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Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------------------
DIGENE CORPORATION
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(Exact name of issuer as specified in its charter)
Delaware 52-1536128
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9000 Virginia Manor Road
Beltsville, Maryland 20705
- --------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
Digene Diagnostics, Inc. 1990 Stock Option Plan
Digene Diagnostics, Inc. 1991-A Stock Option Plan
Digene Diagnostics, Inc. 1991-B Stock Option Plan
Digene Corporation Omnibus Plan
Digene Corporation Directors' Stock Option Plan
-----------------------------------------------
(Full title of the plans)
Charles M. Fleischman,
Executive Vice President
9000 Virginia Manor Road
Beltsville, Maryland 20705
--------------------------
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(301) 470-6500
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(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
MORRIS CHESTON, JR., ESQUIRE
BALLARD SPAHR ANDREWS & INGERSOLL
1735 MARKET STREET - 51ST FLOOR
PHILADELPHIA, PENNSYLVANIA 19103
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered (1) Share (2) Price (2) Fee
- ----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.01 par value 2,871,853 $ (2) $17,497,181.68 $5,302.18
- ----------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this
Registration Statement shall be deemed to cover an indeterminate
number of additional shares of Common Stock issuable in the event the
number of outstanding shares of the Company is increased by split-up,
reclassification, stock dividend and the like.
(2) In accordance with Securities and Exchange Commission Rule 457(h)(1),
the price shown is based upon (i) 1,645,762 shares offered pursuant to
options outstanding exercisable at the following prices: 267,747
shares at $0.03 per share, 404,106 shares at $1.27 per share, 32,400
shares at $10.285 per share, 891,509 at $9.35 per share, and 50,000
shares at $6.75 per share; and (ii) 1,226,091 shares reserved for
issuance upon exercise of options to be granted in the future, the
proposed offering price of which has been determined based upon the
average of the high and low price per share of Common Stock ($6.50) on
October 23, 1996 as reported by the Nasdaq National Market.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required to be
included in Part I of this Registration Statement will be given or sent to all
persons who were granted options to purchase shares of Common Stock of Digene
Corporation ("Shares") on January 8, 1991 under the Digene Diagnostics, Inc.
1990 Stock Option Plan, the Digene Diagnostics, Inc. 1991-A Stock Option Plan,
and the Digene Diagnostics, Inc., 1991-B Stock Option Plan, and to all persons
who were awarded options to purchase Shares and who are eligible to participate
in the Digene Corporation Omnibus Plan and Digene Corporation Directors' Stock
Option Plan (collectively, the "Plans") pursuant to Rule 428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. - INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934 by Digene
Corporation (the "Company") (File No. 0-28194) are incorporated herein by
reference:
(a) The Annual Report of the Company on Form
10-K for the year ended June 30, 1996; and
(b) The description of the Company's Common Stock
contained in Item 1 of the Company's Registration Statement on Form
8-A dated April 11, 1996.
Each document filed by the Company subsequent to the date
hereof pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing of such document.
Item 4.- DESCRIPTION OF SECURITIES
Not applicable.
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Item 5.- INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6.- INDEMNIFICATION OF DIRECTORS AND OFFICERS
As set forth below, the Company has adopted the provisions of
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") which
eliminate or limit the personal liability of a director to the Company or its
stockholders for monetary damages for breach of fiduciary duty under certain
circumstances. Furthermore, under Section 145 of the DGCL, the Company shall
indemnify each of its directors and officers against expenses (including
reasonable costs, disbursements, and counsel fees) in connection with any
proceeding involving such person by reason of having been an officer or
director of the Company. In addition, the Company has obtained Directors' and
Officers' Liability Insurance in the aggregate amount of $5,000,000 which
insures its officers and directors against certain liabilities such persons may
incur in their capacities as officers or directors of the Company. [should this
mirror Prospectus?]
Articles EIGHTH and NINTH of the Company's Amended and
Restated Certificate of Incorporation provides as follows:
EIGHTH. Except to the extent that the DGCL prohibits the
elimination or limitation of liability of directors for breaches of fiduciary
duty, no director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, notwithstanding any provision of law imposing
such liability. No amendment to or repeal of this provision shall apply to or
have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
NINTH. (a) Each person who was or is a party or is threatened
to be made a party to or is involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be
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indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
actually and reasonably incurred or suffered by such person in connection
therewith, and such indemnification shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that, except as provided in Section (b) of this Article NINTH, the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Article NINTH shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the DGCL requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a director
or officer (and not in any other capacity in which service was or is rendered
by such person while a director or officer, including, without limitation,
service to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Article NINTH or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification
to employees and agents of the Corporation with the same scope and effect as
the foregoing indemnification of directors and officers.
