As filed with the Securities and Exchange Commission on September 6, 1996
--Registration No. __________
================================================================================
FORM S-3
SECURITIES AND EXCHANGE COMMISSION
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
(415) 583-9964
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
--------------------
S. Lewis Meyer
President and Chief Executive Officer
Imatron Inc.
389 Oyster Point Boulevard
South San Francisco, California 94080
(415) 583-9964
(Name, address including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Roger S. Mertz, Esq.
Severson & Werson
One Embarcadero Center, 25th Floor
San Francisco, California 94111
----------------------------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
<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
================================================================================
Title of Each Proposed Proposed
Class of Maximum Maximum
Securities to Amount to Offering Aggregate Amount of
Be Be Price Per Offering Registration
Registered Registered Share Price Fee
- ------------- ---------- --------- --------- ------------
Common Stock 3,810,155 $6.00(1) $22,860,930(1) $7,883
Shares
================================================================================
(1) Estimated pursuant to Rule 457(c) solely for purposes of determining the
registration fee, based on the average of the high and low sales prices on
September 4, 1996, as reported on the NASDAQ National Market System.
The Registrant hereby amends this Registration Statement on such date or date(s)
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a)
may determine.
ii
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED September 6, 1996
PROSPECTUS
3,810,155 Shares
IMATRON INC.
Common Stock No Par Value
This Prospectus relates to the sale of up to 3,810,155 shares of Common
Stock, no par value, of Imatron Inc. (the "Company") by shareholders of the
Company (the "Selling Shareholders"). A total of 69,542 shares are currently
issued and outstanding (the "Outstanding Shares"); a total of 540,613 shares are
issuable upon the exercise of outstanding warrants (the "Warrants") (the
"Warrant Shares"); and a total of 3,200,000 shares are issuable upon the
exercise of outstanding Common Stock exchange rights (the "Exchange Rights")
(the "Exchange Rights Shares"). All of the Outstanding Shares, the Warrants, and
the Exchange Rights were previously issued by the Company to the Selling
Shareholders in private transactions. The Outstanding Shares, the Warrant
Shares, and the Exchange Rights Shares are collectively referred to in this
Prospectus as the "Shares." The Selling Shareholders intend to sell the Shares
from time to time in open market and/or private sales, or by any other
appropriate method.
The Company will receive proceeds upon the exercise of the Warrants by
the Selling Shareholders, but will not receive any of the proceeds from the sale
of the Shares. The Company has agreed to bear all of the expenses in connection
with the registration (but not the sale) of the Shares.
--------------------
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS."
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Date of this Prospectus is September 6, 1996
1
<PAGE>
TABLE OF CONTENTS
AVAILABLE INFORMATION....................................................... 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................. 3
THE COMPANY................................................................. 4
RISK FACTORS................................................................ 5
USE OF PROCEEDS............................................................. 11
OFFERING PRICE.............................................................. 11
SELLING SHAREHOLDERS.........................................................12
PLAN OF DISTRIBUTION........................................................ 15
EXPERTS..................................................................... 15
LEGAL OPINION............................................................... 15
2
<PAGE>
AVAILABLE 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, 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. Shares of the Company's Common Stock are traded on the NASDAQ
National Market System under the symbol "IMAT." Information concerning the
Company may also be obtained by contacting NASDAQ/NMS.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December
31, 1995, filed March 29, 1996 (File No. 0-12405) and all amendments thereto;
the Company's definitive Proxy Statement filed pursuant to Section 14 of the
Exchange Act in connection with the Annual Meeting of shareholders held on June
28, 1996, filed April 29, 1996; the Company's Report on Form 10-Q for the period
ended June 30, 1996, filed August 14, 1996; the Form 10-Q for the period ended
March 31, 1996, filed on May 15, 1996; and the description of the Company's
Common Stock contained in a registration statement filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description, are hereby incorporated by reference into this Prospectus. All
documents filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering of Common Stock shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents, except the Board Compensation Committee Report
on Executive Compensation and the Performance Graph included in the Proxy
Statement pursuant to Item 402(k) and (l) of Regulation S-K. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus 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 statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus. The Company will provide without charge to each person, including
any beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the information that has been
incorporated by reference in this Registration Statement filed with the
Commission under the Exchange Act with respect to the Common Stock offered by
the Prospectus, other than certain exhibits to such documents. Such requests
should be directed to the Chief Financial Officer, Imatron Inc., 389 Oyster
Point Boulevard, South San Francisco, California 94080, telephone number (415)
583-9964.
3
<PAGE>
THE COMPANY
Imatron is a technology-based company principally engaged in the
business of designing, manufacturing, and marketing a high performance computed
tomography (CT) scanner that uses a scanning electron beam. CT refers to a
diagnostic imaging device in which cross-sectional (tomographic) images of a
patient's anatomy are acquired from multiple intensity readings taken as an
x-ray source rotates around the patient. Ultrafast CT technology is more than 20
times faster than conventional computed tomography, enabling users to perform
certain tests involving organs in motion (e.g. the heart) that no other medical
imaging equipment is able to perform.
For over a decade, the scanner has been used in large and mid-sized
hospitals and free standing imaging clinics. The Company also provides service,
parts, and maintenance to hospitals and clinics that operate its scanners. The
technological advantage provided by high-speed tomography now provides Imatron
the opportunity to develop a new and additional market, by performing simple,
low cost, non-invasive screening to detect the earliest signs of heart disease
by means of the Coronary Artery Scan ("CAS"). This vast new market involves
activity in both diagnostic services and equipment manufacturing.
The Company is also engaged in the related businesses of performing
research and development for itself and others in the field of CT devices and of
licensing its patents and know-how in the field of imaging sciences.
Imatron was incorporated in New Jersey in February, 1983. Its executive
offices are located at 389 Oyster Point Boulevard, South San Francisco,
California 94080, and its telephone number is (415) 583-9964.
In 1993, Imatron organized HeartScan Imaging, Inc. as a wholly-owned
subsidiary to develop and operate a network of company-owned coronary artery
disease risk assessment centers in cooperation and conjunction with the
established medical (primarily cardiology) community in specific metropolitan
areas. In that same year, HeartScan opened a test facility adjacent to Imatron's
headquarters. In July, 1995, it opened its first coronary artery disease risk
assessment center in Seattle, Washington. In January, 1996, it opened its second
facility in Houston, Texas. It opened similar facilities in Washington, D.C. and
Pittsburgh, Pennsylvania, in May, 1996. HeartScan's centers deliver the CAS
diagnostic test together with other risk factor tests in a manner consistent
with established channels of patient referral, as well as with the new channels
of patient referral being created by health care reform and the growth of
managed-care systems.
A significant component of HeartScan's approach is to offer the CAS
procedure and a full battery of coronary artery disease risk assessment testing
to consumers without necessarily requiring a physician's referral, an approach
designed to result in more rapid acceptance of the test and a shorter return on
the investment cycle. This is achieved by means of two broad and mutually
supportive approaches - increasing the number of coronary artery disease risk
assessment centers in operation, which in turn, both directly and indirectly,
increases the demand for Imatron's C-150/Evolution scanner currently in
distribution. HeartScan management believes that the market for coronary artery
disease risk assessment centers is very large and that HeartScan's comprehensive
heart disease screening approach is both revolutionary and highly effective.
4
<PAGE>
HeartScan Imaging, Inc. was incorporated in Delaware in April, 1993.
Its executive offices are currently co-located with those of Imatron Inc. at 389
Oyster Point Boulevard, South San Francisco, California 94080, and its telephone
number is (415) 583-9964.
RISK FACTORS
The securities offered hereby are speculative and involve a high degree
of risk. Prospective investors may lose all or a part of their investment.
Consequently, the following factors, in addition to the other information
contained in this Prospectus, should be considered carefully in evaluating the
Company and its business before purchasing the securities offered hereby:
Short Operating History. Imatron was incorporated in February, 1983 and
in April, 1983 became the successor to Imatron Associates, a limited partnership
established in February, 1981. Imatron operated as a development-stage company
until the fourth quarter of 1984, at which time it recognized its initial sale
of an ULTRAFAST CT7 scanner. Imatron incurred losses each quarter from inception
in February, 1981 through December 31, 1990. Its first recorded profitable year
was the year ended December 31, 1991 during which a $4,000,000 payment for the
licensing of technology to Siemens Corporation was received. The Company
incurred net losses of $2,871,000 and $6,523,000 in the years ended December 31,
1993 and 1992, respectively. 1994 was the Company's first year of profit from
operations. In 1995, the Company incurred a net loss of $2,449,000. Through the
first six months of 1996 the Company recorded a net loss of $5,023,000. There is
no assurance that Imatron can return to profitable operations in the future. In
the past, Imatron has funded its losses primarily through the sale of securities
in three public offerings and a number of private placements, through the
exercise of options and warrants, through the 1991 license for medical uses of
its electron-beam technology to Siemens Corporation, and through revolving lines
of credit. In 1995, the Company raised $9,882,000 (net of offering costs) in two
offerings of Common Stock to certain institutional investors. Through the first
six months of 1996, the Company raised $14,570,000 (net of offering costs) in
one public offering and a number of private placements to institutional
investors. In addition, during the third quarter of 1996 the Company gained
$1,757,000 from the sale of its interest in InVision Technologies, Inc., a joint
venture it helped establish in 1990. The Company has an accumulated deficit of
$62,580,000.
Management believes that cash, cash equivalents and short-term
investments existing at December 31, 1995 and the estimated proceeds from
ongoing sales of products and services in 1996 will provide the Company with
sufficient cash for operating activities and capital requirements through
December 31, 1996.
Need for Additional Financing. To satisfy the Company's future capital
and operating requirements, profitable operations or additional public or
private financing will be required. If future public or private financing is
required by the Company, holders of the Company's securities may experience
dilution. If such financing cannot be obtained, the Company may seek to sell or
license additional portions of its technology, to sell some or all of its other
assets or to merge with another company. In addition, HSI will need substantial
additional financing to fund its plan to own and operate CAS clinics. The
Company and HSI completed an offering of HSI
5
<PAGE>
Series A Preferred Stock to certain institutional investors in June 1996. The
offering raised a total of $14,866,000 (net of offering costs). Imatron has
contributed the net proceeds from the offering to HSI. In the event HSI cannot
raise necessary additional financing in the future it will have to curtail its
expansion activities.
