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As filed with the Securities and Exchange Commission on August 25, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SPECTRX, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN
ITS CHARTER)
DELAWARE 3845 58-2029543
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION
NUMBER)
6025A UNITY DRIVE
NORCROSS, GEORGIA 30071
(770) 242-8723
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1995 STOCK PLAN
EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
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MARK A. SAMUELS
CHIEF EXECUTIVE OFFICER
SPECTRX, INC.
6025A UNITY DRIVE
NORCROSS, GEORGIA 30071
(770) 242-8723
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
------------------------------------
Copies to:
ROBERT D. BROWNELL, ESQ.
KELLY AMES MOREHEAD, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
------------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED
AMOUNT OFFERING MAXIMUM
TITLE OF EACH CLASS OF TO BE PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
--------------------------- ---------- --------- -------------- ----------------
<S> <C> <C> <C> <C>
1995 Stock Plan 658,075 shares $0.6466 $ 425,530.35 $ 128.95
Common Stock, $0.001 par value
(currently outstanding options) (1)......
1995 Stock Plan 767,560 shares $6.5000 $4,989,140.00 $1,511.86
Common Stock, $0.001 par value
(options available for future grant) (2).
TOTAL 1995 STOCK PLAN SHARES REGISTERED 1,425,635 SHARES $5,414,670.35 $1,640.81
Employee Stock Purchase Plan 214,286 shares $6.5000 $1,392,859.00 $422.08
Common Stock, $0.001 par value (3).......
TOTAL REGISTRATION FEES $2,062.89
</TABLE>
(1) The computation is based upon the weighted average exercise price per
share of approximately $0.6466 as to 658,075 outstanding but unexercised
options to purchase Common Stock under the 1995 Stock Plan (the
"Currently Outstanding Options"). The Maximum Offering Price Per Share is
approximate because the Currently Outstanding Options were subject to a
reverse-split of the Common Stock of the Registrant in February 1997.
Accordingly, while the number of shares underlying the Currently
Outstanding Options are adjusted to reflect the reverse-split, the
Maximum Aggregate Offering Price payable for such shares is fixed
pursuant to the pre-split terms of each option.
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(c) under the Securities Act of 1933 as to the
remaining 767,560 shares of Common Stock authorized for issuance pursuant
to the 1995 Stock Plan, solely for the purpose of calculating the
registration fee. No options have been granted with respect to such
shares. The computation is based upon the average of the high and low
price of the Common Stock as reported on the Nasdaq National Market on
August 18, 1997 because the price at which the options to be granted in
the future may be exercised is not currently determinable.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for
the purpose of calculating the registration fee. The computation is based
upon 85% (see explanation in following sentence) of the average of the
high and low price of the Common Stock as reported on the Nasdaq National
Market on August 18, 1997 because the price at which the options to be
granted in the future may be exercised is not currently determinable.
Pursuant to the Employee Stock Purchase Plan, which plan is incorporated
by reference herein, the Purchase Price of a share of Common Stock shall
mean an amount equal to 85% of the Fair Market Value of a share of Common
Stock on the Enrollment Date or the Exercise Date, whichever is lower.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The audited financial statements for the Registrant's fiscal year ended
December 31, 1996 contained in the Prospectus, dated July 1, 1997, filed
pursuant to Rule 424(b)(4) under the Securities Act of 1933 on July 2,
1997.
(b) The Form 10-Q of the Registrant filed pursuant to Section 31(a) of the
Securities Exchange Act of 1934 (the "Exchange Act") on August 12, 1997.
(c) The description of the Common Stock of the Registrant that is contained
in the Registration Statement on Form 8-A filed pursuant to Section 12 of
the Exchange Act on June 11, 1997.
(d) All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the filing 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 the 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.
Robert D. Brownell, a member of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, is Assistant Secretary of the Registrant. Wilson
Sonsini Goodrich & Rosati is corporate counsel to the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has adopted provisions in its Certificate of Incorporation
that eliminate the personal liability of its directors and officers for monetary
damages arising from a breach of their fiduciary duties in certain circumstances
to the fullest extent permitted by law and authorizes the Registrant to
indemnify its directors and officers to the fullest extent permitted by law.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by the General
Corporation Law of Delaware, including circumstances in which indemnification is
otherwise discretionary under Delaware law. Section 145 of the General
Corporation Law of Delaware provides for the indemnification of officers,
directors and other corporate agents in terms sufficiently broad to indemnify
such persons, under certain circumstances, for certain liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933
(the "Securities Act"). The Registrant has entered into indemnification
agreements to such effect with its officers and directors containing provisions
which are in some respects broader than the specific indemnification provisions
contained in the General Corporation Law of Delaware. The indemnification
agreements may require the
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Company, among other things, to indemnify such officers and directors against
certain liabilities that may arise by reason of their status or service as
directors or officers (other than liabilities arising from willful misconduct of
a culpable nature) and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed as
part hereof, or incorporated by reference into, this Registration Statement.
(See Exhibit Index below).
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 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) 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
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 an 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 foregoing provisions, 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 Securities 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Norcross, State of Georgia on August 25, 1997.
SPECTRX, INC.
By: /s/ THOMAS H. MULLER, JR.
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Thomas H. Muller, Jr.
Executive Vice President, Chief Financial
Officer and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas H. Muller, Jr. and Mark A.
Samuels, jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any 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 each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ MARK A. SAMUELS Director, President and August 25, 1997
- --------------------- Chief Executive Officer*
Mark A. Samuels
/s/ KEITH D. IGNOTZ Director and Chief Operating August 25, 1997
- --------------------- Officer*
Keith D. Ignotz
/s/ THOMAS H. MULLER, JR. Executive Vice President, August 25, 1997
- --------------------- Chief Financial Officer and
Thomas H. Muller, Jr. Secretary (Principal Financial
and Accounting Officer)
/s/ JACK R. KELLY, JR. Director* August 25, 1997
- ---------------------
Jack R. Kelly, Jr.
/s/ CHARLES G. HADLEY Director* August 25, 1997
- ---------------------
Charles G. Hadley
* The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant.
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Number Exhibit Document Numbered Page
-------------- ---------------- -------------
<S> <C> <C>
4.1* Certificate of Incorporation of Registrant
4.2* Bylaws of Registrant
4.3* 1995 Stock Plan
4.4* Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to
the legality of securities being registered (Counsel to the Registrant)
24.1 Consent of Arthur Andersen & Co. (Independent Auditors)
24.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(contained in Exhibit 5.1 hereto)
25.1 Power of Attorney (see page II-5)
</TABLE>
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* Incorporated by reference to the Company's Registration Statement on Form
S-1 (File No. 333-22429), effective June 30, 1997.
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[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
EXHIBIT 5.1
August 25, 1997
SpectRx, Inc.
6025 A Unity Drive
Norcross GA 30071
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 or about August 25, 1997
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of the 1995 Stock Plan (as to 1,425,635
shares) and of the Employee Stock Purchase Plan (as to 214,286 shares)
(collectively, the "Plans" and the "Shares" as appropriate). As legal counsel
for SpectRx, Inc., 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 the Shares, when issued and sold in the
manner described in the Plans and pursuant to the agreement that accompanies
each grant under the Plans, 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
Professional Corporation
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EXHIBIT 24.1
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 relating
to the 1995 Stock Plan and the Employee Stock Purchase Plan of SpectRx, Inc. of
our report dated February 24, 1997 included in SpectRx, Inc.'s Prospectus dated
July 1, 1997.
/s/ ARTHUR ANDERSEN LLP
Atlanta, Georgia
August 19, 1997
