As filed with the Securities and Exchange Commission on December 4, 1998
Registration No. 333-32901
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
PharmaNetics, Inc.
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(Exact name of issuer as specified in its charter)
North Carolina 56-2098302
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
5301 Departure Drive, Raleigh, North Carolina 27616
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(Address of Principal Executive Offices) (Zip Code)
PharmaNetics, Inc. 1994 Stock Plan
(formerly the Cardiovascular Diagnostics, Inc. 1994 Stock Plan)
PharmaNetics, Inc. 1995 Stock Plan
(formerly the Cardiovascular Diagnostics, Inc. 1995 Stock Plan)
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(Full title of the plans)
John P. Funkhouser
President and Chief Executive Officer
PharmaNetics, Inc.
5301 Departure Drive
Raleigh, North Carolina 27616
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(Name and address of agent for service)
(919) 954-9871
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(Telephone number, including area code, of agent for service)
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Copies to:
Kevin A. Prakke, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
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<S> <C> <C> <C> <C>
Title of Proposed maximum Proposed maximum Amount of
Securities to Amounts to Offering price Aggregate registration
be registered be registered Per share Offering price fee
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No additional securities are being registered under this amendment; registration
fees were paid by Cardiovascular Diagnostics, Inc. upon filing of original
Registration Statement No. 333-32901.
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<PAGE>
EXPLANATORY NOTE
The purpose of this post-effective amendment is to provide for the
assumption of registration statement No. 333-32901 of Cardiovascular
Diagnostics, Inc., a North Carolina corporation (the "Former Registrant"), by
PharmaNetics, Inc. (the "Registrant"), a North Carolina corporation and now the
sole parent company of the Former Registrant pursuant to a holding company
reorganization effected in December 1998 (the "Reorganization"). Pursuant to the
Reorganization, all rights to acquire shares of Common Stock of the Former
Registrant formerly reserved for issuance under its 1994 Stock Plan and 1995
Stock Plan have been automatically replaced by identical rights to acquire, on a
share-for-share basis, Common Stock of the Registrant under such plans, as
amended and assumed by the Registrant.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registration Information and Employee Plan Annual Information*
- -----------------
* The information required by Items 1 and 2 of Part I of Form S-8 is omitted
from this registration statement in accordance with the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Pursuant to the Reorganization, the Registrant became the sole parent
company of the Former Registrant. The following documents heretofore filed by
the Former Registrant with the Securities and Exchange Commission (the
"Commission") are incorporated herein by reference:
(a) The Former Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997 filed pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Former Registrant's Proxy Statement dated April 9, 1998,
filed pursuant to Section 14 of the Exchange Act, in connection with the
Annual Meeting of Shareholders of the Former Registrant held May 7, 1998;
(c) The Former Registrant's Proxy Statement dated October 27, 1998,
filed pursuant to Section 14 of the Exchange Act, in connection with the
special meeting of shareholders of the Company held December 2, 1998;
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(d) The Former Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30, 1998, filed pursuant to
Section 13 of the Exchange Act; and
(e) The description of the Registrant's Common Stock (which is
identical to the description of the Former Registrant's Common Stock
contained in the Former Registrant's Registration Statement on Form 8-A
(File No. 0-26992) 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 Registrant 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
The Registrant's Articles of Incorporation and Bylaws include provisions
to (i) eliminate the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty to the fullest extent permitted
by Section 55-8-30(e) of the North Carolina Business Corporation Act (the
"Business Corporation Act") and (ii) require the Registrant to indemnify its
directors and officers to the fullest extent permitted by Section 55-8-50
through 55-8-58 of the Business Corporation Act, including circumstances in
which indemnification is otherwise discretionary. Pursuant to Section 55-8-51
and 55-8-57 of the Business Corporation Act, a corporation generally has the
power to indemnify its present and former directors, officers, employees and
agents against expenses incurred by them in connection with any suit to which
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they are, or are threatened to be made, a party by reason of their serving in
such positions so long as they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. The Registrant believes that these
provisions are necessary to attract and retain qualified persons as directors
and officers. These provisions do not eliminate the directors' duty of care,
and, in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under the Business
Corporation Act. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Registrant, for
acts or omissions that the director believes to be contrary to the best
interests of the Registrant or its shareholders, for any transaction from which
the director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the director's duty to the Registrant or its
shareholders when the director was aware or should have been aware of a risk of
serious injury to the Registrant or its shareholders, for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's duty to the Registrant or its shareholders, for improper
transactions between the director and the Registrant and for improper
distributions to shareholders and loans to directors and officers. These
provisions do not affect a director's responsibilities under any other laws,
such as the federal securities laws or state or federal environmental laws.
