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As filed with the Securities and Exchange Commission on April 3, 2000
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEXELL THERAPEUTICS INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 06-1192468
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
9 Parker
Irvine, California 92618
(Address of Principal Executive Offices, including Zip Code)
NEXELL THERAPEUTICS INC.
1997 INCENTIVE AND NON-INCENTIVE STOCK OPTION PLAN;
1998 NON-INCENTIVE STOCK OPTION PLAN OF NEXELL THERAPEUTICS INC. FOR DIRECTORS,
EMPLOYEES AND CONSULTANTS OF NEXELL OF CALIFORNIA, INC.
(F/K/A NEXELL THERAPEUTICS INC.);
CONSULTING AND STOCK OPTION AGREEMENT FOR ERIC A. ROSE, M.D.
DATED NOVEMBER 17, 1995 FOR 650,000 SHARES;
STOCK OPTION AGREEMENT FOR DONALD G. DRAPKIN
DATED NOVEMBER 17, 1995 FOR 650,000 SHARES
(Full Titles of the Plans)
WILLIAM A. ALBRIGHT, JR.
SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER, TREASURER AND SECRETARY
NEXELL THERAPEUTICS INC.
9 PARKER
IRVINE, CALIFORNIA 92618
(Name and Address of Agent For Service)
(949) 470-6485
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
THOMAS S. LOO, ESQ.
BRYAN CAVE LLP
120 BROADWAY, SUITE 300
SANTA MONICA, CA 90401-2305
(310) 576-2100
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE (2) PRICE (2)
<S> <C> <C> <C> <C>
common stock, par value 3,000,000 N/A $ 8,536,476 $2,254
$.001 per share ("Common
Stock") (3)
Common Stock (4) 2,997,937 N/A $ 5,809,662 $1,534
Common Stock (5) 1,300,000 N/A $ 1,218,750 $ 322
Total 7,297,937 N/A $15,564,888 $4,110
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement shall also cover a
presently indeterminate number of additional shares of the Registrant's
Common Stock that may become issuable as a result of anti-dilution
adjustments deemed necessary or equitable by the Board of Directors of
the Registrant upon stock splits, stock dividends or other similar
changes in capitalization.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) These shares are offered under the Registrant's 1997 Incentive and
Non-Incentive Stock Option Plan. Pursuant to Rule 457(h)(1), the filing
fee for the 2,818,800 shares subject to options that have been granted
is calculated based upon the weighted average of the various strike
prices of such shares, which is $2.59. Pursuant to Rule 457(h)(1), the
filing fee for the 181,200 shares subject to options that have not yet
been granted is calculated based upon the average of the high and low
selling prices per share of the Common Stock on March 29, 2000, as
reported on the Nasdaq National Market, which was $6.82 per share.
(4) These shares are offered under the Registrant's 1998 Non-Incentive
Stock Option Plan for Directors, Employees and Consultants of Nexell of
California, Inc. (formerly known as Nexell Therapeutics Inc.). Pursuant
to Rule 457(h)(1), the filing fee for the 2,886,838 shares subject to
options that have been granted is calculated based upon the weighted
average of the various strike prices of such shares, which is $1.75.
Pursuant to Rule 457(h)(1), the filing fee for the 111,099 shares
subject to options that have not yet been granted is calculated based
upon the average of the high and low selling prices per share of the
Common Stock on March 29, 2000, as reported on the Nasdaq National
Market, which was $6.82 per share.
(5) These shares are offered under two compensation contracts with
directors/ consultants of the Registrant. Pursuant to Rule 457(h)(l),
the filing fee for such shares is calculated based upon the strike
price of such shares, which is $.9375.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act") and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated in
this Registration Statement by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999; and
(2) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A (File No. 0-19153).
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all shares of Common Stock offered
hereunder have been sold or which deregisters all such shares 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 reports or
documents. Any statement contained herein or 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 earlier statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law ("DGCL") provides
that a Delaware corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding 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 interests of the corporation, and,
with respect to any criminal action or proceeding, had no cause to believe his
or her conduct was unlawful.
