Registration No. ___________
As filed with the Securities and Exchange Commission on December __, 1996
------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
DIANON SYSTEMS, INC.
--------------------
(Exact name of registrant as specified in its charter)
Delaware 06-1128081
-------- ----------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
200 Watson Boulevard, Stratford, Connecticut 06497
-------------------------------------------- -----
(Address of Principal Executive Offices) (Zip Code)
Dianon Systems, Inc. 1996 Stock Incentive Plan and
Stock Options Granted Not Pursuant to a Plan
----------------------------------------------
(Full title of the plans)
Richard A. Sandberg
Dianon Systems, Inc., 200 Watson Boulevard, Stratford, Connecticut 06497
(203) 381-4000
------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
Copy to: Gloria W. Nusbacher, Esq.
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, N.Y. 10004
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of
Securities Amount Proposed Maximum Proposed Amount of
to be to be Offering Price Maximum Aggregate Registration
Registered Registered** Per Share*** Offering Price*** Fee
- -------------------------- ---------------------- -------------------------- ------------------------- ---------------------
<S> <C> <C> <C> <C>
Common Stock, 710,000 $7.81 $5,543,411.57 $1680
par value shares
$.01 per share*
- -------------------------- ---------------------- -------------------------- ------------------------- ---------------------
(see footnotes on following page)
Page 1 of 13 Pages.
</TABLE>
<PAGE>
FOOTNOTES
- ---------
* Each share of Common Stock includes a related right (a "Right") to
purchase junior participating preferred stock of the Company. The
Rights are not exercisable or transferable apart from the Common Stock
at this time, and accordingly no independent value is attributable to
such Rights.
** This Registration Statement also relates to such indeterminate number
of additional shares (and related Rights) as may be issuable pursuant
to stock splits, stock dividends, or similar transactions, and to an
indeterminate amount of deferred compensation obligations to be offered
and sold pursuant to the employee benefit plan covered by this
Registration Statement.
*** The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rule 457(h)
under the Securities Act of 1933. With respect to 236,353 shares of
Common Stock as to which stock options were granted under the Plan
prior to December 20, 1996, the registration fee is based on the
weighted average exercise price per share of $6.30; and with respect to
the balance of the shares being registered, the fee is based on a price
of $8.56 per share, which is the average of the high and low sale
prices of the Common Stock on December 20, 1996, as quoted on the
NASDAQ National Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents filed by Dianon Systems, Inc. (the "Company")
under the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1995; and
(c) The description of the Company's Common Stock and Rights contained
in the Company's registration statements therefor and subsequent amendments
thereof.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after 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 by reference in this
Registration Statement and to be a part hereof from the date of the filing of
such documents.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Under Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), any director or officer as well as any other employee or
individual may be indemnified against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with certain threatened, pending or completed
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company -- a
"derivative action") to which such person is or was a party or is threatened to
be made a party by reason of the fact that such person is or was a director,
<PAGE>
officer, employee, or agent of the Company or is or was serving at the Company's
request in such capacity for another entity if such person acted in good faith
and in a manner such person 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 such person's conduct was
unlawful. A similar standard of care is applicable in the case of derivative
actions to which such a person is or was a party by reason of such person's
status or capacity as described above, except that indemnification only extends
to expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such an action and the
DGCL requires approval by the court in which such action was brought before
there can be any indemnification where the person seeking indemnification has
been found liable to the Company. Additionally, the Company is required to
indemnify its directors and officers against expenses (including attorneys'
fees) actually and reasonably incurred by such person to the extent that such
directors or officers have been successful on the merits or otherwise in defense
of any such action, suit or proceeding or in defense of any claim, issue or
matter referred to in Section 145 of the DGCL.
Unless ordered by a court, indemnification can be made by the Company
only upon a determination, by one of several means, that indemnification is
proper in the circumstances because the party seeking indemnification has met
the applicable standard of conduct as set forth in Section 145 of the DGCL. The
indemnification provided by Section 145 of the DGCL includes the right of an
officer or director to be paid by the Company the expenses incurred in defending
any such proceedings in advance of their final disposition. Such advance payment
of expenses, however, may be made only upon delivery to the Company by the
indemnified party of an undertaking to repay all amounts so advanced if it shall
ultimately be determined that the person receiving such payments is not entitled
to be indemnified pursuant to Section 145 of the DGCL.
