Registration No. ___________
As filed with the Securities and Exchange Commission on December __, 1996
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
Registration Statement
Under
The Securities Act of 1933
DIANON SYSTEMS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 06-1128081
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
200 Watson Boulevard, Stratford, Connecticut 06497
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(Address of Principal Executive Offices) (Zip Code)
Dianon Systems, Inc. 1996 Stock Incentive Plan and
Stock Options Granted Not Pursuant to a Plan
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(Full title of the plans)
Richard A. Sandberg
Dianon Systems, Inc., 200 Watson Boulevard, Stratford, Connecticut 06497
(203) 381-4000
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(Name, address and telephone number of agent for service)
Copy to: Gloria W. Nusbacher, Esq.
Hughes Hubbard & Reed LLP
One Battery Park Plaza
New York, N.Y. 10004
CALCULATION OF REGISTRATION FEE
Title of
Securities Amount Proposed Maximum Proposed Amount of
to be to be Offering Price Maximum Aggregate Registration
Registered Registered** Per Share*** Offering Price*** Fee
- -------------------------- ---------------------- -------------------------- ------------------------- ---------------------
Common Stock, 710,000 $7.81 $5,543,411.57 $1680
par value shares
$.01 per share*
- -------------------------- ---------------------- -------------------------- ------------------------- ---------------------
(see footnotes on following page)
Page 1 of 13 Pages.
FOOTNOTES
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* Each share of Common Stock includes a related right (a "Right") to
purchase junior participating preferred stock of the Company. The
Rights are not exercisable or transferable apart from the Common Stock
at this time, and accordingly no independent value is attributable to
such Rights.
** This Registration Statement also relates to such indeterminate number
of additional shares (and related Rights) as may be issuable pursuant
to stock splits, stock dividends, or similar transactions, and to an
indeterminate amount of deferred compensation obligations to be offered
and sold pursuant to the employee benefit plan covered by this
Registration Statement.
*** The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rule 457(h)
under the Securities Act of 1933. With respect to 236,353 shares of
Common Stock as to which stock options were granted under the Plan
prior to December 20, 1996, the registration fee is based on the
weighted average exercise price per share of $6.30; and with respect to
the balance of the shares being registered, the fee is based on a price
of $8.56 per share, which is the average of the high and low sale
prices of the Common Stock on December 20, 1996, as quoted on the
NASDAQ National Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The following documents filed by Dianon Systems, Inc. (the "Company")
under the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1995; and
(c) The description of the Company's Common Stock and Rights contained
in the Company's registration statements therefor and subsequent amendments
thereof.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby 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 a part hereof from the date of the filing of
such documents.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Not applicable.
Item 6. Indemnification of Directors and Officers
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Under Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), any director or officer as well as any other employee or
individual may be indemnified against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with certain threatened, pending or completed
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company -- a
"derivative action") to which such person is or was a party or is threatened to
be made a party by reason of the fact that such person is or was a director,
officer, employee, or agent of the Company or is or was serving at the Company's
request in such capacity for another entity if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. A similar standard of care is applicable in the case of derivative
actions to which such a person is or was a party by reason of such person's
status or capacity as described above, except that indemnification only extends
to expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such an action and the
DGCL requires approval by the court in which such action was brought before
there can be any indemnification where the person seeking indemnification has
been found liable to the Company. Additionally, the Company is required to
indemnify its directors and officers against expenses (including attorneys'
fees) actually and reasonably incurred by such person to the extent that such
directors or officers have been successful on the merits or otherwise in defense
of any such action, suit or proceeding or in defense of any claim, issue or
matter referred to in Section 145 of the DGCL.
Unless ordered by a court, indemnification can be made by the Company
only upon a determination, by one of several means, that indemnification is
proper in the circumstances because the party seeking indemnification has met
the applicable standard of conduct as set forth in Section 145 of the DGCL. The
indemnification provided by Section 145 of the DGCL includes the right of an
officer or director to be paid by the Company the expenses incurred in defending
any such proceedings in advance of their final disposition. Such advance payment
of expenses, however, may be made only upon delivery to the Company by the
indemnified party of an undertaking to repay all amounts so advanced if it shall
ultimately be determined that the person receiving such payments is not entitled
to be indemnified pursuant to Section 145 of the DGCL.
The rights to indemnification and advancement of expenses conferred by
Section 145 of the DGCL shall not be deemed exclusive of any other rights to
which the person seeking indemnification or advancement may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. In addition, Section 145 of the DGCL authorizes the Company to
purchase and maintain insurance, at its expense, on behalf of any person who is
or was a director, officer, employee or agent of the Company or is or was
serving at the Company's request in such capacity for another entity against any
liability asserted against, or incurred by, such person in any such capacity or
arising out of such status, whether or not the Company would have the power to
indemnify such person against such liability under Section 145 of the DGCL.
Article TENTH of the Company's Restated Certificate of Incorporation
("Article 10") provides that no director shall be personally liable to the
Company or its stockholders for monetary damages for any breach of fiduciary
duty in such capacity, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from
which the director derived an improper personal benefit. Article 10 further
provides that if the DGCL is amended after the date of the Restated Certificate
of Incorporation to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of directors of the
Company shall be eliminated or limited to the fullest extent permitted by the
DGCL, as so amended.
