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As filed with the Securities and Exchange Commission on October 5, 1999
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
TRIPATH IMAGING, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
DELAWARE 56-1995728
(State or other jurisdiction of incorporation) (I.R.S. Employer Identification No.)
</TABLE>
780 PLANTATION DRIVE, BURLINGTON, NORTH CAROLINA 27215
(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
TriPath Imaging, Inc.
780 Plantation Drive
Burlington, North Carolina 27215
(336) 222-9707
(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
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<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------- -------------------- -------------------- --------------------- ------------------
Title of each class of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per aggregate offering registration fee
share(1) price(1)
- ----------------------------------- -------------------- -------------------- --------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 3,396,293 $5.28125 $17,936,673.00 $4,990.00
- ----------------------------------- -------------------- -------------------- --------------------- ------------------
</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 September 29, 1999 as reported by the Nasdaq
National Market System.
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STATEMENT REGARDING INCORPORATION BY REFERENCE FROM EFFECTIVE
REGISTRATION STATEMENT
On October 1, 1999, the Registrant amended its certificate of
incorporation to change its name from "AutoCyte, Inc." to "TriPath Imaging,
Inc." Pursuant to Instruction E to Form S-8, the contents of the Registrant's
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the "Commission") on December 4, 1997 (File No. 333-41465) relating
to the registration of 2,086,325 shares of the Registrant's Common Stock $0.01
par value per share (the "Common Stock") under the Registrant's Amended and
Restated Stock 1996 Equity Incentive Plan (the "Plan") is incorporated by
reference in its entirety in this Registration Statement, except as to items set
forth below. This Registration Statement provides for the registration of an
additional 3,396,293 shares of the Registrant's Common Stock to be issued under
the Plan.
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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 Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 (File No. 000-22885) filed with the Commission on March
24, 1999.
(b) The Registrant's Quarterly Report on Form 10-Q for the period
ending March 31, 1999 (File No. 000-22885) filed with the Commission on May 14,
1999.
(c) The Registrant's Quarterly Report on Form 10-Q for the period
ending June 30, 1999 (File No. 000-22885) filed with the Commission on August
13, 1999.
(d) The Registrant's Current Report on Form 8-K filed with the
Commission on June 1, 1999, as amended on the Registrant's Current Report on
Form 8-K/A filed with the Commission on September 6, 1999.
(e) The Registrant's Current Report on Form 8-K filed with the
Commission on June 23, 1999.
(f) The Registrant's Current Report on Form 8-K filed with the
Commission of October 7, 1999.
(g) 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 fiscal year covered by the annual report referred to in (a)
above.
(h) The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A (File No. 000-22885) filed 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(d), 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 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
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 Ernst & Young LLP, independent auditors.
Filed herewith.
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23.3 Consent of Palmer & Dodge LLP (contained in Opinion of
Palmer & Dodge LLP, filed as Exhibit 5.1).
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.
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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 Burlington, North Carolina, on this 7th day of
October, 1999.
TRIPATH IMAGING, INC.
By: /s/ James B. Powell
--------------------------------------
James B. Powell, M.D.
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of TriPath Imaging, Inc.,
hereby severally constitute and appoint James B. Powell, Eric W. Linsley and
Marc A. Rubenstein, 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:
SIGNATURE TITLE DATE
/s/ James B. Powell President, Chief Executive October 7, 1999
- ------------------------- Officer and Director
James B. Powell, M.D. (Principal Executive Officer)
/s/ Eric W. Linsley Chief Financial Officer October 7, 1999
- ------------------------- (Principal Financial Officer)
Eric W. Linsley
/s/ Richard A. Charpie Director October 7, 1999
- -------------------------
Richard A. Charpie
/s/ Robert E. Curry Director October 7, 1999
- -------------------------
Robert E. Curry
6
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SIGNATURE TITLE DATE
/s/ Alan C. Nelson Director October 7, 1999
- -------------------------
Alan C. Nelson
/s/ David A. Thompson Director October 7, 1999
- -------------------------
David A. Thompson
/s/ Thomas A. Bonfiglio Director October 7, 1999
- -------------------------
Thomas A. Bonfiglio
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EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION
5.1 Opinion of Palmer & Dodge LLP as to the legality of the
securities registered hereunder.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Ernst & Young LLP, independent auditors.
23.3 Consent of Palmer & Dodge LLP (contained in Opinion of Palmer &
Dodge LLP, filed as Exhibit 5.1).
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.
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Exhibit 5.1
PALMER & DODGE LLP
ONE BEACON STREET, BOSTON, MA 02108-3190
TELEPHONE: (617) 573-0100 FACSIMILE: (617) 227-4420
October 7, 1999
TriPath Imaging, Inc.
780 Plantation Drive
Burlington, North Carolina 27215
Dear Sirs:
We are rendering this opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by TriPath Imaging,
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 3,396,293 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 duly authorized,
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as a part of the
Registration Statement.
Very truly yours,
/s/ Palmer & Dodge LLP
PALMER & DODGE LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the Amended and Restated 1996 Equity Incentive Plan of
TriPath Imaging, Inc. (f/k/a AutoCyte, Inc.) ("TriPath") and to (i) the use of
our report dated February 5, 1999, with respect to the financial statements of
TriPath as of December 31, 1998 and 1997, for the years ended December 31, 1998
and 1997, and for the period from November 22, 1996 through December 31, 1996,
and (ii) the use of our report dated June 13, 1997, with respect to the
financial statements of the Cytology and Pathology Automated Business of Roche
Imaging Analysis Systems, Inc., as of December 31, 1995 and November 21, 1996,
and for the years ended December 31, 1995 and 1994, and for the period from
January 1, 1996 through November 21, 1996 included in TriPath's Annual Report
(Form 10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Raleigh, North Carolina
October 7, 1999
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the Amended and Restated 1996 Equity Incentive Plan of
TriPath Imaging, Inc. (f/k/a AutoCyte, Inc.) ("TriPath") and the use of our
report dated February 9, 1999, with respect to the consolidated financial
statements of NeoPath, Inc. ("NeoPath") included in NeoPath's Annual Report
(Form 10-K) and incorporated by reference and filed as exhibit 99.1 to the
TriPath's Current Report on Form 8-K filed with the Securities and Exchange
Commission on October 7, 1999.
/s/ Ernst & Young LLP
Seattle, Washington
October 7, 1999
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EXHIBIT 24.2
TRIPATH IMAGING, INC.
CERTIFICATE OF SECRETARY
I, Steven N. Farber, being the duly elected and acting Secretary of
TriPath Imaging, Inc. (the "Corporation"), a Delaware corporation, hereby
certify that the following is a true, correct and complete copy of a resolution
duly adopted by the Board of Directors of the Corporation by Unanimous Written
Consent on March 25, 1999; and that said resolutions have not been amended or
rescinded and are now in full force and effect:
FURTHER
RESOLVED: That any officer of the Corporation executing, on behalf of the
Corporation, 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, William O. Green or
Marc A. Rubenstein, as attorney-in-fact, pursuant to a power of
attorney reflecting such authorization.
WITNESS my signature and the seal of the Corporation affixed this 7th
day of October, 1999.
/s/ Steven N. Farber
---------------------------------
Steven N. Farber
Secretary