The rights to indemnification and advancement of expenses conferred by
Section 145 of the DGCL shall not be deemed exclusive of any other rights to
which the person seeking indemnification or advancement may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. In addition, Section 145 of the DGCL authorizes the Company to
purchase and maintain insurance, at its expense, on behalf of any person who is
or was a director, officer, employee or agent of the Company or is or was
serving at the Company's request in such capacity for another entity against any
liability asserted against, or incurred by, such person in any such capacity or
arising out of such status, whether or not the Company would have the power to
indemnify such person against such liability under Section 145 of the DGCL.
Article TENTH of the Company's Restated Certificate of Incorporation
("Article 10") provides that no director shall be personally liable to the
Company or its stockholders for monetary damages for any breach of fiduciary
duty in such capacity, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from
which the director derived an improper personal benefit. Article 10 further
<PAGE>
provides that if the DGCL is amended after the date of the Restated Certificate
of Incorporation to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of directors of the
Company shall be eliminated or limited to the fullest extent permitted by the
DGCL, as so amended.
Article 10 further provides that the Company shall indemnify to the
fullest extent permitted by the laws of the State of Delaware as from time to
time in effect any person who was or is a party or is threatened to be made a
party to, or otherwise requires representation by counsel in connection with,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (whether or not 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, while serving as a director or officer of the
Company, 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, or by reason of any action alleged to have been taken or
omitted in such capacity. Article 10 further provides that such persons have the
right to be paid in advance by the Company for their expenses to the full extent
permitted by the laws of the State of Delaware as from time to time in effect.
The rights and authority conferred in Article 10 are not exclusive of
any other right which any person may have or acquire under any statute,
provision of the Restated Certificate of Incorporation or the Restated By-Laws
of the Company, agreement, vote of stockholders or disinterested directors or
otherwise. Article 10 further provides that neither the amendment or repeal of
Article 10 nor the adoption of any provision of the Restated Certificate of
Incorporation or Restated By-Laws or of any statute inconsistent with Article
10, shall eliminate or reduce the effect of Article 10 in respect of any acts or
omissions occurring prior to such amendment, repeal or adoption of an
inconsistent provision.
Officers and directors of the Company are presently covered by
insurance which (with certain exceptions and certain limitations) indemnifies
them against losses or liabilities arising from any alleged "wrongful act",
including breach of duty, neglect, error, misstatement, misleading statement,
omission or other acts done or wrongfully attempted.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
-------
<TABLE>
<CAPTION>
Number Description Method of Filing
- ------ ----------- ----------------
<S> <C> <C>
4.1 Restated Certificate of Incorporation of the Filed as Exhibit 3.1 to the Company's
Company, as amended through June 12, 1991 Registration Statement No. 33-41226
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Number Description Method of Filing
- ------ ----------- ----------------
<S> <C> <C>
4.2 Restated By-Laws of the Company, as amended Filed herewith
through October 24, 1996
4.3 Rights Agreement, dated as of April 29, 1994, Filed as Exhibit 1 to the Company's Form 8-K
between the Company and American Stock Transfer dated April 29, 1994, filed with the Securities
and Trust Company, as Rights Agent and Exchange Commission on May 9, 1994
4.4 Amendment, dated as of October 4, 1995, to the Filed as Exhibit 2 to the Company's Form 8-K
Rights Agreement between the Company and dated October 4, 1995, filed with the
American Stock Transfer and Trust Company Securities and Exchange Commission on
November 8, 1995
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of Arthur Andersen LLP Filed herewith
24.1 Powers of Attorney authorizing Richard A. Filed herewith
Sandberg and Kevin C. Johnson to sign the
Registration Statement and all amendments
thereto on behalf of certain directors and
officers of the Company
</TABLE>
Item 9. Undertakings
------------
(a) The Company 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, represents 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.
<PAGE>
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Company
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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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 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 Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Stratford, State of Connecticut, on this 5th day
of December, 1996.
DIANON SYSTEMS, INC.
By: RICHARD A. SANDBERG*
-------------------
Richard A. Sandberg
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on this 5th day of December, 1996.
Signature Capacity
- --------- --------
RICHARD A. SANDBERG * Chairman of the Board (principal
- ------------------------- financial officer)
Richard A. Sandberg
KEVIN C. JOHNSON * Director and President (principal
- ------------------------- executive officer)
Kevin C. Johnson
JAMES B. AMBERSON * Director, Chief Medical Officer and
- ------------------------- Senior Vice President, Operations
James B. Amberson, M.D.
