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As filed with the Securities and Exchange Commission on April 30, 1997
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
APPLIED IMAGING CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------------
DELAWARE 77-012490
- ------------------------------- ---------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2380 WALSH AVENUE, BLDG. B
SANTA CLARA, CA 95051
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
----------------------
AMENDED AND RESTATED 1988
INCENTIVE STOCK OPTION PLAN
EMPLOYEE STOCK PURCHASE PLAN
1994 DIRECTOR OPTION PLAN
(FULL TITLE OF THE PLANS)
----------------------
ABRAHAM I. CORIAT
CHAIRMAN OF THE BOARD
APPLIED IMAGING CORP.
2380 WALSH AVENUE, BLDG. B
SANTA CLARA, CA 95051
(408) 562-0250
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------------
Copy to:
THOMAS C. KLEIN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
----------------------
This document consists of 9 pages.
The Index to Exhibits is on page 7.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE PRICE FEE
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$0.001 par value... 855,250 shares(1) $3.86(2) $3,301,265.00(3) $1,138.38
Common Stock,
$0.001 par value... 326,488 shares(4) $5.38(5) $1,756,505.44 $ 605.70
Common Stock,
$0.001 par value... 200,000 shares(6) $4.57(7) $ 914,000.00 $ 315.17
TOTAL...... 1,381,738 SHARES -- $5,971,770.44 $2,060
==========================================================================================
</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken
down into three subtotals. This subtotal represents the sum of shares
issuable upon exercise of presently outstanding options (options that have
been granted as of the date of this Registration Statement) issued under
the Amended and Restated 1988 Incentive Stock Option Plan (the "Option
Plan").
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the total registration fee.
Computation based on the weighted average exercise price (rounded to the
nearest cent) at which the options outstanding whose exercise will result
in the issuance of the shares being registered may be exercised.
(3) Calculated in accordance with Rule 457(h) based on the aggregate exercise
price for all presently outstanding options described in note 1 above.
(4) This subtotal represents the sum of shares issuable upon exercise of
options that have not yet been granted under the 1994 Director Option Plan
and the Option Plan as of the date of this Registration Statement. Of the
total of 326,488 shares that will be issuable upon the exercise of such
options to be granted in the future, 120,000 shares will be issuable upon
exercise of options to be granted in the future under the 1994 Director
Option Plan and 206,488 shares will be issuable upon exercise of options to
be granted in the future under the Option Plan.
(5) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the total registration fee.
Computation based upon the average of the high and low prices of the Common
Stock as reported in the Nasdaq National Market on April 24, 1997.
(6) This subtotal represents the number of shares authorized to be issued under
the Employee Stock Purchase Plan.
(7) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the total registration fee.
Computation based upon 85% (see explanation in following sentence) of the
average of the high and low prices of the Common Stock as reported in the
Nasdaq National Market on April 24, 1997. Pursuant to the Employee Stock
Purchase Plan, which plan is incorporated by reference herein, the purchase
price of a share of Common Stock shall be an amount equal to 85% of the
fair market value of a share of Common Stock on the Enrollment Date or the
Exercise Date (as defined in such plan), whichever is lower.
ii
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APPLIED IMAGING CORP.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed by Applied Imaging
Corp. (the "Company") with the Securities and Exchange Commission:
(1) The Company's Registration Statement on Form S-1 (file no. 333-6703)
under the Securities Act of 1933, as amended (the "Securities Act"), and as
declared effective on November 7, 1996.
(2) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as
declared effective on November 7, 1996.
(3) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(4) All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act on or after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "a corporation shall have power to indemnify any
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 (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the 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 such action, suit or proceeding 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 corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful." With respect to
derivative actions, Section 145(b) of the DGCL provides in relevant part that
"[a] corporation shall have power to indemnify
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any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor . . . [by reason of his service
in one of the capacities specified in the preceding sentence] against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit 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 corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper."
The Company's Restated Certificate of Incorporation provides that to the
fullest extent permitted by the DGCL, no director of the Company shall be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director. The Restated Certificate of
Incorporation also provides that no amendment or repeal of such provision shall
apply to or have any effect on the right to indemnification permitted thereunder
with respect to claims arising from acts or omissions occurring in whole or in
part before the effective date of such amendment or repeal whether asserted
before or after such amendment or repeal.
The Company's Bylaws provide that the Company shall indemnify to the full
extent authorized by law each of its directors, officers, employees and other
agents against expenses actually and reasonably incurred in connection with any
proceeding arising by reason of the fact that such person is or was an agent of
the corporation.
The Company has entered into indemnification agreements with its directors
and executive officers, in addition to the indemnification provided for in the
Company's Bylaws, and intends to enter into indemnification agreements with any
new directors and executive officers in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable
ITEM 8. EXHIBITS.
