<PAGE> 1
As filed with the Securities and Exchange Commission on October 21, 1997
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
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PMR CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 23-2491707
(State of Incorporation) (I.R.S. Employer Identification No.)
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501 Washington Street, 5th Floor
San Diego, California 92103
(619) 610-4001
(Address, including zip code, and telephone
number, including area code, of Registrant's principal
executive offices)
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1997 EQUITY INCENTIVE PLAN
1995 WARRANT GRANT
1996 STOCK OPTION GRANTS
(Full title of the plans)
Allen Tepper
Chief Executive Officer
PMR CORPORATION
501 Washington Street, 5th Floor
San Diego, California 92103
(619) 610-4001
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------
Copies to:
Jeremy D. Glaser, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) SHARE (2) PRICE (2) REGISTRATION FEE(3)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par
value $.01) 2,356,671 ($2.37-$28.50) $21.625 $10,014.04
============================================================================================================
</TABLE>
(1) Consists of shares of Common Stock which are issuable pursuant to awards
under the Registrant's 1997 Equity Incentive Plan (the "1997 Plan"), and
shares of Common Stock which are issuable to certain employees, officers
and directors of the Company under stock option and warrant grants in
1995 and 1996 (the "Individual Grants").
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and
aggregate offering price are based upon (a) the actual exercise price
for shares subject to outstanding stock options previously granted under
the 1997 Plan and the Individual Grants and (b) for shares issuable
under the 1997 Plan, calculated on the basis of the average of the
high and low prices of Registrant's Common Stock on October 17, 1997
as reported on the Nasdaq National Market. The following chart shows
the calculation of the registration fee:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
OFFERING PRICE PER AGGREGATE OFFERING
TYPE OF SECURITIES NUMBER OF SHARES SHARE PRICE
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock issuable pursuant to 4,747 $2.37 $11,250.39
outstanding options under the 1997 Plan 28,500 3.50 99,750.00
56,378 3.75 211,417.50
129,792 3.875 502,944.00
9,500 4.13 39,235.00
9,962 4.27 42,537.74
234,444 9.75 2,285,829.00
17,979 10.73 192,914.67
8,000 11.00 88,000.00
35,000 20.875 730,625.00
10,000 24.375 243,750.00
5,000 26.00 130,000.00
5,500 26.50 145,750.00
10,000 28.50 285,000.00
395,792 19.875 7,866.366.00
- ---------------------------------------------------------------------------------------------------------------
Common Stock issuable under the 1997 Plan 1,039,906 21.625 22,487,967.25
- ---------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 90,000 3.50 315,000.00
outstanding options and warrants under
the Individual Grants outside the 1997 220,000 4.75 1,045,000.00
Plan and the 1992 Plan 46,671 9.75 455,042.25
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TOTAL 2,356,671 $37,178,378.80
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</TABLE>
(3) Pursuant to Rule 457(b), the current registration fee ($11,266.17) is
reduced in an amount equal to the registration fee previously paid by
the Company ($1,252.13) when it filed its registration statement on Form
S-8/S-3 with the Securities and Exchange Commission on December 10, 1993
to register Stock Options and Common Stock, $.01 par value, under its
Employees' Incentive Stock Option Plan of 1990 (subsequently amended and
renamed as the "1997 Equity Incentive Plan") and Outside Directors'
Non-Qualified Stock Option Plan of 1992.
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<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by PMR Corporation (the "Company") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement:
(a) The Company's latest Annual Report on Form 10-K for the fiscal year
ended April 30, 1997.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
July 31, 1997.
(c) The Company's definitive Proxy Statement dated August 29, 1997, for
the Annual Meeting of Stockholders held on October 16, 1997.
(d) The description of the Company's shares of Common Stock contained in
the Company's Form 10 filed with the Commission on July 31, 1992, as amended,
including any amendment or reports filed for the purpose of updating such
description.
(e) All other reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, since the end
of the Company's fiscal year ended April 30, 1997.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (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 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 of this registration statement from the date of the filing of
such reports and documents. Any statement contained in any 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 or superseded shall
not be deemed, except as modified or superseded, to constitute a part of this
Registration Statement.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate 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 extent permitted
by Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") and
(ii) require the Registrant to indemnify its directors and officers to the
fullest extent permitted by applicable law, including circumstances in which
indemnification is otherwise discretionary. Pursuant to Section 145 of the DGCL,
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
1.
