As filed with the Securities and Exchange
Commission on November 25, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Packard BioScience Company
(Exact name of registrant as specified in its charter)
Delaware 06-0676652
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
800 Research Parkway
Meriden, CT 06450
(Address of principal executive offices) (Zip code)
Management Stock Incentive Plan
(Full title of Plan)
Ben D. Kaplan
Chief Financial Officer
Packard BioScience Company
800 Research Parkway
Meriden, CT 06450
(Name and address of agent for service)
203-238-2351
(Telephone number, including area code, of agent)
Copy to Paul F. McAlenney
Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
<TABLE>
<CAPTION>
Calculation of Registration Fee
Title of Amount to be Proposed Proposed Amount of
securities registered maximum maximum registration
to be offering aggregate fee
registered price per offering
unit price (1)
<S> <C> <C> <C> <C>
Common Stock 1,224,892 shares (1) $14,322,053 $4,340.02
par value, $.01 per share
</TABLE>
(1) Based on options to purchase an aggregate of 946,840 shares at an exercise
price of $11.125 a share and options to purchase an aggregate of 278,052 shares
at an exercise price of $13.625 a share.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
MANAGEMENT STOCK INCENTIVE PLAN
This Registration Statement relates to shares of common stock, par
value $.01 (the "Common Stock"), of Packard BioScience Company (the
"Company") to be issued upon exercise of options granted from time to time
pursuant to the Management Stock Incentive Plan (the "Plan"), to eligible
employees of the Company (each, an "Employee"). An aggregate of up to
1,224,892 shares of Common Stock may be issued upon the exercise of options
granted pursuant to the Plan, subject to adjustment in case of stock
dividends or changes in the Common Stock.
ITEM 3 INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by
reference:
(a) The Company's Prospectus, dated June 5, 1997, filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (Registration No.
333-24001); and
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended June 30, 1997 and September 30, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "1934 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 the Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4 DESCRIPTION OF SECURITIES
COMMON STOCK
The Company is authorized to issue 15,000,000 shares of Common Stock,
of which 9,007,264 Shares were issued and outstanding as of September 30, 1997
and 1,000,000 shares of Preferred Stock, par value $.01 per share (the
"Preferred Stock"), of which no shares are outstanding. Each share of
Common Stock has the same relative rights and is identical in all respects
to each other share of the Common Stock.
Holders of the Common Stock are entitled to one vote per share on each
matter properly submitted to stockholders, including the election of
directors. Holders of the Common Stock do not have the right to cumulative
votes for the election of directors, and they have no preemptive rights
with respect to any shares that may be issued. All shares of the Common
Stock currently outstanding, and when issued in accordance with the Plan,
are or will be fully paid and nonassessable. Holders of the Common Stock
are entitled to receive dividends when and as declared by the Board of
Directors out of funds legally available for distribution.
In the event of any liquidation or dissolution of the Company, the
holders of the Common Stock would be entitled to receive, after payment or
provision for payment of all debts and liabilities of the Company and after
payment of the liquidation preferences of all outstanding shares of
preferred stock, all remaining assets of the Company available for
distribution, in cash or in kind.
PREFERRED STOCK
Pursuant to the Company's Amended and Restated Certificate of
Incorporation, the Board of Directors may, without action of the
stockholders of the Company issue from time to time shares of Preferred
Stock in one or more series.
The Board of Directors is authorized to fix, with respect to each
series, the voting rights, if any, designations, preferences and the
relative, participating, optional or other rights, if any, and the
qualifications, limitations or restrictions thereof, of any unissued shares
of Preferred Stock.
The Company has no present plans for the issuance of any shares of
Preferred Stock. Accordingly, it is not possible to state the actual
effect of the issuance of Preferred Stock upon the rights of the holders of
the Common Stock until the Board of Directors determines the specific
rights of the holders of a series of Preferred Stock. However, such effect
might include: (a) restrictions on dividends on the Common Stock if
dividends on Preferred Stock have not been paid; (b) dilution of the voting
power of the Common Stock to the extent that the Preferred Stock has voting
rights; (c) dilution of the equity interest of the Common Stock to the
extent that the Preferred Stock is converted into Common Stock; or (d)
reduction in the extent to which the Common Stock is entitled to share in
the Company's assets upon liquidation until satisfaction of any liquidation
preference granted to the holders of the Preferred Stock is satisfied.
Issuance of Preferred Stock, while providing desirable flexibility in
connection with possible acquisitions and other corporate purposes, could
make it more difficult for a third party to acquire a majority of the
outstanding voting stock. Accordingly, the issuance of Preferred Stock may
be used as an "anti-takeover" device without further action on the part of
the stockholders of the Company.
