<PAGE>
As filed with the Securities and Exchange Commission on March 13, 1998.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IMPATH INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3459685
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
521 West 57th Street
New York, New York 10019
(212) 698-0300
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Anu D. Saad, Ph.D.
President and
Chief Executive Officer
IMPATH Inc.
521 West 57th Street
New York, New York 10019
(212) 698-0300
Copy to:
John J. Butler, Esq.
Haythe & Curley
237 Park Avenue
New York, New York 10017
(212) 880-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed
sale to the public: As soon as practicable after
this Registration Statement becomes effective.
If the only securities being registered on this Form are to be 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, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_| Not applicable.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_| Not applicable.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed
maximum
Title of each class of Amount to be offering price aggregate offering Amount of
securities to be registered registered per share(1) price(1) registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($.005 par value)........... 20,000
shares $34.1875 $683,750 $201.71
====================================================================================================================================
</TABLE>
(1) Computed in accordance with Rule 457(c) under the Securities Act of 1933
based upon the average of the high and low prices for the registrant's shares of
Common Stock ($.005 par value) as reported on the Nasdaq National Market on
March 6, 1998.
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
================================================================================
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
================================================================================
Subject to Completion, dated March 13, 1998
Prospectus
20,000 Shares
IMPATH INC.
Common Stock
($.005 par value)
The 20,000 shares of Common Stock, $.005 par value (the "Common Stock"), of
IMPATH Inc. ("IMPATH" or the "Company") offered hereby may be sold from time to
time by certain security holders of the Company (the "Selling Stockholders").
See "Selling Stockholders." All of such shares are issuable upon the conversion
of currently exercisable warrants held by the Selling Stockholders.
The Company will not receive any proceeds from the sale of the shares offered
hereby by the Selling Stockholders, except that it will receive $348,750 upon
the exercise of the warrants. All expenses incurred in connection with this
offering are being borne by the Company, other than any commissions or discounts
paid or allowed by the Selling Stockholders to underwriters, dealers, brokers or
agents.
The Selling Stockholders have not advised the Company of any specific plans for
the distribution of the shares offered hereby, but it is anticipated that the
shares may be sold from time to time in transactions (which may include block
transactions) on the Nasdaq National Market at the market prices then
prevailing. Sales of the shares offered hereby may also be made through
negotiated transactions or otherwise. The Selling Stockholders and the brokers
and dealers through which the sales of the shares offered hereby may be made may
be deemed to be "underwriters" within the meaning of the Securities Act of 1933,
as amended (the "Securities Act"), and their commissions and discounts and other
compensation may be regarded as underwriters' compensation. See "Plan of
Distribution."
The Common Stock is quoted on the Nasdaq National Market under the symbol
"IMPH."
SEE "RISK FACTORS" ON PAGES 4 TO 8 FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS IN THE COMMON STOCK OFFERED
HEREBY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
March , 1998.
<PAGE>
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), Washington, D.C., a Registration Statement on Form S-3 under the
Securities Act of 1933 (the "Securities Act") with respect to the shares of
Common Stock offered hereby (as amended and supplemented, the "Registration
Statement"). This Prospectus does not contain all of the information set forth
in the Registration Statement and the exhibits thereto. For further information
pertaining to the Company and the shares of Common Stock offered hereby,
reference is made to such Registration Statement, including the exhibits filed
therewith. All of these documents may be inspected without charge at the Public
Reference Section of the principal office of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at the
Commission's regional offices located at Seven World Trade Center, Suite 1300,
New York, New York 10048 and Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661, and copies may be obtained by mail
from the Public Reference Section of the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549 at prescribed rates. The
Commission also maintains a Web site at http://www.sec.gov that contains the
Registration Statement and the exhibits thereto. The statements contained in
this Prospectus concerning any contract or document are not necessarily
complete; where such contract or other document is an exhibit to the
Registration Statement, each such statement is qualified in all respects by the
provisions of such exhibit.
----------
The Company furnishes its stockholders with annual reports containing
financial statements audited by independent accountants for each fiscal year and
quarterly reports for the first three fiscal quarters of each year containing
unaudited summary financial information.
----------
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports, proxy and information statements and other information with the
Commission. Such reports, proxy and information statements and other information
can be inspected and copied at the Public Reference Section of the principal
office of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at the Commission's regional offices at Seven World
Trade Center, Suite 1300, New York, New York 10048 and Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and copies
of such materials may be obtained from the Public Reference Section of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission also maintains a Web site at http://www.sec.gov
that contains reports, proxy and information statements and other information
regarding the Company. The Common Stock of the Company is traded on the Nasdaq
National Market and, in accordance therewith, the Company files reports, proxy
statements and other information with The Nasdaq Stock Market, Inc.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1997 and the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, as amended, all of which have been filed by
the Company with the Commission, are incorporated by reference in this
Prospectus.