Material Dependence Upon Key Personnel. The Company has been and will
continue to be materially dependent upon the technical expertise of its
engineering management personnel. The loss of a significant number of such
personnel would have a materially adverse effect upon the Company's business and
future prospects. The Company does not maintain key-man life insurance.
High Cost of Scanner. The distributor list price of Imatron's ULTRAFAST
CT scanner is significantly higher than that of commercially available
conventional CT scanners and higher than the price of "top-of-the-line"
scanners. Such pricing may limit the market for Imatron's product. Potential
customers' budgetary limitations, including those imposed by government
regulation, may often compel the purchase of lower cost, conventional CT
scanners.
Limited Clinical Demonstration of Certain Advantages of Company's
Scanner. The Company's scanners have been used in a clinical environment on
humans since April, 1983. Clinical use of the C-100 XL scanner model began in
February 1989 and twenty-seven C-150 scanners are currently installed in a
clinical setting. The Company believes that market acceptance of the ULTRAFAST
CT scanner continues to depend in substantial part upon the clinical
demonstration of certain asserted technological advantages and diagnostic
capabilities. There is no assurance that these advantages will result in the
development of a significant market for the ULTRAFAST CT that will allow the
Company to operate profitably.
Product Liability Risks. As a manufacturer and marketer of medical
diagnostic equipment, the Company is subject to potential product liability
claims. For example, the exposure of normal human tissue to x-rays, which is
inherent in the use of CT scanners for diagnostic imaging, may result in
potential injury to patients, thereby subjecting the Company to possible
liability claims. The Company presently maintains primary and excess product
liability insurance with aggregate limits of $5,000,000 per occurrence. No
assurance can be given that the Company's product liability insurance coverage
will continue to be available or, if available, that it can be obtained in
sufficient amounts or at reasonable cost or that it will prove sufficient to pay
any claims that may arise.
Reliance On Patents And Proprietary Technology. Imatron relies heavily
on proprietary technology which it attempts to protect through patents and trade
secrets.
In February 1981, the Company was granted the exclusive use for five
years and non-exclusive use thereafter of certain technology and a patent
pending owned by the University of California (UC) under the terms of a license
agreement between UC and Emersub, a wholly-owned subsidiary of a former
principal shareholder of the Company, and a sublicense agreement between Emersub
and Imatron Associates (the predecessor to the Company), respectively. In June
1986, the license and sublicense agreements were amended to extend the Company's
exclusive use of the technology through the remaining 9-year life of the patent
in exchange for modified minimum annual royalty payments. Under the terms of
Emersub's license with UC, Emersub was obligated to make certain additional
payments in connection with the license. In
6
<PAGE>
October 1990, pursuant to subsequent amendments of the license and sublicense
agreements, the Company issued an aggregate of 132,813 shares of Series A
Preferred Stock to UC and Emersub in satisfaction of this obligation. The
University of California converted their 125,000 Series A Preferred Stock into
625,000 common stock shares in 1993. Emersub converted their 7,813 Series A
Preferred Stock into 39,065 common stock shares in September 1995.
In addition, the sublicense agreement, as amended, requires the Company
to pay annual royalties to Emersub equal to 2.125% of net sales of certain of
the Company's products. The Company's Chairman of the Board, Dr. Douglas P.
Boyd, receives 6% of all of the royalties paid by Emersub to UC. Loss by Imatron
of its rights under the patent as a result of termination of its sublicense from
Emersub, or the underlying license, could have a material adverse effect upon
Imatron's business and future prospects. There are no present disputes with
either UC or Emersub.
Development of portions of the technology covered by the UC patent and
sublicensed to Imatron has been funded in substantial part through research
financing made available to UC by the National Institutes of Health. As a result
of such financing, it is possible that the U. S. Government may assert certain
claims in such UC patents, including the right to a royalty-free license for
governmental use.
In addition, Imatron holds twenty-seven U.S. Patents of its own (each
with a remaining life in excess of 3 years) and has filed three U.S. patent
applications covering various integral components of the scanner including,
among others, its electron beam assembly and its x-ray detector and has filed
applications corresponding to several of these patents and applications in
various European Patent Convention countries, Canada and Japan. There can be no
assurance that any such applications will result in the issuance of a patent to
the Company. Imatron's patents and patent applications have not been tested in
litigation and no assurance can be given that patent protection will be upheld
or will be as extensive as claimed. Furthermore, no assurance can be given as to
the Company's ability to finance litigation against parties which may infringe
upon such patents or parties which may claim that the Company's scanner
infringes upon their patents. However, the agreement signed by the Company and
Siemens Corporation in March 1991 allows Siemens Corporation to enter litigation
in favor of Imatron.
On March 31, 1995, the Company and Siemens Corporation ("Siemens")
entered into an agreement (the "Memorandum of Understanding") relating in part
to certain of the Company's patents. Pursuant to the agreement, the Company
transferred to Siemens five patents, two of which cover features of the
Company's C-150 scanner, in consideration of the cancellation by Siemens of a $4
million term loan to the Company. As part of the agreement Siemens granted to
the Company a non-exclusive, irrevocable, perpetual license to the five patents.
The license is subject to a royalty of $20,000 for each new C-150 unit produced
by the Company beginning with the twenty-first C-150 unit produced in any year.
Siemens has recently asserted a claim against the Company regarding the
lapse of certain foreign registrations of one of the patents assigned to Siemens
by the Company in connection with the March 31, 1995 agreement between the
companies. The technology involved in the patent is not used presently in any of
the Company's products. The Company believes that it can provide a new patent to
Siemens to replace the lapsed patent. While the resolution of the claim is not
expected to have a material effect on the Company's financial position it could
however,
7
<PAGE>
have a material effect on the results of operations of a particular future
period if resolved unfavorably.
In the event some or all of the Company's patent applications are
denied and/or some or all of its patents held invalid, the Company would be
prevented from precluding its competitors from using the protected technology
set forth in such patent applications or patents. Because the Company's products
involve confidential proprietary technology and know-how, the Company does not
believe such a loss of patent rights would have a material adverse effect upon
the Company.
The Company also believes that many of its proprietary technologies are
better protected as trade secrets or copyrights than by patents. Moreover,
although protection of the Company's existing proprietary technologies is
important, other factors such as product development, customer support and
marketing ability are equally important to the development of the Company's
business.
Limited or Single Sources of Supply. The Company manufactures its
scanners at its South San Francisco, California facility. To date the typical
manufacturing cycle has required six months based on inventory and lead time can
be significant between authorization of manufacturing to delivery of a scanner.
Many of the components and sub-assemblies used in the scanner have been
developed and designed by Imatron to its custom specifications and are
obtainable from limited or single sources of supply. In view of the customized
nature of many of these components and sub-assemblies, there may be extended
delays between their order and deliver. Delays in such delivery could adversely
affect Imatron's present and future production schedules. The Company has made
and continues to make inventory investments to acquire long lead time components
and sub-assemblies to minimize the impact of such delays. In recent years, the
Company has developed alternative sources for many of its scanner subcomponents
and continues its programs to qualify vendors for the remaining critical parts.
Also, certain vendors currently require cash-on-delivery or prepay
payment terms. There can be no assurance that such actions will not adversely
affect the Company's production schedule and its ability to deliver products in
a timely manner. As a result of certain vendors currently requiring
cash-on-delivery or prepay terms, the Company must maintain higher levels of
cash and other sources of credit to fund material purchases than otherwise would
be required.
Volatility of Stock Price. The market prices for securities of advanced
technology companies have historically been highly volatile, including the
market price of shares of the Company's Common Stock. Future announcements by
the Company or its competitors, including announcements concerning technological
innovations or new commercial products, results of clinical testing, changes in
government regulations, regulatory actions, health care reform, proprietary
rights, litigation and public concerns as to the safety of the Company's or its
collaborators' products, as well as period-to-period variances in financial
results could cause the market price of the Common Stock to fluctuate
substantially. In addition, the stock market has experienced extreme price and
volume fluctuations that have particularly affected the market price for many
advanced technology companies that have often been unrelated to the operating
8
<PAGE>
performance of these companies. These broad market fluctuations may adversely
affect the market price of the Common Stock.
Food And Drug Administration And Other Governmental Regulation.
Amendments to the Federal Food, Drug, and Cosmetic Act ("Amendments") enacted in
1976, and regulations issued or authorized thereunder, provide for regulation by
the Federal Food and Drug Administration ("FDA") of the marketing, manufacture,
labeling, packaging, sale and distribution of "medical devices," including the
Company's scanner. Among these regulations are requirements that medical device
manufacturers register their manufacturing facilities with the FDA, list devices
manufactured by them file various reports and comply with specified Good
Manufacturing Practice ("GMP") regulations. The FDA enforces additional
regulations regarding the safety of equipment utilizing x-rays, including CT
scanners. Various states also impose similar regulations.
The Amendments also impose certain requirements which must be met prior
to the initial marketing of medical devices introduced into commerce after May
28, 1976. Other requirements imposed on medical device manufacturers include a
pre-market notification process commonly known as the 510(k) application to
market a new or modified medical device. Additionally, and specifically if
required by the FDA, a pre-market approval ("PMA") may be required. This process
is potentially expensive and time consuming and must be completed prior to
marketing a new medical device. The Company has received appropriate clearances
from the FDA to market both the C-100 and C-150 ULTRAFAST CT scanner. The
Company believes that it is presently in substantial compliance with the GMP
requirements and other regulatory issues promulgated by the FDA.
The FDA also regulates the safety and efficacy of radiological devices.
Although the Company believes it is in compliance with all applicable
radiological health regulations promulgated by the FDA, there can be no
assurance that the ULTRAFAST CT scanner will continue to comply with all such
standards and regulations that may be promulgated. In any event, compliance with
all such requirements can be costly and time consuming, with a resultant
materially adverse effect upon the development of the Company's business and its
future profitability.
FDA clearance to market does not guarantee or imply reimbursement by
third-party payers such as Medicare, Medicaid, Blue Cross/Blue Shield or private
health insurers. Medicare and Medicaid reimburse for procedures that are
generally accepted or that have been proven safe and effective. The Health Care
Financing Administration ("HCFA"), which oversees Medicare and Medicaid payment
policies, will not authorize payment for procedures which are considered to be
experimental. HCFA has determined that diagnostic examinations of the head and
other parts of the body performed by CT scanners are covered if the contractor
who administers the local Medicare program finds that medical and scientific
literature and opinion support the effective use of a scan for the particular
condition.
