<PAGE> 1
The Registrant requests that the Registration Statement become effective
immediately upon filing pursuant to Securities Act Rule 462.
As filed with the Securities and Exchange Commission on May 28, 1998.
================================================================================
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADAC LABORATORIES
----------------------------------------------------
(Exact name of registrant as specified in its charter)
California
--------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
94-1725806
-----------------------------------
(I.R.S. Employer Identification No.)
540 Alder Drive
Milpitas, California 95035
(408) 321-9100
--------------------------------------------------
(Address, including zip code and telephone number,
including area code, of Registrant's
principal executive offices)
EMPLOYEE STOCK PURCHASE PLAN (1994)
--------------------------------------------------
(Full Title of the Plan)
KAREN L. MASTERSON
VICE PRESIDENT AND GENERAL COUNSEL
ADAC LABORATORIES
540 ALDER DRIVE
MILPITAS, CALIFORNIA 95035
(408) 321-9100
---------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO: PAGE MAILLIARD, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
================================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Proposed Proposed Amount of
Class of Maximum Maximum Registration
Securities to Amount to be Offering Price Aggregate Fee (2)
be Registered Registered(1)Per Share (2) Offering Price (2)
- -------------- ------------ ---------------- ----------------- ----------
<S> <C> <C> <C> <C>
Common Stock, 100,000 $19.75 $1,975,000.00 $582.63
no par value
</TABLE>
1) Plus, in accordance with Rule 416(a), such indeterminate number of shares
as may become subject to options under the Employee Stock Purchase Plan
1994 (the "Plan") as a result of the adjustment provisions therein.
2) The registration fee for 100,000 shares of Common Stock issuable upon
exercise of options under the Plan which may be granted in the future
is estimated solely for the purpose of determining the amount of the
registration fee, based upon the average between the high and low price
of Registrant's Common Stock of $19.75 on the NASDAQ National Market
System on May 26, 1998.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*.
Item 2. Registrant Information and Employee Plan Annual
Information*.
* Information required by Part I to be contained in the Section
10(A) prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933 and the
Note to Part I on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Registrant with the Securities
and Exchange Commission are incorporated by reference in the
Registration Statement:
(a) The Registrant's latest annual report on Form 10-K for
the fiscal year ended September 28, 1997 and filed with the SEC on
December 29, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 28, 1997 and filed with the SEC on
February 11, 1998; and
(c) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 29, 1998 and filed with the SEC on
May 13, 1998.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, 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 part
hereof from the date of filing 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.
The By-Laws of the Company provide for the indemnification of
directors and officers to the fullest extent permitted by the General
Corporation Law of the State of California.
Section 317 of the General Corporation Law of the State of
California authorizes indemnification when a person is made a party to
any proceeding by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation or was so
serving at the request of the corporation in such capacity for another
corporation, and if such person acted in good faith and in a manner
reasonably believed to be in, or not opposed to, the best interest of
the corporation. With respect to any criminal proceeding, such person
must have had no reasonable cause to believe the conduct was unlawful.
If it is determined that the conduct of such person meets these
standards, such person may be indemnified for expenses incurred and
amounts paid in such proceedings if actually and reasonably incurred in
connection therewith.
If such a proceeding is brought by or on behalf of the corporation
(i.e., a derivative suit), such person may be indemnified against
expenses actually and reasonably believed to be in, or not opposed to,
the best interests of the corporation. There can be no indemnification
with respect to any matter as to which such person is adjudged to be
liable to the corporation for negligence or misconduct in the
performance of his or her duty; however, a court may, even in such case,
allow indemnification of such expenses as the court deems proper. Where
such person is successful in any such proceeding, he or she is entitled
to be indemnified against expenses actually and reasonably incurred by
him or her. In all other cases, indemnification is made by the
corporation upon determination by it that indemnification of such person
is proper because such person has met the applicable standard of
conduct.
The Company has also entered into indemnification agreements with
its directors and certain officers which contractually obligate the
Company to indemnify such persons to the fullest extent permitted under
California law.
