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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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CORNING CLINICAL LABORATORIES INC.
(to be renamed Quest Diagnostics Incorporated)
(Exact name of issuer as specified in its charter)
Delaware 16-1387862
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Malcolm Drive
Teterboro, New Jersey 07608
(Address) (Zip Code)
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QUEST DIAGNOSTICS INCORPORATED
EMPLOYEES EQUITY PARTICIPATION PROGRAM
(FULL TITLE OF THE PLAN)
Leo C. Farrenkopf. Jr.
Vice President
Corning Clinical Laboratories Inc.
One Malcolm Avenue
Teterboro, NJ 07608
201 - 393 - 5143
(Name, address, and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed maximum Proposed maximum Amount of
Title of Securities Amount being offering price aggregate registration
being registered registered per share offering price (4) fee
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<S> <C> <C> <C> <C>
Common Stock par value
$.01 per share...........3,000,000 shs (1) $12.50(2) $37,500,000 $11,364
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</TABLE>
(1) Plus such indeterminate number of shares of Common Stock as may be
required in the event of an adjustment as a result of an increase in
the number of shares of Common Stock resulting from certain stock
dividends or a reclassification of the Common Stock.
(2) There is currently no public trading market for the common stock of the
registrant, which will remain a wholly owned subsidiary of Corning
Incorporated until December 31, 1996. On such date all of the
registrant's then outstanding common stock will be distributed pro rata
to the holders of the common stock of Corning Incorporated. The
proposed maximum offering price is estimated.
(3) Estimated solely for the purpose of calculating of the registration fee.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following document filed with the Securities and Exchange
Commission is incorporated herein by reference:
Amendment No. 4 to the Registration Statement on Form 10 (File
No.1-12215) filed by the Company and declared effective on
November 26, 1996.
All documents filed by the Company pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act 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 this Registration Statement and to be a part hereof from the date of filing
of such documents.
Item 5. Interests of Named Experts and Counsel
Leo C. Farrenkopf, Jr. Esq., Vice President and Associate General
Counsel of the Company, has rendered an opinion as to the legality of the shares
of the Common Stock offered pursuant to this Registration Statement. Mr.
Farrenkopf owns substantially less than 1% of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers
Limitation on Liability of Directors
Pursuant to authority conferred by Section 102 of the Delaware General
Corporation Law ("DGCL") Paragraph 11 of the Company's Certificate of
Incorporation ("Paragraph 11") eliminates the personal liability of the
Company's directors to the Company or its stockholders for monetary damages for
breach of fiduciary duty, including without limitation, directors serving on
committees of the Company's Board of Directors. Directors remain liable for (1)
any breach of the duty of loyalty to the Company or its stockholders, (2) any
act or omission not in good faith or which involves intentional misconduct or a
knowing violation of law, (3) any violation of Section 174 of the DGCL, which
proscribes the payment of dividends and stock purchases or redemption under
certain circumstances, and (4) any transaction from which directors derive an
improper personal benefit.
Indemnification and Insurance
In accordance with Section 145 of the Delaware General Corporation Law
("DGCL"), which provides for the indemnification of directors, officers and
employees under certain circumstances, Paragraph 11 grants the Company's
directors and officers a right to indemnification for all expenses, liabilities
and losses relating to civil, criminal, administrative or investigative
proceedings to which they are a party (1) by reason of the fact that they are or
were directors or officers of Company, or (2) by reason of the fact that, while
they are or were directors or officers of the Company , they are serving at the
request of the Company as directors or officers of another corporation,
partnership, joint venture, trust or enterprise. Paragraph 11 further provides
for the mandatory advancement of expenses incurred by officers and directors in
defending such proceedings in advance of their final disposition upon delivery
to the Company by the indemnitee of an undertaking to repay all amounts so
advanced if it is ultimately determined that such indemnitee is not entitled to
be indemnified under Paragraph 11. The Company may not indemnify or make
advanced payments to any person in connection with proceedings initiated against
the Company by such person without authorization of the Company's Board of
Directors.
In addition, Paragraph 11 provides that the directors and officers
therein described shall be indemnified to the fullest extent permitted by
Section 145 of DGCL, or any successor provision or amendments thereunder. In the
event that any such successor provisions or amendments provide indemnification
rights broader than permitted prior thereto, Paragraph 11 allows such broader
indemnification rights to apply retroactive with respects to any predating
alleged action or inaction and also allows the indemnification to continue after
an
<PAGE>
indemnitee has ceased to be a director or officer of the Company and to inure to
the benefit of the indemnitee's heirs, executors and administrators.
Paragraph 11 further provides that the right to indemnification is not
exclusive of any right which any indemnitee may have or thereafter acquire under
any statute, the Company's Certificate of Incorporation, any agreement or vote
of stockholders or disinterested directors or otherwise, and allows the Company
to indemnify and advance expenses to any person whom the Company has the power
to indemnify under the DGCL or otherwise.
Insofar as indemnification for liabilities arising under Securities Act
may be permitted for directors and officers and controlling persons pursuant to
the foregoing provisions, the Company 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.
The Company's Certificate of Incorporation authorizes the Company to
purchase insurance for directors and officers of the Company and persons who
serve at the request of the Company as directors, officers, employees or agents
of another corporation, partnership, joint venture, trust, or enterprise,
against any expense, liability or loss incurred in such capacity, whether or not
the Company would have the power to indemnify such persons against such expense
or liability under the DGCL. The Company intends to maintain insurance coverage
of its officers and directors as well as insurance coverage to reimburse the
Company for potential costs of its corporate indemnification of directors and
officers.
