<PAGE>
As filed with the Securities and Exchange Commission on May 5, 2000.
Subject to amendment.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
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 No.)
----------
521 West 57th Street
New York, New York 10019
(Address of principal executive offices; zip code)
----------
IMPATH INC.
WARRANTS PLAN
(Full titles of the plans)
----------
Anu D. Saad, Ph.D.
President and Chief Executive Officer
521 West 57th Street
New York, New York 10019
(800) 447-8881
(Name, address and telephone number,
including area code, of agent for service)
----------
Copy to:
John J. Butler, Esq.
Torys
237 Park Avenue
New York, New York 10017
----------
Approximate date of proposed sale to the public:
As soon as practicable after the
Registration Statement becomes effective
----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered offering price aggregate offering registration fee
per share(1) price(1)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($.005 par value)......... 136,000 $44.50 $6,052,000 $1,621.94
===================================================================================================================
</TABLE>
(1)Estimated solely for purposes of calculating the registration fee pursuant to
Rule 457(c) on the basis of the average of the high and low prices for the
registrant's shares of Common Stock on May 3, 2000 as reported on the Nasdaq
National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The Registrant hereby states that the documents listed in (a) and (b)
below are incorporated by reference in this Registration Statement and all
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999.
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as amended.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article Five, Section 7 of the Registrant's Certificate of
Incorporation (the "Certificate") provides that, to the fullest extent permitted
by Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law"), or any comparable successor law, as the same may be amended and
supplemented from time to time, the Registrant (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 Registrant or because
he was serving the Registrant or any other legal entity in any capacity at the
request of the Registrant while a director, officer, employee or agent of the
Registrant 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
<PAGE>
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 Registrant has entered into indemnification agreements with all
directors and executive officers of the Registrant. 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 Registrant or any of its subsidiaries or affiliates, on account
of their service as directors, officers, employees, fiduciaries or agents of the
Registrant or any of its subsidiaries or affiliates, and their service at the
request of the Registrant 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.
The Registrant 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 Registrant.
Article Five, Section 6 of the Certificate provides that a director of the
Registrant shall not be personally liable to the Registrant 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 Registrant
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 Registrant 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 Registrant shall be
prospective only and shall not adversely affect any right or protection of a
director of the Registrant 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 Registrant only if he or she is a director of
the Registrant and is acting in his or her capacity as director, and do not
apply to officers of the Registrant who are not directors.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
3
<PAGE>
Item 8. Exhibits.
--------
The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
Item 9. 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 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the
4
<PAGE>
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
5
<PAGE>
POWER OF ATTORNEY
The Registrant and each person whose signature appears below hereby
appoints each of Anu D. Saad, Ph.D. and Richard P. Adelson as attorneys-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 to this Registration Statement as the attorney-in-
fact acting in the premises deems appropriate and to file any such amendment to
this Registration Statement 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-8 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 and State of New York on the 5th day of May,
2000.
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.
Signature Title Date
- -------------------------- ---------------------------- -----------
/s/Anu D. Saad, Ph.D. President, Chief Executive May 5, 2000
- --------------------------
Anu D. Saad, Ph.D. Officer and Director
/s/Richard P. Adelson Executive Vice President and May 5, 2000
- --------------------------
Richard P. Adelson Chief Operating Officer
/s/David J. Cammarata Executive Vice President, May 5, 2000
- --------------------------
David J. Cammarata Chief Financial Officer and
Principal Accounting Officer
6
<PAGE>
Signature Title Date
- -------------------------- ---------------------------- -----------
/s/John L. Cassis Chairman of the Board May 5, 2000
- --------------------------
John L. Cassis and Director
/s/Richard J. Cote, M.D. Director May 5, 2000
- --------------------------
Richard J. Cote, M.D.
/s/George S. Frazza Director May 5, 2000
- --------------------------
George S. Frazza
/s/David J. Galas, Ph.D. Director May 5, 2000
- --------------------------
David J. Galas, Ph.D.
- --------------------------
Joseph A. Mollica, Ph.D.
/s/Marcel Rozencweig, M.D. Director May 5, 2000
- --------------------------
Marcel Rozencweig, M.D.
7
<PAGE>
CONSENT OF COUNSEL
The consent of Torys is contained in their opinion filed as Exhibit 5
to this Registration Statement.
8
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
IMPATH Inc.
We consent to the use of our report incorporated herein by reference.