The California General Corporation Law permits a California
corporation to include in its Articles of Incorporation a provision
eliminating or limiting the liability of directors for monetary damages
arising from breaches of their fiduciary duty. The only limitations
imposed under the statute are that the provisions may not eliminate or
limit a director's liability (i) for acts or omissions that involve
intentional misconduct or a knowing and culpable violation of law, (ii)
for acts or omissions that a director believes to be contrary to the
best interests of the corporation or its shareholders or that involve
the absence of good faith on the part of the director, (iii) for any
transaction from which a director derived an improper personal benefit,
(iv) for acts or omissions that show a reckless disregard for the
director's duty to the corporation or its shareholders in circumstances
in which the director was aware, or should have been aware, in the
ordinary course of performing a director's duties, of a risk of serious
injury to the corporation or its shareholders, (v) for acts or omissions
that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the corporation or its
shareholders, or (vi) for the payment of unlawful dividends, stock
purchases or redemptions. The Company's Articles of Incorporation
contain a provision eliminating the liability of the Company's directors
for breaches of their fiduciary duty, subject to the limitations imposed
by statute as described above. The provisions do not limit or otherwise
affect the personal liability of a director for violation of Federal
Securities Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
4.1* ADAC Laboratories Amended and Restated Employee
Stock Purchase Plan (1994).
4.2* Amendment No. 1 to ADAC Laboratories Employee
Stock Purchase Plan.
4.3 Amendment No. 2 to ADAC Laboratories Employee
Stock Purchase Plan.
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati,
P.C.
23.1 Consent of Coopers & Lybrand L.L.P
23.2 Consent of Wilson Sonsini Goodrich & Rosati
(contained in Exhibit 5.1.).
* Incorporated by reference to the exhibit filed with the
Registrant's registration statement on Form S-8 (File No. 333-34629)
filed with the Securities and Exchange Commission on August 29, 1997.
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(s)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this Registration Statement; provided however, that 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 Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this 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.
(c) (1) 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 a copy of Registrant's annual
report to shareholders for its last fiscal year, unless such employee
otherwise has received a copy of such report, in which case Registrant
shall state in the Prospectus that it will promptly furnish, without
charge, a copy of such report on written request of the employee. If
the last fiscal year of Registrant has ended within 120 days prior to
the use of the Prospectus, the annual report of Registrant for the
preceding fiscal year may be so delivered, but within such 120-day
period the annual report for the last fiscal year will be furnished to
each such employee.
(2) The undersigned Registrant hereby undertakes to
transmit or cause to be transmitted to all employees participating in
the Plan who do not otherwise receive such material as shareholders of
registrant, at the time and in the manner such material is sent to its
shareholders, copies of all reports, proxy statements and other
communications distributed to its shareholders generally.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of Registrant pursuant to the foregoing provisions,
or otherwise, 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 Registrant of expenses incurred or paid by a
director, officer or controlling person of 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, 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>
SIGNATURES
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 Milpitas,
California on the date set forth below.
Date: May 28, 1998 ADAC LABORATORIES
(Registrant)
BY:/s/ R. Andrew Eckert
R. Andrew Eckert,
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints R. Andrew Eckert and
P. Andre Simone and each of them acting individually, as such person's
true and lawful attorneys-in-fact and agents, each with full power of
substitution, for such person, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this
Registration Statement, and to file same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents,
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 connection
therewith, as fully to all intents and purposes as such person might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or her
substitutes, may do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Exchange Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacities Date
- -------------------------- ------------------------------- -----------------
<S> <C> <C>
/s/ David L. Lowe Chairman of the Board May 28, 1998
- ------------------------- of Directors
David L. Lowe
/s/ R. Andrew Eckert Chief Executive Officer May 28, 1998
- ------------------------- and Director
R. Andrew Eckert (Principal Executive Officer)
/s/ P. Andre Simone Chief Financial Officer May 28, 1998
- ------------------------- (Principal Financial Officer)
P. Andre Simone
/s/ Bruce M. Blanco Vice President and Corporate May 28, 1998
- ------------------------- Controller (Chief Accounting
Bruce M. Blanco Officer)
/s/ Stanley D. Czerwinski Director May 28, 1998
- -------------------------
Stanley D. Czerwinski
/s/ Graham O. King Director May 28, 1998
- -------------------------
Graham O. King
/s/ F. David Rollo Director May 28, 1998
- -------------------------
F. David Rollo
/s/ Edmund H. Shea, Jr. Director May 28, 1998
- -------------------------
Edmund H. Shea, Jr.
