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.
-----------------------------------------------
(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
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1994 EMPLOYEE STOCK PURCHASE 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>
==================================================================================================
Proposed Proposed
Additional Maximum Maximum
Title of Securities Amount to Offering Price Per Aggregate Amount of
to Be Registered Be Registered Share(1) Offering Price(1) Registration Fee
- ------------------- ------------- -------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock No 500,000 (2) $2.68 $1,340,000 $354.00
Par Value
==================================================================================================
</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 1,800,000
shares of Common Stock previously available to be granted under the
1994 Employee Stock Purchase Plan and previously registered pursuant to
Registration Statements Nos. 33-71786 and 333-09989. The total number
of shares of Common Stock now issuable under the 1994 Employee Stock
Purchase Plan, as amended, is 2,300,000.
-ii-
<PAGE>
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMNT
This Registration Statement on Form S-8 relates to the Imatron Inc.
1994 Employee Stock Purchase Plan (the "Plan"), which was adopted by the Board
of Directors of Imatron Inc. (the "Company") on October 29, 1993 and approved by
the shareholders at the 1994 Annual Meeting held on May 20, 1994. 1,000,000
shares of the Company's Common Stock were originally authorized for issuance
under the Plan. The Board amended the Plan on June 28, 1996 to increase the
number of shares available for issuance under the Plan from 1,000,000 to
1,800,000. The shareholders approved this amendment on June 28, 1996. On March
26, 1999, the Board approved another increase from 1,800,000 shares to 2,300,000
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 500,000 shares of Common Stock issuable under
the Plan, bringing the total number of authorized shares to 2,300,000.
Options to purchase 1,699,878 shares of common stock have been granted
since the Company instituted the Plan. The 1994 Plan provides for the sale of
shares of the Company's Common Stock using funds deducted from employees'
earnings. The Plan is intended to qualify as a "Stock Purchase Plan" as defined
in Section 423 of the Internal Revenue Code of 1986, as amended. The Plan is not
subject to the provisions of the Employee Retirement Income Security Act of 1974
("ERISA") nor is it qualified as a pension or profit-sharing plan under Section
401 of the Internal Revenue Code of 1986, as amended ("the Code"). The purposes
of the 1994 Plan are to induce persons of outstanding ability and potential to
join and remain with the Company, to provide an incentive for such employees to
expand and improve the profits and prosperity of the Company by enabling such
person to acquire proprietary interests in the Company, and to attract and
retain key personnel by providing employees the opportunity to purchase shares
of the Company's common stock.
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 November 15,
1993, (Registration Statement No. 033-71786) 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 August 12,
<PAGE>
1996, (Registration Statement No. 333-09989) 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 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 1994 Employee Stock Purchase Plan, as amended
5 Opinion of Counsel as to legality of securities being registered.
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)
-2-
<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
S. Lewis Meyer Officer 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
-3-
<PAGE>
IMATRON INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
500,000 Shares of Common Stock
Exhibit No. Description Page No.
- ----------- ----------- --------
4 1994 Employee Stock Purchase Plan, as amended 5
5 Opinion of Counsel as to legality of securities 12
being registered.
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)
-4-
EXHIBIT 4
IMATRON INC.
1994 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(as amended through June 18, 1999)
DATE OF BOARD APPROVAL: OCTOBER 29, 1993
DATE OF SHAREHOLDER APPROVAL: MAY 20, 1994
FIRST AMENDMENT APPROVED BY BOARD: JUNE 28, 1996
AMENDMENT APPROVED BY SHAREHOLDERS: JUNE 28, 1996
SECOND AMENDMENT APPROVED BY THE BOARD: MARCH 26, 1999
AMENDMENT APPROVED BY THE SHAREHOLDERS: JUNE 18, 1999
1. ESTABLISHMENT OF THE PLAN: PURPOSE. This Employee Stock Purchase Plan
(the "Plan") was established to provide Eligible Employees with an opportunity
through regular payroll deductions to purchase Common Stock of Imatron Inc. (the
"Company") so that they may increase their proprietary interest in the Company.
