As filed with the Securities and Exchange Commission on August 12, 1996
--Registration No. 33-____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
IMATRON INC.
-----------------------------------------------
(Exact name of issuer specified in its charter)
New Jersey 94-2880078
(State of incorporation) (I.R.S. Employer Identification No.)
--------------------
389 Oyster Point Boulevard
South San Francisco, California 94080
(Address of Principal Executive Offices)
IMATRON INC. 1994 EMPLOYEE STOCK PURCHASE PLAN
----------------------------------------------
(Full Title of the Plan)
S. Lewis Meyer
President
Imatron Inc.
389 Oyster Point Boulevard
South San Francisco, California 94080
(415) 583-9964
(Name and Address and Telephone Number of Agent of Service)
Copies to:
Roger S. Mertz, Esq.
Severson & Werson
One Embarcadero Center, 26th Floor
San Francisco, California 94111
<PAGE>
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [ X ]
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Additional Maximum Maximum
Securities to Amount to Offering Aggregate Amount of
Be Be Price Per Offering Registration
Registered Registered Share(1) Price (1) Fee
- ------------- ---------- ---------- ---------- ------------
Common 800,000(2) $4.19 $3,352,000 $1,156
Stock No
Par Value
================================================================================
(1) Estimated pursuant to Rule 457(c) solely for purposes of calculating
the amount of the registration fee, based upon the average of the high
and low sales prices of the Common Stock on August 5, 1996, as reported
on the NASDAQ National Market System.
(2) These securities are of the same class and in addition to 1,000,000
shares of Common Stock initially available to be granted under the 1994
Employee Stock Purchase Plan and previously registered pursuant to
Registration Statement No. 33-71786. The total number of shares of
Common Stock now issuable under the Amended 1994 Employee Stock
Purchase Plan is 1,800,000 shares.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the 1994 Employee Stock Purchase Plan.
ii
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ADDITIONAL INFORMATION
Imatron Inc. ("Imatron" or the "Company") is subject to the
informational requirements of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), and, in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other information filed
by the Company with the Commission can be inspected and copied at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Regional Offices of the Commission at Room 1204, Everett McKinley Dirksen
Building, 219 South Dearborn Street, Chicago, Illinois 60604; and Room 1102, 26
Federal Plaza, New York, New York 10007. Copies of such material can be obtained
from the Public Reference Section of the Commission, at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
THE PLAN
General
The Board of Directors adopted the 1994 Employee Stock Purchase Plan on
October 29, 1993 and the Shareholders approved the Plan at the 1994 Annual
Meeting. The Plan became effective January 1, 1994. The Plan was amended by the
board on May 28, 1996 to increase the number of shares available for issuance
under the Plan from 1,000,000 to 1,800,000. The amendment was approved by the
Shareholders on June 28, 1996. The 1994 Plan provides for the sale of shares of
the Company's Common Stock using funds deducted from employees' earnings. The
Plan is intended to qualify as a "Stock Purchase Plan" as defined in Section 423
of the Internal Revenue Code of 1986, as amended. The Plan is not subject to the
provisions of the Employee Retirement Income Security Act of 1974 ("ERISA") nor
is it qualified as a pension or profit-sharing plan under Section 401 of the
Internal Revenue Code of 1986, as amended (the "Code"). The purposes of the 1994
Plan are to induce persons of outstanding ability and potential to join and
remain with the Company, to provide an incentive for such employees to expand
and improve the profits and prosperity of the Company by enabling such persons
to acquire proprietary interests in the Company, and to attract and retain key
personnel by providing employees the opportunity to purchase shares of the
Company's Common Stock.
The contents of Registration Statement No. 33-71786 are fully
incorporated herein by reference, except as specifically provided herein.
Shares Subject To The Plan
Subject to the provisions of the Plan relating to adjustments upon
changes in stock, the number of shares of stock that may be sold pursuant to the
Plan cannot exceed an aggregate of 1,800,000 shares of the Company's Common
Stock. The Company shall, at all times while the Plan is in force, reserve such
number of common shares as will be sufficient to satisfy the requirements of the
number of shares available for issuance under the Plan. Such shares may be
authorized but unissued shares of stock of the Company or shares purchased in
the open market expressly for sale to employees under the Plan. All proceeds of
shares originally issued by the Company shall be retained by the Company.
