<PAGE> 1
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
APPLIED ANALYTICAL INDUSTRIES, INC.
(Exact name of registrant, as specified in its charter)
Delaware 04-2687849
(State or other jurisdiction of (I.R.S. Employer)
incorporation or organization) Identification No.)
5051 New Centre Drive
Wilmington, North Carolina 28403
(Address of principal executive officers)
---------------------
MEDICAL & TECHNICAL RESEARCH ASSOCIATES, INC.
1996 STOCK OPTION PLAN
(Full title of the plan)
---------------------
R. FORREST WALDON
Secretary and General Counsel
Applied Analytical Industries, Inc.
5051 New Centre Drive
Wilmington, North Carolina 28403
(Name and address of agent for service)
(910) 392-1606
(Telephone number, including area code, of agent for service)
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price per aggregate offering registration
to be registered registered unit Price fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par 517,500 $19.1875(1) $9,929,531.20(1) $2,760.41
value (including options under
the Medical & Technical
Research Associates, Inc. 1996
Stock Option Plan)
================================================================================================================================
</TABLE>
(1) In accordance with Rule 457(h)(1) of Regulation C, the price for the shares
is computed on the basis of the average high and low prices for Common Shares on
March 12, 1999 as reported on the NASDAQ National Market System.
================================================================================
<PAGE> 2
PART II INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into this
registration statement:
(a) The Company's Annual Report on Form 10-K filed with the Securities
and Exchange Commission for fiscal year ended December 31, 1997 and the
Company's Amendment No. 1 on Form 10-K/A to the Annual Report on Form 10-K for
the fiscal year ended December 31, 1997;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of such fiscal year; and
(c) The description of securities contained in the Corporation's
registration statement filed under the Securities Exchange Act of 1934 on Form
8-A, (SEC Registration No. 0-21185), including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment indicating that all securities offered by this
registration statement have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into the
registration statement and to be part thereof from the date of filing of such
documents.
Item 6. Indemnification of Directors and Officers.
The Company's Restated Certificate of Incorporation (the "Restated
Certificate of Incorporation") provides that no director of the Company shall be
personally liable for any monetary damages for any breach of fiduciary duty as a
director, except to the extent that the Delaware General Corporation Law
prohibits elimination or limitation of liability of directors for breach of
fiduciary duty. The Restated Certificate of Incorporation provides that a
director or officer of the Company (a) shall be indemnified by the Company
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Company) brought
against him by virtue of his position as a director or officer of the Company if
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful and (b) shall be indemnified by the Company against all expenses
(including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Company brought against him
by virtue of his position as a director or officer of the Company if he acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the Company, except that no indemnification shall be made
with respect to any matter as to which such person shall have been adjudged to
be liable to the Company, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he is entitled to
indemnification of such expenses. Notwithstanding the foregoing, to the extent
that a director or officer has been successful, on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice, he
is required to be indemnified by the Company against all expenses (including
attorneys' fees) incurred in connection therewith.
<PAGE> 3
Expenses shall be advanced to a director or officer at his request, provided
that he undertakes to repay the amount advanced if it is ultimately determined
that he is not entitled to indemnification for such expenses.
Indemnification is required to be made unless the Company determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the Company that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Company fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Company
notice of the action for which indemnity is sought and the Company has the right
to participate in such action or assume the defense thereof.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and in any criminal proceeding, if such person had
no reasonable cause to believe his conduct was unlawful; provided that, in the
case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Item 8. Exhibits.
Exhibit Number Description
- -------------- -----------
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Quarterly Report on Form 10-Q for the period ended
September 30, 1996)
4.2 Restated By-laws of the Company (incorporated by reference
to Exhibit 3.2 of the Company's registration statement on
Form S-1, SEC Registration No. 333-5535)
5 Opinion of Robinson, Bradshaw & Hinson, P.A.
23.1 Consent of Robinson, Bradshaw & Hinson, P.A.
(contained in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney of Frederick D. Sancilio, dated March 12, 1999
24.2 Power of Attorney of William H. Underwood, dated March 12, 1999
24.3 Power of Attorney of Joseph H. Gleberman, dated March 12, 1999
24.4 Power of Attorney of John M. Ryan, dated March 12, 1999
24.5 Power of Attorney of James L. Waters, dated March 13, 1999
24.6 Power of Attorney of James G. Martin, dated March 11, 1999
2
<PAGE> 4
Item 9. Undertakings.
