-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DC8ph17K6wddB9r0hQgLwINIKIp+cQWLpo3hO6b4460D3QKEUxZLy7IHdnIhhH0R hSfzSEYHw+PGvJ9pQEvIJg== 0000927016-02-005728.txt : 20021127 0000927016-02-005728.hdr.sgml : 20021127 20021127124849 ACCESSION NUMBER: 0000927016-02-005728 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20021127 EFFECTIVENESS DATE: 20021127 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SONTRA MEDICAL CORP CENTRAL INDEX KEY: 0001031927 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 411649949 STATE OF INCORPORATION: MN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-101517 FILM NUMBER: 02842764 BUSINESS ADDRESS: STREET 1: 58 CHARLES STREET CITY: CAMBRIDGE STATE: MA ZIP: 02141 BUSINESS PHONE: 6174945337 MAIL ADDRESS: STREET 1: 58 CHARLES STREET CITY: CAMBRIDGE STATE: MA ZIP: 02141 FORMER COMPANY: FORMER CONFORMED NAME: INTELLIPHONE INC DATE OF NAME CHANGE: 19970625 FORMER COMPANY: FORMER CONFORMED NAME: CHOICETEL COMMUNICATIONS INC /MN/ DATE OF NAME CHANGE: 19970625 FORMER COMPANY: FORMER CONFORMED NAME: SONTRA MEDICAL CORP DATE OF NAME CHANGE: 20020701 FORMER COMPANY: FORMER CONFORMED NAME: CHOICETEL COMMUNICATIONS INC/MN/ DATE OF NAME CHANGE: 20020701 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on November 27, 2002 Registration No. 333-54618 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________ 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 ================================================================================ CALCULATION OF REGISTRATION FEE ================================================================================
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)/ - ----------------------------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value 500,000/(2)/ $4.47 $2,235,000 $205.62 - -----------------------------------------------------------------------------------------------------------------------------
(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. -2- 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). -3- 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. -4- 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 -5- 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. -6- 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 -------------------------------- 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 - ------------------------------- James R. McNab, Jr. /s/ Thomas W. Davison President, Chief Executive Officer and November 27, 2002 - ------------------------------- Thomas W. Davison Director (Principal Executive Officer) /s/ Sean F. Moran Chief Financial Officer November 27, 2002 - ------------------------------- Sean F. Moran (Principal Financial and Accounting Officer) /s/ Joseph Kost Chief Scientific Officer and Director November 27, 2002 - ------------------------------- Joseph Kost /s/ Robert S. Langer Director November 26, 2002 - ------------------------------- Robert S. Langer /s/ Martin P. Sutter Director November 26, 2002 - ------------------------------- Martin P. Sutter /s/ W. Leigh Thompson Director November 26, 2002 - ------------------------------- W. Leigh Thompson /s/ Gary S. Kohler Director November 26, 2002 - ------------------------------- Gary S. Kohler /s/ Michael Wigley Director November 26, 2002 - ------------------------------- Michael Wigley
-7- 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. -8- EX-5.1 3 dex51.txt OPINION OF TESTA, HURWITZ & THIBEAULT, LLP EXHIBIT 5.1 November 26, 2002 Sontra Medical Corporation 58 Charles Street Cambridge, MA 02141 Re: Registration Statement on Form S-8 Relating to Sontra Medical Corporation 401(k) Retirement Plan (the "Plan") Dear Sir or Madam: Reference is made to the above-captioned Registration Statement on Form S-8 (the "Registration Statement") filed by Sontra Medical Corporation (the "Company") on the date hereof with the Securities and Exchange Commission under the Securities Act of 1933 relating to an aggregate of 500,000 additional shares of Common Stock, par value $0.01 per share, of the Company issuable pursuant to the Plan (the "Shares"). We have examined, are familiar with, and have relied as to factual matters solely upon, a copy of the Plan, the Company's Articles of Incorporation, as amended, the Company's By-Laws, the minute books and stock records of the Company, and originals or certified copies of such other certificates, documents, records and materials as we have deemed necessary for the purpose of rendering this opinion. Based upon the foregoing, we are of the opinion that the Shares have been duly authorized and, when issued in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Very truly yours, /s/ TESTA HURWITZ & THIBEAULT, LLP TESTA HURWITZ & THIBEAULT, LLP EX-23.1 4 dex231.txt CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the use in the Registration Statement on Form S-8 of Sontra Medical Corporation of our report dated March 14, 2002 except for the last paragraph of Note 7 for which the date is April 22, 2002 relating to the consolidated financial statements of ChoiceTel Communications, Inc. and its subsidiary, which appears in such Registration Statement by reference. We also consent to the reference to us under the heading "Experts" in such Registration Statement. /s/ Schechter Dokken Kanter Andrews & Selcer Ltd. -------------------------------------------------- Schechter Dokken Kanter Andrews & Selcer Ltd. Minneapolis, Minnesota November 25, 2002 -----END PRIVACY-ENHANCED MESSAGE-----