The Plan is intended to qualify as an "employee stock purchase plan" under
Section 423 of the Internal Revenue Code.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "Board of Directors" means the Committee if one has been appointed,
or the Board of Directors of the Company if no Committee has been appointed.
(b) "Code" means the Internal Revenue Code of 1986.
(c) "Committee" means the committee appointed by the Board of Directors
to administer the Plan in accordance with Section 3 below - "Administration" -
if one is appointed.
(d) "Company" means Imatron Inc. and such present or future
Subsidiaries, as defined in Section 425 of the Code, of the Company as the Board
of Directors shall from time to time designate.
(e) "Compensation" means the annual base rate of pay of a Participant as
of the first day of an Offering Period, determined in accordance with
nondiscriminatory rules adopted by the Board of Directors, including
commissions, but excluding income with respect to stock options or other stock
purchases or moving expense reimbursements.
(f) "Eligible Employee" means any regular employee of the Company whose
date of hire was at least six months prior to the commencement of an Offering
Period or an Interim Offering Period and who is customarily employed for at
least twenty (20) hours per week and more than five (5) months in any calendar
year.
(g) "Exchange Act" means the Securities and Exchange Act of 1934.
(h) "Fair Market Value" of a share of Stock means the NASDAQ closing
price on the applicable date. In the event the Stock is not traded on the date
as of which the Fair Market Value is to be determined, Fair market Value shall
be determined as of the next preceding date on which the stock is traded.
-5-
<PAGE>
(i) "Interim Offering Period" means each three-month period during and
within an Offering Period.
(j) "Option" means the right of a Participant to purchase Stock during
the applicable Offering Period.
(k) "Offering Date" means the first day of each Offering Period.
(l) "Offering Period" means, in the absence of a specific determination
to the contrary by the Board of Directors or the Committee, a 27-month period
during which contributions may be made toward the purchase of Stock under the
Plan. The Board of Directors or the Committee may establish from time to time
Option Periods which may be up to twenty-seven (27) months.
(m) "Participant" means an Eligible Employee who elects to participate
in the Plan.
(n) "Plan Account" means the account established for each Participant
pursuant to the Plan.
(o) "Purchase Price" means the price at which Participants may purchase
Stock as determined pursuant to the Plan.
(p) "Stock" means the Common Stock of the Company.
(q) "Subsidiary" means a corporation a majority of whose voting shares
are owned by the Company.
3. ADMINISTRATION. The Plan shall be administered by the Board of Directors
and/or by a duly appointed Committee. Whether or not the Board has delegated
administration, the Board shall have the final power to determine all questions
of policy and expediency that may arise in the administration of the Plan. The
Board of Directors may from time to time remove members from, or add members to,
the Committee. Vacancies on the Committee, howsoever caused, shall be filled by
the Board of Directors. The Committee shall select one of its members as
Chairman, and shall hold meetings at such times and places as it may determine.
The interpretation and construction by the Board of Directors or the Committee
of any provision of the Plan or of any right to purchase Stock shall be
conclusive and binding on all persons.
(a) DELEGATION TO COMMITTEE. The Board may delegate administration of
the Plan to the Committee composed of not fewer than two (2) members of the
Board. All of the members of such Committee shall be disinterested persons as
defined by the provisions of subparagraph 3(b) - "Disinterested Person." If
administration is delegated to the Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore possessed
by the Board, subject, however, to such resolutions, not inconsistent with the
provisions of the Plan; as may be adopted from time to time by the Board. The
Board shall otherwise comply with the requirements of Rule 16b-3 promulgated
under the Exchange Act, as from time to time in effect. The Board may abolish
the Committee at any time and revest in the Board the administration of the
Plan. Two members of the Committee shall constitute a quorum for the transaction
of business.
