<PAGE> 1
As filed with the Securities and Exchange Commission on December 14, 1998
Registration Statement No. 33-___
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------------------
INVIVO CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 77-0115161
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4900 Hopyard Road, #210 Pleasanton, California 94588
(Address of Principal Executive Offices) (Zip Code)
1994 Stock Option Plan
(Full title of the plan)
John F. Glenn, Vice President, Finance
Invivo Corporation
4900 Hopyard Road, #210
Pleasanton, California 94588
510-468-7600
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
Proposed
Proposed Maximum
Title of Securities Amount to be Maximum Offering Aggregate Offering Amount of
to be Registered Registered Price Price Registration Fee
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
par value $.0008
per share 200,000 $15.75(1) $3,150,000(1) $875.70
===============================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the
registration fee pursuant to Rule 457, on the basis of the last sale reported
the average of the high and low price of the Registrant's Common Stock as
reported on the Nasdaq National Market on December 10, 1998.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference: (a) the
Issuer's Annual Report on Form 10-K for the fiscal year ended June 30, 1998, (b)
the Issuer's Quarterly Report on Form 10-Q for the quarter ended September 30,
1998, and (c) the description of the Issuer's Common Stock contained in the
Company's Registration Statement on Form 8-A dated June 15, 1987, File No.
0-15963.
All documents subsequently filed by the Issuer pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by sections 102 and 145 of the Delaware General
Corporation Law, the Registrant's certificate of incorporation eliminates, to
the fullest extent permitted by the Delaware General Corporation Law, a
director's personal liability for monetary damages to the Registrant and its
stockholders for breach of fiduciary duty as a director. The effect of this
provision in the certificate of incorporation is to eliminate the rights of the
Registrant and its stockholders (through stockholders' derivative suits on
behalf of the Registrant) to recover monetary damages against a director for
breach of fiduciary duty as a director (including breaches resulting from
negligent or grossly negligent behavior) except for the liability of a director
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
The Registrant has entered into indemnity agreements with its
officers and directors (each an "Indemnitee"). Under such indemnity agreements,
the Registrant must indemnify an Indemnitee for expenses incurred in connection
with actions in which the Indemnitee is involved by reason of having been a
director or officer of the Registrant, provided
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<PAGE> 3
that no indemnification for such expenses shall be made if Indemnitee is
adjudged to be liable to the Registrant, except as deemed proper by an
appropriate court. The Registrant is also obligated to advance expenses an
Indemnitee may incur in connection with such actions before any resolution of
the action, and the Indemnitee may sue to enforce his or her right to
indemnification or advancement of expenses.
The Registrant also maintains an insurance policy insuring its
directors and officers against liability for certain acts and omissions while
acting in their official capacities.
There is no litigation pending, and neither the Registrant nor
any of its directors know of any threatened litigation, which might result in a
claim for indemnification by any director or officer.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
- ------- -----------------------
<S> <C>
4.1 1994 Stock Option Plan.
4.2 Form of Incentive Stock Option Agreement (incorporated by
reference to exhibit number 4.2 to the Registrant's
Registration Statement on Form S-8, Registration Statement
No. 33-88798).
4.3 Form of Non-Qualified Stock Option Agreement (incorporated
by reference to exhibit number 4.3 to the Registrant's
Registration Statement on Form S-8, Registration Statement
No. 33-88798).
5.1 Opinion of Howard, Rice, Nemerovski, Canady, Falk &
Rabkin, A Professional Corporation.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Howard, Rice, Nemerovski, Canady, Falk &
Rabkin, A Professional Corporation (included in
Exhibit 5.1).
</TABLE>
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with
3
<PAGE> 4
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, 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; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Act of 1934) that is incorporated by reference in the registration
statement 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant 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 registrant 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 Act and will
be governed by the final adjudication of such issue.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pleasanton, State of California, on December 10,
1998.
INVIVO CORPORATION
By /s/ JAMES B. HAWKINS
---------------------------------------
James B. Hawkins, President
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ JAMES B. HAWKINS President, Chief Executive Officer December 10, 1998
-------------------- and Director (principal executive
JAMES B. HAWKINS officer)
/s/ JOHN F. GLENN Vice President, Finance and Chief December 10, 1998
------------------- Financial Officer (principal
JOHN F. GLENN financial officer and principal
accounting officer)
/s/ ERNEST C. GOGGIO Chairman of the Board December 10, 1998
--------------------
ERNEST C. GOGGIO
/s/ GEORGE S. SARLO Director December 10, 1998
-------------------
GEORGE S. SARLO
/s/ LAREEN DEBUONO Director December 10, 1998
-------------------
LAUREEN DeBUONO
/s/ ROGER SUSI Director December 10,1998
-------------------
ROGER SUSI
</TABLE>
5
<PAGE> 6
EXHIBIT LIST
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<S> <C>
4.1 1994 Stock Option Plan.
