<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 31, 1996.
REGISTRATION NO.
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NPS PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 87-0439579
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
</TABLE>
NPS PHARMACEUTICALS, INC.
420 CHIPETA WAY
SALT LAKE CITY, UTAH 84108-1256
(801) 583-4939
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
--------------------------
JAMES U. JENSEN
VICE PRESIDENT, CORPORATE DEVELOPMENT AND LEGAL AFFAIRS
NPS PHARMACEUTICALS, INC.
420 CHIPETA WAY
SALT LAKE CITY, UTAH 84108-1256
(801) 583-4939
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
--------------------------
COPIES TO:
<TABLE>
<S> <C> <C>
KEVIN J. ONTIVEROS, ESQ. KATHARINE A. MARTIN, ESQ. ALAN C. MENDELSON, ESQ.
SENIOR CORPORATE COUNSEL PILLSBURY MADISON & SUTRO LLP COOLEY GODWARD CASTRO
NPS PHARMACEUTICALS, INC. 2700 SAND HILL ROAD HUDDLESON & TATUM
420 CHIPETA WAY MENLO PARK, CA 94025 FIVE PALO ALTO SQUARE
SALT LAKE CITY, UTAH (415) 233-4500 3000 EL CAMINO REAL
84108-1256 PALO ALTO, CA 94306
(801) 583-4939 (415) 843-5000
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the Registration Statement becomes effective.
--------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
/ /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. / / ________________
If this Form is a post-effective amendment file pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ________________
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
PROSPECTUS
1,000,000 SHARES
[NPS LOGO]
COMMON STOCK
----------------
The 1,000,000 shares (the "Shares") of Common Stock, par value $.001 per
share (the "Common Stock"), of NPS Pharmaceuticals, Inc. (the "Company") offered
hereby are being offered for the account of a certain Selling Stockholder (the
"Selling Stockholder"). The Company will not receive any proceeds from the sale
of such securities. See "Selling Stockholder."
The Selling Stockholder may sell the Shares offered hereby from time to time
on the Nasdaq Stock Market or such other national securities exchange or
automated inter-dealer quotation system on which Shares of the Company's Common
Stock are then listed, through negotiated transactions or otherwise at market
prices prevailing at the time of the sale or at negotiated prices. The Selling
Stockholder directly or through agents designated from time to time, or through
underwriters, brokers or dealers also to be designated, may sell the Shares from
time to time on terms to be determined at the time of sale. Such underwriters,
brokers or dealers may receive compensation in the form of commissions or
otherwise in such amounts as may be negotiated by them. As of the date of this
Prospectus, no agreements have been reached for the sale of the Shares or the
amount of any compensation to be paid to underwriters, brokers or dealers in
connection therewith. The Company will bear all expenses, including the
reasonable fees and expenses of one legal counsel incurred after the filing of
the Form S-3 Registration Statement, in connection with the registration and
sale of the Shares being offered by the Selling Stockholder hereby, other than
commissions, concessions or discounts to underwriters, brokers or dealers or
other advisors to the Selling Stockholders. See "Plan of Distribution."
The Common Stock of the Company is quoted on the Nasdaq Stock Market under
the trading symbol "NPSP." On May 30, 1996, the last reported sales price of the
Company's Common Stock on the Nasdaq Stock Market was $16.75 per share.
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS," BEGINNING ON
PAGE 5.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is May , 1996
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NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THIS OFFERING TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALES HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF OR THE DATES AS OF WHICH
INFORMATION IS OTHERWISE SET FORTH OR INCORPORATED BY REFERENCE HEREIN. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SALE OR A SOLICITATION OF AN OFFER TO
PURCHASE ANY SECURITIES OTHER THAN THOSE TO WHICH IT RELATES OR AN OFFER TO ANY
PERSON IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the Public Reference Section of the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549; and at
the Commission's regional offices at Northwestern Atrium Center, Suite 1400, 500
West Madison Street, Chicago, Illinois 60601 and 14th Floor, 75 Park Place, New
York, New York 10007. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended, (the "Securities Act") with
respect to the shares of Common Stock offered hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement and the
exhibits and schedules thereto. For further information with respect to the
Company and the Common Stock offered hereby, reference is made to such
Registration Statement and to the exhibits and schedules filed therewith.
