AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 12, 2000
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PHARMANETICS, INC.
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-2098302
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
5301 Departure Drive
Raleigh, North Carolina 27616
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
1995 Stock Plan, As Amended
(Full title of the plan)
JOHN P. FUNKHOUSER
PRESIDENT
PHARMANETICS, INC.
5301 DEPARTURE DRIVE
RALEIGH, NORTH CAROLINA 27616
(919) 954-9871
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
KEVIN A. PRAKKE
WYRICK ROBBINS YATES & PONTON LLP
4101 LAKE BOONE TRAIL, SUITE 300
RALEIGH, NORTH CAROLINA 27607
(919) 781-4000
FAX (919) 781-4865
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Each Class Proposed Maximum Proposed Maximum
of Securities to Amount to be Offering Price Aggregate Offering Amount of
be Registered Registered Per Share(1) Price(1) Registration Fee
------------------------------------ ----------------------- --------------------- ------------------------- -----------------------
<S> <C> <C> <C> <C>
Common Stock, 350,000 shares $ 19.97 $ 6,989,500 $ 1,845.23
no par value per share
==================================== ======================= ===================== ========================= =======================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, based
upon the average of the high and low prices of the Common Stock on the Nasdaq
National Market on July 10, 2000, in accordance with Rule 457(c).
(2) Consists of 350,000 additional shares reserved for issuance under the
Registrant's 1995 Stock Plan, as amended.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by PharmaNetics, 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 for the fiscal year ended
December 31, 1999, filed pursuant to Section 13 of the Securities and Exchange
Act of 1934, as amended (the "Exchange Act");
(b) The Company's Proxy Statement dated April 11, 2000, filed pursuant
to Section 14 of the Exchange Act, in connection with the Annual Meeting of
Shareholders of the Company held on May 9, 2000;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000, filed pursuant to Section 13 of the Exchange Act;
(d) The Company's Current Report on Form 8-K, filed pursuant to Section
13 of the Exchange Act on March 1, 2000; and
(e) The description of the Company's common stock contained in the
Company's Registration Statement filed pursuant to Section 12 of the Exchange
Act, as amended from time to time.
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
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 Sections 55-8-50
through 55-8-58 of the Business Corporation Act, including circumstances in
which indemnification is otherwise discretionary. Pursuant to Sections 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
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 deprived an improper personal benefit, for acts or omissions
involving a reckless disregard for the director's
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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. The Registrant's Bylaws also set forth
certain procedures that will apply in the event of a claim for indemnification
thereunder.
The Registrant maintains liability insurance insuring its officers and
directors against liabilities that they may incur in such capacities.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Description
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5.1 Opinion of Wyrick Robbins Yates & Ponton LLP.
10.1 1995 Stock Plan, as amended.
23.1 Consent of Independent Accountants.
23.2 Consent of Wyrick Robbins Yates & Ponton LLP (contained in
Exhibit 5.1)
24.1 Power of Attorney (see page 4).
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes as follows:
(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 prospectus 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 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% change in
the maximum aggregate offering price set
forth in the "Calculation of Registration
Fee" table in the effective registration
statement;
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(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 paragraphs (a)(1)(i) and (a)(1)(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 Section 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, 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.
(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 section 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
related to the securities offered therein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(c) 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 of controlling
person or the registrant in the successful defense of any action, suite 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, 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 Raleigh, State of North Carolina, on the 11th day of
July 2000.
PHARMANETICS, INC.
By: /s/ John P. Funkhouser
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John P. Funkhouser
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints John
P. Funkhouser and Paul T. Storey, and each of them, 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
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his or her substitute or substitutes, 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 and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ John P. Funkhouser Director, President and Chief July 11, 2000
-------------------------------------------- Executive Officer (Principal
John P. Funkhouser Executive Officer
/s/ Paul T. Storey Treasurer and Director of July 11, 2000
-------------------------------------------- Finance (Principal
Paul T. Storey Accounting Officer)
/s/ James B. Farinholt, Jr. Director July 11, 2000
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James B. Farinholt, Jr.
/s/ William A. Hawkins Director July 11, 2000
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William A. Hawkins
/s/ John K. Pirotte Director July 11, 2000
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John K. Pirotte
/s/ Stephen R. Puckett Director July 11, 2000
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Stephen R. Puckett
/s/ Philip R. Tracy Director July 11, 2000
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Philip R. Tracy
/s/ Frances L. Tuttle Director July 11, 2000
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Frances L. Tuttle
</TABLE>
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