As filed with the Securities and Exchange Commission on January 7, 2000
Registration No. 333-94169
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1 TO FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INCARA PHARMACEUTICALS CORPORATION
(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)
1999 EQUITY INCENTIVE PLAN
(Full title of the plans)
CLAYTON I. DUNCAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INCARA PHARMACEUTICALS CORPORATION
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 LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
CALCULATION OF REGISTRATION FEE
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<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> <C> <C> <C> <C> <C>
COMMON STOCK,
PAR VALUE
$0.001 PER SHARE 1,400,000(1) $1.4375(2) $2,012,500(2) $531.30(2)
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(1) CONSISTS OF 1,400,000 RESERVED FOR ISSUANCE UNDER THE REGISTRANT'S 1999
EQUITY INCENTIVE PLAN.
(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 DECEMBER 31,
1999. PREVIOUSLY PAID.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Incara Pharmaceuticals
Corporation, formerly known as Intercardia, 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 September 30, 1999, filed pursuant to Section 13 of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's Current Report on Form 8-K filed October 12,
1999 pursuant to Section 13 of the Exchange Act; and
(c) 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.
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
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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.
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.
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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
10.44** Incara Pharmaceuticals Corporation 1999 Equity Incentive
Plan, form of Restricted Stock Award Agreement (7 month
vesting) and form of Restricted Stock Award Agreement (3
year vesting)
23.1 Consent of PricewaterhouseCoopers 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.
** Previously filed as an exhibit to the Registrant's Current Report on Form
8-K filed on October 12, 1999.
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 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
4
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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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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 Amendment No. 1 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Research Triangle Park, North Carolina, on the 7th day of
January 2000.
INCARA PHARMACEUTICALS CORPORATION.
By: /s/ Clayton I. Duncan*
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Clayton I. Duncan,
President and
Chief Executive Officer
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.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Clayton I. Duncan* President, Chief Executive January 7, 2000
- --------------------------------- Officer and Director
Clayton I. Duncan (Principal Executive Officer)
/s/ Richard W. Reichow Executive Vice President, January 7, 2000
- --------------------------------- Chief Financial Officer and
Richard W. Reichow Treasurer (Principal
Financial and Accounting
Officer)
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Signature Title Date
--------- ----- ----
/s/ Joseph J. Ruvane, Jr.* Director January 7, 2000
- ---------------------------------
Joseph J. Ruvane, Jr.
/s/ David B. Sharrock* Director January 7, 2000
- ---------------------------------
David B. Sharrock
/s/ Edgar H. Schollmaier* Director January 7, 2000
- ---------------------------------
Edgar H. Schollmaier
*By: /s/ Richard W. Reichow
----------------------------
Richard W. Reichow
Attorney-in-fact
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement pertaining to 1999 Equity Incentive Plan, of Incara Pharmaceuticals
Corporation of our report dated October 29, 1999, except with regard to Note A,
paragraph 6 and Note M, for which the date is December 29, 1999, with respect to
the financial statements of Incara Pharmaceuticals Corporation included in the
Annual Report on Form 10-K for the year ended September 30, 1999.
Raleigh, North Carolina
January 4, 2000