Statements contained in this Prospectus as to the contents of any contract or
other document referred to are not necessarily complete and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement. The Registration Statement, together with
the exhibits and schedules thereto, may be inspected without charge at the
offices of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 or
at its regional offices located at 500 West Madison Street, Chicago, Illinois
60661 and 14th Floor, 75 Park Place, New York, New York 10007. Copies of such
material may be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates.
REPORTS TO SECURITY HOLDERS
The Company furnishes its stockholders with annual reports containing
audited financial statements certified by its independent auditors and quarterly
reports containing unaudited financial information for the first three quarters
of each fiscal year.
INCORPORATION BY REFERENCE
The following documents which have been filed with the SEC are incorporated
herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(2) Amendment No. 1 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
(3) Amendment No. 2 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
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<PAGE>
(4) Amendment No. 3 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
(5) The Company's Registration Statement on Form 8-A dated May 19, 1994
as filed with the Commission on May 23, 1994.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering made hereby shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of the
filing of such documents. Any statement contained in this Prospectus, any
supplement to this Prospectus 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 Prospectus to the extent that a statement contained herein,
or in any subsequently filed supplement to this Prospectus or in any document
that is 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, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will furnish, upon written or oral request of any person,
without charge, a copy of any document or part thereof which is incorporated by
reference in this Prospectus but not delivered herewith (not including exhibits
to the information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates). Requests for information should be directed to James U. Jensen,
Vice President, Corporate Development and Legal Affairs and Corporate Secretary,
NPS Pharmaceuticals, Inc., 420 Chipeta Way, Salt Lake City, Utah 84108;
telephone (801) 583-4939.
3
<PAGE>
THE COMPANY
NPS Pharmaceuticals is engaged in the discovery and development of orally
active, small molecule drugs that target cell surface receptors and ion
channels. The Company's most advanced product candidate, Norcalcin-TM- for the
treatment of hyperparathyroidism ("HPT"), arose from the Company's pioneering
work on a new class of cell surface receptors which detect levels of
extracellular calcium involved in numerous bodily functions. To date, the
Company has conducted two Phase I and two Phase I/II clinical trials of
Norcalcin to test its safety and initial efficacy. The Company is also applying
its calcium receptor technology to the development of therapies for
osteoporosis. The Company's other main programs involve the development of
orally active, small molecule drugs which have neuroprotectant properties and
target certain calcium channels in order to provide treatments for stroke, head
trauma, chronic pain and epilepsy. Additionally, the Company is pursuing several
discovery programs which are extensions of its discoveries in calcium receptors
and ion channels.
NPS was incorporated in Utah in 1986 and reincorporated in Delaware in 1992.
The Company's executive offices are located at 420 Chipeta Way, Salt Lake City,
Utah 84108-1256, and its telephone number is (801) 583-4939.
THIS PROSPECTUS CONTAINS, IN ADDITION TO HISTORICAL INFORMATION,
FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES. THE COMPANY'S
ACTUAL RESULTS OR EXPERIENCE COULD DIFFER SIGNIFICANTLY FROM THOSE DISCUSSED IN
THE FORWARD-LOOKING STATEMENTS. FACTORS THAT COULD CAUSE OR CONTRIBUTE TO SUCH
DIFFERENCES INCLUDE, BUT ARE NOT LIMITED TO, THOSE DISCUSSED IN "RISK FACTORS."
RISK FACTORS
THE FOLLOWING FACTORS SHOULD BE CONSIDERED CAREFULLY BY POTENTIAL INVESTORS
IN EVALUATING AN INVESTMENT IN THE SHARES OF COMMON STOCK OFFERED HEREBY.
EARLY STAGE OF PRODUCT DEVELOPMENT; DEPENDENCE ON NORCALCIN. The Company
was founded in 1986, and has not completed development of any drugs and does not
expect that any drugs resulting from its or its Licensees' research and
development efforts will be commercially available for several years, if at all.
