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)
1998 AMENDED AND RESTATED NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
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(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>
============================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE
---------------- ---------- ------------ -------- ----------------
<S> <C> <C> <C> <C>
Common Stock No 950,000 shares $2.68 $2,546,000 $672.00
Par Value
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</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.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement on Form S-8 relates to the Imatron Inc. 1998
Amended and Restated Non-Employee Directors' Stock Option Plan (the "Plan"),
which was adopted by the Board of Directors of Imatron Inc. (the "Company") on
February 24, 1998 and approved by the shareholders at the 1998 Annual Meeting.
In May 1991, the Board of Directors adopted, and in June 1991 the shareholders
approved, the 1991 Non-Employee Directors' Stock Option Plan (the "1991 Plan")
authorizing the issuance of 250,000 shares of the Company's Common Stock. In
February 1993, the Board of Directors amended, and in June 1993, the
shareholders approved an increase in the number of shares reserved for issuance
under the 1991 plan to 550,000 shares. In February 1998, the Board of Directors
amended and restated the 1991 Plan in its entirety to, among other provisions,
modify the vesting schedule contained in the prior plan and to increase the
number of shares reserved for issuance thereunder to 1,000,000. On March 26,
1999, the Board approved an increase from 1,000,000 to 1,500,000 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 past two increases totaling 950,000 shares of Common Stock issuable
under the Plan, bringing the total number of authorized shares available to
1,500,000.
The Plan provides for the automatic grant of nonqualified options to
non-employee directors. The Board believes that the success of the Company is
affected by the ability of the Company to attract and retain as members of its
Board of Directors knowledgeable persons of broad business or professional
experience who have no employment relationship with the Company. The Plan was
adopted to enhance the ability of the Company to attract and retain qualified
non-employee directors, by providing eligible directors with a proprietary
interest in the Company through the grant of stock options.
Item 3. 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, 1999;
(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 4, 1993,
(Registration Statement No. 033-66952) 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
hereunder have been sold, or which deregisters all securities then remaining
unsold under this
<PAGE>
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 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable; the class of securities to be offered is registered under
Section 12 of the Securities Exchange Act of 1934.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
-------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Article IX of the Bylaws of the Company sets forth the extent to which
officers or directors of the Company may be indemnified against any liabilities
which they may incur. The general effect of such Bylaw provision is that any
person made a party to an action, suit or proceeding by reason of the fact that
he is or was a director, officer, employee or agent of the Company, or of
another corporation or other enterprise which he served as such at the request
of the Company, shall be indemnified by the Company against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by it in connection with such action, suit or proceeding, to
the full extent permitted under the laws of the State of New Jersey.
The general effect of the indemnification provisions contained in Section
14A:3-5 of the New Jersey General Corporation Law is as follows: A director or
officer who, by reason of such directorship or officership, is involved in any
action, suit or proceeding (other than an action by or in the right of the
Company) may be indemnified by the Company against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his conduct was
unlawful. A director or officer who, by reason of such directorship or
officership, is involved in any action or suit by or in the right of the Company
may be indemnified by the Company against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company, except that no indemnification may be made in respect of any claim,
issue or matter as to which he shall have been adjudged to be liable for
negligence or misconduct in the performance of his duty to the Company unless
and only to the extent that a court of appropriate jurisdiction shall approve
such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
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<PAGE>
ITEM 8. EXHIBITS.
--------
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT
4 1998 Amended and Restated Non-Employee Directors' Stock
Option Plan
5 Opinion of Counsel as to the legality of the securities
being registered
23.1 Consent of Independent Auditors
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 5.1
24 Power of Attorney
ITEM 9. UNDERTAKINGS.
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A. RULE 415 OFFERING.
The undersigned registrant hereby undertakes:
(a) 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;
(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)(a)(i) and (A)(a)(ii) do not apply if
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.
(b) 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.
(c) 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.
