As filed with the Securities and Exchange Commission on September 16, 1999
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
FORM S-3
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
(650) 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
(650) 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, 26th Floor
San Francisco, California 94111
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
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)
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: ( )
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: ( )
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: ( )
CALCULATION OF REGISTRATION FEE
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<TABLE>
<S> <C> <C> <C> <C>
Title of Each Class of Amount Proposed Maximum Proposed Maximum Amount of
Securities to Be to Be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
- ---------- ------------- --------------- ------------------ -------------
Common Stock 12,439,858 Shares $1.16 $14,430,235 $4012
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee
required by Section 6(b) of the Securities Act and computed pursuant to
Rule 457(c) under the Securities Act based upon the average of the high
and low prices of Imatron's common stock on September 15, 1999, 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.
<PAGE>
The information in this prospectus is not complete and may be changed. We
may not sell theses securities until the registration statement filed with the
Securities and Exchange Commission becomes effective. This prospectus is not an
offer to sell these securities, and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 16, 1999
PROSPECTUS
12,439,858 Shares
IMATRON INC.
Common Stock, No Par Value
This prospectus relates to the sale of 12,439,858 shares of Imatron Inc.
common stock by certain selling shareholders listed on page 14 of this
prospectus. 7,743,226 shares are currently issued and outstanding and 4,696,632
shares are issuable upon the exercise of outstanding warrants. All of the
outstanding shares and the warrants were previously issued by Imatron to the
selling shareholders in private transactions. The outstanding shares and the
warrant shares are collectively referred to in this prospectus as the "Shares."
The selling stockholders intend to sell the Shares from time to time in open
market and/or private sales, or by any other appropriate method. The prices at
which the selling stockholders may sell the Shares will be determined by the
prevailing market price for the Shares or in negotiated transactions.
We will receive proceeds upon the exercise of the warrants by the selling
stockholders but will not receive any of the proceeds from the sale of the
Shares. We have agreed to bear all of the expenses in connection with the
registration (but not the sale) of the Shares.
Our common stock is traded on the Nasdaq National Market under the symbol
"IMAT." On September 15, 1999, the last sale price of our common stock was
$1.125 per share. References in this prospectus to "Imatron," "we," "us" and
"our" refer to Imatron Inc., a New Jersey corporation.
These shares offered in this prospectus involve a high degree of risk. See
"Risk Factors" beginning on page 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is ________, 1999
<PAGE>
TABLE OF CONTENTS
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS...............................3
THE COMPANY...................................................................3
RISK FACTORS..................................................................4
USE OF PROCEEDS..............................................................13
OFFERING PRICE...............................................................13
SELLING STOCKHOLDERS.........................................................13
PLAN OF DISTRIBUTION.........................................................15
EXPERTS......................................................................16
LEGAL OPINION................................................................16
AVAILABLE INFORMATION........................................................16
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE............................16
<PAGE>
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
Certain of the matters discussed in this prospectus or in the information
incorporated by reference herein may contain forward-looking statements. The
forward-looking statements in this prospectus reflect our current views with
respect to future events and financial performance. These forward-looking
statements are subject to certain risks and uncertainties, including
specifically an absence of significant revenues, a history of losses, no
assurance that technology can be completed or that it will not be delayed,
significant competition, the uncertainty of proprietary rights, the uncertainty
as to indemnification risks, possible adverse effects of future sales of shares
on the market, trading risks of low-priced stocks, and those other risks and
uncertainties discussed herein, that could cause actual results to differ
materially from historical results or those anticipated. In this prospectus, the
words "anticipates," "believes," "plans," "expects," "intends," "future" and
similar expressions identify such forward-looking statements. Readers are
cautioned to consider the specific risk factors described in "Risk Factors," and
not to place undue reliance on the forward-looking statements contained herein,
which apply only as of the date of this prospectus. We undertake no obligation
to publicly revise these forward-looking statements to reflect events or
circumstances that may arise after the date hereof. All subsequent written and
oral forward-looking statements attributable to Imatron or persons acting on its
behalf are expressly qualified in their entirety by this section.
THE COMPANY
Imatron Inc., a New Jersey corporation incorporated in 1983, is a
technology-based company principally engaged in the business of designing,
manufacturing and marketing a high performance computed tomography ("CT")
scanner. This scanner uses Electron Beam Tomography ("EBT") technology based on
a scanning electron beam. The scanner is in use at approximately 107 large and
midsize hospitals and free-standing imaging clinics. In addition to providing
service, parts and maintenance to hospitals and clinics that operate its
scanners, Imatron also offers its service capability to other manufacturers of
high tech medical equipment.
The Imatron EBT scanner design differs significantly from conventional CT
scanners in two important ways. First, the mechanically rotating x-ray tube
technology of conventional CT scanners is replaced by a high power electron gun
that generates a focused, high-intensity electron beam which is steered along
stationary x-ray target rings to produce a rotating fan-shaped x-ray beam. This
patented electron beam technology permits significantly faster scanning speeds.
Our scanner can acquire CT images at a scan speed of 50 to 100 milliseconds per
slice, in contrast to conventional CT scanners that require between 0.5 and 3
seconds per slice to acquire an image. Second, our EBT scanner permits rapid
scanning of multiple contiguous images without moving the patient. These
features allow the EBT scanner to perform stop-action or dynamic studies of the
heart and various other organs, contributing to the scanner's usefulness for
both diagnostic imaging and functional evaluation.
In December 1998, we completed our version 12.4 software development.
Software 12.4 brings the Ultrafast C-150XP and C-150LXP into full year 2000
compliance, using four digits for all dates. The new software version also has
algorithmic improvements which affect image quality, allowing improved images of
the head, chest, and abdomen, especially with the high resolution detector.
Software 12.4 was thoroughly tested in late 1998, and was released for general
use in January 1999 and will be provided at no charge to all hardware compatible
systems.
In March 1998, we developed and released for sale to our customers, the
High Resolution Detector System for our Ultrafast CT scanners. This new system
increased the spatial resolution of the single slice mode from 7 to 9.5 line
pairs per centimeter and the multi-slice mode from 3 to 4.50 line pairs per
centimeter. The increased spatial resolution improved the scanner's performance,
especially in neurological, pulmonary, and abdominal applications. It also
increased the total number of detector channels from 1,296 to 3,456, improved
image data correction during reconstruction, and enhanced overall image quality.
In November 1997, we received 510(K) market clearance from the Federal Food
and Drug Administration ("FDA") for our new 3456 Channel Dual Slice Detector
Array C-150 Ultrafast CT scanner.
HeartScan Imaging, Inc. ("HeartScan"), incorporated in Delaware in 1993, is
a diagnostic services subsidiary of Imatron. HeartScan offers coronary artery
scanning and Coronary Artery Disease risk assessment services through its two
centers located in Houston, Texas and Washington, D.C. In July 1996, HeartScan
completed a private placement that raised $14,798,000 in net proceeds. On July
13, 1998, we adopted a formal plan to sell the HeartScan subsidiary in order for
us to focus more comprehensively on our core business of selling, marketing,
manufacturing and servicing our proprietary Ultrafast CT scanners. Currently, we
have a 94.3% interest in HeartScan, which Imatron has reflected as discontinued
operations for all periods presented in our statements of operations and as net
assets of discontinued operations in the December 31, 1998 and 1997 balance
sheets. Effective March 1, 1999 we sold the HeartScan - San Francisco center,
and on June 11, 1999, we sold the Pittsburgh, Pennsylvania center. We have
entered into a letter of intent to sell the two remaining centers in Houston,
Texas, and Washington, D.C.