In addition, all documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Common Stock hereunder shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of such documents. Any statement contained in any document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so
2
<PAGE>
modified or superseded shall not be deemed, except as modified or superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus is delivered, upon the written or oral request of
any such person, a copy of any of the above documents. Such requests should be
addressed to the Director of Investor Relations, IMPATH Inc., 521 West 57th
Street, New York, New York 10019 (Telephone: 212-698-0300).
THE COMPANY
The Company is a Delaware corporation with executive offices at 521 West
57th Street, New York, New York 10019, and its telephone number at that address
is 212-698-0300.
3
<PAGE>
RISK FACTORS
Prospective investors in the shares of Common Stock offered hereby should
consider carefully the following risk factors, in addition to the other
information contained, or incorporated by reference, in this Prospectus. This
Prospectus contains forward-looking statements which involve risks and
uncertainties. The Company's actual results may differ significantly from the
results discussed in the forward-looking statements. Factors that might cause
such a difference include, but are not limited to, those discussed in "Risk
Factors", as well as those discussed elsewhere or incorporated by reference in
this Prospectus. Readers are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date hereof. The Company
undertakes no obligation to release publicly the results of any revisions to
these forward-looking statements which may be made to reflect events or
circumstances after the date hereof or to reflect the occurrence of
unanticipated events.
RISKS ASSOCIATED WITH MANAGING GROWTH
The Company has experienced significant growth as total revenues have
increased at an average annual growth rate of approximately 50% between 1993 and
1997. The Company's continued growth of case volume, addition of new
technologies and expansion into the outpatient market have placed and may
continue to place significant demands on the Company's technical services,
support operations, sales and administrative personnel and other resources. To
manage this growth effectively, the Company will be required to continue to
improve its operational, financial and management information systems,
procedures and controls, and to hire and train new executive, scientific and
other personnel without adversely affecting the quality of the Company's
services. There can be no assurance that the Company will be able to continue to
manage its growth successfully, and any failure to do so could have a material
adverse effect on the Company's business and financial performance. There also
can be no assurance that the Company will be able to maintain its historical
rate of growth.
RISKS ASSOCIATED WITH ACQUISITION STRATEGY
The Company's objective is to become the leading provider of a broad
range of cancer management information services, including diagnostic and
prognostic analyses. To date, the Company's business has consisted primarily of
providing patient-specific diagnostic and prognostic information based upon the
testing of tissue specimens and the customized analysis of test results. The
Company intends to pursue strategic acquisitions if such acquisitions further
aspects of the Company's strategic objective outlined above. To the extent that
the Company's strategy is dependent upon acquisitions, there can be no assurance
that suitable acquisition candidates will be identified by the Company in the
future, that, if required, suitable financing for any such acquisitions can be
obtained by the Company, or that any such acquisitions will occur. If the
Company successfully completes a strategic acquisition or acquisitions, the
financial performance of the Company will be subject to various risks associated
with the acquisition of businesses. In addition, if the businesses acquired
operate outside of the United States, such operations would be subject to the
risks normally associated with foreign operations, including, but not limited
to, currency fluctuations and the modification or introduction of governmental
policies with potentially adverse effects. There can be no assurance that such
acquisitions will not have an adverse effect on the business operations or
profitability of the Company.
DEPENDENCE ON KEY MANAGEMENT AND QUALIFIED PERSONNEL
The Company is dependent upon the efforts of its executive officers,
key employees and medical professionals. The loss of the services of one or more
members of its senior management or one or more medical professionals could
impede the achievement of the Company's development objectives. In addition, the
Company's growth strategy will require additional skill and expertise, the
addition of new management personnel and the development of additional expertise
by existing management personnel. The loss of, or
4
<PAGE>
failure to recruit, scientific, technical and managerial personnel could have a
material adverse effect on the Company.
REIMBURSEMENT
The Company typically bills third-party payors, such as private
insurance plans, managed care plans and governmental programs (i.e., Medicare),
as well as hospitals, for its services. Although these third-party payors
currently generate higher reimbursement rates per case, they are increasingly
negotiating prices with the goal of lowering unit reimbursement rates. The
Company expects these pricing pressures to cause reduced pricing on average for
tests in future periods.
In 1995, 1996 and 1997, approximately 24%, 25% and 25%, respectively,
of the Company's net revenues for diagnostic and prognostic services were
derived from analyses performed for beneficiaries under the Medicare program.
The Company accepts Medicare reimbursement as payment in full for its services,
subject to applicable co-payments and deductibles. Medicare may retroactively
audit and review its payments to the Company, and may determine that certain
payments for services must be returned. Significant disapprovals of payment for
any of the Company's services by various carriers, including Medicare, private
insurance and managed care, reductions or delays in the establishment of
reimbursement rates, and carrier limitations on the coverage of the Company's
services could have a material adverse effect on the Company's future revenues.
The services furnished by the Company are characterized for the purposes of the
Medicare program as physician pathology services.
Any future changes in government and other third-party payor
reimbursement which may come about as a result of enactment of health care
reform or of deficit-reduction legislation will also be likely to continue the
downward pressure on prices, and make the market for cancer analytical services
more competitive. Because of the uncertainties about the nature, content and
timing of any reform initiative, the Company is currently unable to predict the
ultimate impact thereof on the Company.