<PAGE> 4
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' or officers' duty
of care, and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under the
DGCL. In addition, each director will continue to be subject to liability
pursuant to Section 174 of the DGCL, for breach of the director's duty of
loyalty to the Registrant, for acts or omissions not in good faith or involving
intentional misconduct, for knowing violations of law, for acts or omissions
that the director believes to be contrary to the best interests of the
Registrant or its stockholders, 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 stockholders when the
director was aware or should have been aware of a risk of serious injury to the
Registrant or its stockholders, for acts or omission that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Registrant or its stockholders, for improper transactions between
the director and the Registrant and for improper loans to directors and
officers. The provision also does not affect a director's responsibilities under
any other law, such as the federal securities law or state or federal
environmental laws.
Delaware corporations are also authorized to obtain insurance to protect
directors and officers from certain liabilities, including liabilities against
which corporations cannot indemnify their directors and officers. The Company
maintains directors and officers liability insurance providing aggregate
coverage of $10 million.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ------
<S> <C>
4.1 Restated Certificate of Incorporation of Registrant (filed as
exhibit 3.1).*
4.2 Amended and Restated Bylaws of Registrant (filed as exhibit
3.2).*
4.3 Common Stock Specimen Certificate.+
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 1997 Equity Incentive Plan (the "1997 Plan") (filed as exhibit
10.1).*
99.2 Form of Incentive Stock Option Agreement under the 1997 Plan
(filed as exhibit 10.2).*
99.3 Form of Nonstatutory Stock Option Agreement under the 1997 Plan
(filed as exhibit 10.3).*
99.4 Amended and Restated Stock Option Agreement dated April 30,
1996, evidencing award to Allen Tepper (filed as exhibit 10.6).*
99.5 Amended and Restated Stock Option Agreement dated April 30,
1996, evidencing award to Susan Erskine (filed as exhibit 10.7).*
</TABLE>
2.
<PAGE> 5
<TABLE>
<S> <C>
99.6 Amended and Restated Stock Option Agreement dated February 1,
1996, evidencing award to Mark P. Clein (filed as exhibit 10.8).*
99.7 Amended and Restated Stock Option Agreement dated February 1,
1996, evidencing award to Mark P. Clein (filed as exhibit 10.9).*
99.8 Amended and Restated Stock Option Agreement dated February 1,
1996, evidencing award to Mark P. Clein (filed as exhibit
10.10).*
99.9 Amended and Restated Warrant dated July 9, 1997, evidencing
award to Fred Furman (filed as exhibit 10.11).*
</TABLE>
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* previously filed as an exhibit to the Company's Annual Report for the year
ended April 30, 1997 and incorporated herein by reference.
+ previously filed as an exhibit to the Company's registration statement on
Form S-18 (Reg. No. 23-20095-A) filed on February 11, 1988, as amended,
and incorporated herein by reference.
UNDERTAKINGS
(1) The undersigned registrant hereby undertakes:
(a) 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) (Section 230.424(b) of this
chapter) 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.
(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 (1)(i) and (1)(ii) 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 Company pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the
3.
<PAGE> 6
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d) of
the Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
4.
<PAGE> 7
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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California, on October 20,
1997.
PMR CORPORATION
By: /s/ Allen Tepper
------------------------------------------
Allen Tepper
Chairman of the Board and Chief Executive
Officer
By: /s/ Fred Furman
------------------------------------------
Fred Furman
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Allen Tepper and Fred Furman and each or
any one of them, his true and lawful attorney-in-fact and agent, with full power
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 attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
5.
