As filed with the Securities and Exchange Commission on January 7, 2000
--Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
IMATRON INC.
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(Exact name of issuer specified in its charter)
New Jersey 94-2880078
- ------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
389 Oyster Point Boulevard, South San Francisco, California 94080 94080
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(Address of Principal Executive Offices) (Zip Code)
1993 STOCK OPTION PLAN, AS AMENDED
----------------------------------
(Full Title of the Plan)
S. Lewis Meyer
President
Imatron Inc.
389 Oyster Point Boulevard
South San Francisco, California 94080
(650) 583-9964
(Name, address and telephone number of agent for service)
Copies to:
Roger S. Mertz, Esq.
Allen, Matkins, Leck, Gamble & Mallory LLP
333 Bush Street, 17th Floor
San Francisco, California 94104
(415) 837-1515
<PAGE>
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [ X ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum
Title of Securities Additional Amount Offering Price Aggregate Offering Amount of
to Be Registered to Be Registered Per Share(1) Price(1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock No
Par Value 6,000,000 (2) $2.68 $16,080,000 $4,245.00
==================================================================================================================
</TABLE>
(1) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the amount of the registration fee, based upon the average of
the high and low sales prices of the Common Stock on January 5, 2000, as
reported on the NASDAQ National Market System.
(2) These securities are of the same class and in addition to the 5,500,000
shares of Common Stock initially available to be granted under the 1993
Stock Option Plan and previously registered pursuant to Registration
Statements Nos. 33-66992 and 33-61179. The total number of shares of Common
Stock now issuable under the 1993 Stock Option Plan, as amended, is
11,500,000.
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<PAGE>
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
- -----------------------------------------------------------
This Registration Statement on Form S-8 relates to the Imatron Inc. 1993
Stock Option Plan (the "Plan"), which was adopted by the Board of Directors of
Imatron Inc. (the "Company") on February 24, 1993 and approved by the
shareholders at the 1993 Annual Meeting held on June 23, 1993. 3,000,000 shares
of the Company's Common Stock were originally authorized for issuance under the
Plan. The Board amended the Plan on February 9, 1995 to increase the number of
shares available for issuance under the Plan from 3,000,000 to 5,500,000. The
shareholders approved this amendment on June 2, 1995. On March 26, 1999, the
Board approved another increase from 5,500,000 shares to 11,500,000 shares. The
shareholders voted to approve the increase in the Plan's authorized shares at
the 1999 Annual Meeting, held on June 18, 1999. This Registration Statement
covers the increase of 6,000,000 shares of Common Stock issuable under the Plan,
bringing the total number of authorized shares to 11,500,000.
Options to purchase 6,649,224 shares of common stock have been granted
since the Company instituted the Plan. The Plan provides for the granting of two
types of options: "incentive stock options" and "nonqualified stock option." The
incentive stock options only are intended to qualify as "incentive stock
options" as defined in Section 422 of the Internal Revenue Code of 1986, as
amended. The 1993 Plan is not qualified under Section 401(a) of the Internal
Revenue Code nor is it subject to the provisions of ERISA.
INCORPORATION OF DOCUMENTS BY REFERENCE.
- ---------------------------------------
The following documents are incorporated by reference in this Registration
Statement.
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934, as amended;
(b) Registrant's quarterly reports on Form 10-Q for the fiscal
quarters ended March 31, 1999, June 30, 1999, September 30, 1999 and all other
reports, if any, filed by the Company pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year ended December
31, 1998;
(c) The description of Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on August 12, 1983
under Section 12 of the Securities Exchange Act of 1934, including any amendment
or report filed for the purpose of updating such description;
(d) The description of Registrant's Common Stock contained in the
Registration Statement on Form S-8 filed with the Commission on August 3, 1993,
(Registration Statement No. 033-66992) under Section 12 of the Securities
Exchange Act of 1934, including any amendment or report filed for the purpose of
updating such description; and
(e) The description of Registrant's Common Stock contained in the
Registration Statement on Form S-8 filed with the Commission on July 20, 1995,
(Registration Statement No. 033-61179) under Section 12 of the Securities
Exchange Act of 1934, including any amendment or report filed for the purpose of
updating such description
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered
<PAGE>
hereunder have been sold, or which deregisters all securities then remaining
unsold under this Registration Statement, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 8 EXHIBITS
Exhibit No. Description
- ----------- -----------
4 Imatron Inc. 1993 Stock Option Plan, as amended
5 Opinion of Counsel as to legality of securities being registered.
23.1(A) Consent of KPMG LLP, independent auditors
23.1(B) Consent of Ernst & Young LLP, independent auditors
23.2 Consent of counsel. Reference is made to Exhibit 5.
24 Power of Attorney (contained in signature pages)
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing of the Registration Statement on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of South San Francisco,
State of California, on January 6, 2000.
