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Table of Contents

Table of Contents

Table of Contents

Table of Contents

Table of Contents


Delaware		77-0115161
(State or other jurisdiction of		(I.R.S. Employer
incorporation or organization)		Identification No.)

4900 Hopyard Road, Suite 210, Pleasanton, California 94588
(Address of principal executive offices)

John F. Glenn,
Vice President, Finance
Invivo Corporation
4900 Hopyard Road, Suite 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
801 California Street
Mountain View, California 94041


			Proposed Maximum			Proposed
Title of Each Class of Securities	Amount		Offering			Maximum Aggregate			Amount of
To Be Registered	To Be Registered		Price Per Share			Offering Price			Registration Fee

Common Stock, par value $0.01 per share		150,000	$	21.295	(1)	$	3,194,250	(1)	$	258.41

(1)

Estimated solely for the purpose of computing the registration fee pursuant to Rule 457 under the Securities Act of 1933, as amended (the “Securities Act”) on the basis of the average of the high and low sales prices of the Registrant’s Common Stock as reported on the Nasdaq National Market on December 2, 2003.

The following documents filed with the Securities and Exchange Commission (the “Commission”) are incorporated into this Registration Statement by reference:

(a)

the Registrant’s Annual Report on Form 10-K/A for the fiscal year ended June 30, 2003;

(b)

the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2003; and

(c)

the description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 8-A dated June 15, 1987, File No. 0-15963.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities registered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of the filing of such documents.

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.


Exhibit
Number		Description of Document

4.01		1994 Stock Option Plan, as amended.
4.02		Form of Incentive Stock Option Agreement.
4.03		Form of Non-Qualified Stock Option Agreement.
5.01		Opinion of Fenwick & West LLP.
23.01		Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02		Consent of KPMG LLP, independent auditors.
24.01		Power of Attorney (see page 4)

(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, 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, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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 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 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.

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 5, 2003.

KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints James B. Hawkins and John F. Glenn, and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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.


Signature	Title	Date

/s/ James B. Hawkins James B. Hawkins	President, Chief Executive Officer and Director (principal executive officer)	December 5, 2003

/s/ John F. Glenn John F. Glenn	Vice President, Finance and Chief Financial Officer (principal financial officer and principal accounting officer)	December 5, 2003

/s/ Ernest C. Goggio Ernest C. Goggio	Director	December 5, 2003

/s/ George S. Sarlo George S. Sarlo	Director	December 5, 2003

/s/ Laureen DeBuono Laureen DeBuono	Director	December 5, 2003


Exhibit
Number		Description of Document

4.01		1994 Stock Option Plan, as amended.
4.02		Form of Incentive Stock Option Agreement.
4.03		Form of Non-Qualified Stock Option Agreement.
5.01		Opinion of Fenwick & West LLP.
23.01		Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02		Consent of KPMG LLP, independent auditors.
24.01		Power of Attorney (see page 4)

