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As filed with the Securities and Exchange Commission on November 7, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
STRATEGIC DISTRIBUTION, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-1849240
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
1635-D Bustleton Pike
Feasterville, Pennsylvania 19053
(Address, including zip code, of principal executive offices)
Strategic Distribution, Inc.
Amended and Restated 1990 Incentive Stock Option Plan
and Non-Qualified Stock Option Agreement for John M. Sergey
(Full title of the plans)
William L. Mahone, Esq.
Assistant Secretary
Strategic Distribution, Inc.
165 Mason Street
Greenwich, Connecticut 06830
(203) 629-8750
(Name and address, including zip code, and telephone of agent for service)
COPY TO:
Neil Novikoff, Esq.
Willkie Farr & Gallagher
One Citicorp Center, 153 East 53rd Street, New York, NY 10022
(212) 821-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------ ---------------------- ---------------------- --------------------- ------------------
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered (1) share(2) price(2) registration fee
- --------------------- --------------------- ----------------------- --------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $0.10 per share 1,340,000 $5.84375 $7,830,625 $2,372.92
</TABLE>
- ----------------------
(1) This Registration Statement covers 940,000 shares authorized to be sold
under the Strategic Distribution, Inc. Amended and Restated 1990
Incentive Stock Option Plan and 400,000 shares authorized to be sold
under a Non-Qualified Stock Option Agreement for John M. Sergey.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act").
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and
Exchange Commission (the "Commission") by Strategic Distribution, Inc., a
Delaware corporation (the "Company"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996.
(b) The Company's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1997 and June 30, 1997.
(c) The Company's Current Reports and amendments
thereto on Form 8-K, filed on February 12, 1997,
April 8, 1997, June 13, 1997 and July 21, 1997.
(d) The description of the Common Stock of the
Company, par value $0.10 per share, which is included
in the Company's Application for Registration on Form
8-A, dated July 21, 1989, as amended in the Company's
Amendment to Application or Report on Form 8, filed
pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on December 13, 1990.
In addition, all reports filed with the Commission by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act,
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated in this Registration Statement by reference and to
be a part hereof from the date of the filing of such documents with the
Commission. Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference in this Registration
Statement modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby is
being passed upon for the Company by Willkie Farr & Gallagher. As of the date of
this Registration Statement, Jack H. Nusbaum, a partner of Willkie Farr &
Gallagher, is a director of the Company.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the
"DGCL") empowers a Delaware corporation to 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 such corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. A corporation may, in advance of the final disposition of any civil,
criminal, administrative or investigative action, suit or proceeding, pay the
expenses (including attorneys' fees) incurred by any officer, director, employee
or agent in defending such action, provided that the director or officer
undertakes to repay such amount if it shall ultimately be determined that he or
she is not entitled to be indemnified by the corporation. A corporation may
indemnify such person against expenses (including attorneys' fees), 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 corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
A Delaware corporation may indemnify officers and directors in
an action by or in the right of the corporation to procure a judgment in its
favor under the same conditions, except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be liable to
the corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him or her against the expenses (including attorneys' fees) which he
or she actually and reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive of any other rights to
which an officer or director may be entitled under any corporation's by-laws,
agreement, vote or otherwise.
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In accordance with Section 145 of the DGCL, Article NINTH of
the Company's Second Restated Certificate of Incorporation (the "Second Restated
Certificate") provides that the Company shall indemnify each person who is or
was a director, officer, employee or agent of the Company (including the heirs,
executors, administrators or estate of such person) 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, to the
fullest extent permitted under Section 145 of the DGCL, as the same may be
amended or supplemented. The indemnification provided by the Second Restated
Certificate shall not be deemed exclusive of any other rights to which any of
those seeking indemnification or advancement of expenses may be entitled under
any by-law, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
The foregoing statements are subject to the detailed
provisions of Section 145 of the DGCL and Article NINTH of the Second Restated
Certificate.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
4 Specimen of Common Stock Certificate (incorporated by reference
to Amendment No. 2 to the Company's Registration Statement on
Form S-1, Registration No. 33-82906, dated October 5, 1994).
5 Opinion of Willkie Farr & Gallagher.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Powers of Attorney (contained in the signature pages of
this Registration Statement).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
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(a) To file, during any period in which offers or
sales are being made, a post-effective amendment to the 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)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Company's annual report pursuant to Section 13(a) or 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.