GOVERNMENT REGULATION
As a provider of health-care-related services, the Company is subject
to extensive and frequently changing federal, state and local regulations
governing licensure, billing, financial relationships, referrals, conduct of
operations, purchases of existing businesses, cost-containment, direct
employment of licensed professionals by business corporations and other aspects
of the Company's business relationships. Federal and state certification and
licensure programs establish standards for the day-to-day operation of
facilities such as the Company's. Compliance with such standards is verified by
periodic inspections and requires participation in proficiency testing programs.
No assurances can be given that the Company's facilities will pass all future
inspections conducted to ensure compliance with federal or any other applicable
licensure or certification laws.
Existing federal laws governing federal health care programs, including
Medicare, as well as some state laws, regulate certain aspects of the
relationship between health care providers, including the Company, and their
referral sources, including physicians, hospitals and other facilities. The
Social Security Act, and the anti-kickback and self-referral rules thereunder,
prohibit providers and others from soliciting, offering, receiving or paying,
directly or indirectly, any remuneration in return for either making a referral
for a service or item which is covered under any federal health care program
(including Medicare), or ordering any such covered service or item and prohibit
physicians, subject to certain exceptions, from making such referrals to certain
entities in which they have an investment interest or with which they have a
compensation arrangement. Violation of these prohibitions is punishable by
disallowance of submitted claims, civil monetary and criminal penalties and
exclusion from the Medicare and other federally financed programs.
5
<PAGE>
The laws of many states prohibit physicians from sharing professional
fees with non-physicians and prohibit non-physician entities, such as the
Company, from practicing medicine (including pathology) and from employing
physicians to practice medicine (including pathology). The Company believes its
current and planned activities do not constitute fee-splitting or violate any
prohibition against the corporate practice of medicine. However, there can be no
assurance that future interpretations of such laws will not require structural
or organizational modifications of the Company's existing business.
COMPETITION
The Company provides services in a segment of the health care industry
that is highly fragmented and extremely competitive. The Company's actual or
potential competitors include large university or teaching hospitals; large
clinical laboratories that have substantially greater financial, marketing,
logistical and laboratory resources than the Company; special purpose
laboratories that have limited test offerings and a highly focused product and
marketing strategy; and the Company's customers or potential customers who may
choose to perform services similar to those performed by the Company. It is
anticipated that competition will continue to increase due to such factors as
the perceived potential for commercial applications of biotechnology and the
continued availability of investment capital and government funding for
cancer-related research. There can be no assurance that competition in existing
or new markets will not have a material adverse effect on the Company's
operating results. Changes in the regulatory environment in which the Company
operates could also affect the basis for competition and could thereby have a
material adverse effect on the Company's operating results.
ACCESS TO NEW TECHNOLOGIES; LACK OF PROPRIETARY TECHNOLOGY
To date, the Company has not engaged in the development or patenting of
its own technologies for use in the analytical services it provides, and access
to new technologies developed by third parties has been an important element in
the Company's current business as well as the Company's long-term strategy. If
the Company's access to critical technologies were substantially diminished, the
Company's business could be adversely affected.
In addition, the Company currently relies on certain technologies which
are not patentable or proprietary and are therefore available to the Company's
competitors. Furthermore, the Company relies on certain proprietary trade
secrets and know-how, which are not patentable. Although the Company has taken
steps to protect its unpatented trade secrets and know-how, principally through
the use of confidentiality agreements with its employees, there can be no
assurance that these agreements will not be breached, that the Company would
have adequate remedies for any breach or that the Company's trade secrets will
not otherwise become known or be independently developed or discovered by
competitors. If the Company's trade secrets become known or are independently
developed or discovered by competitors, it could have a material adverse effect
on the Company.
RISKS ASSOCIATED WITH DEVELOPMENT OF DATABASE
The confidentiality of patient medical records is subject to
substantial regulation by the state and federal governments. State and federal
laws and regulations govern both the disclosure and the use of confidential
patient medical record information. Legislation governing the dissemination and
use of medical record information is continually being proposed at both the
state and federal levels. For example, the Health Insurance Portability and
Accountability Act of 1996 requires the U.S. Secretary of Health and Human
Services to recommend legislation or to promulgate regulations governing privacy
standards for individually identifiable health information. Additional
legislation may require that holders or users of confidential patient medical
information implement measures to maintain the security of such information and
may regulate the dissemination of even anonymous patient information. Physicians
and other persons providing patient information to the Company are also required
to comply with these laws and regulations. If a patient's privacy is violated,
or if the Company is found to have violated any state or federal statute or
6
<PAGE>
regulation with regard to the confidentiality, dissemination or use of patient
medical information, the Company could be liable for damages, or for fines or
penalties. The Company believes that it is in material compliance with all
applicable state and federal laws and regulations governing the confidentiality,
dissemination and use of medical record information. However, there can be no
assurance that differing interpretations of existing laws and regulations or the
adoption of new laws and regulations would not have a material adverse effect on
the ability of the Company to obtain or use patient information which, in turn,
could have a material adverse effect on the Company's plans to develop and
market its cancer information database. The Company intends to continue to
monitor and review the interpretation and enactment of laws and regulations
which impact the Company's plans to develop and market its cancer information
database. In addition, the American Medical Association (the "AMA") has issued a
Current Opinion to the effect that a physician who does not obtain a patient's
consent to the disclosure of the patient's medical record information violates
the AMA's ethical standards. While the AMA's Current Opinions are not law, they
may influence the willingness of physicians to obtain patient consents or to
disclose patient medical information to the Company and thus could have a
material adverse effect on the Company's plans to develop and market its cancer
information database.