Article 10 further provides that the Company shall indemnify to the
fullest extent permitted by the laws of the State of Delaware as from time to
time in effect any person who was or is a party or is threatened to be made a
party to, or otherwise requires representation by counsel in connection with,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (whether or not an action by or in the
right of the Company), by reason of the fact that he is or was a director or
officer of the Company or, while serving as a director or officer of the
Company, is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity. Article 10 further provides that such persons have the
right to be paid in advance by the Company for their expenses to the full extent
permitted by the laws of the State of Delaware as from time to time in effect.
The rights and authority conferred in Article 10 are not exclusive of
any other right which any person may have or acquire under any statute,
provision of the Restated Certificate of Incorporation or the Restated By-Laws
of the Company, agreement, vote of stockholders or disinterested directors or
otherwise. Article 10 further provides that neither the amendment or repeal of
Article 10 nor the adoption of any provision of the Restated Certificate of
Incorporation or Restated By-Laws or of any statute inconsistent with Article
10, shall eliminate or reduce the effect of Article 10 in respect of any acts or
omissions occurring prior to such amendment, repeal or adoption of an
inconsistent provision.
Officers and directors of the Company are presently covered by
insurance which (with certain exceptions and certain limitations) indemnifies
them against losses or liabilities arising from any alleged "wrongful act",
including breach of duty, neglect, error, misstatement, misleading statement,
omission or other acts done or wrongfully attempted.
Item 7. Exemption from Registration Claimed
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Not applicable.
Item 8. Exhibits
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Number Description Method of Filing
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4.1 Restated Certificate of Incorporation of the Filed as Exhibit 3.1 to the Company's
Company, as amended through June 12, 1991 Registration Statement No. 33-41226
Number Description Method of Filing
- ------ ----------- ----------------
4.2 Restated By-Laws of the Company, as amended Filed herewith
through October 24, 1996
4.3 Rights Agreement, dated as of April 29, 1994, Filed as Exhibit 1 to the Company's Form 8-K
between the Company and American Stock Transfer dated April 29, 1994, filed with the Securities
and Trust Company, as Rights Agent and Exchange Commission on May 9, 1994
4.4 Amendment, dated as of October 4, 1995, to the Filed as Exhibit 2 to the Company's Form 8-K
Rights Agreement between the Company and dated October 4, 1995, filed with the
American Stock Transfer and Trust Company Securities and Exchange Commission on
November 8, 1995
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of Arthur Andersen LLP Filed herewith
24.1 Powers of Attorney authorizing Richard A. Filed herewith
Sandberg and Kevin C. Johnson to sign the
Registration Statement and all amendments
thereto on behalf of certain directors and
officers of the Company
Item 9. Undertakings
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(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act 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, represents 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 Company
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) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company'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 Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
The Registrant. 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 Stratford, State of Connecticut, on this 5th day
of December, 1996.
DIANON SYSTEMS, INC.
By: RICHARD A. SANDBERG*
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Richard A. Sandberg
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on this 5th day of December, 1996.
Signature Capacity
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RICHARD A. SANDBERG * Chairman of the Board (principal
- ------------------------- financial officer)
Richard A. Sandberg
KEVIN C. JOHNSON * Director and President (principal
- ------------------------- executive officer)
Kevin C. Johnson
JAMES B. AMBERSON * Director, Chief Medical Officer and
- ------------------------- Senior Vice President, Operations
James B. Amberson, M.D.
JOHN P. DAVIS * Director
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John P. Davis
Signature Capacity
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WALTER O. FREDERICKS * Director
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Walter O. Fredericks
G.S. BECKWITH GILBERT * Director
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G.S. Beckwith Gilbert
JEFFREY L. SKLAR * Director
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Jeffrey L. Sklar, M.D., Ph.D.
DAVID R. SCHREIBER * Principal accounting officer
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David R. Schreiber
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* By:
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Richard A. Sandberg, for himself and, as
authorized by Power of Attorney filed as
Exhibit 24.1 to this Registration Statement
EXHIBIT INDEX
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Number Description Method of Filing
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4.1 Restated Certificate of Incorporation of the Filed as Exhibit 3.1 to the Company's
Company, as amended through June 12, 1991 Registration Statement No. 33-41226
4.2 Restated By-Laws of the Company, as amended Filed herewith
through October 24, 1996
4.3 Rights Agreement, dated as of April 29, 1994, Filed as Exhibit 1 to the Company's Form 8-K
between the Company and American Stock Transfer dated April 29, 1994, filed with the Securities
and Trust Company, as Rights Agent and Exchange Commission on May 9, 1994
4.4 Amendment, dated as of October 4, 1995, to Filed as Exhibit 2 to the Company's Form 8-K
Rights Agreement between the Company and dated October 4, 1995, filed with the
American Stock Transfer and Trust Company Securities and Exchange Commission on
November 8, 1995
5.1 Opinion of Hughes Hubbard & Reed LLP Filed herewith
23.1 Consent of Arthur Andersen LLP Filed herewith
24.1 Powers of Attorney authorizing Richard A. Filed herewith
Sandberg and Kevin C. Johnson to sign the
Registration Statement and all amendments
thereto on behalf of certain directors and
officers of the Company