As filed with the Securities and Exchange Commission on July 14, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SEROLOGICALS CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 58-2142225
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
780 Park North Blvd., Suite 110
Clarkston, Georgia 30021
(Address of principal executive offices) (Zip Code)
---------------------------------------------
SEROLOGICALS CORPORATION COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS
(Full titles of the Plans)
---------------------------------------------
Harold J. Tenoso, Ph.D.
President and Chief Executive Officer
Serologicals Corporation
780 Park North Blvd., Suite 110
Clarkston, Georgia 30021
(404) 296-5595
(Name, address and telephone number,
(including area code, of agent for service)
Copies to:
David S. Rosenthal, Esq.
Shereff, Friedman, Hoffman
& Goodman, LLP
919 Third Avenue
New York, New York 10022
(212) 758-9500
CALCULATION OF REGISTRATION FEE
========================================================================
Title of | | Proposed | Proposed | Amount
Securities | Amount | Maximum | Maximum | of
to be | to be | Offering Price | Aggregate |Registration
Registered | Registered | Per Share (2) |Offering Price| Fee (2)
| | | (2) |
========================================================================
| | | |
Common | 25,000 | $31.50 | $787,500 | $232.31
| shares | | |
========================================================================
(1) Pursuant to Rule 416, this Registration Statement also covers such
additional securities as may become issuable to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 on the basis of the average of the high and low sale
prices of the Registrant's Common Stock as included on The NASDAQ National
Market on July 8, 1998.
(3) The Registration Fee has been calculated pursuant to Rule 457 as
follows: 25,000 multiplied by .000295 multiplied by $31.50, the average of
the high and low sale prices of the Registrant's Common Stock as included
on The NASDAQ National Market on July 8, 1998.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which have been filed by Serologicals
Corporation, a Delaware corporation (the "Registrant"), with the Securities
and Exchange Commission (the "Commission"), are incorporated herein by
reference:
(a) The Registrant's Annual Report on Form 10-K for the period ended
December 28, 1997.
(b) The Registrant's Quarterly Report on Form 10-Q for the period
ended March 29, 1998.
(c) The description of the Registrant's Common Stock, par value $0.01
per share, which is contained in a registration statement filed under
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including any amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange 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 this
registration statement and to be a part hereof from the time of filing of
such documents. Any statement contained in the documents incorporated or
deemed to be incorporated by reference herein 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 incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such 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. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The indemnification of officers and directors of the Registrant is
governed by Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") and the Certificate of Incorporation and By-Laws of
the Registrant. Subsection (a) of DGCL Section 145 empowers a 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 the corporation) by reason of the fact that
the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by the person in connection with such action, suit
or proceeding if the person acted in good faith and in a manner the person
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 the person's conduct was unlawful.
Subsection (b) of DGCL Section 145 empowers a 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 or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that
the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation 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
corporation unless and only to the extent that the Delaware Court of
Chancery or the court in which such action or suit was brought shall
determine 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.
DGCL Section 145 further provides that to the extent that a present or
former director or officer is successful, on the merits or otherwise, in
the defense of any action, suit or proceeding referred to in subsections
(a) and (b) of Section 145, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection therewith. In all cases in which indemnification is permitted
under subsections (a) and (b) of Section 145 (unless ordered by a court),
it shall be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because
the applicable standard of conduct has been met by the party to be
indemnified. Such determination must be made, with respect to a person who
is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less
than a quorum, or (3) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (4) by the
stockholders. The statute authorizes the corporation to pay expenses
incurred by an officer or director in advance of the final disposition of a
proceeding upon receipt of an undertaking by or on behalf of the person to
whom the advance will be made, to repay the advances if it shall ultimately
be determined that he was not entitled to indemnification. DGCL Section
145 also provides that indemnification and advancement of expenses
permitted thereunder are not to be exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled
under any By-law, agreement, vote of stockholders or disinterested
directors, or otherwise. DGCL Section 145 also authorizes the corporation
to purchase and maintain liability insurance on behalf of its directors,
officers, employees and agents regardless of whether the corporation would
have the statutory power to indemnify such persons against the liabilities
insured.
The Amended and Restated Certificate of Incorporation of the
Registrant, as amended (the "Certificate"), provides that no director of
the Registrant shall be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a
director except for liability (i) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for paying a dividend or approving a stock
repurchase in violation of Section 174 of the DGCL or (iv) for any
transaction from which the director derived an improper personal benefit.