RISKS ASSOCIATED WITH ESTABLISHING JOINT VENTURES
The Company plans to pursue strategic partnerships and joint ventures
with oncology networks, hospital groups, managed care companies and
biopharmaceutical and large pharmaceutical companies, primarily for the purposes
of expanding IMPATH's diagnostic and prognostic database, participating in the
development of new cancer therapies and demonstrating to the medical community
the importance of the services provided by IMPATH. There can be no assurance
that the Company will be able to negotiate acceptable partnership or joint
venture arrangements or that such arrangements will be successful or that
potential partners will not pursue alternative means of developing treatments
for cancer. No assurance can be given that the Company's joint venture partners
will be able to obtain regulatory approval for any new treatments, that any such
new treatments if so approved will be commercialized successfully or that the
Company will realize any revenues in connection with such arrangements. Although
the Company believes that other parties to joint ventures generally have an
economic motivation to perform their contractual responsibilities, their
devotion of resources to such activities will not be within the control of the
Company. Depending on the Company's obligations in such joint ventures, the
termination or cancellation of such arrangements could also adversely affect the
Company's financial condition and results of operations. In addition, if such
joint ventures operate outside of the United States or if the Company enters
into a joint venture with a foreign partner, the joint venture's operations
could be subject to the risks associated with foreign operations, including, but
not limited to, currency fluctuations and the modification or introduction of
governmental policies with potentially adverse effects.
RISK OF LIABILITY; ADEQUACY OF INSURANCE COVERAGE
The marketing and sale of health care services could expose the Company
to the risk of certain types of litigation, including medical malpractice.
Damages assessed in connection with, and the costs of defending, any legal
action could be substantial. Although the Company is presently covered by
general liability insurance in the amount of $6.0 million per occurrence and
$7.0 million in the aggregate and has obtained professional liability insurance
in the amount of $6.0 million per occurrence and $8.0 million in the aggregate
for the Company's Medical Directors and other physicians, there can be no
assurance that insurance coverage will provide sufficient funds to satisfy any
judgments which, in the future, may be entered against the Company or that
liability insurance in such amounts will be available or affordable in the
future. In addition, there can be no assurance that all of the activities
encompassed within the Company's business are covered under the Company's
policies. The Company's liability insurance covers claims relating to the
handling and disposal of medical specimens and infectious and hazardous waste,
except in the event of malfeasance or fraud by the Company. Furthermore, there
can be no assurance that the Company will have other resources sufficient to
satisfy any liability or litigation expenses that may result from any uninsured
or underinsured claims. Moreover, although the Company maintains personal
property
7
<PAGE>
and business interruption insurance and has taken what it believes to be
adequate safeguards, the catastrophic loss of the Company's tissue library could
have a material adverse effect on the continued development of its database in a
manner which would not be fully compensated by insurance.
ANTI-TAKEOVER MEASURES
The Company's certificate of incorporation authorizes the Company to
issue preferred stock, the terms of which may be fixed by the Board of
Directors. No shares of preferred stock are currently outstanding. Such
provisions could have the effect of delaying, deferring or preventing a change
of control of the Company.
POSSIBLE VOLATILITY OF STOCK PRICE
There has been a history of significant volatility in the market prices
for shares of companies engaged in the health care and biotechnology fields, and
it may be expected that the market price of the shares of Common Stock offered
hereby may be highly volatile. Factors such as fluctuations in the Company's
quarterly revenues and operating results, announcements of technological
innovations or new analytical services by the Company or its competitors, and
changes in third-party reimbursement and governmental regulation may have a
significant effect on the market price of the Common Stock.
DIVIDENDS
The Company does not currently pay dividends on its Common Stock and
does not anticipate paying any dividends in the foreseeable future. It is
anticipated that the terms of any future debt financings may restrict the
payment of dividends.
8
<PAGE>
SELLING SECURITYHOLDERS
THE FOLLOWING TABLE SETS FORTH CERTAIN INFORMATION AS OF
JANUARY 31, 1998 (AND AS ADJUSTED TO REFLECT THE SALE OF ALL OF THE SHARES OF
COMMON STOCK OFFERED HEREBY BY THE SELLING STOCKHOLDERS) WITH RESPECT TO THE
BENEFICIAL OWNERSHIP OF THE COMMON STOCK BY THE SELLING STOCKHOLDERS. ALL OF
SUCH SHARES OF COMMON STOCK ARE OWNED WITH SOLE VOTING AND INVESTMENT POWER.
