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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CLINTRIALS RESEARCH INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 62-1406017
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
11000 Weston Parkway
Cary, North Carolina 27513
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(Address of Principal Executive Offices)
(Zip Code)
CLINTRIALS RESEARCH INC. 1998 NON-QUALIFIED STOCK OPTION PLAN FOR DIRECTORS
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(Full Name of Plan)
Jerry R. Mitchell, M.D., Ph.D.
Chairman of the Board, President and Chief Executive Officer
ClinTrials Research Inc.
11000 Weston Parkway
Cary, North Carolina 27513
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(Name and Address of Agent for Service)
(919) 460-9005
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(Telephone number, including area code for agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum Amount of
Title of Securities Amount to be Maximum Offering Aggregate Offering Registration
To be Registered Registered(1) Price Per Share(2) Price Fee
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Common Stock, 200,000 Shares $4.31 $862,000.00 $227.57
$0.01 Par Value
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933
as amended (the "Securities Act"), this registration statement also
covers an indeterminate number of additional shares that may become
issuable pursuant to the anti-dilution adjustment provisions of the
Plan.
(2) Pursuant to Rule 457, the offering price is estimated solely for the
purpose of calculating the registration fee on the basis of the average
of the high and low prices for the Common Stock on the NASDAQ National
Market System on March 17, 2000.
The Index to Exhibits appears on sequentially numbered page II-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
Registration Statement. In addition, all documents subsequently filed by
ClinTrials Research Inc. (the "Company," the "Registrant" or "ClinTrials")
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act"), 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 in this Registration Statement and to be a part hereof from the date
of filing of such documents. 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 modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
(a) The Company's Annual Report on Form 10-K pursuant to the Securities
Exchange Act of 1934 for the fiscal year ended December 31, 1999 filed with
Securities and Exchange Commission (the "SEC") on February 28, 2000;
(b) The description of the Company's shares of Common Stock, par value
$.01 per share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A filed under Section 12 of the Exchange Act of 1934,
effective November 22, 1993.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION.
The Company's Restated Certificate of Incorporation, as amended to
date, provides for indemnification of directors and officers to the fullest
extent permitted by the Delaware Law. Specifically, no director of the Company
will be personally liable for any expense, liability or loss arising from any
alleged action or inaction in an official capacity as a director or officer or
in any other capacity while serving as a director or officer.
Section 145 of the General Corporation Law of the state of Delaware
(the "Delaware Law") empowers a Delaware corporation to indemnify any persons
who are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding whether civil, criminal,
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administrative or investigative (other than an action by or in right of such
corporation), by reason of the fact that such person is or was an officer,
director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's best
interest, and, for criminal proceedings, had no reasonable cause to believe his
conduct was unlawful. A Delaware corporation may indemnify officers, directors,
employees or agents in an action by or in the right of the corporation under the
same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation
in the performance of his duty. Where an officer, director, employee or agent is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such
officer or director actually or reasonably incurred.
Under its Restated Certificate of Incorporation and in accordance with
Section 145 of the Delaware Law, the Company will indemnify any person who was
or is a party to or is threatened to be made a party to, or is involuntarily
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a director or officer of the Company or is or was serving (during his or her
tenure as director and/or officer) at the request of the Company as a director,
officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection with such action, suit or proceeding.
The Restated Certificate of Incorporation of the Company provides that
the Company will pay for the expenses incurred by an indemnified director or
officer in defending the proceedings specified above in advance of the final
disposition, provided that, if the Delaware Law (or other applicable law) so
requires, such person agrees to reimburse the Company if it is ultimately
determined that such person is not entitled to indemnification. The Company's
Restated Certificate of Incorporation also provides that the Company may, in its
sole discretion, indemnify any person who is or was one of its employees and
agents to the same degree as the foregoing indemnification of directors and
officers.
In addition, the Restated Certificate of Incorporation of the Company
provides that the Company may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Company, or
is serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against and incurred by such person in
such capacity, or arising out of such person's status as such whether or not the
Company would have the power or obligation to indemnify such person against such
liability under the provisions of the Delaware Law.
The Company has entered into indemnification agreements with each of
its directors. Each such Indemnification Agreement provides for indemnification
to the fullest extent permitted by Delaware Law and additionally permits
advancement of expenses to such director. If it is later determined that the
director is not entitled to indemnification, the director agrees to reimburse
the Company for such expenses.
Each Indemnification Agreement further provides that in the event of a
change in control of the Company, the determination of the director's rights to
indemnification and the director's standard of conduct,
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as well as the evaluation of the reasonableness of amounts claimed by the
director, may be made by a special, independent counsel who is retained by the
director and approved by the Company (such approval not to be unreasonably
withheld) and who has not otherwise performed services for the director or the
Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on Page II-8 of this Registration Statement, which Index is
incorporated herein by reference.
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ITEM 9. UNDERTAKINGS.
The Company 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 of 1933;
(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 and 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 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 paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act of 1934
that are incorporated by reference 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.
