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As filed with the Securities and Exchange Commission on October 19, 2000
Registration No. 33-
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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 of (I.R.S. Employer
incorporation or organization) Identification No.)
4900 HOPYARD ROAD, #210 PLEASANTON, CALIFORNIA 94588
(Address of principal executive offices)
1994 Stock Option Plan
(Full title of the plan)
JOHN F. GLENN,
VICE PRESIDENT, FINANCE
INVIVO CORPORATION
4900 HOPYARD ROAD, #210
PLEASANTON, CALIFORNIA 94588
(925) 468-7600
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Daniel J. Winnike, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
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-------------------------------------- ---------------- ---------------------- --------------------- ---------------------
AMOUNT PROPOSED MAXIMUM PROPOSED
TITLE OF SHARES TO BE AGGREGATE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
-------------------------------------- ---------------- ---------------------- --------------------- ---------------------
-------------------------------------- ---------------- ---------------------- --------------------- ---------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $0.01 per share 200,000 $11.063(1) $2,212,600(1) $585
-------------------------------------- ---------------- ---------------------- --------------------- ---------------------
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(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457, on the basis of the average of the high and low
price of the Registration's Common Stock as reported on the Nasdaq
National Market on October 16, 2000.
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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 into this registration statement
by reference:
(a) the Issuer's Annual Report on Form 10-K for the fiscal year
ended June 30, 2000;
(b) 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 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 omission 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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
<S> <C> <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 Fenwick & West LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Fenwick & West LLP (included in Exhibit 5.1)
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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 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
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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.
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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 October 20, 2000.
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.
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SIGNATURE TITLE DATE
<S> <C> <C>
/s/ James B. Hawkins President, Chief Executive Officer and Director October 20, 2000
------------------------------- (principal executive officer)
James B. Hawkins
/s/ John F. Glenn Vice President, Finance and Chief Financial October 20, 2000
------------------------------- Officer (principal financial officer and
John F. Glenn principal accounting officer)
Chairman of the Board
-------------------------------
Earnest C. Goggio
/s/ George S. Sarlo Director October 20, 2000
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George S. Sarlo
Director
-------------------------------
Lareen Debuono
/s/ Roger Susi Director October 20, 2000
-------------------------------
Roger Susi
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EXHIBIT LIST
Exhibit
Number Description of Document
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4.1 1994 Stock Option Plan
5.1 Opinion of Fenwick & West LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Fenwick & West LLP (included in Exhibit 5.1)
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