IMATRON INC.
By: /s/ S. LEWIS MEYER
-----------------------
S. Lewis Meyer
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Douglas P. Boyd and S. Lewis Meyer, or
either of them, his true and lawful attorney-in-fact, each with full power of
substitution for him in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact or their or his substitutes
or substitute, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ S. LEWIS MEYER Chief Executive Officer, January 6, 2000
- ----------------------- Chief Financial Officer
S. Lewis Meyer and Director
/s/ DOUGLAS P. BOYD Chairman of the Board January 6, 2000
- -----------------------
Douglas P. Boyd
/s/ TERRY ROSS President and Director January 6, 2000
- -----------------------
Terry Ross
/s/ JOHN L. COUCH Director January 6, 2000
- -----------------------
John L. Couch
/s/ ALDO TEST Director January 6, 2000
- -----------------------
Aldo Test
/s/ WILLIAM J. MCDANIEL Director January 6, 2000
- -----------------------
William J. McDaniel
/s/ ALLEN CHOZEN Director January 6, 2000
- -----------------------
Allen Chozen
/s/ RICHARD K. MYLER Director January 6, 2000
- -----------------------
Richard K. Myler, MD
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<PAGE>
IMATRON INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
6,000,000 Shares of Common Stock
Exhibit No. Description Page No.
- ----------- ----------- --------
4 Imatron Inc. 1993 Stock Option Plan, as amended 5
5 Opinion of Counsel as to legality of securities
being registered. 12
23.1 Consent of Independent Auditors 13
23.1(A) Consent of KPMG LLP
23.1(B) Consent of Ernst & Young LLP
23.2 Consent of counsel. Reference is made to Exhibit 5.
24 Power of Attorney (contained in signature pages)
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EXHIBIT 4
IMATRON INC.
1993 STOCK OPTION PLAN
AS AMENDED THROUGH JUNE 18, 1999
DATE OF BOARD APPROVAL: FEBRUARY 24, 1993
DATE OF SHAREHOLDER APPROVAL: JUNE 23, 1993
FIRST AMENDMENT APPROVED BY THE BOARD: FEBRUARY 9, 1995
AMENDMENT APPROVED BY THE SHAREHOLDERS: JUNE 2, 1995
SECOND AMENDMENT APPROVED BY THE BOARD: MARCH 26, 1999
AMENDMENT APPROVED BY THE SHAREHOLDERS: JUNE 18, 1999
1. Purpose and Scope
The purposes of this Plan are to induce persons of outstanding ability and
potential to join and remain with Imatron Inc. (the "Company"), to provide an
incentive for such employees as well as for non-employee consultants to expand
and improve the profits and prosperity of the Company by enabling such persons
to acquire proprietary interests in the Company, and to attract and retain key
personnel through the grant of Options to purchase shares of the Company's
common stock. As used herein, the term "Option" includes both Incentive Stock
Options and Nonqualified Stock Options.
2. Definitions
Each term set forth in this Section 2 shall have the meaning set forth
opposite such term for purposes of this Plan unless the context otherwise
requires, and for the purposes of such definitions, the singular shall include
the plural and the plural shall include the singular:
a. "Affiliate" shall mean any parent corporation or subsidiary
corporation of the Company as those terms are defined in Sections 424(e) and (f)
respectively of the Internal Revenue Code of 1986, as amended.
b. "Board" shall mean the Board of Directors of the Company.
c. "Committee" shall mean the Stock Option Plan Committee appointed
by the Board, which shall be comprised of at least three members of the Board,
each of whom shall be a "disinterested person" as defined in Rule 16b-3(d)(3)
promulgated under the 1934 Act, as amended.
d. "Company" shall mean Imatron Inc., a New Jersey corporation.
e. "Code" shall mean the Internal Revenue Code of 1986, as amended.
f. "Fair Market Value" for a share of Stock means the price that the
Committee acting in good faith determines, through any reasonable valuation
method (including but not limited to reference to prices existing in any
established market in which the Stock is traded), to be the price at which a
share of Stock might change hands between a willing buyer and a willing seller,
neither being under any compulsion to buy or to sell and both having reasonable
knowledge of the relevant facts.
g. "Option" shall mean a right to purchase Stock granted pursuant to
the Plan.
