<PAGE>
As filed with the Securities and Exchange Commission on March 10, 1998.
Subject to amendment.
Registration No. 333-
================================================================================
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)
----------
521 West 57th Street
New York, New York 10019
(Address of principal executive offices; zip code)
----------
IMPATH INC.
1997 LONG TERM INCENTIVE PLAN
(Full titles of the plans)
----------
Anu D. Saad, Ph.D.
President and Chief Executive Officer
521 West 57th Street
New York, New York 10019
(212) 698-0300
(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
----------
Approximate date of proposed sale to the public:
As soon as practicable after the
Registration Statement becomes effective
----------
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per share* aggregate offering price registration fee
--------------------- ------------- ------------------------- ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock 300,000 $33.875 $10,162,500 $3,079.55
(par value
$0.005 per share)
</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 for the
registrant's shares of Common Stock on March 3, 1998 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) and (b) 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. Any statement contained in
any document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any 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 modified or superseded, to
constitute a part of this Registration Statement.
(a) The Registrant's Annual Report on Form 10-K for the year ended December
31, 1997.
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as amended.
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 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
<PAGE>
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.
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
II-2
<PAGE>
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;
(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
II-3
<PAGE>
(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 10th day of
March, 1998.
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 March 10, 1998
- -------------------------- Officer and Director
Anu D. Saad, Ph.D.
/s/ John P. Gandolfo Executive Vice President, March 10, 1998
- -------------------------- Chief Operating Officer,
John P. Gandolfo Chief Financial Officer and
Principal Accounting Officer
II-5
<PAGE>
Signature Title Date
- --------- ----- ----
/s/ John L. Cassis Chairman of the Board March 10, 1998
- --------------------------- and Director
John L. Cassis
/s/ Richard J. Cote Director March 10, 1998
- ---------------------------
Richard J. Cote, M.D.
/s/ Richard Kessler Director March 10, 1998
- ---------------------------
Richard Kessler
Director _____ _, 1998
- ---------------------------
Joseph A. Mollica
/s/ Marcel Rozencweig Director March 10, 1998
- -----------------------
Marcel Rozencweig, M.D.
Director ____ _, 1998
- -----------------------------
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
Short Hills, New Jersey
March 10, 1998
II-8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Number Description of Exhibit Page
- -------- --------------------------------------------------------- ------------------
<S> <C> <C> <C>
4(i) - IMPATH Inc. 1997 Long Term Incentive 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 INC.
1997 LONG TERM INCENTIVE PLAN
SECTION 1. Purpose. The purposes of this IMPATH Inc. 1997 Long Term
Incentive Plan (the "Plan") are to encourage selected employees, officers,
directors and consultants of, and other individuals providing services to,
IMPATH Inc. (together with any successor thereto, the "Company") and its
Affiliates (as defined below) to acquire a proprietary interest in the growth
and performance of the Company, to generate an increased incentive to contribute
to the Company's future success and prosperity thus enhancing the value of the
Company for the benefit of its shareholders, and to enhance the ability of the
Company and its Affiliates to attract and retain exceptionally qualified
individuals upon whom, in large measure, the sustained progress, growth and
profitability of the Company depend.
SECTION 2. Definitions. As used in the Plan, the following terms shall have
the meanings set forth below:
"Affiliate" shall mean (i) any entity that, directly or through one or more
intermediaries, is controlled by the Company and (ii) any entity in which the
Company has a significant equity interest, as determined by the Committee.
"Award" shall mean any Option, Stock Appreciation Right, Restricted Security,
Performance Award, or Other Stock-Based Award granted under the Plan.
"Award Agreement" shall mean any written agreement, contract or other
instrument or document evidencing any Award granted under the Plan.
"Board" shall mean the Board of Directors of the Company.
"Cause", as used in connection with the termination of a Participant's
employment, shall mean (i) with respect to any Participant employed under a
written employment agreement with the Company or an Affiliate of the Company
which agreement includes a definition of "cause," "cause" as defined in such
agreement or, if such agreement contains no such definition, a material breach
by the Participant of such agreement, or (ii) with respect to any other
Participant, the failure to perform adequately in carrying out such
Participant's employment responsibilities, including any directives from the
Board, or engaging in such behavior in his personal or business life as
<PAGE>
2
to lead the Committee in its reasonable judgment to determine that it is in the
best interests of the Company to terminate his employment.
"Common Stock" shall mean the common stock of the Company, $.01 par value.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder.
"Committee" shall mean the Compensation Committee or any other committee of
the Board designated by the Board to administer the Plan and composed of not
less than three nonemployee directors.
