<PAGE> 1
As filed with the Securities and Exchange Commission on December 4, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------------------
AUTOCYTE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 56-1995728
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation)
112 ORANGE DRIVE, ELON COLLEGE, NORTH CAROLINA 27244
(Address of registrant's principal executive offices)
---------------------------
AMENDED AND RESTATED 1996 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
JAMES B. POWELL, M.D., PRESIDENT AND CHIEF EXECUTIVE OFFICER
AutoCyte, Inc.
112 Orange Drive
Elon College, North Carolina 27244
(910) 584-0250
(Name, address and telephone number of agent for service)
with copies to:
STEVEN N. FARBER, ESQUIRE
MARC A. RUBENSTEIN, ESQUIRE
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573-0100
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Title of each class of securities to Amount to be Proposed Proposed maximum Amount of
be registered registered maximum offering aggregate offering registration fee
price per share price
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 2,086,325 shares $10.25(1) $21,384,831.25(1) $6,309.00
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
and computed pursuant to Rule 457(h) based upon the average of the high
and low sale prices on December 1, 1997 as reported by the Nasdaq
National Market.
<PAGE> 2
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 (the "Commission") are incorporated herein by reference:
(a) The Registrant's Final Prospectus filed with the Commission on
September 5, 1997 pursuant to Rule 424(b)(4) under the Securities Act of 1933,
as amended.
(b) All other reports of the Registrant filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the last fiscal year covered by the Final Prospectus
referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A filed with the Commission on July 25, 1997,
including any amendment or report filed hereafter for the purpose of updating
such description.
All documents filed after the date of this Registration Statement by
the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange
Act and prior to the filing of a post-effective amendment that indicates that
all shares of Common Stock offered hereunder have been sold or which deregisters
all shares of Common Stock remaining unsold shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of the filing of such
reports and documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock offered hereby will be passed upon for
the Registrant by Palmer & Dodge LLP, Boston, Massachusetts. Steven N. Farber, a
partner of Palmer & Dodge LLP, is Secretary of the Registrant.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law grants the
Registrant the power to indemnify each person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative by
reason of the fact that he is or was a director, officer, employee or agent of
the Registrant, or is or was serving at the request of the Registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with any action, suit or proceeding if (i) he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Registrant and (ii) with respect to any criminal
- 2 -
<PAGE> 3
action or proceeding, he had no reasonable cause to believe his conduct was
unlawful, provided, however, no indemnification shall be made in connection with
any proceeding brought by or in the right of the Registrant where the person
involved is adjudged to be liable to the Registrant except to the extent
approved by a court.
Article NINTH of the Registrant's Restated Certificate of Incorporation
provides that a director shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent that elimination or limitation of liability is not
permitted under the Delaware General Corporation Law as in effect when such
liability is determined.
Article TENTH of the Registrant's Restated Certificate of Incorporation
provides that the Registrant shall, to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as amended from time to time,
indemnify each person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, by reason of
the fact that he is or was, or has agreed to become a director or officer of the
Registrant, or is or was serving, or has agreed to serve, at the request of the
Registrant as a director, officer or trustee of, or in a similar capacity with,
another corporation, partnership, joint venture, trust or other enterprise. The
indemnification provided for in Article TENTH is expressly not exclusive of any
other rights to which those seeking indemnification may be entitled under any
law, agreement or vote of stockholders or disinterested directors or otherwise,
and shall inure to the benefit of the heirs, executors and administrators of
such persons. Article TENTH further permits the Board of Directors to authorize
the grant of indemnification rights to other employees and agents of the
Registrant and such rights may be equivalent to, or greater or less than, those
set forth in Article TENTH.
Article V, Section 1 of the Registrant's Amended and Restated By-laws
provides that the Registrant shall, to the full extent permitted by the Delaware
General Corporation Law, as amended from time to time, and the Certificate of
Incorporation, indemnify each person whom it may indemnify pursuant thereto.