(b) DISINTERESTED PERSON. The term "Disinterested Person," as used in
this Plan, shall mean an administrator of the Plan, whether a member of the
Board or of any Committee to which responsibility for administration of the Plan
has been delegated pursuant to subparagraph 3(a), - "Delegation to Committee" -
who is not during the one year prior to service as an administrator of the plan,
-6-
<PAGE>
or during such service, granted or awarded equity securities pursuant to the
plan or any other plan of the Company or any of its affiliates, except that: (A)
participation in a formula plan meeting the conditions of Rule 16b-3(c)(2)(ii)
pursuant to the Securities Exchange Act shall not disqualify a director from
being a disinterested person; (B) participation in an ongoing securities
acquisition plan meeting the conditions in Rule 16b-3(d)(2)(i) shall not
disqualify a director from being a disinterested person; (C) an election to
receive an annual retainer fee in either cash or an equivalent amount of
securities, or partly in cash and partly in securities, shall not disqualify a
director from being a disinterested person; and (D) participation in a plan
shall not disqualify a director from being a disinterested person for the
purpose of administering another plan that does not permit participation by
directors. Any such person shall otherwise comply with the requirements of Rule
16b-3 promulgated under the Exchange Act, as from time to time in effect.
(c) NUMBER OF SHARES TO BE OFFERED. The maximum aggregate number of
shares which shall be offered under the Plan shall be Two Million Three Hundred
Thousand (2,300,000) shares of Stock, subject to adjustment as provided in
Section 8 -- "Recapitalization, Etc." -hereof. In the event that any Option
granted under the Plan expires or is terminated for any reason, such shares
allocable to the unexercised portion of such Option shall again be subject to an
Option under the Plan. The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
4. ELIGIBILITY AND PARTICIPATION.
(a) INITIAL PARTICIPATION. An Eligible Employee shall become a
Participant on an Offering Date after satisfying the eligibility requirements by
delivering to the Company's payroll office an enrollment form authorizing
payroll deductions not less than ten (10) business days prior to such Offering
Date. An Eligible Employee who did not enroll in the Plan prior to the Offering
Date, or a person who becomes an Eligible Employee after an Offering Date, may
enroll in the Plan for the remainder of the Offering Period as of the beginning
of the next Interim Offering Period by completing and filing an enrollment form
prior to the commencement date of such Interim Offering Period.
(b) CONTINUED PARTICIPATION. A Participant shall automatically
participate in each successive Offering Period (including Interim Offering
Periods) until such time as such Participant withdraws from the Plan as set
forth below. A Participant is not required to file any additional enrollment
forms for subsequent Offering Periods or Interim Offering Periods in order to
continue participation in the Plan.
(c) Payroll Deduction Rate. The Participant shall designate on the
enrollment form the percentage of Compensation which he or she elects to have
withheld for the purchase of Stock, which may be 2%, 4%, 6%, 8% or 10% of the
Participant's Compensation. A Participant may reduce (but not increase) the rate
of payroll withholding during an Offering Period by filing an amended enrollment
form with the payroll office at any time prior to the first day of any Interim
Offering Period (for which such change is to be effective), but not more than
three (3) changes may be made in any Offering Period (or such other number of
changes as may be approved by the Board or the Committee). A Participant may
increase or decrease the rate of payroll deduction for any subsequent Offering
Period by filing with the Company a new enrollment form for payroll deductions
not less than ten (10) days prior to the Offering Date for such subsequent
Offering Period.
By enrolling in the Plan, a Participant shall be deemed to have elected to
purchase the maximum number of whole shares of Stock which can be purchased with
the amount of the Participant's Compensation which is withheld during the
Offering Period; provided, however, that no Participant may purchase
shares of Stock in excess of the amount permitted under Section 9 - "Limitation
on Stock Ownership."
-7-
<PAGE>
(d) OFFERING PERIOD. Any Options granted pursuant to the Plan shall be
subject to the Company obtaining all necessary governmental approvals and/or
qualifications of the sale and/or issuance of Options and/or Stock.