JOHN P. DAVIS * Director
- -------------------------
John P. Davis
<PAGE>
Signature Capacity
- --------- --------
WALTER O. FREDERICKS * Director
- -------------------------
Walter O. Fredericks
G.S. BECKWITH GILBERT * Director
- -------------------------
G.S. Beckwith Gilbert
JEFFREY L. SKLAR * Director
- -------------------------
Jeffrey L. Sklar, M.D., Ph.D.
DAVID R. SCHREIBER * Principal accounting officer
- -------------------------
David R. Schreiber
- ------------------------------
* By:
-----------------------------------------
Richard A. Sandberg, for himself and, as
authorized by Power of Attorney filed as
Exhibit 24.1 to this Registration Statement
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Number Description Method of Filing
- ------ ----------- ----------------
<S> <C> <C>
4.1 Restated Certificate of Incorporation of the Filed as Exhibit 3.1 to the Company's
Company, as amended through June 12, 1991 Registration Statement No. 33-41226
4.2 Restated By-Laws of the Company, as amended Filed herewith
through October 24, 1996
4.3 Rights Agreement, dated as of April 29, 1994, Filed as Exhibit 1 to the Company's Form 8-K
between the Company and American Stock Transfer dated April 29, 1994, filed with the Securities
and Trust Company, as Rights Agent and Exchange Commission on May 9, 1994
4.4 Amendment, dated as of October 4, 1995, to Filed as Exhibit 2 to the Company's Form 8-K
Rights Agreement between the Company and dated October 4, 1995, filed with the
American Stock Transfer and Trust Company Securities and Exchange Commission on
November 8, 1995
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of Arthur Andersen LLP Filed herewith
24.1 Powers of Attorney authorizing Richard A. Filed herewith
Sandberg and Kevin C. Johnson to sign the
Registration Statement and all amendments
thereto on behalf of certain directors and
officers of the Company
</TABLE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
report dated March 15, 1996, included in Dianon Systems, Inc.'s Form 10-K for
the year ended December 31, 1995, and to all references to our Firm included
in this registration statement and the related prospectus documents.
ARTHUR ANDERSEN LLP
Stamford, Connecticut
December 26, 1996
POWER OF ATTORNEY
DIANON SYSTEMS, INC. 1996 STOCK INCENTIVE PLAN
----------------------------------------------
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned does
hereby constitute and appoint each of Richard A. Sandberg and Kevin C. Johnson,
with full power of substitution, his true and lawful attorney to execute in his
name (whether on behalf of DIANON Systems, Inc. (the "Company") or as an officer
or director of the Company) any Registration Statement on Form S-8 to be filed
with the Securities and Exchange Commission under the Securities Act of 1933
relating to the Company's 1996 Stock Incentive Plan (the "Plan"), including
without limitation additional Registration Statements on Form S-8 relating to
the Plan, and any and all amendments (including post-effective amendments) to
any such Registration Statement, and to file the same, with all exhibits thereto
and any other documents in connection therewith, with the Securities and
Exchange Commission. Each such attorney and his substitutes shall have and may
exercise all powers to act hereunder. Each of the undersigned does hereby ratify
and confirm all that said attorney and agent shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has signed his name hereto
as of this 29th day of October, 1996.
/s/ Kevin C. Johnson /s/ Richard A. Sandberg
- ---------------------------- ---------------------------------
Kevin C. Johnson Richard A. Sandberg
/s/ James B. Amberson, M.D. /s/ G.S. Beckwith Gilbert
- ---------------------------- ---------------------------------
James B. Amberson, M.D. G.S. Beckwith Gilbert
/s/ John P. Davis /s/ Jeffrey L. Sklar, M.D., Ph.D.
- ---------------------------- ---------------------------------
John P. Davis Jeffrey L. Sklar, M.D., Ph.D.
