As filed with the Securities and Exchange Commission on May 19, 1998
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
Intercardia, Inc.
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(Exact name of issuer as specified in its charter)
Delaware 56-1924222
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3200 East Highway 54, Cape Fear Building, Suite 300,
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Research Triangle Park, North Carolina 27709
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(Address of Principal Executive Offices) (Zip Code)
1994 Stock Option Plan, As Amended
(Full title of the plans)
Clayton I. Duncan
President and Chief Executive Officer
Intercardia, Inc.
3200 East Highway 54
Cape Fear Building, Suite 300
Research Triangle Park, North Carolina 27709
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(Name and address of agent for service)
(919) 558-8688
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(Telephone number, including area code, of agent for service)
Copies to:
Donald R. Reynolds, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C>
========================== ========================== =========================== =========================== ======================
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
========================== ========================== =========================== =========================== ======================
Common Stock,
par value
$0.001 per share 1,000,000 shares(1) $16.125(2) $1,612,500(2) $488.64(2)
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</TABLE>
(1) Consists of 1,000,000 additional shares reserved for issuance under the
Registrant's 1994 Stock Option Plan, as amended.
(2) 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 May
14, 1998.
<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" or the "Registrant") 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 September 30, 1997, filed pursuant to Section 13 of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1997 and March 31, 1998, filed pursuant to Section 13 of the
Exchange Act;
(c) The Company's Current Report on Form 8-K filed March 16, 1998,
as amended, pursuant to Section 13 of the Exchange Act;
(d) The Company's Current Report on Form 8-K filed May 14, 1998,
as amended, pursuant to Section 13 of the Exchange Act; and
(e) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 0-27410) 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 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.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 ("Section 145") of the Delaware General Corporation
Law, as amended, generally provides that a director or officer of a corporation
(i) shall be indemnified by the corporation for all expense of such legal
proceedings when he or she is successful on the merits, (ii) may be indemnified
by the corporation for the expenses, judgments, fines and amounts paid in
settlement of such proceedings (other than a derivative suit), even if he or she
is not successful on the merits, if he or she acts in good faith and in a manner
he or she reasonably believes to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceedings, had no
reasonable cause to believe his or her conduct was unlawful, and (iii) may be
indemnified by the corporation for the expenses of a derivative suit (a suit by
a stockholder alleging a breach by a director or officer of a duty owed to the
corporation), even if he or she is not successful on the merits, if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interest of the corporation. No indemnification may be
made under clause (iii) above, however, if the director or officer is adjudged
liable for negligence or misconduct in the performance of his or her duties to
the corporation, unless a corporation determines that, despite such
adjudication, but in view of all the circumstances, he or she is entitled to
indemnification. The indemnification described in clauses (ii) and (iii) above
may be made by upon a determination that indemnification is proper because the
applicable standard of conduct has been met. Such a determination may be made by
a majority of a quorum of disinterested directors, independent legal counsel,
the stockholders or a court of competent jurisdiction.
The Company's Amended and Restated Bylaws provide in substance
that, to the fullest extent permitted by Delaware law as it now exists or as
amended, each director and officer shall be indemnified against reasonable costs
and expenses, including attorneys' fees and any liabilities which he or she may
incur in connection with any action to which he or she may be made a party by
reason or his or her being or having been a director or officer of the
Registrant or any of its affiliated enterprises. The indemnification provided by
the Company's Bylaws is not deemed exclusive of or intended in any way to limit
any other rights to which any person seeking indemnification may be entitled.
Section 102(b)(7) of the Delaware General Corporation Law, as
amended, permits a corporation to provide in its Certificate of Incorporation
that a director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. The Company's Amended and Restated Certificate of
Incorporation provides for the elimination of personal liability of a director
for breach of fiduciary duty, as permitted by Section 102(b)(7) of the Delaware
General Corporation Law.
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<PAGE>
The Registrant maintains liability insurance insuring the
Registrant's officers and directors against liabilities that they may incur in
such capacities.
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
- ------- -----------
5.1 Opinion of Wyrick Robbins Yates & Ponton LLP
10.8* 1994 Stock Option Plan, as amended
23.1 Consent of Coopers & Lybrand L.L.P., independent accountants
23.2 Consent of Wyrick Robbins Yates & Ponton LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (see page S-1).
- ----------------------------
* Previously filed with the Registrant's Annual Report on Form 10-K for
the fiscal year ended September 30, 1997.
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
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<PAGE>
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.
[The next page is the signature page]
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<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 15th day of May
1998.
INTERCARDIA, INC.
By: /s/ Clayton I. Duncan
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Clayton I. Duncan,
President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Clayton I. Duncan and Richard W. Reichow, and each of them, his true and lawful
attorney-in-fact and agent, with full powers 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 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 for all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully 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.
<TABLE>
<CAPTION>
<S> <C>
Signature Title Date
--------- ----- ----
/s/ Clayton I. Duncan
- ------------------------------------- President, Chief Executive May 15, 1998
Clayton I. Duncan Officer and Director
(Principal Executive Officer)
/s/ Richard W. Reichow
- ------------------------------------- Senior Vice President, Chief May 15, 1998
Richard W. Reichow Financial Officer and
Treasurer (Principal
Financial and Accounting
Officer)
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Signature Title Date
--------- ----- ----
/s/ Glenn L. Cooper, M.D.
- ------------------------------------- Director May 15, 1998
Glenn L. Cooper, M.D.
/s/ Joseph J. Ruvane, Jr.
- ------------------------------------- Director May 15, 1998
Joseph J. Ruvane, Jr.
/s/ David B. Sharrock
- ------------------------------------- Director May 15, 1998
David B. Sharrock
/s/ Edgar H. Schollmaier
- ------------------------------------- Director May 15, 1998
Edgar H. Schollmaier
</TABLE>
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EXHIBIT 5.1
WYRICK ROBBINS YATES & PONTON LLP
Attorneys at Law
The Summit
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607-7506
May 18, 1998
Intercardia, Inc.
3200 East Highway 54, Suite 300
Cape Fear Building
Research Triangle Park, North Carolina 27709
Re: Registration Statement on Form S-8
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Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Intercardia, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission on or about the date hereof (the "Registration
Statement"), in connection with the registration under the Securities Act of
1933, as amended, of 1,000,000 shares of the Company's Common Stock, $0.001 par
value per share (the "Shares"). We understand that the Shares are to issued
pursuant to the 1994 Stock Option Plan, as amended. 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 securities counsel, to be taken prior to the
issuance of the Shares, including the proceedings being taken in order to permit
such transactions 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 relating thereto, and any
amendments thereto.
Very truly yours,
WYRICK ROBBINS YATES & PONTON LLP
EXHIBIT 23.1
Consent of Coopers & Lybrand L.L.P., Independent Accountants
We consent to the incorporation by reference in the Registration Statement
of Intercardia, Inc. on Form S-8 of our report dated October 24, 1997, except
as to the information presented in Note M, for which the date is November 5,
1997, on our audits of the consolidated financial statements of Intercardia,
Inc. as of September 30, 1997 and September 30, 1996 and for each of the three
years in the period ended September 30, 1997.
Raleigh, North Carolina
May 15, 1998