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Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of the DGCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsection (a) and (b) or in the defense of any
claim, issue or matter therein, such officer or director shall be indemnified
against expenses actually and reasonably incurred by him or her in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
such officer or director and incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liabilities under Section
145.
As permitted by Section 102(b)(7) of the DGCL, the Registrant's Amended and
Restated Certificate of Incorporation, as amended, provides that a director
shall not be liable to the Registrant or its stockholders for monetary damages
for breach of fiduciary duty as a director. However, such provision does not
eliminate or limit the liability of a director for acts or omissions not in good
faith or for breaching his or her duty of loyalty, engaging in intentional
misconduct or knowingly violating a law, paying a dividend or approving a stock
repurchase which was illegal, or obtaining an improper personal benefit. A
provision of this type has no effect on the availability of equitable remedies,
such as injunction or rescission, for breach of fiduciary duty.
The Registrant's Amended and Restated Certificate of Incorporation, as
amended, and its Bylaws provide for indemnification of its directors, officers,
agents and employees to the fullest extent permissible under applicable law, and
the Registrant has entered into indemnification agreements with its directors.
The Registrant maintains policies of directors' and officers' liability
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits.
ITEM 9. 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 this 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 this Registration Statement; and
(iii) To include any material information with respect to the plan of
4
<PAGE>
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement; provided, however, that paragraphs
(1)(a)(i) and (1)(a)(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 with
or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(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 therein, 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 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 this 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.
(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
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.
5
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Irvine, State of California, on this 3rd day of
April, 2000.
NEXELL THERAPEUTICS INC.
By: /s/ William A. Albright, Jr.
-----------------------------------
William A. Albright, Jr.
Senior Vice President, Chief
Financial Officer, Treasurer and
Secretary
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Richard L. Dunning, L. William McIntosh and William A.
Albright, Jr. or any one of them acting alone, 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 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 to 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, this
Registration Statement has been signed on this 3rd day of April, 2000, by the
following persons in the capacities indicated.
Signature Title
--------- -----
/s/ Richard L. Dunning Chairman of the Board and Chief
- -----------------------------------
Richard L. Dunning Executive Officer (Principal Executive
Officer)
/s/ L. William McIntosh Director, President and Chief Operating
- -----------------------------------
L. William McIntosh Officer
/s/ William A. Albright, Jr. Senior Vice President, Chief Financial
- -----------------------------------
William A. Albright, Jr. Officer, Treasurer and Secretary
(Principal Financial and Accounting
Officer)
/s/ Donald G. Drapkin Director
- -----------------------------------
Donald G. Drapkin
/s/ Victor W. Schmitt Director
- -----------------------------------
Victor W. Schmitt
/s/ Eric A. Rose, M.D. Director
- -----------------------------------
Eric A. Rose, M.D.
/s/ Richard L. Casey Director
- -----------------------------------
Richard L. Casey
/s/ Joseph A. Mollica Director
- -----------------------------------
Joseph A. Mollica
/s/ C. Richard Piazza Director
- -----------------------------------
C. Richard Piazza
7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Method of Filing
- ------ ----------- ----------------
<S> <C> <C>
4.1 The Registrant's Amended and Restated Certificate of
Incorporation dated July 10, 1990, as amended, incorporated
herein by reference to Exhibit 3.1 of the Registrant's Current
Report on Form 8-K filed with the Commission on December 7, 1999.
4.2 The Registrant's Bylaws, as amended, incorporated herein by
reference to Exhibit 3.2 of the Registrant's Current Report on
Form 8-K filed with the Commission on December 7, 1999.
4.3 The Registrant's 1997 Incentive and Non-Incentive Stock Option
Plan, incorporated herein by reference to Exhibit 10.19 of the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999.
4.4 The Registrant's 1998 Non-Incentive Stock Option Plan for
Directors, Employees and Consultants of Nexell of California,
Inc. (f/k/a Nexell Therapeutics Inc.) incorporated herein by
reference to Exhibit A of the Registrant's Proxy Statement dated
May 26, 1998.
