As filed with the Securities and Exchange Commission on August 23, 2002
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Incara Pharmaceuticals Corporation
----------------------------------
(Exact name of issuer as specified in its charter)
Delaware 56-1924222
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
P.O. Box 14287
79 T.W. Alexander Drive, 4401 Research Commons, Suite 200,
Research Triangle Park, North Carolina 27709-4287
-------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1995 Employee Stock Purchase Plan, As Amended
(Full title of the plans)
Clayton I. Duncan
President and Chief Executive Officer
Incara Pharmaceuticals Corporation
P.O. Box 14287
79 T.W. Alexander Drive
4401 Research Commons, Suite 200
Research Triangle Park, North Carolina 27709-4287
-------------------------------------------------
(Name and address of agent for service)
(919) 558-8688
--------------
(Telephone number, including area code, of agent for service)
Copies to:
Alexander M. Donaldson, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Title of Proposed maximum Proposed maximum
securities to Amounts to offering price Aggregate Amount of
be registered be registered per share Offering price registration fee
=================================================================================================================
Common Stock,
par value
$0.001 per share 200,000/(1)/ $0.175/(2)/ $35,000/(2)/ $3.22/(2)/
=================================================================================================================
(1) Consists of 200,000 additional shares reserved for issuance under the
Registrant's 1995 Employee Stock Purchase Plan, as amended.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based on the average of the high and low prices
for the Common Stock on the NASDAQ National Market System on August 19,
2002.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by Incara Pharmaceuticals
Corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 2001, as amended by Form 10-K/A filed on August 14, 2002, filed
pursuant to Section 13 of the Securities and Exchange Act of 1934, as amended
(the "Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2002, filed pursuant to Section 13 of the Exchange Act; and
(c) The Company's Current Reports on Form 8-K filed pursuant to Section
13 of the Exchange Act on May 24, 2002, as amended by Forms 8-K/A filed on May
24, 2002 and July 3, 2002; and
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 0-27410) filed pursuant
to Section 12 of the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of
a post-effective amendment that indicates that all securities offered under this
registration statement have been sold or that deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference herein and to
be part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or superseded.
Item 4. Description of Securities.
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
1
Item 6. Indemnification of Directors and Officers.
Section 145 ("Section 145") of the Delaware General Corporation Law, as
amended, generally provides that a director or officer of a corporation (i)
shall be indemnified by the corporation for all expense of such legal
proceedings when he or she is successful on the merits, (ii) may be indemnified
by the corporation for the expenses, judgments, fines and amounts paid in
settlement of such proceedings (other than a derivative suit), even if he or she
is not successful on the merits, if he or she acts in good faith and in a manner
he or she reasonably believes to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceedings, had no
reasonable cause to believe his or her conduct was unlawful, and (iii) may be
indemnified by the corporation for the expenses of a derivative suit (a suit by
a stockholder alleging a breach by a director or officer of a duty owed to the
corporation), even if he or she is not successful on the merits, 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. No indemnification may be
made under clause (iii) above, however, if the director or officer is adjudged
liable for negligence or misconduct in the performance of his or her duties to
the corporation, unless the corporation determines that, despite such
adjudication, but in view of all the circumstances, he or she is entitled to
indemnification. The indemnification described in clauses (ii) and (iii) above
may be made by upon a determination that indemnification is proper because the
applicable standard of conduct has been met. Such a determination may be made by
a majority of a quorum of disinterested directors, independent legal counsel,
the stockholders or a court of competent jurisdiction.
The Company's Amended and Restated Bylaws provide in substance that, to
the fullest extent permitted by Delaware law as it now exists or as amended,
each director and officer shall be indemnified against reasonable costs and
expenses, including attorneys' fees and any liabilities which he or she may
incur in connection with any action to which he or she may be made a party by
reason or his or her being or having been a director or officer of the
Registrant or any of its affiliated enterprises. The indemnification provided by
the Company's Bylaws is not deemed exclusive of or intended in any way to limit
any other rights to which any person seeking indemnification may be entitled.
Section 102(b)(7) of the Delaware General Corporation Law, as amended,
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or
its stockholders 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 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 Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. The Company's Amended and Restated Certificate of Incorporation
provides for the elimination of personal liability of a director for breach of
fiduciary duty, as permitted by Section 102(b)(7) of the Delaware General
Corporation Law.
The Company maintains liability insurance insuring the Company's
officers and directors against liabilities that they may incur in such
capacities.
2
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
Exhibit
Number Description
------- -----------
5.1 Opinion of Wyrick Robbins Yates & Ponton LLP
10.12 Incara Pharmaceuticals Corporation 1995 Employee Stock
Purchase Plan, as amended
23.1 Consent of PricewaterhouseCoopers LLP, independent
accountants
23.2 Consent of PricewaterhouseCoopers, Chartered Accountants
23.3 Consent of Wyrick Robbins Yates & Ponton LLP (included in
Exhibit 5.1)
24.1 Power of Attorney (see page S-1)
__________________________
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 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;
(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; and
(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 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 (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
3
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.
(h) 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.
[The next page is the signature page]
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Research Triangle Park, North Carolina, on the 22/nd/ day of
August, 2002.
INCARA PHARMACEUTICALS CORPORATION
By: /s/ Clayton I. Duncan
-----------------------------------
Clayton I. Duncan,
President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Clayton I. Duncan and Richard W. Reichow, and each of them, his true and lawful
attorney-in-fact and agent, with full powers of substitution and resubstitution,
for him and in his 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 for 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 or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Form S-8 has been signed below by the following persons in the capacities
and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Clayton I. Duncan
------------------------------ President, Chief Executive August 22, 2002
Clayton I. Duncan Officer and Director
(Principal Executive Officer)
/s/ Richard W. Reichow
------------------------------
Richard W. Reichow Executive Vice President, August 22, 2002
Chief Financial Officer and
Treasurer (Principal
Financial and Accounting
Officer)
S-1
Signature Title Date
--------- ----- ----
/s/ Eugene J. McDonald
---------------------------- Director August 22, 2002
Eugene J. McDonald
/s/ J. Misha Petkevich
---------------------------- Director August 15, 2002
J. Misha Petkevich
/s/ Stephen M. Prescott
---------------------------- Director August 16, 2002
Stephen M. Prescott
/s/ David B. Sharrock
---------------------------- Director August 22, 2002
David B. Sharrock
/s/ Edgar H. Schollmaier
---------------------------- Director August 20, 2002
Edgar H. Schollmaier
S-2