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.
4. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 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.
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5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to partners, 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 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
Company of expenses incurred or paid by a partner, director, officer or
controlling person of the Company in the successful defense of any action suit
or proceeding) is asserted by such partner, 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 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 the City of Cary, State of North Carolina, on March 17, 2000.
ClinTrials Research Inc.
By: /s/ Jerry R. Mitchell, M.D., Ph.D.
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Name: Jerry R. Mitchell, M.D., Ph.D.
Title: President of ClinTrials Research Inc.
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 date indicated.
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SIGNATURE Title Date
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/s/ Jerry R. Mitchell, M.D., Ph.D. President, Chief Executive Officer and March 17, 2000
- ----------------------------------- Chairman of the Board
Jerry R. Mitchell, M.D., Ph.D
/s/ S. Colin Neill Senior Vice President and Chief Financial March 17, 2000
- ---------------------------------- Officer
S. Colin Neill
/s/ Irwin B. Eskind Director March 17, 2000
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Irwin B. Eskind
/s/ Richard J. Eskind Director March 17, 2000
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Richard J. Eskind
/s/ Edward G. Nelson Director March 17, 2000
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Edward G. Nelson
/s/ Roscoe R. Robinson, M.D. Director March 17, 2000
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Roscoe R. Robinson, M.D.
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Restated Certificate of Incorporation of the
Company, as amended (Incorporated by reference to
Exhibit 3.1 of the Company's Registration
Statement on Form S-1 No. 33-69568, filed with the
Securities and Exchange Commission under the
Securities Act of 1933, on September 29, 1993).
4.2 Bylaws of the Company (Incorporated by reference
to Exhibit 3.2 of the Company's Registration
Statement on Form S-1 No. 33-69568, filed with
the Securities and Exchange Commission under the
Securities Act of 1933, on September 29, 1993).
4.3 ClinTrials Research Inc. 1998 Non-Qualified Stock
Option Plan for Directors (Incorporated by
reference to Exhibit A of the Company's Definitive
Proxy Statement filed with the Securities and
Exchange Commission under the Securities Exchange
Act of 1934, on April 9, 1998).
5.1 Opinion of Harwell Howard Hyne Gabbert & Manner,
P.C.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Harwell Howard Hyne Gabbert & Manner,
P.C. (contained in Exhibit 5.1)
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Exhibit 5.1
Opinion of Harwell Howard Hyne Gabbert & Manner, P.C.
March 21, 2000
ClinTrials Research Inc.
11000 Weston Parkway
Cary, North Carolina 27513
Ladies and Gentlemen:
We have acted as special counsel to ClinTrials Research Inc. (the
"Company") in connection with the registration of the Company's 1998
Non-Qualified Stock Option Plan for Directors (the "Plan") pursuant to a
registration statement on Form S-8, as filed with the Securities and Exchange
Commission (the "Registration Statement"). This firm hereby consents to the
filing of this opinion as an exhibit to the Registration Statement and with
agencies of such states and other jurisdictions as may be necessary in the
course of complying with the laws of such states and jurisdictions regarding the
offering and sale of the stock in accordance with the Registration Statement.
This Opinion Letter is governed by, and shall be interpreted in
accordance with the Legal Opinion Accord (the "ACCORD") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, assumptions, exceptions, definitions, limitations on coverage
and other limitations, all as more particularly described in the Accord, and
this Opinion Letter should be read in conjunction therewith.
We have examined originals, or certified or photostatic copies of such
statutes, records, regulations, certificates of the officers of the Company and
of public officials, and such other information as we have deemed necessary for
purposes of rendering this opinion.
In stating our opinion, we have assumed: (i) that all signatures are
genuine, all documents submitted to us as originals are authentic, and all
documents submitted to us as copies conform to authentic original documents; and
(ii) that the parties to such documents have the legal right and power under all
applicable laws, regulations and agreements to enter into, execute, deliver and
perform their respective obligations thereunder.
On the basis of such review, but subject to the limitations expressed
herein, we are of the opinion, as of the date hereof, that the securities being
registered by the Registration Statement will, when issued in compliance with
the Plan and sold as contemplate under the Registration Statement, be legally
issued, fully paid and non-assessable.
Our opinion herein is limited solely to the laws of the United States
of America and the corporate law of the State of Delaware. In rendering the
opinion set forth herein, we have relied upon the documents referenced above and
have made no independent verification or investigation of factual matters
pertaining thereto or to the Company.
Very truly yours,
/s/ Harwell Howard Hyne
Gabbert & Manner, P.C.
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HARWELL HOWARD HYNE
GABBERT & MANNER, P.C.
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Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the ClinTrials Research Inc. 1998 Non-Qualified Stock
Option Plan for Directors of our report dated February 1, 2000, except for Note
4, as to which the date is February 16, 2000, with respect to the consolidated
financial statements and schedule of ClinTrials Research Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1999, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Raleigh, North Carolina
March 17, 2000
