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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
QUIDEL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 94-2573850
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
-------------------------
10165 McKellar Court
San Diego, California 92121
(619) 552-1100
(Address, including zip code, and telephone number,
including area code, of Registrant's Principal Executive Offices)
-------------------------
GENERAL NONSTATUTORY STOCK OPTION PLAN
(Full Title of Plan)
-------------------------
Steven T. Frankel
President and Chief Executive Officer
QUIDEL CORPORATION
10165 McKeIlar Court
San Diego, California 92121
(619) 552-1100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered(1) Share(2) Price(2) Fee
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 300,000 shares $3.71875 $1,115,625 $338.07
</TABLE>
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(1) There is also being registered hereunder such additional undetermined
number of shares of Common Stock that may be issued from time to time as a
result of the anti-dilution provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(h) and based on the price at which the options may
be exercised.
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INTRODUCTION
------------
This Registration Statement on Form S-8 is filed by Quidel Corporation
(the "Company") relating to 300,000 shares of the Company's common stock, par
value $.001 per share (the "Common Stock"), issuable to eligible employees of
the Company under the Quidel Corporation General Nonstatutory Stock Option Plan
(the "Plan").
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 of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed by the
Company with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997; and
(c) The description of the Company's Common Stock contained at
pages 61 through 64 of the Company's Definitive Proxy
Statement dated January 1, 1991, relating to the Company's
Annual Meeting of Stockholders held on January 30, 1991,
including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Company pursuant to Sections 13(a), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment hereto that indicates that all securities offered
hereunder have been sold or that deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents.
For purposes of this Registration Statement, any statement contained in
a document incorporated or deemed to be incorporated herein by reference shall
be deemed to be modified or superseded to the extent that a statement contained
herein or in any other subsequently filed document that also is or is deemed to
be incorporated herein by reference modifies or supersedes such statement in
such document. Any 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.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Section 145(a) of the Delaware
General Corporation Law (the "GCL") provides that a Delaware corporation may
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 the Company) by reason of the fact that such person is or was a
director, officer, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation or enterprise, against expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she 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
cause to believe his or her conduct was unlawful.
Section 145(b) of the GCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the Company
unless and only to the extent that the court in which such action or suit was
brought shall determine that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to be indemnified for such expenses which the court shall deem proper.
Section 145 of the GCL further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue or matter therein, such officer or director shall be
indemnified against expenses actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall not
be deemed exclusive of any other rights to which the indemnified party may be
entitled; and that the Company may purchase and maintain insurance on behalf of
a director or officer of the Company against any liability asserted against such
officer or director and incurred by him or her in any such capacity or arising
out of his or her status as such, whether or not the Company would have the
power to indemnify him or her against such liabilities under Section 145.
The Company's Certificate of Incorporation and Amended and Restated
Bylaws require that officers and directors of the Company be indemnified to the
maximum extent permitted by the GCL. As permitted by Section 102(b)(7) of the
GCL, the Company's Amended and Restated Bylaws provide that the Company shall
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 the Company) by reason of the fact that he is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (collectively, "Agent") against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him 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 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
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reasonably believed to be in or not opposed to the best interest of the Company,
and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
The Amended and Restated Bylaws further provide that the Company shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he is or
was an Agent of the Company or serving at the request of the Company against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit 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 except that no indemnification shall be made
in respect of any claim, issue, or matter as to which such person shall have
been adjudged to be liable to the Company unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determined upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
To the extent that an Agent of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to in
the Amended and Restated Bylaws, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith. Expenses
incurred in defending or settling a civil or criminal action, suit or proceeding
by an individual who may be entitled to indemnification shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
as authorized by the Board of Directors upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Company as
authorized in the Amended and Restated Bylaws.
Any indemnification (unless ordered by a court) shall be made by the
Company only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in the Amended
and Restated Bylaws. Such determination shall be made (1) by the Board of
Directors (or by an executive committee thereof) by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
or (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders. Notwithstanding the foregoing, a director
or officer of the Company shall be able to contest any determination that the
director or officer has not met the applicable standard of conduct, set forth in
the Amended and Restated Bylaws, by petitioning a court of appropriate
jurisdiction.
To implement the provisions of the GCL and the Company's Certificate of
Incorporation and Amended and Restated Bylaws, the Company has entered into
Indemnification Agreements with its directors and officers. Absent the
Indemnification Agreements, the indemnification that might be available to
directors and officers could be changed by amendment to the Company's
Certificate of Incorporation and Amended and Restated Bylaws. The
Indemnification Agreements require that the Company indemnify an officer or
director who is a party to (or is threatened to be made a party to) any action,
suit or proceeding by reason of (a) the fact that such person is or was a
director, officer, employee or agent of the Company or any subsidiary of the
Company, (b) any action or inaction on the part of such person while an officer
or director or (c) the fact that such person is or was serving at the request of
the Company as a director, officer, employee or agent of another enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement if such officer or director acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action, had no reasonable cause to
believe his or her conduct was unlawful. The Company's indemnification
obligation does not apply, however, to claims where the officer or director (i)
is adjudged to be liable to the Company (unless a court of competent
jurisdiction determines that indemnification is proper), (ii) initiated or
brought the claim voluntarily (except certain proceedings brought in good faith
to establish or enforce a right to indemnification), (iii) is paid directly
under an insurance policy maintained by the Company, or (iv) is
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required to account for profits in fact made from the purchase or sale of
securities of the Company under Section 16(b) of the Exchange Act.