5.1 Opinion of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A
Professional Corporation.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, A
Professional Corporation (included in Exhibit 5.1).
</TABLE>
6
<PAGE> 1
EXHIBIT 4.1
INVIVO CORPORATION
1994 STOCK OPTION PLAN
AS AMENDED
PURPOSE
The Purpose of the Invivo Corporation 1994 Stock Option Plan (the
"Plan) is to enable Invivo Corporation (the "Company") and its subsidiaries to
attract and retain officers and other key employees, directors, and consultants
and to provide them with additional incentive to advance the interests of the
Company. Options qualifying as incentive stock options under Section 422 of the
Internal Revenue Code of 1986, as amended ("Code"), and non-qualified options
may be granted under the Plan.
ADMINISTRATION
THE PLAN SHALL BE ADMINISTERED BY THE BOARD OF
DIRECTORS OF THE COMPANY, OR BY A COMMITTEE (THE "COMMITTEE") OF
TWO OR MORE DIRECTORS SELECTED BY THE BOARD OF DIRECTORS.
THE BOARD OF DIRECTORS OR THE COMMITTEE SHALL HAVE
THE POWER, SUBJECT TO THE EXPRESS PROVISIONS OF THE PLAN:
To determine the recipients of options under the Plan,
the time of grant of the options, and the number of shares covered
by the grant.
To prescribe the terms and provisions of each option
granted (which need not be identical).
7
<PAGE> 2
To construe and interpret the Plan and options, to
establish, amend, and revoke rules and regulations for the Plan's
administration, and to make all other determinations necessary or
advisable for the administration of the Plan.
SHARES SUBJECT TO THE PLAN
Subject to the provisions of Paragraph 7 (relating to the adjustment
upon changes in stock), the number of shares which may be sold pursuant to
options granted under the Plan shall not exceed in the aggregate 600,000 shares
of Common Stock of the Company. Shares sold pursuant to options granted under
the Plan may be unissued shares or reacquired shares. If any options granted
under the Plan shall for any reason terminate or expire without having been
exercised in full, the shares not purchased under such options shall be
available again for the purposes of the Plan.
ELIGIBILITY
OPTIONS UNDER THIS PLAN MAY BE GRANTED TO OFFICERS
AND OTHER KEY EMPLOYEES AND CONSULTANTS OF THE COMPANY OR OF ITS
SUBSIDIARIES, PROVIDED THAT INCENTIVE STOCK OPTIONS MAY BE
GRANTED HEREUNDER ONLY TO OFFICERS AND OTHER KEY EMPLOYEES
(INCLUDING DIRECTORS WHO ARE ALSO OFFICERS OR EMPLOYEES).
8
<PAGE> 3
EACH PERSON WHO IS A DIRECTOR AND NOT AN EMPLOYEE
OF THE COMPANY OR A SUBSIDIARY OF THE COMPANY ON THE DATE OF
ADOPTION OF THIS PLAN BY THE BOARD OF DIRECTORS SHALL RECEIVE A
NON-QUALIFIED STOCK OPTION UNDER THE PLAN ON THE DATE OF SUCH
ADOPTION. THEREAFTER, EACH DIRECTOR OF THE COMPANY WHO IS NOT AN
EMPLOYEE OF THE COMPANY OR A SUBSIDIARY OF THE COMPANY SHALL
RECEIVE A NON-QUALIFIED STOCK OPTION UNDER THE PLAN IMMEDIATELY
FOLLOWING EACH ANNUAL MEETING OF SHAREHOLDERS OF THE COMPANY
(PROVIDED THAT A PERSON WHOSE TERM EXPIRES ON SUCH DAY AND WHO IS
NOT REELECTED TO THE BOARD OF DIRECTORS SHALL NOT RECEIVE SUCH AN
OPTION). THE FIRST OPTION RECEIVED BY A DIRECTOR UNDER THIS
PARAGRAPH 4(b) SHALL COVER 8,000 SHARES OF COMMON STOCK OF THE
COMPANY AND EACH OPTION RECEIVED BY A DIRECTOR UNDER THIS PLAN
THEREAFTER SHALL COVER 4,000 SHARES OF COMMON STOCK OF THE
COMPANY. EACH SUCH OPTION SHALL HAVE AN EXERCISE PRICE EQUAL TO
THE FAIR MARKET VALUE OF THE COMMON STOCK OF THE COMPANY ON THE
DATE OF ADOPTION BY THE BOARD OF DIRECTORS OR OF THE ANNUAL
MEETING OF SHAREHOLDERS TO WHICH IT RELATES, AS THE CASE MAY BE
DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 5(a)(2)
OF THIS PLAN. THE NUMBER OF OPTIONS THAT DIRECTORS MAY RECEIVE
PURSUANT TO THIS PARAGRAPH 4(b) SHALL BE APPROPRIATELY ADJUSTED
IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 7 OF THIS PLAN.