/s/ Walter O. Fredericks
- ----------------------------
Walter O. Fredericks
<PAGE>
POWER OF ATTORNEY
DIANON SYSTEMS, INC. 1996 STOCK INCENTIVE PLAN
----------------------------------------------
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned does
hereby constitute and appoint each of Richard A. Sandberg and Kevin C. Johnson,
with full power of substitution, his true and lawful attorney to execute in his
name (whether on behalf of DIANON Systems, Inc. (the "Company") or as an officer
or director of the Company) any Registration Statement on Form S-8 to be filed
with the Securities and Exchange Commission under the Securities Act of 1933
relating to the Company's 1996 Stock Incentive Plan (the "Plan"), including
without limitation additional Registration Statements on Form S-8 relating to
the Plan, and any and all amendments (including post-effective amendments) to
any such Registration Statement, and to file the same, with all exhibits thereto
and any other documents in connection therewith, with the Securities and
Exchange Commission. Each such attorney and his substitutes shall have and may
exercise all powers to act hereunder. Each of the undersigned does hereby ratify
and confirm all that said attorney and agent shall do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has signed his name hereto
as of this 5th day of December, 1996.
/s/ David R. Schreiber
- -----------------------------
David R. Schreiber
REVISED BY-LAWS
OF
DIANON SYSTEMS, INC.
(a Delaware corporation)1
(as amended through Octobere 24, 1996)
ARTICLE I
STOCKHOLDERS
Section 1.01 Annual Meeting. The annual meeting of the stockholders,
for the purpose of electing directors and transacting such other business as may
come before it, shall be held on such date and at such time and place, either
within or without the State of Delaware, as may be specified by the Board of
Directors.
Section 1.02 Special Meetings. Special meetings of the stockholders may
be called only by the Chairman of the Board or by the Board of Directors. At a
special meeting of the stockholders, no business shall be transacted which is
not related to the purpose or purposes stated in the notice of meeting.
Any special meeting of the stockholders shall be held on such date and
at such time and place, either within or without the State of Delaware, as may
be specified by the person or persons calling the meeting in the notice of the
meeting.
Section 1.03 Notice of Meetings. Written notice of each stockholders'
meeting, stating the place, date and hour of the meeting and the purpose or
<PAGE>
purposes thereof, shall be given to each stockholder entitled to vote at the
meeting not less than ten nor more than sixty days before the date of the
meeting. Any previously scheduled meeting of the stockholders may be cancelled
by resolution of the Board of Directors upon public notice given prior to the
date previously scheduled for such meeting.
Section 1.04 Quorum; Adjournment. Except as otherwise provided in the
Restated Certificate of Incorporation or required by law, at any meeting of the
stockholders a majority of the shares entitled to vote, present in person or
represented by proxy, shall constitute a quorum.
The Chairman of the meeting or the vote of a majority of the shares so
represented may adjourn the meeting from time to time, whether or not there is
such a quorum. No notice of the time and place of adjourned meetings need be
given except as required by law.
Section 1.05 Conduct of Meetings. The chief executive officer shall
preside at any meeting of the stockholders. In such person's absence, such other
person as shall have been designated by the chief executive officer or the Board
of Directors shall preside. The order of business at any meeting shall be as
determined by the presiding officer.
The presiding officer shall have the power to prescribe such rules,
regulations and procedures and to do all such things as in his judgment may be
necessary or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of procedures for the maintenance of order and
safety, limitations on the time allotted to questions or comments, restrictions
on entry to the meeting after the time scheduled for the commencement thereof
and the opening and closing of the voting polls.
<PAGE>
If present, the Secretary shall act as secretary of any meeting of the
stockholders. In the Secretary's absence, such other person as the presiding
officer shall designate shall act as secretary of the meeting.
It shall be the duty of the Secretary to prepare and make, at least ten
days before every meeting of the stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order and
showing the address of each stockholder and the number of shares registered in
the name of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 1.06 Voting. Except as otherwise provided in the Restated
Certificate of Incorporation or required by law, (i) every holder of capital
stock which is entitled to vote shall be entitled to one vote for each share of
such stock registered in the name of such stockholder, (ii) directors shall be
elected by a plurality of the votes validly cast at the meeting by the holders
of shares entitled to vote for the election of directors and (iii) any other
corporate action shall be authorized if, with respect to shares entitled to vote
on the action, the votes validly cast in favor of the action exceed the votes
validly cast in opposition to the action.