(b) If a claim under Section (a) of this Article NINTH is not
paid in full by the Corporation within thirty days after a written claim has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the Corporation)
that the claimant has not met the standards of conduct which make it
permissible under the DGCL for the Corporation to indemnify the claimant for
the amount claimed, but the burden of providing such defense
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shall be on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or
she has met the applicable standard of conduct set forth in the DGCL, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
(c) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition
conferred in this Article NINTH shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) The Corporation may maintain insurance, at its expense,
to protect itself and any person who is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any such expense, liability or
loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the DGCL.
Item 7.- EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8.- EXHIBITS
4.1**Specimen copy of Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1, Reg. No. 333-2968)
4.2**Digene Diagnostics, Inc. 1990 Stock Option Plan (incorporated
by reference to Exhibit 10.3 to the Company's Registration
Statement on Form S-1, Reg. No. 333-2968)
4.3**Digene Diagnostics, Inc. 1991-A Stock Option Plan (incorporated
by reference to Exhibit 10.4 to the Company's Registration
Statement on Form S-1, Reg. No. 333-2968)
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4.4**Digene Diagnostics, Inc. 1991-B Stock Option Plan
(incorporated by reference to Exhibit 10.5 to the Company's
Registration Statement on Form S-1, Reg. No. 333-2968)
4.5**Digene Corporation Omnibus Plan (incorporated by reference to
Exhibit 10.6 to the Company's Registration Statement on Form
S-1, Reg. No. 333-2968)
4.6**Digene Corporation Directors' Stock Option Plan (incorporated
by reference to Exhibit A to the Company's Schedule 14A
Proxy Statement, as filed with the Securities and Exchange
Commission on September 20, 1996)
5* Opinion of Ballard Spahr Andrews & Ingersoll re: legality
23.1*Consent of Ernst & Young LLP
23.2*Consent of Ballard Spahr Andrews & Ingersoll (included in
Exhibit 5)
24* Power of Attorney (included on signature page)
- ---------------------
* Filed herewith.
** Incorporated by reference.
Item 9.- UNDERTAKINGS
A. Rule 415 Offering
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this registration
statement:
(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 the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing,
any increase or decrease in the volume of securities offered
(if the total dollar value of securities offered would not
exceed
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that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement;
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in the registration statement or any material change
in such information in the registration statement;
Provided, however, that paragraphs (A)(1)(i)
and (A)(1)(ii) do not apply if the 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 the registration
statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from any registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. Filings Incorporating Subsequent Exchange Act Documents By
Reference
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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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C. Incorporated Annual and Quarterly Reports
The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report to security holders that
is incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the prospectus,
to deliver, or cause to be delivered to each person to whom the prospectus is
sent or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
D. Request for Acceleration of Effective Date or Filing of
Registration Statement on Form S-8
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Beltsville, State of Maryland, on October 28,
1996.
DIGENE CORPORATION
By:/s/ Evan Jones
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Evan Jones
President,
Chief Executive Officer
and Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Each person whose signature appears below in so signing also
makes, constitutes and appoints Evan Jones and Charles M. Fleischman, and each
of them, his true and lawful attorney-in-fact, with full power of substitution,
for him in any and all capacities, to execute and cause to be filed with the
Securities and Exchange Commission any and all amendments and post-effective
amendments to this Registration Statement, with exhibits thereto and other
documents in connection therewith, and hereby ratifies and confirms all that
said attorney-in-fact or his substitute or substitutes may do or cause to be
done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/Evan Jones President, Chief October 28, 1996
- ----------------------- Executive Officer
Evan Jones (principal executive
officer) and Chairman
of the Board
/s/Charles M. Fleischman Executive Vice October 28, 1996
- ------------------------ President, Chief
Charles M. Fleischman Operating Officer,
Chief Financial
Officer (principal
financial officer)
and Director
</TABLE>
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<TABLE>
<S> <C> <C>
/s/Joseph P. Slattery Controller (principal October 28, 1996
- ----------------------- accounting officer)
Joseph P. Slattery
/s/ John J. Whitehead Director October 28, 1996
- ------------------------
John J. Whitehead
/s/ Joseph P. Migliara Director October 28, 1996
- ------------------------
Joseph P. Migliara
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
4.1 Specimen copy of Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to the Company's Registration Statement on
Form S-1, Reg. No. 333-2968)
4.2 Digene Diagnostics, Inc. 1990 Stock Option Plan (incorporated by reference
to Exhibit 10.3 to the Company's Registration Statement on Form S-1, Reg.