In addition, the Certificate provides that directors, officers and
others shall be indemnified to the fullest extent authorized by the DGCL,
as in effect (or, to the extent indemnification is broadened, as it may be
amended), against any and all expense, liability and loss (including
settlement) reasonably incurred or suffered by such person in connection
with such service. The Certificate further provides that, to the extent
permitted by law, expenses so incurred by any such person in defending any
such proceeding shall, at his request, be paid by the Registrant in advance
of the final disposition of such action or proceeding.
The Certificate provides that the right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its
final disposition shall not be exclusive of any other right which any
person may have or acquire under any law, provision of By-laws or
otherwise.
Pursuant to indemnification agreements with certain of its executive
officers and directors the Registrant has agreed to indemnify such persons
(including their respective heirs, executors and administrators) to the
fullest extent permitted by the DGCL against all expenses and liabilities
reasonably incurred in connection with or arising out of any action, suit
or proceeding in which such executive officer or director may be involved
by reason of having been a director or officer of the Registrant or any
subsidiary thereof.
The Registrant maintains directors and officers liability and company
reimbursement insurance which, among other things (i) provides for payment
on behalf of its officers and directors against loss as defined in the
policy stemming from acts committed by directors and officers in their
capacity as such and (ii) provides for payment on behalf of the Registrant
against such loss but only when the Registrant shall be required or
permitted to indemnify directors or officers for such loss pursuant to
statutory or common law or pursuant to duly effective certificate of
incorporation or by-law provisions.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits
The following exhibits are filed as part of this registration
statement:
4.1 Serologicals Corporation Compensation Plan for Non-Employee
Directors.
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
23.1 Consent of Arthur Andersen, LLP.
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (included
in Exhibit 5.1).
24.1 Power of Attorney (included in signature page to this
registration statement).
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. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the change in volume and price represent no
more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective 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)(l)(i) and (ii) do not apply if
the registration statement is on Form S-3 or S-8 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or Section 15(d) of the Securities Exchange Act
of 1934 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 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 the
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) 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.
(h) 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
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 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 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.
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 the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
hereunto duly authorized, in the City of Clarkston, State of Georgia, on
this 13th day of July, 1998.
SEROLOGICALS CORPORATION
By: /s/ Harold J. Tenoso, Ph.D.
Harold J. Tenoso, Ph.D.
President, Chief Executive Officer and
Director
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose
signature appears below constitutes and appoints Harold J. Tenoso, Ph.D.
and Russell H. Plumb, and each of them (with full power of each of them to
act alone), his true and lawful attorneys-in-fact, with full power of
substitution and resubstitution for him and on his behalf, and in his name,
place and stead, in any and all capacities to execute and sign any and all
amendments or 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, hereby
ratifying and confirming all that said attorneys-in-fact or any of them or
their or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof and the Registrant hereby confers like authority on its
behalf.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ Harold J. Tenoso, Ph.D. President, Chief Executive July 13, 1998
Harold J. Tenoso, Ph.D. Officer and Director (Principal
Executive Officer)
/s/ Samuel A. Penninger, Jr. Chairman of the Board of July 13, 1998
Samuel A. Penninger, Jr. Directors
___________________ Director July 13, 1998
James L. Currie
/s/ Wade Fetzer III Director July 13, 1998
Wade Fetzer III
/s/Desmond H. O'Connell, Jr. Director July 13, 1998
Desmond H. O'Connell, Jr.
/s/ George M. Shaw, M.D., Ph.D. Director July 13, 1998
George M. Shaw, M.D., Ph.D.
/s/ Lawrence E. Tilton Director July 13, 1998
Lawrence E. Tilton
______________________ Director July 13, 1998
Matthew C. Weisman
/s/ Russell H. Plumb Vice President, Finance and July 13, 1998
Russell H. Plumb Administration and Chief
Financial Officer (Principal
Financial and Accounting Officer)
SEROLOGICALS CORPORATION
FORM S-8
REGISTRATION STATEMENT
EXHIBIT INDEX
Exhibit
4.1 Serologicals Corporation Compensation Plan for Non-Employee Directors.
5.1 Opinion of Shereff, Friedman, Hoffman & Goodman, LLP.
23.1 Consent of Arthur Andersen, LLP.
23.2 Consent of Shereff, Friedman, Hoffman & Goodman, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included in signature page to this registration
statement).