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<PAGE>
h. "Option Price" shall mean the purchase price for Stock under an
Option, as determined in Sections 7 and 8 below.
i. "Participant" shall mean an employee or non-employee consultant
to the Company to whom an Option is granted under the Plan.
j. "Plan" shall mean this Imatron Inc. 1993 Stock Option Plan.
k. "Stock" shall mean the no par value common stock of the Company.
l. "1934 Act" means the Securities Exchange Act of 1934, as amended.
3. Administration
The Plan shall be administered by the Committee. Two members of the
Committee shall constitute a quorum for the transaction of business. The
Committee shall have full authority In its discretion, subject to and not
inconsistent with the express provisions of the Plan, to grant Options, to
determine the Option Price and term of each Option, the persons to whom, and the
time or times at which, Options shall be granted and the number of shares of
Stock to be covered by each Option; to interpret the Plan; to prescribe, amend,
and rescind rules and regulations relating to the Plan; to determine the terms
and provisions of the option agreements (which need not be identical) entered
into connection with the grant of Options under the Plan; and to make all other
determinations deemed necessary or advisable for the administration of the Plan.
The Committee may delegate to one or more of its members, or to one or more
agents, such administrative duties as it may deem advisable, and the Committee
or any person to whom it has delegated duties as aforesaid may employ one or
more persons to render advice with respect to any responsibility the Committee
or such person may have under the Plan. The Committee may employ attorneys,
consultants, accountants, or other persons, and the Committee shall be entitled
to rely upon the advice, opinions, or valuations of such persons. All actions
taken and all interpretations and determinations made by the Committee in good
faith shall be final and binding upon all Participants, the Company, and all
other interested persons. No member of the Committee shall be personally liable
for any action, determination, or interpretation made in good faith with respect
to the Plan; and all members of the Committee shall be fully protected by the
Company in respect of any such action, determination, or interpretation.
4. Shares Subject to the Plan
Subject to adjustment under the provisions of Section 14 of the Plan, the
maximum number of shares of Stock that may be optioned or sold under the Plan is
11.5 million Such shares may be authorized but unissued shares of Stock of the
Company, or issued shares of Stock reacquired by the Company, or shares
purchased in the open market expressly for use under the Plan If for any reason
any shares of Stock as to which an Option has been granted cease to be subject
to purchase thereunder, then (unless the Plan shall have been terminated) such
shares shall become available for subsequent awards under this Plan in the
discretion of the Committee. The Company shall, at all times while the Plan is
in force, reserve such number of common shares as will be sufficient to satisfy
the requirements of all outstanding Options granted under the Plan.
5. Eligibility; Factors to be Considered in Granting Options
a. Options may be granted to (i) any regular full-time employee
(including officers and directors) of either the Company or any affiliate of the
Company and (ii) any non-employee consultant of the Company.
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<PAGE>
b. In determining to whom options shall be granted and the number of
shares of Stock to be covered by each Option, the Committee shall take into
account the, nature of the participants duties, their present and potential
contributions to the success of the Company, and such other factors as it shall
deem relevant in connection with accomplishing the purposes of the Plan. The
Committee shall also determine the time(s) of grant, the type and term of Option
granted, and the time(s) of exercise, in whole or part. A Participant who has
been granted an Option under the Plan may be granted new Options, which may be
in addition to prior Options granted under the Plan or may be in exchange for
the surrender and cancellation of prior Options having a higher or lower option
price and containing such other terms as the Committee may deem appropriate.