ABSENCE OF CUMULATIVE VOTING
The Company's Amended and Restated Certificate of Incorporation does
not provide for cumulative voting in the election of Directors. Under the
Delaware corporation law, stockholders do not have cumulative voting rights
unless such rights are specifically provided for in the Amended and
Restated Certificate of Incorporation. Without cumulative voting, holders
of a majority of the voting shares present at an annual meeting will be
able to elect all of the Directors to be elected at that annual meeting,
and no persons holding shares or proxies representing less than a majority
of the shares present will be able to elect any Director, as they might if
cumulative voting were applicable. The absence of cumulative voting is
intended to prevent any entity or group which has accumulated a significant
minority block of shares from obtaining representation on the Board of
Directors of the Company, unless and until such entity or group is able to
persuade enough of the remaining stockholders of the Company to vote for
its representation so that it controls a majority of the votes.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSEL
The financial statements of the Company, as of December 31, 1996, 1995
and 1994 and for the years then ended incorporated by reference in this
Registration Statement have been so incorporated in reliance on the report
of Arthur Andersen LLP, independent public accountants, given on the
authority of said firm as experts in auditing and accounting.
ITEM 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), directors and officers as well as other employees
and individuals may be indemnified against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in connection with
specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
a corporation -- a "derivative action") if they acted in good faith and in
a manner they reasonably believed to be in or not opposed to the best
interest of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful.
A similar standard of care is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys'
fees) incurred in connection with defense or settlement of such an action
and the DGCL requires court approval before there can be any
indemnification where the person seeking
indemnification has been found liable to the corporation. Additionally, a
corporation is required to indemnify its directors and officers against
expenses to the extent that such directors or officers have been successful
on the merits or otherwise in any action, suit or proceeding or in defense
of any claim, issue or matter therein.
Unless ordered by a court, an indemnification can be made by a
corporation only upon a determination that indemnification is proper in the
circumstances because the party seeking indemnification has met the
applicable standard of conduct as set forth in Delaware law. The
indemnification provided by Section 145 of the DGCL includes the right to
be paid by the corporation the expenses incurred in defending proceedings
in advance of their final disposition. Such advance payment of expenses,
however, may be made only upon delivery to the corporation by the
indemnified party of an undertaking to repay all amounts so advanced if it
shall ultimately be determined that the person receiving such payments is
not entitled to be indemnified.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred by
Section 145 of the DGCL is not exclusive of any other right which any
person may have or acquire under any statute, provision of the certificate
of incorporation or bylaws, or otherwise. In addition, Section 145 of the
DGCL authorizes a corporation to maintain insurance, at its expense,
liability or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under the
DGCL.
The Company's Bylaws and Amended and Restated Certificate of
Incorporation authorize the Company to indemnify officers, directors and
certain individuals associated with the Company. In general, Article VII
of the Company's Bylaws and Article VIII of the Company's Amended and
Restated Certificate of Incorporation authorize the Company to indemnify
any person who was or is a party to any threatened, pending or completed
action, suit or proceeding, and any appeal therein, whether civil,
criminal, administrative, arbitrative or investigative (other than an
action by or in the right of the Company) by reason of the fact that he is
or was a director, officer, trustee, employee or agent of the Company, or
is or was serving at the request of the Company as a director, officer,
trustee, employee or agent of another corporation, association,
partnership, venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines, penalties and amounts paid
in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding, and any appeal therein, 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 Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, that he had reasonable cause to believe
that his conduct was unlawful.
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED
This Item is not applicable to the securities to be registered hereby.
ITEM 8 EXHIBITS
The following exhibits are incorporated herein by reference as
indicated or filed herewith.
EXHIBIT NO. DESCRIPTION
4.1. Management Stock Incentive Plan (incorporated by reference
to Exhibit 10.5 to the Company's Registration Statement on
Form S-4 (No. 333-24001) (the "S-4")).
4.2. Stockholders' Agreement (incorporated by reference to
Exhibit 10.7 to the S-4).
4.3. Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 3.1 to the S-4).
4.4. Bylaws of the Company (incorporated by reference to Exhibit
3.2 to the S-4).
5. Opinion of Day, Berry & Howard as to the legality of the
securities registered hereby, including consent of such counsel.
23.1. Consent of Arthur Andersen LLP.
23.2. Consent of Day, Berry & Howard (See Exhibit 5).
24. Power of attorney (See signature page).
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 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.