THIS PARAGRAPH 4(b) SHALL NOT BE AMENDED MORE THAN ONCE EVERY SIX
MONTHS, OTHER THAN TO COMPLY WITH CHANGES IN THE INTERNAL REVENUE
CODE, THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OR THE RULES OR
REGULATIONS THEREUNDER.
9
<PAGE> 4
PERSONS TO WHOM OPTIONS TO PURCHASE SHARES ARE
GRANTED ARE HEREINAFTER REFERRED TO AS "OPTIONEE(S)." SUBJECT TO
THE PROVISIONS OF PARAGRAPHS 3 AND 4(b) OF THE PLAN, THERE IS NO
LIMITATION ON THE NUMBER OF OPTIONS THAT MAY BE GRANTED TO AN
OPTIONEE.
TERMS OF OPTION AGREEMENTS
ALL OPTION AGREEMENTS. OPTIONS GRANTED PURSUANT TO
THE PLAN SHALL BE EVIDENCED BY AGREEMENTS SPECIFYING THE NUMBER
OF SHARES COVERED THEREBY, IN SUCH FORM AS THE BOARD OF DIRECTORS
OR COMMITTEE SHALL FROM TIME TO TIME ESTABLISH, WHICH AGREEMENTS
MAY INCORPORATE ALL OR ANY OF THE TERMS HEREOF BY REFERENCE AND
SHALL COMPLY WITH AND BE SUBJECT TO THE FOLLOWING TERMS AND
CONDITIONS:
The Board of Directors or Committee shall have the power
to set the time or times within which each option shall be
exercisable and to at any time accelerate the time or times of
exercise (notwithstanding the terms of the option). Unless the stock
option agreement executed by the optionee expressly otherwise
provides, (i) an option granted to an officer or other key employee
or consultant shall become exercisable on a cumulative basis as to
one-quarter of the total number of shares covered thereby on each of
the first, second, third, and fourth anniversary dates of the date
of grant of the option, (ii) an option granted to a director who is
not an employee of the Company shall become exercisable on a
cumulative basis as to one-half of the total number of shares
covered thereby on each of the first and second anniversary dates of
the date of grant of the option, and (iii) an option shall not be
exercisable after the expiration of ten years from the date of
grant. Any option granted to an executive officer or director of the
Company shall in no event be exercisable until the elapse of six
months from the date of its grant.
10
<PAGE> 5
Except as provided in (b) below, the exercise price of
any incentive stock option shall not be less than 100% of the fair
market value of the shares of Common Stock of the Company on the
date of the granting of the option and the exercise price of any
non-qualified stock option shall not be less than 85% of the fair
market value of the shares of Common Stock of the Company on the
date of the granting of the option. The fair market value per share
shall be as determined in good faith by the administrator of the
Plan, provided that if the Company's Common Stock is publicly traded
the fair market value shall be the closing bid price on the day the
option is granted as reported on the Nasdaq National Market or the
closing sale price on such stock exchange on which the shares may be
listed if such exchange is then the principle market for the shares,
or, if such shares are not then reported on the Nasdaq National
Market or an exchange but quotations are reported on the National
Association of Securities Dealers Automated Quotations System, the
closing bid price on the day the option is granted, in either event
as such price or quotes are listed in The Wall Street Journal,
Western Edition (or if not so reported in The Wall Street Journal,
any other listing service or publication known to the administrator
of the Plan).
