<PAGE>
As filed with the Securities and Exchange Commission on August 31, 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
(800) 447-8881
(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
(800) 447-8881
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.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed maximum 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)......... 275,000 $23.0625 $6,342,187.50 $1,870.95
shares
======================================================================================================================
</TABLE>
(1) Computed in accordance with Rule 457(c) under the Securities Act of 1933
based upon the average of the high and low prices for the registrant's
shares of Common Stock ($.005 par value) as reported on the Nasdaq National
Market on August 27, 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>
Subject to Completion, dated August 31, 1998
Prospectus
275,000 Shares
IMPATH INC.
COMMON STOCK
($.005 par value)
The 275,000 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 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.
The date of this Prospectus is [ ], 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 Quarterly Reports on Form 10-Q for the quarters ended March 31,
1998 and June 30, 1998 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 modified or
superseded shall not be deemed, except as modified or superseded, to constitute
a part of this Prospectus.
2
<PAGE>
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 failure to recruit,
scientific, technical and managerial personnel could have a material adverse
effect on the Company.
4
<PAGE>
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.
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
5
<PAGE>
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 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.
6
<PAGE>
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 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.
7
<PAGE>
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 August 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>
Beneficial Ownership
Prior to Offering(1)
-------------------------------------
Percentage of Number of Shares
Title of Shares of Class of Common Stock to
Name Class Number of Shares Outstanding(1) be Sold
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
William Weiss Common Stock 315,000 4.0% 137,500
Sabetay Sides Common Stock 204,029 2.6% 91,667
William Weiss Qualified
Five-Year Annuity Trust Common Stock 46,092 0.6% 23,222
William Weiss Qualified
Ten-Year Annuity Trust Common Stock 44,879 0.6% 22,611
<CAPTION>
Beneficial Ownership
After Offering(1)(2)
---------------------------------------
Percentage of Shares
Number of of Class
Name Shares Outstanding(1)
- -------------------------------------------------------------------------
<S> <C> <C>
William Weiss 177,500 2.2%
Sabetay Sides 112,362 1.5%
William Weiss Qualified
Five-Year Annuity Trust 22,870 0.3%
William Weiss Qualified
Ten-Year Annuity Trust 22,268 0.3%
</TABLE>
__________________
(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.
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.
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.
<TABLE>
<S> <C>
S.E.C. registration fee*...... $1,870.95
Accounting fees and expenses.. 2,000.00
Legal fees and expenses....... 2,500.00
Miscellaneous expenses........ 1,200.00
--------
Total..................... $7,570.95
========
</TABLE>
________________
* 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
(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.
II-2
<PAGE>
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 31st day of
August, 1998.
IMPATH INC.
By /s/ Anu D. Saad, Ph.D.
-----------------------------------
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.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------------------------- ------------------------------ ---------------------------------
<S> <C> <C>
/s/ Anu D. Saad, Ph.D. President, Chief Executive August 31, 1998
- ----------------------------------------------- Officer and Director
Anu D. Saad, Ph.D.
/s/ John P. Gandolfo Executive Vice President, August 31, 1998
- ----------------------------------------------- Chief Operating Officer,
John P. Gandolfo Chief Financial Officer and
Principal Accounting Officer
/s/ John L. Cassis Chairman of the Board and August 31, 1998
- ----------------------------------------------- Director
John L. Cassis
Director August 31, 1998
- -----------------------------------------------
Richard J. Cote, M.D.
/s/ Richard Kessler Director August 31, 1998
- -----------------------------------------------
Richard Kessler
/s/ Joseph A. Mollica, Ph.D. Director August 31, 1998
- -----------------------------------------------
Joseph A. Mollica, Ph.D.
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C> <C>
Director August 31, 1998
- -----------------------------------------------
Marcel Rozencweig, M.D.
/s/ David B. Snow, Jr. Director August 31, 1998
- -----------------------------------------------
David B. Snow, Jr.
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Document Description
- ------- --------------------
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)
II-6
<PAGE>
Exhibit 5
[Letterhead of Haythe & Curley]
August 31, 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 275,000 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 and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/KPMG Peat Marwick LLP
Short Hills, New Jersey
August 31, 1998