<TABLE>
<CAPTION>
Beneficial Ownership Beneficial Ownership
Prior to Offering(1) After Offering(1)(2)
------------------------------------- Number of --------------------------
Percentage of Shares of Percentage of
Title of Number of Shares of Class Common Stock Number of Shares of Class
Name Class Shares Outstanding(1) to be Sold Shares Outstanding(1)
- ----------------- ------------ -------------- ------------------ ------------ ----------- --------------
<S> <C> <C> <C> <C> <C> <C>
Michael Abels and Common Stock 20,000(3) * 20,000 0 *
Jackeline Abels
</TABLE>
- ------------------
* Less than one percent.
(1) Includes any shares that the named person is entitled to receive
within 60 days through the exercise of any option, warrant, conversion
right or similar arrangement.
(2) Assumes the sale of all shares of Common Stock offered hereby.
(3) Consists of 20,000 shares which the named persons are is entitled
jointly to receive through the exercise of currently exercisable
warrants.
9
<PAGE>
PLAN OF DISTRIBUTION
The shares offered hereby may be offered and sold from time to time by
the Selling Stockholders, or by pledgees, donees, transferees or other
successors in interest. Such offers and sales may be made from time to time
through the Nasdaq National Market or otherwise, at prices and on terms then
prevailing or at prices related to the then-current market price, or in
negotiated transactions. The methods by which the shares may be sold may
include, but are not limited to, the following: (a) a block trade in which the
broker or dealer so engaged will attempt to sell the shares as agent but may
position and resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker or dealer as principal and resale by such
broker or dealer for its account; (c) an exchange distribution in accordance
with the rules of such exchange; (d) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; (e) privately negotiated
transactions; (f) short sales; and (g) a combination of any such methods of
sale. In effecting sales, brokers or dealers engaged by the Selling Stockholders
may receive commissions or discounts from the Selling Stockholders or from the
purchasers in amounts to be negotiated immediately prior to the sale. The
Selling Stockholders may also sell shares in accordance with Rule 144 under the
Securities Act.
The Selling Stockholders and any brokers and dealers participating in
such sales may be deemed to be "underwriters" within the meaning of the
Securities Act. There can be no assurance that the Selling Stockholders will
sell any or all of the shares offered hereby.
The Company is bearing all of the costs relating to the registration of
the shares, except commissions, discounts or other fees payable to a broker,
dealer, underwriter, agent or market maker in connection with the sale of any of
the shares, all of which will be borne by the Selling Stockholders. The Company
will not receive any of the proceeds from the Offering, except that it will
receive $348,750 upon the exercise of the warrants.
Pursuant to the registration rights granted to the Selling
Stockholders, the Company has agreed to indemnify the Selling Stockholders and
any person who controls a Selling Stockholder against certain liabilities and
expenses arising out of or based upon the information set forth or incorporated
by reference in this Prospectus, and the Registration Statement of which this
Prospectus is a part, including liabilities under the Securities Act. Any
commissions paid or any discounts or concessions allowed to any broker, dealer,
underwriter, agent or market maker and, if any such broker, dealer, underwriter,
agent or market maker purchases any of the shares as principal, any profits
received on the resale of such shares, may be deemed to be underwriting
commissions or discounts under the Securities Act.
LEGAL MATTERS
The validity of the securities being offered hereby is being
passed upon for the Company by Haythe & Curley, 237 Park Avenue, New York, New
York 10017.
EXPERTS
The consolidated financial statements of IMPATH Inc. as of
December 31, 1996 and 1997, and for each of the years in the three-year period
ended December 31, 1997, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
10
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are the estimated expenses in connection with the
distribution of the securities being registered hereunder.
S.E.C. registration fee*............... $ 202
Accounting fees and expenses........... 2,000
Legal fees and expenses................ 2,500
Miscellaneous expenses................. 1,298
-------
Total................. $ 6,000
=======
- ----------------
* Actual fee
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Five, Section 7 of the Certificate of Incorporation (the
"Certificate") provides that, to the fullest extent permitted by Section 145 of
the Delaware General Corporation Law (the "Delaware Law"), or any comparable
successor law, as the same may be amended and supplemented from time to time,
the Company (i) may indemnify all persons whom it shall have power to indemnify
under the Delaware Law from and against any and all of the expenses, liabilities
or other matters referred to in or covered thereby, (ii) shall indemnify each
such person if he is or is threatened to be made a party to an action, suit or
proceeding by reason of the fact that he is or was a director, officer, employee
or agent of the Company or because he was serving the Company or any other legal
entity in any capacity at the request of the Company while a director, officer,
employee or agent of the Company and (iii) shall pay the expenses of such a
current or former director, officer, employee or agent incurred in connection
with any such action, suit or proceeding in advance of the final disposition of
such action, suit or proceeding. The Certificate further provides that the
indemnification and advancement of expenses provided for therein shall not be
deemed exclusive of any other rights to which those entitled to indemnification
or advancement of expenses may be entitled under any by-law, agreement, contract
or vote of stockholders or disinterested directors or pursuant to the direction
(however embodied) of any court of competent jurisdiction or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
The Company has entered into indemnification agreements with all
directors and executive officers of the Company. These agreements provide that
the directors and executive officers will be indemnified to the fullest possible
extent permitted by Delaware law against all expenses (including attorneys'
fees), judgments, fines, penalties, taxes and settlement amounts paid or
incurred by them in any action or proceeding, including any action by or in the
right of the Company or any of its subsidiaries or affiliates, on account of
their service as directors, officers, employees, fiduciaries or agents of the
Company or any of its subsidiaries or affiliates, and their service at the
request of the Company or any of its subsidiaries or affiliates as directors,
officers, employees, fiduciaries or agents of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise.