Article V, Section 2 of the Registrant's By-Laws provides that the
Registrant shall have the power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against such person and
incurred by such person in any such capacity or arising out of such person's
status as such whether or not the Registrant would have the power to indemnify
such person against such liability under the provisions of the General
Corporation Law of the State of Delaware.
The Registrant's Restated Certificate of Incorporation provides that
directors of the Registrant will not be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director, whether or not an individual continues to be a director at the time
such liability is asserted, 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) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derives an
improper personal benefit.
The Registrant maintains insurance for directors and officers and has
entered into agreements with certain officers and directors affirming the
Registrant's obligation to indemnify them to the fullest extent permitted by law
and providing various other protections.
- 3 -
<PAGE> 4
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
-------------- -----------
4.1 Restated Certificate of Incorporation of the
Registrant. Incorporated by reference to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997.
4.2 Amended and Restated By-laws of the Registrant.
Incorporated by reference to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997.
4.3 Form of Certificate for Common Stock. Incorporated by
reference to the Registrant's Registration Statement
on Form S-1, filed with the Commission on June 27,
1997 (File No. 333-30227).
5.1 Opinion of Palmer & Dodge LLP as to the legality of
the securities registered hereunder. Filed herewith.
23.1 Consent of Ernst & Young LLP, independent auditors.
Filed herewith.
23.2 Consent of Palmer & Dodge LLP. Contained in Opinion
of Palmer & Dodge LLP, filed as Exhibit 5.1 hereto.
24.1 Power of Attorney. Set forth on the signature page to
this Registration Statement.
24.2 Certified resolution of the Board of Directors
authorizing Power of Attorney. Filed herewith.
Item 9. Undertakings.
(a) 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 this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set forth in this
Registration Statement;
- 4 -
<PAGE> 5
(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 (a)(1)(i) and (a)(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 with or furnished to the
Commission 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.
(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.
(b) 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.
(c) 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 provisions referred to in Item 6
hereof, 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> 6
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 Elon College, State of North Carolina, on this 4th
day of December, 1997.
AUTOCYTE, INC.
By: /s/ James B. Powell
-------------------------------------
James B. Powell, M.D.
President and Chief Executive Officer
- 6 -
<PAGE> 7
POWER OF ATTORNEY
We, the undersigned officers and directors of AutoCyte, Inc. hereby
severally constitute and appoint James B. Powell, M.D., William O. Green and
Steven N. Farber and each of them singly, our true and lawful attorneys-in-fact,
with full power to them in any and all capacities, to sign any and all
amendments to this Registration Statement on Form S-8, including any
post-effective amendments thereto, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact 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 below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James B. Powell President, Chief Executive December 4, 1997
- -------------------------- Officer and Director
James B. Powell, M.D. (Principal Executive
Officer)
/s/ William O. Green Chief Financial Officer and December 4, 1997
- -------------------------- Vice President, Finance and
William O. Green Administration (Principal
Financial Officer and
Principal Accounting Officer)
/s/ Richard A. Charpie Director December 4, 1997
- --------------------------
Richard A. Charpie
/s/ Robert E. Curry Director December 4, 1997
- --------------------------
Robert E. Curry
/s/ Thomas P. MacMahon Director December 4, 1997
- --------------------------
Thomas P. MacMahon
/s/ Susan E. Whitehead Director December 4, 1997
- --------------------------
Susan E. Whitehead
</TABLE>
- 7 -
<PAGE> 8
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
4.1 Restated Certificate of Incorporation of the
Registrant. Incorporated by reference to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997.
4.2 Amended and Restated By-laws of the Registrant.
Incorporated by reference to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997.
4.3 Form of Certificate for Common Stock. Incorporated by
reference to the Registrant's Registration Statement
on Form S-1, filed with the Commission on June 27,
1997 (File No. 333-30227).
5.1 Opinion of Palmer & Dodge LLP as to the legality of
the securities registered hereunder. Filed herewith.
23.1 Consent of Ernst & Young LLP, independent auditors.
Filed herewith.