Section 1.07 Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of the stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
<PAGE>
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
Section 1.08. Nomination of Directors. Subject to the rights of holders
of any outstanding preferred stock, only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors of the
Corporation. Nominations for election of directors may be made at an annual
meeting of stockholders either by the Board of Directors or by any stockholder
who is a stockholder on the date of the giving of the notice provided for in
this Section 1.08 and on the record date for the determination of stockholders
entitled to vote at such annual meeting. An eligible stockholder may nominate
persons for election as directors at an annual meeting of stockholders only if
such stockholder has caused proper written notice with respect thereto to be
delivered to, or mailed and received at, the principal executive offices of the
Corporation not more than 120 days nor less than 90 days prior to the date of
the annual meeting; provided, however, that in the event that less than 100
days' notice or prior public disclosure of the date of the meeting is given to
stockholders, such written notice will also be timely if so received by the
close of business on the 10th day following the first to occur of (y) the date
on which such notice of the date of the annual meeting was mailed or (z) the
date on which public disclosure of such date was made. For such notice by an
eligible stockholder to be proper, such notice shall set forth: (i) the name and
business and residential addresses of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (ii) the class or
series and number of shares of capital stock of the Corporation that are owned
beneficially or of record by such stockholder; (iii) a representation that such
<PAGE>
stockholder intends to appear in person or by proxy as a holder of record at the
meeting to nominate the person or persons specified in the notice; (iv) a
description of all arrangements or understandings between such stockholder and
each nominee proposed by the stockholder and any other person or persons
(identifying such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (v) the principal occupation or
employment of, and the classes or series and number of shares of capital stock
of the Corporation that are owned beneficially or of record by, the person or
persons to be nominated and such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission; and (vi) the consent of each nominee to serve as a director of the
Corporation if so elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 1.08. If the facts show that a nomination was not made in accordance
with the foregoing provisions, the Chairman of the meeting shall so determine
and declare to the meeting, whereupon the defective nomination shall be
disregarded. Public disclosure of the date of a forthcoming meeting may be made
by the Corporation for purposes of this Section 1.08 not only by the giving of
the formal notice of the meeting but also (i) by notice to a national securities
exchange or to the National Association of Securities Dealers, Inc. (if the
Corporation's common stock is then listed on such exchange or quoted on NASDAQ),
(ii) by filing a report under Section 13 or 15(d) of the Exchange Act (if the
Corporation is then subject thereto), (iii) by a mailing to stockholders or (iv)
by general press release.
<PAGE>
Section 1.09 Business At Annual Meetings. No business may be transacted
at an annual meeting of stockholders other than business that is (i) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (ii) otherwise properly brought before the
annual meeting by or at the direction of the Board of Directors or (iii)
otherwise properly brought before the annual meeting by a stockholder who (w) is
a stockholder of record on the date of the giving of the notice provided for in
this Section 1.09 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (x) complies with the notice
procedures set forth in this Section 1.09. An eligible stockholder may bring
business before an annual meeting only if such stockholder has caused proper
written notice with respect thereto to be delivered to, or mailed and received
at, the principal executive offices of the Corporation not more than 120 days
nor less than 90 days prior to the date of the annual meeting; provided,
however, that in the event that less than 100 days' notice or prior public
disclosure of the date of the meeting is given to stockholders, such written
notice will also be timely if so received by the close of business on the 10th
day following the first to occur of (y) the date on which such notice of the
date of the annual meeting was mailed or (z) the date on which public disclosure
of such date was made. For such notice by an eligible stockholder to be proper,
such notice must set forth as to each matter such stockholder proposes to bring
before the annual meeting: (1) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting; (2) the name and record address of the stockholder who intends to
propose such business; (3) the class or series and number of shares of capital
stock of the Corporation that are owned beneficially or of record by such
stockholder; (4) a description of all arrangements or understandings between
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such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of the stockholder in such business; and (5) a representation
that such stockholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 1.09, provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 1.09 shall be deemed to preclude
discussion by any stockholder of any such business. If the Chairman of an annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the business was not properly brought before the meeting and
such business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 1.09, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 1.09. Nothing in this Section 1.09 shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Company's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01 Number. Except as otherwise provided in the Restated
Certificate of Incorporation, the number of directors shall be the number fixed
from time to time by the Board.
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Section 2.02 Election and Term. At each annual meeting of the
stockholders, directors shall be elected to hold office until their successors
are elected and qualified or until their earlier resignation or removal.