EXHIBIT 4.1
SEROLOGICALS CORPORATION
COMPENSATION PLAN
FOR NON-EMPLOYEE DIRECTORS (the "Plan")
(as of May 19, 1998)
Section 1. Eligibility. Each member of the Board of Directors
(the "Board") of Serologicals Corporation (the "Company") who is not an
employee of the Company or any of its divisions or subsidiaries (an
"Eligible Director") is eligible to participate in the Plan.
Section 2. Purpose. The purpose of the Plan is to advance the
interests of the Company and its stockholders by compensating and providing
incentives, which are linked directly to increases in stockholder value, to
Eligible Directors for services rendered, time expended and for risks
assumed and value added, in order that they will be encouraged to serve on
the Board and exert their best efforts on behalf of the Company, thus
enhancing the value of the Company for the benefit of the Company's
stockholders.
Section 3. Shares Subject to Plan. Except as otherwise set
forth herein, the Company shall not be required to reserve or otherwise set
aside funds or shares of common stock, par value $.01 per share, of the
Company ("Common Stock") for the payment of its obligations hereunder. The
aggregate number of shares of Common Stock that may be issued pursuant to
the Plan shall not exceed 25,000, subject to adjustment upon the occurrence
of adjustments to the outstanding Common Stock described in Section 8(e)
hereof. At all times during the term of the Plan, the Company shall
reserve and keep available for issuance such number of shares of Common
Stock, adjusted in accordance with Section 8(e) hereof, as applicable (each
a "Share"), as the Company is obligated to issue pursuant to the Plan.
Common Stock issued under the Plan may consist, in whole or in part, of
authorized and unissued Shares or treasury Shares, as determined in the
sole and absolute discretion of the Board. No fractional Shares shall be
issued under the Plan.
Section 4. Administration. (a) Generally. The Plan shall be
administered, construed and interpreted by the Board. Pursuant to such
authorization, the Board shall have the responsibility for carrying out the
terms of the Plan, including but not limited to, the determination of the
meeting based fees to be paid to all Eligible Directors. To the extent
permitted under the securities laws applicable to compensation plans
including, without limitation, the requirements of Section 16(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or under
the Internal Revenue Code of 1986, as amended (the "Code"), the
Compensation Committee of the Board, or a subcommittee of the Compensation
Committee, may exercise the discretion granted to the Board under the Plan,
provided that the composition of such Committee or subcommittee shall
satisfy the requirements of Rule 16b-3 under the Exchange Act, or any
successor rule or regulation. The Board may also designate a plan
administrator to manage the record keeping and other routine administrative
duties under the Plan.
(b) Reliance and Indemnification of Board Members. The
Board may employ attorneys, consultants, accountants or other persons, and
the Board, the Company and its officers and directors shall be entitled to
rely upon the advice, opinions or valuations of any such persons. No
member of the Board shall be personally liable for any action,
determination or interpretation taken or made in good faith by the Board
with respect to the Plan or compensation granted hereunder, and all members
of the Board shall be fully indemnified and protected by the Company in
respect of any such action, determination or interpretation.
Section 5. Compensation. Each Eligible Director shall be
entitled to receive: (i) $2,000 for each meeting (each of which is a
meeting for which attendance in person was expected) of the Board of
Directors actually attended in person each year ("Regular Compensation");
(ii) $1,000 for each meeting (each of which is a meeting for which
attendance in person was expected) of a Committee of the Board of Directors
actually attended in person if held in conjunction with a meeting of the
Board of Directors ("Committee Compensation") and (iii) $2,000 for each
meeting (each of which is a meeting for which attendance in person was
expected) of a Committee of the Board of Directors actually attended in
person if not held in conjunction with a meeting of the Board of Directors
(collectively with Regular Compensation and Committee Compensation,
"Compensation"). All Compensation shall be payable in cash as accrued
unless otherwise provided herein. Compensation payable to Eligible
Directors for services rendered as a director during a calendar year, if
not deferred pursuant to Section 6 of the Plan, shall be paid (a) partly in
Shares of Common Stock and partly in cash (in whatever percentages as shall
be elected by the Eligible Director), (b) all in cash or (c) all in Shares
of Common Stock, at the election of the Eligible Director. Such election
shall be made, in writing, and delivered to the Secretary of the Company on
or before December 31st each year (or, in the case of the first year of the
Plan, on or before August 25, 1998). Payment in Shares, if any, shall be
made on the last day of any month in which Compensation shall have been
earned. Shares shall initially be issued in uncertificated form and
recorded in the accounting records of the Company. Upon the request of an
Eligible Director, but not more frequently than once per quarter, the
Company shall issue stock certificates with respect to the uncertificated
Shares accounted for as provided in the preceding sentence. The amount of
any cash payment to be made to an Eligible Director that elected option (a)
above shall equal the result obtained by multiplying (x) the Compensation
by (y) the decimal equivalent of the percentage of cash elected to be
received by the Eligible Director (i.e., 40% cash shall equal .40). The
number of Shares to be transferred to an Eligible Director pursuant to
option (a) or (c) above shall be determined by dividing (x) the amount of
the Compensation balance by (y) the closing price of the Common Stock on
the NASDAQ National Market (or such other national securities exchange on
which the Common Stock shall be primarily traded) on the last trading day
of the calendar month in which the Compensation is earned.
