As filed with the Securities and Exchange Commission on April 4, 2000
REGISTRATION NO.
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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DIANON SYSTEMS, INC.
(Exact name of Company as specified in its charter)
DELAWARE 06-1128081
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 Watson Boulevard
Stratford, CT 06615
(203) 381-4000
(Address, including Zip Code, of principal executive offices)
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DIANON SYSTEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
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Mr. Kevin C. Johnson
President and Chief Executive Officer
Dianon Systems, Inc.
200 Watson Boulevard
Stratford, CT 06615
(203) 381-4000
Copy to:
Dennis J. Block, Esq.
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
(212) 504-6000
(Name and address, including Zip Code, telephone number and area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Price Aggregate Offering Registration
be Registered Registered(1) Per Share(2) Price(2) Fee
- ------------- ------------- ---------------- ------------------ ------------
Common Stock, 300,000 $19.1875 $5,756,250 $1,519.65
$0.01 par shares
value
(1) Based on the number of shares of common stock of Dianon Systems, Inc. (the
"Company") reserved for issuance upon exercise of options granted pursuant
to the Dianon Systems, Inc. Employee Stock Purchase Plan (the "Plan"). In
addition to such shares, this registration statement also covers an
undetermined number of shares of common stock of the Company that, by
reason of certain events specified in the Plan, may become issuable upon
exercise of options through the application of certain anti-dilution
provisions.
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, pursuant to which
shares subject to outstanding options are deemed to be offered at the
prices at which such options may be exercised and restricted shares and
shares that may be acquired upon exercise of options granted in the future
are deemed to be offered at $19.1875 per share, the average of the daily
high and low sales prices of common stock of the Company on the Nasdaq
National Market at the close of trading on March 29, 2000.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The document containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). Such document need
not be filed with the Commission either as part of this registration statement
or as prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act. These documents and the documents incorporated by reference in
this registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by the Company with the
Commission, are incorporated in the Registration Statement by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, which was filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the exhibits therein;
(2) the description of the Company's Common Stock (the "Common Stock")
contained in the Company's Registration Statement on Form 8-A, dated
November 8, 1995;
(3) the amendment to the Company's registration statement on Form S-1/A,
dated July 30, 1991;
(4) the amendment to the Company's registration statement on Form S-1/A,
dated July 23, 1991;
(5) the amendment to the Company's registration statement on Form S-1/A,
dated July 18, 1991;
(6) the Company's registration statement on Form S-1, dated June 14, 1991
(Registration No. 33-41226).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the end of the fiscal year ended December 31,
1999 and prior to the date of the termination of the offering of the Common
Stock offered hereby shall be deemed to be incorporated by reference into this
registration statement and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document 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 document which is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Dianon Systems, Inc. will provide without charge to each person to
whom this Prospectus is delivered, upon request of any such person, a copy of
any or all of the foregoing documents incorporated herein by reference (other
than exhibits to such documents). Written requests should be directed to Dianon
Systems, Inc. Attn: David Schreiber, Senior Vice President and Chief Financial
Officer, at 200 Watson Boulevard, Stratford, CT 06615. Telephone requests may
be directed to (203) 381-4055.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of
Delaware (the "DGCL") 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
complete 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 he is or was a director, 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 him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no cause to believe his conduct was unlawful.
Subsection (b) of Section 145 of the DGCL 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 such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification may be made
in respect to 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
Court of Chancery or the court in which such action or suit was brought shall
determine that despite the adjudication of liability such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 145 of the DGCL further provides that to the extent a
director, officer, employee or agent of a corporation has been successful in the
defense of any action, suit or proceeding referred to in subsections (a) and (b)
or in the defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith; that indemnification or advancement of expenses
provided for by Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; and empowers the corporation to
purchase and maintain insurance on behalf of a director, officer, employee or
agent of the corporation against any liability asserted against him or incurred
by him in any such capacity or arising out of his status as such whether or not
the corporation would have the power to indemnify him against such liabilities
under Section 145.
Article X of the Company's Certificate of Incorporation provides that
a director shall not be personally liable to the Company or its stockholders for
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 Corporation 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 Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
Article X of the Company's Certificate of Incorporation requires the
Company, among other things, to indemnify to the fullest extent permitted by the
DGCL, any person who is or was or has agreed to become a director or officer of
the Company, who was or is made a party to, or is threatened to be made a party
to, or has become a witness in, any threatened, pending or completed action,
suit or proceeding, including actions or suits by or in the right of the
Company, by reason of such agreement or service or the fact that such person is,
was or has agreed to serve as a director, officer, employee or agent of another
corporation or organization at the written request of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Dianon Systems, Inc. Employee Stock Purchase Plan, incorporated
by reference to Exhibit 99.A to the Company's Proxy Statement
on Schedule 14A, dated October 21, 1999.