KPMG LLP
Short Hills, New Jersey
May 2, 2000
9
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Number Description of Exhibit Page
- -------- --------------------------------------------------------- ---------------
<S> <C> <C>
4(i) - Form of Warrant under the IMPATH Inc. Warrants Plan 11
5 - Opinion of Torys 17
23(i) - Consent of KPMG LLP, Independent Auditors (See "Consent --
of Independent Auditors" in the Registration Statement)
23(ii) - Consent of Torys (contained in Exhibit 5) --
24 - Power of Attorney (see "Power of Attorney" in the --
Registration Statement)
</TABLE>
10
<PAGE>
EXHIBIT 4(i)
IMPATH INC.
Employee Warrant Certificate
----------------------------
Date of Grant:
Name of Employee:
Number of Shares:
Price Per Share:
This is to certify that, effective on the date of grant specified
above, the Board of Directors (the "Board") of IMPATH Inc. (the "Company") has
granted to the above-named employee (the "Employee") a warrant to purchase from
the Company, for the price per share set forth above, the number of shares of
Common Stock, $.005 par value (the "Stock"), of the Company set forth above.
The terms and conditions of the warrant granted hereby are as follows:
1. The price at which each share of Stock subject to this
warrant may be purchased shall be the price set forth above, subject to any
adjustments which may be made pursuant to Section 9 hereof.
2. Subject to the terms and conditions set forth herein, this
warrant shall become exercisable to purchase the shares of Stock covered by this
warrant, on a cumulative basis, in equal monthly increments, each equal to one-
thirty-sixth of the number of shares set forth above, beginning one month after
the date of grant and continuing to and including the thirty-sixth month after
the date of grant. From and after such thirty-sixth month, this warrant
11
<PAGE>
shall be exercisable in full. This warrant shall expire on the tenth anniversary
(the "Expiration Date") of the date of grant and shall not be exercisable
thereafter.
3. Except as provided in Section 7 hereof, this warrant may not
be exercised unless the Employee is in the employ of the Company or one of its
parent or subsidiary corporations (within the meaning of Sections 425(e) and (f)
of the Internal Revenue Code of 1986, as amended, and referred to herein as
"Parent" and "Subsidiary", respectively) at the time of such exercise and shall
have been such an employee continuously since the date of grant of this warrant.
For purposes of this warrant, service as a director, officer or consultant of
the Company or any Parent or Subsidiary corporation shall be considered
employment.
4. Subject to the terms and conditions set forth herein, the
Employee may exercise this warrant at any time or times as to all or any of the
shares of Stock then purchasable in accordance with Section 2 hereof by
delivering to the Company written notice specifying:
(i) the number of whole shares of Stock to be purchased together
with payment in full of the aggregate warrant price of such shares,
provided that this warrant may not be exercised for less than ten (10)
shares of Stock or the number of shares of Stock remaining subject to
warrant, whichever is smaller;
(ii) the name or names in which the stock certificate or
certificates are to be registered;
(iii) the address to which dividends, notices, reports, etc. are
to be sent; and
(iv) the Employee's social security number.
Only one Stock certificate will be issued unless the Employee otherwise requests
in writing. Payment shall be in cash, or by certified or bank cashier's check
payable to the order of the Company, free from all collection charges. If the
Employee so requests, shares of Stock purchased upon exercise of this warrant
may be issued in the name of the Employee or another person. The Employee shall
not be entitled to any rights as a stockholder of the Company in
12
<PAGE>
respect of any shares of Stock covered by this warrant until such shares of
Stock shall have been paid for in full and issued to the Employee.
5. As soon as practicable after the Company receives payment
for shares of Stock covered by this warrant, it shall deliver a certificate or
certificates representing the shares of Stock so purchased to the Employee.
Such certificate shall be registered in the name of the Employee, or in such
other name or names as the Employee shall request.
6. This warrant is personal to the Employee and during the
Employee's lifetime may be exercised only by the Employee or, in the event of
legal disability, his legal representative. This warrant shall not be
transferable other than by will or the laws of descent and distribution.
