As filed with the Securities and Exchange Commission on November 27, 2002
Registration No. 333-54618
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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Sontra Medical Corporation
(Exact Name of Registrant as specified in its charter)
Minnesota 41-1649949
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
58 Charles Street
Cambridge, MA 02141
(Address of Principal Executive Offices) (Zip Code)
___________________________
Sontra Medical Corporation 401(k) Retirement Plan
(Full title of the plan)
___________________________
Thomas W. Davison
Chief Executive Officer
Sontra Medical Corporation
58 Charles Street
Cambridge, MA 02141
(Name and Address of Agent for Service of Process)
(617) 494-5337
(Telephone Number, Including Area Code, of Agent For Service)
___________________________
Copy to:
Lawrence S. Wittenberg, Esq.
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Offering Maximum
Title of Securities Amount to be Price Per Aggregate Amount of
to be Registered Registered Share/(1)/ Offering Price/(1)/ Registration Fee/(1)/
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Common Stock, $.01 par value 500,000/(2)/ $4.47 $2,235,000 $205.62
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(1) The registration fee has been calculated pursuant to Rule 457(h) under the
Securities Act of 1933, as amended, on the basis of the average of the high
and low reported price of the Common Stock of Sontra Medical Corporation on
the Nasdaq SmallCap Market on November 20, 2002.
(2) Consists of 500,000 shares issuable under the Sontra Medical Corporation
401(k) Retirement Plan. In addition, pursuant to Rule 416(a), this
Registration Statement also covers such indeterminate number of additional
shares of Common Stock as is necessary to eliminate any dilutive effect of
any future stock split, stock dividend or similar transaction.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others who participate in the Sontra
Medical Corporation 401(k) Retirement Plan (the "Plan") as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will
be sent or given to employees, directors or others who participate in the Plan
as specified by Rule 428(b). In accordance with the rules and regulations of the
Commission and the instructions to Form S-8, such documents are not being filed
with the Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2001 filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Registrant's Quarterly Report on Form 10-QSB for the fiscal quarter
ended September 30, 2002 filed with the Commission pursuant to the
Exchange Act;
(c) The Registrant's Quarterly Report on Form 10-QSB for the fiscal quarter
ended June 30, 2002 filed with the Commission pursuant to the Exchange
Act;
(d) The Registrant's Quarterly Report on Form 10-QSB for the fiscal quarter
ended March 31, 2002 filed with the Commission pursuant to the Exchange
Act;
(e) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Registrant's document referred to in (a) above; and
(f) The section entitled "Description of Registrant's Securities to be
Registered" contained in the Registrant's Registration Statement on
Form 8-A, filed pursuant to Section 12(g) of the Exchange Act on
November 12, 1997, and incorporating by reference the information
contained in the Registrant's Registration Statement on Form SB-2
(Registration No. 333-29969).
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All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein 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 a part thereof 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 302A.521 of the Minnesota Business Corporation Act provides
that unless prohibited or limited by a corporation's articles of incorporation
or bylaws, the Company must indemnify its current and former officers,
directors, employees and agents against reasonable expenses (including
attorneys' fees), judgments, penalties, fines and amounts paid in settlement and
which were incurred in connection with actions, suits, or proceedings in which
such persons are parties by reason of the fact that they are or were an officer,
director, employee or agent of the corporation, if they (i) have not been
indemnified by another organization, (ii) acted in good faith, (iii) received no
improper personal benefit, (iv) in the case of a criminal proceeding, had no
reasonable cause to believe the conduct was unlawful, and (v) reasonably
believed that the conduct was in the best interests of the corporation. Section
302A.521 also permits a corporation to purchase and maintain insurance on behalf
of its officers, directors, employees and agents against any liability which may
be asserted against, or incurred by, such persons in their capacities as
officers, directors, employees and agents of the corporation, whether or not the
corporation would have been required to indemnify the person against the
liability under the provisions of such section.
Article Sixth of the Registrant's Amended and Restated Articles of
Incorporation, as amended, eliminates the personal liability of directors to the
Registrant or its stockholders for monetary damages for breaches of their
fiduciary duty to the fullest extent permitted by the Minnesota Business
Corporation Act. Article VII of the Registrant's Bylaws provides that the
directors, officers and committee members of the Company and other persons shall
have the rights to indemnification provided by Section 302A.521 of the Minnesota
Business Corporation Act.
The effect of these provisions would be to permit such indemnification
by the Registrant for liabilities arising under the Securities Act of 1933, as
amended, to the extent permitted under such act.
The Registrant has directors' and officers liability insurance.
Item 7. Exemption From Registration Claimed.
Not applicable.