<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Allen Tepper Chief Executive Officer and October 20, 1997
- ---------------- Director
Allen Tepper
/s/ Fred Furman President October 20, 1997
- ---------------
Fred Furman
/s/ Mark P. Clein Chief Financial Officer October 20, 1997
- -----------------
Mark P. Clein
/s/ Susan D. Erskine Secretary and Director October 20, 1997
- --------------------
Susan D. Erskine
/s/ Daniel L. Frank Director October 20, 1997
- -------------------
Daniel L. Frank
/s/ Charles C. McGettigan Director October 20, 1997
- -------------------------
Charles C. McGettigan
/s/ Richard A. Niglio Director October 20, 1997
- ---------------------
Richard A. Niglio
/s/ Eugene D. Hill Director October 20, 1997
- ------------------
Eugene D. Hill
</TABLE>
6.
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
------ ----------- -----------
<S> <C> <C>
4.1 Restated Certificate of Incorporation of Registrant (filed as
exhibit 3.1).*
4.2 Amended and Restated Bylaws of Registrant (filed as exhibit 3.2).*
4.3 Common Stock Specimen Certificate.+
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 1997 Equity Incentive Plan (the "1997 Plan") (filed as exhibit 10.1).*
99.2 Form of Incentive Stock Option Agreement under the 1997 Plan
(filed as exhibit 10.2).*
99.3 Form of Nonstatutory Stock Option Agreement under the 1997 Plan
(filed as exhibit 10.3).*
99.4 Amended and Restated Stock Option Agreement dated April 30,
1996, evidencing award to Allen Tepper (filed as exhibit 10.6).*
99.5 Amended and Restated Stock Option Agreement dated April 30,
1996, evidencing award to Susan Erskine (filed as exhibit 10.7).*
99.6 Amended and Restated Stock Option Agreement dated February 1,
1996, evidencing award to Mark P. Clein (filed as exhibit 10.8).*
99.7 Amended and Restated Stock Option Agreement dated February 1,
1996, evidencing award to Mark P. Clein (filed as exhibit 10.9).*
99.8 Amended and Restated Stock Option Agreement dated February 1,
1996, evidencing award to Mark P. Clein (filed as exhibit 10.10).*
99.9 Amended and Restated Warrant dated July 9, 1997, evidencing
award to Fred Furman (filed as exhibit 10.11).*
</TABLE>
- -------------------
* previously filed as an exhibit to the Company's Annual Report for the year
ended April 30, 1997 and incorporated herein by reference.
+ previously filed as an exhibit to the Company's registration statement on
Form S-18 (Reg. No. 23-20095-A) filed on February 11, 1988, as amended,
and incorporated herein by reference.
7.
<PAGE> 1
EXHIBIT 5.1
[COOLEY GODWARD LLP LETTERHEAD]
October 21, 1997
PMR Corporation
501 Washington Street, 5th Floor
San Diego, CA 92103
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by PMR Corporation (the "Company") of a Registration Statement
on Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 2,356,671 shares of the Company's
Common Stock, $.01 par value, including 960,094 shares issuable pursuant to
outstanding options under the Company's 1997 Equity Incentive Plan (the "1997
Plan"), 1,039,906 additional shares available for issuance under the 1997 Plan
and 356,671 shares of the Company's Common Stock, $.01 par value, issuable
pursuant to outstanding individual option and warrant awards made to certain
employees, officers and directors of the Company outside the 1997 Plan (the
"Individual Grants") (together with the shares offered pursuant to the 1997
Plan, the "Shares").
In connection with this opinion, we have examined the Registration Statement,
the 1997 Plan, the Individual Grants, your Certificate of Incorporation and
By-laws, as amended, and such other documents, records, certificates, memoranda
and other instruments as we deem necessary as a basis for this opinion. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof, and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with and, as applicable, the
1997 Plan or the Individual Grants, will be validly issued, fully paid, and
nonassessable (except as to shares issued pursuant to certain deferred payment
arrangements, which will be fully paid and nonassessable when such deferred
payments are made in full).
<PAGE> 2
PMR Corporation
October 21, 1997
Page Two
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Jeremy D. Glaser
------------------------------------
Jeremy D. Glaser
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1997 Equity Incentive Plan, 1995 Warrant Grant, and the
1996 Stock Option Grants of PMR Corporation of our report dated June 13, 1997,
with respect to the consolidated financial statements of PMR Corporation
included in its Annual Report (Form 10-K) for the year ended April 30, 1997,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
San Diego, California
October 17, 1997