Norcalcin is the only product candidate currently under development by the
Company and its Licensees that is in human clinical trials. No other compound
under development by NPS or its Licensees has been scheduled for clinical
testing. Clinical trials in humans are necessary to determine whether or not a
compound will be a safe, commercially attractive or effective drug. Results
obtained in preclinical trials are not necessarily indicative of results that
will be obtained in later stages of preclinical development or in human clinical
testing. All product candidates developed by the Company or its Licensees,
including Norcalcin, will require extensive research, development and
preclinical and clinical testing prior to submission of any regulatory
application, as well as a lengthy regulatory approval process. Preclinical and
clinical testing of safety and efficacy takes several years and the time
required to commercialize new drugs cannot be predicted with accuracy. Product
development of new pharmaceuticals is highly uncertain, and unanticipated
developments, clinical or regulatory delays, unexpected adverse side effects or
inadequate therapeutic efficacy could slow or prevent the product development
efforts of the Company and its Licensees, and have a materially adverse effect
on the Company's operations. There can be no assurance that the Company's
current product candidates, including Norcalcin, or any future product
candidates, will advance to clinical trials, prove safe and effective, meet
applicable regulatory standards, be capable of being produced in commercial
quantities at acceptable cost or be successfully marketed. Also, there can be no
assurance that a pharmacological method for the treatment of diseases targeted
by the Company, including HPT, will prove to be superior to non-pharmacological
treatments. See "-- Government Regulation; No Assurance of Regulatory Approval."
DEPENDENCE ON COLLABORATIVE RESEARCH AND LICENSE RELATIONSHIPS. The
Company's strategy for the development, clinical testing and manufacturing and
commercialization of certain of its product candidates and the research and
development of new product candidates includes entering into various
4
<PAGE>
research, development and license agreements with corporate partners, licensees
and others. The Company has entered into a license agreement with Amgen pursuant
to which Amgen has assumed control of the development and commercialization of
Norcalcin in its territory, a collaborative research and license agreement with
Kirin for the development of Norcalcin in Kirin's territory and a collaborative
research and license agreement with SmithKline Beecham for research and
development in osteoporosis. The Licensees each have received from NPS certain
exclusive rights to commercialize products developed under their respective
agreements, have paid license fees to NPS and have committed to make milestone
payments to NPS upon achievement of specified goals. The Licensees have agreed
to fund the research or development efforts in HPT and osteoporosis, conduct
human clinical testing of lead compounds, prepare and file submissions for
regulatory approval and pay royalties on any resulting products. Because the
Company has granted exclusive development, commercialization and marketing
rights to the Licensees in the fields of HPT and osteoporosis, the success of
its existing HPT and osteoporosis programs is dependent upon the efforts of the
Licensees. There can be no assurance that the Licensees will perform their
obligations under their respective agreements, that they will successfully
develop or proceed to market any products under these agreements, or that the
Company will ever receive any royalties or milestone or research support
payments under these agreements, any of which could have a material adverse
effect on the business of the Company. Furthermore, there can be no assurance
that business conflicts will not arise between the Licensees over rights to
existing compounds or future compounds with respect to certain indications. The
Company's collaborative research and license agreements, including the
agreements with Kirin, the Licensees, generally provide that they may be
terminated under a variety of circumstances upon prior written notice. If any of
the Licensees terminates or breaches its agreement, such termination or breach
may have a material adverse effect on the Company's operations. Furthermore,
there can be no assurance that present or future collaborators will not pursue
existing or alternative technologies in preference to treatments being developed
in collaboration with the Company.
NPS also intends to seek additional collaborative or license arrangements to
develop and commercialize other product candidates. Many of the Company's
competitors are similarly seeking to develop or expand their collaborative and
license arrangements with pharmaceutical companies. The success of these efforts
by the Company's competitors could have an adverse impact on the Company's
ability to form future collaborative arrangements and maintain existing ones.
There can be no assurance that the Company will be able to negotiate acceptable
collaborative agreements in the future or that efforts under any such
collaborative agreements will be successful. To the extent that the Company
chooses not to or is unable to enter into future collaborative agreements, it
would experience increased capital requirements to undertake research,
development and marketing of its product candidates at its own expense. In
addition, the Company may encounter significant delays in introducing its
product candidates into certain markets or find that the development,
manufacture or sale of its product candidates in such markets is adversely
affected by the absence of such collaborative agreements.