RISK FACTORS
The securities offered in this prospectus are speculative and involve a
high degree of risk. You should carefully consider the risks described below
before making a decision to buy our common stock. The risks described below are
not the only ones we face. Additional risks not presently known to us or that we
currently consider immaterial may also materially impair our business
operations. If any of the following risks actually occur, our business,
financial condition or results of operation could be materially adversely
affected. In such case, the trading price of our common stock could decline, and
you may lose all or a part of your investment.
We have a history of losses and we are uncertain as to our future profitability.
Imatron was incorporated in February, 1983 and in April, 1983 became the
successor to Imatron Associates, a limited partnership established in February,
1981. We operated as a development-stage company until the fourth quarter of
1984, at which time we recognized our initial sale of an EBT scanner. We
incurred losses each quarter from inception through December 31, 1990. Our 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. We incurred net losses of $2,871,000 and $6,523,000 in the years ended
December 31, 1993 and 1992, respectively. In 1994, Imatron, as a stand alone
company, incurred its first year of net income from operations amounting to
$3,221,000 which was partially offset by $911,000 of net losses of HeartScan. In
1998, 1997, and 1996, we incurred net losses of $14,781,000, $11,422,000, and
$13,737,000, respectively. The net losses are partially a result of the
operating losses incurred by discontinued operations of HeartScan which amounted
to $4,507,000, $6,428,000, and $4,573,000 in the years ended December 31, 1998,
1997, and 1996, respectively. The net losses incurred by the Company reflect
non-cash minority interest expense of $874,000, $1,744,000 and $3,272,000
recorded in 1998, 1997 and 1996, respectively, as a result of the accounting
treatment relative to its convertible Series A Preferred Stock having
"beneficial conversion features." There is no assurance that we can return to
profitable operations in the future.
In the past, we have funded our losses primarily through the sale of
securities in public offerings and a number of private placements, through the
exercise of options and warrants, through the 1991 license for medical uses of
our electron-beam technology to Siemens Corporation, and through revolving lines
of credit. In 1995, we raised $9,882,000 (net of offering costs) in two
offerings of common stock to certain institutional investors. In 1996, we
received $16,672,000 through the sale of shares of common stock and the exercise
of warrants and stock options for shares of common stock. Also in 1996, we
raised $14,798,000 (net of offering costs) to use exclusively to develop
HeartScan operations. As of December 31, 1998, we had a consolidated accumulated
deficit of $97,497,000. Year to date, we have completed two private placements
raising a total of $6,000,000.
Our liquidity is affected by many factors, some based on the normal ongoing
operations of the business and others related to the uncertainties of the
industry and global economies. Although the cash requirements will fluctuate
based on timing and extent of these factors, management believes that cash
existing at December 31, 1998 together with the estimated proceeds from ongoing
sales of products and services and divestiture of the HeartScan operations in
1999 will provide us with sufficient cash for operating activities and capital
requirements through December 31, 1999.
We may need additional financing. Future financing could have a dilutive effect
on our stockholders.
To satisfy our capital and operating requirements, profitable operations or
additional public or private financing or the incurrence of debt may be
required. We cannot assure that additional funding will be available to finance
our ongoing operations when needed or that adequate funds for our operations,
whether from financial markets, collaborative or other arrangements with
corporate partners or from other sources, will be available when needed, if at
all, or on terms attractive to us. This could have a material adverse effect on
our business, financial condition and results of operations.
If we require future public or private financing, holders of Imatron
securities may experience dilution. We cannot make assurances that equity or
debt sources, if required, will be available or, if available, will be on terms
favorable to Imatron or our stockholders. We do not believe that inflation has
had a material effect on our revenues or results of operations.
If we lose any of our executive or key personnel our business could be
materially adversely affected.
We have been and will continue to be materially dependent upon the
technical expertise of our engineering management personnel and the continued
services of our senior management. The loss of a significant number of these key
employees could have a material adverse effect on our business, results of
operation and financial condition. We do not maintain "key person" life
insurance for any of our personnel.
On August 31, 1999 Gary H. Brooks, Vice President, Chief Financial Officer
and Secretary resigned. Mr. Brooks resigned to serve full time as president of
Positron Corporation, a manufacturer of advanced medical imaging devices
utilizing positron emission tomography in which Imatron has a 17% fully-diluted
interest. We do not believe loss of Mr. Brooks will have an adverse effect on
our operations. We are conducting a search for Mr. Brooks' replacement.
The cost of our scanner is high, which can limit the market for our product.
The list price of our Ultrafast CT scanner is 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 our product.
Potential customers' budgetary limitations, including those imposed by
government regulation, may often compel the purchase of lower cost, conventional
CT scanners.
There is limited clinical demonstration of the advantages of our scanner.
Our 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. The
C-150 Ultrafast CT scanner was first used in 1992. One hundred and seven (107)
C-150, C-100 and C-150L scanners are currently installed in a clinical setting.
We believe 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 asserted technological advantages and diagnostic capabilities will result
in the development of a significant market for the Ultrafast CT that will allow
us to operate profitably.
Health care providers may not receive reimbursement for the cost of CT scans.
FDA clearance to market does not guarantee or imply reimbursement by
third-party payers such as Medicare, Medicaid, Blue Cross/Blue Shield or other
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. If health care providers to not received reimbursement for the costs
of CT scans our sales could be adversely affected.
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. These
limitations have led to a reduction in, and may further limit funds available
for, the purchase of diagnostic equipment such as our scanner and in the number
of diagnostic imaging procedures performed in hospitals and other medical
institutions such as imaging clinics.
Some states have adopted requirements that hospitals and other health care
facilities, such as imaging clinics, obtain a Certificate of Need 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 legislation such as requiring private
physicians to obtain a Certificate of Need for any CT scanner, regardless of
cost. We cannot assure that our potential customers will be able to secure
Certificates of Need or will be willing to pursue the application procedure.
The manufacture and sale of scanners subjects us to product liability risks.
As a manufacturer and marketer of medical diagnostic equipment, we are
subject to potential product liability claims. HeartScan is also subject to
potential liability claims as a supplier of radiological diagnostic services.
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 Imatron to possible liability claims. We presently maintain
primary and excess product liability insurance with aggregate limits of $5.0
million per occurrence. We cannot assure that our product liability insurance
coverage will continue to be available or, if available, that it can be obtained
in sufficient amounts or at reasonable costs or that it will prove sufficient to
pay any claims that may arise.
If we are unable to protect our patents and proprietary technology we will not
be able to compete effectively.
We rely heavily on proprietary technology and intellectual property which
we attempt to protect through patents and trade secrets. In February 1981, we
were 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 Imatron,
and a sublicense agreement between Emersub and Imatron Associates (our
predecessor), respectively.
Under the continuing sublicense agreement, as amended, we make payments to
Emersub equal to 2.125% of net sales of certain patented products. Imatron'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 our business and future prospects.
UC cancelled the license to Emersub on October 8, 1997. We have agreed to
pay UC royalties in the amount of $174,515 for scanners sold from that date
through December 31, 1998. UC has agreed to grant us a license for the remaining
life of the patent on substantially the same terms as the Emersub license
agreement. Royalty expense related to the sublicense agreement for 1998, 1997,
and 1996 were $137,775, $165,330, and $91,470, respectively. 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, we hold thirty-three U.S. Patents of our own (each with a
remaining life in excess of one year) and have filed three U.S. patent
applications covering various integral components of the scanner including,
among others, our electron beam assembly and our x-ray detector, and have filed
applications corresponding to several of these patents and applications in
various European Patent Convention countries, Canada, and Japan. We cannot
assure that any such applications will result in the issuance of a patent to
Imatron. Our patents and patent applications have not been tested in litigation
and we cannot assure that patent protection will be upheld or will be as
extensive as we claim. Furthermore, we cannot assure that we are able to finance
litigation against parties which may infringe upon our patents or parties which
may claim that our scanner infringes upon their patents. However, the agreement
we signed with Siemens Corporation in March 1991 allows Siemens Corporation to
enter into litigation in favor of Imatron.
