ Director ______ __, 1996
Richard J. Cote, M.D.
/s/ Richard Kessler Director July 31, 1996
---------------------------
Richard Kessler
/s/ Joseph A. Mollica Director July 31, 1996
---------------------------
Joseph A. Mollica
___________________________ Director ______ __, 1996
Marcy H. Shockey
___________________________ Director ______ __, 1996
David B. Snow, Jr.
II-6
<PAGE>
CONSENT OF COUNSEL
The consent of Haythe & Curley is contained in
their opinion filed as Exhibit 5 to this Registration Statement.
II-7
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Impath Inc.
We consent to the use of our reports incorporated herein by reference.
KPMG Peat Marwick LLP
New York, New York
August 1, 1996
II-8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Number Description of Exhibit Page
- -------- --------------------------------------------------- ----
<S> <C> <C>
4(i) - Impath Inc. (formerly Impath Laboratories Inc.)
1989 Stock Option Plan, as amended (the "Stock
Option Plan")
5 - Opinion of Haythe & Curley
23(i) - Consent of KPMG Peat Marwick LLP, Independent
Auditors (See "Consent of Independent Auditors" in
the Registration Statement)
23(ii) - Consent of Haythe & Curley (contained in Exhibit
5)
24 - Power of Attorney (see "Power of Attorney" in the
Registration Statement)
</TABLE>
<PAGE>
EXHIBIT 4(i)
IMPATH LABORATORIES INC.
1989 STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Plan are to
--------------------
attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to all the
Employees and Consultants of the Company and to promote the success of the
Company's business.
It is intended that each Option granted hereunder will either
qualify as an "incentive stock option", as defined in Section 422A(b) of
the Internal Revenue Code of 1986, as amended (the "Code") or be a "non-
statutory stock option."
2. Definitions. As used herein, the following definitions shall
-----------
apply:
(a) "Board" shall mean the Committee, if one has been appointed,
-----
or the Board of Directors of the Company, if no Committee is appointed.
(b) "Committee" shall mean the Committee appointed by the Board
---------
of Directors in accordance with paragraph (a) of Section 4 of the Plan, if
one is appointed.
(c) "Common Stock" shall mean the Common Stock of the Company.
------------
(d) "Company" shall mean IMPATH LABORATORIES INC., a Delaware
-------
corporation.
(e) "Consultant" shall mean any person or entity who or which is
----------
engaged by the Company or any Parent or Subsidiary of the Company to render
consulting services and is compensated for such consulting services and any
director of the Company whether compensated for such services or not;
provided that, in the event the Company registers any security under
Section 12 of the Securities Exchange Act of 1934, as amended, the term
Consultant shall thereafter not include directors who are not compensated
for their services and are paid only a director's fee by the Company.
(f) "Continuous Status as an Employee/Consultant" shall mean the
-------------------------------------------
absence of any interruption or termination of service as an Employee or
Consultant. Continuous Status as an - Employee/Consultant shall not be
considered interrupted while an Employee/Consultant is on sick leave,
military leave, or any other leave of absence approved by the Board, if the
period of such leave does not exceed 90
<PAGE>
days, or, if longer, so long as the Employee's or Consultant's right to
reemployment or to continue consulting services, as the case may be, with
the Company or any Parent or Subsidiary is guaranteed either by statute or
by contract.
(g) "Employee" shall mean any person, including an officer or
--------
director, employed by the Company or any Parent or Subsidiary of the
Company. The payment of a director's fee by the Company shall not be
sufficient to constitute "employment" by the Company.
(h) "Incentive Stock Option" shall mean an option intended to
----------------------
qualify as an incentive stock option within the meaning of Section 422A(b)
of the Code.
(i) "Non-Statutory Stock Option" shall mean an option which is
--------------------------
not intended to qualify as an Incentive Stock Option.
(j) "Option" shall mean an option which is granted pursuant to
------
the Plan to purchase shares of Common Stock of the Company.