LACK OF PRODUCT SALES; HISTORY OF OPERATING LOSSES. Substantially all of
the Company's revenues to date have come from collaborative research and license
agreements with the Licensees. Aside from the incidental revenues from the sale
of research chemicals, no revenues have been generated from product sales. Other
working capital has come from equity and debt financings. NPS has incurred
cumulative losses through December 31, 1995 of $20.5 million, net of cumulative
revenues from research and license agreements of $22.3 million. The Company
expects to incur significant operating losses over at least the next several
years as the Company continues and expands its research and development and
preclinical and clinical testing activities. The Company expects that losses
will fluctuate from quarter to quarter and that such fluctuations may be
substantial. The Company's ability to achieve profitability depends in part upon
its ability, alone or with others, to complete development of Norcalcin and
other product candidates, obtain required regulatory approvals and manufacture
and successfully market such products, of which there can be no assurance. As
such, there can be no assurance that the Company will be able to achieve
profitability on a sustained basis, if at all.
5
<PAGE>
GOVERNMENT REGULATION; NO ASSURANCE OF REGULATORY APPROVAL. The research
and development activities of the Company, as well as the investigation,
manufacture, distribution and marketing of therapeutic products, are subject to
extensive regulation by numerous governmental authorities in the United States
and other countries. Prior to marketing in the United States, a drug must
undergo rigorous preclinical and clinical testing and an extensive regulatory
approval process implemented by the FDA under federal law, including the Federal
Food, Drug and Cosmetic Act, as amended. Receipt of such regulatory approval
involves, among other things, satisfying the FDA that the product is both safe
and effective. Typically, this process takes several years or more depending
upon the type, complexity and novelty of the product and the nature of the
disease or other indication to be treated and requires the expenditure of
substantial resources. Preclinical studies must be conducted in conformance with
the FDA's Good Laboratory Practice regulations. Clinical testing must meet
requirements for Institutional Review Board oversight and informed consent by
clinical trial subjects and patients, as well as FDA prior review, oversight and
the FDA's Good Clinical Practice requirements. Clinical trials may require large
numbers of test subjects. Furthermore, the Company or the FDA may suspend
clinical trials at any time if either believes that the subjects participating
in such trials are being exposed to unacceptable health risks, including
undesirable or unintended side effects. While certain of the Company's employees
have some experience in conducting and managing the clinical testing necessary
to obtain regulatory approval, the Company has conducted only limited clinical
trials of one of its product candidates to date and anticipates that it will
need to either rely on its collaborative partners, licensees and outside
consultants or attract and retain additional employees with expertise in this
area.
Before receiving FDA approval to market a product, NPS may have to
demonstrate that such product represents an improved form of treatment compared
to existing therapies. Data obtained from preclinical and clinical activities
are susceptible to varying interpretations which could delay, limit or prevent
regulatory approvals. In addition, delays or rejections may be encountered based
upon additional government regulation from future legislation or administrative
action or changes in FDA policy during the period of product development,
clinical trials and FDA regulatory review. If regulatory approval of a product
is granted, such approval will be limited to those disease states and conditions
for which the product is useful, as demonstrated through clinical studies.
Furthermore, approval may entail ongoing requirements for post-marketing
studies. Even if such regulatory approval is obtained, a marketed product, its
manufacturer and its manufacturing facilities are subject to continual review
and periodic inspections. The regulatory standards for current Good
Manufacturing Practices ("cGMP") are currently being applied stringently by the
FDA. Discovery of previously unknown problems with a product, manufacturer or
facility may result in restrictions on such product or manufacturer, including
costly recalls or even withdrawal of the product from the market. There can be
no assurance that any compound developed by the Company alone or in conjunction
with others will prove to be safe and effective in clinical trials and will meet
all of the applicable regulatory requirements needed to receive marketing
approval.
