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As filed with the Securities and Exchange Commission on February 5, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
STRATEGIC DIAGNOSTICS INC.
(Exact name of Registrant as specified in its Charter)
DELAWARE 56-1581761
(State or other jurisdiction I.R.S. Employer Identification Number
of incorporation or organization)
128 Sandy Drive
Newark, DE 19713
(Address of principal executive offices)
STRATEGIC DIAGNOSTICS INC. NON-QUALIFIED STOCK OPTION AGREEMENTS
WITH EACH OF
JOHN H. TIMONEY
WILLIAM F. EARTHMAN, III
CURTIS LEE SMITH, JR.
ROBERT E. FINNIGAN
ANDREW C. MIDDLETON
(Full title of the plans)
Richard C. Birkmeyer
128 Sandy Drive
Newark, DE 19713
(Name and address of agent for service)
(302)456-6789
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
maximum Proposed
Title of Amount to offering maximum Amount of
shares to be be price per aggregate registration
registered registered share offering price fee
- --------------- ---------- --------- -------------- ------------
Common Stock
($.01 par value) 30,000 $3.250 $97,500 $29.55
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Common Stock
($.01 par value) 15,000 $2.500 $37,500 $11.36
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Common Stock
($.01 par value) 15,000 $2.125 $31,875 $9.66
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Common Stock
($.01 par value) 30,000 $1.375 $41,250 $12.50
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Common Stock
($.01 par value) 10,000 $0.250 $2,500 $0.76
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Strategic Diagnostics
Inc. (formerly known as EnSys Environmental Products, Inc.)("registrant" or the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the
year ended December 31, 1995;
(b) the Company's Quarterly Reports on Form 10-Q for
the quarters ended March 31, June 30 and September
30, 1996;
(c) the Company's current reports on Form 8-K dated
December 30, 1996 and January 29, 1997; and
(d) the description of the Common Stock, of the
Company contained in the Company's Registration
Statement on Form 8-A dated September 15, 1993,
including any amendments or reports filed for the
purpose of updating such description.
Additionally incorporated by reference into this Registration
Statement is the following information included in the Company's Registration
Statement on Form S-4 filed with the Commission on December 9, 1996 in respect
of the Merger of Strategic Diagnostics Inc. ("SDI") with and into the Company:
(1)the Surviving Corporation and Subsidiaries Pro Forma combined Financial
Statements with the Basis of Presentation and notes thereto; (2) EnSys
Environmental Products, Inc's consolidated Financial Statements, accompanying
accountant's report, and notes thereto; (3) SDI's Financial Statements,
accompanying accountant's report, and notes thereto; and (4) Ohmicron
Corporation's (which merged with and into SDI on August 30, 1996) Consolidated
Financial Statements, accompanying accountant's report, and notes thereto.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") after
the date hereof and prior to the filing of a post-effective amendment which
indicates that all
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securities offered pursuant to this Registration Statement
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents.
Item 4. Description of Securities.
The Common Stock, which is the class of securities offered pursuant to
this Registration Statement, is registered under the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock registered hereunder has been passed
upon for the Company by Pepper, Hamilton & Scheetz LLP, 1235 Westlakes Drive,
Suite 400, Berwyn, Pennsylvania 19312.
Item 6. Indemnification of Directors and Officers.
Statutory Provisions
Section 102(b)(7) of the Delaware General Corporation Law ("DGCL")
permits a corporation in its certificate of incorporation to eliminate or limit
the personal liability of a director to the corporation or its stockholders for
monetary damages for violations of a director's fiduciary duty as a director.
Registrant's Certificate of Incorporation includes such a provision. Such a
provision would have no effect on the availability of equitable remedies, such
as an injunction or rescission, for breach of fiduciary duty. In addition, no
such provision may eliminate or limit the liability of a director for: (i) any
breach of a director's duty of loyalty to the registrant or its stockholders;
(ii) acts and omissions not in good faith or acts which involve intentional
misconduct or knowing violations of law; (iii) liability for unlawful payment of
dividends or unlawful stock purchase or redemption under Section 174 of the
DGCL; or (iv) any transaction from which a director derives an improper personal
benefit.
