<PAGE>
As filed with the Securities and Exchange Commission on September 4, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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PDT, INC.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of organization)
77-0222872
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(I.R.S. Employer Identification No.)
7408 Hollister Avenue
Santa Barbara, California 93117
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(Address of Principal Executive Offices)(Zip Code)
PDT, Inc. 1989 Stock Option Plan
PDT, Inc. 1994 Stock Option Plan
PDT, Inc. 1996 Stock Compensation Plan
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(Full title of the plans)
GARY KLEDZIK, Ph.D.
Chairman and Chief Executive Officer
PDT, Inc.
7408 Hollister Avenue
Santa Barbara, California 93117
(805) 685-9880
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(Name, address and telephone number of agent for service)
Copy to:
ELIZABETH A. KING, ESQ.
Bryan Cave LLP
120 Broadway, Suite 500
Santa Monica, California 90401
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<PAGE>
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
Proposed Maximum Proposed Maximum
Title of Securities to Amount of Shares to Offering Price per Aggregate Offering Amount of
be Registered be Registered Share Price Registration Fee
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
Common Stock, par value
$.01 per share 1,250,000* $39.1875** $48,984,375** $14,843.75
- -------------------------- --------------------- ---------------------- ---------------------- ----------------------
</TABLE>
* Includes 20,606 shares of Common Stock of PDT, Inc. (the "Company" or the
"Registrant") issuable upon exercise of options granted under the Company's
1989 Stock Option Plan, 45,457 shares of Common Stock issuable upon
exercise of options granted under the Company's 1994 Stock Option Plan and
1,183,937 shares of Common Stock issuable pursuant to awards granted and
reserved for future awards that may be granted under the Company's 1996
Stock Compensation Plan.
** Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
amount of the registration fee on the basis of the average of the high and
low reported sale prices of a share of Common Stock of PDT, Inc. on
September 2, 1997 as reported by the Nasdaq Stock Market.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Items 1 and
2 of Part I of Form S-8 will be sent or given to plan participants as specified
in Rule 428(b)(1) and, in accordance with the instructions to Part I, are not
filed with the Securities and Exchange Commission (the "Commission") as part of
this Registration Statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with the
Commission are hereby incorporated by reference:
a. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996.
b. The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarters ended March 31 and June 30, 1997.
c. Item 1 of the Registrant's Registration Statement on Form 8-A
(Registration No. 0-25544) filed with the Commission on
February 13, 1995 pursuant to Section 12 of the Securities
Exchange Act of 1934.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of the Company's Common Stock
registered hereunder will be passed upon for the Company by Bryan Cave LLP,
Santa Monica, California.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the
"Delaware Law") permits a corporation to provide in its certificate of
incorporation that directors of the corporation shall not be personally liable
to the corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its shareholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for payments of unlawful dividends or unlawful
stock repurchases or redemptions, or (iv) for any transaction from which the
director derived an improper personal benefit. The Company's Certificate of
Incorporation contains such a provision.
Section 145 of the Delaware Law provides that a corporation may
indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation - a "derivative action"), if they acted in
good faith and in a manner they 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 their conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred in
connection with defense or settlement of such action, and the statute requires
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. Under Section 145, a
corporation shall indemnify an agent of the corporation for expenses actually
and reasonably incurred if and to the extent such person was successful on the
merits in a proceeding or in defense of any claim, issue or matter therein.
The Registrant is presently subject to Section 2115 of the
California Corporations Code (the "California Code"), according to which Section
317 of the California Code applies to the indemnification of officers and
directors of the Registrant. Under Section 317 of the California Code,
permissible indemnification by a corporation of its officers and directors is
substantially the same as permissible indemnification under Section 145 of the
Delaware Law, except that (i) permissible indemnification does not cover actions
the person reasonably believed were not opposed to the best interests of the
corporation, as opposed to those the person believed were in fact in the best
interests of the corporation, (ii) the Delaware Law permits advancement of
expenses to agents other than officers and directors only upon approval of the
board of directors, (iii) in a case of stockholder approval of indemnification,
the California Code requires certain minimum votes in favor of such
indemnification and excludes the vote of the potentially indemnified person, and
(iv) the California Code only permits independent counsel to approve
indemnification if an independent quorum of directors is not obtainable, while
the Delaware Law permits the directors in any circumstance to appoint counsel to
undertake such determination.
The Registrant in its Bylaws has provided for indemnification of
its officers, directors, employees and other agents substantially identical to
that permitted under the California Code. Section 145 of the Delaware Law and
Section 317 of the California Code provide that they are not exclusive of other
indemnification that may be granted by a corporation's charter, bylaws,
disinterested director vote, shareholder vote, agreement or otherwise. The
limitation of liability contained in the Registrant's Certificate of
Incorporation and the indemnification provision included in the Registrant's
Bylaws are consistent with Delaware Law Sections 102(b)(7) and 145. The
Registrant has also entered into separate indemnification agreements with its
directors and officers that could require the Registrant, among other things, to
indemnify them against certain liabilities that may arise by reason of their
status or service as directors and officers and to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified, including liabilities that may arise under the Securities Act of
1933. In addition, the Company has purchased directors and officers insurance.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to such provisions, the Company has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is
therefore unenforceable.
<PAGE>
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number
- ------
4.1 PDT, Inc. Stock Option Plan dated September 19, 1989 ("1989 Stock
Option Plan") [A] [10.9]
4.2 Amendment No. 1 to PDT, Inc. 1989 Stock Option Plan [B] [10.34]
4.3 PDT, Inc. 1994 Stock Option Plan [A] [10.11]
4.4 Amendment No. 1 to PDT, Inc. 1994 Stock Option Plan [B] [10.35]
4.5 PDT, Inc. 1996 Stock Compensation Plan [C]
5.1 Opinion of Bryan Cave LLP
23.1 Consent Of Ernst & Young LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1)
[A] Incorporated by reference to the exhibit referred to in brackets
contained in the Registrant's Registration Statement on Form S-1 (File
No. 33-87138).