To the extent that the right to purchase shares has accrued
hereunder, options may be exercised from time to time by written
notice to the Company, stating the number of shares being purchased
and accompanied by the payment in full of the option price for such
shares. Such payment shall be made in cash or in shares of the
outstanding Common Stock of the Company which have been held by the
optionee for at least six months (or such other period as is
specified by the Board of Directors or the Committee) or in a
combination of cash and such stock, except that the Board of
Directors or the Committee in its sole discretion may authorize
payment by any optionee (for all or part of his or her purchase
price) by a promissory note or such other form of legal
consideration that may be acceptable to the Board of Directors or
Committee. Payment may also be made by delivering a copy of
irrevocable instructions to a broker to deliver promptly to the
Company the amount of sale or loan proceeds sufficient to pay the
purchase price, and, if required, the amount of any federal, state,
local or foreign withholding taxes.
If shares of Common Stock are used in part or full payment for
the shares to be acquired upon exercise of the option, such shares
shall be valued for the purpose of such
11
<PAGE> 6
exchange as of the date of exercise of the option in accordance with
the provisions of (2) above and the notice of exercise shall be
accompanied by such instruments and documentation as the Board of
Directors or Committee require to effect the delivery of such
shares. In the event the certificates tendered by the optionee in
such payment cover more shares than are required for such payment,
the certificates shall also be accompanied by instructions from the
optionee to the Company's transfer agent with regard to disposition
of the balance of the shares covered thereby.
If payment by promissory note is authorized, the interest
rate, term, repayment schedule and other provisions of such note
shall be as specified by the Board of Directors or the Committee;
provided, however, that such note shall bear interest at a rate not
less than the applicable test rate of interest prescribed by
Regulation 1.483-1(d)(1) of the Income Tax Regulations, as in effect
at the time the stock is purchased. The Board of Directors or
Committee may require that the optionee pledge Common Stock of the
Company for the purpose of securing the payment of such note, and
the Company may hold the certificate(s) representing such stock in
order to perfect its security interest.
An option may be exercised by a securities broker acting on
behalf of an optionee pursuant to authorization instructions
approved by the Company.
The Company at all times shall keep available the number
of shares of Common Stock required to satisfy options granted under
the Plan.
12
<PAGE> 7
The Company may require any person to whom an option is
granted, including his or her legal representative, heir, legatee,
or distributee, as a condition of exercising any option granted
hereunder, to give written assurance satisfactory to the Company to
the effect that such person is acquiring the shares subject to the
option for his or her own account for investment and not with any
present intention of selling or otherwise distributing the same. The
Company reserves the right to place a legend on any share
certificate issued pursuant to this Plan to assure compliance with
this paragraph. No shares of Common Stock of the Company shall be
required to be distributed until the Company shall have taken such
action, if any, as is then required to comply with the provisions of
the Securities Act of 1933 or any other then applicable securities
law.
Neither a person to whom an option is granted, nor such
person's legal representative, heir, legatee, or distributee, shall
be deemed to be the holder of, or to have any of the rights of a
holder with respect to, any shares of Common Stock subject to such
option unless and until such person has exercised his or her option
pursuant to the terms thereof.
Options shall be transferable only by will or by the
laws of descent and distribution, and during the lifetime of the
person to whom they are granted such person alone may exercise them,
except that a non-qualified stock option may be transferred pursuant
to a qualified domestic relations order as defined by the Code or
Title I of the Employee Retirement Income Security Act, or the rules
thereunder and to the extent provided in the stock option agreement
entered into in connection with such option (including any amendment
of such agreement).
An option granted to an employee or director shall
terminate and may not be exercised if the person to whom it is
granted ceases to be employed by the Company or by a subsidiary of
the Company, or ceases to be a director (unless such person
continues as an employee), with the following exceptions:
13
<PAGE> 8
If the employment or directorship is terminated for
any reason other than the person's death or disability, he or
she may at any time within not more than three months after
such termination exercise the option, but only to the extent
that it was exercisable by such person on the date of such
termination and otherwise remains exercisable in accordance
with its terms, or
If such person becomes disabled while in the employ
of the Company or of a subsidiary, or while a director, or
dies while in the employ of the Company or a subsidiary, or
while a director, or within 30 days after termination of such
person's employment with the Company or a subsidiary, or
status as a director, his or her option may be exercised by
his or her personal representatives, heirs or legatees at any
time within not more than 12 months following the date of
death or disability, but only to the extent such option was
exercisable by such person on the date of death or disability
and otherwise remains exercisable in accordance with its
terms.
An option granted to a consultant shall terminate in
accordance with the terms specified in the stock option agreement.