Section 6. Election to Defer.
(a) Time of Election. On or before August 25, 1998, an
Eligible Director may elect to defer Compensation by directing that all of
the Compensation which otherwise would have been payable in accordance with
Section 5 above thereafter during such calendar year and succeeding
calendar years shall be credited to a deferred compensation account (the
"Director's Account"). Under a valid election, such deferred Compensation
shall be payable entirely in Shares of Common Stock. Any person who shall
become an Eligible Director during any calendar year, and who was not an
Eligible Director of the Company prior to the beginning of such calendar
year, may elect, within 30 days after his or her term begins, to defer
payment of all of his or her Compensation earned during the remainder of
such calendar year and for succeeding calendar years.
(b) Form and Duration of Election. An election to defer
Compensation shall be made by written notice executed by the Eligible
Director and filed with the Secretary of the Company. Such election shall
continue until the Eligible Director terminates such election by subsequent
written notice filed with the Secretary of the Company; provided, however,
that an Eligible Director may not revoke, change or make an election, if
such Eligible Director has made an opposite-way election under any plan of
the Company within the previous six months. Any such election to terminate
deferral shall become effective for the calendar year following receipt of
the election form by the Company and shall only be effective with respect
to Compensation payable for services rendered as an Eligible Director
thereafter. Amounts credited to the Director's Account prior to the
effective date of termination shall not be affected by such termination and
shall be distributed only in accordance with the terms of the Plan.
(c) Change of Election. An Eligible Director who has
terminated his or her election to defer Compensation hereunder may
thereafter make another election in accordance with Section 6(a) to defer
such Compensation for the calendar year subsequent to the filing of such
election and succeeding calendar years.
(d) The Directors Account. All Compensation that an
Eligible Director has elected to defer under the Plan shall be credited to
the Director's Account as follows:
(i) As of the date set forth in Section 5, there
shall be credited to the Director's Account the number of shares of Common
Stock determined as set forth in Section 5. If the amount of the
Compensation is not evenly divisible by such closing price of the Common
Stock, the balance shall be credited to the Director's Account in cash.
(ii) At the end of each calendar year, there shall be
credited to the Director's Account an amount equal to the cash dividends
that would have been paid on the number of Shares of Common Stock credited
to the Director's Account as of the dividend record date, if any, occurring
during such calendar year as if such Shares had been shares of issued and
outstanding Common Stock on such record date, and such amount shall be
treated as reinvested in additional shares of Common Stock on the dividend
payment date.
(iii) An Eligible Director shall not have any interest
in the cash or Common Stock in his or her Director's Account until such
cash or Common Stock is distributed in accordance with the Plan.
(e) Distribution from Accounts.
(i) At the time an Eligible Director makes an election
to defer receipt of Compensation pursuant to this Section 6, such Director
shall also file with the Secretary of the Company a written election with
respect to the distribution of the aggregate amount of cash and Shares
credited to the Director's Account pursuant to such election. An Eligible
Director may elect to receive such amount in one lump-sum payment or in a
number of approximately equal annual installments (provided the payout
period does not exceed 15 years). The lump-sum payment or the first
installment shall be paid as of (i) the first business day of any calendar
year subsequent to the date the Compensation would otherwise be payable, as
specified by the Director, (ii) the first business day of the calendar year
immediately following the cessation of the Eligible Director's service as a
director of the Company or (iii) the earlier of (i) or (ii), as the
Eligible Director may elect. Subsequent installments shall be distributed
as of the first business day of each succeeding annual installment period
until the entire amount credited to the Director's Account shall have been
distributed. A cash payment will be made with the final installment for
any fraction of a share of Common Stock credited to the Director's Account.
