As filed with the Securities and Exchange Commission on March 30, 2000
Registration No. 333-_______
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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
INCARA PHARMACEUTICALS CORPORATION
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(Exact name of issuer as specified in its charter)
DELAWARE 56-1924222
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3200 EAST HIGHWAY 54, CAPE FEAR BUILDING, SUITE 300,
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RESEARCH TRIANGLE PARK, NORTH CAROLINA 27709
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(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
3200 EAST HIGHWAY 54
CAPE FEAR BUILDING, SUITE 300
RESEARCH TRIANGLE PARK, NORTH CAROLINA 27709
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(Name and address of agent for service)
(919) 558-8688
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(Telephone number, including area code, of agent for service)
Copies to:
Donald R. Reynolds, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
CALCULATION OF REGISTRATION FEE
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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
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COMMON STOCK,
PAR VALUE
$0.001 PER SHARE 300,000(1) $3.65625(2) $1,096,875(2) $289.58(2)
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(1)CONSISTS OF 300,000 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 MARCH 24, 2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Incara Pharmaceuticals
Corporation, formerly known as Intercardia, Inc. (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 , as amended by
Amendment No. 1 on Form 10-K/A, for the fiscal year ended September 30, 1999,
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 December 31, 1999, filed pursuant to Section 13 of the Exchange Act; and
(c) 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.
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 interest 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 a 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 Registrant maintains liability insurance insuring the
Registrant's officers and directors against liabilities that they may incur in
such capacities.
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
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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 Wyrick Robbins Yates & Ponton LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (see page S-1).
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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 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]
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 29th day of March,
2000.
INCARA PHARMACEUTICALS CORPORATION.
By: /s/ Clayton I. Duncan
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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
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/s/ Clayton I. Duncan President, Chief Executive March 29, 2000
- -------------------------------------- Officer and Director
Clayton I. Duncan (Principal Executive Officer)
/s/ Richard W. Reichow Executive Vice President, March 29, 2000
- -------------------------------------- Chief Financial Officer and
Richard W. Reichow Treasurer (Principal
Financial and Accounting
Officer)
Signature Title Date
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/s/ Joseph J. Ruvane, Jr. Director March 29, 2000
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Joseph J. Ruvane, Jr.
/s/ David B. Sharrock Director March 29, 2000
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David B. Sharrock
/s/ Edgar H. Schollmaier Director March 29, 2000
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Edgar H. Schollmaier