As filed with the Securities and Exchange Commission on September 27, 1996.
Registration No. 33-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
Intercardia, Inc.
(Exact name of issuer as specified in its charter)
Delaware 56-1924222
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3200 East Highway 54, Cape Fear Building, Suite 300
Research Triangle Park, North Carolina 27709
(Address of Principal Executive Offices) (Zip Code)
1994 Stock Option Plan
1995 Employee Stock Purchase Plan
(Full title of the plans)
Clayton I. Duncan
President and Chief Executive Officer
Intercardia, Inc.
P.O. Box 14287
3200 East Highway 54
Cape Fear Building, Suite 300
Research Triangle Park, North Carolina 27709
(Name and address of agent for service)
(919) 558-8688
(Telephone number, including area code, of agent for service)
Copies to:
Donald R. Reynolds, Esq.
Wyrick, Robbins, Yates & Ponton
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================
Title of Proposed maximum Proposed maximum
securities to Amounts to offering price aggregate Amount of
be registered be registered per share* offering price* registration fee
============================================================================================
<S> <C>
Common Stock,
par value
$0.001 per share 1,600,000 shares $20.125 $32,200,000 $ 11,103.45
------- ----------- --------
============================================================================================
</TABLE>
*Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(c), based on the average of the high and low prices for the Common
Stock on the NASDAQ National Market System on September 23, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents heretofore filed by Intercardia, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The Company's prospectus dated February 1, 1996, filed pursuant to
Rule 424(b) promulgated under the Securities Act of 1933, as amended;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1995, March 31, 1996 (as amended) and June 30, 1996, filed pursuant
to Section 13 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"); and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act on December 8, 1995, including any amendment or report filed for
the purpose of updating such description.
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 Company's Amended and Restated Certificate of Incorporation and
Amended and Restated 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 145 of the Delaware
General Corporation Law (the "Delaware Law") and (ii) require the Company to
indemnify its directors and officers to the fullest extent permitted by Section
145 of the Delaware Law, including circumstances in which indemnification is
otherwise discretionary. Pursuant to Section 145 of the Delaware Law, 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
<PAGE>
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 Company 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 Delaware Law. In
addition, each director will continue to be subject to liability for breach
of the director's duty of loyalty to the Company, if acts or omissions
not in good faith or involving intentional misconduct or knowing violations
of law, for acts or omissions that the director believes to be contrary to
the best interests of the Company 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
Company or its stockholders when the director was aware or should have been
aware of a risk of serious injury to the Company or its stockholders, for
acts or omissions that constitute an unexcused pattern of inattention that
amounts to an abdication of the director's duty to the Company or its
stockholders, for improper transactions between the director and the Company
and for improper distributions to stockholders 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 Company's Amended and Restated Bylaws require the Company 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 Company 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 Company and, with respect to any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The Company's
Amended and Restated Bylaws also set forth certain procedures that will apply in
the event of a claim for indemnification thereunder.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Description
5.1 Opinion of counsel regarding legality of
securities being registered.
23.1 Consent of certified public accountants.
23.2 Consent of counsel (included in opinion filed
as Exhibit 5.1).
24.1 Power of Attorney (see page 4).
2
<PAGE>
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.
(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.
(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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
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 Research Triangle Park, North Carolina, on the 27th day of
September 1996.
INTERCARDIA, INC.
By: /s/ CLAYTON I. DUNCAN
-------------------------------
Clayton I. Duncan
President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below in so signing also makes,
constitutes and appoints CLAYTON I. DUNCAN and RICHARD W. REICHOW, and each of
them acting alone, his or her true and lawful attorneys-in-fact, with full power
of substitution, for him or her 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 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, her 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 Form S-8 has been signed below by the following persons in the capacities
and on the date indicated.
Signature Title Date
/s/ CLAYTON I. DUNCAN
- ---------------------------- President, Chief Executive September 26, 1996
Clayton I. Duncan Officer and Director
(Principal Executive
Officer)
/s/ RICHARD W. REICHOW
- ---------------------------- Senior Vice President, September 26, 1996
Richard W. Reichow Chief Financial Officer,
and Treasurer
(Principal Financial and
Accounting Officer)
/s/ GLENN L. COOPER
- ---------------------------- Director September 25, 1996
Glenn L. Cooper, M.D.
/s/ ROGER W. BRIMBLECOMBE
- ---------------------------- Director September 27, 1996
Roger W. Brimblecombe
4
<PAGE>
/s/ JOSEPH J. RUVANE, JR.
- ---------------------------- Director September 25, 1996
Joseph J. Ruvane, Jr.
/s/ DAVID B. SHARROCK
- ---------------------------- Director September 26, 1996
David B. Sharrock
5
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number
5.1 Opinion of counsel regarding legality of
securities being registered.
23.1 Consent of certified public accountants.
23.2 Consent of counsel (included in opinion filed
as Exhibit 5.1).
24.1 Power of Attorney (see page 4).
EXHIBIT 5.1
WYRICK, ROBBINS, YATES & PONTON, L.L.P.
Attorneys at Law
The Summit
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607-7506
September 27, 1996
Intercardia, Inc.
3200 East Highway 54
Cape Fear Building, Suite 300
Research Triangle Park, North Carolina 27709
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 filed by
Intercardia, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission on September 27, 1996 (the "Registration
Statement"), in connection with the registration under the Securities Act of
1933, as amended, of 1,600,000 shares of the Company's Common Stock, $.001 par
value per share (the "Shares"). We understand that the Shares are to issued
pursuant to the Company's 1994 Stock Option Plan and 1995 Employee Stock
Purchase Plan. 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, including the proceedings being taken in order to permit such
transaction to be carried out in accordance with applicable state securities
laws, the Shares when issued in the manner referred to in the Registration
Statement and in accordance with 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 constituting a part thereof,
and any amendments thereto.
Very truly yours,
WYRICK, ROBBINS, YATES & PONTON, L.L.P.
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Intercardia, Inc. on Form S-8 (File No.___________) of our report dated October
19, 1995, on our audits of the financial statements of Intercardia, Inc. as of
September 30, 1995 and 1994 and for the year ended September 30, 1995 and the
period from inception (March 15, 1994) to September 30, 1994, which report is
included in the Company's Registration Statement on Form S-1 (File No. 33-80219)
and incorporated by reference in this registration statement on Form S-8.
COOPERS & LYBRAND L.L.P.
Raleigh, North Carolina
September 26, 1996