(k) "Optioned Stock" shall mean the shares of Common Stock
--------------
subject to an Option.
(l) "Optionee" shall mean an Employee or Consultant to whom an
--------
Option has been granted.
(m) "Parent" shall mean a "parent corporation," whether now or
------
hereafter existing, as defined in Section 425(e) of the Code.
(n) "Plan" shall mean this 1989 Stock Option Plan.
----
(o) "Share" shall mean a share of Common Stock.
-----
(p) "Subsidiary" shall mean a "subsidiary corporation," whether
----------
now or hereafter existing, as defined in Section 425(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of
-------------------------
Section 11 of the Plan, the aggregate number of Shares which may be
optioned and sold under the Plan is 575,000. The Shares may be authorized,
but unissued, or reacquired Common Stock.
<PAGE>
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were
subject thereto shall, unless the Plan shall have been terminated, become
available for future grant under the Plan.
4. Administration Of the Plan.
--------------------------
(a) Procedure. The Plan shall be administered by the Board of
---------
Directors of the Company.
(i) The Board of Directors may appoint a Committee consisting of
not less than three members of the Board of Directors to administer the
Plan on behalf of the Board of Directors, subject to such terms and
conditions as the Board of Directors may prescribe. Once appointed, the
Committee shall have all the powers and rights with respect to the Plan as
the Board of Directors shall have and shall continue to serve until
otherwise directed by the Board of Directors. From time to time the Board
of Directors may increase the size of the Committee and appoint additional
members thereof, remove members (with or without cause), and appoint new
members in substitution therefor, fill vacancies however caused and remove
all members of the Committee, and thereafter directly administer the Plan.
Members of the Board who are either eligible for Options or have been
granted Options may vote on any matters affecting the administration of the
Plan or the grant of any Options pursuant to the Plan, except that no such
member shall act upon the granting of an Option to himself, but any such
member may be counted in determining the existence of a quorum at any
meeting of the Board during which action is taken with respect to the
granting of Options to him.
(ii) Notwithstanding the foregoing subparagraph (i), if the
Company registers any class of any equity security pursuant to Section 12
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Plan shall, from the effective date of such registration until six
months after the term of such registration, be administered as follows:
The Plan shall continue to be administered by the Board of Directors;
provided, however, that if a majority of the Board of Directors is eligible
to be granted Options or has been eligible at any time within the preceding
year, a Committee must be appointed to administer the Plan as provided
below.
The Board of Directors may appoint a Committee consisting of not less than
three members of the Board of Directors, none of
<PAGE>
whom is eligible or has been eligible at any time within the preceding year
to be granted Options, to administer the Plan on behalf of the Board of
Directors, subject to such terms and conditions as the Board of Directors
may prescribe. Once appointed, the Committee shall continue to serve until
otherwise directed by the Board of Directors. From time to time the Board
of Directors may increase the size of the Committee and appoint additional
members thereof, remove members (with or without cause), and appoint new
members in substitution therefor, fill vacancies however caused, or remove
all members of the Committee and thereafter directly administer the Plan;
provided, however, that at no time shall a person who is eligible or has
been eligible at any time within the preceding year to be granted Options
serve on the Committee, nor shall a Committee of less than three members
administer the Plan.
Members of the Board of Directors who are either presently eligible or who
have been eligible at any time within the preceding year for Options may
not vote on any matters affecting the administration of the Plan nor on the
grant of any Options pursuant to the Plan, but any such member may be
counted in determining the existence of a quorum at any meeting of the
Board of Directors during which action is taken with respect to the
granting of Options or the administration of the Plan.