(e) PURCHASE PRICE. The Purchase Price for each share of Stock to be
purchased under the Plan shall be eighty-five percent (85)% of the Fair Market
Value of such share on either (i) the Offering Date (or the date of entry for
new or re-enrolling employees) or (ii) the last day of each Interim Offering
Period, whichever is less.
(f) CONTRIBUTIONS. The Purchase Price of the Stock shall be accumulated
by payroll deductions throughout the Offering Period, which shall be applied
automatically to purchase Stock at the end of each Interim Offering Period. In
the absence of a contrary determination prior to the commencement of an Offering
Period, each Interim Offering Period shall have a three-month duration. At the
end of each Interim Offering Period, accrued payroll deductions will be
automatically applied to the purchase of Stock at the Purchase Price. Payroll
deductions shall commence on the first payday following the Offering Date (or,
in the case of a new or re-enrolling employee, on the first payday following the
commencement of the applicable Interim Offering Period) and shall continue
unless altered or terminated as provided in the Plan.
(g) EFFECT OF LEAVE OF ABSENCE. During a leave of absence approved by
the Company, a Participant may, for such period as the Committee shall deem
reasonable, continue contributions to the Plan by making cash payments to the
Company on his or her normal paydays in an amount equal to the difference
between the amount of his or her regular payroll deductions taken while such
employee was participating under the Plan and the amount of his payroll
deductions taken while on such leave of absence. Failure to pay any installment
within ten (10) days after the payday on which it is due shall be treated as a
withdrawal from the Plan.
(h) PURCHASE OF STOCK. The Company will maintain a Plan Account on its
books in the name of each Participant. On each payday the amount deducted from
the Participant's Compensation will be credited to the Participant's Plan
Account. No interest shall accrue on any such payroll deductions As of the last
day of each Interim Offering Period the amount then in the Participant's Plan
Account will be divided by the Purchase Price and the amount in the
Participant's Plan Account shall be used to purchase the number of whole shares
of Stock which result. Share certificates representing the number of shares of
Stock so purchased shall be issued and delivered to the Participant as soon as
reasonably practicable after the close of each Interim Offering Period. Any
balance remaining in a Participant's Plan Account at the end of an Interim
Offering Period after deducting the amount of the Purchase Price for the number
of whole shares issued to the Participant shall become the beginning balance in
the Participant's Plan Account for the next following Interim Offering Period.
Any balance remaining in the Participant's Plan Account at the end of an
Offering Period after deducting the amount of the Purchase Price for the number
of whole shares issued to the Participant shall become the beginning balance in
the Participant's Plan Account for the next following Offering Period unless the
Participant elects to withdraw from participation. If the Participant withdraws
from participation, the balance in the Participant's Plan Account will be
refunded to the Participant, without interest.
(i) WITHDRAWAL. A Participant may elect to withdraw from participation
in the Plan at any time before the last day of an Interim Offering Period by
filing the prescribed form with the payroll office. At the time of withdrawal
the amount credited to the Participant's Plan Account will be refunded in cash,
without interest. Upon withdrawal from the Plan accumulated payroll deductions,
if any, shall be returned to the withdrawn Participant and the withdrawn
Participant's interest in the Plan shall terminate. In the event a Participant
voluntarily elects to withdraw from the Plan, such Participant may not resume
-8-
<PAGE>
participation in the Plan until after the expiration of one complete Interim
Offering Period; re-enrollment shall be made in the same manner as set forth
above for initial participation in the Plan.
5. PRO RATA ALLOCATION. In the event that the aggregate number of shares
which all Participants elect to purchase during an Interim Offering Period shall
exceed the number of shares remaining available for issuance under the Plan, the
number of shares to which each Participant shall become entitled shall be
determined by multiplying the number of shares available for issuance by a
fraction, the numerator of which is the sum of the number of shares the
Participant has elected to purchase and the denominator of which is the sum of
the number of shares which all Participants have elected to purchase.