II-1
<PAGE>
The Company maintains liability insurance for its officers and
directors, insuring them against certain losses arising from claims or charges
made against them while acting in their capacities as officers or directors of
the Company.
Article Five, Section 6 of the Certificate provides that a director of
the Company shall not be personally liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for the unlawful
payment of dividends or unlawful stock purchases under Section 174 of the
Delaware Law, or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware Law is amended to eliminate further
or limit the personal liability of directors, then the liability of a director
of the Company shall be eliminated or limited to the fullest extent permitted by
the Delaware Law, as so amended. Any repeal or modification of such provision of
the Certificate by the stockholders of the Company shall be prospective only and
shall not adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.
While the Certificate provides directors with protection from awards
for monetary damages for breaches of their duty of care, it does not eliminate
such duty. Accordingly, the Certificate will have no effect on the availability
of equitable remedies such as an injunction or rescission based on a director's
breach of his or her duty of care. The provisions of the Certificate described
above apply to an officer of the Company only if he or she is a director of the
Company and is acting in his or her capacity as director, and do not apply to
officers of the Company who are not directors.
ITEM 16. EXHIBITS.
The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes, except as otherwise
specifically provided in the rules of the Securities and Exchange Commission
promulgated under the Securities Act of 1933:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if this Registration
Statement is on Form S-3 or Form S-8 and the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
II-2
<PAGE>
(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 Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 (the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions of its Certificate of
Incorporation or By-laws or the laws of the State of Delaware, 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.
II-3
<PAGE>
POWER OF ATTORNEY
The registrant and each person whose signature appears below hereby
appoints each of Anu D. Saad, Ph.D. and John P. Gandolfo as attorney-in-fact
with full power of substitution, severally, to execute in the name and on behalf
of the registrant and each such person, individually, and in each capacity
stated below, one or more amendments (including post-effective amendments) to
this Registration Statement (or any other Registration Statement for the same
offering that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933) as the attorney-in-fact acting in the premises deems
appropriate and to file the same with the Securities and Exchange Commission.
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 11th day of
March, 1998.
IMPATH INC.
By /s/ Anu D. Saad
---------------------------------------------
Anu D. Saad, Ph.D.
President and Chief Executive Officer
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 dates indicated.
Signature Title Date
--------- ----- ----
/s/ Anu D. Saad President, Chief Executive March 11, 1998
---------------------- Officer and Director
Anu D. Saad, Ph.D.
/s/ John P. Gandolfo Executive Vice President, March 11, 1998
- ----------------------- Chief Operating Officer,
John P. Gandolfo Chief Financial Officer and
Principal Accounting Officer
/s/ John L. Cassis Chairman of the Board and March 11, 1998
-------------------
John L. Cassis Director
/s/ Richard J. Cote, M.D. Director March 11, 1998
- ------------------------
Richard J. Cote, M.D.
/s/ Richard Kessler Director March 11, 1998
- ------------------------
Richard Kessler
II-4
<PAGE>
Signature Title Date
--------- ----- ----
- ------------------------- Director ________ __, 1998
Joseph A. Mollica, Ph.D.
/s/Marcel Rozencweig, M.D. Director March 11, 1998
- --------------------------
Marcel Rozencweig, M.D.
- -------------------------- Director ________ __, 1998
David B. Snow, Jr.
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit Sequential
Number Document Description Page No.
-------------------- ----------
4 Warrant Certificate of IMPATH Inc. dated as of
February 14, 1997..................................
5 Opinion of Haythe & Curley...........................
23.1 Consent of KPMG Peat Marwick LLP.....................
23.2 Consent of Haythe & Curley (contained in Exhibit 5)
24 Power of Attorney (See signature page)
<PAGE>
Exhibit 4
THIS WARRANT CERTIFICATE AND THE WARRANTS EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
BUT HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION AND MAY NOT
BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNTIL
EITHER (i) THE HOLDER THEREOF SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT REGISTRATION THEREOF UNDER THE
SECURITIES ACT IS NOT REQUIRED OR (ii) A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT WITH RESPECT THERETO SHALL HAVE BECOME EFFECTIVE.