On March 31, 1995, Imatron and Siemens entered into a Memorandum of
Understanding transferring five patents to Siemens, in complete consideration of
the cancellation by Siemens of $4.0 million notes payable from Imatron. As part
of the agreement, Siemens granted to us 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 (or other EBT unit produced by Imatron after April 1, 1995),
commencing with the 21st C-150 (or other Imatron EBT) unit produced in any year
and continuing thereafter for ten years after such first quarter in which such
21st unit is produced. To date, Imatron has not produced more than 20 scanners
in any year and, therefore, no royalties have been due under this agreement.
In the event some or all of our patent applications are denied and/or some
or all of our patents held invalid, we would be prevented from precluding our
competitors from using the protected technology set forth in such patent
applications or patents. Because our products involve confidential proprietary
technology and know-how, we do not believe such a loss of patent rights would
have a material adverse effect.
We also believe that many of our proprietary technologies are better
protected as trade secrets or copyrights than by patents. Moreover, although
protection of our existing proprietary technologies is important, other factors
such as product development, customer support, and marketing ability are also
important to the development of our business.
We have a limited source of supply which can delay our production schedule.
We manufacture our scanner at our headquarters in South San Francisco,
California. To date, the typical manufacturing cycle has required approximately
six months from the authorization of manufacturing to the delivery of a scanner.
Many of the components and sub-assemblies used in the scanner have been
developed and designed by us to our 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 delivery. Delays in such delivery could adversely affect
our present and future production schedules. We have made and continue to make
inventory investments to acquire long lead time components and sub-assemblies to
minimize the impact of such delays. In recent years, we have developed
alternative sources for many of our scanner subcomponents and continue our
programs to qualify vendors for the remaining critical parts.
Also, certain vendors currently require cash-on-delivery or prepayment
terms. We cannot assure that such actions will not adversely affect our
production schedule and our ability to deliver products in a timely manner. As a
result of certain vendors currently requiring cash-on-delivery or prepayment
terms, we must maintain higher levels of cash and other sources of credit to
fund material purchases than otherwise would be required.
If we fail to comply with federal and state laws regulating our industry, we
could be subject to penalties, disqualifications, lawsuits or enforcement
actions that could have a material adverse affect on our business.
Amendments to the Federal Food, Drug, and Cosmetic Act enacted in 1976, and
regulations issued or authorized thereunder, provide for regulation by the FDA
of the marketing, manufacture, labeling, packaging, sale and distribution of
"medical devices," including our 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 regulations. The
FDA enforces additional regulations regarding the safety of equipment utilizing
x-rays, including CT scanners. Various states also impose similar regulations.
The laws 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 may be required. This process is potentially expensive and
time consuming and must be completed prior to marketing a new medical device. We
have received appropriate clearances from the FDA to market both the C-100 and
C-150 ULTRAFAST CT scanner. We believe that we are presently in substantial
compliance with the Good Manufacturing Practice requirements and other
regulatory issues promulgated by the FDA.
The FDA also regulates the safety and efficacy of radiological devices.
Although we believe that we are in compliance with all applicable radiological
health regulations promulgated by the FDA, we cannot assure 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 material adverse effect upon the
development of our business and our future profitability.
Our primary customers operate in the highly regulated healthcare industry.
Both existing and future governmental regulations could adversely impact the
market for our ULTRAFAST CT scanner and our business. Our 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. We were 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 which
were immediately corrected. The subsequent follow up inspection in December 1993
by the same regulatory body yielded satisfactory results without the issuance of
further notice of violation. We believe that we are in substantial compliance
with California regulations applicable to our business.
In November 1996 and in January, 1997, the FDA conducted routine
inspections of our manufacturing operations. Both inspections concluded without
Notices of Observations. We frequently provide field modifications or updates of
components and software to operational sites. We voluntarily advised the FDA
during these inspections that certain field corrections were ongoing. The FDA
concurred with our decision to field upgrade certain sites and assigned recall
numbers Z-304/307-7 and Z-298/299-7. We are required to notify the FDA
periodically of the status of these corrections and again upon completion. We
believe that we are in substantial compliance with the regulations promulgated
by the FDA.
On May 4, 1999, we received a Warning Letter from the FDA. The letter
alleges that a certain number of our corporate and marketing communications,
including part of our Website, contain statements about the use of our scanner
that go beyond intended use for which the scanner has been cleared and that,
therefore, our scanner is misbranded with regard to such use under applicable
law. While we disagree with the FDA's allegations, and are diligently pursuing
the matter with the FDA, we, nevertheless, have modified our Website in response
to the FDA's position. It is our intention to make future corporate or marketing
statements which will be consistent with the FDA interpretation of the law. We
do not believe this change in our communications practices will adversely impact
our ability to market and sell our scanners.
Our failure to comply with applicable regulatory requirements can result in
enforcement actions by the FDA, including, but not limited to:
o fines;
o injunctions;
o recall or seizure of products;
o withdrawal of marketing approvals or clearances;
o refusal of the FDA to grant clearances or approvals; and
o civil or criminal penalties.
HeartScan's activities are also subject to extensive regulation, generally
by state and local government entities. Although we believe that HeartScan is in
substantial compliance with all applicable radiological health standards and
regulations, we cannot assure that its business will continue to comply with all
the standards and regulations that may be promulgated. In any event, compliance
with all of the requirements can be costly and time consuming, with a resultant
material adverse effect upon the development of HeartScan's business and its
future profitability. HeartScan'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 Federal Food
and Drug Administration, the Environmental Protection Agency, and the
Occupational Safety and Health Administration. Changes in governmental
regulations or new regulations adopted in the future may materially adversely
affect our business. In some cases, state or local regulations may be stricter
than regulations imposed by the Federal government.
We face significant industry competition.
In the non-cardiac imaging applications market (composed principally of
hospital radiology departments), our principal competition is from current
manufacturers of conventional CT scanners, including General Electric Company,
Siemens Corporation, Elscint, Picker International, Inc., Philips Medical
Systems, Toshiba Medical Corporation and others. Non-invasive diagnostic imaging
techniques such as ultrasound, radioisotope imaging, digital subtraction
angiography and magnetic resonance imaging are also partially competitive with
our scanners, particularly in the cardiac imaging market. Each of the companies
named above, as well as ATL, Accuson and ADAC Laboratories, markets equipment
using one or more of these technologies. All of these companies have greater
financial resources and larger staffs than those of Imatron, and their products
are, in most cases, substantially less expensive than the ULTRAFAST CT scanner.
We believe that to compete successfully with these competitors, we must
continue to 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 and pulmonary diagnostic tool
capable of producing useful images of the heart and lungs. Although we believe
that the ULTRAFAST CT scanner 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. We cannot be certain that
potential purchasers of our scanner will accept it without such features.
Also, we believe that customers and potential customers expect a continuing
development effort to improve the functionality and features of our scanners. We
continually seek to develop product enhancements and improve product
reliability. Our future success may depend on our ability to complete certain
product enhancement and product reliability projects currently in progress, as
well as on our continued ability to develop new products or product enhancements
in response to new products that may be introduced by other companies. We cannot
assure that we will be able to continue to improve product reliability or
introduce new product models or product enhancements that are 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. However, we believe that our scanner is
competitive with respect to each of these factors.
Our operations may be impacted by the Year 2000 issue.