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Exhibit
Number Description
- -------- ------------------------------------------------------------------
4.1* Amended and Restated 1988 Incentive Stock Option Plan and form
of Stock Option Agreement thereunder.
4.2* 1994 Director Option Plan and form of Director Stock Option
Agreement thereunder.
4.3* Employee Stock Purchase Plan and forms of agreements thereunder.
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors.
24.1 Power of Attorney (see page II-4).
- ------------------------
* Incorporated by reference to exhibits filed with the Company's
Registration Statement on Form S-1 (file no. 333-6703), and as declared
effective on November 7, 1996.
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ITEM 9. UNDERTAKINGS.
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A. The Company hereby undertakes:
(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) That, for the purpose of determining any liability under the
Securities Act, 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. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the Corporation Law, the Company's Restated
Certificate of Incorporation, the Company's Bylaws or the Company's
indemnification agreements, the Company has been informed that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities 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 a successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Company will,
unless in the opinion of its counsel the question has already been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Securities 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,
Applied Imaging Corp., a corporation organized and existing under the laws of
the State of Delaware, 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 Santa Clara, State of California, on this 30th
day of April, 1997.
APPLIED IMAGING CORP.
By: /s/ Jack Goldstein, Ph.D.
-------------------------
Jack Goldstein, Ph.D.,
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jack Goldstein, Ph.D. and Neil E.
Woodruff, jointly and severally, as his or her attorneys-in-fact, with full
power of substitution in each, for him or her in any and all capacities to sign
any amendments to this Registration Statement on Form S-8, and to file the same,
with all 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, or his 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 below by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Jack Goldstein, Ph.D. Chief Executive Officer (Principal April 30, 1997
- ---------------------------- Executive Officer)
(Jack Goldstein, Ph.D.)
/s/ Neil E. Woodruff Chief Financial Officer April 30, 1997
- ---------------------------- (Principal Financial and Accounting Officer)
(Neil E. Woodruff)
Director
- ----------------------------
(John F. Blakemore, Jr.)
/s/ Abraham I. Coriat Director April 30, 1997
- ----------------------------
(Abraham I. Coriat)
/s/ Michael S. Elias Director April 30, 1997
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(Michael S. Elias)
/s/ Gilbert J.R. McCabe Director April 30, 1997
- ----------------------------
(Gilbert J.R. McCabe)
/s/ Thomas C. McConnell Director April 30, 1997
- ----------------------------
(Thomas C. McConnell)
Director
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(Andre F. Marion)
/s/ Robert C. Miller Director April 30, 1997
- ----------------------------
(Robert C. Miller)
/s/ G. Kirk Raab Director April 30, 1997
- ----------------------------
(G. Kirk Raab)
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Description
- -------- ------------------------------------------------------------------
4.1* Amended and Restated 1988 Incentive Stock Option Plan and form
of Stock Option Agreement thereunder.
4.2* 1994 Director Option Plan and form of Director Stock Option
Agreement thereunder.
4.3* Employee Stock Purchase Plan and forms of agreements thereunder.
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP, Independent Auditors
24.1 Power of Attorney (see page II-4).
- ------------------------
* Incorporated by reference to exhibits filed with the Company's
Registration Statement on Form S-1 (file no. 333-6703), and as declared
effective on November 7, 1996.
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EXHIBIT 5.1
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April 30, 1997
Applied Imaging Corp.
2380 Walsh Avenue, Bldg. B
Santa Clara, CA 95051
RE: REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on April 29, 1997 (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended, of 1,381,738 shares of your Common Stock, par value $0.001 per
share (the "Shares"), (i) 855,250 shares of which are subject to currently
outstanding options under the Amended and Restated 1988 Incentive Stock Option
Plan, (ii) 206,488 shares of which are to be issued pursuant to options under
the Amended and Restated 1988 Incentive Stock Option Plan, (iii) 120,000 shares
of which are to be issued pursuant to options under the 1994 Director Option
Plan and (iv) 200,000 shares of which are to be issued pursuant to the Employee
Stock Purchase Plan (collectively, the "Plans"). As your counsel in connection
with this transaction, we have examined the proceedings taken and are familiar
with the proceedings proposed to be taken by you in connection with the issuance
and sale of the Shares pursuant to the Plans.
It is our opinion that, when issued and sold in the manner described in the
Plans and pursuant to the agreements which accompany each grant under the Plans,
the Shares will be legally and validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
/s/ WILSON SONSINI GOODRICH & ROSATI
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EXHIBIT 23.2
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Consent of Independent Auditors
-------------------------------
The Board of Directors
Applied Imaging Corp.:
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG PEAT MARWICK LLP
San Jose, California
April 28, 1997