[B] Incorporated by reference to the exhibit referred to in brackets
contained in the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 0-25544).
[C] Incorporated by reference to Exhibit A to the Registrant's definitive
Proxy Statement dated April 25, 1997 for the PDT, Inc. 1997 Annual
Meeting of Shareholders.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(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 Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) 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
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
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 Securities Act
of 1933 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Santa Barbara, State of California, on September 3,
1997.
PDT, Inc.
By: /S/ Gary S. Kledzik
-----------------------
Gary S. Kledzik, Ph.D., Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Gary S. Kledzik, Ph.D. and John
Philpott, or either of them, his attorneys-in-fact and agents, each with full
power of substitution for him and in his name, place and stead, in any and all
capacities, to sign any or all 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 each of
said attorneys-in-fact and agents full power and authority to do so and perform
each and every act and thing requisite and necessary to be done in connection
with this Registration Statement, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that either of
said attorneys-in-fact and agents, or his substitute or substitutes, 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 and on the dates indicated.
Signature Title Date
- --------- ----- ----
/S/ Gary S. Kledzik Chairman of the Board, September 3, 1997
- ------------------- Director,and Chief Executive
Gary S. Kledzik, Ph.D. Officer(principal executive
officer)
/S/ David E. Mai Director and President September 3, 1997
- ----------------
David E. Mai
/S/ John M. Philpott Chief Financial Officer September 3, 1997
- ------------------- (principal financial officer
John M. Philpott and principal accounting
officer)
/S/ Michael D. Farney Director September 3, 1997
- ---------------------
Michael D. Farney
/S/ Donald K. McGhan Director September 3, 1997
- --------------------
Donald K. McGhan
/S/ Raul E. Perez, M.D. Director September 3, 1997
- -----------------------
Raul E. Perez, M.D.
/S/ Charles T. Foscue Director September 3, 1997
- ---------------------
Charles T. Foscue
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
<S> <C> <C>
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ----
4.1 PDT, Inc. Stock Option Plan dated September 19, 1989 ("1989
Stock Option Plan") [A] [10.9]
4.2 Amendment No. 1 to PDT, Inc. 1989 Stock Option Plan [B][10.34]
4.3 PDT, Inc. 1994 Stock Option Plan [A] [10.11]
4.4 Amendment No. 1 to PDT, Inc. 1994 Stock Option Plan [B][10.35]
4.5 PDT, Inc. 1996 Stock Compensation Plan [C]
5.1 Opinion of Bryan Cave LLP
23.1 Consent Of Ernst & Young LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1)
</TABLE>
[A] Incorporated by reference to the exhibit referred to in
brackets contained in the Registrant's Registration
Statement on Form S-1 (File No. 33-87138)
[B] Incorporated by reference to the exhibit
referred to in brackets contained in the
Registrant's Annual Report on Form 10-K for the
year ended December 31, 1995 (File No.
0-25544).
[C] Incorporated by reference to the Registrant's definitive
Proxy Statement dated April 25, 1997 for the PDT, Inc. 1997
Annual Meeting of Shareholders
<PAGE>
EXHIBIT 5.1
OPINION OF BRYAN CAVE LLP
September 3, 1997
PDT, Inc.
7408 Hollister Avenue
Santa Barbara, CA 93117
Re: PDT, Inc. - Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to PDT, Inc., a Delaware corporation
(the "Company"), in connection with the preparation of a Registration Statement
on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended, to be filed with the Securities and Exchange Commission (the
"Commission") in connection with the registration of an aggregate of 1,250,000
shares of the Company's Common Stock, par value $.01 per share (collectively,
the "Shares"), issuable in connection with the Company's 1989 Stock Option Plan,
1994 Stock Option Plan, and 1996 Stock Compensation Plan (the "Plans").
In connection with the preparation of the Registration
Statement and the proposed issuance and sale of the Shares in accordance with
the Plans and the Section 10(a) prospectuses to be delivered to participants in
the Plans, we have made certain legal and factual examinations and inquiries and
examined, among other things, such documents, records, instruments, agreements,
certificates and matters as we have considered appropriate and necessary for the
rendering of this opinion. We have assumed for the purpose of this opinion the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies, and the
genuineness of the signatures thereon. As to various questions of fact material
to this opinion, we have, when relevant facts were not independently
established, relied, to the extent deemed proper by us, upon certificates and
statements of officers and representatives of the Company.
Based on the foregoing and in reliance thereon, it is our
opinion that the Shares have been duly authorized, and, when issued and sold in
accordance with the Plans and the respective prospectuses to be delivered to
participants in the Plans, the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit
5.1 to the Registration Statement and further consent to the reference to this
firm in 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 Securities Act of 1933, as amended, or the rules and regulations of the
Commission thereunder.
Our opinion herein is limited to the General Corporation Law
of the State of Delaware, and we assume no responsibility as to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction.
Very truly yours,
/S/ BRYAN CAVE LLP
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BRYAN CAVE LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) relating to the PDT, Inc. 1989 Stock Option Plan, the PDT, Inc. 1994 Stock
Option Plan, and the PDT, Inc. 1996 Stock Compensation Plan of our report dated
February 5, 1997, with respect to the consolidated financial statements and
schedules of PDT, Inc. included in its Annual Report (Form 10-K) for the year
ended December 31, 1996, filed with the Securities and Exchange Commission.
/S/ ERNST & YOUNG LLP
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ERNST & YOUNG LLP
Woodland Hills, California
September 3, 1997
