<PAGE>
As filed with the Securities and Exchange Commission on November 30, 1998
Registration No. 333-______
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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 of (I.R.S. employer
incorporation or organization) Identification No.)
Strategic Diagnostics Inc.
111 Pencader Drive
Newark, DE 19702
(Address of Principal Executive Offices)
-------------------------------
1998 Employee Stock Purchase Plan
(Full title of the Plan)
-------------------------------
Richard C. Birkmeyer
President and Chief Executive Officer
111 Pencader Drive
Newark, DE 19702
(Name and Address of Agent for Service)
(302) 456-6789
(Telephone number, including area code of agent for service)
Copies of Communications to:
Paul T. Porrini, Esquire Arthur A. Koch, Jr.
Pepper Hamilton LLP Strategic Diagnostics Inc.
1235 Westlakes Drive, Suite 400 111 Pencader Drive
Berwyn, Pennsylvania 19312-2401 Newark, DE 19702
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Proposed Maximum
Title of Securities to Amount to Be Offering Price Per Proposed Maximum Amount of
Be Registered Registered (1) Share (2) Aggregate Offering Price(2) Registration Fee (2)
<S> <C> <C> <C> <C>
===================================================================================================================================
Common Stock, par
value $.01 per share 661,157 $2.1875 $1,446,281 $402.07
===================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers such additional shares as may hereinafter be offered or
issued to prevent dilution resulting from stock splits, stock dividends,
recapitalization or certain other capital adjustments.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, based
upon the average of the high and low sale prices of the Registrant's Common
Stock reported on the NASDAQ National Market on November 27, 1998.
<PAGE>
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. ("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, 1997;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30 and September 30, 1998;
(c) the Company's current report on Form 8-K filed September 17,
1998; 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.
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 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 LLP, 1235 Westlakes Drive, Suite 400,
Berwyn, Pennsylvania 19312.
II - 1
<PAGE>
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 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
II - 2
<PAGE>
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 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.
II - 3
<PAGE>
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.
Item 8. Exhibits.
Exhibit No. Description
4 1998 Employee Stock Purchase Plan
5 Opinion of Pepper Hamilton LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Pepper Hamilton 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
II - 4
<PAGE>
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 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.
II - 5
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
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 Newark, Delaware on November 30, 1998.
STRATEGIC DIAGNOSTICS INC.
By: /s/ Richard C. Birkmeyer
-----------------------------------
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 in the
capacities indicated:
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
/s/ Richard C. Birkmeyer President, Chief Executive November 30, 1998
- ------------------------ Officer and Director
Richard C. Birkmeyer (principal executive officer)
/s/ Arthur A. Koch Vice President - Finance and November 30, 1998
- ------------------ Chief Financial Officer
Arthur A. Koch (principal financial and
accounting officer)
</TABLE>
II - 6
<PAGE>
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
/s/ Richard J. Defieux Director November 30, 1998
- ----------------------
Richard J. Defieux
/s/ Robert E. Finnigan Director November 30, 1998
- ----------------------
Robert E. Finnigan
/s/ Stephen O. Jaeger Director November 30, 1998
- ---------------------
Stephen O. Jaeger
/s/ Kathleen E. Lamb Director November 30, 1998
- --------------------
Kathleen E. Lamb
/s/ Curtis Lee Smith, Jr. Director November 30, 1998
- -------------------------
Curtis Lee Smith, Jr.
___________________ Director November 30, 1998
Grover C. Wrenn
</TABLE>
II - 7
<PAGE>
EXHIBIT INDEX
Exhibit Numbers Description
- --------------- -----------
4 1998 Employee Stock Purchase Plan
5 Opinion of Pepper Hamilton LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Pepper Hamilton LLP (included in its opinion
filed as Exhibit 5)
<PAGE>
STRATEGIC DIAGNOSTICS INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose.
The Strategic Diagnostics Inc. 1998 Employee Stock Purchase
Plan (the "Plan") is broadly based and intended to encourage and facilitate the
purchase of Shares of the Common Stock of Strategic Diagnostics Inc. (the
"Company"), by employees of the Company and any Participating Companies, thereby
providing employees with a personal stake in the Company and a long range
inducement to remain in the employ of the Company and Participating Companies.
It is the intention of the Company that the Plan qualify as an "employee stock
purchase plan" within the meaning of Section 423 of the Code.
2. Definitions.
(a) "Account" means a bookkeeping account established by the Committee
on behalf of a Participant to hold Payroll Deductions.
(b) "Approved Leave of Absence" means a leave of absence that has been
approved by the applicable Participating Company in such a manner as the Board
may determine from time to time.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the Committee appointed pursuant to Section 14 of
the Plan.