Many existing computer programs use only two digits to identify a year in
the date field. These programs were designed and developed without considering
the impact of the upcoming change in the century. If not corrected, many
computer applications could fail or create erroneous results by or at the Year
2000. We are currently taking steps to ensure Year 2000 compliance for our
products and internal systems. We believe that all of our current products and
systems are currently Year 2000 ready. Although we can provide no assurance, we
believe that all of our products and critical internal systems that are not Year
2000 compliant will be compliant prior to January 1, 2000.
We cannot assure that Year 2000 compliance will be achieved by customers,
suppliers and other third parties. We are communicating with these parties to
determine how they are addressing the Year 2000 issue and to evaluate any likely
impact on us. At the present time, it is not possible to determine whether any
such events are likely to occur, or to quantify any potential negative impact
they may have on our future results of operations and financial condition.
The price of our stock is volatile.
The market prices for securities of advanced technology companies have
historically been highly volatile, including the market price of shares of our
common stock. Period-to-period variances in financial results can cause the
market price of our common stock to fluctuate substantially. We believe the
following factors, among others, could affect our quarterly results:
o technological innovations or new commercial products;
o results of clinical testing;
o changes in government regulations;
o regulatory actions;
o healthcare reform;
o proprietary rights;
o litigation; and
o public concerns as to the safety of our or our collaborators'
products.
The stock market has experienced extreme price and volume fluctuations that
have particularly affected the market price for many advanced technology
companies, often being unrelated to the operating performance of these
companies. These broad market fluctuations may adversely affect the market price
of our common stock.
We do not intend to pay dividends.
We have not paid any dividends on our preferred or common stock since
inception, and we do not anticipate paying dividends in the foreseeable future.
We expect to apply any future earnings toward the further development of our
business. You should take this into account when deciding whether to buy our
stock.
If our shareholders do not approve certain transactions with our president, our
stock could be delisted from the Nasdaq National Market.
Our shares of common stock are currently listed on the Nasdaq National
Market ("Nasdaq"). Nasdaq's rules generally require stockholder approval of
arrangements pursuant to which our officers receive our securities, unless the
securities are granted as an inducement to acceptance of employment with us.
Certain of the shares issued to and issuable to Terry Ross, our president, and
included in this prospectus are required to be approved by our stockholders. A
stockholders meeting will be held on October 29, 1999 for the purpose of seeking
such stockholder approval. If we fail to comply with Nasdaq regulations, our
common stock may be delisted from Nasdaq. In such event, trading, if any, in
such securities would thereafter be conducted in the over-the-counter market in
the so-called "pink sheets" or the Nasdaq's "Electronic Bulletin Board".
Consequently, the liquidity of our securities could be impaired, not only in the
number of securities which could bought or sold, but also through delays in the
timing of transactions, reduction in security analysts' and the news media's
coverage of Imatron, and lower prices our securities than might otherwise be
obtained.
USE OF PROCEEDS
We will not receive any proceeds from the sale of common stock by the
selling stockholders except for the exercise price of the warrants underlying
certain of the shares offered under this prospectus. We intend to use any
proceeds from the exercise of warrants for general corporate purposes.
OFFERING PRICE
This prospectus may be used from time to time by the selling stockholders
who offer the common stock registered hereby for sale. The offering price of
such common stock will be determined by the selling stockholder 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 Imatron'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.
SELLING STOCKHOLDERS
The following table lists the selling stockholders and sets forth certain
information regarding the beneficial ownership of common stock of each selling
stockholder as well as the number of shares each selling stockholder or its
nominee may sell pursuant to this prospectus. The shares are being registered to
permit public secondary trading of shares, and the selling stockholders may
offer the shares for resale from time to time. The information in the table is
as of the date of this prospectus:
<TABLE>
<S> <C> <C> <C> <C>
Shares Beneficially Shares Available for Percent Owned After
Name of Selling Owned(1) Sale Under this Completion of the
Securityholder Prospectus Offering(2)
------------------ ------------------ ------------------- ----------------------
Codsall Corporation, Ltd. 1,000,000 1,000,000 *
Fondation LUMAPA 1,000,000 1,000,000 *
Jose Maria Salema Garcao 4,285,455 2,000,000 *
Daniel M. Heffernan 358,647 358,647 *
Barbara J. Heffernan 358,647 358,647 *
Mark A. Jones 239,098 239,098 *
Liaison Consulting Group, Inc.(3) 50,000 50,000 *
Sitrick & Co.(4) 169,843 114,726 *
Terry Ross(5) 7,349,990 7,318,740 *
TOTAL 12,439,858
</TABLE>
- -----------------------------
* Less than 1%
(1) Includes shares owned prior to this offering and the shares which are
issuable upon the exercise of the warrants held by the selling
stockholders. The number of shares being offered hereby is shown in the
"Shares Available for Sale Under this Prospectus" column.
(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 94,933,749 shares of common stock issued and
outstanding as of September 14, 1999.
(3) Liaison Consulting Group, Inc. has provided consulting services to Imatron
during the past year.
(4) Sitrick and Company Inc. has provided public relations consulting services
to Imatron and HeartScan at varying times during the past three years.
(5) Terry Ross, President of Imatron, was issued 200,000 warrants in connection
with his employment agreement in January and 3,351,027 warrants and
3,767,713 shares of common stock in a private placement with Imatron in
June 1999. Mr. Ross has agreed not to sell, transfer, assign or vote
3,767,713 shares of common stock and warrants to purchase 3,551,027 shares
of common stock until the sale to him of such shares has been approved by
Imatron shareholders.
PLAN OF DISTRIBUTION
The selling stockholders may offer their shares at various times in one or
more of the following transactions:
o on the Nasdaq National Market System (or any other exchange on which
the shares may be listed);
o in the over-the-counter market;
o in negotiated transactions other than on such exchanges;
o by pledge to secure debts and other obligations;
o in connection with the writing on non-traded and exchange-traded call
options, in hedge transactions, in covering previously established
short positions and in settlement of other transactions in
standardized or over-the-counter options; or
o in a combination of any of the above transactions.
The selling stockholders may sell their shares at market prices prevailing
at the time of sale, at prices related to such prevailing market prices, at
negotiated prices or at fixed prices. The selling stockholders may use
broker-dealers to sell their shares. The broker-dealers will either receive
discounts or commissions from the selling stockholders, or they will receive
commissions from purchasers of shares.
Under certain circumstances the selling stockholders and any broker-dealers
that participate in the distribution may be deemed to be "underwriters" within
the meaning of the Securities Act. Any commissions received by such
broker-dealers and any profits realized on the resale of shares may be
considered underwriting discounts and commissions under the Securities Act. The
selling stockholders may agree to indemnify such broker-dealers against certain
liabilities, including liabilities under the Securities Act. In addition, we
have agreed to indemnify the selling stockholders with respect to the shares
offered hereby against certain liabilities, including certain liabilities under
the Securities Act.
Under the rules and regulations of the Exchange Act, any person engaged in
the distribution or the resale of shares may not simultaneously engage in market
making activities with respect to the Imatron's common stock for a period of two
business days prior to the commencement of such distribution. The selling
stockholders will also be subject to applicable provisions of the Exchange Act
and regulations under the Exchange Act which may limit the timing of purchases
and sales of shares of our common stock by the selling stockholders.
The selling stockholders will pay all commissions, transfer taxes, and
other expenses associated with the sale of securities by them. The shares
offered hereby are being registered pursuant to contractual obligations of
Imatron, and we have paid the expenses of the preparation of this prospectus. We
have not made any underwriting arrangements with respect to the sale of shares
offered hereby.