"Common Shares" shall mean any or all, as applicable, of the Common Stock and
such other securities or property as may become the subject of Awards, or become
subject to Awards, pursuant to an adjustment made under Section 4(b) of the Plan
and any other securities of the Company or any Affiliate or any successor that
may be so designated by the Committee.
"Employee" shall mean any employee of the Company or of any Affiliate.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean (A) with respect to any property other than the
Common Shares, the fair market value of such property determined by such methods
or procedures as shall be established from time to time by the Committee; and
(B) with respect to the Common Shares, the last sale price regular way on the
date of reference, or, in case no sale takes place on such date, the average of
the high bid and low asked prices, in either case on the principal national
securities exchange on which the Common Shares are listed or admitted to
trading, or if the Common Shares are not listed or admitted to trading on any
national securities exchange, the last sale price reported on the National
Market System of the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") on such date, or the average of the closing high bid
and low asked prices in the over-the-counter market reported on NASDAQ on such
date, whichever is applicable, or if there are no such prices reported on NASDAQ
on such date, as furnished to the Committee by any New York Stock Exchange
member selected from time to time by the Committee for such purpose. If there
is no bid or asked price reported on any such date, the Fair Market Value shall
be determined by the Committee in accordance
<PAGE>
3
with the regulations promulgated under Section 2031 of the Code, or by any other
appropriate method selected by the Committee.
"Good Reason", as used in connection with the termination of a Participant's
employment, shall mean (i) with respect to any Participant employed under a
written employment agreement with the Company or an Affiliate of the Company,
"good reason" as defined in such written agreement or, if such agreement
contains no such definition, a material breach by the Company of such agreement,
or (ii) with respect to any other Participant, a failure by the Company to pay
such Participant any amount otherwise vested and due and a continuation of such
failure for 30 business days following notice to the Company thereof.
"Incentive Stock Option" shall mean an option granted under Section 6(a) of
the Plan that is intended to meet the requirements of Section 422 of the Code or
any successor provision thereto.
"Non-Qualified Stock Option" shall mean an option granted under Section 6(a)
of the Plan that is not intended to be an Incentive Stock Option. Any stock
option granted by the Committee which is not designated an Incentive Stock
Option shall be deemed a Non-Qualified Stock Option.
"Option" shall mean an Incentive Stock Option or a Non-Qualified Stock Option.
"Other Stock-Based Award" shall mean any right granted under Section 6(e) of
the Plan.
"Participant" shall mean any individual granted an Award under the Plan.
"Performance Award" shall mean any right granted under Section 6(d) of the
Plan.
"Person" shall mean any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, or government or
political subdivision thereof.
"Released Securities" shall mean securities that were Restricted Securities
but with respect to which all applicable restrictions have expired, lapsed or
been waived in accordance with the terms of the Plan or the applicable Award
Agreement.
<PAGE>
4
"Restricted Securities" shall mean any Common Shares granted under Section
6(c) of the Plan, any right granted under Section 6(c) of the Plan that is
denominated in Common Shares or any other Award under which issued and
outstanding Common Shares are held subject to certain restrictions.
"Rule 16a-1" and "Rule 16b-3" shall mean, respectively, Rule 16a-1 and Rule
16b-3 promulgated by the Securities and Exchange Commission under the Exchange
Act, or any successor rule or regulation thereto as in effect from time to time.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock Appreciation Right" shall mean any right granted under Section 6(b) of
the Plan.
SECTION 3. Administration. The Plan shall be administered by the Committee.
Subject to the terms of the Plan and applicable law, and in addition to other
express powers and authorizations conferred on the Committee by the Plan, the
Committee shall have full power and authority to: (i) designate Participants;
(ii) determine the type or types of Awards to be granted to an eligible Employee
or other individual under the Plan; (iii) determine the number and
classification of Common Shares to be covered by (or with respect to which
payments, rights or other matters are to be calculated in connection with)
Awards; (iv) determine the terms and conditions of any Award; (v) determine
whether, to what extent, and under what circumstances Awards may be settled or
exercised in cash, Common Shares, other securities, other Awards or other
property, or canceled, forfeited or suspended, and the method or methods by
which Awards may be settled, exercised, canceled, forfeited or suspended; (vi)
determine requirements for the vesting of Awards or performance criteria to be
achieved in order for Awards to vest; (vii) determine whether, to what extent
and under what circumstances cash, Common Shares, other securities, other
Awards, other property and other amounts payable with respect to an Award under
the Plan shall be deferred either automatically or at the election of the holder
thereof or of the Committee; (viii) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan; (ix)
establish, amend, suspend or waive such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration of the Plan;
and (x) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan.