(d) 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
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<PAGE>
reference in the Prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the Prospectus, to deliver, or cause to be
delivered to each person to whom the Prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
Prospectus to provide such interim financial information.
B. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offering therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. FILING OF FORM S-8 REGISTRATION STATEMENT.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act, and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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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
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Terry Ross
/s/ JOHN L. COUCH Director January 6, 2000
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John L. Couch
/s/ ALDO TEST Director January 6, 2000
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Aldo Test
/s/ WILLIAM J. MCDANIEL Director January 6, 2000
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William J. McDaniel
/s/ ALLEN CHOZEN Director January 6, 2000
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Allen Chozen
/s/ RICHARD K. MYLER Director January 6, 2000
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Richard K. Myler, MD
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<PAGE>
IMATRON INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
950,000 Shares of Common Stock
Exhibit No. Description Page No.
- ----------- ----------- --------
4 1998 Amended and Restated Non-Employee Directors'
Stock Option Plan 7
5 Opinion of Counsel as to legality of securities
being registered. 13
23.1 Consent of Independent Auditors 14
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.
1998 AMENDED AND RESTATED
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
ADOPTED BY THE BOARD: FEBRUARY 24, 1998
APPROVED BY THE SHAREHOLDERS: JULY 13, 1998
AMENDED BY THE BOARD: MARCH 26, 1999
APPROVED BY THE SHAREHOLDERS: JUNE 18, 1999
1. PURPOSE OF THE PLAN. This Imatron Inc. 1998 Amended and Restated
Non-Employee Directors' Stock Option Plan (the "Plan") is adopted for the
benefit of the directors of Imatron Inc., a New Jersey corporation (the
"Company") who, at the time of their service, are not employees of the Company
or any of its subsidiaries (the "Non-Employee Directors"). It amends, restates
and, upon becoming fully effective, replaces in its entirety the Company's 1991
Non-Employee Directors' Stock Option Plan ("1991 Plan"), and is intended to
advance the interests of the Company by providing the Non-Employee Directors
with additional incentive to serve the Company by increasing their proprietary
interest in the success of the Company.
2. ADMINISTRATION OF THE PLAN. (a) The Plan shall be administered by the
Board of Directors of the Company (the "Board"). The Board may delegate
administration of the Plan to a committee ("Committee") comprised of not less
than three (3) members of the Board. If administration is delegated to a
Committee, the Committee shall have, in connection with the administration of
the Plan, the powers possessed by the Board, subject to such resolutions, not
inconsistent with the provisions of the Plan, as may be adopted from time to
time by the Board. The Board may abolish the committee at any time and revest in
the Board the administration of the Plan. (b) The Board shall have the authority
to adopt, alter and repeal such administrative rules, guidelines and practices
governing the Plan as it shall, from time to time, deem advisable; to interpret
the terms and provisions of the Plan and any Option granted under the Plan (and
any agreements relating thereto); and to otherwise supervise the administration
of the plan, and to exercise such powers and perform such acts as the Board
deems necessary or expedient to promote the bests interests of the Company. The
Board may correct any defect, supply any omission or reconcile any inconsistency
in the Plan or in any Option in the manner and to the extent it shall deem
necessary to carry the Plan into effect. (c) All actions taken and all
interpretations and determinations made by the Board in good faith shall be
final and binding upon all Non-Employee Directors, the Company, and all other
interested persons. (d) No member of the Board shall be personally liable for
any action, determination, or interpretation made in good faith with respect to
the Plan; and all members of the Board shall be fully protected by the Company
in respect of any such action, determination, or interpretation.