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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 South San Francisco, State of California, on August
12, 1996.
IMATRON INC.
By: /s/ S. Lewis Meyer
--------------------------------------
S. Lewis Meyer
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Douglas P. Boyd and S. Lewis Meyer, or
either of them, his true and lawful attorney-in-fact, each with full power of
substitution for him in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact or their or his substitutes
or substitute, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ S. Lewis Meyer President, Chief Executive Officer August 12, 1996
- ------------------ and Director
S. Lewis Meyer
Chairman of the Board August __, 1996
- -------------------
Douglas P. Boyd
/s/ Gary H. Brooks Vice President Finance, Chief August 12, 1996
- ------------------ Financial Officer,
Gary H. Brooks and Chief Accounting Officer
/s/ John L. Couch Director August 12, 1996
- ------------------
John L. Couch
/s/ Terry Ross Director August 12, 1996
- ---------------
Terry Ross
Director August __, 1996
- ------------
Aldo Test
3
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<TABLE>
IMATRON INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
1,800,000 Shares of Common Stock
<CAPTION>
Sequential
Exhibit No. Description Page No.
- ----------- ----------- --------
<C> <C> <C>
4.1 Imatron Inc. 1994 Employee Stock Purchase Plan, as amended 6
5.1 Opinion of Counsel as to legality of securities being registered. 19
24.1 Consent of independent auditors. 22
24.2 Consent of counsel.
Reference is made to Exhibit 5.1.
25.1 Power of Attorney (contained in signature pages)
</TABLE>
4
Exhibit 4.1
5
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IMATRON INC.
1994 EMPLOYEE STOCK PURCHASE PLAN
(as amended through June 28, 1996)
Date of Board Approval: October 29, 1993
Date of Shareholder Approval: May 20, 1994
Amendment Approved by Board: May 28, 1996
Amendment Approved by Shareholders: June 28, 1996
1. Establishment Of The Plan; Purpose. This Employee Stock Purchase
Plan (the "Plan") was established to provide Eligible Employees with an
opportunity through regular payroll deductions to purchase Common Stock of
Imatron Inc. (the "Company") so that they may increase their proprietary
interest in the Company. The Plan is intended to qualify as an "employee stock
purchase plan" under Section 423 of the Internal Revenue Code.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Board of Directors" means the Committee if one has been
appointed, or the Board of Directors of the Company if no Committee has been
appointed.
(b) "Code" means the Internal Revenue Code of 1986.
(c) "Committee" means the committee appointed by the Board of
Directors to administer the Plan in accordance with Section 3 below -
"Administration" - if one is appointed.
(d) "Company" means Imatron Inc. and such present or future
Subsidiaries, as defined in Section 425 of the Code, of the Company as the Board
of Directors shall from time to time designate.
(e) "Compensation" means the annual base rate of pay of a
Participant as of the first day of an Offering Period, determined in accordance
with nondiscriminatory rules adopted by the Board of Directors, including
commissions, but excluding income with respect to stock options or other stock
purchases or moving expense reimbursements.
(f) "Eligible Employee" means any regular employee of the
Company whose date of hire was at least six months prior to the commencement of
an Offering Period or an Interim Offering Period and who is customarily employed
for at least twenty (20) hours per week and more than five (5) months in any
calendar year.
(g) "Exchange Act" means the Securities and Exchange Act of
1934.
(h) "Fair Market Value" of a share of Stock means the NASDAQ
closing price on the applicable date. In the event the Stock is not traded on
the date as of which the Fair Market Value is to be determined, Fair market
Value shall be determined as of the next preceding date on which the stock is
traded.
(i) "Interim Offering Period" means each three-month period
during and within
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an Offering Period.
(j) "Option" means the right of a Participant to purchase
Stock during the applicable Offering Period.
(k) "Offering Date" means the first day of each Offering
Period.
(l) "Offering Period" means, in the absence of a specific
determination to the contrary by the Board of Directors or the Committee, a
27-month period during which contributions may be made toward the purchase of
Stock under the Plan. The Board of Directors or the Committee may establish from
time to time Option Periods which may be up to twenty-seven (27) months.