EXPERTS
The consolidated financial statements and schedule of Imatron Inc. and
subsidiaries as of December 31, 1998 and 1997, and for each of the years in the
two-year period ended December 31, 1998 have been incorporated by reference
herein and in the registration statement in reliance upon the report of KPMG
LLP, independent certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
Ernst & Young LLP, independent auditors, have audited our consolidated
statements of operations, shareholders' equity and cash flows for the year ended
December 31, 1996, included in our Annual report on Form 10-K for the year ended
December 31, 1998, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
consolidated financial statements for such period are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
LEGAL OPINION
The legality of the shares of common stock offered will be passed upon for
us by Severson & Werson, A Professional Corporation, One Embarcadero Center,
26th Floor, San Francisco, California 94111.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and special reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). You
may read and copy any reports, statements or other information we have filed
with the Commission at the public reference room maintained by the Commission at
450 Fifth Street, NW, Washington, D.C. 20549, as well as at the following
Regional Offices of the Commission: Northeast Regional Office, 7 World Trade
Center, New York, New York 10048 and Midwest Regional Office, 500 West Madison
Street, Chicago, Illinois 60661. You can obtain copies of such material by mail
from the public reference section of the Commission, at 450 Fifth Street, N.W.,
Washington, D.C. 20549, upon payment of certain fees. You can call the
Commission at 1-800-732-0330 for further information about the public reference
room. We are also required to file electronic versions of these documents with
the Commission, which may be accessed through the Commission's World Wide Web
site at http://www.sec.gov. Our common stock is traded on the Nasdaq National
Market System under the symbol "IMAT." Information concerning Imatron may also
be obtained by contacting NASDAQ/NMS at 1735 K Street, NW, Washington, D.C.
20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" certain of our
publicly-filed documents into this prospectus, which means that information
included in these documents is considered part of this prospectus. Information
that we file with the Commission subsequent to the date of this prospectus will
automatically update and supercede this information. We incorporate by reference
the documents listed below and any future filings made with the Commission under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, until
the selling stockholders have sold all their shares, 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.
The following documents filed with the Commission are incorporated by
reference in this prospectus:
1. Quarterly Report on Form 10-Q for the quarter ended June 30, 1999,
filed August 13, 1999.
2. Annual Report on Form 10-K for the year ended December 31, 1998, filed
March 31, 1999 and all amendments thereto.
3. Proxy Statement dated May 17, 1999, filed in connection with our 1999
Annual Meeting of Stockholders.
4. Current report on Form 8-K, filed with the SEC on August 10, 1999.
5. The description of Imatron's common stock contained in the
Registration Statement on Form 8-A, filed on August 12, 1983 under the
Exchange Act, including any amendment or report filed for the purpose
of updating such description.
You can request a copy of any or all of the documents incorporated by
reference, other than exhibits to the documents, by writing or telephoning us at
the following address: Imatron Inc., 389 Oyster Point Boulevard, South San
Francisco, California, 94080, telephone number: (650) 583-9964, attention:
Acting Chief Financial Officer
<PAGE>
No dealer, salesman or any other
person has been 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 12,439,858 Shares
as having been authorized by Imatron Inc.
This Prospectus does not constitute an offer
to sell or a solicitation of an offer to buy IMATRON INC.
any securities other than those
specifically offered hereby or an offer to buy
to any person in any jurisdiction in which No Par Common Stock
such an offer or solicitation would be unlawful.
Neither the delivery of this Prospectus nor
any sale made hereunder shall under any PROSPECTUS
circumstances create any implication that the
information contained herein is correct as of
any time subsequent to the date hereof. September 16, 1999
<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 Imatron in
connection with the sale and distribution of the common stock being registered.1
Selling commissions and counsel for the selling stockholders are payable by the
selling stockholders. All the amounts are estimates except for the registration
fee.
SEC Registration fee $ 4012
NASDAQ National Market listing fee 43,125
Printing and engraving expenses 500
Legal fees and expenses(2) 7,500
Accounting fees and expenses 7,500
--------
Total $ 62,637
--------
- ----------
(1) Blue Sky filings.
(2) Including legal expenses associated with Blue Sky filings.
ITEM 15. Indemnification of Directors and Officers.
Article IX of the our Bylaws sets forth the extent to which our officers or
directors may be indemnified against any liabilities which 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 or she is or was a
director, officer, employee or agent of Imatron, or of another corporation or
other enterprise which he or she served as such at the request of Imatron, shall
be indemnified by us 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 Imatron)
may be indemnified by us against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interest of Imatron, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her 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 Imatron may
be indemnified by us against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of
Imatron, except that no indemnification may be made in respect of any claim,
issue or matter as to which he or she shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to us 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 Imatron, 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)
3.7 Certificate of Amendment of Certificate of Incorporation
filed with the New Jersey Secretary of State on December 7,
1990.(9)
3.8 Certificate of Amendment of Certificate of Incorporation
filed with the New Jersey Secretary of State on July 7,
1997.(10)
3.9 Bylaws, as amended as of April 30, 1992.(11)
4.1 Form of Common Stock Purchase Agreement between Imatron,
Inc. and Jose Maria Salema Garcao(12)
4.2 Common Stock Purchase Warrant, which expires July 29, 2004,
issued to Jose Maria Salema Garcao.(13)
4.3 Common Stock Purchase Warrant (five year) which expires June
15, 2004, issued to Terry Ross.(14)
4.4 Common Stock Purchase Warrant (one year) which expires June
15, 2000, issued to Terry Ross.(15)
4.5 Stock Purchase Agreement, dated June 16, 1999, between
Imatron Inc. and Terry Ross.
4.6 Lock-Up Agreement, dated September 14, 1999, between Imatron
Inc. and Terry Ross.
5.1 Opinion of Severson & Werson, A Professional Corporation,
as to the legality of securities being registered.
23.1 Consent of KPMG LLP, independent certified public
accountants.
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (contained in signature pages).
- ----------
(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.
(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 the Company's
Registration Statement on Form 8-K filed with the Commission on July 17,
1997 and incorporated herein by reference.
(11) 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.
(12) Filed as an Exhibit to the Company's Registration Statement on Form 8-K
filed with the Commission on August 10, 1999 and incorporated herein by
reference.
(13) Filed as an Exhibit to the Company's Registration Statement on Form 8-K
filed with the Commission on August 10, 1999 and incorporated herein by
reference.
(14) Filed as an Exhibit to the Company's Registration Statement on Form 8-K
filed with the Commission on August 10, 1999 and incorporated herein by
reference.
(15) Filed as an Exhibit to the Company's Registration Statement on Form 8-K
filed with the Commission on August 10, 1999 and incorporated herein by
reference.
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:
(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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.
We hereby undertake that, for purposes of determining any liability under
the Securities Act, each filing of Imatron'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. Undertaking In Respect Of Indemnification.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Imatron
pursuant to the foregoing provisions, or otherwise, Imatron 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 Imatron of expenses incurred
or paid by a director, officer or controlling person of Imatron 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, Imatron 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.
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 16, 1999.
IMATRON INC.
By: /s/ S. Lewis Meyer
---------------------------
S. Lewis Meyer,
Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
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
____________________ Chief Executive Officer, September 15, 1999
S. Lewis Meyer Acting Chief Financial
Officer and Director (Principal
Executive Officer and Principal
Financial and Accounting Officer)
/s/ Douglas P. Boyd
____________________ Chairman of the Board September 15, 1999
Douglas P. Boyd
/s/ Terry Ross
____________________ President and Director September 15, 1999
Terry Ross
/s/ John L. Couch
____________________ Director September 15, 1999
John L. Couch
/s/ Aldo Test
____________________ Director September 15, 1999
Aldo Test
/s/ William J. McDaniel
____________________ Director September 15, 1999
William J. McDaniel
<PAGE>
IMATRON INC.
INDEX TO EXHIBITS FILED WITH
FORM S-3 REGISTRATION STATEMENT
12,439,858 Shares of Common Stock
<TABLE>
<S> <C> <C>
Sequential
Exhibit No. Description Page No.