(f) "Company" means Strategic Diagnostics Inc. and any successor(s).
(g) "Compensation" means an Employee's cash compensation payable for
services to a Participating Company.
(h) "Election Form" means the form acceptable to the Committee which an
Employee shall use to make an election to purchase Shares through Payroll
Deductions pursuant to the Plan.
(i) "Eligible Employee" means an Employee who meets the requirements
for eligibility under Section 3 of the Plan.
(j) "Employee" means a person who is an employee of a Participating
Company.
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<PAGE>
(k) "Fair Market Value" means the closing price per Share on the
principal national securities exchange on which the shares are listed or
admitted to trading or, if not listed or traded on any such exchange, on the
Nasdaq National Market, or if not listed or traded on any such exchange or
market, the fair market value as reasonably determined by the Board, which
determination shall be conclusive.
(l) "Five Percent Owner" means an Employee who, with respect to a
Participating Company, is described in Section 423(b) of the Code.
(m) "Offering" means an offering of Shares to Eligible Employees
pursuant to the Plan.
(n) "Offering Commencement Date" means the first day of each January,
April, July and October beginning on or after adoption of the Plan by the Board,
until the Plan Termination Date, provided that the first Offering Commencement
Date may be delayed until (i) the first day of the second month after adoption
of the Plan, if necessary to permit Participants to make elections in accordance
with Section 3(e) of the Plan, or (ii) the first day of any calendar quarter
following adoption of the Plan.
(o) "Offering Period" means the period extending from an Offering
Commencement Date through the following Offering Termination Date.
(p) "Offering Termination Date" means the last day of each March, June,
September and December following an Offering Commencement Date.
(q) "Option Price" means ninety percent (90%) of the lesser of: (1) the
Fair Market Value per Share on the Offering Commencement Date, or if such date
is not a trading day, then on the next trading day thereafter or (2) the Fair
Market Value per Share on the Offering Termination Date, or if such date is not
a trading day, then on the next trading day thereafter.
(r) "Participant" means an Employee who meets the requirements for
eligibility under Section 3 of the Plan and who has timely delivered an Election
Form to the Committee.
(s) "Participating Company" means, as provided in Schedule A, the
Company and subsidiaries of the Company, within the meaning of Section 424(f) of
the Code, if any, that are approved by the Board from time to time and whose
employees are designated as Employees by the Board.
(t) "Payroll Deductions" means amounts withheld from a Participant's
Compensation pursuant to the Plan, as described in Section 5 of the Plan.
(u) "Plan" means Strategic Diagnostics Inc. 1998 Employee Stock
Purchase Plan, as set forth in this document, and as may be amended from time to
time.
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<PAGE>
(v) "Plan Termination Date" means the earlier of:
(1) The Offering Termination Date for the Offering in which
the maximum number of Shares specified in Section 5 of the Plan have been issued
pursuant to the Plan; or
(2) The date as of which the Board chooses to terminate the
Plan as provided in Section 15 of the Plan.
(w) "Shares" means shares of Common Stock of the Company.
(x) "Successor-in-Interest" means the Participant's executor or
administrator, or such other person or entity to whom the Participant's rights
under the Plan shall have passed by will or the laws of descent and
distribution.
(y) "Termination Form" means the form acceptable to the Committee which
an Employee shall use to withdraw from an Offering pursuant to Section 8 of the
Plan.
3. Eligibility and Participation.
(a) Initial Eligibility. Except as provided in Section 3(b) of
the Plan, each Employee shall be eligible to participate in the Plan.
(b) Ineligibility. An Employee shall not be eligible to participate in
the Plan if such Employee:
(1) Is a Five Percent Owner;
(2) Is a temporary Employee;
(3) Has been employed by a Participating Company on a
full-time basis for less than a 6-consecutive-month period ending on the last
day of the month immediately preceding the effective date of an election to
purchase Shares pursuant to the Plan;
(4) Has not customarily worked more than 20 hours per week
during a 24-consecutive-month period ending on the last day of the month
immediately preceding the effective date of an election to purchase Shares
pursuant to the Plan; or
(5) Is restricted from participating under Section 3(d) of the
Plan.
(c) Leave of Absence. For purposes of participation in the Plan, an
Employee on an Approved Leave of Absence shall be deemed to be an Employee for
the first 90 days of such Approved Leave of Absence and such Employee's
employment shall be deemed to have
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<PAGE>
terminated for purposes of participation under the Plan at the close of business
on the 90th day of such Approved Leave of Absence unless such Employee shall
have returned to regular non-temporary employment before the close of business
on such 90th day. Termination by the Participating Company of an Employee's
Approved Leave of Absence, other than termination or return to non-temporary
employment, shall terminate an Employee's employment for all purposes of the
Plan and shall terminate such Employee's participation in the Plan and the right
to exercise any option. An Approved Leave of Absence shall be considered active
employment for purposes of Sections 3(b)(3) and 3(b)(4) of the Plan.