The Company hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement 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;
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment to 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;
(3) The Company shall remove from registration by means of a
post-effective amendment any of the securities being registered that remain
unsold at the termination of the offering;
(4) 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 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; and
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in such 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.
3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the 1933 Act, the Company certifies
that it has reasonable grounds to believe it meets all 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
Wilmington, State of North Carolina on March 16, 1999.
APPLIED ANALYTICAL INDUSTRIES, INC.
By: /s/ R. FORREST WALDON
---------------------------------
R. Forrest Waldon
Secretary
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
--------- ----- ----
FREDERICK D. SANCILIO* President and Director March 16, 1999
- ------------------------------- (Principal Executive Officer)
Frederick D. Sancilio, Ph.D.
/s/ EUGENE T. HALEY Chief Financial Officer March 16, 1999
- ------------------------------- (Principal Financial Officer)
Eugene T. Haley
/s/ GEORGE W. BECKWITH Controller March 16, 1999
- ------------------------------- (Principal Accounting Officer)
George W. Beckwith
WILLIAM H. UNDERWOOD* Director March 16, 1999
- -------------------------------
William H. Underwood
JOSEPH H. GLEBERMAN* Director March 16, 1999
- -------------------------------
Joseph H. Gleberman
JOHN M. RYAN* Director March 16, 1999
- -------------------------------
John M. Ryan
JAMES L. WATERS* Director March 16, 1999
- -------------------------------
James L. Waters
JAMES G. MARTIN* Director March 16, 1999
- -------------------------------
James G. Martin
*By: /s/ R. FORREST WALDON
-------------------------------------
(R. Forrest Waldon, Attorney-in-Fact)
<PAGE> 6
Exhibit Number Description
- -------------- -----------
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Quarterly Report on Form 10-Q for the period ended
September 30, 1996)
4.2 Restated By-laws of the Company (incorporated by reference to
Exhibit 3.2 of the Company's registration statement on
Form S-1, SEC Registration No. 333-5535)
5 Opinion of Robinson, Bradshaw & Hinson, P.A.
23.1 Consent of Robinson, Bradshaw & Hinson, P.A. (contained in
Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney of Frederick D. Sancilio, dated March 12, 1999
24.2 Power of Attorney of William H. Underwood, dated March 12, 1999
24.3 Power of Attorney of Joseph H. Gleberman, dated March 12, 1999
24.4 Power of Attorney of John M. Ryan, dated March 12, 1999
24.5 Power of Attorney of James L. Waters, dated March 13, 1999
24.6 Power of Attorney of James G. Martin, dated March 11, 1999
<PAGE> 1
EXHIBIT 5
ROBINSON, BRADSHAW & HINSON, P.A.
ATTORNEYS AT LAW
<TABLE>
<S> <C> <C>
SOUTH CAROLINA OFFICE
MATTHEW S. CHURCHILL 101 NORTH TRYON STREET, SUITE 1900 THE GUARDIAN BUILDING
TELEPHONE (704) 377-8388 CHARLOTTE, NORTH CAROLINA 28246 ONE LAW PLACE - SUITE 600
FAX (704) 373-3988 TELEPHONE (704) 377-2536 P.O. DRAWER 12070
INTERNET [email protected] FAX (704) 378-4000 ROCK HILL, S.C. 29731
TELEPHONE (803) 325-2900
FAX (803) 325-2929
</TABLE>
March 16, 1999
Applied Analytical Industries, Inc.