Section 145 of the DGCL provides that a corporation may indemnify any
person who is or was 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, by reason of the fact that he or she
is or was a director, officer, employee or agent of the corporation, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests
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of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful. 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 court in which such action 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 shall deem
proper. Additionally, a corporation is required to indemnify its directors
and officers against expenses to the extent that such directors or officers
have been successful on the merits or otherwise in any action, suit or
proceeding or in defense of any claim, issue or matter therein.
Indemnification can be made by the corporation only upon a
determination that indemnification is proper in the circumstances because the
party seeking indemnification had met the applicable standard of conduct as set
forth in the DGCL. The indemnification provided by the DGCL shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors, or otherwise. A corporation also has the power to purchase and
maintain insurance on behalf of any person, whether or not the corporation would
have the power to indemnify him or her against such liability. The
indemnification provided by the DGCL shall, unless otherwise provided when
authorized or ratified, continue as to a person who ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Certificate of Incorporation and Bylaws
The registrant's Certificate of Incorporation limits the registrant's
directors' liability for monetary damages to the registrant and its stockholders
for breaches of fiduciary duty to the fullest extent permitted under the DGCL.
In the event of any amendment to the DGCL at a later date to authorize corporate
action further limiting the personal liability of corporate directors, the
registrant's Certificate of Incorporation authorizes the registrant to limit
liability of the registrant's directors to the fullest extent permitted under
the DGCL at such later date. In addition, the registrant's Certificate of
Incorporation provides that any repeal or modification of the provisions
relating to indemnification by the stockholders of the registrant or by an
amendment to the DGCL will not affect any right or protection existing at the
time of such repeal or amendment with respect to any acts or omissions occurring
either before or after such repeal or amendment.
The registrant's Bylaws provide that each person who is involved in
any actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative, by
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reason of the fact that he or she is a director, officer, employee or
agent of registrant, or is or was serving at the request of the registrant as
a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee or other benefit plans, will be indemnified by the
registrant to the fullest extent permitted by the DGCL, as the same exists or
may hereafter be amended, against any and all expenses incurred in connection
therewith, and such indemnification will continue as to a person who has
ceased to be a director, officer, employee or agent and will inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that the registrant will indemnify any such person seeking indemnification in
connection with a proceeding initiated by such person only if such proceeding
was authorized by the registrant's Board of Directors. The right to
indemnification will be a contractual right and will include the right to be
paid by the registrant the expenses incurred in defending any such proceeding
in advance of its final disposition upon receipt of an undertaking by the
person seeking indemnification to repay such payment if such person shall be
adjudicated or determined not to be entitled to indemnification. No
indemnification shall be provided to a person with respect to a matter as to
which such person shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that the action of such person
was in or not opposed to the best interests of the registrant. In the event
that a proceeding is settled or compromised, no indemnification shall be
provided to such person if there is a determination by a majority vote of the
Board of Directors of the registrant that, with respect to such matter, such
person did not act in good faith in the reasonable belief that his or her
action was in or not opposed to the best interests of the registrant. If
more than half of the members of the registrant's Board of Directors are
involved in such proceeding, the determination shall be made by a majority
vote of a committee of one or more disinterested director(s) chosen at a
regular or special meeting.
The indemnification rights conferred by the registrant's Bylaws are
not exclusive of any other right to which a person seeking indemnification may
be entitled under law, bylaw, agreement, vote of stockholders or disinterested
directors or otherwise. The registrant may maintain insurance at its expense on
behalf of its directors, officers, employees and agents.
Item 7. Exemption from Registration Claimed.
No restricted securities are being reoffered or resold pursuant to
this Registration Statement.
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Item 8. Exhibits.
Exhibit No. Description
5 Opinion of Pepper, Hamilton & Scheetz LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of Pepper, Hamilton & Scheetz LLP (Included in
Exhibit 5)
24 Power of Attorney (See Signature Page)
Item 9. Undertakings
The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being
made pursuant to this Registration Statement, 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 this registration statement (or the most recent
post-effective amendment thereof) which, individually or in aggregate, represent
a fundamental change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or decrease in the
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 changes 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 this registration statement or
any material change to such information in this registration statement;
provided, however, that paragraphs (i) and (ii) above 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 registrant pursuant to
Section 13
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or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this 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.
The undersigned registrant hereby undertakes that, for 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 that is incorporated by reference in this 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.
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 City of Newark, Delaware, on February 5, 1997.
STRATEGIC DIAGNOSTICS INC.