Section 2.03 Meetings of the Board. Regular meetings of the Board of
Directors shall be held at such times and places as the Board shall determine.
Special meetings of the Board shall be held whenever called by the Chairman of
the Board, the President or by a majority of the directors in office at the
time.
Section 2.04 Notice of Meetings. No notice need be given of any regular
meeting of the Board of Directors or of any adjourned meeting of the Board. Nor
need notice be given to any director who signs a written waiver thereof or who
attends the meeting without protesting the lack of notice. Notices need not
state the purpose of the meeting.
Notice of each special meeting of the Board shall be given to each
director either by first class mail at least three days before the meeting or by
telegram, telex, cable or like transmission, telecopy, personal written delivery
or telephone at least one day before the meeting. Any notice given by telephone
shall be immediately confirmed by telegram, telex, cable or like transmission.
Notices are deemed to have been given: by mail, when deposited in the mail with
postage prepaid; by telegram, telex, cable or like transmission, at the time of
sending; and by personal delivery or telephone, at the time of delivery. Written
notices shall be sent to a director at the address designated by him for that
purpose, or, if none has been so designated, at his last known residence or
business address.
Section 2.05 Quorum and Vote of Directors. Except as otherwise provided
in the Restated Certificate of Incorporation or required by law, a majority of
the entire Board of Directors shall constitute a quorum for the transaction of
business or of any specified item of business and the vote of a majority of the
directors present at a meeting at the time of such vote, if a quorum is then
present, shall be the act of the Board.
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Section 2.06 Conduct of Meetings. The Chairman of the Board, if any,
shall preside at any meeting of the Board of Directors. In the absence of the
Chairman of the Board, a chairman of the meeting shall be elected from the
directors present. If present, the Secretary shall act as secretary of any
meeting of the Board. In the absence of the Secretary, the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 2.07 Resignations of Directors. Any director of the Corporation
may resign at any time by giving written notice to the Board of Directors or to
the Secretary of the Corporation. Such resignation shall take effect at the time
specified therein or, if such time is not specified therein, then upon receipt
thereof; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 2.08 Removal of Directors. Any director or the entire Board of
Directors may be removed, with or without cause, at any time by the affirmative
vote of the holders of a majority of the shares then entitled to vote at an
election of directors.
Section 2.09. Newly Created Directorships and Vacancies. Except as
otherwise provided in the Restated Certificate of Incorporation or by law, newly
created directorships resulting from an increase in the number of directors and
vacancies occurring in the Board of Directors for any reason, including the
removal of directors with or without cause, may be filled by the affirmative
vote of a majority of the directors then in office, although less than a quorum
exists, or by a sole remaining director.
<PAGE>
Section 2.10 Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation.
The Board may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent or
disqualified member.
Any such committee, to the extent provided in the resolution of the
Board but subject to the limitation of Section 141(c) of the Delaware General
Corporation Law, shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it.
The provisions of Section 2.04 for notice of meetings of the Board
shall apply also to meetings of committees, unless different notice procedures
shall be prescribed by the Board.
Each such committee shall serve at the pleasure of the Board. It shall
keep minutes of its meetings and report the same to the Board and shall observe
such other procedures as are prescribed by the Board.
Section 2.11 Compensation of Directors. Each director shall be entitled
to receive as compensation for his services as director or committee member or
for attendance at meetings of the Board of Directors or committees, or both,
<PAGE>
such amounts (if any) as shall be fixed from time to time by the Board. Each
director shall be entitled to reimbursement for reasonable traveling expenses
incurred by him in attending any such meeting. No such payment shall preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 2.12 Telephonic Meetings. Any one or more members of the Board
of Directors or any committee thereof may participate in a meeting of such Board
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
Section 2.13 Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
the committee consent thereto in writing and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
ARTICLE III
OFFICERS
Section 3.01 Officers. The officers of the Corporation shall include a
Chairman of the Board, a President, a Treasurer and a Secretary and may also
include a Vice Chairman of the Board, one or more Vice Presidents (who may be
further classified by such descriptions as "executive," "senior" or "group" as
determined by the Board of Directors), a Controller, Assistant Vice Presidents,
Assistant Treasurers, Assistant Secretaries, Assistant Controllers and other
officers and agents, as the Board of Directors may deem necessary or desirable.
