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As filed with the Securities and Exchange Commission on December 21, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
___________
POZEN INC.
(Exact name of company as specified in its charter)
Delaware 62-1657552
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
6330 Quadrangle Drive
Suite 240 27514
Chapel Hill, NC
(Address of principal executive offices) (Zip Code)
POZEN Inc. Stock Option Plan
POZEN Inc. 2000 Equity Compensation Plan
(Full title of the plans)
John R. Plachetka, Pharm.D.
President and Chief Executive Officer
POZEN Inc.
6330 Quadrangle Drive
Suite 240
Chapel Hill, NC 27514
(Name and address of agent for service)
(919) 490-0012
(Telephone number, including area code, of agent for service)
___________
Copy of all communications to:
Linda L. Griggs, Esq.
Morgan, Lewis & Bockius LLP
1800 M Street, N.W.
Washington, D.C. 20036-5869
(202) 467-7000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered (1) offering price Aggregate registration fee
per share offering price
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 1,605,310 $ 1.14 (2) $ 1,830,053 (2) $ 458 (2)
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Common Stock, $0.001 par value 3,000,000 $12.50 (3) $37,500,000 (3) $9,375 (3)
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</TABLE>
(1) This Registration Statement covers shares of Common Stock of POZEN Inc.
which may be offered or sold pursuant to the POZEN Inc. 2000 Equity Compensation
Plan and Stock Option Plan. In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended, (the "Securities Act"), the number of shares
being registered shall be adjusted to include any additional shares which may
become issuable as a result of stock splits, stock dividends or similar
transactions in accordance with the anti-dilution provisions of the plans.
(2) Based pursuant to Paragraph (h) of Rule 457 under the Securities Act of
1933 on the weighted average exercise price of the options being issued under
the Plan.
(3) Estimated pursuant to Paragraphs (c) and (h) of Rule 457 under the
Securities Act of 1933 solely for the purpose of calculating the registration
fee, based upon the average of the high and low sales prices of shares of the
Company's Common Stock on December 14, 2000, as reported on the Nasdaq National
Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENTS
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the U.S. Securities and Exchange
Commission (the "Commission") by POZEN Inc. (the "Company"), are incorporated by
reference in this Form S-8 Registration Statement (the "Registration Statement")
and made a part hereof:
1. The Company's Quarterly Report on Form 10-Q for the period ended
September 30, 2000 (File No. 000-31719) filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
2. The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed on October 6, 2000 (File No. 000-
31719); and
3. The Prospectus filed pursuant to Rule 424(b) under the Securities
Act of 1933, as amended (the "Securities Act"), (File No. 333-35930).
All documents and reports filed by the Company pursuant to Section
13(a), 13(c), 14 or 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 herein and to be a part hereof from the date of filing
of such documents or reports. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified shall not be deemed to
constitute a part of the Registration Statement except as so modified and any
statement so superseded shall not be deemed to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
-------------------------
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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The Company's Certificate of Incorporation permits indemnification to
the fullest extent permitted by Delaware law, including the power of the Company
to indemnify any person who was or is an authorized representative of the
Company, and who was or is a party or is threatened to be made a party to any
corporate proceeding, by reason of the fact that such person was or is an
authorized representative of the Company, against expenses, judgments,
penalties, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such third-party proceeding 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 third-party proceeding (including any action or investigation which
could or does lead to a criminal third-party proceeding) had no reasonable cause
to believe such conduct was unlawful. The Company shall also indemnify any
person who was or is an authorized representative of the Company and who was or
is a party or is threatened to be made a party to any corporate proceeding by
reason of the fact that such person was or is an authorized representative of
the Company, against expenses actually and reasonably incurred by such person in
connection with the defense or settlement of such corporate action if such
person acted in good faith and in a manner reasonably believed to be in, or not
opposed to, the best interests of the Company, except that 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 Company unless and only to the
extent that the Delaware Court of Chancery or the court in which such corporate
proceeding was pending shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
authorized representative is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court shall deem proper.
Such indemnification is mandatory under the Company's Certificate of
Incorporation as to expenses actually and reasonably incurred to the extent that
an authorized representative of the Company had been successful on the merits or
otherwise in defense of any third party or corporate proceeding or in defense of
any claim, issue or matter therein. The determination of whether an individual
is entitled to indemnification may be made by a majority of disinterested
directors, by a committee of directors designated by a majority vote of such
directors, or if there are no such directors or if individual directors so
direct, by independent legal counsel in a written legal opinion, or the
stockholders. Delaware law also permits indemnification in connection with a
proceeding brought by or in the right of the Company to procure a judgment in
its favor. Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in that Act and is therefore unenforceable. The Company
maintains a directors and officers liability insurance policy.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable
Item 8. Exhibits.