7. In the event that the Employee's employment as an employee
of the Company or of any Subsidiary or Parent (hereinafter the "Employee's
employment") is terminated prior to the time that this warrant has been fully
exercised, this warrant shall be exercisable, as to any remaining shares of
Stock subject hereto, as follows:
(A) Upon the death of the Employee during the Employee's employment,
this warrant shall become exercisable in full and the person or persons to
whom the Employee's rights with respect to this warrant are transferred by
will or the laws of descent and distribution (collectively, the
"Representative") may, at any time or times prior to the Expiration Date,
purchase any or all of such shares of Stock;
(B) Upon termination of the Employee's employment with the Company (w)
as a result of retirement pursuant to a retirement plan of the Company, any
Subsidiary or Parent, (x) as a result of Disability (as defined in the
Employee's employment agreement dated August 28, 1998; the "Employment
Agreement"), (y) by the Company other than for Cause (as defined in the
Employment Agreement), or (z) by the Employee with Good Reason (as defined
in the Employment Agreement), this warrant shall become exercisable in full
and the Employee or the Representative, as the case may be, may, at any
time or times prior to the Expiration Date, purchase any or all of such
shares of Stock;
(C) Upon termination of the Employee's employment with the Company
under any circumstances not described in paragraphs (A) or (B) above, the
Employee may, prior to the Expiration Date, purchase any or all of the
shares of Stock with respect
13
<PAGE>
to which the Employee was entitled to exercise this warrant immediately
prior to such termination, and the portion of this warrant not so
exercisable will lapse on such date of termination; and
(D) Upon expiration of the respective periods set forth in each of
paragraphs (A) through (C) above, this warrant shall be canceled to the
extent not theretofore canceled or exercised.
Notwithstanding the foregoing, this warrant shall in no event be
exercisable after the Expiration Date specified in Section 2 hereof.
8. This warrant does not confer on the Employee any right to
continue as an employee of the Company or interfere in any way with the right of
the Company to determine the terms of the Employee's employment, subject to the
provisions of the Employment Agreement.
9. In the event that the Board shall determine that any
dividend or other distribution (whether in the form of cash, Stock, other
securities or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase or exchange of Stock or other securities of the Company, issuance of
warrants or other rights to purchase Stock or other securities of the Company,
or other similar corporate transaction or event affects the Stock such that an
adjustment is determined by the Board to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available hereunder, then the Board shall, in such manner as it may deem
equitable, adjust the number of shares of Stock subject to this warrant, the
exercise price hereof, or both.
In connection with any merger or consolidation in which the Company is
not the surviving corporation and which results in the holders of the
outstanding voting securities of the Company (determined immediately prior to
such merger or consolidation) owning less than a
14
<PAGE>
majority of the outstanding voting securities of the surviving corporation
(determined immediately following such merger or consolidation), or any sale or
transfer by the Company of all or substantially all its assets or any tender
offer or exchange offer for or the acquisition, directly or indirectly, by any
person or group of all or a majority of the then outstanding voting securities
of the Company, all of the warrants shall become exercisable in full,
notwithstanding any other provision of this Certificate, on and after (i) the
fifteenth day prior to the effective date of such merger, consolidation, sale,
transfer or acquisition or (ii) the date of commencement of such tender offer or
exchange offer, as the case may be.
10. This warrant shall be subject to the requirement that if at
any time the Board of Directors shall determine that the registration, listing
or qualification of the shares of Stock covered hereby upon any securities
exchange or under any federal or state law, or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the granting of this warrant or the purchase of shares of Stock
hereunder, this warrant may not be exercised unless and until such registration,
listing, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board of Directors. The Board may
require that the person exercising this warrant shall make such representations
and agreements and furnish such information as it deems appropriate to assure
compliance with the foregoing or any other applicable legal requirements.
11. It shall be a condition to the obligation of the Company to
issue shares of Stock upon exercise of this warrant, that the Employee (or any
beneficiary or person entitled to exercise such warrant) pay to the Company,
upon its demand, such amount as may be requested by the Company for the purpose
of satisfying any liability to withhold federal, state or local
15
<PAGE>
income or other taxes. If the amount requested is not paid, the Company may
refuse to issue such shares of Stock.
12. All interpretations or determinations of the Board shall be
binding and conclusive upon the Employee and his legal representatives on any
question arising hereunder.
13. All notices hereunder to the Company shall be delivered or
mailed to the following address:
IMPATH Inc.
521 West 57th Street
New York, New York 10019
Attention: Secretary
Such address for the service of notices may be changed at any time provided
notice of such change is furnished in advance to the Employee.
IMPATH INC.
By
_____________________________
16
<PAGE>
Exhibit 5
May 5, 2000
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-8 being
filed by the Company under the Securities Act of 1933, as amended, with respect
to 136,000 shares (the "Shares") of the common stock, $.005 per share par value,
of the Company, which have been or are to be offered by the Company pursuant to
the Company's Warrants Plan (the "Plan").
In connection with such registration statement, we have examined such
records and documents and such questions of law as we have deemed appropriate
for 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, when
issued and paid for in accordance with the terms of the Plan and the warrants
duly granted thereunder, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
aforesaid registration statement.
Very truly yours,
/s/ TORYS
17