(m) "Participant" means an Eligible Employee who elects to
participate in the Plan.
(n) "Plan Account" means the account established for each
Participant pursuant to the Plan.
(o) "Purchase Price" means the price at which Participants may
purchase Stock as determined pursuant to the Plan.
(p) "Stock" means the Common Stock of the Company.
(q) "Subsidiary" means a corporation a majority of whose
voting shares are owned by the Company.
3. Administration. The Plan shall be administered by the Board of
Directors and/or by a duly appointed Committee. Whether or not the Board has
delegated administration, the Board shall have the final power to determine all
questions of policy and expediency that may arise in the administration of the
Plan. The Board of Directors may from time to time remove members from, or add
members to, the Committee. Vacancies on the Committee, howsoever caused, shall
be filled by the Board of Directors. The Committee shall select one of its
members as Chairman, and shall hold meetings at such times and places as it may
determine. The interpretation and construction by the Board of Directors or the
Committee of any provision of the Plan or of any right to purchase Stock shall
be conclusive and binding on all persons.
(a) Delegation to Committee. The Board may delegate
administration of the Plan to the Committee composed of not fewer than two (2)
members of the Board. All of the members of such Committee shall be
disinterested persons as defined by the provisions of subparagraph 3(b) -
"Disinterested Person." If administration is delegated to the Committee, the
Committee shall have, in connection with the administration of the Plan, the
powers theretofore possessed by the Board, subject, however, to such
resolutions, not inconsistent with the provisions of the Plan; as may be adopted
from time to time by the Board. The Board shall otherwise comply with the
requirement:s of Rule 16b-3 promulgated under the Exchange Act, as from time t:o
time in effect. The Board may abolish the Committee at any time and revest in
the Board the administration of the Plan. Two members of the Committee shall
constitute a quorum for the transaction of business.
(b) Disinterested Person. The term "Disinterested Person," as
used in this Plan, shall
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mean an administrator of the Plan, whether a member of the Board or of any
Committee to which responsibility for administration of the Plan has been
delegated pursuant to subparagraph 3(a), - "Delegation to Committee" - who is
not during the one year prior to service as an administrator of the plan, or
during such service, granted or awarded equity securities pursuant to the plan
or any other plan of the Company or any of its affiliates, except that: (A)
participation in a formula plan meeting the conditions of Rule 16b-3(c)(2)(ii)
pursuant to the Securities Exchange Act shall not disqualify a director from
being a disinterested person; (B) participation in an ongoing securities
acquisition plan meeting the conditions in Rule 16b-3(d)(2)(i) shall not
disqualify a director from being a disinterested person; (C) an election to
receive an annual retainer fee in either cash or an equivalent amount of
securities, or partly in cash and partly in securities, shall not disqualify a
director from being a disinterested person; and (D) participation in a plan
shall not disqualify a director from being a disinterested person for the
purpose of administering another plan that does not permit participation by
directors. Any such person shall otherwise comply with the requirements of Rule
16b-3 promulgated under the Exchange Act, as from time to time in effect.
(c) Number Of Shares To Be Offered. The maximum aggregate
number of shares which shall be offered under the Plan shall be One Million
Eight Hundred Thousand (1,800,000) shares of Stock, subject to adjustment as
provided in Section 8 -- "Recapitalization, Etc." -hereof. In the event that any
Option granted under the Plan expires or is terminated for any reason, such
shares allocable to the unexercised portion of such Option shall again be
subject to an Option under the Plan. The stock subject to the Plan may be
unissued shares or reacquired shares, bought on the market or otherwise.
4. Eligibility And Participation.
(a) Initial Participation. An Eligible Employee shall become a
Participant on an Offering Date after satisfying the eligibility requirements by
delivering to the Company's payroll office an enrollment form authorizing
payroll deductions not less than ten (10) business days prior to such Offering
Date. An Eligible Employee who did not enroll in the Plan prior to the Offering
Date, or a person who becomes an Eligible Employee after an Offering Date, may
enroll in the Plan for the remainder of the Offering Period as of the beginning
of the next Interim Offering Period by completing and filing an enrollment form
prior to the commencement date of such Interim Offering Period.