(b) Powers of the Board. Subject to the provisions of the Plan,
-------------------
the Board shall have the authority, in its discretion: (i) to grant
Options; (ii) to determine, in accordance with Section 8(b) of the Plan,
the fair market value per Share of the Common Stock; (iii) to determine, in
accordance with Section 8(a) or the Plan, the exercise price per Share at
which Options may be exercised; (iv) to determine the Employees and
Consultants to whom, and the time or times at which, options shall be
granted, the number of Shares to be represented by each Option and whether
such Options shall be Incentive Stock Options, Non-Statutory Stock Options,
or any combination thereof; (v) to interpret the Plan; (vi) to prescribe,
amend and rescind rules and regulations relating to the Plan; (vii) to
determine the terms and provisions of each Option granted (which need not
be identical) and, with the consent of the holder thereof, to modify or
amend any outstanding Option; (viii) to accelerate or defer (with the
consent of the Optionee) the exercise date of any outstanding option; (ix)
to authorize any person to execute on behalf of the Company any instrument
required to effectuate the grant of an option previously granted by the
Board; and (x) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
<PAGE>
(c) Effect of Board's Decision. All decisions, determinations
--------------------------
and interpretations of the Board shall be final and binding on all
Optionees and any other holders of any Options granted under the Plan.
5. Eligibility.
-----------
(a) Incentive Stock Options may be granted only to Employees.
Non-Statutory Stock Options may be granted to either Employees or
Consultants. An Employee or Consultant who has been granted an Option may,
if he is otherwise eligible, be granted an additional Option or Options.
(b) The Plan shall not confer upon any Optionee any right with
respect to continuation of employment by, or consulting relationship with,
the Company, nor shall it interfere in any way with his right or the
Company's right to terminate his employment or consulting relationship at
any time.
(c) $100 000 Limitation on Annual Vesting of Incentive Stock
--------------------------------------------------------
Options. Subject to the provisions of this Section 5, to the extent that
-------
the aggregate fair market value of Shares with respect to which Incentive
Stock Options (determined without regard to the provisions of this Section
5) are exercisable for the first time by any Employee during any calendar
year (under all plans of the Company and its Parent and Subsidiary) exceeds
$100,000, such Options shall be treated as Options that are Non-Statutory
Stock Options. For purposes of this rule, which shall be applied by taking
Options into account in the order in which they were granted, the fair
market value of any Shares shall be determined as of the time the Option
with respect to such Shares is granted.
6. Term of Plan. The Plan shall become effective upon the date
------------
of its adoption by the Board of Directors or, if earlier, the date of its
approval by vote of the holders of a majority of the outstanding shares of
the Company entitled to vote on the adoption of the Plan. It shall continue
in effect for a term of ten (10) years from such date, unless sooner
terminated under Section 13 of the Plan.
7. Term of Option. The term of each Option shall be ten (10)
--------------
years from the date of grant thereof or such shorter term as may be
determined by the Board. However, in the case of any Incentive Stock Option
granted to an Employee who, at the time of grant, owns stock representing
more than ten percent (10%) of the voting power of all classes of stock of
the Company or any Parent or Subsidiary, the term of such Incentive Stock
Option shall be five (5) years from the date of
<PAGE>
grant thereof or such shorter time as may be determined by the Board.
8. Exercise Price and Method of Payment.
------------------------------------
(a) The per Share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as is determined by
the Board, but in the case of an Incentive Stock Option, such price shall
not be less than 100% (or, in the case of an Incentive Stock Option granted
to an Employee who, at the time of grant, owns stock representing more than
ten (10%) percent of the voting power of all classes of stock of the
Company or any Parent or Subsidiary, 110%) of the fair market value per
Share on the date such option was granted.
(b) The fair market value per Share shall be such amount as the
Board, in its sole discretion shall determine; provided, however, that
where there is a public market for the Common Stock, the fair market value
per Share shall be the mean of the bid and asked prices of the Common Stock
for the date of grant, as reported in The Wall Street Journal (or, if not
so reported, as otherwise reported by the National Association of
Securities Dealers Automated-Quotation (NASDAQ) System) or, in the event
the Common Stock is listed on a stock exchange, the fair market value per
Share shall be the mean of the highest and lowest sales prices of the
Common Stock on such exchange on the date of grant of the Option, as
reported in The Wall Street Journal.