The Company may seek directors and officers liability insurance against
the cost of defense, settlement or payment of a judgment under certain
circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation of the Company, as amended (filed
as Exhibit 3.1 to the Company's Current Report on Form 8-K
dated February 26, 1991, and incorporated herein by reference)
4.2 Certificate of Designations of the Series B Preferred Stock of
the Company (filed as Exhibit 4.1 to the Company's Current
Report on Form 8-K dated January 5, 1995, and incorporated
herein by reference)
4.3 Certificate of Designation of Rights, Preferences, Privileges
and Restrictions of Series C Junior Participating Preferred
Stock of the Company (filed as Exhibit A of Exhibit 1 to the
Company's Registration Statement on Form 8-A dated January 8,
1997, and incorporated herein by reference)
4.4 Amended and Restated Bylaws of the Company (filed as Exhibit
3.2 to the Company's Current Report on Form 8-K dated June 16,
1995, and incorporated herein by reference)
4.5 Rights Agreement dated as of December 31, 1996 between the
Company and American Stock Transfer & Trust Company, as Rights
Agent (filed as Exhibit 1 to the Company's Registration
Statement on Form 8-A dated January 8, 1997, and incorporated
herein by reference)
5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of
the securities being registered
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Counsel (contained in Exhibit 5 hereto)
24 Power of Attorney (contained on 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;
(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
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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) 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 the registrant pursuant to Section 13 or Section 15(d) of 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 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 Securities 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) 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 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 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by a final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for a 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 15, 1997.
QUIDEL CORPORATION
By: /S/ STEVEN T. FRANKEL
-------------------------------------
Steven T. Frankel
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
STEVEN T. FRANKEL and STEVEN C. BURKE his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the 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, each acting alone, with full powers and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as full to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming that all said attorneys-in-fact and
agents, each acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/S/ RICHARD C.E. MORGAN Chairman of the Board August 20, 1997
-------------------------------
Richard C.E. Morgan
/S/ ANDRE de BRUIN Vice Chairman of the Board August 15, 1997
-------------------------------
Andre de Bruin
/S/ STEVEN T. FRANKEL President and Chief Executive Officer August 15, 1997
------------------------------- (Principal Executive Officer)
Steven T. Frankel and Director
/S/ STEVEN C. BURKE Vice President-Finance and Administration August 20, 1997
------------------------------- and Chief Financial Officer (Principal
Steven C. Burke Financial and Accounting Officer)
/S/ JOHN D. DIEKMAN, Ph.D. Director August 15, 1997
-------------------------------
John D. Diekman, Ph.D.
</TABLE>
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<TABLE>
<S> <C> <C>
/S/ THOMAS A. GLAZE Director August 18, 1997
---------------------------------
Thomas A. Glaze
/S/ MARY LAKE POLAN, M.D., Ph.D. Director August 18, 1997
---------------------------------
Mary Lake Polan, M.D., Ph.D
/S/ FAYE WATTLETON Director August 18, 1997
---------------------------------
Faye Wattleton
/S/ ROGER F. GREAVES Director August 20, 1997
---------------------------------
Roger F. Greaves
/S/ ROCKELL N. HANKIN Director August 18, 1997
---------------------------------
Rockell N. Hankin
/S/ MARGARET G. McGLYNN, R.Ph. Director August 20, 1997
---------------------------------
Margaret G. McGlynn, R.Ph.
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1* Certificate of Incorporation of the Company, as amended
4.2* Certificate of Designations of the Series B Preferred Stock of the Company
4.3* Certificate of Designation of Rights, Preferences, Privileges and Restrictions of
Series C Junior Participating Preferred Stock of the Company
4.4* Amended and Restated Bylaws of the Company
4.5* Rights Agreement dated as of December 31, 1996 between the Company and American Stock
Transfer & Trust Company, as Rights Agent
5 Opinion of Gibson, Dunn & Crutcher LLP as to the legality of the securities being
registered
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5 hereto)
24 Power of Attorney (contained on signature page hereof)
</TABLE>
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* Incorporated herein by reference. See sequentially numbered page 5.
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EXHIBIT 5
[Gibson, Dunn & Crutcher LLP Letterhead]
September 10, 1997
Quidel Corporation
10165 McKellar Court
San Diego, California 92121
Re: Registration Statement on Form S-8 of 300,000 Shares
of Common Stock
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission to register 300,000 shares of common stock,
par value $.001 per share (the "Common Stock") of Quidel Corporation, a Delaware
corporation (the "Company"), to be issued pursuant to the Company's General
Nonstatutory Stock Option Plan (the "Plan").
For purposes of rendering this opinion, we have made such legal and
factual examinations as we have deemed necessary under the circumstances and, as
part of such examinations, we have examined, among other things, originals and
copies, certified or otherwise, identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary
or appropriate. For the purposes of such examinations, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us.
On the basis of and in reliance upon the foregoing examinations and
assumptions, we are of the opinion that, assuming the Registration Statement
shall have become effective pursuant to the provisions of the Securities Act of
1933, as amended, the shares of Common Stock being offered under the Plan, when
issued and paid for in accordance with the Registration Statement and the
provisions of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/S/ GIBSON, DUNN & CRUTCHER LLP
Gibson, Dunn & Crutcher LLP
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Quidel Corporation General Nonstatutory Stock Option Plan
of our report dated May 9, 1997, except for Note 10, as to which the date is
June 13, 1997, with respect to the consolidated financial statements of Quidel
Corporation included in its Annual Report (Form 10-K) for the year ended March
31, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
San Diego, California
September 10, 1997
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