By:/s/ Richard C. Birkmeyer
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Richard C. Birkmeyer, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Richard C. Birkmeyer, his or her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on
February 5, 1997 in the capacities indicated:
Signature Title
/s/ Richard C. Birkmeyer
- ------------------------- President, Chief Executive
Richard C. Birkmeyer Officer and Director, the principal executive
officer
/s/ Gregory J. Bell
- ------------------------- Vice President - Finance and Chief
Gregory J. Bell Financial Officer, the principal
financial officer and principal
accounting officer
/s/ Grover C. Wrenn
- ------------------------- Director
Grover C. Wrenn
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/s/ Curtis Lee Smith, Jr.
- -------------------------- Director
Curtis Lee Smith, Jr.
/s/ Kathleen E. Lamb
- -------------------------- Director
Kathleen E. Lamb
/s/ Richard J. Defieux
- -------------------------- Director
Richard J. Defieux
/s/ Robert E. Finnigan
- -------------------------- Director
Robert E. Finnigan
/s/ Stephen O. Jaeger
- -------------------------- Director
Stephen O. Jaeger
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EXHIBIT INDEX
Exhibit No. Description
5 Opinion of Pepper, Hamilton & Scheetz LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of Pepper, Hamilton & Scheetz LLP
(Included in Exhibit 5)
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Exhibit 5
610-640-7807
February 5, 1997
Strategic Diagnostics Inc.
128 Sandy Drive
Newark, DE 19713
Re: Non-Qualified Stock Option Agreements with each of Messrs.
Timoney, Smith, Middleton, Finnigan and Earthman
Ladies and Gentlemen:
You have requested our opinion, as counsel for Strategic
Diagnostics Inc., a Delaware corporation formerly known as EnSys
Environmental Products, Inc. (the "Company"), in connection with its
Registration Statement on Form S-8 (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"), being filed by the Company
with the Securities and Exchange Commission, respecting the offering of up to
an aggregate of 100,000 shares of the Company's common stock, par value $.01
per share (the "Shares"), which may be issued by the Company upon exercise of
options granted under the Company's Non-Qualified
Stock Option Agreements with each of Messrs. Timoney, Smith, Middleton, Finnigan
and Earthman (the "Plans").
We have examined such records and documents and made such
examination of law as we have deemed relevant in connection with this
opinion. Based upon such examination, it is our opinion that when there has
been compliance with the Act and applicable state securities laws, the
Shares, when issued, delivered and paid for upon exercise of the respective
options granted under each Plan, and in the manner described in such Plans, will
be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to this firm under the caption
"Exhibits" in the Registration Statement. In doing so, 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 promulgated thereunder.
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Strategic Diagnostics Inc.
Page 2
February 5, 1997
Very truly yours,
PEPPER, HAMILTON & SCHEETZ LLP
By: /s/ Michael P. Gallagher
------------------------
A Partner
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Exhibit 23.1
KPMG Peat Marwick LLP
150 Fayetteville Street Mall
Suite 1200
Post Office Box 29543
Raleigh, NC 27828-0543
The Board of Directors
Strategic Diagnostics Inc.:
We consent to the use of our report incorporated herein by reference related
to the consolidated balance sheets of BnSys Environmental Products, Inc. and
subsidiary as of December 31, 1995 and 1994 and the related consolidated
statements of operations, stockholders' equity (deficit), and cash flows for
each of the years in the three-year period ended December 31, 1995.
Our report refers to the fact the EnSys Environmental Products, Inc. adopted
Statement of Financial Accounting Standards No. 115 "Accounting for Certain
Investments in Debt and Equity Securities" on January 1, 1994.
/s/ KPMG Peat Marwick LLP
--------------------------
KPMG Peat Marwick LLP
Raleigh, North Carolina
February 4, 1997
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Exhibit 23.2
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 July 24, 1996 on
the financial statements of Strategic Diagnostics Inc. for the years ended
December 31, 1994 and 1995 and for each of the three years in the period
ended December 31, 1995 included in the Form S-4 Registration Statement File
No. 333-17505 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Philadelphia, Pa.,
February 5, 1997
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Exhibit 23.3
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-00000) pertaining to the Strategic Diagnostics Inc.
Non-Qualified Stock Option Agreements of our report dated October 27, 1995,
with respect to the consolidated financial statements of Ohmicron Corporation
included in the Registration Statement (Form S-4 No. 333-17505) filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
February 5, 1997
