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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)
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1998 STOCK INCENTIVE PLAN
(Full Title of Plan)
-------------------------
Charles Cashion
Chief Financial Officer
QUIDEL CORPORATION
10165 McKellar Court
San Diego, California 92121
(619) 552-1100
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Mark W. Shurtleff
GIBSON, DUNN & CRUTCHER LLP
4 Park Plaza, Suite 1700
Irvine, California 92614-8557
(949) 451-3900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
<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> <C>
Common Stock, $.001 par value 3,000,000 shares $2.28125 $6,843,750 $1,902.56
================================================================================================
</TABLE>
(1) There is also being registered hereunder such additional undetermined
number of shares of Class A 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 average of the high and low
prices of the Common Stock of Quidel Corporation as reported on February
18, 1999 on the NASDAQ Stock Market.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Quidel Corporation
(the "Company") relating to 3,000,000 shares of the Company's Common Stock, par
value $.001 per share (the "Common Stock"), issuable to eligible employees of
the Company under Quidel Corporation's 1998 Stock Incentive 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 year ended March
31, 1998;
(b) The Company's Quarterly Report on Form 10-Q for the period ended
June 30, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the period ended
September 30, 1998.
(d) The description of the Company's Common Stock contained in 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.
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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.
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 or 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 the officers and directors of the Company be indemnified to
the maximum extent permitted by the GCL. As
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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
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 be 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
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.
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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 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.
<TABLE>
<S> <C>
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).
</TABLE>
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<TABLE>
<S> <C>
5.1 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.
24.1 Power of Attorney (contained on page 8).
</TABLE>
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 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.
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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 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.
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 February 18, 1999.
QUIDEL CORPORATION
By: /s/ ANDRE DE BRUIN
--------------------------------------------
Andre de Bruin
President, Chief Executive Officer and
Director
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Andre
de Bruin and Charles J. Cashion 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 or her 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/ ANDRE DE BRUIN
- ---------------------------------- President, Chief Executive February 18, 1999
Andre de Bruin Officer and Director
(Principal Executive Officer)
/s/ CHARLES CASHION
- ---------------------------------- Senior Vice President February 18, 1999
Charles Cashion Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ RICHARD C.E. MORGAN
- ---------------------------------- Chairman of the Board February 17, 1999
Richard C.E. Morgan
/s/ THOMAS A. GLAZE
- ---------------------------------- Director February 18, 1999
Thomas A. Glaze
- ---------------------------------- Director February __, 1999
John D. Diekman, Ph.D
/s/MARY LAKE-POLAN, M.D., PH. D.
- ---------------------------------- Director February 17, 1999
Mary Lake-Polan, M.D., Ph. D.
/S/
- ---------------------------------- Director February __, 1999
Faye Wattleton
/S/
- ---------------------------------- Director February __, 1999
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
5.1 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.
24 Power of Attorney (contained on page 8).
</TABLE>
- ---------------
* Incorporated herein by reference. See sequentially numbered page 5.
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EXHIBIT 5.1
February 18, 1999
(949) 451-3802 C 73074-00036
Quidel Corporation
10165 McKellar Court
San Diego, CA 92121
Re: Registration Statement on Form S-8 of 3,000,000 Shares of Common Stock
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on the date hereof, to register
under the Securities Act of 1933, as amended (the "Act"), 3,000,000 shares of
the Company's Common Stock, par value $0.001 per share (the "Common Stock"),
available to be issued pursuant to awards granted under the Company's 1998 Stock
Incentive Plan (the "Plan") approved by the Company's Stockholders at the 1998
Annual Meeting of Stockholders held on July 9, 1998 in San Diego, California.
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 examination, we have examined originals and copies, certified or
otherwise, identified to our satisfaction, of the Plan, the Company's Articles
of Incorporation and Bylaws, and the records of corporate proceedings and other
actions taken by the Company in connection with the Plan and the Common Stock
issuable thereunder, and such other documents, corporate records and other
instruments as we have deemed necessary or appropriate.
Based upon the foregoing and in reliance thereon, and subject to (i)
compliance with applicable state securities laws and (ii) the effectiveness of
the Registration Statement pursuant to the Act, it is our opinion that the
Common Stock, when issued and paid for in accordance with the Registration
Statement and the Plan, will be validly issued, fully paid and non-assessable.
<PAGE> 2
February 18, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Act or the Rules and Regulations thereunder.
Very truly yours,
GIBSON, DUNN & CRUTCHER, LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement of Quidel Corporation on Form S-8 our report dated May 11, 1998, with
respect to the consolidated financial statements of Quidel Corporation included
in its Annual Report (Form 10-K) for the year ended March 31, 1998, filed with
the Securities Exchange Commission.
Ernst & Young LLP
San Diego, California
February 18, 1999
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