No. W97-1 20,000 Warrants
WARRANT CERTIFICATE
Warrants to subscribe for and purchase shares
of Common Stock, par value $.005, of
IMPATH INC.
THIS CERTIFIES that, for value received, MICHAEL A. ABELS,
M.D. and JACKELINE ABELS, as joint tenants with rights of survivorship, are the
owner and registered holder of the number of warrants (the "Warrants") set forth
above, each of which entitles the owner thereof to purchase from IMPATH INC., a
Delaware corporation (herein called the "Company"), one share of Common Stock,
par value $.005, of the Company (individually, a "Common Share" and
collectively, the "Common Shares"), at an exercise price of $17.4375 per share,
subject to adjustment from time to time pursuant to the provisions of Section 2
(such price, as last adjusted, being hereinafter called the "Exercise Price").
The Warrants shall become exercisable as to 556 Common Shares beginning March
14, 1997, shall become exercisable as to an additional 556 Common Shares on the
14th day of each succeeding month to and including January 14, 2000, and shall
become exercisable as to the balance of the Common Shares on February 14, 2000.
The Warrants shall not be exercisable after 5:00 p.m. (New York Time) on
February 14, 2007. For purposes of this Warrant Certificate, the term "Common
Shares" shall mean the class of capital stock of the Company designated common
stock, par value $.005, as constituted on the date hereof, and any other class
of capital stock of the Company resulting from successive changes or
reclassifications of the Common Shares.
<PAGE>
1. Exercise of Warrants. The Warrants evidenced hereby may be
--------------------
exercised by the registered holder hereof, in whole or in part, by the surrender
of this Warrant Certificate, duly endorsed (unless endorsement is waived by the
Company), at the principal office of the Company (or at such other office or
agency of the Company as it may designate by notice in writing to the registered
holder hereof at such holder's last address appearing on the books of the
Company) and upon payment to the Company of the Exercise Price of the Common
Shares purchased by certified or official bank check or checks payable to the
order of the Company. The Company agrees that the Common Shares so purchased
shall be deemed to be issued to the registered holder hereof on the date on
which this Warrant Certificate shall have been surrendered and payment made for
such Common Shares as aforesaid; provided, however, that no such surrender and
payment on any date when the stock transfer books of the Company shall be closed
shall be effective to constitute the person entitled to receive such Common
Shares as the record holder thereof on such date, but such surrender and payment
shall be effective to constitute the person entitled to receive such Common
Shares as the record holder thereof for all purposes immediately after the
opening of business on the next succeeding day on which such stock transfer
books are open. The certificate(s) for such Common Shares shall be delivered to
the registered holder hereof within a reasonable time, not exceeding ten days,
after Warrants evidenced hereby shall have been so exercised and a new Warrant
Certificate evidencing the number of Warrants, if any, remaining unexercised
shall also be issued to the registered holder within such time unless such
Warrants shall have expired. No fractional Common Shares of the Company, or
scrips for any such fractional shares, shall be issued upon the exercise of any
Warrants.
2. Adjustment in Exercise Price and Number of Shares. The
----------------------------------------------------
Board of Directors of the Company shall make such adjustments, if any, as it
deems appropriate in the number of Common Shares issuable upon exercise of the
Warrants or in the Exercise Price, or both, as the Board of Directors shall
determine in good faith is appropriate in the event of any stock split, stock
dividend, recapitalization, merger, consolidation, reorganization, combination
or exchange of shares or other similar event affecting the corporate structure
of the Company or the Common Shares occurring after the date hereof.
3. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to and covenants with the registered holder hereof as
follows:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of Delaware, is duly
qualified and in good standing under the laws of any foreign jurisdiction where
the failure to be so qualified would
<PAGE>
have a material adverse effect on its ability to perform its obligations under
the Warrants evidenced by this Warrant Certificate and has full corporate power
and authority to issue the Warrants and to carry out the provisions of the
Warrants evidenced by this Warrant Certificate.
(b) The issuance, execution and delivery of this
Warrant Certificate has been duly authorized by all necessary corporate action
on the part of the Company and each of the Warrants evidenced by this Warrant
Certificate constitutes the valid and legally binding obligation of the Company,
enforceable against it in accordance with the terms hereof, except as such
enforceability may be limited by bankruptcy, insolvency or other laws affecting
generally the enforceability of creditors' rights, by general principles of
equity and by limitations on the availability of equitable remedies.
(c) Neither the execution and delivery of the
Warrants evidenced by this Warrant Certificate by the Company, nor compliance by
the Company with the provisions hereof, violates any provision of its
Certificate of Incorporation or By-Laws, as amended, or any law, statute,
ordinance, regulation, order, judgment or decree of any court or governmental
agency, or conflicts with or will result in any breach of the terms of or
constitute a default under or result in the termination of or the creation of
any lien pursuant to the terms of any agreement or instrument to which the
Company is a party or by which it or any of its properties is bound.