- ----------- ----------- --------
4.5 Stock Purchase Agreement, dated June 16, 1999, between Imatron Inc. and Terry 26
Ross.
4.6 Lock-Up Agreement, dated September 14, 1999, between Imatron Inc. and Terry Ross. 34
5.1 Opinion of Severson & Werson, A Professional Corporation, as to legality of 35
securities being registered.
23.1 Consent of KPMG LLP, independent certified public accountants. 37
23.2 Consent of Ernst & Young LLP, independent certified public accountants. 38
23.3 Consent of counsel (included in Exhibit 5.1).
24.1 Power of Attorney (contained in signature pages)
</TABLE>
EXHIBIT 4.5
STOCK PURCHASE AGREEMENT BETWEEN IMATRON INC. AND TERRY ROSS.
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made as of the 16th day of
June, 1999 by and between IMATRON INC., a New Jersey corporation with principal
offices located at 389 Oyster Point Boulevard, South San Francisco, California
94080 ("Seller") and TERRY ROSS (the "Purchaser").
WHEREAS, Seller has authorized the issuance and sale of certain shares of
its common stock (the "Common Stock") and warrants to purchase its common stock
(the "Warrants") in exchange for certain consideration; and
WHEREAS, Purchaser desires to purchase and Seller desires to sell the
Shares on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements,
the Seller and Purchaser hereby agree as follows:
AGREEMENT
1. Purchase and Sale of Shares. Seller agrees to sell to Purchaser and upon
the basis of the representations and warranties, and subject to the terms and
conditions, set forth in this Agreement, Purchaser agrees to purchase for an
Aggregate Purchase Price equal to the following: (i) 3,767,713 shares of Common
Stock (the "Shares"); (ii) a five year warrant to purchase 360,000 shares of
Common Stock at $1.044; and (iii) a one year warrant to purchase 2,991,077
shares of Common Stock at $1.003 per share (collectively, the "Warrants"). The
forms of the Warrants are attached hereto as Exhibits A and B. The Shares and
the Warrants are hereinafter collectively referred to as the "Securities". The
Shares and the shares of Common Stock issuable upon exercise of the Warrants are
hereinafter referred to as the "Registrable Securities".
2. Closing. The closing of the purchase and sale of securities pursuant to
Section 1 hereof shall take place at the offices of Seller set forth in Section
12 below as soon as all of the conditions set forth in Section 6 below have been
satisfied. Within ten (10) business days following the Closing, Seller will
deliver to Purchaser certificates representing the Securities. Delivery of such
certificates shall be in accordance with Purchaser's instructions.
3. Restriction on Transfer of Securities.
3.1. Restrictions. The Shares are transferable only pursuant to (a) a
public offering registered under the Securities Act of 1933, as amended (the
"Securities Act"), (b) Rule 144 (or any similar rule then in effect) adopted
under the Securities Act, if such rule is available, and (c) subject to the
conditions elsewhere specified in this Section 4, any other legally available
means of transfer.
3.2. Legend. Each certificate representing Securities will be endorsed
with the following legend: "The securities evidenced hereby may not be
transferred without (i) the opinion of counsel satisfactory to the Company that
such transfer may be lawfully made without registration under the Securities Act
of 1933 and all applicable state securities laws or (ii) such registration."
3.3. Stop Transfer Order. A stop transfer order shall be placed with
the Seller's transfer agent preventing transfer of any of the securities
referred to in Section 3.2 above pending compliance with the conditions set
forth in any such legend.
3.4. Removal of Legend. Any legend endorsed on a certificate or
instrument evidencing a security pursuant to Section 3.2 hereof shall be
removed, and Seller shall issue a certificate or instrument without such legend
to the holder of such security, (a) in accordance with Section 3.2 hereof, (b)
if such security is being disposed of pursuant to registration under the
Securities Act and any applicable state acts or pursuant to Rule 144 or any
similar rule then in effect, or (c) if such holder provides Seller with an
opinion of counsel satisfactory to it to the effect that a sale, transfer,
assignment, offer, pledge or distribution for value of such security may be made
without registration and that such legend is not required to satisfy the
applicable exemption from registration.
4. Representations and Warranties by Seller. Seller represents and
warrants to Purchaser that:
4.1. Organization, Standing, Power. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New Jersey and has the requisite corporate power and authority to own its
properties and to carry on its business in all material respects as it is now
being conducted. Seller has, or at the Closing will have, the requisite
corporate power and authority to issue the Securities, and to otherwise perform
its obligations under this Agreement.
4.2. Qualification. Seller is duly qualified or licensed as a foreign
corporation in good standing in each jurisdiction wherein the nature of its
activities or of its properties owned or leased makes such qualification or
licensing necessary and failure to be so qualified or licensed would have a
material adverse impact on its business.
4.3. Compliance with Applicable Laws and Other Instruments. The
business and operations of Seller have been and are being conducted in
accordance with all applicable laws, rules and regulations of all governmental
authorities. Subject to shareholder approval of appropriate amendments to the
Articles of Incorporation as contemplated by this Agreement, and except with
respect to existing registration rights of holders of certain securities issued
by Seller, neither the execution nor delivery of, nor the performance of or
compliance with, this Agreement nor the consummation of the transactions
contemplated hereby will conflict with or, with or without the giving of notice
or passage of time, result in any breach of, or constitute a default under, or
result in the imposition of any lien or encumbrance upon any asset or property
of Seller pursuant to, any applicable law, administrative regulation or
judgment, order or decree of any court or governmental body, any agreement or
other instrument to which Seller is a party or by which it or any of its
properties, assets or rights is bound or affected, and will not violate the
Articles of Incorporation or Bylaws of Seller. Seller is not in violation of its
Articles of Incorporation or its Bylaws.
4.4. Common Stock. The Shares, and the Common Stock issuable upon
exercise of the Warrants, when issued and paid for pursuant to the terms of this
Agreement, will be duly authorized, validly issued and outstanding, fully paid,
nonassessable and free and clear of all pledges, liens, encumbrances and
restrictions.
5. Representations and Warranties of Purchaser. Purchaser represents and
warrants that:
5.1. Investment Intent. The Securities being acquired hereunder are
being purchased for Purchaser's own account and not with the view to, or for
resale in connection with, any distribution or public offering thereof within
the meaning of the Securities Act. Purchaser understands that the Securities
have not been registered under the Securities Act or any applicable state laws
by reason of their issuance or contemplated issuance in a transaction exempt
from the registration and prospectus delivery requirements of the Securities Act
and such laws and that the reliance of Seller and others upon this exemption is
predicated in part upon this representation and warranty. Purchaser further
understands that the Securities may not be transferred or resold without (a)
registration under the Securities Act and any applicable state securities laws
or (b) an exemption from the requirements of the Securities Act and applicable
state securities laws.
5.2. Accredited Investor. Purchaser qualifies as an accredited
investor within the meaning of Rule 501 under the Securities Act. Purchaser has
such knowledge and experience in financial and business matters that Purchaser
is capable of evaluating the merits and risks of the investment to be made
hereunder by Purchaser.
5.3. Acts and Proceedings. This Agreement has been duly executed and
delivered by Purchaser, and is a valid and binding agreement upon the part of
Purchaser.
5.4. No Brokers or Finders. No person, firm or corporation has or will
have, as a result of any act or omission by Purchaser, any right, interest or
valid claim against Seller for any commission, fee or other compensation as a
finder or broker, or in any similar capacity, in connection with the
transactions contemplated by this Agreement. Purchaser will indemnify and hold
Seller harmless against any and all liability with respect to any such
commission, fee or other compensation which may be payable or determined to be
payable as a result of the actions of Purchaser in connection with the
transactions contemplated by this Agreement.