(c) Payment for the Shares upon exercise of an Option shall be
made in cash, or by check, promissory note, or if authorized by the Board,
by delivery of other Shares having a fair market value on the date of
delivery equal to the aggregate exercise price of the Shares as to which
said Option is being exercised, or by any combination of such methods of
payment or by any other method of payment as may be permitted under
applicable law and as may be authorized by the Board.
9. Exercise of Option.
------------------
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
-----------------------------------------------
granted hereunder shall be exercisable at such times under such conditions
as shall be determined by the Board, including performance criteria with
respect to the Company and/or the Optionee, and as shall be permissible
under the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
<PAGE>
An Option shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment
for the Shares with respect to which the Option is exercised has been
received by the Company. Full payment may, as authorized by the Board,
consist of any form of consideration and method of payment allowable under
Section 8(c) of the Plan. 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 stock certificate evidencing such
Shares, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding
the 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 as of which the
stock certificate is issued, except as provided in Section 11 of the Plan.
Each exercise of an Option shall reduce, pro tanto, the total
number of Shares that may thereafter be purchased under such Option.
Subject to the provisions of Section 5(c), in no event shall the exercise
of an Incentive Stock Option by an Employee have any effect on the exercise
of any Non-Statutory Stock Options granted to such Employee, nor shall
the exercise of a Non-Statutory Stock Option have any effect on the
exercise of any Incentive Stock Options granted to such Employee.
(b) Termination of Status as an Employee or Consultant. If an
--------------------------------------------------
Optionee ceases to be an Employee or ceases to serve as a Consultant, he
may, but only within thirty (30) days after the date he ceases to be an
Employee or Consultant, exercise his Option to the extent that he was
entitled to exercise it at the date of such termination. To the extent
that he was not entitled to exercise the Option at such date, or does not
exercise it within the time specified herein, the Option shall terminate.
(c) Notwithstanding the provisions of Section 9(b) above, in the
event an Employee or Consultant is unable to continue his employment or
consulting relationship with the Company as a result of his permanent and
total disability (as defined in Section 22(e)(3) of the Code), he may, but
only within twelve (12) months from the date of termination, exercise his
Option to the extent he was entitled to exercise it at the date of such
termination. To the extent that he was not entitled to exercise the Option
at such date, or if he does not exercise it within the time specified
herein, the Option shall terminate.
<PAGE>
(d) Death of Optionee. Upon the death of an Optionee, any Option
-----------------
held by him shall terminate and be of no further effect, except as provided
below:
(i) If the Optionee's death occurs during the term of the Option
and, at the time of his death the Optionee was an Employee or Consultant of
the Company and had been in Continuous Status as an Employee/Consultant
since the date of grant of the Option, the Option may be exercised, at any
time within twelve (12) months following the date of the Optionee's death,
by the Optionee's estate or by a person who acquired the right to exercise
the Option by bequest or inheritance, but only as to the number of Shares
subject to the Option as to which the right to exercise had accrued to the
Optionee at the date of death.
(ii) If the Optionee's death occurs within thirty (30) days after
the termination of his Continuous Status as an Employee/Consultant, the
Option may be exercised, at any time within three (3) months following the
date of the Optionee's death, by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but
only to the extent of the right to exercise that had accrued at the date of
termination.
10. Non-Transferability of Options. Any Option granted
------------------------------
hereunder may not be sold, pledged, assigned, hypothecated, transferred, or
disposed of in any manner other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime of the Optionee,
only by the Optionee.
11. Adjustments Upon Chances in Capitalization or Merger.
----------------------------------------------------
Subject to any required action by the shareholders of the Company, the
number of Shares covered by each outstanding Option, and the aggregate
number of Shares which have been authorized for issuance under the Plan, as
well as the exercise price per Share of Common Stock covered by each such
outstanding Option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a
stock split or the payment of a stock dividend with respect to the Common
Stock or any other increase or decrease in the number of issued shares of
Common Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the
Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares
of stock
<PAGE>
of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an
Option.