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Item 8. Exhibits.
The Registrant hereby undertakes that, for purposes of qualifying the
Plan under Section 401 of the Internal Revenue Code, the Registrant will submit
or has submitted the Plan and any amendment thereto to the Internal Revenue
Service ("IRS") in a timely manner and has made or will make all changes
required by the IRS in order to qualify the Plan.
Exhibit No. Description of Exhibit
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Schechter Dokken Kanter Andrews & Selcer Ltd.
23.2* Consent of Arthur Andersen LLP (omitted pursuant to Rule
437(a))
23.3 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1)
24.1 Power of Attorney (included as part of the signature page of
this Registration Statement)
* After reasonable efforts, the Registrant has not been able to obtain
the consent of Arthur Andersen LLP to the incorporation into this
Registration Statement on Form S-8, of their report with respect to the
Registrant's financial statements, which appeared in the Registrant's
Registration Statement on Form S-4/A as filed with the Securities and
Exchange Commission on May 16, 2002. Under these circumstances, Rule
437(a) under the Securities Act of 1933, as amended, permits this
Registration Statement to be filed without a written consent from
Arthur Andersen. Because Arthur Andersen has not consented to the
incorporation by reference of their report into this Registration
Statement, you will not be able to assert claims against Arthur
Andersen under Section 11 of the Securities Act of 1933, as amended,
for any untrue statement of a material fact contained in the
Registrant's financial statements incorporated herein or any omissions
to state a material fact required to be stated therein.
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 (unless the information required by paragraphs (i)
and (ii) below is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Registration Statement):
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
which, individually or together, represent a fundamental
change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering
range may be reflected in the form
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of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) To include any additional or changed material
information with respect to the plan of distribution.
(2) For determining liability under the Securities Act, to
treat each post-effective amendment as a new registration
statement of the securities offered, and the offering of the
securities at that time to be the initial bona fide offering.
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the
end of the offering.
(h) 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 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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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, in the Commonwealth of Massachusetts, on
this 27th day of November, 2002.
SONTRA MEDICAL CORPORATION
By: /s/ Thomas W. Davison
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Thomas W. Davison
November 27, 2002 Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Sontra Medical
Corporation, hereby severally constitute and appoint Thomas W. Davison and Sean
F. Moran, and each of them singly, our true and lawful attorneys, with full
power to them and each of them singly, to sign for us in our names in the
capacities indicated below, all pre-effective and post-effective amendments to
this Registration Statement and any related subsequent registration statement
pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and generally
to do all things in our names and on our behalf in such capacities to enable
Sontra Medical Corporation to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the Securities and Exchange
Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of the
registrant in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ James R. McNab, Jr. Chairman of the Board and Director November 26, 2002
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James R. McNab, Jr.
/s/ Thomas W. Davison President, Chief Executive Officer and November 27, 2002
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Thomas W. Davison Director (Principal Executive Officer)
/s/ Sean F. Moran Chief Financial Officer November 27, 2002
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Sean F. Moran (Principal Financial and Accounting Officer)
/s/ Joseph Kost Chief Scientific Officer and Director November 27, 2002
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Joseph Kost
/s/ Robert S. Langer Director November 26, 2002
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Robert S. Langer
/s/ Martin P. Sutter Director November 26, 2002
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Martin P. Sutter
/s/ W. Leigh Thompson Director November 26, 2002
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W. Leigh Thompson
/s/ Gary S. Kohler Director November 26, 2002
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Gary S. Kohler
/s/ Michael Wigley Director November 26, 2002
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Michael Wigley
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Schechter Dokken Kanter Andrews & Selcer Ltd.
23.2* Consent of Arthur Andersen LLP (omitted pursuant to Rule 437(a))
23.3 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit
5.1)
24.1 Power of Attorney (included as part of the signature page of this
Registration Statement)
* After reasonable efforts, the Registrant has not been able to obtain the
consent of Arthur Andersen LLP to the incorporation into this Registration
Statement on Form S-8, of their report with respect to the Registrant's
financial statements, which appeared in the Registrant's Registration
Statement on Form S-4/A as filed with the Securities and Exchange
Commission on May 16, 2002. Under these circumstances, Rule 437(a) under
the Securities Act of 1933, as amended, permits this Registration
Statement to be filed without a written consent from Arthur Andersen.
Because Arthur Andersen has not consented to the incorporation by
reference of their report into this Registration Statement, you will not
be able to assert claims against Arthur Andersen under Section 11 of the
Securities Act of 1933, as amended, for any untrue statement of a material
fact contained in the Registrant's financial statements incorporated
herein or any omissions to state a material fact required to be stated
therein.
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