5051 New Centre Drive
Wilmington, North Carolina 28403
Attention: R. Forrest Waldon
Re: Registration Statement on Form S-8 of Medical & Technical
Research Associates, Inc. 1996 Stock Option Plan
Ladies and Gentlemen:
We have served as counsel to Applied Analytical Industries, Inc., a
Delaware corporation (the "Company") in connection with the preparation by the
Company of a registration statement on Form S-8 (the "Registration Statement")
for filing with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, relating to the offer and sale of up to 517,500 shares of
the Company's common stock, $.001 par value per share (the "Shares"), to be
issued pursuant to the Medical & Technical Research Associates, Inc. 1996 Stock
Option Plan (the "Plan"), and the related options granted thereunder.
We have examined the Plan, the Restated Certificate of Incorporation
filed with the Office of the Secretary of State of the State of Delaware on
September 20, 1996 (the "Charter") and the Restated By-laws of the Company (the
"Bylaws"), and such other corporate and other documents and records and
certificates of public officials we have deemed necessary in order to enable us
to render this opinion.
We have assumed (i) the authority and genuineness of all signatures,
(ii) the legal capacity of all natural persons, (iii) the authenticity of all
documents submitted to us as originals, and (iv) the conformity to authentic
original documents of all documents submitted to us as certified, conformed or
photostatic copies.
Based upon the foregoing, and subject to the qualifications and
limitations set forth herein, we are of the opinion that:
(i) The Company is a corporation duly incorporated and validly
existing under the laws of the State of Delaware; and
<PAGE> 2
Applied Analytical Industries, Inc.
March 16, 1999
Page 2
- -------------------------------------
(ii) The Shares, if and when originally issued and sold by the
Company pursuant to the terms and conditions of the Plan, will
be legally issued, fully paid and non-assessable, and will
represent validly authorized and outstanding shares of the
common stock of the Company.
We have assumed that the Company and those officers and employees that
may receive options to purchase Shares under the Plan will have complied with
the relevant requirements of the Plan and that all prescribed filings with
regulatory authorities, including any stock exchanges having jurisdiction, will
be effected in accordance with their respective requirements and that the
approvals of such regulatory authorities, including any stock exchanges having
jurisdiction, will have been granted prior to the issuance of any of the Shares.
The opinions expressed herein are contingent upon the Registration
Statement, as amended, becoming effective under the Securities Act of 1933 and
the Charter and Bylaws not being further amended prior to the issuance of the
Shares.
The foregoing opinions are limited to the General Corporation Law of
the State of Delaware, and we express no opinion with respect to the laws of any
other state or jurisdiction.
We hereby consent to the filing of a copy of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
ROBINSON, BRADSHAW & HINSON, P.A.
/s/ MATTHEW S. CHURCHILL
Matthew S. Churchill
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 ( ) of our report dated March 18, 1998, on the
financial statements of Applied Analytical Industries, Inc. which appears on
page 27 of the 1997 Annual Report to Shareholders of Applied Analytical
Industries, Inc., which is incorporated by reference in Applied Analytical
Industries, Inc.'s Annual Report on Form 10-K/A for the year ended December 31,
1997, as amended, dated April 9, 1998. We also consent to the application of
such report to the Financial Statement Schedules for the three years ended
December 31, 1997, when such schedules are read in conjunction with the
financial statements referred to in our report. The audits referred to in such
report also included these Financial Statement Schedules.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Atlanta, Georgia
March 15, 1999
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Eugene T. Haley, R. Forrest Waldon, George W.
Beckwith and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 517,500
shares to be issued upon the exercise of options issued under the Medical &
Technical Research Associates, Inc. 1996 Stock Option Plan, and any and all
amendments, including post-effective amendments, and exhibits to such
registration statement, and any and all applications or other documents to be
filed with the Commission or otherwise pertaining to such registration statement
or amendments, with full power and authority to take or cause to be taken all
other actions that in the judgment of such appointed person(s) may be necessary
or appropriate to effect the registration under the Act of such options.
EXECUTED on the 12th day of March, 1999.
/s/ Frederick D. Sancilio, Ph.D.
------------------------------------
Frederick D. Sancilio, Ph.D.