5 EX-4.01 3 f95006exv4w01.txt EXHIBIT 4.01 EXHIBIT 4.01 INVIVO CORPORATION 1994 STOCK OPTION PLAN AS AMENDED 1. 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. 2. ADMINISTRATION (a) 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. (b) The Board of Directors or the Committee shall have the power, subject to the express provisions of the Plan: (1) 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. (2) To prescribe the terms and provisions of each option granted (which need not be identical). (3) 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. 3. 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 1,680,000 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. -1- 4. ELIGIBILITY (a) 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). (b) 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. (c) 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. 5. TERMS OF OPTION AGREEMENTS (a) 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: (1) 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 -2- 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. (2) 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). (3) 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 -3- 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 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. (4) The Company at all times shall keep available the number of shares of Common Stock required to satisfy options granted under the Plan. (5) 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 -4- 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. (6) 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. (7) 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). (8) 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: (i) 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 (ii) 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 -5- 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. (9) In no event may an option be exercised by anyone after the expiration of the term of the option established pursuant to (1) above. (10) 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. (11) 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. (b) 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: (1) 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. (2) 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. -6- 6. 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. 7. ADJUSTMENT UPON CHANGES IN SHARES (a) 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. (b) 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. (c) 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. 8. 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. -7- 9. 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. 10. 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. 11. 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. -8- EX-4.02 4 f95006exv4w02.txt EXHIBIT 4.02 EXHIBIT 4.02 INVIVO CORPORATION INCENTIVE STOCK OPTION AGREEMENT THIS AGREEMENT made as of this __________, by and between Invivo Corporation, a Delaware Corporation ("Company"), and ("Optionee") WITNESSETH: WHEREAS, there has been granted to Optionee, effective as of _____, an incentive stock option under the Invivo Corporation 1994 Stock Option Plan ("Option Plan"). NOW, THEREFORE, it is mutually agreed as follows: 1. The Optionee shall have an incentive stock option to acquire ______ shares of common stock of the Company (the "Shares") at a price of _____ per share. Said option expires on _________, provided that expiration shall occur at an earlier date if Optionee shall cease to be employed by the Company prior to such date as further provided in the Option Plan. 2. The other terms of this option, including without limitation, paragraph 5(a)(1) of the Option Plan which specifies when this option is exercisable, shall be the same as those provided for in the Option Plan. The Option Plan is attached hereto as EXHIBIT A and is incorporated herein by this reference. Optionee has read EXHIBIT A and agrees to be bound by its terms. 3. Any notice to be given by the Optionee under the terms of the Option Plan shall be deemed to have been duly given if sent by Certified Mail, postage and certification prepaid, to Invivo Corporation, 4900 Hopyard Rd., Pleasanton, California 94588, Attention: Corporate Secretary, or to such subsequent address, if any, at which the Company's headquarters office may be located. 4. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 5. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors, transferees and assignees of the Optionee. 6. In any action at law or in equity to enforce any of the provisions or rights under this Agreement or the Option Plan, the unsuccessful party to such litigation, as determined by the court in a final judgment or decree, shall pay the successful party or parties all costs, expenses and reasonable attorneys' fees incurred by the successful party or parties (including without limitation costs, expenses and attorneys' fees on any appeals), and if the successful party recovers judgment in any such action or proceeding, such costs, expenses and attorneys' fees shall be included as part of the judgment. 7. The Optionee agrees to perform all acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement, including but not limited to all acts and documents relating to compliance with federal and/or state securities laws. 8. For convenience this Agreement may be executed in any number of identical counterparts, each of which shall be deemed a complete original in itself and may be introduced in evidence or used for other purpose without the production of any other counterparts. 