3. STOCK SUBJECT TO AND RESERVED FOR THE PLAN. (a) The total number of
shares of the Company's Common Stock, no par value (the "Common Stock"), with
respect to which Options may be granted under the Plan, shall not exceed the
aggregate of 1,500,000 shares; provided, however, that the class and aggregate
number of shares which may be subject to the Options granted hereunder shall be
subject to adjustment in accordance with the provisions of Section 14 of this
Plan. Such shares may be treasury shares, reacquired shares or authorized but
unissued shares. (b) The Company shall reserve for issuance pursuant to this
Plan such number of shares of Common Stock as may from time to time be subject
to Options granted hereunder. If any Option expires or is canceled prior to its
exercise in full, the shares theretofore subject to such Option may again be
made subject to an Option under the Plan. (c) All Options granted under the Plan
will constitute non-qualified options (the "Option").
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<PAGE>
4. ELIGIBILITY. Options shall be granted only to Non-Employee Directors
of the Company.
5. NON-DISCRETIONARY GRANT OF OPTIONS.
a. NON-EMPLOYEE DIRECTORS ELECTED AFTER THE EFFECTIVE DATE OF THE PLAN:
INITIAL GRANT. For so long as this Plan is in effect and shares are available
for the grant of Options hereunder, each person who is elected as a Non-Employee
Director of the Company for the first time after the effective date of the Plan,
and who is not and has not been an employee of the Company or any of the
Company's subsidiaries (as defined in Section 424(f) of the Internal Revenue
Code of 1986, as amended (the "Code") (a "New Director") shall be granted a
one-time Option ("Initial Option") to purchase 25,000 shares of Common Stock at
a per share exercise price equal to 85% of the Fair Market Value (defined below)
of a share of Common Stock on such date (subject to the adjustments provided in
Section 14 hereof). This Section 5(a) shall only apply to New Director the first
time he or she is elected a director of the Company after the effective date of
this Plan.
b. ANNUAL OPTION GRANT TO NON-EMPLOYEE DIRECTORS ("ANNUAL OPTION"). In
addition, for so long as (i) this Plan is in effect, and (ii) there are shares
available for the grant of Options hereunder, each person serving as an elected
Non-Employee Director as of the effective date of this Plan and each New
Director (together "Eligible Director") shall be granted automatically, on
January 1st of each year (or the next day on which the Company's common stock is
traded should the Company's common stock not trade on such date, commencing as
of January 1, 1998 and subject to the adjustments provided in Section 14
hereof), an Option to purchase 25,000 shares of Common Stock at a per share
exercise price equal to 85% of the Fair Market Value (defined below) of a share
of Common Stock. The foregoing notwithstanding, such Eligible Director must have
served as a Non-Employee Director continuously for at least thirty (30) days
immediately preceding the first day of January of any given year, in order to be
eligible for grant of an Annual Option as of January 1st of that year.
c. OPTION PRICE. For the purposes of this Section 5, the "Fair Market
Value" as of any particular date shall mean (i) the closing sales price on the
immediately preceding business day of a share of Common Stock as reported on the
principal securities exchange on which shares of Common Stock are then listed or
admitted to trading or (ii) if not so reported, the average of the closing bid
and asked prices for a share of Common Stock on the immediately preceding
business day as quoted on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or (iii) if not quoted on NASDAQ, the
average of the closing bid and asked prices for a share of Common Stock as
quoted by the National Quotation Bureau's "Pink Sheets" or the National
Association of Securities Dealers' OTC Bulletin Board System. If the price of a
share of Common Stock shall not be so reported, the Fair Market Value of a share
of Common Stock shall be determined by the Board in its absolute discretion.
6. OPTION AGREEMENT. Each Option granted under the Plan shall be
evidenced by an agreement, in a form approved by the Board, which shall be
subject to the terms and conditions of the Plan. Any agreement may contain such
other terms, provisions and conditions as may be determined by the Board and
that are not inconsistent with the Plan.