Unless otherwise expressly provided in the Plan, all
<PAGE>
5
designations, determinations, interpretations and other decisions under or with
respect to the Plan or any Award shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive and binding
upon all Persons, including the Company, any Affiliate, any Participant, any
holder or beneficiary of any Award, any shareholder and any Employee.
Notwithstanding the foregoing, the maximum number of Awards which may be granted
to any one Participant under this Plan in any one-year period shall not exceed
100,000 Common Shares, subject to the adjustments provided in Section 4(b)
hereof and no Awards under this Plan shall be granted after December 31, 2006.
SECTION 4. Common Shares Available for Awards.
(a) Common Shares Available. Subject to adjustment as provided in Section
4(b):
(i) Calculation of Number of Common Shares Available. The number
of Common Shares available for granting Awards under the Plan shall be
300,000, any or all of which may be or may be based on Common Stock, any
other security which becomes the subject of Awards, or any combination
thereof. Initially 300,000 shares of Common Stock shall be reserved for
Awards hereunder. Further, if, after the effective date of the Plan, any
Common Shares covered by an Award granted under the Plan or to which such
an Award relates, are forfeited, or if an Award otherwise terminates or is
canceled without the delivery of Shares or of other consideration, then the
Common Shares covered by such Award or to which such Award relates, or the
number of Common Shares otherwise counted against the aggregate number of
Common Shares available under the Plan with respect to such Award, to the
extent of any such forfeiture, termination or cancellation, shall again be,
or shall become, available for granting Awards under the Plan.
(ii) Accounting for Awards. For purposes of this Section 4,
(A) if an Award is denominated in or based upon Common Shares, the
number of Common Shares covered by such Award or to which such Award
relates shall be counted on the date of grant of such Award against
the aggregate number of Common Shares available for granting Awards
under the Plan and against the maximum number of Awards available to
any Participant; and
<PAGE>
6
(B) Awards not denominated in Common Shares may be counted against
the aggregate number of Common Shares available for granting Awards
under the Plan and against the maximum number of Awards available to
any participant in such amount and at such time as the Committee shall
determine under procedures adopted by the Committee consistent with
the purposes of the Plan;
provided, however, that Awards that operate in tandem with (whether granted
simultaneously with or at a different time from), or that are substituted
for, other Awards may be counted or not counted under procedures adopted by
the Committee in order to avoid double counting. Any Common Shares that
are delivered by the Company, and any Awards that are granted by, or become
obligations of, the Company, through the assumption by the Company or an
Affiliate of, or in substitution for, outstanding awards previously granted
by an acquired company shall, in the case of Awards granted to Participants
who are officers or directors of the Company for purposes of Section 16 of
the Exchange Act, be counted against the Common Shares available for
granting Awards under the Plan.
(iii) Sources of Common Shares Deliverable Under Awards. Any
Common Shares delivered pursuant to an Award may consist, in whole or in
part, of authorized and unissued Common Shares or of treasury Common
Shares.
(b) Adjustments. In the event that the Committee shall determine that any
dividend or other distribution (whether in the form of cash, Common Shares,
other securities or other property), recapitalization, stock split, reverse
stock split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Common Shares or other securities of the
Company, issuance of warrants or other rights to purchase Common Shares or other
securities of the Company, or other similar corporate transaction or event
affects the Common Shares such that an adjustment is determined by the Committee
to be appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust any or all of
(i) the number and kind of Common Shares (or other securities or property) which
thereafter may be made the subject of Awards, (ii) the number and kind of Common
Shares (or other securities or property) subject to outstanding Awards, and
(iii) the grant or exercise price with respect to any Award or, if deemed
appropriate, make provision for a cash payment to the holder of an outstanding
Award; provided, however, that the
<PAGE>
7
number of Common Shares subject to any Award denominated in Common Shares shall
always be a whole number.
In connection with any merger or consolidation in which the Company is not the
surviving corporation and which results in the holders of the outstanding voting
securities of the Company (determined immediately prior to such merger or
consolidation) owning less than a majority of the outstanding voting securities
of the surviving corporation (determined immediately following such merger or
consolidation), or any sale or transfer by the Company of all or substantially
all its assets or any tender offer or exchange offer for or the acquisition,
directly or indirectly, by any person or group of all or a majority of the then
outstanding voting securities of the Company, all outstanding Options under the
Plan shall become exercisable in full, notwithstanding any other provision of
the Plan or of any outstanding Options granted thereunder, on and after (i) the
fifteenth day prior to the effective date of such merger, consolidation, sale,
transfer or acquisition or (ii) the date of commencement of such tender offer or
exchange offer, as the case may be. The provisions of the foregoing sentence
shall apply to any outstanding Options which are Incentive Stock Options to the
extent permitted by Section 422(d) of the Code and such outstanding Options in
excess thereof shall, immediately upon the occurrence of the event described in
clause (i) or (ii) of the foregoing sentence, be treated for all purposes of the
Plan as Non-Qualified Stock Options and shall be immediately exercisable as such
as provided in the foregoing sentence.