(d) Restrictions on Participation. Notwithstanding any provisions of
the Plan to the contrary, no Employee shall be granted an option to participate
in the Plan if:
(1) Immediately after the grant, such Employee would be a
Five Percent Owner; or
(2) Such option would permit such Employee's rights to
purchase stock under all employee stock purchase plans of the Participating
Companies which meet the requirements of Section 423(b) of the Code to accrue at
a rate which exceeds $25,000 in fair market value (as determined pursuant to
Section 423(b)(8) of the Code) for each calendar year in which such option is
outstanding.
(e) Commencement of Participation. An Employee who meets the
eligibility requirements of Sections 3(a) and 3(b) of the Plan and whose
participation is not restricted under Section 3(d) of the Plan shall become a
Participant by completing an Election Form and filing it with the Committee on
or before the 15th day of the month immediately preceding the Offering
Commencement Date for the first Offering to which such Election Form applies.
Payroll Deductions for a Participant shall commence on the applicable Offering
Commencement Date when his or her authorization for Payroll Deductions becomes
effective, and shall end on the Plan Termination Date, unless sooner terminated
by the Participant pursuant to Section 8 of the Plan.
4. Shares Per Offering.
The Plan shall be implemented by a series of Offerings that shall
terminate on the Plan Termination Date. Offerings shall be made with respect to
Compensation payable for each calendar month of the Company's fiscal year for
the period commencing with the first day of the month first occurring on or
after adoption of the Plan by the Board and ending with the Plan Termination
Date. Shares available for any Offering shall be the difference between the
maximum number of Shares that may be issued under the Plan, as determined
pursuant to Section 10(a) of the Plan, for all of the Offerings, less the actual
number of Shares purchased by Participants pursuant to prior Offerings. If the
total number of Shares for which options are exercised on any Offering
Termination Date exceeds the maximum number of Shares available, the Committee
shall make a pro rata allocation of Shares available for delivery and
distribution in
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<PAGE>
as nearly a uniform manner as practicable, and as it shall determine to be fair
and equitable, and the unapplied Account balances shall be returned to
Participants as soon as practicable following the Offering Termination Date.
5. Payroll Deductions.
(a) Amount of Payroll Deductions. An Eligible Employee who wishes to
participate in the Plan shall file an Election Form with the Committee at least
15 days before the Offering Commencement Date for the first Offering for which
such Election Form is effective on which he or she may elect to have Payroll
Deductions of such amounts designated by the Committee on the Election Form from
time to time made from his or her Compensation on each regular payday during the
time he or she is a Participant in the Plan, provided that the rules established
by the Committee shall be consistent with Section 423(b)(5) of the Code.
(b) Participants' Accounts. All Payroll Deductions with respect to a
Participant pursuant to Section 5(a) of the Plan shall be credited to the
Participant's Account under the Plan.
(c) Changes in Payroll Deductions. A Participant may discontinue his or
her participation in the Plan as provided in Section 8(a) of the Plan, but no
other change can be made during an Offering, including, but not limited to,
changes in the amount of Payroll Deductions for such Offering. A Participant may
change the amount of Payroll Deductions for subsequent Offerings by giving
written notice of such change to the Committee on or before the 15th day of the
month immediately preceding the Offering Commencement Date for the Offering for
which such change is effective.
(d) Leave of Absence. A Participant who goes on an Approved Leave of
Absence before the Offering Termination Date after having filed an Election Form
with respect to such Offering may:
(1) Withdraw the balance credited to his or her Account
pursuant to Section 8(b) of the Plan;
(2) Discontinue contributions to the Plan but remain a
Participant in the Plan through the Offering Termination Date; or
(3) Remain a Participant in the Plan during such Approved
Leave of Absence through the Offering Termination Date and continue the
authorization for the Participating Company to make Payroll Deductions for each
payroll period out of continuing payments to such Participant, if any.
-5-
<PAGE>
6. Granting of Options.
On each Offering Termination Date, each Participant shall be deemed to
have been granted an option to purchase a minimum of one (1) Share and a maximum
number of Shares that shall be a number of whole Shares equal to the quotient
obtained by dividing the balance credited to the Participant's Account as of the
Offering Termination Date, by the Option Price.
