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As filed with the Securities and Exchange Commission on May 24, 2000
Registration Statement No. 333-___
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VENTANA MEDICAL SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 94-2976937
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
3865 North Business Center Drive, Tucson, Arizona 85705
(Address of Principal Executive Offices) (Zip Code)
1996 Employee Stock Purchase Plan
1996 Employee Stock Option Plan
(Full Title of the Plan)
Jay Meridew
Vice President of Finance
Ventana Medical Systems, Inc.
3865 North Business Center Drive
Tucson, Arizona 85705
(Name and Address of Agent for Service)
(520) 887-2155
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Christian J. Hoffmann, III, Esq.
Streich Lang, P.A.
Renaissance One
Two North Central Avenue
Phoenix, Arizona 85004
(602) 229-5336
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum Amount of
Title of Securities To Be Amount To Be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
---------- ---------- ------------ ----------------- ---
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 1,675,000 $ 26.75 $ 44,806,250 $ 13,501
per share
</TABLE>
(1) Estimated pursuant to Rule 457(c) and (h) under the Securities Act of
1933, as amended (the "Act"), solely for purposes of calculating the
registration fee. The calculation is based on the average of the high
and low prices as quoted on the Nasdaq National Market on May 3, 2000,
1999 (the "Market Price").
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This Registration Statement is filed pursuant to General Instruction E
of Form S-8 for the purpose of registering an additional 1,475,000 shares of
common stock, par value $.001 per share (the "Common Stock"), of Ventana Medical
Systems, Inc., a Delaware corporation (the "Registrant"), issuable pursuant to
the Registrant's 1996 Employee Stock Option Plan and an additional 200,000
shares of Common Stock issuable pursuant to the Registrant's 1996 Employee Stock
Purchase Plan. The Registrant's previously filed Registration Statement on Form
S-8 (No.333-16707), as filed with the Securities and Exchange Commission (the
"Commission") on November 19, 1996, is hereby incorporated by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission by the registrant are hereby incorporated by
reference in this Registration Statement:
(1) Annual Report on Form 10-K for the fiscal year ended December
31, 1999;
(2) Definitive Proxy Statement used in connection with the
Company's Annual Meeting of Stockholders held on May 4, 2000,
other than the portions of such document, which by statute, by
designation in such document or otherwise, are not deemed to
be filed with the Commission or are not required to be
incorporated herein by reference; and
(3) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all
securities registered 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.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law
(the "DGCL"), Article X of the Company's Restated Certificate of Incorporation
(the "Restated Certificate of Incorporation") eliminates the liability of the
Company's directors to the Company or its stockholders, except for liabilities
related to breach of duty of loyalty, actions not in good faith and certain
other liabilities.
Section 145 of the DGCL provides for indemnification by the Company of
its directors and officers. In addition, Article VI of the Company's Bylaws
requires the Company to indemnify any
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current or former director or officer to the fullest extent permitted by the
DGCL. In addition, the Company has entered into indemnity agreements with its
directors and executive officers that obligate the Company to indemnify such
directors and executive officers to the fullest extent permitted by the DGCL.
The Company also maintains officers' and directors' liability insurance, which
insures against liabilities that officers and directors of the Company may incur
in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index at Page E-1 of this Registration Statement.
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 the Registration Statement (or the
most recent post-effective amendment thereof), which, individually or
in the aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) 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.
Provided, however, that paragraph (A)(1)(i) and (A)(1)(ii) do not apply
if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
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.
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B. The undersigned Registrant 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 Company pursuant to the foregoing provisions described under Item
6 above, or otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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, hereunto duly
authorized, in the City of Tucson, State of Arizona, on this 24 day of May,
2000.
VENTANA MEDICAL SYSTEMS, INC.
By: /s/ Jay Meridew
----------------------------------
Jay Meridew, Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Jay Meridew and Christopher M.
Gleeson and each of them acting individually, as his attorney-in-fact, each with
full power of substitution, for him in any and all capacities, to sign any and
all amendments to this Registration Statement on Form S-8, 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
said attorney-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 by the following persons in the
capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Christopher M. Gleeson President and Chief Executive Officer May 24, 2000
- ---------------------------- (Principal Executive Officer)
Christopher M. Gleeson
/s/ Jay Meridew Vice President, Chief Financial Officer and Secretary May 24, 2000
- ---------------------------- (Principal Financial and Accounting Officer)
Jay Meridew
/s/ Edward M. Giles Director May 24, 2000
- ----------------------------
Edward M. Giles
/s/ Thomas M. Grogan Director May 24, 2000
- ----------------------------
Thomas M. Grogan
/s/ John Patience Director May 24, 2000
- ----------------------------
John Patience
/s/ Jack W. Schuler Director May 24, 2000
- ----------------------------
Jack W. Schuler
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ James R. Weersing Director May 24, 2000
- ----------------------------
James R. Weersing
/s/ Rex J. Bates Director May 24, 2000
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Rex J. Bates
/s/ Henry T. Pietraszek Director May 24, 2000
- ----------------------------
Henry T. Pietraszek
</TABLE>
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VENTANA MEDICAL SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1(1) 1996 Employee Stock Option Plan with forms of agreements used
thereunder
4.2(1) 1996 Employee Stock Purchase Plan with forms of agreements
used thereunder
5.1 Opinion of counsel as to legality of securities being
registered
23.1 Consent of counsel (contained in Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney (contained in signature pages on page 4 of
this registration statement)
</TABLE>
(1) Incorporated by reference from Registration Statement on Form S-B
(333-16707) as filed with the Securities and Exchange Commission on
November 19, 1996.
E-1
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EXHIBIT 5.1
May 24, 2000
Ventana Medical Systems, Inc.
3865 North Business Center Drive
Tucson, AZ 85705
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We are familiar with the proceedings taken and proposed to be taken by
Ventana Medical Systems, Inc., a Delaware corporation (the "Company"), with
respect to 1,675,000 shares of Common Stock, par value $.001 per share (the
"Shares"), of the Company to be offered and sold from time to time pursuant to
the Company's 1996 Employee Stock Option Plan (the "Option Plan") and the
Company's 1996 Employee Stock Purchase Plan (the "Purchase Plan"). As counsel
for the Company, we have assisted in the preparation of a Registration Statement
on Form S-8 to be filed by the Company with the Securities and Exchange
Commission to effect the registration of the Shares under the Securities Act of
1933, as amended.
In this connection, we have examined the Certificate of Incorporation
and By-Laws of the Company, records of proceedings of the Board of Directors and
stockholders of the Company, and such other records and documents as we have
deemed necessary or advisable to render the opinion contained herein. Based upon
our examination and inquiries, we are of the opinion that the Shares, when
issued pursuant to the terms and conditions of the Option Plan and Purchase
Plan, will be duly authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement described above.
Very truly yours,
Christian J. Hoffmann, III
For the Firm
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1996 Employee Stock Option Plan and 1996 Employee Stock
Purchase Plan of Ventana Medical Systems, Inc. of our report dated January 27,
2000, with respect to the consolidated financial statements of Ventana Medical
Systems, Inc. included in its Annual Report on (Form 10-K) for the year ended
December 31, 1999 and our report dated January 27, 2000 on the financial
statement schedule included therein, filed with the Securities and Exchange
Commission.
Tucson, Arizona
May 24, 2000