SECTION 5. Eligibility. Any Employee, including any officer or employee-
director of the Company or of any Affiliate, and any consultant of, or other
individual providing services to, the Company or any Affiliate shall be eligible
to be designated a Participant. A non-employee director shall be eligible to
receive Non-Qualified Stock Options under the Plan.
SECTION 6. Awards.
(a) Options. The Committee is hereby authorized to grant to eligible
individuals options to purchase Common Shares (each, an "Option") which shall
contain the following terms and conditions and with such additional terms and
conditions, in either case not inconsistent with the provisions of the Plan, as
the Committee shall determine:
(i) Exercise Price. The purchase price per Common Share purchasable
under an Option shall be determined by the Committee; provided, however,
that such purchase price shall not be less than one hundred percent
<PAGE>
8
(100%) of the Fair Market Value of a Common Share on the date of grant of
such Option, or such other price as required under Subsection 6(a)(iv)
hereof.
(ii) Time and Method of Exercise. Subject to the terms of
Section 6(a)(iii), the Committee shall determine the time or times at which
an Option may be exercised in whole or in part, and the method or methods
by which, and the form or forms (including, without limitation, cash,
Common Shares, outstanding Awards, or other property, or any combination
thereof, having a Fair Market Value on the exercise date equal to the
relevant exercise price) in which, payment of the exercise price with
respect thereto may be made or deemed to have been made.
(iii) Exercisability Upon Death, Retirement and Termination of
Employment. Subject to the condition that no Option may be exercised in
whole or in part after the expiration of the Option period specified in the
applicable Award Agreement:
(A) Subject to the terms of paragraph (D) below, upon the death of
a Participant while employed or within 3 months of retirement or
disability as defined in paragraph (B) below, the Person or Persons to
whom such Participant's rights with respect to any Option held by such
Participant are transferred by will or the laws of descent and
distribution may, prior to the expiration of the earlier of: (1) the
outside exercise date determined by the Committee at the time of
granting the Option, or (2) nine months after such Participant's
death, purchase any or all of the Common Shares with respect to which
such Participant was entitled to exercise such Option immediately
prior to such Participant's death, and any Options not so exercisable
will lapse on the date of such Participant's death;
(B) Subject to the terms of paragraph (D) below, upon termination
of a Participant's employment with the Company (x) as a result of
retirement pursuant to a retirement plan of the Company or an
Affiliate or disability (as determined by the Committee) of such
Participant, (y) by the Company other than for Cause, or (z) by the
Participant with Good Reason, such Participant may, prior to the
expiration of the earlier of: (1) the outside exercise date determined
by the Committee at the time of granting the Option, or (2) three
months after the
<PAGE>
9
date of such termination, purchase any or all of the Common Shares
with respect to which such Participant was entitled to exercise any
Options immediately prior to such termination, and any Options not so
exercisable will lapse on such date of termination;
(C) Subject to the terms of paragraph (D) below, upon termination
of a Participant's employment with the Company under any circumstances
not described in paragraphs (A) or (B) above, such Participant's
Options shall be canceled to the extent not theretofore exercised;
(D) Upon (i) the death of the Participant, or (ii) termination of
the Participant's employment with the Company (x) by the Company other
than for Cause (y) by the Participant with Good Reason or (z) as a
result of retirement or disability as defined in paragraph (B) above,
the Company shall have the right to cancel all of the Options such
Participant was entitled to exercise at the time of such death or
termination (subject to the terms of paragraphs (A) or (B) above) for
a payment in cash equal to the excess, if any, of the Fair Market
Value of one Common Share on the date of death or termination over the
exercise price of such Option for one Common Share times the number of
Common Shares subject to the Option and exercisable at the time of
such death or termination; and
(E) Upon expiration of the respective periods set forth in each of
paragraphs (A) through (C) above, the Options of a Participant who has
died or whose employment has been terminated shall be canceled to the
extent not theretofore canceled or exercised.
(F) For purposes of paragraphs (A) through (D) above, the period of
service of an individual as a director or consultant of the Company or
an Affiliate shall be deemed the period of employment.