In the event of the proposed dissolution or liquidation of the
Company, or in the event of a proposed sale of all or substantially all of
the assets of the Company, or the merger of the Company with or into
another corporation, the Option will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the
Board. The Board may, in the exercise of its sole discretion, in such
instances declare that any Option shall terminate as of a date fixed by the
Board and give each Optionee the right to exercise his Option as to all or
any part of the Optioned Stock, including Shares as to which the Option
would not otherwise be exercisable.
12. Time of Granting Options. Any Option granted hereunder
------------------------
shall be deemed to have been granted on the date on which the Board makes
its determination to grant such Option to the optionee. Written notice of
the Board's determination to grant an Option to an Employee shall be given
to such Employee within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
-------------------------------------
(a) Amendment and Termination. The Board may terminate the Plan
-------------------------
at any time. The Board may amend the Plan at any time in such respects as
the Board may deem advisable; provided, that the following amendments shall
require approval of the holders of a majority of the outstanding shares of
the Company entitled to vote:
(i) any change in the aggregate number of Shares which may be
optioned and sold under the Plan, other than in connection with an
adjustment under Section 11 of the Plan;
(ii) any change in the designation of the class of employees
eligible to be granted Incentive Stock Options; or
(iii) if the Company has a class of equity security registered
under Section 12 of the Exchange Act at the time of such amendment, any
change in the Plan which would materially increase the benefits accruing to
participants under the Plan.
<PAGE>
(b) Effect of Amendment or Termination. The amendment or
----------------------------------
termination of the Plan shall not change in any way the rights and
obligations under any Option which was granted to an Optionee prior to such
amendment or termination, unless the Optionee shall have consented to such
change in writing.
14. Conditions Upon Issuance of Shares. Shares shall not be
----------------------------------
issued pursuant to the exercise of an Option unless (a) the exercise of
such Option and the issuance and delivery of such Shares pursuant thereto
shall comply with all relevant provisions of law, including, without
limitation, the Securities Act of 1933, as amended, the Exchange Act, the
rules and regulations promulgated thereunder, and the requirements of any
stock exchange upon which the Shares may then be listed, and shall be
further subject to the approval of counsel for the Company with respect to
such compliance, and (b) the Optionee exercises Options for the lesser of
(i) one hundred (100) Shares, or (ii) all of the Shares then subject to his
Options.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the
time of any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or distribute such
Shares if, in the opinion of counsel for the Company, such a representation
is required by any of the aforementioned relevant provisions of law.
15. Reservation of Shares. The Company, during the term of this
---------------------
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain authority from any regulatory
body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful issuance and sale of any Shares
hereunder, shall relieve the Company of any liability in respect of the
failure to issue or sell such Shares as to which such requisite authority
shall not have been obtained.
16. Option Agreement. Options shall be evidenced by written
----------------
option agreements in such form as the Board shall approve, and shall
contain, in the case of Incentive Stock Options, such provisions as shall
be necessary for the Option to which such agreement relates to qualify as
to an Incentive Stock Option.
<PAGE>
17. Shareholder Approval. If the Plan is adopted by action of
--------------------
the Board of Directors prior to approval by the Company's shareholders,
continuance of the Plan shall be subject to approval of the Plan by the
shareholders of the Company within 12 months after the date on which the
Plan is so adopted.
With respect to any amendment of the Plan requiring approval of
the Company's shareholders, such approval shall be obtained within 12
months before or after the date such amendment is adopted; provided, that
if the Company has a class of equity security registered under Section 12
of the Exchange Act at the time of such amendment, such amendment shall not
become effective until such approval has been obtained.
If, after the Plan has been adopted, the Company registers any
class of any equity security pursuant to Section 12 of the Exchange Act,
the Plan and all amendments thereto since the Plan's adoption shall be
submitted to the shareholders of the Company for their approval. Such
approval shall be obtained at or prior to the first annual meeting of
shareholders held subsequent to the first such registration of securities.