6. Terms and Conditions of Options
Options granted pursuant to the Plan shall be authorized by the Committee
and shall be evidenced by agreements ("Option Agreements") in such form as the
Committee from time to time shall approve. Such Option Agreements shall comply
with and be subject to the following general terms and conditions, and shall
also comply with and be subject to the provisions of Section 7 relating to
Incentive Stock Options or Section 8 relating to Nonqualified Stock Options, as
applicable, as well as such other terms and conditions as set forth in this Plan
and as the Committee may deem desirable, not inconsistent with the Plan.
a. EMPLOYMENT AGREEMENT. The Committee may, in its discretion,
include in any Option granted under the Plan a condition that the Participant
shall agree to remain in the employ of, and/or to render services to, the
Company for a period of time (specified in the Option Agreement) following the
date the Option is granted. No such Option Agreement shall impose upon the
Company any obligation to employ and/or retain the Participant for any period of
time.
b. MANNER OF EXERCISE. A Participant may exercise an Option by
giving written notice of such exercise to the Company at its principal office,
attention to the Secretary, and paying the, Option Price either (i) in cash in
full at the time of exercise, or (ii) in the discretion of the Committee:
i) by delivery of other common stock of the Company,
ii) by an approved deferred payment schedule or other
arrangement, which arrangement shall be contained in writing in the Option
Agreement, in which event an interest rate will be stated which is not less than
the rate then specified which will prevent any imputation of higher interest
under Section 483 of the Code, or
iii) in any other form of legal consideration acceptable to the
Committee at the time of grant or exercise.
c. TIME OF EXERCISE. Promptly after the exercise of an Option and
the payment of the Option price, either in full or pursuant to the approved
payment schedule, the Participant shall be entitled to the issuance of a stock
certificate evidencing ownership of the appropriate number of shares of Stock. A
Participant shall have none of the rights of a shareholder until shares are
issued to him/her, and no adjustment will be made for dividends or other rights
for which the record date has occurred prior to the date such stock certificate
is issued.
d. NUMBER OF SHARES. Each Option shall state the total number of
shares of Stock to which it pertains.
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<PAGE>
e. OPTION PERIOD AND LIMITATIONS ON EXERCISE. The Committee may, in
its discretion, provide that an Option may not be exercised in whole or part for
any period(s) of time specified in the Option Agreement, except that the right
to exercise must be at the rate of at least 20% per year over five years from
the date the Option is granted. Unless otherwise approved by the Committee and
set forth in the Option Agreement, each Option granted under the Plan may be
exercised for 20% on the first anniversary of the grant, and an additional 20%
for the next four anniversaries. No Option may be exercised after the expiration
of ten years from the Grant Date. No Option may be exercised as to less than one
hundred (100) shares at any one time, or the remaining shares covered by the
Option if less than one hundred (100).
7. Incentive Stock Options
The Committee may grant Incentive Stock Options ("ISOs") which meet the
requirements of Section 422 of the Code, as amended from time to time.
a. ISOs may be granted only to employees of the Company or its
affiliates.
b. Each ISO granted under the Plan must be granted within 10 years
from the date the Plan is adopted or is approved by the shareholders of the
Company, whichever is earlier.
c. The purchase price shall not be less than the fair market value
of the common shares at the time of grant, except that the purchase price shall
be 110% of the fair market value in the case of any person who owns stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Company or its affiliates at the time of grant.
d. No ISO granted under the Plan shall be exercisable more than 10
years from the date of grant,, except that in the case of any person who owns
stock possessing more than 10% of the total combined voting power of all classes
of stock of the Company or its affiliates at the time of grant, no ISO shall be
exercisable more than five years from the date of grant.
e. To the extent that the aggregate fair market value of stock
(determined at the time of grant) with respect to which ISOs are exercisable for
the first time by any individual during any calendar year under all plans of the
Company and its subsidiaries exceeds $100,000, such options shall be treated as
nonqualified stock options, but only to the extent of such excess. Should it be
determined that an entire option or any portion thereof does not qualify for
treatment as an ISO by reason of exceeding such maximum, or for any other
reason, such option or portion shall be considered a nonqualified stock option.
8. Nonqualified Stock Options.
The Committee may grant Nonqualified Stock Options ("NSOs") under the Plan
in addition to or in lieu of Incentive Stock Options. NSOs are not intended to
meet the requirements of Section 422 of the Code, and shall be subject to the
following terms and conditions:
a. NSOs may be granted to any eligible Participant.
b. The purchase price of the shares shall be determined by the
Committee in its absolute discretion, but in no event shall such purchase price
be less than 85% of the fair market value of the shares at the time of grant. In
the case of any person who owns stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or its affiliates
at the time of grant, the price shall be 110% of the fair market value.