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Exhibit Numbers Exhibit
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4 Amended and Restated Certificate of Incorporation and
Amended and Restated Bylaws of POZEN Inc.
(incorporated by reference to Exhibits 3.1 and 3.2 to
Amendment No. 2 to POZEN Inc.'s registration statement
on Form S-1, filed August 28, 2000)
5.1 Opinion of Morgan, Lewis & Bockius LLP, counsel to the
Company
23.1 Consent of Ernst & Young LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (included as
part of Exhibit 5.1)
24 Power of Attorney (included as part of the signature
page)
99.1 POZEN Inc. Stock Option Plan (incorporated by
reference to Exhibit 10.2 to POZEN Inc.'s registration
statement on Form S-1, filed April 28, 2000.
99.2 POZEN Inc. 2000 Equity Compensation Plan (incorporated
by reference to Exhibit 10.10 to Amendment No. 2 to
POZEN Inc.'s registration statement on Form S-1, filed
August 28, 2000)
Item 9. Undertakings.
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The undersigned 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;
(ii) To reflect in the Registration Statement 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, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of
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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 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20 percent 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 the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that subparagraphs (1)(i) and (1)(ii) of this section
do not apply if the information required to be included in a post-
effective amendment by those subparagraphs is contained in periodic
reports filed with or furnished to the Commission by the Company pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at
the termination of the offering.
The undersigned company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
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 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 Commission such indemnification is against
public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication
of such issue.
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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 Chapel Hill, State of North Carolina on this 21st day of
December, 2000.
POZEN INC.
By: /s/ John R. Plachetka
----------------------------------
Name: John R. Plachetka, Pharm.D.
Title: President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by or on behalf of the following persons in the
capacities and on the dates indicated.
Each person, in so signing, also makes, constitutes and appoints John
R. Plachetka and Matthew E. Czajkowski, and each such officer acting singly, his
true and lawful attorney-in-fact, in his name, place and stead to execute and
cause to be filed with the Securities and Exchange Commission any or all
amendments to this Registration Statement, with all exhibits and any and all
documents required to be filed with respect thereto, and to do and perform each
and every act and thing necessary to effectuate the same.
Name Title Date
---- ----- ----
/s/ John R. Plachetka
--------------------------- President, Chief Executive December 15, 2000
John R. Plachetka Officer, and Director
(Principal Executive Officer)
/s/ Matthew E. Czajkowski
--------------------------- Senior Vice President, Finance December 15, 2000
Matthew E. Czajkowski and Administration and Chief
Financial Officer (Principal
Financial Officer)
/s/ John E. Barnhardt
--------------------------- Controller (Principal December 15, 2000
John E. Barnhardt Accounting Officer)
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/s/ Jacques F. Rejeange
--------------------------- Chairman of the Board December 15, 2000
Jacques F. Rejeange
/s/ Ted G. Wood
--------------------------- Director December 15, 2000
Ted G. Wood
/s/ Peter J. Wise
--------------------------- Director December 15, 2000
Peter J. Wise
/s/ Bruce A. Tomason
--------------------------- Director December 15, 2000
Bruce A. Tomason
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INDEX TO EXHIBITS
Exhibit Numbers Exhibit
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4 Amended and Restated Certificate of Incorporation
and Amended and Restated By-laws of POZEN Inc.
(incorporated by reference to Exhibits 3.1 and 3.2,
respectively, to Amendment No. 2 to POZEN Inc.'s
registration statement on Form S-1, filed on August
28, 2000)
5.1 Opinion of Morgan, Lewis & Bockius LLP, counsel to
the Company
23.1 Consent of Ernst & Young LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (included as
part of Exhibit 5.1)
24 Power of Attorney (included as part of the
signature page)
99.1 POZEN Inc. Stock Option Plan (incorporated by
reference to Exhibit 10.2 to POZEN Inc.'s
registration statement on Form S-1, filed April 28,
2000).
99.2 POZEN Inc. 2000 Equity Compensation Plan
(incorporated by reference to Exhibit 10.10 to
Amendment No. 2 to POZEN Inc.'s registration
statement on Form S-1, filed August 28, 2000)
7