RAPID TECHNOLOGICAL CHANGE; INTENSE COMPETITION. NPS is pursuing areas of
product development in which the Company believes there is a potential for
extensive technological innovation in relatively short periods of time. The
Company operates in a field in which new discoveries occur and are expected to
occur at a rapid pace. The Company's competitors may succeed in developing
technologies or products that are more effective than those of the Company or in
obtaining regulatory approvals of their drugs more rapidly than the Company and
its collaborative partners and licensees, and such success could render the
Company's products obsolete or non-competitive and have a material adverse
effect on the Company. Competition in the pharmaceutical and biotechnology
industry is intense and is expected to continue to increase. Many of the
Company's competitors, including biotechnology and pharmaceutical companies, are
actively engaged in the research and development of products in the Company's
targeted areas, including the fields of HPT, osteoporosis, neuroprotection,
chronic pain and epilepsy. Many of the Company's competitors have substantially
greater financial, technical, marketing and personnel resources than the Company
as well as considerable experience in preclinical testing, human
6
<PAGE>
clinical trials and other regulatory approval procedures. Moreover, certain
academic institutions, governmental agencies and other research organizations
are conducting research in areas in which the Company is working. These
institutions are becoming increasingly aware of the commercial value of their
findings and are becoming more active in seeking patent protection and licensing
arrangements to collect royalties for use of technology that they have
developed. These institutions may also market competitive commercial products on
their own or through joint ventures and will compete with the Company in
recruiting highly qualified scientific personnel.
UNCERTAINTY OF PROTECTION OF PATENTS AND PROPRIETARY TECHNOLOGY. The
Company's success depends, in part, on its ability to obtain patents, maintain
trade secret protection and operate without infringing on the proprietary rights
of third parties. Because the patent positions of biotechnology and
pharmaceutical companies can be highly uncertain and frequently involve complex
legal and factual questions, the breadth of claims allowed in biotechnology and
pharmaceutical patents or their enforceability cannot be predicted.
None of the Company's principal proprietary rights, including rights related
to process, compounds, use and technique related to its calcium receptor science
and NMDA receptor-channel technology, are protected by issued patents in the
Company's principal potential markets. No assurance can be given that patents
will issue from any of the Company's current or anticipated patent applications
or that such patent applications will allow the Company to preclude others from
practicing some or all of the art described in the publicly available versions
of these pending patent applications either before such patent applications
issue as patents or after such patent applications issue as patents. Generally,
patent applications in the United States are maintained in secrecy until patents
issue and publication of discoveries in scientific or patent literature often
lag behind actual discoveries. No assurance can be given that, even if
published, the Company is aware of all such literature. Accordingly, the Company
cannot be certain that the named inventors in its patent applications were the
first to invent, or that the Company is the first to pursue patent coverage for
such inventions. If patents do issue, there can be no assurance that the claims
allowed will be sufficiently broad to protect the Company's technology or to
prevent competition. No assurance can be given that any patents issued to the
Company will not be challenged, invalidated or circumvented or that rights
granted thereunder will provide competitive advantages to NPS. Moreover, the
Company may have to participate in interference proceedings declared by the
United States Patent and Trademark Office to determine priority of invention,
which could result in substantial cost to the Company, even if the eventual
outcome is favorable to the Company. If certain of the Company's patent
applications fail to issue or are successfully challenged, particularly those
related to its calcium receptor science and NMDA receptor-channel technology, it
may have a material adverse effect on the Company's operations or its ability to
maintain or establish collaborations. Furthermore, there can be no assurance
that others will not independently develop similar products, duplicate any of
the Company's products or design around the patented products or technology
developed by NPS. There can also be no assurance that any products developed by
NPS will not be found to infringe patents held by third parties, or that, in
such cases, licenses from such third parties would be available on commercially
attractive terms, if at all. If NPS does not obtain such licenses, it could
encounter delays in product market introductions or could find that it is unable
to develop, manufacture or sell its products requiring such licenses. In
addition, the Company could incur substantial costs in defending lawsuits
brought against NPS on such patents or in prosecuting lawsuits by NPS against
another party. Additionally, many of the Company's foreign patent applications
have been published as part of the patent prosecution process in such countries.
Protection of the rights revealed in such published patent applications can be
complex, costly and uncertain.
