1
The Registrant requests that the Registration Statement become effective
immediately upon filing pursuant to Securities Act Rule 462.
As filed with the Securities and Exchange Commission on August 25, 1999.
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Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADAC LABORATORIES
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(Exact name of registrant as specified in its charter)
California
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(State or other jurisdiction of incorporation or organization)
94-1725806
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(I.R.S. Employer Identification No.)
540 Alder Drive
Milpitas, California 95035
(408) 321-9100
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(Address, including zip code, of Registrant's
principal executive offices)
EMPLOYEE STOCK PURCHASE PLAN (1994)
1999 LONG-TERM INCENTIVE PLAN
1999 SUPPLEMENTAL INCENTIVE PLAN
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(Full Titles of the Plans)
JUDY J. ROWE, VICE PRESIDENT OF HUMAN RESOURCES
AND ADMINISTRATION AND ASSISTANT CORPORATE SECRETARY
ADAC LABORATORIES
540 ALDER DRIVE
MILPITAS, CALIFORNIA 95035
(408) 321-9100
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO: PAGE MAILLIARD, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
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CALCULATION OF REGISTRATION FEE
Title of Each Proposed Proposed Amount of
Class of Maximum Maximum Registration
Securities to Amount to be Offering Price Aggregate Fee (2)
be Registered Registered(1)Per Share (2) Offering Price (2)
- -------------- ------------ ---------------- ----------------- ----------
Common Stock, 1,520,000 $6.16 $9,357,880.00 $2,601.49
no par value
1) Includes 100,000 shares to be registered under the Amendment No. 3 to
ADAC Laboratories Employee Stock Purchase Plan (1994) (the "Plan"),
920,000 shares to be registered under the 1999 Long-Term Incentive Plan
(the "Long-Term Plan") and 500,000 shares to be registered under the
1999 Supplemental Incentive Plan (the "Supplemental Incentive Plan").
2) The Proposed Maximum Offering Price Per Share was estimated in part
pursuant to Rule 457(h) under the Securities Act. With respect to 100,000
shares of Common Stock available for future grant under the Plan,
920,000 shares of Common Stock available for future grant under the
Long-Term Plan and 500,000 shares of Common Stock available for future
grant under the Supplemental Incentive Plan, the estimated Proposed
Maximum Offering Price Per Share was estimated pursuant to Rule 457(c)
whereby the per share price was determined by reference to the average
between the high and low price reported in the NASDAQ National Market
on August 19, 1999, which average was $6.1565. The number referenced
referenced above in the table entitled "Proposed Maximum Offering
Price Per Share" represents a weighted average of the foregoing
estimates calculated in accordance with Rules 457(h) and 457(c).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Registrant with the Securities and
Exchange Commission (the "SEC") are incorporated by reference in the
Registration Statement:
(a) The Registrant's latest annual report on Form 10-K for the fiscal
year ended September 27, 1998 and filed with the SEC on March 1,
1999;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended January 3, 1999 and filed with the SEC on March 1,
1999;
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended April 4, 1999 and filed with the SEC on July 1, 1999;
(d) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended July 4, 1999 and filed with the SEC on August 18, 1999;
(e) The Registrant's Proxy Statement in Schedule 14A for the 1999
Annual Meeting of Shareholders and filed with the SEC on April 15, 1999.
In addition, 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The By-Laws of the Company provide for the indemnification of directors
and officers to the fullest extent permitted by the General Corporation
Law of the State of California.
Section 317 of the General Corporation Law of the State of California
authorizes indemnification when a person is made a party to any
proceeding by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or was so serving at the
request of the corporation in such capacity for another corporation, and
if such person acted in good faith and in a manner reasonably believed
to be in, or not opposed to, the best interest of the corporation. With
respect to any criminal proceeding, such person must have had no
reasonable cause to believe the conduct was unlawful. If it is
determined that the conduct of such person meets these standards, such
person may be indemnified for expenses incurred and amounts paid in such
proceedings if actually and reasonably incurred in connection therewith.
If such a proceeding is brought by or on behalf of the corporation
(i.e., a derivative suit), such person may be indemnified against
expenses actually and reasonably believed to be in, or not opposed to,
the best interests of the corporation. There can be no indemnification
with respect to any matter as to which such person is adjudged to be
liable to the corporation for negligence or misconduct in the
performance of his or her duty; however, a court may, even in such case,
allow indemnification of such expenses as the court deems proper. Where
such person is successful in any such proceeding, he or she is entitled
to be indemnified against expenses actually and reasonably incurred by
him or her. In all other cases, indemnification is made by the
corporation upon determination by it that indemnification of such person
is proper because such person has met the applicable standard of
conduct.
The Company has also entered into indemnification agreements with its
directors and certain officers which contractually obligate the Company
to indemnify such persons to the fullest extent permitted under
California law.
The California General Corporation Law permits a California corporation
to include in its Articles of Incorporation a provision eliminating or
limiting the liability of directors for monetary damages arising from
breaches of their fiduciary duty. The only limitations imposed under
the statute are that the provisions may not eliminate or limit a
director's liability (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii) for acts or
omissions that a director believes to be contrary to the best interests
of the corporation or its shareholders or that involve the absence of
good faith on the part of the director, (iii) for any transaction from
which a director derived an improper personal benefit, (iv) for acts or
omissions that show a reckless disregard for the director's duty to the
corporation or its shareholders in circumstances in which the director
was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of serious injury to the
corporation or its shareholders, (v) for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the corporation or its
shareholders, or (vi) for the payment of unlawful dividends, stock
purchases or redemptions. The Company's Articles of Incorporation
contain a provision eliminating the liability of the Company's directors
for breaches of their fiduciary duty, subject to the limitations imposed
by statute as described above. The provisions do not limit or otherwise
affect the personal liability of a director for violation of Federal
Securities Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number
4.1* ADAC Laboratories Amended and Restated Employee
Stock Purchase Plan (1994).