(iv) Incentive Stock Options. The following provisions shall
apply only to Incentive Stock Options granted under the Plan:
(A) No Incentive Stock Option shall be granted to any eligible
Employee who, at the time such Option is granted, owns securities
possessing more than ten percent (10%) of the total combined voting
power of
<PAGE>
10
all classes of securities of the Company or of any Affiliate, except
that such an Option may be granted to such an Employee if at the time
the Option is granted the option price is at least one hundred ten
percent (110%) of the Fair Market Value of the Common Shares
(determined in accordance with Section 2) subject to the Option, and
the Option by its terms is not exercisable after the expiration of
five (5) years from the date the Option is granted; and
(B) To the extent that the aggregate Fair Market Value of the
Common Shares with respect to which Incentive Stock Options (without
regard to this subsection) are exercisable for the first time by any
individual during any calendar year (under all plans of the Company
and its Affiliates) exceeds $100,000, such Options shall be treated as
Non-Qualified Stock Options. This subsection shall be applied by
taking Options into account in the order in which they were granted.
If some but not all Options granted on any one day are subject to this
subsection, then such Options shall be apportioned between Incentive
Stock Option and Non-Qualified Stock Option treatment in such manner
as the Committee shall determine. For purposes of this subsection, the
Fair Market Value of any Common Shares shall be determined, in
accordance with Section 2, as of the date the Option with respect to
such Common Shares is granted.
(v) Other Terms and Conditions of Options. Notwithstanding any
provision contained in the Plan to the contrary, during any period when any
member of the Committee shall not be a "nonemployee director" as defined in
Rule 16b-3, then, the terms and conditions of Options granted under the
Plan to any director or officer, as defined in Rule 16a-1, of the Company
during such period, unless other terms and conditions are approved in
advance by the Board, shall be as follows:
(A) The price at which each Common Share subject to an option may
be purchased shall, subject to any adjustments which may be made
pursuant to Section 4, in no event be less than the Fair Market Value
of a Common 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
ten percent (10%) of the total combined voting power of all classes of
securities of the Company or of any Affiliate, the price per share
<PAGE>
11
shall not be less than one hundred ten percent (110%) of the Fair
Market Value per Common Share on the date of grant.
(B) The Option may be exercised to purchase Common Shares covered
by the Option not sooner than six (6) months following the date of
grant. The Option shall terminate and no Common Shares may be
purchased thereunder more than ten (10) 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 securities
possessing more than ten percent (10%) of the total combined voting
power of all classes of securities of the Company or of any Affiliate,
the Option shall terminate and no Common Shares may be purchased
thereunder more than five (5) years after the date of grant.
(b) Stock Appreciation Rights. The Committee is hereby authorized to grant to
eligible Employees "Stock Appreciation Rights." Each Stock Appreciation Right
shall consist of a right to receive the excess of (i) the Fair Market Value of
one Common Share on the date of exercise or, if the Committee shall so determine
in the case of any such right other than one related to any Incentive Stock
Option, at any time during a specified period before or after the date of
exercise over (ii) the grant price of the right as specified by the Committee,
which shall not be less than one hundred percent (100%) of the Fair Market Value
of one Common Share on the date of grant of the Stock Appreciation Right (or, if
the Committee so determines, in the case of any Stock Appreciation Right
retroactively granted in tandem with or in substitution for another Award, on
the date of grant of such other Award). Subject to the terms of the Plan and any
applicable Award Agreement, the grant price, term, methods of exercise, methods
of settlement, and any other terms and conditions of any Stock Appreciation
Right granted under the Plan shall be as determined by the Committee. The
Committee may impose such conditions or restrictions on the exercise of any
Stock Appreciation Right as it may deem appropriate.
(c) Restricted Securities.
(i) Issuance. The Committee is hereby authorized to grant to eligible
Employees "Restricted Securities" which shall consist of the right to
receive, by purchase or otherwise, Common Shares which are subject to such
restrictions as the Committee may impose (including, without limitation,
any limitation on the
<PAGE>
12
right to vote such Common Shares or the right to receive any dividend or
other right or property), which restrictions may lapse separately or in
combination at such time or times, in such installments or otherwise, as
the Committee may deem appropriate.
(ii) Registration. Restricted Securities granted under the Plan
may be evidenced in such manner as the Committee may deem appropriate,
including, without limitation, book-entry registration or issuance of a
stock certificates or certificates. In the event any stock certificate is
issued in respect of Restricted Securities granted under the Plan, such
certificate shall be registered in the name of the Participant and shall
bear an appropriate legend referring to the terms, conditions and
restrictions applicable to such Restricted Securities.
