-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ONHc/UF9EgT3tuz5Qrdfr14M8N8YGcGdnseEBOOOSvIoWzgKWtBNi7owNw0i9h5c DMan16rulI10yuLS0yf8vg== 0000936392-97-001343.txt : 19971023 0000936392-97-001343.hdr.sgml : 19971023 ACCESSION NUMBER: 0000936392-97-001343 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19971021 EFFECTIVENESS DATE: 19971021 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: PMR CORP CENTRAL INDEX KEY: 0000829608 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SPECIALTY OUTPATIENT FACILITIES, NEC [8093] IRS NUMBER: 232491701 STATE OF INCORPORATION: DE FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-38419 FILM NUMBER: 97698863 BUSINESS ADDRESS: STREET 1: 501 WASHINGTON ST 5TH FL CITY: SAN DIEGO STATE: CA ZIP: 92103 BUSINESS PHONE: 6192952227 MAIL ADDRESS: STREET 1: 3990 OLD TOWN AVENUE SUITE 206A CITY: SAN DIEGO STATE: CA ZIP: 92110 FORMER COMPANY: FORMER CONFORMED NAME: ZARON CAPITAL INC DATE OF NAME CHANGE: 19891116 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on October 21, 1997 Registration No. 333-_______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- PMR CORPORATION (Exact name of registrant as specified in its charter) -------------- Delaware 23-2491707 (State of Incorporation) (I.R.S. Employer Identification No.) -------------- 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) -------------- 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 2 CALCULATION OF REGISTRATION FEE
============================================================================================================ 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) - ------------------------------------------------------------------------------------------------------------ Stock Options and Common Stock (par value $.01) 2,356,671 ($2.37-$28.50) $21.625 $10,014.04 ============================================================================================================
(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:
- --------------------------------------------------------------------------------------------------------------- OFFERING PRICE PER AGGREGATE OFFERING TYPE OF SECURITIES NUMBER OF SHARES SHARE PRICE - --------------------------------------------------------------------------------------------------------------- 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 - --------------------------------------------------------------------------------------------------------------- TOTAL 2,356,671 $37,178,378.80 - ---------------------------------------------------------------------------------------------------------------
(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. ================================================================================ 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. 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
EXHIBIT NUMBER - ------ 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).*
2. 5 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).*
- ------------------- * 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. 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. 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. 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.
SIGNATURE TITLE DATE - --------- ----- ---- /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
6. 9 EXHIBIT INDEX
EXHIBIT SEQUENTIAL NUMBER DESCRIPTION PAGE NUMBER ------ ----------- ----------- 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).*
- ------------------- * 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. EX-5.1 2 OPINION OF COOLEY GODWARD LLP. 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). 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 EX-23.1 3 CONSENT OF ERNST & YOUNG LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----