The Federal government and certain states have enacted cost-containment
measures such as the establishment of maximum fee standards in an attempt to
limit the extent and cost of governmental reimbursement of allowable medical
expenses under Medicare, Medicaid and similar governmental programs. A number of
states have adopted or are considering the adoption of similar measures. Such
limitations have led to a reduction in, and may further limit
9
<PAGE>
funds available for, the purchase of diagnostic equipment such as the Company's
scanner and in the number of diagnostic imaging procedures performed in
hospitals and other medical institutions such as imaging clinics.
Certain states have adopted requirements that hospitals and other
health care facilities, such as imaging clinics, obtain a Certificate of Need
("CON") for major capital expenditures, in the absence of which they will be
denied reimbursement for services and funding relating to such capital
expenditures. A number of states have enacted more stringent CON legislation
such as requiring private physicians to obtain a CON for any CT scanner,
regardless of cost. There can be no assurance that Imatron's potential customers
will be able to secure CONs or will be willing to pursue the application
procedure.
The Company's primary customers operate in the healthcare industry. The
health care industry is highly regulated. Both existing and future governmental
regulations could adversely impact the market for the Company's ULTRAFAST CT
scanner and the Company's business. The Company's operations are also subject to
regulation by other federal, state and local governmental entities empowered to
enforce pertinent statutes and regulations, such as those enforced by the
Occupational Safety and Health Agency and the Environmental Protection Agency.
In some cases, state or local regulations may be stricter than regulations
imposed by the federal government. The Company was most recently inspected by
the State of California Department of Occupational Safety and Health
Administration in November, 1993. Minor violations were issued by Cal/OSHA and
were immediately corrected by the Company. The subsequent follow up inspection
in December by the same regulatory body yielded satisfactory results without the
issuance of further notice of violation. The Company believes that it is in
substantial compliance with California regulations applicable to its business.
Competition. In the non-cardiac imaging applications market (composed
principally of hospital radiology departments), the Company's principal
competition is from current manufacturers of conventional CT scanners, including
General Electric Company, Siemens Corporation, Elscint, Picker International,
Inc., Philips Medical Systems, and Toshiba Medical Corporation. Non-invasive
diagnostic imaging techniques such as ultrasound, radioisotope imaging, digital
subtraction angiography and magnetic resonance imaging are also partially
competitive with the Company's scanners, particularly in the cardiac imaging
market. Each of the companies named above markets equipment using one or more of
these techniques. All of these companies have greater financial resources and
larger and more established staffs than those of the Company and their products
are in most cases substantially less expensive than the ULTRAFAST CT scanner.
The Company believes that to compete successfully against these
competitors, it must demonstrate that the ULTRAFAST CT scanner is both an
acceptable substitute for conventional CT scanners in scanning areas of the body
where motion is not a limitation and a valuable cardiac diagnostic tool capable
of producing useful images of the heart. Although the Company believes that the
ULTRAFAST CT can produce images of a quality and resolution as good as or
superior to images produced by state-of-the-art conventional CT scanners, it
lacks certain features that many competing premium scanners offer. These include
lack of a high-resolution mode for imaging the temporal bones and inner ear and
lower functionality in software used for automatically positioning the patient.
There is no certainty that potential purchasers of the Company's scanner will
accept it without such features.
10
<PAGE>
Also, the Company believes that customers and potential customers
expect a continuing development effort to improve the functionality and features
of the scanner. The Company continually seeks to develop product enhancements
and improve product reliability. Imatron's future success may depend on its
ability to complete certain product enhancement and product reliability projects
currently in progress, as well as on its continued ability to develop new
products or product enhancements in response to new products that may be
introduced by other companies. There can be no assurance that Imatron will be
able to continue to improve product reliability or introduce new product models
or product enhancements as required to remain competitive.
Other factors, in addition to those described above, that a potential
purchaser would consider in the decision to replace a conventional CT scanner
with an ULTRAFAST CT scanner include purchase price, patient throughput
capacity, anticipated operating expenses, estimated useful life and post-sale
customer service and support. The Company believes that its scanner and/or the
Company is competitive with respect to each of these factors.
Reliance on Distributors. A substantial portion of the Company's sales
of its scanners is done through distributors. There is no assurance that the
Company's distributors will actually meet their contractual minimums on a timely
basis. Failure by the distributors to meet their obligations could adversely
affect the Company.
No Dividends on Preferred and Common Stock. The Company has not paid
any dividends on its Preferred or Common Stock since inception. Even if its
future operations result in revenues and/or profitability, as to which there can
be no assurance, there is no present anticipation that dividends will be paid.
Rather, the Company expects that any future earnings will be applied toward the
further development of the Company's business.
USE OF PROCEEDS
The Company will not receive any part of the proceeds from the sale of
the Shares by the Selling Shareholders. As described under "Selling
Shareholders", a portion of the Shares will be acquired by the Selling
Shareholders upon exercise of the Warrants. Upon the exercise of a Warrant, the
Company will receive the applicable exercise price per share from the Selling
Shareholder. The Company will use such proceeds to increase working capital.
OFFERING PRICE
This Prospectus may be used from time to time by the Selling
Shareholders who offer the Common Stock registered hereby for sale. The offering
price of such Common Stock will be determined by the Selling Shareholder and may
be based on market price prevailing at the time of sale, at prices relating to
such prevailing market prices, or at negotiated prices. The market price of the
Company's Common Stock on the date of any proposed sale, as listed on the NASDAQ
National Market System, symbol "IMAT", is the most significant but not the only,
factor used to determine the offering price of the Shares.
11
<PAGE>
SELLING SHAREHOLDERS
The following provides certain information with respect to the Common
Stock beneficially owned by the Selling Shareholders who are entitled to use
this Prospectus. The information in the table is as of the date of this
Prospectus. The Common Stock offered by this Prospectus may be offered from time
to time by the Selling Shareholders named below or their nominees:
Shares Shares Available Percent Owned
Name of Selling Beneficially for Sale Under After Completion
Securityholder Owned(1) this Prospectus of the Offering(2)
- --------------- ------------ ---------------- ------------------
Ambient Capital Group, 102,398 102,398 *
Inc.(3)(4)
Banque Privee Edmond de 69,655 19,200 *
Rothschild, S.A.
Geneva
Forbes W. Burtt(5) 4,516 4,516 *
Michel Cornis 10,000 10,000 *
Cramer, Rosenthal, 9,600 9,600 *
McGlynn, Inc.
Credit Suisse 25,600 25,600 *
(Guernsey) Limited
CRM Madison 38,400 38,400 *
Partners, L.P.
CRM Partners, L.P. 155,200 155,200 *
CRM Retirement 76,800 76,800 *
Partners, L.P.
Elliott Associates, 266,560 266,560 *
L.P.(6)
Joseph P. Galichia, 80,000 80,000 *
M.D.
Global Bermuda Limited 500,000 500,000 *
Partnership
12
<PAGE>
Grace Brothers, Ltd. 180,000 180,000 *
Heritage Finance & 9,032 9,032 *
Trust Company
A.B. Laffer, V.A. 9,600 9,600 *
Canto & Associates
Lakeshore 104,000 104,000 *
International Ltd.
Lagunitas Partners L.P. 80,000 80,000 *
Libra Investments, Inc. 22,581 22,581 *
Merced Partners 196,000 196,000 *
Limited Partnership
Modern Woodmen 80,000 80,000 *
of America
Robert G. Morrish(5) 2,258 2,258 *
Gary Post(3) 316,793 316,793 *
Stephen P. Rader 14,400 14,400 *
and Anne W.Rader,
and their successors,
as trustees of the
Rader Living Trust
dated 9/9/94
Ravich Revocable 211,290 211,290 *
Trust of 1989
Reinfrank Living 14,400 14,400 *
Trust UA 6/13/95
SC Fundamental 304,000 304,000 *
Value BVI, Ltd.(7)
SC Fundamental 696,000 696,000 *
Value Fund,L.P.(7)
Jonathan Schwartz(5) 4,516 4,516 *
13
<PAGE>
Mark S. Siegel 3,360 3,360 *
The Shemano 35,000 35,000 *
Group, Inc. fbo
Gary J. Shemano(8)
The Shemano 33,000 33,000 *
Group, Inc. fbo
Michael R. Jacks(8)
The Shemano 2,000 2,000 *
Group, Inc. fbo
William David
Corbett & Mary
Corbett Jt. Ten.(8)
Sitrick and 66,371 66,371 *
Company Inc.(9)
Kathleen Sullivan 28,005 3,840 *
Westgate 133,440 133,440 *
International, L.P.(6)
All Selling 3,884,775 3,810,155 *
Shareholders as a
Group
- -----------------------------
* Less than 1%
(1) Includes shares owned prior to this offering and the shares which are
issuable upon the exercise of the Exchange Rights and the Warrants held by
the Selling Shareholders. The number of shares being offered hereby is
shown in the "Shares Available for Sale Under this Prospectus" column. See
footnote below.
(2) Percentages are based upon the assumption that upon the completion of this
offering the respective Selling Shareholder has sold the Common Stock
listed as "Shares Available for Sale Under this Prospectus" and are
computed on the basis of 76,659,943 shares of Common Stock issued and
outstanding as of August 23, 1996.
(3) Ambient Capital Group, Inc. is 48% owned by Gary Post and he shares the
power to vote and dispose of the Shares owned by Ambient.
(4) Ambient Capital Group, Inc. has provided financial consulting services to
the Company and its subsidiary HeartScan Imaging, Inc. at varying times
during the past three years.
(5) Forbes W. Burtt, Robert G. Morrish and Jonathan Schwartz are employed by
Libra Investments, Inc., a company which has provided financial consulting
services to the Company and HeartScan at varying times during the past
three years. Jess M. Ravich is the controlling shareholder of Libra
Investments, Inc. and shares the power to vote and dispose of the Shares
owned by Libra.
(6) Paul E. Singer, either directly or indirectly, may be deemed to control
each of these entities. Elliott Associates, L.P. and Westgate
International, L.P. may be deemed to be a group for purposes of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended.
14
<PAGE>
(7) Gary Siegler and Peter Collery own controlling interests in both SC
Fundamental Value BVI, Ltd. And SC Fundamental Value Fund, L.P. and each
individual shares the power to vote and dispose of the Shares owned by such
Selling Shareholders.