(iii) Forfeiture. Except as otherwise determined by the
Committee, upon termination of a Participant's employment for any reason
during the applicable restriction period, all of such Participant's
Restricted Securities which had not become Released Securities by the date
of termination of employment shall be forfeited and reacquired by the
Company; provided, however, that the Committee may, when it finds that a
waiver would be in the best interests of the Company, waive in whole or in
part any or all remaining restrictions with respect to such Participant's
Restricted Securities. Unrestricted Common Shares, evidenced in such
manner as the Committee shall deem appropriate, shall be issued to the
holder of Restricted Securities promptly after such Restricted Securities
become Released Securities.
(d) Performance Awards. The Committee is hereby authorized to grant to
eligible Employees "Performance Awards." Each Performance Award shall consist of
a right, (i) denominated or payable in cash, Common Shares, other securities or
other property (including, without limitation, Restricted Securities), and (ii)
which shall confer on the holder thereof rights valued as determined by the
Committee and payable to, or exercisable by, the holder of the Performance
Award, in whole or in part, upon the achievement of such performance goals
during such performance periods as the Committee shall establish. Subject to the
terms of the Plan and any applicable Award Agreement, the performance goals to
be achieved during any performance period, the length of any performance period,
the amount of any Performance Award granted, the termination of a Participant's
employment and the amount of any payment or transfer to be made pursuant to any
Performance Award shall be determined by the Committee and by the other terms
and
<PAGE>
13
conditions of any Performance Award. The Committee shall issue performance
goals prior to the commencement of the performance period to which such
performance goals pertain.
(e) Other Stock-Based Awards. The Committee is hereby authorized to grant to
eligible Employees "Other Stock-Based Awards." Each Other Stock-Based Award
shall consist of a right (i) which is other than an Award or right described in
Section 6(a), (b), (c) or (d) above and (ii) which is denominated or payable in,
valued in whole or in part by reference to, or otherwise based on or related to,
Common Shares (including, without limitation, securities convertible into Common
Shares) as are deemed by the Committee to be consistent with the purposes of the
Plan; provided, however, that such right shall comply, to the extent deemed
desirable by the Committee, with Rule 16b-3 and applicable law. Subject to the
terms of the Plan and any applicable Award Agreement, the Committee shall
determine the terms and conditions of Other Stock-Based Awards. Common Shares or
other securities delivered pursuant to a purchase right granted under this
Section 6(e) shall be purchased for such consideration, which may be paid by
such method or methods and in such form or forms, including, without limitation,
cash, Common Shares, other securities, other Awards, other property, or any
combination thereof, as the Committee shall determine.
(f) General.
(i) No Cash Consideration for Awards. Awards may be granted for
no cash consideration or for such minimal cash consideration as may be
required by applicable law.
(ii) Awards May Be Granted Separately or Together. Awards may,
in the discretion of the Committee, be granted either alone or in addition
to, in tandem with, or in substitution for any other Award, except that in
no event shall an Incentive Stock Option be granted together with a Non-
Qualified Stock Option in such a manner that the exercise of one Option
affects the right to exercise the other. Awards granted in addition to or
in tandem with other Awards may be granted either at the same time as or at
a different time from the grant of such other awards.
(iii) Forms of Payment Under Awards. Subject to the terms of
the Plan and of any applicable Award Agreement, payments or transfers to be
made by the Company or an Affiliate upon the grant, exercise or payment of
an Award may be made in such form or forms as the Committee
<PAGE>
14
shall determine, including, without limitation, cash, Common Shares, other
securities, other Awards, or other property, or any combination thereof,
and may be made in a single payment or transfer, in installments, or on a
deferred basis, in each case in accordance with rules and procedures
established by the Committee. Such rules and procedures may include,
without limitation, provisions for the payment or crediting of reasonable
interest on installment or deferred payments. In accordance with the above,
the Committee may elect (i) to pay a Participant (or such Participant's
permitted transferee) upon the exercise of an Option in whole or in part,
in lieu of the exercise thereof and the delivery of Common Shares
thereunder, an amount of cash equal to the excess, if any, of the Fair
Market Value of one Common Share on the date of such exercise over the
exercise price of such Option for one Common Share times the number of
Common Shares subject to the Option or portion thereof so exercised or (ii)
to settle other stock denominated Awards in cash.
(iv) Limits on Transfer of Awards.
(A) No award (other than Released Securities), and no right under
any such Award, may be assigned, alienated, pledged, attached, sold or
otherwise transferred or encumbered by a Participant otherwise than by
will or by the laws of descent and distribution (or, in the case of
Restricted Securities, to the Company) and any such purported
assignment, alienation, pledge, attachment, sale or other transfer or
encumbrance shall be void and unenforceable against the Company or any
Affiliate.