Item 8. Exhibits
(4) Form of Employees Equity Participation Program
(incorporated by reference to Exhibit 10.9 to the
Company's Registration Statement on Form 10 (No.
1-12215)).
(5) Opinion and consent of Leo C. Farrenkopf, Vice President
and Associate General Counsel of registrant.
(23) (a) The consent of counsel is included in Exhibit 5 to this
Registration Statement.
(23) (b) (1) The consent of Price Waterhouse is included on Page 7 of
this Registration Statement.
(23) (b) (2) The consent of Ernst & Young LLP is included on page 8 of
this Registration Statement.
(23) (b) (3) The consent of Deloitte & Touche LLP is included on page
9 of this Registration Statement.
(23) (b) (4) The consent of Leverone & Company is included on page 10
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 include in any 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 represents 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;
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(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, the paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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.
(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 the initial bona fife offering thereof.
(c) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(d) 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, suite 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.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant, Corning Clinical Laboratories Inc. a Delaware corporation, certifies
that it has reasonable grounds to believe it meets all the requirements for
filing 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 New
York, State of New York, as of the 26th day of November, 1996.
Corning Clinical Laboratories Inc.
(Registrant)
By: Kenneth W. Freeman
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Kenneth W. Freeman,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated as of the 26th day November, 1996
Signature Capacity
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Kenneth W. Freeman President Chief Executive
- ---------------------- Officer and Director
Kenneth W. Freeman
Douglas M. VanOort Senior Vice President
- ---------------------- Chief Financial Officer
Douglas M. VanOort
Robert A. Hagemann Vice President,
- ---------------------- Controller, and Principal
Robert A. Hagemann Accounting Officer
Roger G. Ackerman Director
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Roger G. Ackerman
Van C. Campbell Director
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Van C. Campbell
David A. Duke Director
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David A. Duke
Exhibit 5
November 26, 1996
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
Dear Sirs:
I am Vice President and Associate General Counsel of Corning Clinical
Laboratories Inc. (the Company) and am familiar with the preparation and filing
of a registration statement on Form S-8 under the Securities Act of 1933, as
amended, with respect to an aggregate of 3 million shares of the Company's
Common Stock, $.01 par value, which may be sold by the Company pursuant to its
Employees Equity Participation Program (the "Plan").
In this connection, I have examined the originals, or copies certified
to my satisfaction, of such corporate records of the Company, certificates of
public officials and officers of the Company, and other documents as I deemed
pertinent as a basis for the opinions hereinafter expressed.
Based upon the foregoing, and having regard for such legal consideration as I
have deemed relevant, I am of the opinion that:
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Delaware.
2. The shares of the Company's Common Stock to be sold by the Company
pursuant to the Plan will be duly authorized, validly issued, fully paid and
non-assessable.
3. The Plan is not a qualified plan under Section 401 (a) of the
Internal Revenue Code of 2986, as amended, and is not subject to the provisions
of the Employee Retirement Income Security Act of 1974.
I consent to the filing of this opinion as an Exhibit to the
Registration statement referred to above.
Very truly yours.
/s/ Leo C. Farrenkopf, Jr.
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Leo C. Farrenkopf, Jr.
Exhibit 23(b) (1)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 20, 1996, except as to the
settlement of certain contingent liabilities described in Note 13 of the related
Corning Clinical Laboratories Inc. combined financial statements as to which the
date is November 4, 1996, appearing on Page F-2 of Corning Clinical Laboratories
Inc.'s Registration Statement on Form 10, as amended on November 26, 1996.
/s/ PRICE WATERHOUSE LLP
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PRICE WATERHOUSE LLP
New York, New York
November 27, 1996
Exhibit 23(b)(2)
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 Corning Clinical Laboratories Inc. Employees Equity
Participation Program of our report dated May 19, 1994, relating to the combined
financial statements of Maryland Medical Laboratory, Inc. and affiliates (not
presented separately therein) included in Corning Clinical Laboratories Inc.
Registration Statement on Form 10 dated November 26, 1996.
/s/ Ernst & Young LLP
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Baltimore, Maryland
November 22, 1996
Exhibit 23(b)(3)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Corning Clinical Laboratories Inc. on Form S-8 of our report dated February 28,
1994, appearing in the Registration Statement on Form 10 of Corning Clinical
Laboratories Inc. relating to the consolidated statements of operations,
stockholders' equity and cash flows for the year ended December 31, 1993 of
Nichols Institute (not presented separately therein) which report includes
explanatory paragraphs related to uncertainties as to an investigation by the
Office of the Inspector General of the Department of Health and Human Services
and substantial doubt as to the Company's ability to continue as a going
concern.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Costa Mesa, California
November 27, 1996
Exhibit 23(b)(4)
Consent of Leverone & Company, Independent Accountants
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of our report dated November 10, 1994, relating to the financial
statements of Moran Research Labs (not presented separately therein) as of and
for the year ended December 31, 1993. We also consent to the reference to us
under the heading "Experts" in such Registration Statement.
/s/ Leverone & Company
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Leverone & Company
Billerica, Massachusetts
November 25, 1996