(8) Gary J. Shemano, Michael R. Jacks and William David Corbett are employed by
The Shemano Group, Inc., a company which has provided financial consulting
services to the Company and HeartScan at varying times during the past
three years.
(9) Sitrick and Company Inc. has provided public relations consulting services
to the Company and HeartScan at varying times during the past two years.
PLAN OF DISTRIBUTION
The Selling Shareholders have advised the Company that the Selling
Shareholders intend to sell their Shares from time to time in private or public
transactions, in transactions involving principals, in transactions involving
brokers, or by any other lawful methods. Sales through brokers may be made by
any method of trading authorized by the NASDAQ National Market System or any
stock exchange on which the Shares of Common Stock may be listed in the future,
including block trading in negotiated transactions. Without limiting the
foregoing, such brokers may act as dealers by purchasing any or all of the
Shares covered by this Prospectus, either as agents for others or as principals
for their own accounts and reselling such shares pursuant to this Prospectus. In
sales made through underwriters, dealers or brokers, such entities may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Shareholders and/or the purchasers of shares for whom they may
act as agents.
The Company will pay all of the expenses incident to the registration
of the Shares. The Company will not pay any expenses incident to the offering
and sale of the Common Stock to the public, including, but not limited to
commissions and discounts of underwriters, dealers or agents.
The transfer agent for the Common Stock is Continental Stock Transfer &
Trust Co., 2 Broadway, New York, NY 10004.
EXPERTS
The consolidated financial statements of Imatron Inc. incorporated by
reference in Imatron Inc.'s Annual Report (Form 10-K) for the year ended
December 31, 1995, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
LEGAL OPINION
The legality of the shares of Common Stock offered will be passed upon
for the Company by Severson & Werson, A Professional Corporation, One
Embarcadero Center, 26th floor, San Francisco, California 94111.
15
<PAGE>
No dealer, salesman or any other person has been 3,810,155 Shares
authorized to give any information or to make any
representation not contained in this Prospectus in
connection with the offer made hereby. If given or
made, such information or representation must not be
relied upon as having been authorized by Imatron Inc.
This Prospectus does not constitute an offer to sell or IMATRON INC.
a solicitation of an offer to buy any securities other
than those specifically offered hereby or an offer to No Par Common Stock
buy to any person in any jurisdiction in which such an
offer or solicitation would be unlawful. Neither the
delivery of this Prospectus nor any sale made hereunder PROSPECTUS
shall under any circumstances create any implication
that the information contained herein is correct as of
any time subsequent to the date hereof. September 6, 1996
16
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses payable by the Company in
connection with the issuance and distribution of the Common Stock being
registered.1 All the amounts shown are estimates except for the registration
fee.
Registration fee $ 7,883
Printing and engraving expenses 500
Legal fees and expenses2 7,500
Accounting fees and expenses 3,500
Total $19,383
ITEM 15. Indemnification of Directors and Officers.
Article IX of the Bylaws of the Company sets forth the extent to which
officers or directors of the Company may be indemnified against any liabilities
which they may incur. The general effect of such Bylaw provision is that any
person 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 Company, or of
another corporation or other enterprise which he served as such at the request
of the Company, shall be indemnified by the Company against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by it in connection with such action, suit or proceeding, to
the full extent permitted under the laws of the State of New Jersey.
The general effect of the indemnification provisions contained in
Section 14A:3-5 of the New Jersey General Corporation Law is as follows: A
director or officer who, by reason of such directorship or officership, is
involved in any action, suit or preceding (other than an action by or in the
right of the Company) may be indemnified by the Company against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interest of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. A director or officer who, by reason of such directorship
or officership, is involved in any action or suit by or in the right of the
Company may be indemnified by the Company against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
- ----------------------
1 Blue Sky filings.
2 Including legal expenses associated with Blue Sky filings.
17
<PAGE>
the Company, except that no indemnification may be made in respect of any claim,
issue or matter as to which he shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the Company unless
and only to the extent that a court of appropriate jurisdiction shall approve
such indemnification.
ITEM 16. Exhibits.
Exhibit No. Description
- ----------- -----------
3.1 Certificate of Incorporation of the Company, as amended, as of
March 31, 1983.3
3.2 Certificate of Amendment of Certificate of Incorporation filed with
the New Jersey Secretary of State on June 7, 1988.4
3.3 Certificate of Amendment of Certificate of Incorporation filed with
the New Jersey Secretary of State on June 17, 1988.5
3.4 Certificate of Amendment of Certificate of Incorporation filed with
the New Jersey Secretary of State on July 26, 1988.6
3.5 Certificate of Correction of Certificate of Amendment of
Certificate of Incorporation filed with the New Jersey Secretary of
State on February 7, 1989.7
3.6 Certificate of Amendment of Certificate of Incorporation filed with
the New Jersey Secretary of State on April 29, 1990.8
- ---------------------
3 Filed as an Exhibit to the Company's Registration Statement on Form S-8
filed with the Commission on February 3, 1989 (File No. 33-26833) and
incorporated herein by reference.
4 Filed as an Exhibit to the Company's Registration Statement on Form S-8
filed with the Commission on February 3, 1989 (File No. 33-26833) and
incorporated herein by reference.
5 Filed as an Exhibit to the Company's Form 8 amending the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1988 filed
with the Commission on May 2, 1989 and incorporated herein by reference.
6 Filed as an Exhibit to the Company's Registration Statement on Form S-8
filed with the Commission on February 3, 1989 (File No. 33-26833) and
incorporated herein by reference.
7 Filed as an Exhibit to the Company's Form 8 amending the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1988 filed
with the Commission on May 2, 1989 and incorporated herein by reference.
8 Filed as an Exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1989 and incorporated herein by reference.
18
<PAGE>
3.7 Certificate of Amendment of Certificate of Incorporation filed with
the New Jersey Secretary of State on December 7, 1990.9
3.8 Bylaws, as amended as of April 30, 1992.10
4.1 Common Stock Purchase Agreement dated June 24, 1996 between the
Company, HeartScan Imaging Inc., and investors in the HeartScan
Imaging, Inc. Series A Preferred Stock Private Offering.11
4.2 Form of Common Stock Purchase Warrant which expires June 24, 2001
issued to investors in connection with the HeartScan Imaging, Inc.
Series A Preferred Stock Private Offering which concluded June 24,
1996.
4.3 Form of Warrant Purchase Agreement between the Company and
investors in the Private Offering which concluded June 24, 1996.
4.4 Stock Purchase Agreement between the Company and Gary Post.
4.5 Common Stock Purchase Warrant which expires March 8, 2001 issued to
Gary Post.
5.1 Opinion of Counsel as to the legality of securities being
registered.
24.1 Consent of Independent Auditors.
24.2 Consent of Counsel. Reference is made to Exhibit 5.1.
25.1 Power of Attorney (contained in signature pages).
ITEM 17. Undertakings.
A. Rule 415 Offering.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
- ---------------------
9 Filed as an Exhibit to the Company's Registration Statement on Form S-8
filed with the Commission on May 6, 1991 (File No. 33-40391) and incorporated
herein by reference.
10 Filed as an Exhibit to Post-Effective Amendment No. 1 to the Company's
Registration Statement on Form S-3 filed with the Commission on May 5, 1992
(File No. 33-32218) and incorporated herein by reference.
11 Filed as an Exhibit to the Company's Form 8 amending the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995 filed
with the Commission on July 1, 1996 and incorporated herein by reference.
19
<PAGE>
(i) To include any Prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the 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 the Registration Statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the Registration Statement is on Form S-3, or Form S-8, and the
information required or 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 Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(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.
(4) To deliver or cause to be delivered with the Prospectus, to
each person to whom the Prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the Prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Exchange Act; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the Prospectus, to
deliver, or cause to be delivered to each person to whom the Prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the Prospectus to provide such interim financial information.
B. Filings Incorporating Subsequent Exchange Act Documents By
Reference.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offering therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Acceleration of Effectiveness.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing
20
<PAGE>
provisions, or otherwise, the Company has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act, and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer
or controlling person of the Company 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 Company will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
21
<PAGE>
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-3 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
September 6, 1996.
IMATRON INC.
By: /s/ S. Lewis Meyer
---------------------------------
S. Lewis Meyer
President and Chief Executive Officer
22
<PAGE>
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 September 6, 1996
- ----------------- Officer and Director
S. Lewis Meyer
/s/ DOUGLAS P. BOYD Chairman of the Board September 6, 1996
- ------------------
Douglas P. Boyd
/s/ GARY H. BROOKS Vice President Finance, Chief September 6, 1996
- --------------------- Financial Officer,
Gary H. Brooks and Chief Accounting
Officer
/s/ JOHN L. COUCH Director September 6, 1996
- ---------------------
John L. Couch
/s/ TERRY ROSS Director September 6, 1996
- ---------------------
Terry Ross
/s/ ALDO TEST Director September 6, 1996
- ---------------------
Aldo Test
23
<PAGE>
IMATRON INC.
INDEX TO EXHIBITS FILED WITH
FORM S-3 REGISTRATION STATEMENT
3,810,155 Shares of Common Stock
Sequential
Exhibit No. Description Page No.
- ----------- ----------- --------
4.2 Form of Common Stock Purchase Warrant between the Company 26
and investors in the Private Offering which concluded
June 24, 1996.
4.3 Form of Warrant Purchase Agreement between the Company 31
and investors in the Private Offering which concluded
June 24, 1996.
4.4 Stock Purchase Agreement between the Company and Gary 39
Post dated March 8, 1996.
4.5 Common Stock Purchase Warrant which expires March 8, 47
2001 issued to Gary Post.
5.1 Opinion of Counsel as to legality of securities 54
being registered.
24.1 Consent of Ernst & Young LLP, independent auditors. 57
24.2 Consent of counsel.
Reference is made to Exhibit 5.1.
25.1 Power of Attorney (contained in signature pages)
24
Exhibit 4.2
25
<PAGE>
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY SALE, TRANSFER,
PLEDGE OR OTHER DISPOSITION THEREOF MAY BE MADE ONLY (i) IN A REGISTRATION UNDER
SAID ACT OR (ii) IF AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE
AND THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL TO THAT EFFECT REASONABLY
SATISFACTORY TO IT.
IMATRON INC.