(B) Each award, and each right under any Award, shall be
exercisable, during the Participant's lifetime only by the Participant
or if permissible under applicable law, by the Participant's guardian
or legal representative.
(v) Terms of Awards. The term of each Award shall be for such
period as may be determined by the Committee; provided, however, that in no
event shall the term of any Option exceed a period of ten years from the
date of its grant.
(vi) Rule 16b-3 Six-Month Limitations. To the extent required in
order to maintain the exemption provided under Rule 16b-3 only, any equity
security offered pursuant to the Plan must be held for at least six months
after the date of grant, and with respect to any
<PAGE>
15
derivative security issued pursuant to the Plan, at least six months must
elapse from the date of acquisition of such derivative security to the date
of disposition of the derivative security (other than upon exercise or
conversion) or its underlying equity security. Terms used in the preceding
sentence shall, for the purposes of such sentence only, have the meanings,
if any, assigned or attributed to them under Rule 16b-3.
(vii) Common Share Certificates. All certificates for Common
Shares delivered under the Plan pursuant to any Award or the exercise
thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the
rules, regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which such Common Shares are then
listed, and any applicable Federal or state securities laws, and the
Committee may cause a legend or legends to be put on any such certificates
to make appropriate reference to such restrictions.
(viii) Delivery of Common Shares or Other Securities and Payment
by Participant of Consideration. No Common Shares or other securities
shall be delivered pursuant to any Award until payment in full of any
amount required to be paid pursuant to the Plan or the applicable Award
Agreement is received by the Company. Such payment may be made by such
method or methods and in such form or forms as the Committee shall
determine, including, without limitation, cash, Common Shares, other
securities, other Awards or other property, or any combination thereof;
provided that the combined value, as determined by the Committee, of all
cash and cash equivalents and the Fair Market Value of any such Common
Shares or other property so tendered to the Company, as of the date of such
tender, is at least equal to the full amount required to be paid pursuant
to the Plan or the applicable Award Agreement to the Company.
SECTION 7. Amendments; Adjustments and Termination. Except to the extent
prohibited by applicable law and unless otherwise expressly provided in an Award
Agreement or in the Plan:
(a) Amendments to the Plan. The Board may amend, alter, suspend,
discontinue, or terminate the Plan without the consent of any shareholder,
Participant, other holder or beneficiary of an Award, or other Person; provided,
however, that, subject to the Company's rights to adjust Awards under
<PAGE>
16
Sections 7(c) and (d), any amendment, alteration, suspension, discontinuation,
or termination that would impair the rights of any Participant, or any other
holder or beneficiary of any Award theretofore granted, shall not to that extent
be effective without the consent of such Participant, other holder or
beneficiary of an Award, as the case may be; and provided further, however, that
notwithstanding any other provision of the Plan or any Award Agreement, without
the approval of the shareholders of the Company no such amendment, alteration,
suspension, discontinuation, or termination shall be made that would:
(i) increase the total number of Common Shares available for
Awards under the Plan, except as provided in Section 4 hereof; or
(ii) otherwise cause the Plan to cease to comply with any tax or
regulatory requirement, including for these purposes any approval or other
requirement which is or would be a prerequisite for exemptive relief from
Section 16(b) of the Exchange Act.
(b) Amendments to Awards. The Committee may waive any conditions or
rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Award theretofore granted, prospectively or retroactively;
provided, however, that, subject to the Company's rights to adjust Awards
under Sections 7(c) and (d), any amendment, alteration, suspension,
discontinuation, cancellation or termination that would impair the rights
of any Participant or holder or beneficiary of any Award theretofore
granted, shall not to that extent be effective without the consent of such
Participant or holder or beneficiary of an Award, as the case may be.
(c) Adjustment of Awards Upon Certain Acquisitions. In the event the
Company or any Affiliate shall assume outstanding employee awards or the
right or obligation to make future such awards in connection with the
acquisition of another business or another corporation or business entity,
the Committee may make such adjustments, not inconsistent with the terms of
the Plan, in the terms of Awards as it shall deem appropriate in order to
achieve reasonable comparability or other equitable relationship between
the assumed awards and the Awards granted under the Plan as so adjusted.
(d) Adjustments of Awards Upon the Occurrence of Certain Unusual or
Non-recurring Events. The Committee is hereby authorized to make
adjustments in the terms and conditions of, and the criteria included in,
Awards in recognition of unusual or non-recurring events (including,
<PAGE>
17
without limitation, the events described in Section 4(b) hereof) affecting
the Company, any Affiliate, or the financial statements of the Company or
any Affiliate, or of changes in applicable laws, regulations, or accounting
principles, whenever the Committee determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan.