<PAGE>
Each officer shall have such authority and perform such duties, in
addition to those specified in these By-Laws, as may be prescribed by the Board
from time to time. The Board may from time to time authorize any officer to
appoint and remove any other officer or agent and to prescribe such person's
authority and duties. Any person may hold at one time two or more offices.
Section 3.02. Term of Office, Resignation and Removal. Each officer
shall hold office for the term for which elected or appointed by the Board of
Directors, and until the person's successor has been elected or appointed and
qualified or until his earlier resignation or removal.
Any officer may resign at any time by giving written notice to the
Board or to the Secretary of the Corporation. Such resignation shall take effect
at the time specified therein or, if such time is not specified therein, then
upon receipt thereof; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Any officer may be removed by the Board, with or without cause. The
election or appointment of an officer shall not of itself create contract
rights.
Section 3.03 Chairman of the Board. The Chairman of the Board shall be
a member of the Board of Directors. The Chairman of the Board shall preside at
all meetings of the stockholders and the Board of Directors and, if so
designated by the Board, shall be the chief executive officer of the
Corporation.
Section 3.04 President. Unless there shall be a Chairman of the Board
designated by the Board of Directors as the chief executive officer of the
Corporation, the President shall be the chief executive officer of the
Corporation. Subject to the control of the Board of Directors and the Chairman
of the Board (if designated chief executive officer), the President shall be
responsible for the day-to-day management of the business and affairs of the
Corporation and shall enjoy all other powers commonly incident to the office.
<PAGE>
Section 3.05 Vice Presidents. Each of the Vice Presidents shall have
such authority and perform such duties as may be prescribed from time to time.
Section 3.06 Treasurer and Assistant Treasurers. The Treasurer shall
have the care and custody of all funds and securities of the Corporation, keep
accounts of receipts and disbursements and of deposit or custody of moneys and
other valuables and enjoy all powers commonly incident to the office.
In the case of the absence or inability to act of the Treasurer, any
Assistant Treasurer may act in the Treasurer's place.
Section 3.07 Secretary and Assistant Secretaries. The Secretary shall
keep the minutes of the meetings of the stockholders and the Board of Directors
and give notice of such meetings, have custody of the corporate seal and affix
and attest such seal to any instrument to be executed under seal and enjoy all
powers commonly incident to the office.
In the case of the absence or inability to act of the Secretary, any
Assistant Secretary may act in the Secretary's place.
Section 3.08 Controller and Assistant Controllers. The Controller shall
have control of all books of account of the Corporation (other than those to be
kept by the Treasurer), render accounts of the financial condition of the
Corporation and enjoy all powers commonly incident to the office.
In the absence or inability to act of the Controller, any Assistant
Controller may act in the Controller's place.
<PAGE>
Section 3.09 Compensation. Compensation of officers, agents and
employees of the Corporation shall be fixed from time to time by, or under the
authority of, the Board of Directors.
ARTICLE IV
CAPITAL STOCK
Section 4.01 Form of Certificates. Unless otherwise provided by
resolution of the Board of Directors, the shares of stock of the Corporation
shall be represented by certificates which shall be in such form as is
prescribed by law and approved by the Board.
Section 4.02 Transfer of Shares. Transfers of shares of stock of the
Corporation shall be registered on its records maintained for such purpose (i)
upon surrender to the Corporation or a transfer agent of a certificate or
certificates representing the shares requested to be transferred, with proper
endorsement on the certificate or certificates or on a separate accompanying
document, together with such evidence of the payment of transfer taxes and
compliance with other provisions of law as the Corporation or its transfer agent
may require or (ii) if shares are not represented by certificates, upon
compliance with such transfer procedures as may be approved by the Board or
prescribed by applicable law.
The Corporation shall be entitled to treat the holder of record of any
share as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share on the part
of any other person whether or not it shall have express or other notice
thereof, except as expressly provided by law.
Section 4.03 Regulations. The Board of Directors shall have authority
to make such rules and regulations as it may deem expedient concerning the
<PAGE>
issue, transfer and registration of shares of stock of the Corporation,
including without limitation such rules and regulations as may be deemed
expedient concerning the issue of certificates in lieu of certificates claimed
to have been lost, destroyed, stolen or mutilated.
ARTICLE V
GENERAL PROVISIONS
Section 5.01 Corporate Seal. The Board of Directors may adopt a
corporate seal, alter such seal at its pleasure, and authorize it to be used by
causing it or a facsimile to be affixed or impressed or reproduced in any other
manner.