COMMON STOCK PURCHASE WARRANT
This Warrant Expires June 24, 2001
Warrant No. IM96-[Warrant Serial No.] Shares: [Number of shares]
THIS CERTIFIES that, subject to the terms and conditions herein set
forth, [Name of Warrant Holder] (the "Holder") is entitled to purchase from
Imatron Inc., a New Jersey corporation (the "Company"), at any time or from time
to time during the Exercise Period (as hereinafter defined) the number of fully
paid and non-assessable shares of Common Stock of the Company (the "Shares") as
provided herein upon surrender hereof at the principal office of the Company,
and, at the election of the holder hereof, upon payment of the purchase price at
said office in cash or by cashier's check or by the wire transfer of funds in a
dollar amount equal to the purchase price of the Shares for which the
consideration is being given. This Warrant is issued under and in accordance
with a Warrant Purchase Agreement (the "Warrant Purchase Agreement") dated as of
June 24, 1996 between the Company and the Holder, and is subject to the terms
and provisions contained in the Warrant Purchase Agreement.
This Warrant shall be exercisable for that number of Shares as set
forth above.
1. Purchase Price. Subject to adjustment as hereinafter provided, the
purchase price of one share of Common Stock (or such securities as may be
substituted for one share of Common Stock pursuant to the provisions hereinafter
set forth) (the "Warrant Price") shall be Six Dollars and Twenty Cents ($6.20).
2. Adjustment of Warrant Price and Number of Shares. In addition to the
adjustment provided for in Section 1 above, the number and kind of securities
issuable upon the exercise of this Warrant shall be subject to adjustment from
time to time upon the happening of certain events as follows:
a. Adjustment for Dividends in Stock. In case at any time or
from time to time on or after the date hereof the holders of the Common Stock of
the Company (or any shares of stock or other securities at the time receivable
upon the exercise of this Warrant) shall have received, or, on or after the
record date fixed for the determination of eligible stockholders, shall have
become entitled to receive, without payment therefor, other or additional stock
of the Company by way of dividend (other than as provided for in Paragraph 2(b)
below), then and in each such case, the holder of this Warrant shall, upon the
exercise hereof, be entitled to receive, in addition to the number of shares of
Common Stock receivable thereupon, and without payment of any additional
consideration therefor, the amount of such other or additional stock of the
Company which such holder would hold on the date of such exercise had it been
the holder of record of such Common Stock on the date hereof and had thereafter,
during the period from the date hereof to and including the date of such
exercise, retained such shares and/or all other additional stock receivable by
it as aforesaid during such period, given effect to all adjustments called for
during such period by this Paragraph 2.
b. Adjustment for Changes in Common Stock. In the event of
changes in the outstanding Common Stock of the Company by reason of split-ups,
recapitalizations, reclassifications, mergers, consolidations, combinations or
exchanges of shares, separations, reorganizations, liquidations, or the like,
the number and class of shares available under the Warrant in the aggregate and
the Warrant Price shall be correspondingly adjusted by the Board of Directors of
the Company. The adjustment shall be such as will give the holder of the Warrant
on exercise for the same aggregate Warrant Price the total number, class, and
kind of shares as he would have owned had the Warrant been exercised prior to
the event and had he continued to hold such shares until after the event
requiring adjustment.
26
<PAGE>
3. No Fractional Shares. No fractional shares of Common Stock will be
issued in connection with any subscription hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the fair market value of one share of
Common Stock on the date of exercise, as determined by the fair market value of
one share of the Company's Common Stock on the date of exercise as determined in
good faith by the Company's Board of Directors.
4. No Stockholder Rights. This Warrant shall not entitle its holder to
any of the rights of a stockholder of the Company prior to exercise thereof.
5. Reservation of Stock. The Company covenants that during the period
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant. The Company agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Common Stock upon the exercise of this
Warrant.
6. Exercise of Warrant. This Warrant may be exercised by the registered
holder or its registered assigns, in whole or in part, by the surrender of this
Warrant at the principal office of the Company, together with the form of
subscription hereof duly executed, accompanied by payment in full of the amount
of the Warrant Price in the form described in this Warrant. Upon partial
exercise hereof, a new warrant or warrants containing the same date and
provisions as this Warrant shall be issued by the Company to the registered
holder for the number of shares of Common Stock with respect to which this
Warrant shall not have been exercised. A Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
shares of Common Stock issuable upon such exercise shall be treated for all
purposes as the holder of such shares of record as of the close of business on
such date. As promptly as practicable on or after such date, the Company shall
issue and deliver to the person or persons entitled to receive the same, a
certificate or certificates for the number of full shares of Common Stock
issuable upon such exercise, together with cash in lieu of any fraction of a
share as provided above.
7. Certificate of Adjustment. Whenever the Warrant Price is adjusted as
herein provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company setting forth the relevant
Warrant Price or number of shares after such adjustment and setting forth a
brief statement of the facts requiring such adjustment.
8. Compliance With Securities Act. The holder of this Warrant, by
acceptance hereof, agrees that this Warrant and the shares of Common Stock to be
issued upon exercise hereof (or shares of any security into which such Common
Stock may be converted) are being acquired for investment and that the holder
will not offer, sell, or otherwise dispose of this Warrant and any shares of
Common Stock to be issued upon exercise hereof (or shares of any security into
which such Common Stock may be converted) except under circumstances which will
not result in a violation of the Securities Act of 1933, as amended (the "Act").
Upon exercise of this Warrant, the holder hereof shall, if requested by the
Company, confirm in writing its investment purpose and acceptance of the
restrictions on transfer of the shares of Common Stock.
9. Subdivision of Warrant. At the request of the holder of this Warrant
in connection with a transfer or exercise of a portion of the Warrant, upon
surrender of such Warrant for such purpose to the Company, the Company at its
expense (except for any transfer tax payable) will issue and exchange therefor
warrants of like tenor and date representing in the aggregate the right to
purchase such number of shares of such Common Stock as shall be designated by
such holder at the time of such surrender; provided, however, that the Company's
obligations to subdivide securities under this section shall be subject to and
conditioned upon the compliance of any such subdivision with applicable state
securities laws and with the Act.
27
<PAGE>
10. Notices of Record Date. In case
(a) the Company shall take a record of the holders of its
Common Stock (or other stock or securities at the time receivable upon
the exercise of the Warrant) for the purpose of entitling them to
receive any dividend or other distribution, or any rights to subscribe
for or purchase any shares of stock of any class or any other
securities, or to receive any other right, or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation
or merger of the Company with or into another corporation, or any
conveyance of all or substantially all of the assets of the Company to
another corporation, or
(c) of any voluntary dissolution, liquidation or winding-up of
the Company,
then, and in each such case, the Company will mail or cause to be mailed to each
holder of a Warrant at the time outstanding a notice specifying, as the case may
be, (i) the date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character of such
dividend, distribution or right, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock or such other stock or securities at the
time receivable upon the exercise of the Warrant shall be entitled to exchange
their shares of Common Stock (or such other stock or securities) for securities
or other property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or winding-up. Such
notice shall be mailed at least 30 days prior to the date therein specified.
11. Loss, Theft, Destruction, or Mutilation of Warrant. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction, or mutilation of this Warrant, and in case of loss, theft, or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new Warrant of like tenor and dates as of such cancellation,
in lieu of this Warrant.
12. Miscellaneous. This Warrant shall be governed by the laws of the
State of California. The headings in this Warrant are for purposes of
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged, or terminated orally but only by an instrument in writing signed by
the Company and the registered holder hereof. All notices and other
communications from the Company to the holder of this Warrant shall be by
telecopy or expedited courier service to the address furnished to the Company in
writing by the last holder of this Warrant who shall have furnished an address
to the Company in writing.
13. Exercise Period. The Exercise Period shall mean the period
commencing on the date hereof and ending on June 24, 2001.
ISSUED this 24th day of June, 1996.
IMATRON INC.
By_________________________
Vice President
[Seal]
28
<PAGE>
IMATRON INC. FORM S-3
Schedule to Exhibit 4.2
Pursuant to Instruction No. 2 to Item 601
of Regulation S-K
The form of Common Stock Purchase Warrant filed as Exhibit 4.2 to this
Registration Statement is substantially identical in all material respects to
each of the Common Stock Purchase Warrants issued by the Company to investors in
connection with the HeartScan Imaging, Inc. Series A Preferred Stock Private
Offering conducted by the Company which concluded June 24, 1996. This Schedule
relates to each Warrant for those investors whose Warrant Shares are being
registered for sale by this Registration Statement. The Schedule sets forth the
material details of all such warrants which differ from the form of exhibit
filed herewith.
Name of Warrantholder Number of Common Shares Exercisable
- --------------------- -----------------------------------
Ambient Capital Group, Inc. 14,678
Forbes W. Burtt 4,516
Heritage Finance & Trust Company 9,032
Libra Investments, Inc. 22,581
Robert G. Morrish 2,258
Gary Post 44,033
Ravich Revocable Trust of 1989 11,290
Jonathan Schwartz 4,516
The Shemano Group, Inc. fbo William David 2,000
Corbett & Mary Corbett, Jt. Ten.
The Shemano Group, Inc. fbo Michael R. 33,000
Jacks
The Shemano Group, Inc. fbo Gary J. 35,000
Shemano
29
Exhibit 4.3
30
<PAGE>
WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT (the "Agreement") is made and entered
into this 24th day of June, 1996 by and between IMATRON INC., a New Jersey
corporation (the "Company") and [Name of Investor], a corporation (the
"Investor").
R E C I T A L S:
WHEREAS, the Company desires to issue to Investor and the Investor desires
to purchase from the Company a warrant (the "Warrant") to purchase [Number of
Shares] shares of the Company's common stock (the "Shares") all on the terms and
conditions hereinafter provided. The Warrant and the Shares are hereafter
collectively referred to as the "Securities".
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Issuance of Warrant. For good and valuable consideration the receipt and
sufficiency of which is acknowledged by the Company, the Company agrees to issue
to Investor the Warrant, the form of which is attached hereto as Exhibit A.
2. Investor Representations. Investor hereby represents and warrants to the
Company as follows:
(a) The Investor understands that: (a) The offer and sale of the
Securities by the Company to Investor has not been registered under the
Securities Act of 1933 (the "Securities Act"), in reliance on an exemption from
such registration available under the Securities Act and rules adopted
thereunder; (b) The Investor must hold the Warrant indefinitely unless the
Securities are subsequently registered under the Securities Act and qualified
under applicable state securities laws, or unless an exemption from such
registration and qualification is available.
(b) The Investor is acquiring the Securities for his or her own
account, for investment, and not with a view to any sale or distribution of any
interest therein.