In no event may an option be exercised by anyone after
the expiration of the term of the option established pursuant to (1)
above.
Each option granted pursuant to this Plan shall specify
whether it is a non-qualified or an incentive stock option, provided
that the Board of Directors or Committee may give the optionee the
right to elect to receive either an incentive or a non-qualified
stock option.
An option granted pursuant to this Plan may have such
other terms as the Board of Directors or Committee in its discretion
may deem necessary or appropriate and shares issued upon exercise of
any option hereunder may be subject to such restrictions as the
Board of Directors or Committee deems appropriate.
14
<PAGE> 9
INCENTIVE STOCK OPTIONS. IN ADDITION TO THE TERMS
AND CONDITIONS SPECIFIED ABOVE, INCENTIVE STOCK OPTIONS GRANTED
UNDER THIS PLAN SHALL BE SUBJECT TO THE FOLLOWING TERMS AND
CONDITIONS:
The aggregate fair market value (determined as of the
time the option is granted) of the stock with respect to which
incentive stock options are exercisable for the first time by any
optionee during any calendar year (under all option plans of the
Company or any parent and subsidiary corporations) shall not exceed
$100,000, provided that to the extent that the aggregate fair market
value of stock with respect to which options designated as Incentive
Stock Options first become exercisable in any calendar year exceeds
$100,000, such options shall be treated as non-qualified options.
As to individuals otherwise eligible under this Plan who
own more than 10 percent of the total combined voting power of all
classes of stock of the Company and any parent and subsidiary
corporations, an incentive option can be granted under this Plan to
any such individual only if at the time such option is granted the
option price is at least 110 percent of the fair market value of the
stock subject to the option and such option by its terms is not
exercisable after the expiration of five years from the date such
option is granted.
USE OF PROCEEDS FROM SHARES
Proceeds from the sale of shares pursuant to options granted under
the Plan shall be used for general corporate purposes.
15
<PAGE> 10
ADJUSTMENT UPON CHANGES IN SHARES
IF ANY CHANGE IS MADE IN THE SHARES SUBJECT TO THE
PLAN, INCLUDING SHARES SUBJECT TO ANY OPTION GRANTED UNDER THE
PLAN (THROUGH MERGER, CONSOLIDATION, REORGANIZATION,
RECAPITALIZATION, STOCK DIVIDEND, DIVIDEND IN PROPERTY OTHER THAN
CASH, STOCK SPLIT, LIQUIDATING DIVIDEND, COMBINATION OF SHARES,
EXCHANGE OF SHARES, CHANGE IN CORPORATE STRUCTURE OR OTHERWISE),
APPROPRIATE ADJUSTMENTS SHALL BE MADE BY THE BOARD OF DIRECTORS
OR COMMITTEE IN THE MAXIMUM NUMBER OF SHARES SUBJECT TO THE PLAN
AND THE NUMBER OF SHARES AND PRICE PER SHARE OF STOCK SUBJECT TO
OUTSTANDING OPTIONS.
OTHER THAN IN THE CASE OF A REINCORPORATION OF THE
COMPANY IN ANOTHER STATE, IN THE EVENT OF (i) APPROVAL BY THE
SHAREHOLDERS OF THE COMPANY OF THE DISSOLUTION OR LIQUIDATION OF
THE COMPANY, (ii) CONSUMMATION OF THE SALE OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY, (iii)
CONSUMMATION OF A TRANSACTION IN WHICH MORE THAN 50 PERCENT OF
THE SHARES OF THE COMPANY THAT ARE ENTITLED TO VOTE ARE TENDERED
OR EXCHANGED FOR CASH OR ANY OTHER ASSETS, OR (IV) ANY MERGER OR
CONSOLIDATION OR OTHER REORGANIZATION IN WHICH THE COMPANY IS NOT
THE SURVIVING CORPORATION, OR IN WHICH THE COMPANY BECOMES A
SUBSIDIARY OF ANOTHER CORPORATION, OUTSTANDING OPTIONS UNDER THIS
PLAN SHALL BECOME FULLY EXERCISABLE IMMEDIATELY PRIOR TO ANY SUCH
EVENT.