The development of therapeutic products for applications in the Company's
product fields is intensely competitive. A number of pharmaceutical companies,
biotechnology companies, universities and research institutions have filed
patent applications or received patents in these and related fields.
Some of these applications or patents may limit or preclude the Company's
applications and could result in a significant reduction of the coverage of the
Company's patents, if issued.
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NPS also relies on trade secrets and proprietary know-how, which it seeks to
protect, in part, by confidentiality agreements with its corporate
collaborators, licensees, employees and consultants. NPS expects to continue to
rely on trade secrets and know-how to protect certain aspects of its
technologies. The Company believes it has, and can maintain, a competitive
advantage through its use of written confidential disclosure agreements and
invention assignment provisions with its employees, consultants, advisors and
potential and actual collaborators and licensees. Nonetheless, no assurance can
be given that these agreements will provide meaningful protection for the
Company's trade secrets or proprietary know-how as a result of an unauthorized
use or disclosure in the public domain. There can be no assurance that these
agreements will not be breached, that NPS would have adequate remedies for any
breach, or that the Company's trade secrets will not otherwise become known or
be independently discovered by competitors.
DEPENDENCE ON THIRD PARTIES FOR MANUFACTURING. To be successful, the
Company's products, if successfully developed, must be manufactured in
commercial quantities in accordance with regulations prescribed by the FDA and
at acceptable costs. NPS does not have the capability to manufacture products
under cGMP regulations prescribed by the FDA and does not intend to develop such
a capability in the near future. Accordingly, the Company anticipates that, for
the foreseeable future, it will pursue a strategy of seeking production
capability from corporate collaborators, licensees or contract manufacturers.
There can be no assurance that the Company's current or prospective corporate
collaborators, licensees or contract manufacturers will be able to manufacture
any developed compounds on a commercial scale or that any collaborator, licensee
or manufacturer will be able to manufacture products in quantities or at prices
which will be commercially viable or beneficial for the Company. The Licensees
are responsible for manufacturing any products developed under their respective
agreements with the Company. If the Company or its collaborators and licensees
encounter difficulty in obtaining third-party manufacturing on commercially
acceptable terms, their ability to commercialize products may be delayed or
foreclosed. Moreover, any manufacturer of the Company's products must adhere to
cGMP regulations enforced by the FDA through its facilities inspection program.
If these facilities cannot pass a pre-approval or periodic plant inspection, FDA
approval of the product will not be granted or sale of the product may be
barred.
Presently, the Company relies on contract manufacturers to produce its
proprietary compounds for development activities and in sufficient quantities
for preclinical and clinical purposes. If the Company were unable to contract
for sufficient supply of its compounds on acceptable terms, or if it should
encounter delays or difficulties in its relationships with manufacturers, the
Company's preclinical and human clinical testing schedule would be delayed. Such
delay would adversely affect the schedule for submission of products for
regulatory approval and the market introduction and subsequent sales of such
products, which would have a materially adverse effect on the Company.
FUTURE CAPITAL NEEDS; UNCERTAINTY OF ADDITIONAL FUNDING. The Company has
incurred negative cash flows from operations since its inception. Substantial
expenditures will be required to enable NPS to conduct existing and planned
preclinical studies and clinical trials, to manufacture or to have manufactured
and to market products from current research and development efforts, and to
continue research and development activities. The Company anticipates that its
existing capital resources, including research and development support payments
from existing collaborations, together with the net proceeds of a proposed
public offering of 2,000,000 shares of the Company's Common Stock (plus an
additional 300,000 shares to cover over-allotments, if any) and interest earned
thereon, will be sufficient to enable it to maintain its current and planned
operations through at least 1997. However, the Company's future capital needs
will be dependent upon many factors, including progress in its research and
development activities, the magnitude and scope of these activities, progress
with preclinical and clinical trials, the cost of preparing, filing,
prosecuting, maintaining and enforcing patent claims and other intellectual
property rights, competing technological and market developments, changes in or
terminations of existing collaborative arrangements and license arrangements,
the establishment of additional collaborative and license arrangements, and the
cost of manufacturing scale-up and development of
8
<PAGE>
marketing activities, if undertaken by the Company. If Amgen terminates its
agreement to develop Norcalcin in the Amgen territory, the Company may not have
the resources necessary to complete the development and commercialization of
Norcalcin in the Amgen territory.