4.2* Amendment No. 1 to ADAC Laboratories Employee
Stock Purchase Plan.
4.3** Amendment No. 2 to ADAC Laboratories Employee
Stock Purchase Plan.
4.4 Amendment No. 3 to ADAC Laboratories Employee
Stock Purchase Plan.
4.5 ADAC Laboratories 1999 Long-Term Incentive Plan.
4.6 ADAC Laboratories 1999 Supplemental Incentive Plan
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C.
23.1 Consent of Independent Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati
(contained in Exhibit 5.1.).
* Incorporated by reference to the exhibit filed with the
Registrant's registration statement on Form S-8 (File No. 333-34619)
filed with the Securities and Exchange Commission on August 29, 1997.
** Incorporated by reference to the exhibit filed with the
Registrant's registration statement on Form S-8 (File No. 333-53849)
filed with the Securities and Exchange Commission on May 28, 1998.
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 this 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 this 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 (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 Registrant pursuant to Section 13 or Section
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, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 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) (1) The undersigned Registrant hereby undertakes to
deliver or cause to be delivered with the Prospectus to each person to
whom the Prospectus is sent or given a copy of Registrant's annual
report to shareholders for its last fiscal year, unless such employee
otherwise has received a copy of such report, in which case Registrant
shall state in the Prospectus that it will promptly furnish, without
charge, a copy of such report on written request of the employee. If
the last fiscal year of Registrant has ended within 120 days prior to
the use of the Prospectus, the annual report of Registrant for the
preceding fiscal year may be so delivered, but within such 120-day
period the annual report for the last fiscal year will be furnished to
each such employee.
(2) The undersigned Registrant hereby undertakes to
transmit or cause to be transmitted to all employees participating in
the Plan who do not otherwise receive such material as shareholders of
registrant, at the time and in the manner such material is sent to its
shareholders, copies of all reports, proxy statements and other
communications distributed to its shareholders generally.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of Registrant pursuant to the foregoing provisions,
or otherwise, 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 Registrant of expenses incurred or paid by a
director, officer or controlling person of 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, 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.
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 Milpitas,
California on the date set forth below.
Date: August 25, 1999 ADAC LABORATORIES
(Registrant)
BY:/s/ R. Andrew Eckert
R. Andrew Eckert,
Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints R. Andrew Eckert and
Bruce M. Blanco, and each of them, acting individually, as such person's
true and lawful attorneys-in-fact and agents, each with full power of
substitution, each with power to act alone, to sign and execute on
behalf of the undersigned any amendment or amendments (including post-
effective amendments) to this Registration Statement on Form S-8, and to
file same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith, as fully to all intents
and purposes as such person might or could do in person, hereby
ratifying and confirming all that such attorneys-in-fact and agents,
or any of them, or their substitutes, may do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Exchange Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Capacities Date
- -------------------------- ------------------------------- -----------------
/s/ R. Andrew Eckert Chairman of the Board August 25, 1999
- ------------------------- of Directors, Chief Executive
R. Andrew Eckert Officer and Director (Principal
Executive Officer
/s/ Robert P. Bunje Vice President, Chief August 25, 1999
- ------------------------- Financial Officer
Robert P. Bunje (Principal Financial Officer)
/s/ Bruce M. Blanco Vice President and Corporate August 25, 1999
- ------------------------- Controller (Principal
Bruce M. Blanco Accounting Officer)
/s/ Stanley D. Czerwinski Director August 25, 1999
- -------------------------
Stanley D. Czerwinski
/s/ Dennis R. Raney Director August 25, 1999
- -------------------------
Dennis R. Raney
/s/ F. David Rollo Director August 25, 1999
- -------------------------
F. David Rollo
/s/ Edmund H. Shea, Jr. Director August 25, 1999
- -------------------------
Edmund H. Shea, Jr.
ADAC LABORATORIES
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
4.1* ADAC Laboratories Amended and Restated
Employee Stock Purchase Plan (1994)
4.2* Amendment No. 1 to ADAC Laboratories
Employee Stock Purchase Plan
4.3** Amendment No. 2 to ADAC Laboratories
Employee Stock Purchase Plan
4.4 Amendment No. 3 to ADAC Laboratories
Employee Stock Purchase Plan
4.5 ADAC Laboratories 1999 Long-Term Incentive Plan
4.6 ADAC Laboratories 1999 Supplemental Incentive Plan
5.1 Opinion of Wilson, Sonsini, Goodrich &
Rosati, P.C.
23.1 Consent of Independent Accountants
23.2 Consent of Wilson Sonsini Goodrich &
Rosati (contained in Exhibit 5.1).
* Incorporated by reference to the exhibit filed with the
Registrant's registration statement on Form S-8 (File No. 333-34619)
filed with the Securities and Exchange Commission on August 29, 1997.
** Incorporated by reference to the exhibit filed with the
Registrant's registration statement on Form S-8 (File No. 333-53849)
filed with the Securities and Exchange Commission on May 28, 1998.