6. EFFECT OF TERMINATION OF EMPLOYMENT. Termination of a Participant's
employment for any reason, including retirement or death, or the failure of a
Participant to remain an Eligible Employee shall be treated as a withdrawal
under the Plan. In the event of the Participant's death, the refund of the
Participant's Plan Account shall be paid, without interest, to the
representative of the Participant's estate. A transfer by a Participant from the
Company to a Subsidiary, from one Subsidiary to another, or from a Subsidiary to
the Company shall not be treated as a termination of employment.
7. RIGHTS NOT TRANSFERABLE. The rights or interests of any Participant in
the Plan, in any Option granted under the Plan, or in any Stock or moneys to
which he or she may be entitled under the Plan, shall not be transferable by
voluntary or involuntary assignment or by operation of law, or by any other
manner otherwise than by will or the applicable laws of descent and
distribution. If the Participant shall in any manner attempt to transfer, assign
or otherwise encumber his or her rights or interests under the Plan, other than
by will, such act shall be treated as a withdrawal from the Plan.
8. RECAPITALIZATION, ETC. Subject to any required action by the
shareholders of the Company, the number of shares of Stock covered by each
Option under the Plan which has not yet been exercised and the number of shares
of Stock which have been authorized for issuance under the Plan but have not yet
been placed under an Option (collectively the "Reserves"), as well as the price
per share of Stock covered by each Option under the Plan which has not yet been
exercised, shall be proportionately adjusted for any increase or decrease in the
number of issued shares of Stock resulting from a stock split, reverse stock
split, stock dividend, combination or reclassification of Stock, or any other
increase or decrease in the number of shares of Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issue by the Company of the shares of
Stock of any class shall affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of shares of Stock subject to an
Option.
In the event of the proposed dissolution or liquidation of the Company, the
Offering Period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. In the event of a
proposed sale of all or substantially all of the assets of the Company, or the
merger of the Company with or into another corporation, each option under the
Plan shall be assumed or an equivalent option shall be substituted by such
successor corporation, unless the Board determines, in the exercise of its sole
discretion and in lieu of such assumption or substitution, that the Participant
shall have the right to exercise the Option as to all of the opined Stock,
including shares as to which the Option would not otherwise be exercisable. If
the Board makes an Option fully exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall notify
the Participant that the Option shall be fully exercisable for a period of
thirty (30) days from the date of such notice, and the Option will terminate
upon the expiration of such period.
-9-
<PAGE>
The Board may also, if it so determines in the exercise of its sole
discretion, make provision for adjusting the Reserves, as well as the price per
share of Stock covered by each outstanding Option, in the event that the Company
effects one or more reorganizations, recapitalizations, rights offerings or
other increases or reductions of shares of its outstanding Stock, and in the
event of the Company being consolidated with or merged into any other
corporation.
9. LIMITATION ON STOCK OWNERSHIP. Notwithstanding any provision herein to
the contrary, no Participant shall be granted a right to purchase Stock pursuant
to Section 4 - "Eligibility and Participation" - if: (i) such Participant,
immediately after electing to purchase such Stock, would own Stock possessing
five (5) percent or more of the total combined voting power or value of all
classes of stock of the Company or any parent or Subsidiary of the Company, or
(ii) under the terms of the Plan the rights of the employee to purchase Stock
under this and all other qualified employee stock purchase plans of the Company
or its Subsidiaries would accrue at a rate that exceeds $20,000 of fair market
value of such Stock (determined on the Offering Date) for each calendar year for
which such right is outstanding at any time. For purposes of this Section 9,
ownership of Stock shall be determined by the attribution rules of Section
424(d) of the Code and Participants shall be considered to own any Stock which
they have a right or option to purchase under this or any other stock purchase
plan.