(b) Continued Participation. A Participant shall automatically
participate in each successive Offering Period (including Interim Offering
Periods) until such time as such Participant withdraws from the Plan as set
forth below. A Participant is not required to file any additional enrollment
forms for subsequent Offering Periods or Interim Offering Periods in order to
continue participation in the Plan.
(c) Payroll Deduction Rate. The Participant shall designate on
the enrollment form the percentage of Compensation which he or she elects to
have withheld for the purchase of Stock, which may be 2%, 4%, 6%, 8% or 10% of
the Participant's Compensation. A Participant may reduce (but not increase) the
rate of payroll withholding during an Offering Period by filing an amended
enrollment form with the payroll office at any time prior to the first day of
any Interim Offering Period (for which such change is to be effective), but not
more than three (3) changes may be made in any Offering Period (or such other
number of changes as may be approved by the Board or the Committee). A
Participant may increase or decrease the rate of payroll deduction for any
subsequent Offering Period by filing with the Company a new
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<PAGE>
enrollment form for payroll deductions not less than ten (10) days prior to the
Offering Date for such subsequent Offering Period.
By enrolling in the Plan, a Participant shall be deemed to
have elected to purchase the maximum number of whole shares of Stock which can
be purchased with the amount of the Participant's Compensation which is withheld
during the Offering Period; provided, however, that no Participant may purchase
shares of Stock in excess of the amount permitted under Section 9 - "Limitation
on Stock Ownership."
(d) Offering Period. Any Options granted pursuant to the Plan
shall be subject to the Company obtaining all necessary governmental approvals
and/or qualifications of the sale and/or issuance of Options and/or Stock.
(e) Purchase Price. The Purchase Price for each share of Stock
to be purchased under the Plan shall be eighty-five percent (85)% of the Fair
Market Value of such share on either (i) the Offering Date (or the date of entry
for new or re-enrolling employees) or (ii) the last day of each Interim Offering
Period, whichever is less.
(f) Contributions. The Purchase Price of the Stock shall be
accumulated by payroll deductions throughout the Offering Period, which shall be
applied automatically to purchase Stock at the end of each Interim Offering
Period. In the absence of a contrary determination prior to the commencement of
an Offering Period, each Interim Offering Period shall have a three-month
duration. At the end of each Interim Offering Period, accrued payroll deductions
will be automatically applied to the purchase of Stock at the Purchase Price.
Payroll deductions shall commence on the first payday following the Offering
Date (or, in the case of a new or re-enrolling employee, on the first payday
following the commencement of the applicable Interim Offering Period) and shall
continue unless altered or terminated as provided in the Plan.
(g) Effect Of Leave Of Absence. During a leave of absence
approved by the Company, a Participant may, for such period as the Committee
shall deem reasonable, continue contributions to the Plan by making cash
payments to the Company on his or her normal paydays in an amount equal to the
difference between the amount of his or her regular payroll deductions taken
while such employee was participating under the Plan and the amount of his
payroll deductions taken while on such leave of absence. Failure to pay any
installment within ten (10) days after the payday on which it is due shall be
treated as a withdrawal from the Plan.
(h) Purchase Of Stock. The Company will maintain a Plan
Account on its books in the name of each Participant. On each payday the amount
deducted from the Participant's Compensation will be credited to the
Participant's Plan Account. No interest shall accrue on any such payroll
deductions As of the last day of each Interim Offering Period the amount then in
the Participant's Plan Account will be divided by the Purchase Price and the
amount in the Participant's Plan Account shall be used to purchase the number of
whole shares of Stock which result. Share certificates representing the number
of shares of Stock so purchased shall be issued and delivered to the Participant
as soon as reasonably practicable after the close of each Interim Offering
Period. Any balance remaining in a Participant's Plan Account at the end of an
Interim Offering Period after deducting the amount of the Purchase Price for the
number of whole shares issued to the Participant shall become the beginning
balance in the Participant's Plan Account for the next following Interim
Offering Period. Any balance
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remaining in the Participant's Plan Account at the end of an Offering Period
after deducting the amount of the Purchase Price for the number of whole shares
issued to the Participant shall become the beginning balance in the
Participant's Plan Account for the next following Offering Period unless the
Participant elects to withdraw from participation. If the Participant withdraws
from participation, the balance in the Participant's Plan Account will be
refunded to the Participant, without interest.