-8-
<PAGE>
c. NSOs shall not be exercisable more than ten years from the date
of grant.
9. Transferability
Options granted under this Plan shall not be transferable other than by
will or by the laws of descent and distribution, and during a Participant's life
shall be exercisable only by such Participant. Options granted under this Plan
shall not be subject to execution, attachment or other process.
10. Termination of Employment
Options held by employees, including directors, shall terminate three
months after termination of employment with the Company or affiliate, unless:
a. If termination is due to employee's permanent and total disability
within the meaning of Section 22(e)(3) of the Code, the Option may be exercised
at any time within one year following termination.
b. The Option Agreement by its terms specifies that it shall terminate
sooner or later than three months. If the Option may be exercised later than
three months following termination, any portion exercised beyond three months
shall be a nonqualified stock option. This paragraph shall not be construed to
extend the term of any Option nor to permit anyone to exercise the Option after
expiration of its term.
c. Options granted under this Plan shall not be affected by any change of
duties or position of the Participant so long as Participant continues to be a
regular, full-time employee of the Company. Any Option, or any rules and
regulations relating to the Plan, may contain such provisions as the Committee
shall approve with reference to the determination of the date employment
terminates. Nothing in the Plan or in any Option granted pursuant to the Plan
shall confer upon any Participant any right to continue in the employ of the
Company or shall interfere in any way with the right of the Company to terminate
such employment at its will at anytime.
11. Rights in the Event of Death
If an employee dies while employed by the Company or within three months of
termination of such employment, the Option may be exercised within 18 months of
the employee's death by the executors, administrators, legatee or heirs of the
estate.
12. Leaves of Absence
For purposes of the Plan, an employee on approved leave of absence from the
Company shall be considered as currently employed for 90 days following
beginning the leave or for so long as his/her right to reemployment is
guaranteed by statute or contract, whichever is longer.
13. No Obligations to Exercise
The granting of an Option imposes no obligation upon the Participant to
exercise such Option.
14. Effect of Change in Stock Subject to Plan
a. In the event that outstanding common shares are hereafter changed
by reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split, combination of shares,
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<PAGE>
stock dividends and the like, the Committee shall make adjustments as it deems
appropriate in the aggregate number of shares available under the Plan and the
number and price subject to outstanding options. Any adjustments shall apply
proportionately and only to the unexercised portion of options granted.
b. In the event the Company dissolves or liquidates and another
entity succeeds to its assets, or in the event of a merger or consolidation in
which the Company is not the surviving entity, or in the event of a reverse
merger in which the Company survives but its common stock immediately preceding
the merger is converted into other property by virtue of the merger, then the
options shall accelerate and become exercisable immediately prior to such
dissolution or liquidation or merger or consolidation unless the surviving
entity assumes the outstanding Options or substitutes similar Options for those
outstanding.
15. Agreement and Representation of Employees
a. ACQUIRING STOCK FOR INVESTMENT PURPOSES. As a condition to the
exercise of any Option, the Company may require the person exercising such
Option to represent and warrant at the time of such exercise that any shares of
Stock acquired at exercise are being acquired only for investment and without
any present intention to sell or distribute such shares if, in the opinion of
Company's counsel, such representation is required or desirable under the
Securities Act of 1933 or any other applicable law, regulation, or rule of any
governmental agency.
b. WITHHOLDING. With respect to the exercise of any Option granted
under this Plan, each Participant shall fully and completely consent to whatever
action the Committee directs to satisfy the federal and state tax withholding
requirements, if any, which the Committee in its discretion deems applicable to
such exercise.
c. DELIVERY. The Company is not obligated to deliver any common
shares until there has been qualification under or compliance with all state or
federal laws, rules and regulations deemed appropriate by the Company. The
Company will use all reasonable efforts to obtain such qualification and
compliance.
16. Amendment and Termination of Plan
The Board, by resolution, may terminate, amend, or revise the Plan with
respect to any shares as to which Options have not been granted; Provided
however, that any amendment that would: (a) increase the aggregate number of
shares of common stock that may be issued under the Plan, (b) materially
increase the benefits accruing to Participants, or (c) materially modify the
requirements as to eligibility for participation in the Plan, shall be subject
to shareholder approval within 12 months before or after adoption. It is
expressly contemplated that the Board may amend the Plan in any respect
necessary to provide employees with the maximum benefits available under and/or
to satisfy the requirements of or amendments to Section 422 of the Code and/or
Rule 16b-3 of the 1934 Act.