7. Exercise of Options.
(a) Automatic Exercise. With respect to each Offering, a Participant's
option for the purchase of Shares granted pursuant to Section 6 of the Plan
shall be deemed to have been exercised automatically on the Offering Termination
Date applicable to such Offering.
(b) Fractional Shares and Minimum Number of Shares. Fractional Shares
shall not be issued under the Plan. Amounts credited to an Account remaining
after the application of such Account to the exercise of options for a minimum
of one (1) full Share shall be credited to the Participant's Account for the
next succeeding Offering, or, at the Participant's election, returned to the
Participant as soon as practicable following the Offering Termination Date,
without interest.
(c) Transferability of Option. No option granted to a Participant
pursuant to the Plan shall be transferable other than by will or by the laws of
descent and distribution, and no such option shall be exercisable during the
Participant's lifetime other than by the Participant.
(d) Delivery of Certificates for Shares. The Company shall deliver
certificates for Shares acquired on the exercise of options during an Offering
Period as soon as practicable following the Offering Termination Date.
8. Withdrawals.
(a) Withdrawal of Account. A Participant may elect to withdraw the
balance credited to the Participant's Account by providing a Termination Form to
the Committee at any time before the Offering Termination Date applicable to any
Offering.
(b) Amount of Withdrawal. A Participant may withdraw all, but not less
than all, of the amounts credited to the Participant's Account by giving a
Termination Form to the Committee. All amounts credited to such Participant's
Account shall be paid as soon as practicable following the Committee's receipt
of the Participant's Termination Form, and no further Payroll Deductions will be
made with respect to the Participant.
(c) Effect of Withdrawal on Subsequent Participation. A Participant who
elects to withdraw from an Offering pursuant to Section 8(a) of the Plan shall
be deemed to have elected
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not to participate in each of the two succeeding Offerings following the date on
which the Participant gives a Termination Form to the Committee.
(d) Termination of Employment. Upon termination of a Participant's
employment for any reason other than death, including termination due to
disability or continuation of a leave of absence beyond 90 days, all amounts
credited to such Participant's Account shall be returned to the Participant. In
the event of a Participant's (1) termination of employment due to death or (2)
death after termination of employment but before the Participant's Account has
been returned, all amounts credited to such Participant's Account shall be
returned to the Participant's Successor-in-Interest without interest.
(e) Leave of Absence. A Participant who is on an Approved Leave of
Absence shall, subject to the Participant's election pursuant to Section 5(d) of
the Plan, continue to be a Participant in the Plan until the end of the first
Offering ending after commencement of such Approved Leave of Absence. A
Participant who has been on an Approved Leave of Absence for more than 90 days
shall not be eligible to participate in any Offering that begins on or after the
commencement of such Approved Leave of Absence so long as such leave of absence
continues.
9. Interest.
No interest shall be paid or allowed with respect to amounts paid into
the Plan or credited to any Participant's Account.
10. Shares.
(a) Maximum Number of Shares. No more than 661,157 Shares may be issued
under the Plan. Such Shares may be unissued shares or treasury shares of the
Company or may be outstanding shares purchased in the open market or otherwise
on behalf of the Plan upon such terms as the Committee may approve for delivery
under the Plan. The number of Shares available for any Offering and all
Offerings shall be adjusted if the number of outstanding Shares of the Company
is increased or reduced by split-up, reclassification, stock dividend or the
like. All Shares issued pursuant to the Plan shall be validly issued, fully paid
and nonassessable.
(b) Participant's Interest in Shares. A Participant shall have no
interest in Shares subject to an option until such option has been exercised.
(c) Registration of Shares. Shares to be delivered to a Participant
under the Plan shall be registered in the name of the Participant.
(d) Restrictions on Exercise. The Board may, in its discretion, require
as conditions to the exercise of any option such conditions as it may deem
necessary to assure that the exercise of options is in compliance with
applicable securities laws.
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11. Expenses.
The Participating Companies shall pay all fees and expenses incurred
(excluding individual Federal, state, local or other taxes) in connection with
the Plan. No charge or deduction for any such expenses will be made to a
Participant upon the termination of his or her participation under the Plan or
upon the distribution of certificates representing Shares purchased with his or
her contributions.
12. Taxes.
The Participating Companies shall have the right to withhold from each
Participant's Compensation an amount equal to all Federal, state, city or other
taxes as the Participating Companies shall determine are required to be withheld
by them. In connection with such withholding, the Participating Companies may
make any such arrangements as are consistent with the Plan as it may deem
appropriate, including the right to withhold from Compensation paid to a
Participant other than in connection with the Plan.
13. Plan and Contributions Not to Affect Employment.
The Plan shall not confer upon any Eligible Employee any right to
continue in the employ of the Participating Companies.