(i) Withdrawal. A Participant may elect to withdraw from
participation in the Plan at any time before the last day of an Interim Offering
Period by filing the prescribed form with the payroll office. At the time of
withdrawal the amount credited to the Participant's Plan Account will be
refunded in cash, without interest. Upon withdrawal from the Plan accumulated
payroll deductions, if any, shall be returned to the withdrawn Participant and
the withdrawn Participant's interest in the Plan shall terminate. In the event a
Participant voluntarily elects to withdraw from the Plan, such Participant may
not resume participation in the Plan until after the expiration of one complete
Interim Offering Period; re-enrollment shall be made in the same manner as set
forth above for initial participation in the Plan.
5. Pro Rata Allocation. In the event that the aggregate number of
shares which all Participants elect to purchase during an Interim Offering
Period shall exceed the number of shares remaining available for issuance under
the Plan, the number of shares to which each Participant shall become entitled
shall be determined by multiplying the number of shares available for issuance
by a fraction, the numerator of which is the sum of the number of shares the
Participant has elected to purchase and the denominator of which is the sum of
the number of shares which all Participants have elected to purchase.
6. Effect Of Termination Of Employment. Termination of a Participant's
employment for any reason, including retirement or death, or the failure of a
Participant to remain an Eligible Employee shall be treated as a withdrawal
under the Plan. In the event of the Participant's death, the refund of the
Participant's Plan Account shall be paid, without interest, to the
representative of the Participant's estate. A transfer by a Participant from the
Company to a Subsidiary, from one Subsidiary to another, or from a Subsidiary to
the Company shall not be treated as a termination of employment.
7. Rights Not Transferable. The rights or interests of any Participant
in the Plan, in any Option granted under the Plan, or in any Stock or moneys to
which he or she may be entitled under the Plan, shall not be transferable by
voluntary or involuntary assignment or by operation of law, or by any other
manner otherwise than by will or the applicable laws of descent and
distribution. If the Participant shall in any manner attempt to transfer, assign
or otherwise encumber his or her rights or interests under the Plan, other than
by will, such act shall be treated as a withdrawal from the Plan.
8. Recapitalization, Etc. Subject to any required action by the
shareholders of the Company, the number of shares of Stock covered by each
Option under the Plan which has not yet been exercised and the number of shares
of Stock which have been authorized for issuance under the Plan but have not yet
been placed under an Option (collectively the "Reserves"), as well as the price
per share of Stock covered by each Option under the Plan which has not yet been
exercised, shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Stock resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of Stock, or any other
increase or decrease in the number of shares of Stock effected without receipt
of consideration by the Company; provided, however,
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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 issue by the
Company of the 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
Stock subject to an Option.
In the event of the proposed dissolution or liquidation of the Company,
the Offering Period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. 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, each option under the
Plan shall be assumed or an equivalent option shall be substituted by such
successor corporation, unless the Board determines, in the exercise of its sole
discretion and in lieu of such assumption or substitution, that the Participant
shall have the right to exercise the Option as to all of the opined Stock,
including shares as to which the Option would not otherwise be exercisable. If
the Board makes an Option fully exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall notify
the Participant that the Option shall be fully exercisable for a period of
thirty (30) days from the date of such notice, and the Option will terminate
upon the expiration of such period.
The Board may also, if it so determines in the exercise of its sole
discretion, make provision for adjusting the Reserves, as well as the price per
share of Stock covered by each outstanding Option, in the event that the Company
effects one or more reorganizations, recapitalizations, rights offerings or
other increases or reductions of shares of its outstanding Stock, and in the
event of the Company being consolidated with or merged into any other
corporation.
