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Registration No. 333-______
UNITED STATES
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 REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 52-1536128
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1201 Clopper Road
Gaithersburg, Maryland 20878
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Digene Corporation 1999 Incentive Plan
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(FULL TITLE OF THE PLAN)
Charles M. Fleischman
President and Chief Operating Officer
1201 Clopper Road
Gaithersburg, Maryland 20878
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(NAME AND ADDRESS OF AGENT FOR SERVICE)
(301) 944-7000
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(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
with a copy to:
Morris Cheston, Jr., Esquire
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street
Philadelphia, Pennsylvania 19103-7599
(215) 665-8500
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
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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
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<S> <C> <C> <C> <C>
Common Stock,
par value $.01
per share 1,000,000 $33.25 $33,250,000 $8,778
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</TABLE>
(1) In addition, 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 stock split,
reclassification, stock dividend or the like.
(2) Estimated solely for the purpose of calculating the registration fee. In
accordance with Rule 457(h), the price shown is based upon the average
of the high and low price of the Company's Common Stock on October 10,
2000, $33.25, as reported on the Nasdaq National Market for the
Company's Common Stock.
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PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
will be given or sent to all employees who participate in the 1999 Incentive
Plan as specified by Rule 428 under the Securities Act of 1933.
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act") by Digene Corporation (the "Company") (File No.
0-28194) or pursuant to the Securities Act of 1933, as amended (the "Securities
Act") are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended June
30, 2000; and
(b) Item 1 of Registration Statement of the Company on Form 8-A
dated April 11, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act, after the date of this Registration Statement and
prior to the termination of the offering, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing such documents.
Any statement contained herein or in a document incorporated by reference or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that such
statement is modified or superseded by any other subsequently filed document
which is incorporated or is deemed to be incorporated by reference herein. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
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
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reason of having been an officer or director of the Company. In addition, the
Company has obtained the Directors' and Officers' Liability Insurance in the
aggregate amount of $15,000,000 which insures its officers and directors against
certain liabilities such persons may incur in their capacities as officers or
directors of the Company.
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 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
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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 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.
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ITEM 8. EXHIBITS.
4.1 Digene Corporation 1999 Incentive Plan (incorporated by reference
to Exhibit A to Digene Corporation's Proxy Statement dated
October 1, 1999 filed pursuant to Section 14(a) of the Securities
Exchange Act).
4.2 Specimen copy of Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement
on Form S-1, as amended (File No. 333-2968)).
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the
legality of the securities to be offered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included as
part of Exhibit 5).
24 Power of Attorney (included in signature page).
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a) 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed 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 to such information in the registration
statement;
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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 registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company'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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Gaithersburg, State of Maryland, on October 11, 2000.
DIGENE CORPORATION
By /s/ Charles M. Fleischman
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Charles M. Fleischman, President,
Chief Operating Officer and
Chief Financial Officer
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.
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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Evan Jones Chairman and Chief Executive October 11, 2000
----------------------------- Officer (principal executive
Evan Jones officer)
/s/ Charles M. Fleischman President, Chief Operating October 11, 2000
----------------------------- Officer, Chief Financial
Charles M. Fleischman Officer and Director
(principal financial officer)
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Joseph P. Slattery Vice President, Finance October 11, 2000
------------------------------ (principal accounting officer)
Joseph P. Slattery
/s/ Wayne T. Hockmeyer Director October 11, 2000
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Wayne T. Hockmeyer
/s/ John H. Landon Director October 11, 2000
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John H. Landon
/s/ Joseph M. Migliara Director October 11, 2000
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Joseph M. Migliara
/s/ John J. Whitehead Director October 11, 2000
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John J. Whitehead
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Exhibit
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<S> <C>
4.1 Digene Corporation 1999 Incentive Plan (incorporated by reference to
Exhibit A to Digene Corporation's Proxy Statement dated October 1, 1999
filed pursuant to Section 14(a) of the Securities Exchange Act).
4.2 Specimen copy of Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-1, as
amended (File No. 333-2968)).
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the legality of
the securities to be offered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included as part of
Exhibit 5).
24 Power of Attorney (included in signature page).
</TABLE>