No termination, modification or amendment of the Plan may however, alter or
impair the rights conferred by an Option previously granted without the consent
of the individual to whom the Option was previously granted.
Unless sooner terminated, the Plan shall remain in effect for a period of
ten years from the date of the Plan's adoption by the Board. Termination of the
Plan shall not affect any Option previously granted.
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<PAGE>
17. Use of Proceeds
The proceeds from the sale of shares pursuant to Options granted under the
Plan shall constitute general funds of the Company.
18. Effective Date of Plan
The Effective Date of this Plan is February 24, 1993, the date it was
adopted by the Board, provided the shareholders of the Company approve this Plan
within twelve (12) months after such effective date. Any Options granted under
this Plan prior to the date of shareholder approval shall be deemed to be
granted subject to such approval. Should shareholder approval not be obtained
within twelve (12) months, any Options granted pursuant to the Plan shall be
null and void.
19. Indemnification of Committee
In addition to such other rights of indemnification as they may have and
subject to limitations of applicable law, the members of the Committee shall be
indemnified by the Company against all costs and expenses reasonably incurred by
them in connection with any action, suit or proceeding to which they or any of
them may be a party by reason of any action taken or failure to act under or in
connection with the Plan or any rights granted thereunder and against all
amounts paid to them in settlement thereof or paid by them in satisfaction of a
judgment of any such action, suit or proceeding, the Committee member or members
shall notify the Company in writing, giving the Company an opportunity at its
own cost to defend the same before such Committee member or members undertake to
defend the same on their own behalf.
20. Governing Law
The Plan shall be governed by, and all questions arising hereunder, shall
be determined in accordance with the laws of the State of California as such
laws are applied to agreements between California residents entered into and to
be performed entirely within California.
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EXHIBIT 5
ALLEN, MATKINS, LECK, GAMBLE & MALLORY LLP
333 BUSH STREET, 17TH FLOOR
SAN FRANCISCO, CALIFORNIA 94104
FAX (415) 837-1516
TELEPHONE (415) 837-1515
January 6, 2000
Imatron Inc.
389 Oyster Point Boulevard
South San Francisco, California 94080
Gentlemen:
You have requested our opinion with respect to certain matters in
connection with the filing by Imatron Inc. (the "Company") of a registration
statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of 6,000,000 additional shares of the
Company's Common Stock (the "Shares") reserved for issuance under the Company's
1993 Stock Option Plan, as amended through June 18, 1999 (the "Plan").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plan, the Company's Certificate of Incorporation and
Bylaws, as amended, and such other records, documents, certificates, memoranda
and other instruments as in our judgment are necessary or appropriate to enable
us to render the opinion expressed below. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as copies thereof, and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
We do not hold ourselves out as experts in the laws of the State of New
Jersey and our opinion is based solely on a review of the New Jersey Business
Corporation Act, as reported in unofficial compilations.
On the basis of the foregoing, and in reliance thereon, we are of the
opinion that the Shares of Common Stock of the Company to be issued pursuant to
the terms of the Plan are validly authorized and, assuming: (a) no change occurs
in the applicable law or the pertinent facts; (b) the pertinent provisions of
such blue-sky and securities laws as may be applicable have been complied with;
and (c) the Shares are issued in accordance with the terms of the Plan, the
Shares of Common Stock issuable will be validly issued, fully paid and
nonassessable.
This opinion is intended solely for your benefit and is not to be made
available to or be relied upon by any other person, firm or entity without our
prior written consent.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
ALLEN, MATKINS, LECK, GAMBLE & MALLORY LLP
RSM/chw
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EXHIBIT 23.1(A)
CONSENT OF INDEPENDENT AUDITORS
To 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.
/s/ KMPG LLP
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KPMG LLP
San Francisco, California
January 7, 2000
-13-
EXHIBIT 23.1(B)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the Imatron Inc. 1993 Stock Option Plan, As Amended of
Imatron Inc. 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 financial
statements 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
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Ernst & Young LLP
San Francisco, California
January 3, 2000
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