(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 (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the registration statement is on Form S-3, Form S-8
or Form F-3, and 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 the registrant pursuant to
section 13 or section 15(d) of the 1934 Act 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 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 purpose 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 1934 Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the 1934 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.
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
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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication to such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that is
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 Town of Meriden, State of Connecticut, on
November 24, 1997.
Packard BioScience Company
By: /S/ EMERY G. OLCOTT
Name: Emery G. Olcott
Title: Chairman, Chief Executive Officer
and President
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 date indicated. Each person whose signature appears
below hereby constitutes Emery G. Olcott and Ben D. Kaplan and each of them
singly, such person's true and lawful attorneys, with full power to them
and each of them to sign for such person and in such person's name and
capacity indicated below any and all amendments to this Registration
Statement, hereby ratifying and confirming such person's signature as it
may be signed by said attorneys to any and all such amendments.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ EMERY G. OLCOTT Chairman, Chief Executive Officer & November 24, 1997
Emery G. Olcott President
(Principal Executive Officer)
/S/ BEN D. KAPLAN Chief Financial Officer November 21, 1997
Ben D. Kaplan (Principal Financial Officer)
/S/ DAVID M. DEAN Corporate Controller November 21, 1997
David M. Dean
/S/ RICHARD T. MCKERNAN Director November 24, 1997
Richard T. McKernan
/S/ GEORGE SERRANO Director November 21, 1997
George Serrano
/S/ ROBERT F. END Director November 24, 1997
Robert F. End
/S/ BRADLEY J. HOECKER Director November 24, 1997
Bradley J. Hoecker
/S/ STEPHEN M. MCLEAN Director November 24, 1997
Stephen M. McLean
/S/ ALEXIS P. MICHAS Director November 24, 1997
Alexis P. Michas
</TABLE>
<PAGE>
INDEX OF EXHIBITS
EXHIBIT DESCRIPTION OF EXHIBITS
NUMBER
5 Opinion of Day, Berry & Howard as to the legality of the
securities offered hereby, including consent of such counsel
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Day, Berry & Howard (See Exhibit 5)
24 Power of Attorney (See Signature Page)
EXHIBIT 5
November 17, 1997
Packard BioScience Company
800 Research Parkway
Meriden, Connecticut 06450
Re: Registration Statement on Form S-8 (No. 333- )
Ladies and Gentlemen:
We have acted as counsel for Packard BioScience Company, a Delaware
corporation (the "Company"), in connection with the preparation and filing
by the Company with the Securities and Exchange Commission of a
Registration Statement on Form S-8 (No. 333- ), as amended (the
"Registration Statement") pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), with respect to up to 1,224,892 shares of
common stock, par value $.01 (the "Common Stock"), of the Company, as
described in the Registration Statement.
In rendering this opinion, we have examined and relied upon originals
or copies, certified or otherwise identified to our satisfaction of such
records, documents, certificates and other instruments including, but not
limited to, (i) the Amended and Restated Certificate of Incorporation of
the Company, (ii) the Bylaws of the Company, (iii) the Management Stock
Incentive Plan, and (iv) certain minutes of the corporate proceedings of
the Board of Directors and shareholders of the Company, and have made such
investigation of law as in our judgment is necessary or appropriate to
enable us to render the opinions expressed below.
We have assumed the authenticity of all documents submitted to us as
originals, the genuineness of all signatures, the legal capacity of natural
persons and the conformity to the originals of all documents submitted to
us as copies.
The opinions set forth below are based on, and limited to, the General
Corporation Law of the State of Delaware and no opinion is expressed as to
the laws of any other jurisdiction.
Based on and subject to the foregoing, we are of the opinion that the
shares of Common Stock, when issued upon the exercise of options in
accordance with the terms of
Packard BioScience Company
November 17, 1997
Page 2
the Management Stock Incentive Plan and as contemplated by the Registration
Statement, will be duly authorized and legally issued, fully paid and non-
assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving such consent, we do not hereby admit
that we are within the category of persons whose consent is required by
Section 7 of the Securities Act. This opinion is not to be used,
circulated, quoted or otherwise referred to for any other purpose without
our express written consent.
Very truly yours,
/s/ Day, Berry & Howard
DAY, BERRY & HOWARD
PFM/cb
EXHIBIT 23.1
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated March
10, 1997 included (or incorporated by reference) in Packard BioScience
Company's Prospectus, as amended (Registration No. 333-24001) for the
year ended December 31, 1996 and to all references to our firm included
in this registration statement.
/s/ Arthur Andersen LLP
Hartford, Connecticut
November 20, 1997