4. Company to Provide Stock. The Company covenants and agrees
------------------------
that all shares of capital stock of the Company which may be issued upon the
exercise of the Warrants evidenced hereby will be duly authorized, validly
issued and fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof to the registered holder hereof. The
Company further covenants and agrees that during the period within which the
Warrants evidenced hereby may be exercised, the Company will at all times
reserve such number of shares of its capital stock as shall be sufficient to
permit the exercise in full of the Warrants evidenced hereby.
5. Registered Holder. The registered holder of this Warrant
------------------
Certificate shall be deemed the owner hereof and of the Warrants evidenced
hereby for all purposes. The registered holder of this Warrant Certificate shall
not be entitled by virtue of ownership of this Warrant Certificate to any rights
whatsoever as a shareholder of the Company.
6. Transfer. This Warrant Certificate and the Warrants
--------
evidenced hereby may not be sold, transferred, pledged, hypothecated or
otherwise disposed of unless, in the opinion of
<PAGE>
counsel reasonably satisfactory to the Company, such transfer would not result
in a violation of the provisions of the United States Securities Act of 1933
(the "Securities Act"). Any transfer of this Warrant Certificate and the
Warrants evidenced hereby, in whole or in part, shall be effected upon surrender
of this Warrant Certificate, duly endorsed (unless endorsement is waived by the
Company), at the principal office or agency of the Company referred to in
Section 1. If all of the Warrants evidenced hereby are being sold, transferred,
pledged, hypothecated or otherwise disposed of, the Company shall issue a new
Warrant Certificate registered in the name of the appropriate transferee(s). If
less than all of the Warrants evidenced hereby are being sold, transferred,
pledged, hypothecated or otherwise disposed of, the Company shall issue new
Warrant Certificates, in each case in the appropriate number of Warrants,
registered in the name of the registered holder hereof and the transferee(s), as
applicable. Any Common Shares of the Company issued upon any exercise hereof may
not be sold, transferred, pledged, hypothecated or otherwise disposed of unless,
in the opinion of counsel reasonably satisfactory to the Company, such transfer
would not result in a violation of the Securities Act. Each taker and holder of
this Warrant Certificate, the Warrants evidenced hereby and any shares of
capital stock of the Company issued upon exercise of any such Warrants, by
taking or holding the same, consents to and agrees to be bound by the provisions
of this Section 6.
7. Expiration. This Warrant Certificate, in all events, shall
----------
be wholly void and have no effect after 5:00 P.M.
(New York Time) on February 14, 2007.
8. Severability. In the event that one or more of the
------------
provisions of this Warrant Certificate shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Warrant
Certificate, but this Warrant Certificate shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
9. Governing Law. This Warrant Certificate shall be governed
-------------
by and construed in accordance with the laws of the State of Delaware applicable
to agreements made and to be entirely performed within such State.
<PAGE>
IN WITNESS WHEREOF, IMPATH INC. has caused this Warrant
Certificate to be signed by a duly authorized officer and this
Warrant Certificate to be dated as of February 14, 1997.
IMPATH INC.
By /s/ John P. Gandolfo
---------------------------------
John P. Gandolfo
Executive Vice President
<PAGE>
FORM OF EXERCISE
----------------
(to be executed by the registered holder hereof)
The undersigned hereby exercises __________ Warrants to subscribe for and
purchase shares of common stock, par value $.005 ("Common Shares"), of IMPATH
INC. evidenced by the within Warrant Certificate and herewith makes payment of
the Exercise Price for the Common Shares. Kindly issue certificates for the
Common Shares in accordance with the instructions given below. The certificate
for the unexercised balance, if any, of the Warrants evidenced by the within
Warrant Certificate will be registered in the name of the undersigned.
Dated:______________________________
_______________________________________________
Signature of Registered Holder
Instructions for registration of shares
_____________________________________
Name (please print)
Social Security or Other Identifying
Number:______________________________
Address:
_____________________________________
Street
_____________________________________
City, State and Zip Code
<PAGE>
Exhibit 5
March 13, 1998
IMPATH Inc.
521 West 57th Street
New York, New York 10019
Dear Sirs:
We have acted as counsel for IMPATH Inc., a Delaware
corporation (the "Company"), in connection with the registration statement on
Form S-3 (the "Registration Statement"), filed by the Company on this date under
the Securities Act of 1933, as amended, with respect to 20,000 shares (the
"Shares") of common stock, $.005 par value per share, of the Company held by the
Selling Stockholders named in the Registration Statement.
In connection with the Registration Statement, we have
examined such records and documents and such questions of law as we have deemed
necessary or appropriate for the purposes of this opinion. On the basis of such
examination, we advise you that in our opinion the Shares have been duly and
validly authorized and issued and are fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us under the caption
"Legal Matters" in the prospectus constituting a part of the Registration
Statement.
Very truly yours,
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
The Board of Directors
IMPATH Inc.:
We consent to the use of our reports incorporated herein by reference.
KPMG Peat Marwick LLP
Short Hills, New Jersey
March 11, 1998