(ii) An Eligible Director participating in the Plan
may, on or prior to December 31st each year, file another written election
with the Secretary of the Company electing to change the date and/or method
of distribution of the aggregate amount of cash and Shares of Common Stock
credited to the Director's Account for services rendered as a director
commencing with such calendar year; provided, however, that an Eligible
Director may not revoke, change or make an election, if such Eligible
Director has made an opposite-way election under any plan of the Company
within the previous six months. Amounts credited to the Director's Account
prior to the effective date of such change (the "Prior Amounts") shall not
be affected by such change and shall be distributed only in accordance with
the election in effect at the time the Prior Amounts were credited to the
Director's Account; provided, however, that an Eligible Director may elect
to change the time at which Prior Amounts are to be paid, if (i) a written
election to effect such change is filed with the Secretary of the Company
at least one year before the earliest scheduled payment of the Prior
Amounts and (ii) such change would not accelerate the Eligible Director's
receipt of the Prior Amounts. Notwithstanding the foregoing, in the event
an Eligible Director suffers a severe financial hardship outside the
control of such Director, as determined by the Company, the Company may, in
its sole discretion, at the request of such Eligible Director, elect to
advance or defer the date of distribution of the Director's Account or
change the method of distribution thereof.
(iii) Notwithstanding anything to the contrary
contained herein, upon a "Change of Control" (as defined below) and except
to the extent such actions shall make "pooling of interests" accounting
unavailable to a "Change of Control" transaction approved by the Company's
Board of Directors, the full number of Shares of Common Stock and cash in
each Director's Account shall be immediately funded and be distributable on
the earlier of the date which is six months and one day from the "Change of
Control" or the distribution date(s) previously elected by an Eligible
Director. For purposes of this Plan, a "Change of Control" shall mean the
occurrence of any of the events described below: (i) a change, within a
period of 24 months or less, in the composition of the Board of Directors
of the Company, such that at any time the majority of directors who are
then serving were not serving at the beginning of such period, unless at
such date of determination, such directors were nominated upon the
recommendation of a majority of the Board of Directors who were directors
at the beginning of such period; (ii) any "person" (as such term is defined
in Section 3(a)(9) and 13(d)(3) of the Exchange Act), other than the
Eligible Director, or any group of which the Eligible Director is a member
(within the meaning of Rule 13d-1(f) of the Rules and Regulations
promulgated under the Exchange Act), or an "Affiliate" or "Associate" (as
such terms are defined in Rule 405 of the Rules and Regulations promulgated
under the Securities Act of 1933, as amended (the "Securities Act"))
thereof, becomes a beneficial owner (as defined in Section 13(d)(3) of the
Exchange Act), directly or indirectly, of (x) securities of the Company
representing thirty percent (30%) or more of the Company's then outstanding
securities having the right to vote for the election of directors or (y)
all or substantially all of the assets of the Company; provided, that the
acquisition by the Company of another company or the assets thereof or a
similar transaction in which the Company issues securities representing 30%
or more of the total number of votes that may be cast for the election of
directors of the Company shall not constitute a "Change in Control" [if (1)
the Company is the surviving corporation, (2) the President and Chief
Executive Officer of the Company and the Chief Financial Officer
immediately preceding the signing of the acquisition (or similar) agreement
relating to such transaction shall serve as such for a 24 month period
after the closing of such transaction and (3) the Board of Directors of the
Company shall not change over a 24 month period, in connection with or as a
consequence of such transaction, by more than 30%]; (iii) commencement
(within the meaning of Rule 14d-2 of the Rules and Regulations promulgated
under the Exchange Act) of a "tender offer" for capital stock of the
Company subject to Section 14(d)(2) of the Exchange Act by any "person" (as
defined above) other than the Company or any group of which the Eligible
Director is a member; or (iv) the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets.
(f) Distribution on Death. If an Eligible Director should
die before all amounts credited to the Director's Account shall have been
paid in accordance with the election referred to in Section 6(d), the
balance in such Director's Account as of the date of such Director's death
shall be paid promptly following such Director's death to the beneficiary
designated in writing by such Director. Such balance shall be paid to the
estate of the Eligible Director if (a) no such designation has been made or
(b) the designated beneficiary shall have predeceased the Director and no
further beneficiary designation has been made.