4.2 Certificate of Incorporation of the Company, incorporated by
reference to the Company's Registration Statement on Form S-1,
dated June 14, 1991 (Registration No. 33-41226).
4.3 Bylaws of Company, incorporated by reference to the
Exhibit 3.3. to the Company's Quarterly Report on Form 10-Q,
dated November 14, 1997.
5.1 Opinion of Cadwalader, Wickersham & Taft, counsel for Company,
as to the legality of the securities being registered.
23.1 Consent of Cadwalader, Wickersham & Taft (included in Exhibit
5.1 hereof).
23.2 Consent of Arthur Anderson LLP.
ITEM 9. UNDERTAKINGS.
A. Rule 415 offering. 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;
(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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Company pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining 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. Filings incorporating subsequent Exchange Act documents by reference.
The Company hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
C. Incorporated annual and quarterly reports. The Company hereby undertakes
to deliver or cause to be delivered with the prospectus, to each person to whom
the prospectus is sent or given, the latest annual report to security holders
that is incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
D. Filing of registration on Form S-8. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
for expenses incurred or paid by a director, officer or controlling person of
the Company in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for 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 State of Connecticut on March 31, 2000.
DIANON SYSTEMS, INC.
(Registrant)
By: /s/ Kevin C. Johnson
------------------------------------
Kevin C. Johnson
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Kevin C. Johnson President, Chief Executive March 31, 2000
- ------------------------- Officer and Director
Kevin C. Johnson
/s/ David R. Schreiber Chief Financial Officer and March 31, 2000
- ------------------------- Director (Chief Financial
David R. Schreiber Officer and Corporate Secretary)
/s/ John P. Davis Director March 31, 2000
- -------------------------
John P. Davis
/s/ Bruce K. Crowther Director March 31, 2000
- -------------------------
Bruce K. Crowther
/s/ E. Timothy Geary Director March 31, 2000
- -------------------------
E. Timothy Geary
/s/ G.S. Beckwith Gilbert Director March 31, 2000
- -------------------------
G.S. Beckwith Gilbert
/s/ Jeffrey L. Sklar Director March 31, 2000
- -------------------------
Jeffrey L. Sklar
Exhibit 5.1
[CADWALADER, WICKERSHAM & TAFT LETTERHEAD]
April 3, 2000
Dianon Systems, Inc.
200 Watson Boulevard
Stratford, CT 06615
Re: Dianon Systems, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Dianon Systems, Inc. (the
"Company") in connection with the preparation and filing by the Company with the
Securities and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, dated as
of March 31, 2000, relating to the registration of up to 300,000 shares of the
Company's common stock, par value $.01 per share (the "Shares") to be issued
pursuant to the Company's Employee Stock Purchase Plan.
In rendering the opinions set forth below, we have examined
originals, or copies certified or otherwise identified to our satisfaction, of
such documents corporate records and other instruments as we have deemed
necessary or appropriate.
We express no opinion concerning the laws of any jurisdiction other
than the federal laws of the United States of America, and the General
Corporation Law of the State of Delaware. While we are not licensed to practice
law in the State of Delaware, we have reviewed such applicable provisions of the
Delaware General Corporation Law as we have deemed appropriate in connection
with the opinions expressed herein.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Shares have been duly authorized under the Company's
Certificate of Incorporation.
2. When issued and paid for as described in the Registration
Statement, the Shares will be validly issued, fully paid and nonassessable.
We are furnishing this opinion letter to you solely for your benefit
in connection with the registration referred to herein. We disclaim any
obligation to update this opinion letter for changes in fact or law, or
otherwise.
Very truly yours,
CADWALADER WICKERSHAM AND TAFT
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby concede that
we are within the category of persons whose consent is required under the
Securities Act of 1933, as amended, or the Rules and Regulations thereunder.
Very truly yours,
CADWALADER WICKERSHAM & TAFT
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
February 22, 2000, included in Dianon Systems, Inc.'s Form 10-K for the year
ended December 31, 1999, and to all references to our Firm included in this
registration statement and related prospectus documents.
ARTHUR ANDERSEN LLP
Stamford, Connecticut
March 31, 2000