6. Conditions of Purchaser's Obligation. Purchaser's obligation to purchase
and pay for the Securities on the Closing Date is subject to the fulfillment
prior to or on the Closing Date of the conditions set forth below. In the event
that any such condition is not satisfied to Purchaser's satisfaction, then
Purchaser shall not be obligated to proceed with the purchase of such Shares nor
further with any of its obligations pursuant to this Agreement.
6.1. No Errors, etc. The representations and warranties of Seller
under this Agreement shall be true in all material respects as of the Closing
Date with the same effect as though made on and as of the Closing Date.
6.2. Compliance with Agreement. Seller shall have performed and
complied in all material respects with all agreements or conditions required by
this Agreement to be performed and complied with by it prior to or as of the
Closing.
6.3. Qualification Under State Securities Laws. All registrations,
qualifications, permits and approvals required under applicable state securities
laws for the lawful execution and delivery of this Agreement and the offer,
sale, issuance and delivery of the Securities shall have been obtained.
6.4. Proceedings and Documents. All corporate and other proceedings
and actions taken in connection with the transactions contemplated hereby and
all certificates, opinions, agreements, instruments and documents mentioned
herein or incident to any such transaction shall be satisfactory in form and
substance to Purchaser and its counsel.
7. Conditions of Seller's Obligation. Seller's obligation to sell the
Securities to Purchaser on the Closing Date is subject to the fulfillment prior
to or on the Closing Date of the conditions set forth below. In the event that
any such condition is not satisfied, Seller shall not be obligated to proceed
with the sale of such Securities.
7.1. No Errors, etc. The representations and warranties of Purchaser
under this Agreement shall be true in all material respects as of the Closing
with the same effect as though made on and as of the Closing.
7.2. Compliance with Conditions. Purchaser shall have performed and
complied with all agreements or conditions required by this Agreement to be
performed and complied with by it prior to or as of the Closing.
8. Seller Affirmative Covenants. Seller covenants and agrees that:
8.1. Corporate Existence. Seller will maintain its corporate existence
in good standing and comply with all applicable laws and regulations of the
United States or of any state or states thereof or of any political subdivision
thereof and of any governmental authority where failure to so comply would have
a material adverse impact on Seller or its business or operations.
8.2. Books of Account and Reserves. Seller will keep books of record
and account in which full, true and correct entries are made of all of its
respective dealings, business and affairs, in accordance with generally accepted
accounting principles. Seller will employ certified public accountants selected
by the Board who are "independent" within the meaning of the accounting
regulations of the Securities and Exchange Commission and will have annual
audits made by such independent public accountants in the course of which such
accountants shall make such examinations, in accordance with generally accepted
auditing standards, as will enable them to give such reports or opinions with
respect to the financial statements of Seller that will satisfy the requirements
of the Securities and Exchange Commission in effect at such time with respect to
certificates and opinions of accountants.
8.3. Furnishing of Financial Statements and Information. Seller will
deliver to Purchaser:
(a) as soon as practicable, but in any event within 45 days after
the close of each quarterly period, unaudited consolidated balance sheets of
Seller as of the end of such period, together with the related consolidated
statements of operations and cash flow for such period, setting forth the
budgeted figures for such period prepared and submitted in connection with
Seller's annual business plan and in comparative form figures for the
corresponding quarterly period of the previous fiscal year, all in reasonable
detail and certified by an authorized accounting officer of Seller, subject to
year-end adjustments;
(b) s soon as practicable, but in any event within 90 days after
the end of each fiscal year, a consolidated balance sheet of Seller as of the
end of such fiscal year, together with the related consolidated statements of
operations, shareholders' equity and cash flow for such fiscal year, setting
forth in comparative form figures for the previous fiscal year, all in
reasonable detail and duly certified by Seller's independent public accountants,
which accountants shall have given Seller an opinion, unqualified as to the
scope of the audit, regarding such statements; and
(c) with reasonable promptness, such other financial data
relating to the business, affairs and financial condition of Seller as is
available to Seller and as from time to time Purchaser may reasonably request.
9. Registration of Stock. The Company shall use its best efforts to file
with the SEC as promptly as practicable and thereafter shall use its best
efforts to cause to be declared effective by December 15, a "shelf" registration
statement on the appropriate form under the Securities Act providing for the
registration of, and the sale on a continuous or delayed basis by Purchaser all
of the Registrable Securities, pursuant to Rule 415 or any similar rule that may
be adopted by the SEC (the "Shelf Registration"). The Company shall use its best
efforts to keep the Shelf Registration continuously effective in order to permit
the prospectus forming part thereof to be usable by Purchaser for a period
ending on the earlier of (i) (x) the second anniversary of the Closing, (y) the
expiration of the period following the Closing after which Rule 144(k) under the
Securities Act generally becomes available to non-affiliates of an issuer or (z)
in the event the Company has at any time suspended the use of the prospectus
contained in the Shelf Registration pursuant to this paragraph, the date beyond
the earlier of the periods referred to in clauses (x) and (y) that reflects an
additional period of days equal to the number of days during all of the periods
from and including the dates the Company gives notice of such suspension
pursuant to this paragraph to and including the date when holders of Registrable
Securities receive an amended or supplemented prospectus necessary to permit
resales of Registrable Securities under the Shelf Registration or to and
including the date on which the Company gives a Resumption Notice of (ii) such
time as all of the Registrable Securities covered by the Shelf Registration have
been sold pursuant to the Shelf Registration or pursuant to Rule 144 (in any
such case, such period being called the "Shelf Registration Period"). The
Company shall be deemed not to have used its best efforts to keep the Shelf
Registration effective during the requisite period if it voluntarily takes any
action that would result in holders of Securities covered thereby not being able
to offer and sell Registrable Securities during that period, unless such action,
in the opinion of the Company after consulting with legal counsel, is required
by applicable law. Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Shelf Registration and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated herein or necessary to make the
statements therein not misleading and (iii) any prospectus forming part of any
Shelf Registration, and any supplement to such prospectus does not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
9.1. Indemnification. In the event that Shares purchased pursuant to
this Agreement are included in a registration statement under this Section 9,
Seller will indemnify and hold harmless each Selling Shareholder and each other
person, if any, who controls such Selling shareholder within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Selling Shareholder or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of are based
upon any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement pursuant
to which the Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or arise out of or are based upon the 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 arise out of or are based upon the
failure by Seller to file any amendment or supplement thereto that was required
to be filed under the Securities Act, and will reimburse such Selling
Shareholder and each such controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. Notwithstanding the foregoing,
Seller will not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon an untrue statement
or omission made in such registration statement, preliminary prospectus, final
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to Seller through an instrument duly executed by
or on behalf of any Selling Shareholder specifically for use in the preparation
of such registration statement, preliminary prospectus, final prospectus, or
amendment or supplement.
It shall be a condition precedent to the obligation of Seller to take
any action pursuant to this Section that seller shall have received an
undertaking satisfactory to it from each Selling Shareholder to indemnify and
hold harmless Seller (in the same manner and to the same extent as set forth in
this Section), each director of Seller, each officer who shall sign such
registration statement, and any persons who control Seller within the meaning of
the Securities Act, with respect to any statement or omission from such
registration statement, preliminary prospectus, or any final prospectus
contained therein, or any amendment or supplement thereto, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to Seller through an instrument duly executed by the indemnifying
party specifically for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, or amendment or supplement.
Promptly following receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to above in this Section
9.3, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action. In case any such action is brought against an
indemnified party, the indemnifying party will be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party for any
legal or other expenses subsequently incurred by the latter in connection with
the defense thereof.