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3. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 the City of Feasterville, Commonwealth of Pennsylvania, on
the 23rd day of October, 1997.
STRATEGIC DISTRIBUTION, INC.
By: /s/ John M. Sergey
John M. Sergey
President and Chief
Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints William L. Mahone, in his own
capacity, his or her true and lawful attorney-in-fact, with full power of
substitution, for him or her and in his or her name, place and stead, in any and
all capacities, to sign any 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, hereby ratifying and
confirming all that said attorney-in-fact, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ John M. Sergey President, Chief October 13, 1997
John M. Sergey Executive Officer and
Director (Principal
Executive Officer)
/s/ Michael F. Devine III Chief Financial Officer, Secretary October 13, 1997
Michael F. Devine III and Treasurer (Principal
Financial Officer)
/s/ Charles J. Martin Vice President, October 23, 1997
Charles J. Martin Controller and Chief
Accounting Officer
(Principal Accounting
Officer)
/s/ Andrew M. Bursky Chairman of the October 23, 1997
Andrew M. Bursky Board and Director
/s/ William R. Berkley Director October 23, 1997
William R. Berkley
/s/ Jeffery O. Beauchamp Director October 23, 1997
Jeffery O. Beauchamp
/s/ Arnold W. Donald Director October 23, 1997
Arnold W. Donald
/s/ Catherine B. James Director October 23, 1997
Catherine B. James
</TABLE>
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<TABLE>
<CAPTION>
Signature Capacity Date
- --------- -------- ----
<S> <C> <C>
/s/ George E. Krauter Director October 23, 1997
George E. Krauter
/s/ Jack H. Nusbaum Director October 23, 1997
Jack H. Nusbaum
/s/ Joshua A. Polan Director October 23, 1997
Joshua A. Polan
/s/ Mitchell I. Quain Director October 23, 1997
Mitchell I. Quain
</TABLE>
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
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5 Opinion of Willkie Farr & Gallagher.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in
Exhibit 5).
24 Powers of Attorney (contained in
the signature pages to this Registration
Statement).
<PAGE>
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
October 31, 1997
Strategic Distribution, Inc.
165 Mason Street
Greenwich, Connecticut 06830
Ladies and Gentlemen:
We have acted as counsel to Strategic Distribution, Inc. (the "Company"), a
corporation organized under the laws of the State of Delaware, with respect to
the Company's Form S-8 Registration Statement (the "Registration Statement") to
be filed by the Company with the Securities and Exchange Commission on or about
October 31, 1997 in connection with the registration under the Securities Act of
1933, as amended (the "Act"), by the Company of an aggregate of 1,340,000 shares
of Common Stock, par value $0.10 per share (the "Common Stock"), 940,000 of
which are issuable upon exercise of stock options granted or to be granted under
the Strategic Distribution, Inc. Amended and Restated 1990 Incentive Stock
Option Plan (the "Plan") and 400,000 of which are issuable upon exercise of
stock options granted to John M. Sergey under a Non-Qualified Stock Option
Agreement (the "Agreement").
As counsel for the Company, we have examined, among other things, such Federal
and state laws and originals and/or copies (certified or otherwise identified to
our satisfaction) of such documents, certificates and records as we deemed
necessary and appropriate for the purpose of preparing this opinion.
Based on the foregoing, we hereby inform you that in our opinion the shares of
Common Stock issuable upon exercise of stock options granted or to be granted
under the Plan and the Agreement have been duly and validly authorized for
issuance and, when issued in accordance with the terms of the Plan and the
Agreement, respectively, for consideration in excess of $0.10 per share, will be
validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not hereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission.
<PAGE>
We are members of the Bar of the State of New York and do not purport to be
experts in the laws of jurisdictions other than the State of New York, the
General Corporation Law of the State of Delaware and the Federal laws of the
United States of America.
Very truly yours,
/s/ Willkie Farr & Gallagher
<PAGE>
Independent Auditors' Consent
The Board of Directors
Strategic Distribution, Inc.
We consent to the use of our report included in Strategic Distribution, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1996 which is
incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
Philadelphia, Pennsylvania
November 6, 1997
