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As filed with the Securities and Exchange Commission on August 5, 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
CN Biosciences, Inc.
(Exact name of registrant as specified in its charter)
Delaware 33-0509785
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10394 Pacific Center Court
San Diego, California 92121
(619) 450-5500
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
CN Biosciences, Inc. Second Amended and Restated 1992 Stock Option Plan
(Full title of the plan)
James G. Stewart
Vice President, Chief Financial Officer and Secretary
CN Biosciences, Inc.
10394 Pacific Center Court
San Diego, California 92121
(619) 450-5500
(Name, address, including zip code and telephone number
including area code, of agent for service)
with copies to:
Peter H. Jakes, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
(212) 821-8000
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered(1) Registered(1) Offering Price Aggregate Offering Registration
per Share (2) Price (2) Fee
- --------------------------------------- ---------------- -------------------- ------------------- ---------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 250,000 $18.25 $4,562,500 $1,382.58
====================================================================================================================
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(1) Represents the shares of Common Stock issuable pursuant to the CN
Biosciences, Inc. Second Amended and Restated 1992 Stock Option Plan.
(2) Calculated pursuant to Rule 457(c) and (h) on the basis of the average of
the high and low prices of the Common Stock as reported on the Nasdaq Stock
Market on August 4, 1997.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by CN Biosciences, Inc., a Delaware corporation
(the "Company"), are incorporated by reference into this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the year ended December 31,
1996; (b) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997; and (c) the description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A filed with the Commission,
and any amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date of this Registration Statement and prior to the termination of this
offering of securities shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of the filing of such reports and
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") provides that the Company shall indemnify each
person who is or was a director or officer of the Company to the fullest extent
permitted under the Delaware General Corporation Law. Section 145 of the
Delaware General Corporation Law empowers a Delaware corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. A corporation may indemnify such person
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. A corporation may, in
advance of the final disposition of any civil, criminal, administrative or
investigative action, suit or proceeding, pay the expenses (including attorneys'
fees) incurred by any officer or director in defending such action, provided
that the director or officer undertakes to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation.
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A Delaware corporation may also indemnify officers and directors in an
action by or in the right of the corporation to procure a judgment in its favor
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses (including attorneys' fees) which he actually
and reasonably incurred in connection therewith. The indemnification provided is
not deemed to be exclusive of any other rights to which an officer or director
may be entitled under any corporation's by-laws, agreements, vote of
stockholders or disinterested directors or otherwise.
The Certificate of Incorporation provides that a director of the
Company will not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, which concerns unlawful payments of
dividends, stock purchases or redemptions or (iv) for any transaction from which
the director derived an improper personal benefit.
While the Certificate of Incorporation provides directors with
protection from awards for monetary damages for breaches of their duty of care,
it does not eliminate such duty. Accordingly, the Certificate of Incorporation
will have no effect on the availability of equitable remedies such as an
injunction or rescission based on a director's breach of his or her duty of
care. The provisions of the Certificate of Incorporation described above apply
to an officer of the Company only if he or she is a director of the Company and
is acting in his or her capacity as director, and do not apply to officers of
the Company who are not directors.
The Company's Amended and Restated By-Laws provide that the Company
shall indemnify any and all of its directors or officers, who shall serve as an
officer or director of the Company or of any other corporation at the request of
the Company, to the fullest extent permitted under and in accordance with the
laws of the State of Delaware.
The Company has entered into indemnification agreements with certain of
its directors and officers pursuant to which the Company provides
indemnification and contribution against expenses and losses incurred for claims
brought against them by reason of their being an officer or director of the
Company. Members of the Stock Option Committee of the Board of Directors are
also indemnified by the Company in connection with their administration of the
Company's Second Amended and Restated 1992 Stock Option Plan. The Company
maintains a directors' and officers' liability insurance policy.