Depending on the factors described above, NPS may need to raise substantial
additional funds to support its long-term product development and
commercialization programs. The Company intends to seek additional funding
through corporate collaborations and license agreements. There can be no
assurance the Company will be able to negotiate such agreements in the future on
acceptable terms or at all. The Company may also seek additional funding through
public or private financings. If additional funds are raised by issuing equity
securities, further dilution to stockholders will result. If adequate funds are
not available, the Company may be required to delay, reduce the scope of or
eliminate one or more of its research and development programs or to obtain
funds through arrangements with collaborative partners or others that may
require the Company to relinquish rights to certain of its technologies, product
candidates or products that the Company may otherwise seek to develop or
commercialize on its own, any one of which could have a material adverse effect
on the Company's operations.
LACK OF MARKETING CAPABILITIES. The Licensees currently have marketing and
distribution rights with respect to products under development for the treatment
of HPT and osteoporosis; however, such commercialization rights may revert to
NPS, under certain circumstances, including upon termination of any of the
related agreements. NPS may retain such commercialization rights to other
products developed in the future. The Company currently lacks sales, marketing
and distribution capability. In order to market any of its products directly,
the Company would have to develop a marketing and sales force with technical
expertise and with supporting distribution capability. There can be no assurance
that the Company will be able to establish in-house sales and distribution
capabilities or relationships with third parties, or that it will be successful
in gaining market acceptance for its products.
Outside the United States, the Company's ability to market a product is
contingent upon receiving marketing authorization from the appropriate foreign
regulatory authorities. The requirements governing the conduct of clinical
trials, marketing authorization, pricing and reimbursement vary widely from
country to country. This foreign regulatory approval process includes all of the
risks associated with FDA approval set forth above.
UNCERTAINTY OF THIRD-PARTY REIMBURSEMENT. There is significant national
concern today about the availability and rising cost of health care in the
United States. It is anticipated that new federal and/or state legislation will
be passed and regulations adopted to attempt to provide broader and better
health care and to manage and contain its cost. While NPS cannot predict whether
any such legislative or regulatory proposals will be adopted or the effect such
proposals may have on its business, the pendency of such proposals could have a
material adverse effect on the Company's ability to raise capital, and the
adoption of such proposals could have a material adverse effect on the Company
in general.
In both domestic and foreign markets, sales of the Company's product
candidates will depend in part on the availability of reimbursement from
third-party payors such as government health administration authorities, private
health insurers and other organizations. Under current guidelines, Medicare does
not reimburse patients for self-administered drugs. Such policy may adversely
affect the market for products designed to treat patients with age-related
disorders, such as HPT and osteoporosis. In addition, third-party payors are
increasingly challenging the price and cost-effectiveness of medical products
and services. Significant uncertainty exists as to the reimbursement status of
newly approved health care products. There can be no assurance that the
Company's product candidates will be considered cost-effective or that adequate
third-party reimbursement will be available to enable NPS to maintain price
levels sufficient to realize an appropriate return on its investment in product
development. Failure to achieve sufficient price levels for its drugs could
adversely affect the Company's business. Legislation and regulations affecting
the pricing of pharmaceuticals may change before any of the Company's product
candidates are approved for marketing. Adoption of such legislation or
regulations could further limit reimbursement for medical products and services.
Furthermore, the Company's ability to
9
<PAGE>
commercialize its potential product portfolio may be adversely affected to the
extent that such legislation has a material adverse effect on the business,
financial condition and profitability of other companies that are current or
future collaborators for certain of the Company's product candidates.