16
<PAGE> 11
IN LIEU OF PERMITTING ANY EXERCISE OF AN
OUTSTANDING OPTION PURSUANT TO (B) ABOVE, THE BOARD OF DIRECTORS
OR THE COMMITTEE MAY, SUBJECT TO THE APPROVAL OF THE CORPORATION
PURCHASING OR ACQUIRING THE STOCK OR ASSETS OF THE COMPANY (THE
"SURVIVING CORPORATION"), ARRANGE FOR THE OPTIONEE TO RECEIVE
UPON SURRENDER OF OPTIONEE'S OPTION A NEW OPTION COVERING SHARES
OF THE SURVIVING CORPORATION IN THE SAME PROPORTION, AT AN
EQUIVALENT OPTION PRICE AND SUBJECT TO THE SAME TERMS AND
CONDITIONS AS THE SURRENDERED OPTION.
RIGHTS AS AN EMPLOYEE
Nothing in this Plan or in any options awarded hereunder shall
confer upon any employee any right to continue in the employ, or as a director,
of the Company or of any of its subsidiaries or interfere in any way with the
right of the Company or any such subsidiary to terminate such employee's
employment or directorship at any time.
WITHHOLDING TAX
There shall be deducted from the compensation of any employee
holding options under this Plan the amount of any tax required by any
governmental authority to be withheld and paid over by the Company to such
governmental authority for the account of the person with respect to such
options.
TERMINATION AND AMENDMENT OF PLAN
The Board of Directors may at any time terminate this Plan or make
such modifications of the Plan as it shall deem advisable. Any modification
which increases the number of shares which may be issued under the Plan (other
than pursuant to Paragraph 7 hereof), or relaxes the requirements as to
eligibility for participation in the Plan, shall become effective only upon
approval of the holders of a majority of the securities of the Company present,
or represented, and entitled to vote at a meeting duly held in accordance with
the laws of the State of Delaware. Any options granted under the Plan prior to
shareholder approval of the Plan, and any options granted which are dependent
upon an amendment of the Plan requiring shareholder approval for their
effectiveness, shall be subject to shareholder approval of the Plan or such
amendment. If such approval is not obtained within 12 months of the date of
grant of any such option, such option shall expire without further action.
17
<PAGE> 12
EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan shall become effective on October 6, 1994. Any rights
granted under this Plan must be granted within ten (10) years of such effective
date.
18
<PAGE> 1
EXHIBIT 5.1
December 10, 1998
Invivo Corporation
4900 Hopyard Road, #210
Pleasanton, CA 94588
Gentlemen:
You have requested our opinion as counsel for Invivo Corporation, a
Delaware corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended, and the Rules and Regulations
promulgated thereunder, of up to 200,000 shares of Common Stock ("Stock") of the
Company pursuant to the Company's 1994 Stock Option Plan ("Plan") approved by
the Company's stockholders at the 1997 Annual Meeting.
We have examined the Company's Registration Statement on Form S-8 filed
with the Securities and Exchange Commission on or about the date hereof (the
"Registration Statement"). We further have examined the certificate of
incorporation, the By-Laws, the minutes of the Board of Directors and
stockholders of the Company regarding approval of the recent amendment to the
Plan, a certificate of an officer of the Company and such other documents as we
deemed pertinent as a basis for the opinion hereinafter expressed.
In connection with this opinion we have assumed the following: (a) the
authenticity of original documents and genuineness of all signatures; (b) the
conformity to the originals of all documents submitted to us as copies; and (c)
the truth, accuracy and completeness of the information contained in the
certificates we have reviewed. As to matters of fact material to our opinions,
we have relied on our review of the documents referred to above and on
statements made to us by officers of the Company. We have not independently
verified any factual matters or any assumptions made by us in this letter and
disclaim any inference as to the reasonableness of any such assumption.
Based on the foregoing examination, we are of the opinion that Stock
sold pursuant to the Plan will, when issued to the respective participants, be
legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
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Very truly yours,
HOWARD, RICE, NEMEROVSKI,
CANADY, FALK & RABKIN
A Professional Corporation
By
---------------------------------------
Daniel J. Winnike
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EXHIBIT 23.1
The Board of Directors
Invivo Corporation
We consent to incorporation by reference in the registration statement on Form
S-8 of Invivo Corporation of our report dated July 30, 1998, relating to the
consolidated balance sheets of Invivo Corporation and subsidiaries as of June
30, 1998 and 1997, and the related consolidated statements of income,
stockholders' equity and cash flows for each of the years in the three-year
period ended June 30, 1998, and the related financial statement schedule, which
report appears in the June 30, 1998 annual report on Form 10-K of Invivo
Corporation.
Oakland, California
December 10, 1998
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