(c) The Investor has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Securities, and the Investor is able to bear the economic
risks of such an investment.
(d) All statements made, and information furnished, by the Investor in
this certificate and all other information furnished by the Investor to the
Company, are true and complete, to the best of the Investor's knowledge.
3. Restrictions on Transfer. The Investor agrees that:
(a) The Investor will not attempt to transfer the Securities in
violation of the restrictions set forth in this Agreement.
(b) The Company may note such restrictions on transfer in its records
and refuse to recognize any transfer which violates this agreement or for which
the Company has not received an acceptable opinion of counsel stating that such
transfer will not violate such restrictions.
(c) One or more legends indicating a lack of registration under the
Securities Act and a lack of qualification under state securities laws will be
imprinted on the Securities. One such legend shall read substantially as
follows:
31
<PAGE>
THE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY SALE, TRANSFER,
PLEDGE OR OTHER DISPOSITION THEREOF MAY BE MADE ONLY (i) IN A REGISTRATION UNDER
SAID ACT OR (ii) IF AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE
AND THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL TO THAT EFFECT REASONABLY
SATISFACTORY TO IT.
4. Binding on Successors; Indemnification. The Investor agrees that the
above representations and warranties are binding on the Investor's successors
and assigns and are made for the benefit of the Company and any other persons
who may become liable for violations of federal or state securities laws as a
result of the falsity of any of the Investor's representations or warranties.
The Investor agrees to indemnify, defend, and hold harmless such persons from
any liability arising from the falsity of any of the Investor's representations
or warranties or from the breach of any covenant of Investor contained herein.
5. Registration Rights. The Company hereby grants to Investor the following
registration rights with respect to the Shares:
(a) Definitions.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act of 1933 (the
"Securities Act").
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act of 1933, and the declaration or ordering of the effectiveness of
such registration statement.
"Registration Expenses" shall mean all expenses incurred by the
Company in compliance with the provisions of this Section 5, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses, and the
expenses of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company, which shall
be paid in any event by the Company).
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Shares and all fees and disbursements of
counsel to Investor.
"Shares" means the shares of the Company's common stock exercisable
upon exercise of the Warrant and any common stock issued with respect thereto
(e.g. upon a stock split or stock dividend.
"Investor" means the person set forth above and any permitted
assignee.
(b) Company Registration.
i) Notice of Registration. If, at any time after June 30, 1996,
the Company shall determine to register any of its securities either for its own
account or the account of a security holder or holders exercising their
respective demand registration rights, other than a registration relating solely
to employee benefit plans, or a registration relating solely to a Commission
Rule 145 transaction, or a registration on any registration form which does not
permit secondary sales, the Company will:
a) promptly give to Investor written notice thereof (which
shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other state
securities laws); and
b) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Shares specified in a written request or requests,
made by Investor within fifteen (15) days after receipt of the written notice
from the Company described in this clause (i), except as set forth in Section
5(b)(ii) below.
32
<PAGE>
ii) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting: the
Company shall so advise Investor as part of the written notice given pursuant to
Section 5(b) hereof. In such event, the right of Investor to registration
pursuant to this Section 5 shall be conditioned upon Investor's participation in
such underwriting and the inclusion of Investor's Shares in the underwriting to
the extent provided herein. Investor shall (together with the Company, its
directors and officers, and any other shareholders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for underwriting by the
Company.
Notwithstanding any other provision of this Section 5, if the underwriter
determines that marketing factors require a limitation on the number of shares
to be underwritten, the underwriter may exclude from such registration and
underwriting some or all of the Shares which would otherwise be underwritten
pursuant hereto. Any securities so excluded shall be apportioned pro rata among
Investor and any other shareholders distributing their securities through such
underwriting according to the total amount of securities otherwise entitled to
be included therein owned by such shareholders or in such other proportions as
shall mutually be agreed upon.
If Investor disapproves of the terms of any such underwriting, it may elect
to withdraw therefrom by written notice to the Company and the underwriter. Any
Shares excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
The Company shall bear all Registration Expenses incurred in connection
with any registration, qualification and compliance by the Company pursuant to
this Section 5. All Selling Expenses shall be borne by the holders of the
securities so registered pro rata on the basis of the number of their shares so
registered.
iii) Registration Procedures. In the case of registration
effected by the Company pursuant to this Agreement, the Company will keep
Investor advised in writing as to the initiation of registration and as to the
completion thereof. At its expense, the Company will:
a) keep such registration effective for a period of one year
or until Investor has completed the distribution described in the registration
statement relating thereto, whichever first occurs;
b) furnish such number of prospectuses and other documents
incident thereto as Investor from time to time may reasonably request; and
c) use its best efforts to register or qualify the Shares
under the securities or blue sky laws of such jurisdictions as Investor may
request; provided, however, that the Company shall not be obligated to register
or qualify such Shares in any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in order to
effect such registration, qualification, or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act or applicable rules or regulations thereunder.
d) Notify the holder of Shares covered by such registration
statement at any time when a prospectus relating thereto is required to be
delivered under the Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(c) Indemnification.
i) The Company will indemnify the Investor, each of its officers,
directors and partners, and each person controlling such Investor within the
meaning of Section 15 of the Securities Act or the 1934 Act, with respect to
which registration, qualification or compliance has been effected pursuant to
this Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act or the 1934
Act, against all expenses, claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based
33
<PAGE>
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading, or any violation by the Company of the
Securities Act, or the 1934 Act, or any rule or regulation promulgated under the
Securities Act, or the 1934 Act, or under any state securities law or under
common law, applicable to the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse the Investor, each
of its officers, directors and partners, and each person controlling the
Investor, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred, as such
expenses are incurred, in connection with investigating, preparing or defending
any such claim, loss, damage, liability or action; provided, however, that the
Company will not be liable (i) for amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld) and
(ii) in any such case to the extent that any such claim, loss, damage, liability
or expense arises out of or is based on any untrue statement or omission or
alleged untrue statement or omission, made in reliance upon and in conformity
with written information furnished to the Company by an instrument duly executed
by the Investor, controlling person or underwriter and stated to be specifically
for use therein.
ii) The Investor will, if Shares held by the Investor are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company, such
directors, officers, persons, underwriters or control persons for any legal or
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by the Investor and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of the Investor under this
subsection shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Investor (which consent shall not be unreasonably withheld), and
(ii) shall be limited in an amount equal to the aggregate net proceeds of the
shares sold by the Investor, except to the extent such liability arises out of
or is based on willful misconduct by the Investor.
iii) Each party entitled to indemnification under this Section
5(c) (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement except to the extent
that the failure to give such notice is materially prejudicial to an
Indemnifying Party's ability to defend such action and provided further, that
the Indemnifying Party shall not assume the defense for matters as to which
there is a conflict of interest or separate and different defenses, but shall
pay the fees and expenses of one separate counsel retained by the Indemnified
Party in the event of such conflict of interest. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.
iv) If the indemnification provided for in this Section 5(c) is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim,
34
<PAGE>
damage, or expense in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and of the Indemnified Party on
the other in connection with the statements or omissions that resulted in such
loss, liability, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
v) The obligations of the Company and the Investor under this
Section 5(c) shall survive the completion of any offering of Shares in a
registration statement under this Section 5 and otherwise.
vi) Information by Investor. The Investor of Shares included in
any registration shall furnish to the Company such information regarding
Investor, the Shares held by it and the distribution proposed by such Investor
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Agreement.
vii) Transfer of Registration Rights. The rights to cause the
Company to register securities granted Holders under Section 5 may be assigned
to a transferee or assignee in connection with any transfer or assignment of
Shares by a Holder provided that: (i) such transfer may otherwise be effected in
accordance with applicable securities laws and (ii) such assignee or transferee
becomes a party to this Agreement and assumes all of the obligations of the
transferring Holder under Section 5.
6. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Shares to the public without registration, Imatron agrees to use its
best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that Imatron becomes subject to the reporting requirements of
the Securities Act or the Securities Exchange Act of 1934, as amended.
(b) File with the Commission in a timely manner all reports and other
documents required of Imatron under the Securities Act and the Securities
Exchange Act of 1934, as amended (at any time after it has become subject to
such reporting requirements); and
(c) So long as Investor owns any Shares, to furnish to the Purchaser
forthwith upon request a written statement by Imatron as to its compliance with
the reporting requirements of said Rule 144 (at any time after ninety (90) days
after the effective date of the first registration statement filed by Imatron
for an offering of its securities to the general public), and of the Securities
Act and the Securities Exchange Act of 1934 (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of Imatron
and other information in the possession of or reasonably obtainable by Imatron
as a Shareholder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Shareholder to sell any such securities
without registration.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
35
<PAGE>
IN WITNESS WHEREOF, the undersigned purchasers of securities and the
Company have executed this Agreement as of the day and year first above written.
COMPANY:
IMATRON INC.
By:___________________________
Vice President
INVESTOR:
[Name of Investor]
By:___________________________
Its___________________________
36
IMATRON INC. FORM S-3
Schedule to Exhibit 4.3
Pursuant to Instruction No. 2 to Item 601
of Regulation S-K
The form of Warrant Purchase Agreement filed as Exhibit 4.3 to this
Registration Statement is substantially identical in all material respects to
each of the Warrant Purchase Agreements between the Company and investors in the
HeartScan Imaging, Inc. Series A Preferred Stock Private Offering conducted by
the Company which concluded June 24, 1996. This Schedule relates to each Warrant
Purchase Agreement for those investors whose Warrant Shares are being registered
for sale by this Registration Statement. The Schedule sets forth the material
details of all such agreements which differ from the exhibit filed herewith.
Name of Warrantholder Number of Common Shares Exercisable
- ---------------------- -----------------------------------
Ambient Capital Group, Inc. 14,677
Forbes W. Burtt 4,516
Heritage Finance & Trust Company 9,032
Libra Investments, Inc. 22,581
Robert G. Morrish 2,258
Gary Post 44,033
Ravich Revocable Trust of 1989 11,290
Jonathan Schwartz 4,516
The Shemano Group, Inc. fbo William David 2,000
Corbett & Mary Corbett, Jt. Ten.
The Shemano Group, Inc. fbo Michael R. 33,000
Jacks
The Shemano Group, Inc. fbo Gary J. 35,000
Shemano
37
Exhibit 4.4
38
<PAGE>
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into
this 8th day of March, 1996 by and between IMATRON INC., a New Jersey
corporation (the "Company") and GARY POST (the "Investor").