Section 7. Amendment and Termination.
(a) Modifications to the Plan. The Plan shall continue in
effect until terminated by the Board. The Board may at any time amend or
terminate the Plan; provided, however, that (i) no amendment or termination
shall impair the rights of an Eligible Director with respect to amounts
then credited to the Director's Account; and (ii) no amendment shall become
effective without approval of the stockholders of the Company if such
stockholder approval is required to enable the Plan to satisfy applicable
state or Federal statutory or regulatory requirements.
(b) Rights of Eligible Director. No amendment, suspension
or termination of the Plan that would adversely affect the right of any
Eligible Director with respect to a Director's Account will be effective
without the written consent of the affected Eligible Director.
(c) Correction of Defects, Omissions and Inconsistencies.
The Board may correct any defect, supply any omission or reconcile any
inconsistency in the Plan in the manner and to the extent it shall deem
desirable to carry the Plan into effect.
Section 8. Miscellaneous.
(a) Non-Transferable. The right of an Eligible Director to
receive any amount in the Director's Account shall not be transferable or
assignable by such Director, except by will or by the laws of descent and
distribution, and no part of such amount shall be subject to attachment or
other legal process.
(b) No Right to Continue as Director. Nothing contained
herein or in any instrument executed pursuant to the Plan will confer upon
any Eligible Director any right to continue as a member of the Board or
affect the right of the Company, the Board or the stockholders of the
Company to terminate the directorship of any Eligible Director at any time
with or without cause.
(c) No Right to Assets or Voting Rights. The establishment
and maintenance of, or allocation and credits to, the Director's Account
shall not vest in the Eligible Director or his beneficiary any right, title
or interest in and to any specific assets of the Company. With respect to
Compensation deferred pursuant to Section 6, an Eligible Director shall not
have any dividend or voting rights or any other rights of a stockholder
(except as expressly set forth in Section 6(d)(ii) with respect to
dividends and as provided in subparagraph (e) below) until the shares of
Common Stock issued in respect of such Compensation and credited to a
Director's Account are distributed. The rights of an Eligible Director to
receive payments under the Plan shall be no greater than the right of an
unsecured general creditor of the Company.
(d) Annual Statement. Each Eligible Director participating
in the Plan will receive an annual statement indicating the amount of cash
and number of Shares of Common Stock credited to the Director's Account as
of the end of the preceding calendar year.
(e) Adjustments Upon Changes in Capitalization. If
adjustments are made to outstanding Shares of Common Stock as a result of
stock dividends, stock splits, recapitalizations, mergers, consolidations
and similar transactions, an appropriate adjustment shall be made in the
number of Shares of Common Stock credited to the Director's Account and to
the number of Shares of Common Stock subject to the Plan.
(f) Governing Law. The validity, construction,
interpretation, administration and effect of the Plan and of its rules and
regulations, and rights relating to the Plan, shall be determined solely in
accordance with the laws of the State of Delaware, without regard to the
choice-of-law principles thereof, and applicable federal law.
(g) Severability. If any term or provision of this Plan or
the application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, then the remainder of the Plan, or the
application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision hereof shall be valid and be
enforced to the fullest extent permitted by applicable law.
(h) Other Compensation Arrangements. Nothing contained in
the Plan shall prevent the Board from adopting other compensation
arrangements for Eligible Directors, subject to stockholder approval if
such approval is required. Such other arrangements may be either generally
applicable or applicable only in specific cases.
(i) Representations. The Board may require, as a condition
to the right to receive payment of the Compensation hereunder (whether
directly or from the Director's Account), that the Company receive from the
Eligible Director, representations, warranties and agreements to the effect
that the Shares are being accepted by the Eligible Director only for
investment and without any present intention to sell or otherwise
distribute such Shares and that the Eligible Director will not dispose of
such Shares in transactions which, in the opinion of counsel to the
Company, would violate the registration provisions of the Securities Act of
1933, as then amended, and the rules and regulations thereunder. The
certificate issued to evidence such Shares shall bear appropriate legends
summarizing such restrictions on the disposition thereof.
(j) Withholding. The Company shall be authorized to
withhold from any Director's Account, or any payment due under the Plan,
the amount of withholding taxes due, if any, in respect thereof, and to
take such other action as may be necessary in the opinion of the Company to
satisfy all obligations for the payment of such taxes. Upon receiving
distributions from the Director's Account, the Eligible Director receiving
Shares pursuant thereto may be required to pay the Company the amount of
any such withholding taxes which is required to be withheld with respect to
such Shares.