<PAGE> 1
Exhibit 24.2
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Eugene T. Haley, R. Forrest Waldon, George W.
Beckwith and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 517,500
shares to be issued upon the exercise of options issued under the Medical &
Technical Research Associates, Inc. 1996 Stock Option Plan, and any and all
amendments, including post-effective amendments, and exhibits to such
registration statement, and any and all applications or other documents to be
filed with the Commission or otherwise pertaining to such registration statement
or amendments, with full power and authority to take or cause to be taken all
other actions that in the judgment of such appointed person(s) may be necessary
or appropriate to effect the registration under the Act of such options.
EXECUTED on the 12th day of March, 1999.
/s/ William H. Underwood
------------------------------------
William H. Underwood
<PAGE> 1
Exhibit 24.3
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Eugene T. Haley, R. Forrest Waldon, George W.
Beckwith and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 517,500
shares to be issued upon the exercise of options issued under the Medical &
Technical Research Associates, Inc. 1996 Stock Option Plan, and any and all
amendments, including post-effective amendments, and exhibits to such
registration statement, and any and all applications or other documents to be
filed with the Commission or otherwise pertaining to such registration statement
or amendments, with full power and authority to take or cause to be taken all
other actions that in the judgment of such appointed person(s) may be necessary
or appropriate to effect the registration under the Act of such options.
EXECUTED on the 12th day of March, 1999.
/s/ Joseph H. Gleberman
------------------------------------
Joseph H. Gleberman
<PAGE> 1
Exhibit 24.4
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Eugene T. Haley, R. Forrest Waldon, George W.
Beckwith and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 517,500
shares to be issued upon the exercise of options issued under the Medical &
Technical Research Associates, Inc. 1996 Stock Option Plan, and any and all
amendments, including post-effective amendments, and exhibits to such
registration statement, and any and all applications or other documents to be
filed with the Commission or otherwise pertaining to such registration statement
or amendments, with full power and authority to take or cause to be taken all
other actions that in the judgment of such appointed person(s) may be necessary
or appropriate to effect the registration under the Act of such options.
EXECUTED on the 12th day of March, 1999.
/s/ John M. Ryan
------------------------------------
John M. Ryan
<PAGE> 1
Exhibit 24.5
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Eugene T. Haley, R. Forrest Waldon, George W.
Beckwith and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 517,500
shares to be issued upon the exercise of options issued under the Medical &
Technical Research Associates, Inc. 1996 Stock Option Plan, and any and all
amendments, including post-effective amendments, and exhibits to such
registration statement, and any and all applications or other documents to be
filed with the Commission or otherwise pertaining to such registration statement
or amendments, with full power and authority to take or cause to be taken all
other actions that in the judgment of such appointed person(s) may be necessary
or appropriate to effect the registration under the Act of such options.
EXECUTED on the 13th day of March, 1999.
/s/ James L. Waters
------------------------------------
James L. Waters
<PAGE> 1
Exhibit 24.6
POWER OF ATTORNEY
THE UNDERSIGNED director of Applied Analytical Industries, Inc. (the
"Company") hereby appoints Eugene T. Haley, R. Forrest Waldon, George W.
Beckwith and Albert N. Cavagnaro and each of them singly, as the undersigned's
lawful agent and attorney-in-fact, with full power of substitution and
resubstitution, for and on behalf and in the name of the undersigned, to execute
and file with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-8 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering options to purchase 517,500
shares to be issued upon the exercise of options issued under the Medical &
Technical Research Associates, Inc. 1996 Stock Option Plan, and any and all
amendments, including post-effective amendments, and exhibits to such
registration statement, and any and all applications or other documents to be
filed with the Commission or otherwise pertaining to such registration statement
or amendments, with full power and authority to take or cause to be taken all
other actions that in the judgment of such appointed person(s) may be necessary
or appropriate to effect the registration under the Act of such options.
EXECUTED on the 12th day of March, 1999.
/s/ James G. Martin
------------------------------------
James G. Martin