10. LIMITATIONS ON OFFICERS AND DIRECTORS. Participants subject to the
provisions of Section 16 of the Exchange Act (Company officers and directors)
must comply with the following requirements:
(a) Shares of Stock purchased pursuant to the Plan must be held and may
not be transferred for a period of six (6) months from the date of purchase;
provided, however, that distributions in connection with death, retirement,
disability, termination of employment, or a qualified domestic relations order
as defined by the Code, or the rules thereunder, are not subject to the
requirement set forth in this subparagraph 10(a).
(b) Officer and director Participants who cease participation in the
Plan may not participate again for a period of at least six (6) months.
(c) Shares of Stock purchased pursuant to the Plan must be held for at
least six (6) months from the date the Purchase Price is fixed.
11. RIGHTS AS AN EMPLOYEE. Nothing in the Plan shall be construed to give
any Participant the right to remain in the employ of the Company or a Subsidiary
or to affect the right of the Company and its Subsidiaries or the Participant to
terminate such employment at any time with or without cause.
12. RIGHTS AS A SHAREHOLDER. A Participant shall have no rights as a
shareholder with respect to any shares of Stock he or she may have a right to
purchase under the Plan until the date of issuance of a stock certificate to
such Participant for shares issued pursuant to the Plan.
13. COVENANTS OF THE COMPANY.
(a) During the terms of the rights granted under the Plan, the Company
shall keep available at all times the number of shares of stock required to
satisfy such rights.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of Stock upon exercise of the rights granted under the
Plan. If the Company is unable to obtain from any such regulatory commission or
agency the authority which counsel for the Company deems necessary for the
-10-
<PAGE>
lawful issuance and sale of stock under the Plan, the Company shall be relieved
from any liability for failure to issue and sell stock upon exercise of such
rights unless and until such authority is obtained.
14. USE OF PROCEEDS FROM STOCK. Proceeds from the sale of stock pursuant to
rights granted under the Plan shall constitute general funds of the Company.
15. AMENDMENT OR TERMINATION OF THE PLAN. The Board of Directors shall have
the right to amend, modify or terminate the Plan at any time without notice,
provided that no Participant's existing rights are adversely affected thereby,
and provided further that no amendment of the Plan shall be effective until such
amendment is approved by a vote of the holders of at least a majority of the
outstanding shares of Common Stock of the Company within twelve months before or
after the date upon which such action is taken by the Board of Directors, if
such amendment would:
(a) Increase the aggregate number of shares of Stock to be issued under
the Plan (except as provided in Section 8 -"Recapitalization, Etc." - hereof);
(b) Materially modify the requirements for eligibility to participate in
the Plan;
(c) Increase the maximum number of shares of Stock which a Participant
may purchase in any Offering Period;
(d) Extend the term of the Plan;
(e) Alter the Purchase Price formula so as to reduce the price for
shares of Stock to be purchased under the Plan;
(f) Otherwise materially increase the benefits accruing to Participants
under the Plan; or
(g) Cause the Plan to fail to meet the requirements of an "employee
stock purchase plan" under Section 423 of the Code.
16. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate ten (10) years from the date the
Plan is adopted by the Board or approved by the stockholders of the Company,
whichever is earlier. No rights may be granted under the Plan while the Plan is
suspended or after it is terminated.
(b) Rights and obligations under any rights granted while the Plan is in
effect shall not be altered or impaired by suspension or termination of the
Plan, except with the consent of the person to whom such rights were granted.
17. EFFECTIVE DATE OF PLAN.
The Plan shall become effective upon adoption by the Board or the
shareholders, whichever is earlier. Rights granted under the Plan shall be
subject to revocation unless and until the Plan has been approved by the
shareholders of the Company.
-11-
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 500,000 additional shares of the
Company's Common Stock (the "Shares") reserved for issuance under the Company's
1994 Employee Stock Purchase 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
-12-
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
------------
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. 1994 Employee Stock Purchase 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
---------------------
Ernst & Young LLP
San Francisco, California
January 3, 2000
-14-