Section 5.02 Voting Upon Stocks. Unless otherwise ordered by the Board
of Directors, the chief executive officer of the Corporation, or any other
officer of the Corporation designated by the chief executive officer of the
Corporation, shall have full power and authority on behalf of the Corporation to
attend and to act and to vote in person or by proxy at any meeting of the
holders of securities of any corporation in which the Corporation may own or
hold stock or other securities, and at any such meeting shall possess and may
exercise in person or by proxy any and all rights, powers and privileges
incident to the ownership of such stock or other securities which the
Corporation, as the owner or holder thereof, might have possessed and exercised
if present. The chief executive officer of the Corporation, or any other officer
of the Corporation designated by the chief executive officer of the Corporation,
may also execute and deliver on behalf of the Corporation powers of attorney,
consents, proxies, waivers of notice and other instruments relating to the
stocks or securities owned or held by the Corporation. The Board of Directors
may, from time to time, by resolution confer like powers upon any other person
or persons.
<PAGE>
Section 5.03 Amendments. These By-Laws and any amendments hereof may be
altered, amended, or repealed, and new By-Laws may be adopted, as provided in
the Restated Certificate of Incorporation.
December 4, 1996
Dianon Systems, Inc.
200 Watson Blvd.
Stratford, CT 06497
Re: Dianon Systems, Inc. 1996 Stock Incentive Plan
----------------------------------------------
Dear Sirs:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Dianon Systems, Inc.
(the "Company") to be filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Act"), with respect to 700,000
shares of common stock, par value $.01 per share, of the Company ("Common
Stock") to be issued in accordance with the provisions of the Company's 1996
Stock Incentive Plan (the "Plan"), and 10,000 shares of Common Stock to be
issued upon the exercise of a stock option granted outside of the Plan (the
"Option"), in each case with related stock purchase rights (the "Rights").
In this connection, and as the basis for the opinion expressed below,
we have examined and relied on originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records and other
instruments, have made such inquiries as to questions of fact of officers and
representatives of the Company, and have made such examinations of law as we
have deemed necessary or appropriate for the purpose of giving the opinion
expressed below. In stating our opinion, we have assumed the authenticity of all
documents submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as certified, conformed or
photostatic copies.
The opinion set forth below is restricted to matters controlled by the
federal laws of the United States and the General Corporation Law of the State
of Delaware. We are not members of the Delaware bar.
Based upon and subject to the foregoing, it is our opinion that when
(i) the applicable provisions of the Act and of such "Blue Sky" or other state
securities laws as may be applicable shall have been complied with, (ii) the
Shares delivered upon exercise of stock options or stock appreciation rights
<PAGE>
shall have been issued in consideration of the payment of cash or the rendition
of prior services in an amount at least equal to the aggregate par value of such
Shares in accordance with the terms of the Plan or the Option, (iii) the Shares
delivered as restricted stock subject to forfeiture upon a failure to render
specified future services shall have been issued in consideration of the payment
of cash or the rendition of prior services in an amount at least equal to the
aggregate par value of such Shares, or delivered from the treasury of the
Company, in either case in accordance with the terms of the Plan, (iv) the
Shares delivered as bonus stock which are not subject to forfeiture shall have
been issued in consideration of the rendition of prior services performed either
in anticipation of such award or with the knowledge of the possibility of such
award, in either case in an amount at least equal to the aggregate par value of
such Shares and in accordance with the terms of the Plan, and (v) the Share
certificates shall have been duly executed and delivered, (a) the Shares will be
legally issued, fully paid and nonassessable, and (b) the Rights attached to
such Shares, when issued in accordance with the terms of the Rights Agreement,
dated as of April 29, 1994 and amended as of October 4, 1995, by and between the
Company and American Stock Transfer and Trust Company, as Rights Agent, will be
legally issued.
In reaching our opinion with respect to the Shares described in clause
(iii) above, we have concluded that the fact that such Shares are subject to
forfeiture if the recipient thereof fails to provide services as specified in
the grant letter with respect thereto should be regarded as substantially
equivalent to a binding commitment to pay the balance of the purchase price over
the amount paid in cash or prior services upon issuance.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are in
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.
Very truly yours,
/s/ Hughes Hubbard & Reed LLP