R E C I T A L S:
WHEREAS, the Investor has performed certain investment banking services for
the Company and has earned and been paid fees in connection with such services;
and
WHEREAS, the Company has agreed to permit the Investor to exchange such
fees for ("Units"), each unit consisting of one share of its Common Stock (the
"Common Stock") and five common stock purchase warrants to purchase shares of
Common Stock at $1.71 per share (the "Warrants"). The Warrant and the Shares are
hereafter collectively referred to as the "Securities";
WHEREAS, the Purchaser desires to purchase and the Company desires to sell
the Units on the terms and conditions set forth herein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Purchase and Sale of Units. The Company agrees to sell to the Purchaser
and upon the basis of the representations and warranties, and subject to the
terms and conditions, set forth in this Agreement, the Purchaser agrees to
purchase 43,860 Units ("Units") at $1.71 per Unit or an Aggregate Purchase Price
of $75,000.
2. Closing. The closing of the purchase and sale of the Units pursuant to
Section 1 hereof shall take place on such date as may be agreed upon by the
parties (the "Closing Date") at a time and place to be agreed upon by the
parties. The certificates representing the Units to be purchased by the
Purchaser shall be delivered by, or on behalf of, the Company and the Purchaser
shall deliver payment of the Aggregate Purchase Price therefor in immediately
available funds to the Company's account by wire transfer or by check.
3. Investor Representations. Investor hereby represents and warrants to the
Company as follows:
(a) The Investor understands that: (a) The offer and sale of the
Securities by the Company to Investor has not been registered under the
Securities Act of 1933 (the "Securities Act"), in reliance on an exemption from
such registration available under the Securities Act and rules adopted
thereunder; (b) The Investor must hold the Warrant indefinitely unless the
Securities are subsequently registered under the Securities Act and qualified
under applicable state securities laws, or unless an exemption from such
registration and qualification is available.
(b) The Investor is acquiring the Securities for his or her own
account, for investment, and not with a view to any sale or distribution of any
interest therein.
39
<PAGE>
(c) The Investor has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Securities, and the Investor is able to bear the economic
risks of such an investment.
(d) All statements made, and information furnished, by the Investor in
this certificate and all other information furnished by the Investor to the
Company, are true and complete, to the best of the Investor's knowledge.
4. Restrictions on Transfer. The Investor agrees that:
(a) The Investor will not attempt to transfer the Securities in
violation of the restrictions set forth in this Agreement.
(b) The Company may note such restrictions on transfer in its records
and refuse to recognize any transfer which violates this agreement or for which
the Company has not received an acceptable opinion of counsel stating that such
transfer will not violate such restrictions.
(c) One or more legends indicating a lack of registration under the
Securities Act and a lack of qualification under state securities laws will be
imprinted on the Securities. One such legend shall read substantially as
follows:
THE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
ANY SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION THEREOF MAY BE MADE
ONLY (i) IN A REGISTRATION UNDER SAID ACT OR (ii) IF AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT IS AVAILABLE AND THE COMPANY HAS RECEIVED
AN OPINION OF COUNSEL TO THAT EFFECT REASONABLY SATISFACTORY TO IT.
5. Binding on Successors; Indemnification. The Investor agrees that the
above representations and warranties are binding on the Investor's successors
and assigns and are made for the benefit of the Company and any other persons
who may become liable for violations of federal or state securities laws as a
result of the falsity of any of the Investor's representations or warranties.
The Investor agrees to indemnify, defend, and hold harmless such persons from
any liability arising from the falsity of any of the Investor's representations
or warranties or from the breach of any covenant of Investor contained herein.
6. Registration Rights. The Company hereby grants to Investor the following
registration rights with respect to the Shares:
(a) Definitions.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act of 1933 (the
"Securities Act").
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act of 1933, and the
40
<PAGE>
declaration or ordering of the effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the
Company in compliance with the provisions of Sections 2 and 3 hereof, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company, blue sky fees and expenses, and
the expenses of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company).
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Shares and Warrant Shares and all fees and
disbursements of counsel to Investor.
"Shares" means the shares of the Company's common stock exercisable
upon exercise of the Warrants.
"Investor" means the person set forth above and any permitted
assignee.
(b) Company Registration.
i) Notice of Registration. If, at any time after June 30, 1996,
the Company shall determine to register any of its securities either for its own
account or the account of a security holder or holders exercising their
respective demand registration rights, other than a registration relating solely
to employee benefit plans, or a registration relating solely to a Commission
Rule 145 transaction, or a registration on any registration form which does not
permit secondary sales, the Company will:
a) promptly give to Investor written notice thereof (which
shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other state
securities laws); and
b) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Shares and Warrant Shares specified in a written
request or requests, made by Investor within fifteen (15) days after receipt of
the written notice from the Company described in this clause (i), except as set
forth in Section 5(b)(ii) below.
ii) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting: the
Company shall so advise Investor as part of the written notice given pursuant to
Section 5(b) hereof. In such event, the right of Investor to registration
pursuant to this Section 5 shall be conditioned upon Investor's participation in
such underwriting and the inclusion of Investor's Shares and Warrant Shares in
the underwriting to the extent provided herein. Investor shall (together with
the Company, its directors and officers, and any other shareholders distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for underwriting
by the Company.
Notwithstanding any other provision of this Section 5, if the underwriter
determines that
41
<PAGE>
marketing factors require a limitation on the number of shares to be
underwritten, the underwriter may exclude from such registration and
underwriting some or all of the Shares and Warrant Shares which would otherwise
be underwritten pursuant hereto. Any securities so excluded shall be apportioned
pro rata among Investor and any other shareholders distributing their securities
through such underwriting according to the total amount of securities otherwise
entitled to be included therein owned by such shareholders or in such other
proportions as shall mutually be agreed upon.
If Investor disapproves of the terms of any such underwriting, it may elect
to withdraw therefrom by written notice to the Company and the underwriter. Any
Shares and Warrant Shares excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
The Company shall bear all Registration Expenses incurred in connection
with any registration, qualification and compliance by the Company pursuant to
this Section 5. All Selling Expenses shall be borne by the holders of the
securities so registered pro rata on the basis of the number of their shares so
registered.
iii) Registration Procedures. In the case of registration
effected by the Company pursuant to this Agreement, the Company will keep
Investor advised in writing as to the initiation of registration and as to the
completion thereof. At its expense, the Company will:
a) keep such registration effective for a period of one
hundred twenty (120) days or until Investor has completed the distribution
described in the registration statement relating thereto, whichever first
occurs;
b) furnish such number of prospectuses and other documents
incident thereto as Investor from time to time may reasonably request; and
c) use its best efforts to register or qualify the Shares
and Warrant Shares under the securities or blue sky laws of such jurisdictions
as Investor may request; provided, however, that the Company shall not be
obligated to register or qualify such Shares and Warrant Shares in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in order to effect such registration,
qualification, or compliance, unless the Company is already subject to service
in such jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder.
iv) Indemnification.
a) The Company, with respect to registration, qualification,
and compliance effected pursuant to this Agreement, will indemnify and hold
harmless Investor, each of its officers and directors, and each party
controlling Investor, and each underwriter, if any, and each party who controls
any underwriter, against all claims, losses, damages, and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus,
offering circular, or other document (including any related registration
statement, notification, or the like) incident to any such registration,
qualification, or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in
42
<PAGE>
connection with any such registration, qualification, or compliance, and will
reimburse Investor, its officers and directors, and any party controlling
Investor, such underwriter and party who controls any such underwriter, for any
legal and any other expenses incurred in connection with investigating or
defending any such claim, loss, damage, liability, or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability, or expense arises out of or is based on any untrue
statement or omission based solely upon written information furnished to the
Company by Investor or such underwriter, as the case may be, and stated to be
specifically for use therein.
b) Investor will, if Shares and Warrant Shares held by it
are included in the securities as to which such registration, qualification, or
compliance is being effected, indemnify and hold harmless the Company, each of
its directors and officers, and each underwriter, if any, of the Company's
securities covered by such a registration statement, and each party who controls
the Company or such underwriter, against all claims, losses, damages, and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular, or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, its officers and directors, and the
underwriters or control persons, if any, for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, or other document solely in reliance upon and in
conformity with written information furnished to the Company by Investor and
stated to be specifically for use therein; provided, however, that the
obligations of Investor hereunder shall be limited to an amount equal to the
proceeds to Investor of securities sold as contemplated herein.
c) Each party entitled to indemnification under this Section
5 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense (unless the Indemnified Party shall have been
advised by counsel that actual or potential differing interests or defenses
exist or may exist between the Indemnifying Party and the Indemnified Party, in
which case such expense shall be paid by the Indemnifying Party), and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 5. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
43
<PAGE>
v) Information by Investor. Investor shall furnish to the
Company such information regarding Investor as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification, or compliance referred to in this Agreement.
vi) Transfer of Registration Rights. The rights set forth in
this Agreement may be transferred in any transfer of the Shares, provided that
the Company is given written notice of such transfer, and provided further, that
the rights set forth in this Agreement may only be transferred to a single
transferee.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned purchasers of securities and the
Company have executed this Agreement as of the day and year first above written.
COMPANY:
IMATRON INC.
By:___________________________
President
INVESTOR:
______________________________
GARY POST
44
<PAGE>
IMATRON INC. FORM S-3
Schedule to Exhibit 4.4
Pursuant to Instruction No. 2 to Item 601
of Regulation S-K
The form of Stock Purchase Agreement filed as Exhibit 4.4 to this
Registration Statement is substantially identical in all material respects to
the Stock Purchase Agreement is issued by the Company to Ambient Capital Group,
Inc. dated March 8, 1996 and to Sitrick and Company Inc. on August 12, 1996. The
Schedule sets forth the material details of such agreements which differ from
the form of exhibit filed herewith.
Name of Warrantholder Number of Common Shares Exercisable
- --------------------- -----------------------------------
Ambient Capital Group, Inc. 87,720
Sitrick and Company Inc. 55,309
45
Exhibit 4.5
46
<PAGE>
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY SALE, TRANSFER,
PLEDGE OR OTHER DISPOSITION THEREOF MAY BE MADE ONLY (i) IN A REGISTRATION UNDER
SAID ACT OR (ii) IF AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS AVAILABLE
AND THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL TO THAT EFFECT REASONABLY
SATISFACTORY TO IT.