(k) Cost of the Plan. The costs and expenses of
administering the Plan shall be borne by the Company.
(l) No Waiver of Breach. No waiver by any person at any
time or any breach by another person of, or compliance with, any condition
or provision of the Plan to be performed by such other person shall be
deemed a waiver of the same, any similar or any dissimilar provisions or
conditions at the same, or at any prior or subsequent, time.
(m) No Trust or Fund Created. The Plan shall not create or
be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Company and an Eligible Director or any other
individual, corporation, partnership, association, joint-stock company,
trust, unincorporated organization, or government or political subdivision
thereof ("Person"). To the extent that any Person acquires a right to
receive payments from the Company pursuant to a Directors' Account or
otherwise, such right shall be no greater than the right of any unsecured
general creditor of the Company.
(n) Headings. The headings contained herein are for reference
purposes only and shall not affect in any way the meaning or interpretation
of the Plan.
EXHIBIT 5.1
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
919 Third Avenue 20th Floor
New York, NY 10022
July 14, 1998
Serologicals Corporation
780 Park North Blvd., Suite 110
Clarkston, Georgia 30021
Ladies and Gentlemen:
On the date hereof, Serologicals Corporation, a Delaware
corporation (the "Company"), intends to transmit for filing with the
Securities and Exchange Commission a Registration Statement on Form S-8
(the "Registration Statement") relating to 25,000 shares (the "Shares") of
common stock, par value $.01 per share (the "Common Stock"), of the Company
that may be offered from time to time pursuant to the Company's
Compensation Plan for Non-Employee Directors (the "Plan"). This opinion is
an exhibit to the Registration Statement.
We have at times acted as counsel to the Company with respect to
certain corporate and securities matters, and in such capacity we are
familiar with the various corporate and other proceedings taken by or on
behalf of the Company in connection with the proposed offer and sale of the
Shares as contemplated by the Registration Statement. We have examined
copies (in each case signed, certified or otherwise proven to our
satisfaction to be genuine) of the Company's Certificate of Incorporation
as presently in effect, its By-Laws as presently in effect, minutes and
other instruments evidencing actions taken by its directors and
stockholders, the Plan and such other documents and instruments relating to
the Company and the proposed offering as we have deemed necessary under the
circumstances. Insofar as this opinion relates to securities to be issued
in the future, we have assumed that all applicable laws, rules and
regulations in effect at the time of such issuance are the same as such
laws, rules and regulations in effect as of the date hereof.
We note that we are members of the Bar of the State of New York
and that we are not admitted to the Bar in the State of Delaware. To the
extent that the opinions expressed herein involve the law of the State of
Delaware, such opinions are based solely upon our reading of the Delaware
General Corporation Law as reported by Prentice-Hall Legal and Financial
Services, without any investigation of the legal decisions or other
statutory provisions in effect in such state that may relate to the
opinions expressed herein.
Based on the foregoing, and subject to and in reliance on the
accuracy and completeness of the information relevant thereto provided to
us, it is our opinion that the Shares to be issued pursuant to the Plan
have been duly authorized and, subject to the effectiveness of the
Registration Statement and compliance with applicable state securities
laws, when issued in accordance with the terms set forth in the Plan, will
be legally and validly issued, fully paid and nonassessable.
It should be understood that nothing in this opinion is intended
to apply to any disposition of the Shares that any participant in the Plan
might propose to make.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and as an exhibit to any filing made by the
Company under the securities or "Blue Sky" laws of any state.
This opinion is furnished to you in connection with the filing of
the Registration Statement, and is not to be used, circulated, quoted or
otherwise relied upon for any other purpose, except as expressly provided
in the preceding paragraph, without our express written consent, and no
party other than you is entitled to rely on it. This opinion is rendered
to you as of the date hereof and we undertake no obligation to advise you
of any change, whether legal or factual, after the date hereof.
Very truly yours,
/s/ SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
SHEREFF, FRIEDMAN, HOFFMAN & GOODMAN, LLP
SFH&G, LLP:DSR:GA:DIG
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 2, 1998
included in Serologicals Corporation's Annual Report on Form 10-K for the
fiscal year ended December 28, 1997 and to all references to our Firm
included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Atlanta, Georgia
July 10, 1998