SECTION 8. General Provisions.
(a) No Right to Awards. No Employee or other Person shall have any claim to be
granted any Award under the Plan, and there is no obligation for uniformity of
treatment of Employees, or holders or beneficiaries of Awards under the Plan.
The terms and conditions of Awards need not be the same with respect to each
recipient.
(b) Delegation. Subject to the terms of the Plan and applicable law, the
Committee may delegate to one or more officers or managers of the Company or any
Affiliate, or to a committee of such officers or managers, the authority,
subject to such terms and limitations as the Committee shall determine, to grant
Awards to, or to cancel, modify, waive rights with respect to, alter,
discontinue, suspend, or terminate Awards; provided, however, that, no such
delegation shall be permitted with respect to Awards held by Employees who are
officers or directors of the Company for purposes of Section 16 of the Exchange
Act, or any successor section thereto or who are otherwise subject to such
Section.
(c) Correction of Defects, Omissions, and Inconsistencies. The Committee may
correct any defect, supply any omission, or reconcile any inconsistency in the
Plan or any Award in the manner and to the extent it shall deem desirable to
carry the Plan into effect.
(d) Withholding. The Company or any Affiliate shall be authorized to withhold
from any Award granted, from any payment due or transfer made under any Award or
under the Plan or from any compensation or other amount owing to a Participant
the amount (in cash, Common Shares, other securities, other Awards, or other
property) of withholding taxes due in respect of an Award, its exercise, or any
payment or transfer under such Award or under the Plan and to take such other
action as may be necessary in the opinion of the Company or Affiliate to satisfy
all obligations for the payment of such taxes.
(e) No Limit on Other Compensation Arrangements. Nothing contained in the Plan
shall prevent the Company or any
<PAGE>
18
Affiliate from adopting or continuing in effect other or additional compensation
arrangements, and such arrangements may be either generally applicable or
applicable only in specific cases.
(f) No Right to Employment. The grant of an Award shall not be construed as
giving a Participant the right to be retained in the employ of the Company or
any Affiliate. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any liability, or any claim under the
Plan, unless otherwise expressly provided in the Plan or in any Award Agreement.
(g) Governing Law. The validity, construction, and effect of the Plan and any
rules and regulations relating to the Plan shall be determined in accordance
with the laws of the State of Delaware and applicable Federal law.
(h) Severability. If any provision of the Plan or any Award is or becomes or
is deemed to be invalid, illegal or unenforceable in any jurisdiction or as to
any Person or Award under any law deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to applicable laws, or
if it cannot be construed or deemed amended without, in the determination of the
Committee, materially altering the intent of the Plan or the Award, such
provision shall be stricken as to such jurisdiction, Person or Award and the
remainder of the Plan and any such Award shall remain in full force and effect.
(i) No Trust or Fund Created. Neither the Plan nor any Award shall create or
be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company or any Affiliate and a Participant or any other
Person. To the extent that any Person acquires a right to receive payments from
the Company or any Affiliate pursuant to an Award, such right shall be no
greater than the right of any unsecured general creditor of the Company or any
Affiliate.
(j) No Fractional Common Shares. No fractional Common Shares shall be issued
or delivered pursuant to the Plan or any Award, and the Committee shall
determine whether cash, other securities, or other property shall be paid or
transferred in lieu of any fractional Common Shares or whether such fractional
Common Shares or any rights thereto shall be canceled, terminated, or otherwise
eliminated.
(k) Headings. Headings are given to the Sections and subsections of the Plan
solely as a convenience to facilitate reference. Such headings shall not be
deemed in any
<PAGE>
19
way material or relevant to the construction or interpretation of the Plan or
any provision thereof.
SECTION 9. Adoption, Approval and Effective Date of the Plan. The Plan shall
be considered adopted and shall become effective on the date the Plan is
approved by the Board; provided, however, that the Plan and any Awards granted
under the Plan shall be void, if the shareholders of the Company shall not have
approved the adoption of the Plan within twelve (12) months after the effective
date, by a majority of votes cast thereon at a meeting of shareholders duly
called and held for such purpose.
<PAGE>
Exhibit 5
March 10, 1998
IMPATH Inc.
521 West 57th Street
New York, New York 10019
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 300,000 shares (the "Shares") of the Company's common stock, $.005 par value,
which have been or are to be offered by the Company to selected employees,
directors, consultants and other individuals providing services to the Company
or any of its subsidiary or parent corporations pursuant to the Company's 1997
Long Term Incentive 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,
/s/ HAYTHE & CURLEY
