As filed with the Securities and Exchange Commission on November 6, 1998
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Procept, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Delaware 04-2893483
<S> <C>
(State or Other Jurisdiction of Incorporation) (I.R.S. Employer Identification No.)
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840 Memorial Drive, Cambridge, Massachusetts 02139
(Address of Principal Executive Offices)
1989 STOCK PLAN
(Full Title of the Plan)
John F. Dee
President and Chief Executive Officer
Procept, Inc.
840 Memorial Drive
Cambridge, Massachusetts 02139
(617) 491-1100
(Name, Address and Telephone Number of Agent for Service)
with copies to:
Lynnette C. Fallon, Esq.
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573-0100
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered share(1) price(1) registration fee
- ---------------------------------------------------------------------------------------------------------------------
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Common Stock, $0.01 par value 1,473,802 shares $1.1875 $1,750,139.88 $486.54
- ---------------------------------------------------------------------------------------------------------------------
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(1) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(h) and based upon the average of the high and
low sale prices on November 4, 1998 as reported by the Nasdaq SmallCap
Market System.
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Statement Regarding Incorporation By Reference From Effective
Registration Statement.
Pursuant to Instruction E to Form S-8, the contents of (i) the
Registrant's Registration Statement on Form S-8 filed with the Securities and
Exchange Commission (the "Commission") on March 14, 1994 (File No. 33-76252)
relating to the registration of 1,083,940 shares (15,485 shares as adjusted for
the October 14, 1997 one-for-seven reverse split and the June 1, 1998
one-for-ten reverse split, the "Reverse Splits") of the Registrant's Common
Stock, $0.01 par value per share (the "Common Stock"), authorized for issuance
under the Registrant's 1989 Stock Plan (the "Plan"), (ii) the Registrant's
Registration Statement on Form S-8 filed with the Commission on June 14, 1996
(File No. 333-06035) relating to the registration of 250,000 additional shares
(3,571 shares as adjusted for the Reverse Splits) of the Registrant's Common
Stock authorized for issuance under the Registrant's Plan and (iii) the
Registrant's Registration Statement on Form S-8 filed with the Commission on
September 23, 1997 (File No. 333-36147) relating to the registration of 500,000
additional shares (7,142 shares as adjusted for the Reverse Splits) of the
Registrant's Common Stock authorized for issuance under the Registrant's Plan,
are incorporated by reference in their entirety in this Registration Statement,
except as to the items set forth below. This Registration Statement provides for
the registration of an additional 1,473,802 shares of the Registrant's Common
Stock to be issued under the Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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. Lynnette C. Fallon,
the Secretary of the Registrant, is a partner of Palmer & Dodge LLP.
Item 8. Exhibits.
See Exhibit Index on page 4.
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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 Cambridge, Commonwealth of Massachusetts, on this 6th
day of November, 1998.
PROCEPT, INC.
(Registrant)
By: /s/ John F. Dee
--------------------------
John F. Dee, President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Procept, Inc., hereby
severally constitute and appoint John F. Dee and Lynnette C. Fallon, 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 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 indicated on this 6th day of November, 1998:
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Signature Capacity
- --------- --------
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/s/ John F. Dee President and Chief Executive Officer
- ----------------------------- (Principal Executive Officer and Principal
John F. Dee Financial and Accounting Officer) and Director
/s/ Michael S. Weiss Chairman of the Board and Director
- -----------------------------
Michael S. Weiss
/s/ Zola P. Horovitz Director
- -----------------------------
Zola P. Horovitz
/s/ Max Link Director
- -----------------------------
Max Link
/s/ Mark C. Rogers Director
- -----------------------------
Mark C. Rogers
/s/ Elliott H. Vernon Director
- -----------------------------
Elliott H. Vernon
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<PAGE>
EXHIBIT INDEX
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Exhibit
Number Description
- ------ -----------
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4.1 Restated Certificate of Incorporation of Procept. Filed as Exhibit 3.1
to Procept's Form 10-Q for the quarter ended June 30, 1997, Commission
File No. 0-21134, and incorporated herein by reference.
4.2 Certificate of Designation of Series A Convertible Preferred Stock.
Filed as Exhibit 3.2 to Procept's Form 10-Q for the quarter ended June
30, 1997, Commission File No. 0-21134, and incorporated herein by
reference.
4.3 Certificate of Amendment of the Restated Certificate of Incorporation
of Procept, filed with the Secretary of State of Delaware on October 7,
1997, effective as of October 14, 1997. Filed as Exhibit 3.1 to
Procept's Form 10-Q for the quarter ended September 31, 1997,
Commission File No. 0-21134, and incorporated herein by reference.
4.4 Certificate of Amendment of the Restated Certificate of Incorporation
of Procept, filed with the Secretary of State of Delaware on May 19,
1998, effective as of June 1, 1998. Filed herewith.