9. Limitation On Stock Ownership. Notwithstanding any provision herein
to the contrary, no Participant shall be granted a right to purchase Stock
pursuant to Section 4 - "Eligibility and Participation" - if: (i) such
Participant, immediately after electing to purchase such Stock, would own Stock
possessing five (5) percent or more of the total combined voting power or value
of all classes of stock of the Company or any parent or Subsidiary of the
Company, or (ii) under the terms of the Plan the rights of the employee to
purchase Stock under this and all other qualified employee stock purchase plans
of the Company or its Subsidiaries would accrue at a rate that exceeds $20,000
of fair market value of such Stock (determined on the Offering Date) for each
calendar year for which such right is outstanding at any time. For purposes of
this Section 9, ownership of Stock shall be determined by the attribution rules
of Section 424(d) of the Code and Participants shall be considered to own any
Stock which they have a right or option to purchase under this or any other
stock purchase plan.
10. Limitations on Officers and Directors. Participants subject to the
provisions of Section 16 of the Exchange Act (Company officers and directors)
must comply with the following requirements:
(a) Shares of Stock purchased pursuant to the Plan must be
held and may not be transferred for a period of six (6) months from the date of
purchase; provided, however, that distributions in connection with death,
retirement, disability, termination of employment, or a qualified domestic
relations order as defined by the Code, or the rules thereunder, are not subject
to the requirement set forth in this subparagraph 10(a).
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(b) Officer and director Participants who cease participation
in the Plan may not participate again for a period of at least six (6) months.
(c) Shares of Stock purchased pursuant to the Plan must be
held for at least six (6) months from the date the Purchase Price is fixed.
11. Rights As An Employee. Nothing in the Plan shall be construed to
give any Participant the right to remain in the employ of the Company or a
Subsidiary or to affect the right of the Company and its Subsidiaries or the
Participant to terminate such employment at any time with or without cause.
12. Rights As A Shareholder. A Participant shall have no rights as a
shareholder with respect to any shares of Stock he or she may have a right to
purchase under the Plan until the date of issuance of a stock certificate to
such Participant for shares issued pursuant to the Plan.
13. Covenants of the Company.
(a) During the terms of the rights granted under the Plan, the
Company shall keep available at all times the number of shares of stock required
to satisfy such rights.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of Stock upon exercise of the rights granted
under the Plan. If the Company is unable to obtain from any such regulatory
commission or agency the authority which counsel for the Company deems necessary
for the lawful issuance and sale of stock under the Plan, the Company shall be
relieved from any liability for failure to issue and sell stock upon exercise of
such rights unless and until such authority is obtained.
14. Use of Proceeds from Stock. Proceeds from the sale of stock
pursuant to rights granted under the Plan shall constitute general funds of the
Company.
15. Amendment Or Termination Of The Plan. The Board of Directors shall
have the right to amend, modify or terminate the Plan at any time without
notice, provided that no Participant's existing rights are adversely affected
thereby, and provided further that no amendment of the Plan shall be effective
until such amendment is approved by a vote of the holders of at least a majority
of the outstanding shares of Common Stock of the Company within twelve months
before or after the date upon which such action is taken by the Board of
Directors, if such amendment would:
(a) Increase the aggregate number of shares of Stock to be
issued under the Plan (except as provided in Section 8 -"Recapitalization, Etc."
- - hereof);
(b) Materially modify the requirements for eligibility to
participate in the Plan;
(c) Increase the maximum number of shares of Stock which a
Participant may purchase in any Offering Period;
(d) Extend the term of the Plan;
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(e) Alter the Purchase Price formula so as to reduce the price
for shares of Stock to be purchased under the Plan;
(f) Otherwise materially increase the benefits accruing to
Participants under the Plan; or
(g) Cause the Plan to fail to meet the requirements of an
"employee stock purchase plan" under Section 423 of the Code.
16. Termination or Suspension of the Plan.
(a) The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate ten (10) years from the date
the Plan is adopted by the Board or approved by the stockholders of the Company,
whichever is earlier. No rights may be granted under the Plan while the Plan is
suspended or after it is terminated.
(b) Rights and obligations under any rights granted while the
Plan is in effect shall not be altered or impaired by suspension or termination
of the Plan, except with the consent of the person to whom such rights were
granted.
17. Effective Date of Plan.
The Plan shall become effective upon adoption by the Board or the
shareholders, whichever is earlier. Rights granted under the Plan shall be
subject to revocation unless and until the Plan has been approved by the
shareholders of the Company.