No. 333-2968)
4.3 Digene Diagnostics, Inc. 1991-A Stock Option Plan (incorporated by reference
to Exhibit 10.4 to the Company's Registration Statement on Form S-1,
Reg. No. 333-2968)
4.4 Digene Diagnostics, Inc. 1991-B Stock Option Plan (incorporated by reference
to Exhibit 10.5 to the Company's Registration Statement on Form S-1,
Reg. No. 333-2968)
4.5 Digene Corporation Omnibus Plan (incorporated by reference to Exhibit 10.6
to the Company's Registration Statement on Form S-1, Reg. No. 333-2968)
4.6 Digene Corporation Directors' Stock Option Plan (incorporated by reference
to Exhibit A to the Company's Schedule 14A Proxy Statement, as filed with
the Securities and Exchange Commission on September 20, 1996)
5 Opinion of Ballard Spahr Andrews & Ingersoll re: legality
23.1 Consent of Ernst & Young LLP
23.2 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5)
24 Power of Attorney (included on signature page)
</TABLE>
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EXHIBIT 5
[LETTERHEAD OF
BALLARD SPAHR ANDREWS & INGERSOLL]
October 28, 1996
Digene Corporation
9000 Virginia Manor Road
Beltsville, MD 20705
Re: Digene Diagnostics, Inc. 1990 Stock Option Plan,
Digene Diagnostics, Inc. 1991-A Stock Option Plan,
Digene Diagnostics, Inc. 1991-B Stock Option Plan,
Digene Corporation Omnibus Plan and Digene
Corporation Directors' Stock Option Plan
Gentlemen:
We have acted as counsel to Digene Corporation (the "Company") in
connection with the registration under the Securities Act of 1933, as amended,
of 2,871,853 shares of common stock of the Company, par value $.01 per share
(the "Shares"), issuable upon the exercise of options (the "Options") granted on
January 8, 1991 under the Digene Diagnostics, Inc. 1990 Stock Option Plan, the
Digene Diagnostics, Inc. 1991-A Stock Option Plan, and the Digene Diagnostics,
Inc. 1991-B Stock Option Plan, and Options granted and to be granted under
the Digene Corporation Omnibus Plan and the Digene Corporation Directors'
Stock Option Plan (collectively, the "Plans").
The opinion expressed below is based on the assumption that the
Registration Statement on Form S-8 with respect to the Shares issuable upon the
exercise of the Options will have been filed by the Company with the Securities
and Exchange Commission and will have become effective before any of the Shares
are issued and that the persons acquiring the Shares will receive a prospectus
containing all of the infomration required by Part I of Form S-8 before
acquiring such Shares.
In rendering our opinion, we have reviewed such certificates,
documents, corporate records and other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion expressed below. In
giving this opinion, we
<PAGE> 2
Digene Corporation
October 28, 1996
Page 2
are assuming the authenticity of all instruments presented to us as originals,
the conformity with the originals of all instruments presented to us as copies
and the genuineness of all signatures.
Based on the foregoing, we are of the opinion that the 2,871,853
Shares, when issued upon exercise of Options granted or to be granted under the
Plans and upon payment of the option price, all in accordance with the terms of
each of the Plans, as appropriate, will be legally issued, fully paid and
non-assessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement on Form S-8 being filed with respect to the offering of
the Shares.
Very truly yours,
/s/ BALLARD SPAHR ANDREWS & INGERSOLL
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Digene Diagnostics, Inc. 1990 Stock Option Plan,
the Digene Diagnostics, Inc. 1991-A Stock Option Plan, the Digene Diagnostics,
Inc. 1991-B Stock Option Plan, the Digene Corporation Omnibus Plan, and the
Digene Corporation Directors' Stock Option Plan of our report dated August 22,
1996, with respect to the financial statements and schedules of Digene
Corporation included in its Annual Report on Form 10-K for the year ended June
30, 1996, filed with the Securities and Exchange Commission.
Vienna, Virginia
October 28, 1996 /s/ Ernst & Young LLP