Joseph P. Landy and S. Joshua Lewis, nominees of Warburg, Pincus
Investors, L.P. ("Warburg") to the Company's Board of Directors, are entitled to
indemnification by Warburg for liabilities incurred as a result of their service
as directors of the Company.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
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Item 8. EXHIBITS
Exhibit Number Description of Document
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5 Opinion of Willkie Farr & Gallagher
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Willkie Farr & Gallagher (included
in their opinion filed as Exhibit 5 hereto)
24 Powers of Attorney (included on the signature page hereto)
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, as amended (the "Securities Act").
(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. 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 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% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(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 paragraphs (1)(i) and (1)(ii) above do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by such registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") that are incorporated by reference 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 the initial bona
fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provision, or otherwise, the
registrant has been advised that in the opinion of the 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 Securities 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, 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 San Diego, State of California, on August 5, 1997.
CN BIOSCIENCES, INC.
By:/s/ James G. Stewart
Name: James G. Stewart
Title: Vice President, Chief
Financial Officer and Secretary
POWER OF ATTORNEY
Each of the undersigned officers and directors of CN Biosciences, Inc.
hereby severally constitutes and appoints Stelios B. Papadopoulos and James G.
Stewart, and each of them as the attorneys-in-fact for the undersigned, in any
and all capacities, with full power of substitution, to sign any and all
amendments to this Registration Statement, and to file the same with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact, or either of them, may lawfully
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 and on the dates indicated.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stelios B. Papadopoulos Chairman of the Board of Directors, August 5, 1997
Stelios B. Papadopoulos Chief Executive Officer and
President (Principal executive officer)
/s/ James G. Stewart Vice President, Chief Financial August 5, 1997
James G. Stewart Officer and Secretary (Principal
financial and accounting officer)
/s/ Joseph P. Landy Director August 5, 1997
Joseph P. Landy
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Richard A. Lerner Director August 5, 1997
Richard A. Lerner
________________________ Director _______, 1997
S. Joshua Lewis
/s/ Robert E. McGill, III Director August 5, 1997
Robert E. McGill, III
</TABLE>
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INDEX TO EXHIBITS
Exhibit Number Description of Document
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5 Opinion of Willkie Farr & Gallagher
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Willkie Farr & Gallagher (included
in their opinion filed as Exhibit 5 hereto)
24 Powers of Attorney (included on the signature page hereto)
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Exhibit 5
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Telephone: (212) 821-8000
Facsimile: (212) 821-8111
August 5, 1997
CN Biosciences, Inc.
10394 Pacific Center Court
San Diego, CA 92121
Ladies and Gentlemen:
We are delivering this opinion in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed by CN Biosciences, Inc. (the
"Company") on August 5, 1997, with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Act"), with respect to 250,000
shares (the "Shares"), par value $.01 per share, of common stock of the Company
(the "Common Stock"). The Shares are issuable upon the exercise of stock options
to be granted to participants (the "Participants") under the CN Biosciences,
Inc. Second Amended and Restated 1992 Stock Option Plan (the "Plan").
We have examined and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments, and have made such investigations of law, as we have
deemed necessary and advisable. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to authentic originals of all documents
submitted to us as copies.
Based upon the foregoing, we are of the opinion that:
<PAGE>
CN Biosciences
August 5, 1997
Page 2
The Shares have been duly authorized and, when issued, delivered and
sold by the Company and paid for by the Participants pursuant to the
terms of the Plan for consideration in excess of $.01 per share, will
be validly issued, fully paid and non-assessable shares of Common Stock
of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above. We do not admit by giving this consent
that we are in the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
/s/ Willkie Farr & Gallagher
<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Second Amended and Restated 1992 Stock Option Plan of
CN Biosciences, Inc. of our reports dated February 21, 1997, with respect to the
consolidated financial statements and schedule of CN Biosciences, Inc. included
or incorporated by reference in its Annual Report on Form 10-K for the year
ended December 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
August 5, 1997
