-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, C81LWzG9h0o17lspPCrXuBMKC0t41CB/M+ZcB4q5Xe0vna1qOqsdobN+uPQZap38 03rhaezM8ADz6MUA6l3xBA== 0000950116-98-002329.txt : 19981201 0000950116-98-002329.hdr.sgml : 19981201 ACCESSION NUMBER: 0000950116-98-002329 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19981130 EFFECTIVENESS DATE: 19981130 FILER: COMPANY DATA: COMPANY CONFORMED NAME: STRATEGIC DIAGNOSTICS INC/DE/ CENTRAL INDEX KEY: 0000911649 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS CHEMICAL PRODUCTS [2890] IRS NUMBER: 561581761 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-68107 FILM NUMBER: 98761623 BUSINESS ADDRESS: STREET 1: 111 PENCADER DR CITY: NEWARK STATE: DE ZIP: 19702 BUSINESS PHONE: 3024566789 MAIL ADDRESS: STREET 1: 111 PENCADER DR CITY: NEWARK STATE: DE ZIP: 19702 FORMER COMPANY: FORMER CONFORMED NAME: ENSYS ENVIRONMENTAL PRODUCTS INC /DE/ DATE OF NAME CHANGE: 19930907 S-8 1 FORM S-8 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
=================================================================================================================================== 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) =================================================================================================================================== Common Stock, par value $.01 per share 661,157 $2.1875 $1,446,281 $402.07 ===================================================================================================================================
(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. 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 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 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 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 - 4 424(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 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:
Name Title Date - ---- ----- ---- /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)
II - 6
Name Title Date - ---- ----- ---- /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
II - 7 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) EX-4 2 EXHIBIT 4 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. -1- (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. -2- (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 -3- 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 -4- 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- 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 -6- 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. -7- 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 -8- 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: -9- 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. -10- SCHEDULE A Participating Companies -11- EX-5 3 EXHIBIT 5 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 EX-23.1 4 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS 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 - ----------------------- Philadelphia, Pennsylvania November 30, 1998 -----END PRIVACY-ENHANCED MESSAGE-----