4.5 Consulting and Stock Option Agreement dated November 17, 1995
between the Registrant and Eric A. Rose, M.D., incorporated
herein by reference to Exhibit 10.14 of the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1995.
4.6 Stock Option Agreement dated November 17, 1995 between the
Registrant and Donald G. Drapkin, incorporated herein by
reference to Exhibit 10.15 of the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1995.
4.7 Amendment dated May 25, 1999 to Consulting and Stock Option
Agreement dated November 17, 1995 between the Registrant and Eric
A. Rose, M.D., incorporated herein by reference to Exhibit 10.60
of the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999.
4.8 Amendment dated May 25, 1999 to Stock Option Agreement dated
November 17, 1995 between the Registrant and Donald G. Drapkin,
incorporated herein by reference to Exhibit 10.61 of the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999.
5.1 Opinion of Bryan Cave LLP. Filed herewith
electronically
23.1 Consent of KPMG LLP. Filed herewith
electronically
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this
Registration Statement).
</TABLE>
8
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Bryan Cave LLP
EXHIBIT 5.1
April 3, 2000
Nexell Therapeutics Inc.
9 Parker
Irvine, CA 92618
Re: Nexell Therapeutics Inc. Registration Statement on Form S-8 for 7,297,937
shares of Common Stock
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
Statement"), of Nexell Therapeutics Inc., a Delaware corporation (the
"Registrant"), to be filed with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), in connection with the registration by the Registrant of up
to (i) 5,997,937 shares (the "Plan Shares") of the common stock, par value $.001
per share ("Common Stock"), of the Registrant, issuable pursuant to the terms of
the Registrant's 1997 Incentive and Non-Incentive Stock Option Plan, as amended
("1997 Plan"), and 1998 Non-Incentive Stock Option Plan of the Registrant for
Directors, Employees and Consultants of Nexell of California, Inc. (formerly
known as Nexell Therapeutics Inc.) ("1998 Plan"), and (ii) 1,300,000 shares (the
"Contract Shares") of Common Stock of the Registrant which may be issued from
time to time upon exercise of options granted pursuant to the terms of those
certain agreements listed as Exhibits 4.5, 4.6, 4.7 and 4.8 to the Registration
Statement (the "Agreements").
For purposes of rendering this opinion, we have made such legal and factual
examinations as we have deemed necessary under the circumstances and, as part of
such examination, we have examined, among other things, originals and copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate. For the purposes of such examination, we have assumed the
genuineness of all signatures on original documents and the conformity to
original documents of all copies submitted to us.
On the basis of and in reliance upon the foregoing examination and
assumptions, we are of the opinion that, assuming the Registration Statement
shall have become effective pursuant to the provisions of the Securities Act,
(i) the Plan Shares being offered under the 1997 Plan and the 1998 Plan (each, a
"Plan"), when issued in accordance with the Registration Statement and the
provisions of the applicable Plan, and upon receipt by the Registrant of the
consideration as contemplated by such Plan, and (ii) the Contract Shares being
offered under the Agreements, when issued in accordance with the Registration
Statement and the provisions of the applicable Agreement and upon receipt by the
Registrant of the consideration as contemplated by such Agreement, will be
validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act or the General Rules and Regulations of the Commission.
Very truly yours,
/s/ BRYAN CAVE LLP
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Nexell Therapeutics Inc.:
We consent to the use of our report dated February 4, 2000, incorporated herein
by reference in the Registration Statement on Form S-8 of Nexell Therapeutics
Inc., relating to the consolidated balance sheets of Nexell Therapeutics Inc.
and subsidiaries as of December 31, 1999 and 1998, and the related consolidated
statements of operations, changes in shareholders' equity and cash flows for
each of the years in the three-year period ended December 31, 1999, and the
related schedule.
/s/ KPMG LLP
Orange County, California
April 3, 2000