9.2. Binding Provisions. The provisions of this Section 9 shall be
binding on the successors of Seller. No Shareholder may assign the provisions of
this Section 9 or all or any part of its or their rights or obligations
hereunder, except that in the event of a merger or consolidation in which the
Seller is not the survivor, the Seller shall assign and transfer, and successor
shall assume, the provisions of this Section 9.
9.3. Conflicts. To the extent that Seller's compliance with the
obligations set forth in Sections 9.1 through 9.4 above would conflict with or
otherwise cause a breach of or default under any of its existing obligations
pursuant to any agreements to which it currently is a party, Seller's failure to
comply with those obligations shall not be deemed a breach of this Agreement.
9.4. Liquidated Damages. In the event that the Company by December 15,
1999 shall fail to cause the Shelf Registration Statement with respect to the
Securities to be declared effective and shall fail to obtain all necessary
stockholder and NASDAQ approvals in order to enable Purchaser to freely sell the
Registrable Securities pursuant to the Shelf Registration, the Company shall pay
to the Purchaser for each month or portion thereafter until such Shelf
Registration Statement becomes effective an amount equal to two percent (2%) of
the purchase price paid for the Securities pursuant to this Agreement. Provided
that the Company shall continue to use its reasonable best efforts to cause such
Shelf Registration to become effective as promptly as practicable, the delivery
of such Common Stock shall be in full satisfaction of any liability on the part
of the Company for failing to register the Shares as provided herein; provided
further however, that such delivery shall not excuse the Company from the
obligation to register all of such Registrable Shares which obligation shall
continue.
10. Remedies Cumulative, and not Waived.
10.1. No right, power or remedy conferred upon any party shall be
exclusive, and each such right, power or remedy shall be cumulative and in
addition to every other right, power or remedy, whether conferred hereby or by
any such security or now or hereafter available at law or in equity or by
statute or otherwise.
10.2. No course of dealing between the parties, and no delay in
exercising any right, power or remedy conferred hereby or by any such security
or now or hereafter existing at law or in equity or by statute or otherwise,
shall operate as a waiver of or otherwise prejudice any such right, power or
remedy; provided, however, that this Section 10 shall not be construed or
applied so as to negate the provisions and intent of any statute which is
otherwise applicable.
11. Changes, Waivers, etc. Neither this Agreement nor any provision hereof
may be changed, waived, discharged or terminated orally, but only by a statement
in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
12. Notices. All communications hereunder shall be in writing and if sent
to the Purchaser, shall be sufficient in all respects if personally delivered,
sent by registered mail, or by telecopy and confirmed to the Purchaser at the
address set forth on the Signature Page, or if sent to the Company, shall be
personally delivered, sent by registered mail, or by telecopy and confirmed to
the Company as follows:
Imatron Inc.
389 Oyster Point Blvd.
South San Francisco, California 94080
Attn: Chief Financial Officer
Telephone: (650) 583-9964
Facsimile: (650) 871-0418
13. Survival of Representations and Warranties, etc. All representations
and warranties contained herein shall survive the execution and delivery of this
Agreement, any investigation at any time made by Purchaser or on its behalf, and
the sale and purchase of the Shares. All statements contained in any
certificate, instrument or other writing delivered by or on behalf of Seller
pursuant hereto or in connection with or contemplation of the transactions
herein contemplated (other than legal opinions) shall constitute representations
and warranties by Seller hereunder and not by the individual officer who signed
the certificate, instrument or writing by or on behalf of Seller.
14. Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto, whether so expressed or
not, and, in particular, shall inure to the benefit of and be enforceable by the
current holder or holders of any of the Shares.
15. Headings. The headings of the Sections and paragraphs of this Agreement
have been inserted for convenience of reference only and do not constitute a
part of this Agreement.
16. Choice of Law. It is the intention of the parties that the laws of
California shall govern the validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties.
17. Counterparts. This Agreement may be executed concurrently in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. Severability. In the event that any part of this Agreement is
determined by a court of competent jurisdiction to be unenforceable, the balance
of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties execute this Agreement as of the date set
forth below.
SELLER:
IMATRON INC.
By:
-----------------------------------
Chief Executive Officer
PURCHASER:
--------------------------------------
Signature
--------------------------------------
Address
--------------------------------------
City and Country
--------------------------------------
Facsimile Number
EXHIBIT 4.6
LOCK-UP AGREEMENT BETWEEN IMATRON INC. AND TERRY ROSS.
THIS LOCK-UP AGREEMENT (this "Agreement") is made this 14th day of
September, 1999 by and between IMATRON INC., a New Jersey corporation ("Seller")
and Terry Ross (the "Purchaser").
RECITALS:
WHEREAS, Seller and Purchaser have previously entered into an agreement for
the purchase and sale of 3,767,713 shares of Seller's common stock (the "Shares)
and warrants to purchase 3,351,027 shares of Seller's common stock (the
"Warrants"); and
WHEREAS, pending the approval of the foregoing transaction the Nasdaq Stock
Market, Inc. has requested that Purchaser's rights with respect to such shares
be restricted as hereinafter provided.
NOW, THEREFORE, the parties hereto agree as follows:
1. Purchaser agrees that until Seller's shareholders have approved of the
purchase and sale of the Shares and the Warrants in the manner provided under
New Jersey law, Purchaser shall not sell, transfer or assign the Shares or
Warrants nor shall Purchase vote the Shares. Upon receipt of such approval, this
Agreement and the obligation of Purchaser pursuant hereto shall be terminated
and shall thereafter be without any further force or effect.
2. Seller agrees to promptly notice and hold a special meeting of its
shareholders for the purpose of acting upon a proposal to approve the purchase
and sale of the Shares and the Warrants.
3. All other terms and conditions relating to the purchase and sale of the
Shares and Warrants shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Purchaser:
-------------------------------
Terry Ross
Seller:
Imatron Inc.
By:
--------------------------------
Its Chief Executive Officer
Exhibit 5.1
OPINION OF COUNSEL AS TO LEGALITY OF SECURITIES BEING REGISTERED.
SEVERSON & WERSON
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
ONE EMBARCADERO CENTER
SAN FRANCISCO, CALIFORNIA 94111
FAX (415) 956-0439
TELEPHONE (415) 398-3344
September 15, 1999
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 stockholders covering the
offering of up to 12,439,858 shares of Imatron's common stock (the "Shares").
Such total includes 7,743,226 shares currently issued and outstanding and
4,696,632 shares which are issuable upon the exercise of outstanding warrants.
All of the outstanding shares, the warrants and the exchange rights were
previously issued by the Company to the selling stockholders 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.
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.
Very truly yours,
/s/ Severson & Werson
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Imatron Inc.:
We consent to the incorporation by reference of our report dated February
12, 1999, relating to the consolidated balance sheets of Imatron Inc. and
subsidiary as of December 31, 1998, and 1997, and the related consolidated
statements of operations, shareholders' equity and cash flows for each of the
years in the two-year period ended December 31, 1998, and the related schedule,
which report appears in the December 31, 1998, annual report on Form 10-K of
Imatron Inc. and to the reference to our firm under the heading "Experts" in the
prospectus.
/s/ KPMG LLP
-------------------
San Francisco, California
September 15, 1999
Exhibit 23.2
CONSENT OF Ernst & Young LLP,
INDEPENDENT AUDITORS
The Board of Directors
Imatron Inc.:
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-0000) and related Prospectus of Imatron
Inc. for the registration of 12,439,858 shares of its common stock and to the
incorporation by reference therein of our report dated February 14, 1997, except
for Note 17, as to which the date is April 10, 1998, with respect to the
consolidated statements of operations, shareholders' equity and cash flows for
the year ended December 31, 1996, of Imatron Inc. included in its Annual Report
(Form 10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
----------------------
San Francisco, California
September 15, 1999