The Registrant's Bylaws require the Registrant to indemnify its directors
and officers against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred (including expenses of a derivative action) in
connection with any proceeding, whether actual or threatened, to which any such
person may be made a party by reason of the fact that such person is or was a
director or officer of the Registrant or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interest of the Registrant and,
with respect to any proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
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
10.24* PharmaNetics, Inc. 1994 Stock Plan (formerly
the Cardiovascular Diagnostics, Inc. 1994
Stock Plan, as
3
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amended)
10.25* PharmaNetics, Inc. 1995 Stock Plan (formerly
the Cardiovascular Diagnostics, Inc. 1995
Stock Plan, as amended)
23.1 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (see page S-1)
- ------------------
* Previously filed.
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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
Post-Effective Amendment No. 1 to Registration Statement No. 333-32901 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Raleigh, State of North Carolina, on the 2nd day of December 1998.
PHARMANETICS, INC.
By: /s/ John P. Funkhouser
_______________________________
John P. Funkhouser,
President
POWER OF ATTORNEY
Each person whose signature appears below in so signing also makes,
constitutes and appoints John P. Funkhouser and Paul T. Storey, and each of them
acting alone, his true and lawful attorneys-in-fact and agent, with full power
of substitution, for him in any and all capacities, to execute and cause to be
filed with the Securities and Exchange Commission any and all amendments and
post-effective amendments to this Post-Effective Amendment No. 1 to Form S-8,
with exhibits thereto and other documents in connection therewith, and hereby
ratifies and confirms all that said attorneys-in-fact or his or their substitute
or substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment No. 1 to Form S-8 has been signed below by the
following persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ John P. Funkhouser Director, Chairman, December 2, 1998
- -------------------------- President and Chief
John P. Funkhouser Executive Officer
(Principal Executive
Officer)
/s/ Paul T. Storey Director of Finance and December 2, 1998
- -------------------------- Treasurer (Principal
Paul T. Storey Financial and Accounting
Officer)
/s/ William A. Hawkins Director December 2, 1998
- --------------------------
William A. Hawkins
S-1
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/s/ John K. Pirotte
- --------------------------
John K. Pirotte Director December 2, 1998
/s/ Stephen R. Puckett
- --------------------------
Stephen R. Puckett Director December 2, 1998
/s/ Philip R. Tracy
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Philip R. Tracy Director December 2, 1998
S-2
EXHIBIT 5.1
WYRICK ROBBINS YATES & PONTON LLP
Attorneys at Law
The Summit
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607-7506
December 3, 1998
PharmaNetics, Inc.
5301 Departure Drive
Raleigh, North Carolina 27616
Re: Post-Effective Amendment No. 1 to Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Post-Effective Amendment No. 1 to Registration
Statement on Form S-8 filed by PharmaNetics, Inc., a North Carolina corporation
(the "Company"), with the Securities and Exchange Commission on or about the
date hereof (the "Registration Statement"), in connection with the assumption by
the Company of the Registration Statement on Form S-8 (No. 333-32901) of
Cardiovascular Diagnostics, Inc. and the stock plans thereunder (the "Plans").
We understand that the shares of the Company's Common Stock, no par value per
share (the "Shares") are to be issued pursuant to the Plans. In our examination,
we have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity with the original of
all documents submitted to us as copies thereof.
As your legal counsel, we have examined the proceedings taken, and are
familiar with the proceedings proposed to be taken, by you in connection with
the sale and issuance of the Shares.
It is our opinion that, upon completion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, the Shares, when issued in the manner referred to in the Registration
Statement and in accordance with the Plans and the resolutions adopted by the
Board of Directors of the Company, will be legally and validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus relating thereto, and any
amendments thereto.
Very truly yours,
/s/ WYRICK ROBBINS YATES & PONTON LLP
S-1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Post-Effective Amendment No.
1 to Registration Statement (No. 333-32901) of PharmaNetics, Inc. (the
"Company") on Form S-8 of our report dated February 12, 1998, on our audits of
the consolidated financial statements and Schedule II - Valuation and Qualifying
Accounts of Cardiovascular Diagnostics, Inc. and Subsidiaries, a wholly owned
subsidiary of the Company, as of December 31, 1997 and 1996, and for each of the
three years in the period ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
Raleigh, North Carolina
December 2, 1998