IMATRON INC.
COMMON STOCK PURCHASE WARRANT
This Warrant Expires December 31, 2000
Warrant No. 96-4 Shares: 219,300
THIS CERTIFIES that, subject to the terms and conditions herein set
forth, GARY POST (the "Holder") is entitled to purchase from Imatron Inc., a New
Jersey corporation (the "Company"), at any time or from time to time during the
Exercise Period (as hereinafter defined) the number of fully paid and
non-assessable shares of Common Stock of the Company (the "Shares") as provided
herein upon surrender hereof at the principal office of the Company, and, at the
election of the holder hereof, upon payment of the purchase price at said office
in cash or by cashier's check or by the wire transfer of funds in a dollar
amount equal to the purchase price of the Shares for which the consideration is
being given. This Warrant is issued under and in accordance with a Stock
Purchase Agreement (the "Stock Purchase Agreement") dated as of March 8, 1996
between the Company and the Holder, and is subject to the terms and provisions
contained in the Stock Purchase Agreement.
This Warrant shall be exercisable for that number of Shares as set
forth above, in minimum units of 10,000 shares.
1. Purchase Price. Subject to adjustment as hereinafter provided, the
purchase price of one share of Common Stock (or such securities as may be
substituted for one share of Common Stock pursuant to the provisions hereinafter
set forth) (the "Warrant Price") shall be One Dollar and Seventy-One Cents
($1.71).
2. Adjustment of Warrant Price and Number of Shares. In addition to the
adjustment provided for in Section 1 above, the number and kind of securities
issuable upon the exercise of this Warrant shall be subject to adjustment from
time to time upon the happening of certain events as follows:
a. Adjustment for Dividends in Stock. In case at any time or
from time to time on or after the date hereof the holders of the Common Stock of
the Company (or any shares of stock or other securities at the time receivable
upon the exercise of this Warrant) shall have received, or, on or after the
record date fixed for the determination of eligible stockholders, shall have
become entitled to receive, without payment therefor, other or additional stock
of the Company by way of dividend (other than as provided for in Paragraph 2(b)
below), then and in each such case, the holder of this Warrant shall, upon the
exercise hereof, be entitled to receive, in addition to the number of shares of
Common Stock receivable thereupon, and without payment of any additional
consideration therefor, the amount of such other or additional stock of the
Company which such holder would hold on the date of such exercise had it been
the holder of record of such Common Stock on the date hereof and had thereafter,
during the period from the date hereof to and including the date of such
exercise, retained such shares and/or all other additional stock receivable by
it as aforesaid during such period, given effect to all adjustments called for
during such period by this Paragraph 2.
b. Adjustment for Changes in Common Stock. In the event of
changes in the outstanding Common Stock of the Company by reason of split-ups,
recapitalizations, reclassifications, mergers, consolidations, combinations or
exchanges of shares, separations, reorganizations, liquidations, or the like,
the number and class of shares available under the Warrant in the aggregate and
the Warrant Price shall be correspondingly adjusted by the Board of Directors of
the Company. The adjustment shall be such as will give the holder of the Warrant
on exercise for
47
<PAGE>
the same aggregate Warrant Price the total number, class, and kind of shares as
he would have owned had the Warrant been exercised prior to the event and had he
continued to hold such shares until after the event requiring adjustment.
3. No Fractional Shares. No fractional shares of Common Stock will be
issued in connection with any subscription hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the fair market value of one share of
Common Stock on the date of exercise, as determined by the fair market value of
one share of the Company's Common Stock on the date of exercise as determined in
good faith by the Company's Board of Directors.
4. No Stockholder Rights. This Warrant shall not entitle its holder
to any of the rights of a stockholder of the Company prior to exercise thereof.
5. Reservation of Stock. The Company covenants that during the period
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant. The Company agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Common Stock upon the exercise of this
Warrant.
6. Exercise of Warrant. This Warrant may be exercised by the registered
holder or its registered assigns, in whole or in part and in minimum units of
10,000 shares, by the surrender of this Warrant at the principal office of the
Company, together with the form of subscription hereof duly executed,
accompanied by payment in full of the amount of the Warrant Price in the form
described in this Warrant. Upon partial exercise hereof, a new warrant or
warrants containing the same date and provisions as this Warrant shall be issued
by the Company to the registered holder for the number of shares of Common Stock
with respect to which this Warrant shall not have been exercised. A Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above, and the
person entitled to receive the shares of Common Stock issuable upon such
exercise shall be treated for all purposes as the holder of such shares of
record as of the close of business on such date. As promptly as practicable on
or after such date, the Company shall issue and deliver to the person or persons
entitled to receive the same, a certificate or certificates for the number of
full shares of Common Stock issuable upon such exercise, together with cash in
lieu of any fraction of a share as provided above.
7. Certificate of Adjustment. Whenever the Warrant Price is adjusted as
herein provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company setting forth the relevant
Warrant Price or number of shares after such adjustment and setting forth a
brief statement of the facts requiring such adjustment.
8. Compliance With Securities Act. The holder of this Warrant, by
acceptance hereof, agrees that this Warrant and the shares of Common Stock to be
issued upon exercise hereof (or shares of any security into which such Common
Stock may be converted) are being acquired for investment and that the holder
will not offer, sell, or otherwise dispose of this Warrant and any shares of
Common Stock to be issued upon exercise hereof (or shares of any security into
which such Common Stock may be converted) except under circumstances which will
not result in a violation of the Securities Act of 1933, as amended (the "Act").
Upon exercise of this Warrant, the holder hereof shall, if requested by the
Company, confirm in writing its investment purpose and acceptance of the
restrictions on transfer of the shares of Common Stock.
9. Subdivision of Warrant. At the request of the holder of this Warrant
in connection with a transfer or exercise of a portion of the Warrant, upon
surrender of such Warrant for such purpose to the Company, the Company at its
expense (except for any transfer tax payable) will issue and exchange therefor
warrants of like tenor and date representing in the aggregate the right to
purchase such number of shares of such Common Stock as shall be designated by
such holder at the time of such surrender; provided, however, that the Company's
obligations to subdivide securities under this section shall be subject to and
conditioned upon the compliance of any such subdivision with applicable state
securities laws and with the Act.
10. Loss, Theft, Destruction, or Mutilation of Warrant. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction, or mutilation of this Warrant, and in case of loss, theft, or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all
48
<PAGE>
reasonable expenses incidental thereto, and upon surrender and cancellation of
this Warrant, if mutilated, the Company will make and deliver a new Warrant of
like tenor and dates as of such cancellation, in lieu of this Warrant.
11. Miscellaneous. This Warrant shall be governed by the laws of the
State of California. The headings in this Warrant are for purposes of
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged, or terminated orally but only by an instrument in writing signed by
the Company and the registered holder hereof. All notices and other
communications from the Company to the holder of this Warrant shall be by
telecopy or expedited courier service to the address furnished to the Company in
writing by the last holder of this Warrant who shall have furnished an address
to the Company in writing.
12. Exercise Period. The Exercise Period shall mean the period
commencing on the date hereof and ending on December 31, 2000.
ISSUED this 20th day of February, 1996.
IMATRON INC.
By________________________________
S. Lewis Meyer, President
ATTEST:
- -------------------------
49
<PAGE>
FORM OF ASSIGNMENT
IMATRON INC.
FOR VALUE RECEIVED the undersigned registered owner of this Warrant
hereby sells, assigns, and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of Common Stock set forth below.
Name of Assignee Address Number of Shares
- ---------------- ------- ----------------
and does hereby irrevocably constitute and appoint _____________________________
Attorney to make such transfer on the books of IMATRON INC. maintained for the
purpose, with full power of substitution in the premises.
Dated:______________________
___________________________________
Name of Warrant Holder
Signature: ______________________
Witness: ______________________
50
<PAGE>
SUBSCRIPTION FORM
IMATRON INC.
(To be executed only upon exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably exercises
this Warrant for and purchases ________________ of the number of shares of
Common Stock of IMATRON INC. purchasable with this Warrant, and herewith makes
payment therefor, all at the price and on the terms and conditions specified in
this Warrant.
Dated:_____________________
--------------------------------
(Signature of Registered Owner)
--------------------------------
(Street Address)
--------------------------------
(City) (State) (Zip Code)
51
<PAGE>
IMATRON INC. FORM S-3
Schedule to Exhibit 4.5
Pursuant to Instruction No. 2 to Item 601
of Regulation S-K
The form of Common Stock Purchase Warrant filed as Exhibit 4.5 to this
Registration Statement is substantially identical in all material respects to
the Common Stock Purchase Warrant is issued by the Company to Ambient Capital
Group, Inc. dated March 8, 1996 and to Sitrick and Company Inc. on August 12,
1996. The Schedule sets forth the material details of such Warrants which differ
from the exhibit filed herewith.
Name of Warrantholder Number of Common Shares Exercisable
- --------------------- -----------------------------------
Ambient Capital Group, Inc. 87,720
Sitrick and Company Inc. 55,309
52
Exhibit 5.1
53
<PAGE>
SEVERSON & WERSON
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
ONE EMBARCADERO CENTER
SAN FRANCISCO, CALIFORNIA 94111
FAX (415) 956-0439
TELEPHONE (415) 398-3344
September 4, 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-3 (the "Registration Statement") with the Securities and
Exchange Commission on behalf of certain Selling Shareholders covering the
offering of up to 3,810,155 shares of the Company's Common Stock (the "Shares").
Such total includes 69,542 shares currently issued and outstanding; 540,613
shares which are issuable upon the exercise of outstanding warrants; and
3,200,000 shares which are issuable upon the exercise of outstanding Common
Stock exchange rights. All of the outstanding shares, the warrants and the
exchange rights were previously issued by the Company to the Selling
Shareholders in private transactions.
In connection with this opinion, we have examined and relied upon the
Registration Statement and related Prospectus, 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 were 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 Shares, when sold and issued in accordance with the Registration
Statement and related Prospectus, will be validly issued, fully paid, and
nonassessable.
54
<PAGE>
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.
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
55
Exhibit 24.1
56
<PAGE>
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related Prospectus of Imatron Inc. for
the registration of 3,810,155 shares of its Common Stock and to the
incorporation by reference therein of our report dated February 9, 1996 with
respect to the consolidated financial statements of Imatron Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG, LLP
-----------------------
Ernst & Young, LLP
September 5, 1996
57