7. VESTING AND TERM OF OPTIONS. (a) Each Option granted under this Plan
shall be subject to vesting pursuant to one of two schedules: (i) vesting in
full on the date of grant; or (ii) vesting in four (4) equal installments
commencing on the first anniversary of the date of grant; provided, however,
that each such Option, regardless of the manner of vesting, shall be subject to
termination as provided in Section 9 hereof. The schedule of vesting, whether
vesting in full or in installments, shall be determined by the Board as part of
and at the time of the grant; provided however, that any Option granted under
this Plan which vests in full on the date of grant as set forth in subsection
(i) above, shall be
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<PAGE>
subject, as a condition of such Option grant, to the Company's right to
repurchase as provided in Section 16 hereof. (b) Each Option agreement shall
also provide that the Option shall expire ten years from the date of grant,
unless sooner terminated pursuant to Section 9 hereof.
8. EXERCISE OF OPTIONS. Options shall be exercisable at any time after
their appropriate vesting date, subject to termination as provided in Section 9
hereof and to the Company's right to repurchase as provided in Section 16
hereof. Options shall be exercised by written notice to the Company setting
forth the number of shares with respect to which the Option is being exercised
and specifying the address to which the certificates representing such shares
are to be mailed. Such notice shall be accompanied by cash or certified check,
bank draft, or postal or express money order payable to the order of the
Company, for an amount equal to the product obtained by multiplying the exercise
price of the Option by the number of shares of Common Stock with respect to
which the Option is then being exercised. As promptly as practicable after
receipt of such written notification and payment, the Company shall deliver to
the Eligible Director a certificate or certificates representing the number of
shares of Common Stock with respect to which such Option has been so exercised,
issued in the Eligible Director's name, provided, however, that such delivery
shall be deemed effected for all purposes when the Company's transfer agent
shall have deposited such certificates in the United States mail, addressed to
the Eligible Director, at the address specified pursuant to this Section 8.
9. TERMINATION OF OPTIONS. Except as may be otherwise expressly provided
in this Plan or otherwise determined by the Board, each Option, to the extent it
shall not have been exercised previously, shall terminate on the earliest of the
following: (i) on the last day of the three-month period commencing on the date
on which the Eligible Director ceases to be a member of the Board for any reason
other than the death or total disability (within the meaning of Section 22(e)(3)
of the Internal Revenue Code) of the Eligible Director, in which case the option
may be exercised at any time within eighteen (18) months following termination
of such directorship or service, during which period the Eligible Director shall
be entitled to exercise all Options held by the Eligible Director on the date on
which the Eligible Director ceased to be a member of the Board that could have
been exercised on such date; or (ii) ten years after the date of grant of such
Option.
10. TRANSFERABILITY OF OPTIONS. During the term of an Option, the Option
shall not be assignable or otherwise transferable except by will or by the laws
of descent and distribution. Each Option shall be exercised during the Eligible
Director's lifetime only by the Eligible Director.
11. NO RIGHTS AS STOCKHOLDER. No Eligible Director shall have any rights
as a stockholder with respect to shares covered by an Option until the date of
issuance of a stock certificate or certificates representing such shares. Except
as provided in Section 14 hereof, no adjustment for dividends or otherwise shall
be made if the record date therefor is prior to the date of issuance of
certificates representing shares of Common Stock purchased pursuant to exercise
of this Option.
12. INVESTMENT REPRESENTATIONS. Whether or not the Options and shares
covered by the Plan have been registered under the Securities Act of 1933, as
amended, each person exercising an option under the Plan may be required by the
Company to give a representation in writing that such person is acquiring such
shares for investment and not with a view to, or for sale in connection with,
the distribution of any part thereof. The Company will endorse any necessary
legend referring to the foregoing restriction upon the certificate or
certificates representing any shares issued or transferred to the Eligible
Director upon the exercise of any Option granted under the Plan.
13. AMENDMENT OR TERMINATION. The Board may amend, modify, revise or
terminate this Plan at any time and from time to time. All Options granted under
this Plan shall be subject to the terms and provisions of this Plan and any
amendment, modification or revision of this Plan shall be deemed to amend,
modify or revise all Options outstanding under this Plan at the time of such
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<PAGE>
amendment, modification or revision. If this Plan is terminated by action of the
Board, all outstanding Options may be terminated.
14. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The existence of
outstanding Options shall not affect in any way the right or power of the
Company or its stockholders to make or authorize the dissolution or liquidation
of the Company, any sale or transfer of all or any part of the Company's assets
or business, any reorganization or other corporate act or proceeding, whether of
a similar character or otherwise, any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, any merger or consolidation of the Company, or any issuance of bonds,
debentures, preferred or prior preference stock senior to or affecting the
Common Stock or the rights thereof; provided, however, that if (i) the
outstanding shares of Common Stock of the Company shall be subdivided into a
greater number of shares or (ii) the outstanding shares of Common Stock shall be
combined into a smaller number of shares thereof, then (a) the number of shares
of Common Stock available for the grant of Options under the Plan shall be
proportionally adjusted to equal the product obtained by multiplying such number
of available shares remaining by a fraction, the numerator of which is the
number of outstanding shares of Common Stock after giving effect to such
combination or subdivision and the denominator of which is that number of
outstanding shares of Common Stock prior to such combination or subdivision, (b)
the exercise price of any Option then outstanding under the Plan shall be
proportionately adjusted to equal the product obtained by multiplying such
exercise price by a fraction, the numerator of which is the number of
outstanding shares of Common Stock prior to such combination or subdivision and
the denominator of which is that number of outstanding shares of Common Stock
after giving effect to such combination or subdivision, and (c) the number of
shares of Common Stock issuable on the exercise of any Option then outstanding
under the Plan or thereafter granted under the Plan shall be proportionately
adjusted to equal the product obtained by multiplying such number of shares of
Common Stock by a fraction, the numerator of which is the number of outstanding
shares of Common Stock after giving effect to such combination or subdivision
and the denominator of which is that number of outstanding shares of Common
Stock prior to such combination or subdivision.
15. COMPLIANCE WITH OTHER LAWS AND REGULATIONS. (a) The Plan, the grant
and exercise of Options thereunder, and the obligation of the Company to sell
and deliver shares acquirable on exercise of such Options, shall be subject to
all applicable federal and state laws, rules and regulations and to such
approvals by any governmental or regulatory agency or national securities
exchange as may be required. The Company shall not be required to sell or issue
any shares on exercise of any Option if the issuance of such shares shall
constitute a violation by the Non-Employee Director or the Company of any
provisions of any law or regulation of any governmental authority. (b) Each
Option granted under this Plan shall be subject to the requirement that, if at
any time the Board shall determine that (i) the listing, registration or
qualification of the shares subject thereto on any securities exchange or under
any state or federal law of the United States or of any other country or
governmental subdivision thereof, (ii) the consent or approval of any
governmental regulatory body, or (iii) the making of investment or other
representations, are necessary or desirable in connection with the issue or
purchase of shares subject thereto, no such Option may be exercised in whole or
in part unless such listing, registration, qualification, consent, approval or
representation shall have been effected or obtained, free of any conditions not
acceptable to the Board. (c) These provisions do not obligate the Company to
register either the Plan, any option granted under the Plan, or any stock issued
or issuable pursuant to any such Option, under any state or federal law of the
United States or of any other country or governmental subdivision thereof. (d)
Any determination by the Board in connection with any of the above
determinations shall be final, binding and conclusive.
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<PAGE>
16. REPURCHASE RIGHT OF THE COMPANY.
a. GENERAL. Shares of stock issued or issuable upon exercise of an
option grant with immediate vesting, as set forth in Section 7(a)(i), are
subject to a right of repurchase by the Company. If the service of a
Non-Employee Director to the Company or a subsidiary of the Company is
terminated for any reason other than by death or total disability, except as
otherwise described in Section 16(d), the Company (or any subsidiary designated
by it) shall have the option for 90 days after the termination of service by the
Non-Employee Director to repurchase all or any part of his stock issued or
issuable upon exercise of the option, as provided in this Section 16.