14. Administration.
The Plan shall be administered by the Board, which may delegate
responsibility for such administration to a committee of the Board (the
"Committee") or to a third party administrator under Board or Committee
supervision. If the Board fails to appoint the Committee, any references in the
Plan to the Committee shall be treated as references to the Board. The Board, or
the Committee, shall have authority to interpret the Plan, to prescribe, amend
and rescind rules and regulations relating to it, to delegate administrative
functions to a third party administrator and to make all other determinations
deemed necessary or advisable in administering the Plan, with or without the
advice of counsel. The determinations of the Board or the Committee on the
matters referred to in this Section 14 shall be conclusive and binding upon all
persons in interest.
15. Amendment and Termination.
The Board may terminate the Plan at any time and may amend the Plan
from time to time in any respect; provided, however, that upon any termination
of the Plan, all Shares or Payroll Deductions (to the extent not yet applied to
the purchase of Shares) under the Plan shall be distributed to the Participants,
provided further, that no amendment to the Plan shall affect the right of a
Participant to receive his or her proportionate interest in the Shares or his or
her Payroll Deductions (to the extent not yet applied to the purchase of Shares)
under the Plan, and provided further that the Company may seek stockholder
approval of an amendment to the Plan if such
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approval is determined to be required by or advisable under the regulations of
the Securities and Exchange Commission or the Internal Revenue Service, the
rules of any stock exchange or system on which the Shares are listed or other
applicable law or regulation.
16. Effective Date.
The Plan shall be effective on the date it is adopted by the Board. In
the event that the Plan is not approved by the Company's stockholders within one
year of the adoption of the Plan by the Board, the tax treatment of Section 423
of the Code may not apply with respect to Shares transferred to Participants on
the exercise of options pursuant to Section 7 of the Plan.
17. Government and Other Regulations.
(a) In General. The purchase of Shares under the Plan shall be subject
to all applicable laws, rules and regulations, and to such approvals by any
governmental agencies as may be required.
(b) Securities Law. The Committee shall have the power to make each
grant under the Plan subject to such conditions as it deems necessary or
appropriate to comply with the then-existing requirements of the Securities Act
of 1933, as amended, and the Securities Exchange Act of 1934, as amended,
including Rule 16b-3 (or any similar rule) of the Securities and Exchange
Commission.
18. Non-Alienation.
No Participant shall be permitted to assign, alienate, sell, transfer,
pledge or otherwise encumber his or her interest under the Plan prior to the
distribution to him or her of Share certificates. Any attempt at assignment,
alienation, sale, transfer, pledge or other encumbrance shall be void and of no
effect.
19. Notices.
Any notice required or permitted hereunder shall be sufficiently given
only if delivered personally, telecopied, or sent by first class mail, postage
prepaid, and addressed:
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If to the Company:
Strategic Diagnostics Inc.
111 Pencader Drive
Newark, DE 19702
Attn: Chief Financial Officer
Or any other address provided pursuant to written notice.
If to the Participant:
At the address on file with the Company from time to time, or to such
other address as either party may hereafter designate in writing by
notice similarly given by one party to the other.
20. Successors.
The Plan shall be binding upon and inure to the benefit of any
successor, successors or assigns of the Company.
21. Severability.
If any part of this Plan shall be determined to be invalid or void in
any respect, such determination shall not affect, impair, invalidate or nullify
the remaining provisions of this Plan which shall continue in full force and
effect.
22. Acceptance.
The election by any Eligible Employee to participate in this Plan
constitutes his or her acceptance of the terms of the Plan and his or her
agreement to be bound hereby.
23. Applicable Law.
This Plan shall be construed in accordance with the laws of the state
of Delaware, to the extent not preempted by applicable Federal law.
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SCHEDULE A
Participating Companies
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EXHIBIT 5
610-640-7800
November 30, 1998
Strategic Diagnostics Inc.
111 Pencader Drive
Newark, DE 19702
Re: 1998 Employee Stock Purchase Plan
Ladies and Gentlemen:
You have requested our opinion, as counsel for Strategic Diagnostics
Inc., a Delaware corporation (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 661,157 shares of the Company's common stock, par value $.01 per
share (the "Shares"), which may be issued by the Company under its 1998 Employee
Stock Purchase Plan (the "Plan").
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 pursuant to, and in the manner described in the Plan, 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.
Sincerely,
/s/ PEPPER HAMILTON LLP
<PAGE>
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
January 30, 1998 included in Strategic Diagnostics Inc.'s Form 10-K for the year
ended December 31, 1997 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
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Philadelphia, Pennsylvania
November 30, 1998