4.5 Restated By-Laws of the Registrant. Filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1, Commission File No.
33-57188, and incorporated herein by reference.
5 Opinion of Palmer & Dodge LLP as to the legality of the securities
registered hereunder. Filed herewith.
23.1 Consent of Coopers & Lybrand L.L.P., independent accountants. Filed
herewith.
23.2 Consent of Palmer & Dodge LLP (contained in Exhibit 5).
24 Power of Attorney (included in the signature page hereto).
99 Procept, Inc. 1989 Stock Plan, as amended. Filed as Exhibit 10.1 to
Quarterly Report on Form 10-Q for the quarter ended June 30, 1998 (File
No. 0-021134) and incorporated herein by reference.
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EXHIBIT 4.4
<PAGE>
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PROCEPT, INC.
PROCEPT, INC., a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Procept, Inc.,
resolutions were duly adopted setting forth a proposed amendment of the Amended
and Restated Certificate of Incorporation of the Corporation, and declaring that
such amendment is advisable and that such amendment should be submitted to the
stockholders of the Corporation for approval. The resolution setting forth the
proposed amendment is as follows:
VOTED: That the first paragraph of Article Fourth of the
Amended and Restated Certificate of Incorporation of this Corporation be amended
to read in its entirety as follows:
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is Thirty Million (30,000,000) shares
of Common Stock with a par value of $0.01 per share and One Million (1,000,000)
shares of Preferred Stock with a par value of $0.01 per share. At the time this
amendment becomes effective, each ten (10) shares of the Common Stock, $0.01 par
value per share, issued and outstanding at such time shall be, and hereby are,
reduced and converted into one fully paid and nonassessable share of Common
Stock, $0.01 par value of the corporation as herein authorized. Each outstanding
stock certificate of this Corporation which immediately prior to the time this
amendment becomes effective represented one or more shares of Common Stock, par
value shall thereafter represent the number of whole shares of Common Stock,
$0.01 par value per share, determined by dividing the number of shares
represented by such certificate immediately prior to the time this amendment
becomes effective by ten (10) and rounding such number up to the next whole
integer. The amount of capital represented by the new shares in the aggregate at
the time this Certificate of Amendment becomes effective shall be adjusted by
the transfer of One Cent ($.01) from the capital account of the Common Stock to
the additional paid in capital account for each new share issued (except for new
shares issued as the result of rounding up fractional shares in which case no
capital adjustment shall be made), such transfer to be made at such time. The
Corporation shall not be required to issue or deliver any fractional shares of
Common Stock. There shall be designated as capital in respect of such new shares
an amount equal to the aggregate par value of such shares. Upon surrender by a
holder of Common Stock of a certificate or certificates for Common Stock, $0.01
par value per share, duly endorsed, at the office of the Corporation or its
agent for such purpose, the Corporation shall, as soon as practicable
thereafter, issue and deliver at such office to such holder of Common Stock, or
to the nominee or nominees of such holder, a certificate or certificates for the
number of shares of Common Stock, $0.01 par value per share, to which such
holder shall be entitled as aforesaid."
<PAGE>
SECOND: Thereafter, pursuant to resolutions of the Corporation's Board
of Directors, the amendment was submitted to the stockholders of the Corporation
for approval at a Meeting of Stockholders, and such meeting was called and held
upon notice in accordance with Section 222 of the General Corporation Law of the
State of Delaware. The necessary number of shares as required by statute were
voted in favor of the amendment.
THIRD: The said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: The said amendment is to become effective at 12:01 a.m.,
Eastern Daylight Time, on Monday, June 1, 1998.
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed by its duly authorized officers, as of this 19th day of May, 1998.
PROCEPT, INC.
By: /s/ John F. Dee
----------------------
John F. Dee, President
Attest:
/s/ Lynnette C. Fallon
- -----------------------------
Lynnette C. Fallon, Secretary
EXHIBIT 5
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PALMER & DODGE LLP
One Beacon Street
Boston, Massachusetts 02108
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
November 6, 1998
Procept, Inc.
840 Memorial Drive
Cambridge, Massachusetts 02139
We are rendering this opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by Procept, Inc. (the
"Company") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Act"), on or about the date hereof. The Registration
Statement relates to 1,473,802 shares of the Company's Common Stock, $0.01 par
value (the "Shares"), offered pursuant to the provisions of the Company's 1989
Stock Plan, as amended (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 authorization, 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 and the options or other rights granted
thereunder, 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
EXHIBIT 23.1
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
form S-8 of Procept, Inc. (the "Company") for its 1989 Stock Plan of our report,
which includes an explanatory paragraph related to the restatement of the
financial statements for the year ended December 31, 1997, dated June 15, 1998,
on our audits of the financial statements of the Company as of December 31, 1997
and 1996, and for each of the three years in the period ended December 31, 1997,
which report is included in the Company's 1997 Annual Report on Form 10-K/A
filed on June 23, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
November 3, 1998