</TABLE>
<PAGE>
ADAC LABORATORIES
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
4.1* ADAC Laboratories Amended and restated
Employee Stock Purchase Plan (1994)
4.2* Amendment No. 1 to ADAC Laboratories
Employee Stock Purchase Plan
4.3 Amendment No. 2 to ADAC Laboratories
Employee Stock Purchase Plan
5.1 Opinion of Wilson, Sonsini, Goodrich &
Rosati, P.C.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Wilson Sonsini Goodrich &
Rosati (contained in Exhibit 5.1).
* Incorporated by reference to the exhibit filed with the
Registrant's registration statement on Form S-8 (File No. 333-34629)
filed with the Securities and Exchange Commission on August 29, 1997.
AMENDMENT NO. 2
TO
ADAC LABORATORIES
EMPLOYEE STOCK PURCHASE PLAN (1994)
The Employee Stock Purchase Plan (1994) (the "Plan") of ADAC
Laboratories, a California corporation (the "Company"), is hereby
amended in the following respects:
1. Number of Shares to be Offered. The first sentence of
Section 4, entitled "Number of Shares to be Offered," is deleted in
its entirety and the following sentence is substituted in its place:
The maximum aggregate number of shares which shall be
offered under the Plan shall be 370,000 shares of
Stock, subject to adjustment as provided in Section 8
hereof.
This amendment reflects an increase in the number of shares authorized
for issuance under the Plan by 100,000 shares.
2. Effective Date. Except as amended above, in all other
respects the Plan is hereby ratified and confirmed. The amendment of
the Plan, as set forth above, was approved by the Board of Directors on
November 10, 1997 and by the shareholders on March 5, 1998.
By Order of the Board of Directors:
By:/s/ Karen L. Masterson
Karen L. Masterson
Secretary
<PAGE>
EXHIBIT 5.1
May 28, 1998
ADAC Laboratories
540 Alder Drive
Milpitas, California 95035
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be
filed by you with the Securities and Exchange Commission on or about May
28, 1998 (the "Registration Statement"), in connection with the
registration under the Securities Act of 1933, as amended, of 100,000
shares of your Common Stock (the "Shares") reserved for issuance under
the Employee Stock Purchase Plan (1994) (the "Plan"). As your legal
counsel, we have examined the proceedings taken and proposed to be taken
in connection with the issuance, sale and payment of consideration for
the Shares to be issued under the Plan.
It is our opinion that, when issued and sold in compliance with
applicable prospectus delivery requirements and in the manner referred
to in the Plan and pursuant to the agreements which accompany the Plan,
the Shares will be legally and validly issued, fully paid and non-
assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name
wherever appearing in the Registration Statement and any amendments
thereto.
Sincerely,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
<PAGE> 1
EXHIBIT 23.1
CONSENT OF COOPERS & LYBRAND L.L.P.
We consent to the incorporation by reference in the Registration
Statement of ADAC Laboratories on Form S-8 pertaining to the Employee
Stock Purchase Plan (1994) of our reports dated November 4, 1997 on
our audits of the consolidated financial statements and financial
statement schedule of ADAC Laboratories as of and for each of the three
fiscal years in the period ended September 28, 1997, appearing in the
Annual report on Form 10-K of ADAC Laboratories for the fiscal year
ended September 28, 1997, filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1934.
/s/ COOPERS & LYBRAND L.L.P.
San Jose, California
May 28, 1998