Such approval of the shareholders, and their approval of any subsequent
amendment to the Plan requiring their approval, shall be solicited: (i)
substantially in accordance with Section 14(a) of the Exchange Act and the
rules and regulations promulgated thereunder; or (ii) after the Company has
furnished in writing to the shareholders entitled to vote substantially the
same information concerning the Plan as that which would be required by the
rules and regulations then in effect under Section 14(a).
<PAGE>
AMENDMENTS TO
IMPATH INC.
1989 STOCK OPTION PLAN
----------------------
1. Section 2(e) of the Plan is hereby amended to read as
follows:
"(e) "Consultant" shall mean any person or entity who or which
----------
is engaged by the Company or any Parent or Subsidiary of the Company
to render consulting services and is compensated for such consulting
services and any director of the Company whether compensated for such
services or not."
2. The first sentence of Section 3 of the Plan is hereby
amended to read as follows:
"Subject to the provisions of Section 11 of the Plan, the
aggregate number of Shares which may be optioned and sold under the
Plan is 2,496,478."
3. Section 4(a)(ii) of the Plan is hereby amended to read as
follows:
"(ii) Notwithstanding any provision contained in the Plan to the
contrary, during any period subsequent to the registration by the
Company of any class of equity securities pursuant to Section 12 of
the Securities Exchange Act of 1934 (the "Exchange Act"), the Plan
shall be administered by the Committee and, while any member of the
Committee shall not be a "disinterested person" as defined in Rule
16b-3 under the Exchange Act, as such Rule was in effect at April 30,
1991, then, the terms and conditions of Options granted under the Plan
to any director of the Company during such period shall be as follows:
(1) The price at which each Share subject to an Option may be
purchased shall, subject to any adjustments which may be made pursuant
to Section 11, in no event be less than the fair market value per
Share on the date of grant, and provided further that in the event the
Option is intended to be an Incentive Stock Option and the Optionee
owns on the date of grant securities possessing more than 10% of the
total combined voting power of all classes of securities of the
Company or of any Parent or Subsidiary, the price per Share shall not
be less than 110% of the fair market value per Share on the date of
grant.
<PAGE>
(2) The Option may be exercised to purchase Shares covered by the
Option not sooner than six months following the date of grant. The
Option shall terminate and no Shares of Stock may be purchased
thereunder more than ten years after the date of grant, provided that
if the Option is intended to be an Incentive Stock Option and the
Optionee owns on the date of grant stock possessing more than 10% of
the total combined voting power of all classes of securities of the
Company or of any Parent or Subsidiary, the Option shall terminate and
no Shares may be purchased thereunder more than five years after the
date of grant.
(3) The maximum number of Shares of Common Stock which may be
subject to Options granted to all directors pursuant to this Section
4(a)(ii) shall be 700,000 Shares in the aggregate and the maximum
number of Shares of Common Stock which may be subject to Options
granted to any director (including any Options granted under the Plan
to a director in his or her position as an officer or employee of the
Company) shall be 100,000 Shares.
<PAGE>
Exhibit 5
August 1, 1996
Impath Inc.
1010 Third Avenue, Suite 302
New York, New York 10021
Dear Sirs:
We have acted as counsel for Impath Inc., a Delaware corporation (the
"Company"), in connection with the registration statement on Form S-8 being
filed by the Company under the Securities Act of 1933, as amended, with respect
to 793,141 shares (the "Shares") of the Company's common stock, $.005 par value,
which have been or are to be offered by the Company to employees, directors,
consultants and other individuals providing services to the Company or any of
its subsidiary or parent corporations pursuant to the Company's 1989 Stock
Option Plan (the "Plan").
In connection with such registration statement, we have examined such
records and documents and such questions of law as we have deemed appropriate
for purposes of this opinion. On the basis of such examination, we advise you
that, in our opinion, the Shares have been duly and validly authorized and, when
issued and paid for in accordance with the terms of the Plan and stock options
duly granted thereunder, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to
the aforesaid registration statement.
Very truly yours,
HAYTHE & CURLEY