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IMATRON INC.
1994 EMPLOYEE STOCK PURCHASE PLAN
ENROLLMENT FORM
For the Offering Period beginning _____________, _________
For the Interim (Three Month)
Offering Period beginning: _____________, _________
_____Application to begin participation
_____Change in Payroll Deduction Rate
_____Change of Beneficiary(ies)
1. ____________________________hereby elects to participate in
the 1994 Imatron Inc. Employee Stock Purchase Plan (the "Stock
Purchase Plan") and subscribes to purchase shares of the
Company's Common Stock in accordance with this Enrollment Form
and the Employee Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in
the amount of 2%, 4%, 6%, 8% or 10% (please circle one) of my
Compensation during the Offering Period in accordance with the
Stock Purchase Plan.
3. I understand that said deductions shall be accumulated for the
purchase of shares of Common Stock at the applicable Purchase
Price determined in accordance with the Stock Purchase Plan. I
understand that if I do not withdraw from an Offering Period,
any accumulated payroll deductions will be used to
automatically purchase shares. I understand that no interest
shall accrue on any funds deducted under the terms of the
Plan.
4. I have received a copy of the complete "1994 Imatron Inc.
Employee Stock Purchase Plan." I understand that my
participation in the Stock Purchase Plan is in all respects
subject to the terms of the Plan. I understand that
participation in the Stock Purchase Plan under this Enrollment
Form is subject to obtaining shareholder approval of the Stock
Purchase Plan.
5. Shares purchased for me under the Stock Purchase Plan should
be issued in the name(s) of (employee and/or spouse only):
--------------------------------------------------
-----------------------------------------.
6. I understand that if I dispose of any shares received by me
pursuant to the Plan within 2 years after the applicable
Offering Date (the first day of the Offering Period during
which I purchased such shares) or within 1 year after the
final day of the applicable Interim Offering Period (the date
I purchased such shares), I will be treated for federal income
tax purposes as having received ordinary income at the time of
such disposition in an amount equal to the excess of the fair
market value of the shares at the time such shares were
delivered to me over the price which I paid for the shares. I
hereby agree to notify the Company in writing within 30 days
after the date of any disposition of my shares and I
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<PAGE>
will make adequate provision for Federal, state or other tax
withholding obligations, if any, which arise upon the
disposition of the Common Stock. The Company may, but will not
be obligated to, withhold from my compensation the amount
necessary to meet any applicable withholding obligation
including any withholding necessary to make available to the
Company any tax deductions or benefits attributable to sale or
early disposition of Common Stock by me. If I dispose of such
shares at any time after the expiration of the holding period
described above, I understand that I will be treated for
federal income tax purposes as having received income only at
the time of such disposition, and that such income will be
taxed as ordinary income only to the extent of an amount equal
to the lesser of (1) the excess of the fair market value of
the shares at the time of such disposition over the purchase
price which I paid for the shares or (2) 15% of the fair
market value of the shares on the first day of the applicable
Offering Period. The remainder of the gain, if any, recognized
on such disposition will be taxed as capital gain.
7. I hereby agree to be bound by the terms of the Stock Purchase
Plan. The effectiveness of this Enrollment Form is dependent
upon my eligibility to participate in the Employee Stock
Purchase Plan.
8. In the event of my death, I hereby designate the following as
my beneficiary(ies) to receive all payments and shares due me
under the Stock Purchase Plan:
NAME: (Please print)
----------------------------------------
(First) (Middle) (Last)
----------------------------------------
Relationship
----------------------------------------
(Address)
NAME: (Please print)
----------------------------------------
(First) (Middle) (Last)
----------------------------------------
Relationship
----------------------------------------
(Address)
Employee's Social
Security Number:
----------------------------------------
Employee's Address:
----------------------------------------
----------------------------------------
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<PAGE>
I UNDERSTAND THAT THIS ENROLLMENT FORM SHALL REMAIN IN EFFECT UNTIL I SUBMIT A
NOTICE OF WITHDRAWAL FORM THE TO PAYROLL OFFICE. IF I DESIRE TO INCREASE THE
PERCENTAGE OF MY COMPENSATION APPLIED TO PURCHASE SHARES, I MUST SUBMIT A NEW
ENROLLMENT FORM AT LEAST TEN (10) WORKING DAYS BEFORE THE BEGINNING OF THE
APPLICABLE OFFERING PERIOD. IF I DESIRE TO DECREASE THE PERCENTAGE OF MY
COMPENSATION APPLIED TO PURCHASE SHARES, I MUST SUBMIT AN AMENDED ENROLLMENT
FORM BEFORE THE BEGINNING OF THE APPLICABLE INTERIM OFFERING PERIOD.