9. In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable under any applicable law, such invalidity or unenforceability shall not be construed as rendering any other provisions contained herein invalid or unenforceable, and all such other provisions shall be given full force and effect to the same extent as though the invalid and unenforceable provision was not contained herein. 10. Optionee acknowledges, understands and agrees that the existence of the Option Plan and the execution of this Agreement are not sufficient by themselves to cause any exercise of the option evidenced hereby to qualify for favorable tax treatment through the application of Section 422 of the Internal Revenue Code; that Optionee must, in order to so qualify, individually meet by his or her own action all applicable requirements of Section 422, including without limitation the following holding period requirements: no disposition of a Share may be made by Optionee within two years from the date of the granting of the option(s) nor within one year after the transfer of such Share to him or her on exercise of the option. IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED AS OF THE DAY AND YEAR REFERRED TO ABOVE. INVIVO CORPORATION By: _____________________________ ("Company") By: _____________________________ (Optionee") Attachment: 1994 Stock Option Plan EX-4.03 5 f95006exv4w03.txt EXHIBIT 4.03 EXHIBIT 4.03 INVIVO CORPORATION NON-QUALIFIED STOCK OPTION AGREEMENT THIS AGREEMENT made as of this _____________, by and between Invivo Corporation, a Delaware Corporation ("Company"), and ("Optionee"). WITNESSETH: WHEREAS, there has been granted to Optionee, effective as of _____________ , a non-qualified stock option under the Invivo Corporation 1994 Stock Option Plan ("Option Plan"). NOW, THEREFORE, it is mutually agreed as follows: 1. The Optionee shall have a non-qualified stock option to acquire _____ shares of common stock of the Company (the "Shares") at a price of _____ per share. Said option expires on __________, provided that expiration shall occur at an earlier date if Optionee shall cease to be employed by the Company prior to such date as further provided in the Option Plan. 2. The other terms of this option, including without limitation, paragraph 5(a)(1) of the Option Plan which specifies when this option is exercisable, shall be the same as those provided for in the Option Plan, except that paragraph 5(b) shall not apply to the option evidenced hereby. The Option Plan is attached hereto as EXHIBIT A and is incorporated herein by this reference. Optionee has read EXHIBIT A and agrees to be bound by its terms (other than paragraph 5(b)). 3. Any notice to be given by the Optionee under the terms of the Option Plan shall be deemed to have been duly given if sent by Certified Mail, postage and certification prepaid, to Invivo Corporation, 4900 Hopyard Rd., Pleasanton, California 94588, Attention: Corporate Secretary, or to such subsequent address, if any, at which the Company's headquarters office may be located. 4. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 5. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors, transferees and assignees of the Optionee. 6. In any action at law or in equity to enforce any of the provisions or rights under this Agreement or the Option Plan, the unsuccessful party to such litigation, as determined by the court in a final judgment or decree, shall pay the successful party or parties all costs, expenses and reasonable attorneys' fees incurred by the successful party or parties (including without limitation costs, expenses and attorneys' fees on any appeals), and if the successful party recovers judgment in any such action or proceeding, such costs, expenses and attorneys' fees shall be included as part of the judgment. 7. The Optionee agrees to perform all acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement, including but not limited to all acts and documents relating to compliance with federal and/or state securities laws. 8. For convenience this Agreement may be executed in any number of identical counterparts, each of which shall be deemed a complete original in itself and may be introduced in evidence or used for other purpose without the production of any other counterparts. 9. In the event that any provision of this Agreement is found to be invalid or otherwise unenforceable under any applicable law, such invalidity or unenforceability shall not be construed as rendering any other provisions contained herein invalid or unenforceable, and all such other provisions shall be given full force and effect to the same extent as though the invalid and unenforceable provision was not contained herein. IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THIS AGREEMENT TO BE EXECUTED AS OF THE DAY AND YEAR REFERRED TO ABOVE. INVIVO CORPORATION By: _____________________________ ("Company") By: _____________________________ ("Optionee") Attachment: 1994 Stock Option Plan EX-5.01 6 f95006exv5w01.txt EXHIBIT 5.01 EXHIBIT 5.01 December 5, 2003 Invivo Corporation 4900 Hopyard Road, Suite 210 Pleasanton, CA 94588 Gentlemen/Ladies: At your request, we have examined the Registration Statement on Form S-8 (the "REGISTRATION STATEMENT") to be filed by Invivo Corporation, a Delaware corporation (the "COMPANY"), with the Securities and Exchange Commission (the "COMMISSION") on or about December 5, 2003 in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 150,000 shares of the Company's Common Stock (the "STOCK"), that are subject to issuance by the Company upon the exercise of stock options granted under the Company's 