23.2 Consent of Palmer & Dodge LLP. Contained in Opinion
of Palmer & Dodge LLP, filed as Exhibit 5.1 hereto.
24.1 Power of Attorney. Set forth on the signature page to
this Registration Statement.
24.2 Certified resolution of the Board of Directors
authorizing Power of Attorney. Filed herewith.
- 8 -
<PAGE> 1
EXHIBIT 5.1
PALMER & DODGE LLP
One Beacon Street
Boston, Massachusetts 02108
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
December 4, 1997
AutoCyte, Inc.
112 Orange Drive
Elon College, North Carolina 27244
Ladies and Gentlemen:
We are rendering this opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by AutoCyte, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), on or about the date
hereof. The Registration Statement relates to 2,086,325 shares (the "Shares") of
the Company's Common Stock, $0.01 par value, offered pursuant to the provisions
of the Company's Amended and Restated 1996 Equity Incentive Plan (the "Plan").
We have acted as your counsel in connection with the preparation of the
Registration Statement and are familiar with the proceedings taken by the
Company in connection with the authorization of the issuance and sale of the
Shares. We have examined all such documents as we consider necessary to enable
us to render this opinion.
Based upon the foregoing, we are of the opinion that when issued in
accordance with the terms of the Plan, the Shares will be legally issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as a part of the
Registration Statement and to the reference to our firm under Item 5 thereof.
Very truly yours,
PALMER & DODGE LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference into the Company's Registration
Statement on Form S-8 filed on December 4, 1997 pertaining to the Amended and
Restated 1996 Equity Incentive Plan of: (i) our report dated June 13, 1997, with
respect to the financial statements of AutoCyte, Inc. as of December 31, 1996
and for the period November 21, 1996 through December 31, 1996 and (ii) our
report dated June 13, 1997, with respect to the financial statements of the
Cytology and Pathology Automation Business of Roche Imaging Analysis Systems,
Inc., as of December 31, 1994 and 1995 and for each of the two years ended
December 31, 1995 and for the period January 1, 1996 through November 21, 1996
included in the Registration Statement (Form S-1 No. 333-30227) and related
Prospectus of AutoCyte, Inc., filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Raleigh, North Carolina
December 3, 1997
<PAGE> 1
EXHIBIT 24.2
AUTOCYTE, INC.
Certificate of Secretary
I, Steven N. Farber, being the duly elected and acting Secretary of
AutoCyte, Inc. (the "Company"), a Delaware corporation, hereby certify that the
following is a true, correct and complete copy of resolutions duly adopted by
the Board of Directors of the Company at a meeting held on November 4, 1997; and
that said resolutions have not been amended or rescinded and are now in full
force and effect.
Registration Statement on Form S-8
VOTED: That the Chief Executive Officer, President, any Vice
President, the Chief Financial Officer and the Treasurer of
the Company, each acting singly, are hereby authorized in the
name and on behalf of the Company to execute and file with the
Commission a registration statement on Form S-8 (the
"Registration Statement") relating to the registration under
the Securities Act of 1933, as amended (the "Act"), of
2,086,325 shares of the Company's Common Stock reserved for
issuance under the Company's Amended and Restated 1996 Equity
Incentive Plan, such Registration Statement and any amendments
thereto to be in such form as may be approved by the officer
executing the same, his execution and filing thereof to be
conclusive evidence of this approval; and take any and all
other action as they or any of them may deem necessary or
advisable to effect such registration.
VOTED: That any officer of the Company executing, on behalf of the
Company or in any other capacity, the Registration Statement
and any and all amendments to such Registration Statement and
other documents to be filed with the Commission in connection
therewith is hereby authorized to execute the same through or
by James B. Powell, M.D., William O. Green or Steven N.
Farber, as attorney-in-fact, pursuant to a power of attorney
reflecting such authorization.
WITNESS my signature and the seal of the Company affixed this 4th day
of December, 1997.
[CORPORATE SEAL] /s/ Steven N. Farber
--------------------
Steven N. Farber
Secretary