Dated:
---------------- ----------------------------------------
Signature of Employee
----------------------------------------
Spouse's Signature (If beneficiary other than spouse)
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<PAGE>
IMATRON INC.
1994 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned participant in the Offering Period of the 1994 Imatron
Inc. Employee Stock Purchase Plan which began on _________, 19 (please insert
date) hereby notifies the Company that he or she hereby withdraws from the
Offering Period. He or she hereby directs the Company to pay to the undersigned
as promptly as practicable all the payroll deductions credited to his or her
account with respect to such Offering Period. The undersigned understands and
agrees that his or her option for such Offering Period will be automatically
terminated. The undersigned understands further that no further payroll
deductions will be made for the purchase of shares in the current Offering
Period and the undersigned shall be eligible to participate in succeeding
Offering Periods only by delivering to the Company a new Enrollment Form. The
undersigned understands that upon withdrawal from a particular Offering Period,
he or she is precluded from subsequent participation for a period of time
specified in the Plan.
Name and Address of Participant
-----------------------------------
-----------------------------------
-----------------------------------
Signature
-----------------------------------
Dated:
-----------------------------
17
Exhibit 5.1
18
<PAGE>
SEVERSON & WERSON
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
ONE EMBARCADERO CENTER
SAN FRANCISCO, CALIFORNIA 94111
FAX (415) 956-0439
TELEPHONE (415) 398-3344
Roger S. Mertz
August 7, 1996
Imatron Inc.
389 Oyster Point Boulevard
South San Francisco, California 94080
Gentlemen:
You have requested our opinion with respect to certain matters in
connection with the filing by Imatron Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to an additional 800,000 shares
of the Company's Common Stock (the "Shares") pursuant to the Company's 1994
Employee Stock Purchase Plan (the "Plan").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plan and the form of agreements to be executed
thereunder, the Company's Certificate of Incorporation and Bylaws, as amended,
and such other records, documents, certificates, memoranda and other instruments
as in our judgment are necessary or appropriate to enable us to render the
opinion expressed below. We have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof, and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
We do not hold ourselves out as experts in the laws of the State of New
Jersey and our opinion is based solely on a review of the New Jersey Business
Corporation Act, as reported in unofficial compilations.
On the basis of the foregoing, and in reliance thereon, we are of the
opinion that the additional Shares of Common Stock of the Company to be issued
pursuant to the terms of the Plan are validly authorized and, assuming: (a) no
change occurs in the applicable law or the pertinent facts; (b) the pertinent
provisions of such blue-sky and securities laws as may be applicable have been
complied with; (c) the Shares are issued in accordance with the terms of the
Plan; and (d) the Shares have been duly delivered against payment therefor as
contemplated by the Plan, the Shares of Common Stock issuable will be validly
issued, fully paid and nonassessable.
This opinion is intended solely for your benefit and is not to be made
available to or be relied upon by any other person, firm or entity without our
prior written consent.
19
<PAGE>
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
SEVERSON & WERSON
A Professional Corporation
By: /s/ Roger S. Mertz
---------------------------------
Roger S. Mertz
RSM/kw
20
Exhibit 24.1
21
<PAGE>
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference, in the Registration
Statement on Form S-8 pertaining to the Imatron Inc. 1994 Employee Stock
Purchase Plan, of our report dated February 9, 1996 with respect to the
consolidated financial statements and schedules of Imatron Inc. included in its
Annual Report on Form 10-K for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
August 7, 1996 By: /s/ Ernst & Young LLP
----------------------------------
ERNST & YOUNG LLP
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