b. NOTICE. Within 30 days of receiving notice from a Non-Employee
Director or his representative of the termination of the director's service to
the Company or a subsidiary of the Company, the Company must give notice to the
director of the Company's decision whether or not to exercise its repurchase
right.
c. REPURCHASE PRICE. The repurchase price per share repurchased in
accordance with this Section 16 shall be the original per share purchase price
set forth in the accompanying Notice of Stock Option Grant. The Company's
repurchase right at this price lapses at the rate of 25% per year, starting with
the first anniversary of the Option Grant, and continues over 4 years, without
reference to the date the Option was exercised or became exercisable.
d. SHARES ACQUIRED THROUGH EXERCISE OF OPTION AFTER TERMINATION OF
SERVICES. If the Non-Employee Director exercises in whole or in part his option
after termination of his services to the Company for any reason other than death
or total disability, the Company shall have, for 90 days after the exercise, the
right to repurchase the shares so acquired upon written notice to the
Non-Employee Director. The purchase price and terms of payment will be governed
by Sections 16(c) and (e) of this Plan.
e. PAYMENT OF THE PURCHASE PRICE. The Company's right to repurchase
must be exercised for cash or cancellation of purchase money indebtedness for
the shares within 90 days of termination of service by the Non-Employee Director
(or in the case of securities issued upon exercise of Options after the date of
termination, within 90 days after the date of exercise).
f. DEATH OR TOTAL DISABILITY. There shall be no right of repurchase
by the Company upon the Non-Employee's death or total disability. The foregoing
notwithstanding, the provisions of this Section 16(g) do not extend or otherwise
affect the termination of any Option which shall not have been exercised, as
otherwise set forth in Section 9 herein.
g. REPURCHASE RIGHT AS TO OTHER SHARES. The repurchase right of the
Company shall apply as well to all shares or other securities issued in
connection with any stock split, reverse stock split, stock dividend,
recapitalization, reclassification, spin-off, split-off, merger, consolidation
or reorganization ("Other Shares") but such right shall expire on the occurrence
of any event or transaction upon which the Option terminates.
17. INDEMNIFICATION OF BOARD OF DIRECTORS. The Company shall, to the
fullest extent permitted by law, indemnify, defend and hold harmless any person
who at any time is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative or investigative) in any way relating to or arising out
of this Plan or any Options granted hereunder by reason of the fact that such
person is or was at any time a director of the Company against judgments, fines,
penalties, settlements and reasonable expenses (including attorneys' fees)
actually incurred by such person in connection with such action, suit or
proceeding. This right of indemnification shall inure to the benefit of the
heirs, executors and
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<PAGE>
administrators of each such person and is in addition to all other rights to
which such person may be entitled by virtue of the bylaws of the Company or as a
matter of law, contract or otherwise.
18. ADDITIONAL PROVISIONS. (a) Nothing in the Plan, or in any instrument
executed pursuant thereto, shall confer upon any Non-Employee Director either
the right or the obligation to continue acting as a director of (or to
employment by) the Company, nor shall any Plan provision or instrument executed
pursuant thereto affect any right of the Company, its Board and/or its
shareholders to terminate the directorship (or employment) of any Non-Employee
Director with or without cause. (b) In connection with each option granted
pursuant to the Plan, each Non-Employee Director shall make arrangements
satisfactory to the Company to insure that the amount of any federal or other
withholding tax required to be withheld with respect to such sale or transfer is
made available to the Company for timely payment of such tax.
19. EFFECTIVE DATE OF THE PLAN. This Plan shall become effective, subject
to stockholder approval, on January 1, 1998. No Option shall be granted pursuant
to this Plan on or after December 31, 2008.
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 950,000 additional shares of the
Company's Common Stock (the "Shares") reserved for issuance under the Company's
1998 Amended and Restated Non-Employee Directors' 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
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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. 1998 Amended and Restated Non-Employee
Directors' Stock Option Plan 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
---------------------
Ernst & Young LLP
San Francisco, California
January 3, 2000