1994 Stock Option Plan, as amended (the "1994 PLAN"), pursuant to an amendment to the 1994 Plan approved by the stockholders of the Company on December 12, 2002, increasing the available shares of Common Stock of the Company by 150,000 shares (the "AMENDMENT"). In rendering this opinion, we have examined such matters of fact as we have deemed necessary in order to render the opinion set forth herein, which included examination of the following. (1) the Company's Restated Certificate of Incorporation filed with Delaware Secretary of State on March 8, 1999 (as amended by a Certificate of Amendment filed with the Delaware Secretary of State on June 3, 1999), certified by the Company's Secretary on December 5, 2003. (2) the Company's Bylaws (as amended), certified by the Company's Secretary on December 5, 2003. (3) the Registration Statement, together with the Exhibits filed as a part thereof or incorporated therein by reference. (4) the Prospectus prepared in connection with the Registration Statement. (5) the minutes of a meeting of the Board of Directors of the Company dated November 8, 2002 and of the stockholders of the Company dated December 12, 2002, in each case, at which the Amendment was approved. (6) a written confirmation dated December 5, 2003 from the Company's transfer agent as to the number of shares of the Company's capital stock that were issued and outstanding as of November 8, 2002 and as to the number of shares that were issued and outstanding as of December 4, 2003 (and we assume that such number of shares issued and outstanding has remained unchanged since December 4, 2003). - 32 - December 5, 2003 Page 2 (7) a Management Certificate addressed to us and dated of even date herewith executed by the Company containing certain factual representations (the "MANAGEMENT CERTIFICATE"), including, but not limited to, the Company's statement of the aggregate number of options, warrants and other rights to purchase capital stock of the Company that are issued and outstanding. In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures on original documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same, the lack of any undisclosed termination, modification, waiver or amendment to any document entered into by the holders of the Stock and the due authorization, execution and delivery of all such documents by the such holders where due authorization, execution and delivery are prerequisites to the effectiveness thereof. We have also assumed that the certificates representing the Stock have been, or will be when issued, properly signed by authorized officers of the Company or their agents. As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties made by representatives of the Company to us, including but not limited to those set forth in the Management Certificate. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters; however, we are not aware of any facts that would cause us to believe that the opinion expressed herein is not accurate. We are admitted to practice law in the State of California, and we render this opinion only with respect to, and express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing laws of the United States of America and, of the State of California and of the Delaware General Corporation Law, the Delaware Constitution and reported judicial decisions relating thereto. Based upon the foregoing, it is our opinion that the 150,000 shares of Stock that may be issued and sold by the Company upon the exercise of stock options granted or to be granted under the 1994 Plan, when issued, sold and delivered in accordance with the applicable plan and purchase agreements to be entered into thereunder and in the manner and for the consideration stated in the Registration Statement and Prospectus, will be validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the Prospectus constituting a part thereof and any amendments thereto. This opinion is intended solely for use in connection with issuance and sale of shares subject to the Registration Statement and is not to be relied upon for any other purpose. We assume no obligation to advise you of any fact, - 33 - December 5, 2003 Page 3 circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed herein. Very truly yours, FENWICK & WEST LLP By: /s/ Daniel J. Winnike ------------------------------------------ Daniel J. Winnike, a Partner EX-23.02 7 f95006exv23w02.txt EXHIBIT 23.02 EXHIBIT 23.02 CONSENT OF INDEPENDENT AUDITORS The Board of Directors and Stockholders Invivo Corporation: We consent to the use of our report dated August 5, 2003, except for Note 19, which is as of October 27, 2003, with respect to the consolidated balance sheets of Invivo Corporation and subsidiaries as of June 30, 2003 and 2002, and the related consolidated statements of income, stockholders' equity and comprehensive income, and cash flows for each of the years in the three-year period ended June 30, 2003, and the related financial statement schedule, which reports appear in the June 30, 2003 annual report on Form 10-K/A of Invivo Corporation. San Francisco, California December 3, 2003 -----END PRIVACY-ENHANCED MESSAGE-----


PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
	Item 3. Incorporation of Documents by Reference.
	Item 4. Description of Securities.
	Item 5. Interests of Named Experts and Counsel.
	Item 6. Indemnification of Directors and Officers.
	Item 7. Exemption from Registration Claimed.
	Item 8. Exhibits.
	Item 9. Undertakings.
SIGNATURES
EXHIBIT LIST
Exhibit 4.01
Exhibit 4.02
Exhibit 4.03
Exhibit 5.01
Exhibit 23.02

INVIVO CORPORATION

/s/ James B. Hawkins

James B. Hawkins, President