DEPENDENCE ON KEY PERSONNEL; ABILITY TO MANAGE GROWTH. The Company is
highly dependent on the principal members of its scientific and management
staff. Loss of any of these persons could adversely affect the Company's
business. The Company does not have employment contracts. The Company's future
success will also depend in large part upon its continued ability to attract and
retain other highly qualified scientific and management personnel. The Company
faces competition for personnel from other companies, academic institutions,
government entities and other organizations. There can be no assurance that NPS
will be successful in hiring or retaining personnel. In addition, the Company's
anticipated growth and expansion into areas and activities requiring additional
expertise, such as clinical trials, government approvals, production and
marketing and general pharmaceutical company management are expected to place
increased demands on the Company's resources. These demands are expected to
require the addition of new management, research and development and
administrative personnel, and the development of additional expertise by
existing management personnel. The failure to acquire such services or to
develop such expertise could materially adversely affect prospects for the
Company's success. Certain of these anticipated future needs are expected to be
met through the agreements with the Licensees and potential additional corporate
collaborations, but there can be no assurance that any services provided by the
Licensees or other potential corporate collaborators will be sufficient to meet
the Company's personnel or management needs.
RISK OF PRODUCT LIABILITY; USE OF HAZARDOUS MATERIALS. The testing,
marketing and sale of human therapeutic products entail significant risks. If
the Company succeeds in developing products under its product development
programs, use of such products in clinical trials, and the sale of such products
following regulatory approval may expose the Company to liability claims
allegedly resulting from use of such products. These claims might be made
directly by consumers or others. NPS currently has an aggregate of $5 million
insurance for the clinical trials of Norcalcin. There can be no assurance that
NPS will be able to maintain such insurance or obtain similar insurance for any
of its future clinical trials or that coverage will be in sufficient amount to
protect against damages for liability that could have a material adverse effect
on NPS. There can also be no assurance that NPS will be able to obtain or
maintain product liability insurance in the future on acceptable terms or in
sufficient amounts to protect the Company against damages for liability that
could have a material adverse effect on the Company. The agreements with the
Licensees each provide for certain indemnification against such claims, but
there can be no assurance that any claim arising from products sold by a
collaborative partner or licensee would not also include claims directly against
NPS or that any such claim would be indemnifiable under such agreement.
In addition, the Company's research and development activities involve the
controlled use of hazardous materials, radioactive compounds and other
chemicals. The Company is required to comply with complex local, state and
federal regulations involving the use, storage and handling of these materials
and may incur certain costs in complying therewith. Although the Company
believes that its safety procedures for handling and disposing of such materials
comply with the standards prescribed by local, state and federal regulations,
the possibility of unintended non-compliance with such regulations or the risk
of accidental contamination or injury from these materials cannot be completely
eliminated. In the event of such an accident, the Company could be held liable
for any damages that result, and any such liability could exceed the resources
of the Company. The Company may incur substantial costs to comply with
environmental regulations.
The Company contracts with third parties to remove biohazardous waste
generated by the Company. The disposal of such waste, third-party waste disposal
companies contracted by the Company, and their disposal sites are regulated by
the Environmental Protection Agency ("EPA"). The EPA has initiated cleanup of a
site where a waste disposal firm contracted by the Company disposed of certain
waste generated by the Company. The Company has not accrued any liability with
respect to this matter.
Although the Company was a small contributor to the site and the Company
believes that there are a
10
<PAGE>
number of other financially responsible contributors, there can be no assurance
that the Company will not be held liable for all or a portion of the cleanup
cost or any other costs or damages associated with this disposal site.
VOLATILE STOCK PRICE. The market price of the shares of Common Stock, like
that of the common stock of many other biotechnology and biopharmaceutical
companies, has been and is likely to continue to be highly volatile. Factors
such as fluctuations in the Company's operating results, announcements of
technological innovations or new commercial products by the Company or its
competitors, progress with clinical trials, governmental regulation, changes in
reimbursement policies, developments in patent or other proprietary rights,
developments in the Company's relationships with current or future collaborative
partners, public concern as to the safety and efficacy of drugs developed by the
Company and its competitors, and general market conditions for biotechnology or
pharmaceutical stocks could have a significant adverse effect on the future
price of Common Stock.
ANTITAKEOVER EFFECTS OF CERTAIN CHARTER AND BYLAW PROVISIONS. Certain
provisions of the Company's Certificate of Incorporation and Bylaws and Section
203 of the Delaware General Corporation Law could also discourage potential
acquisition proposals and could delay or prevent a change in control of the
Company. Such provisions could diminish the opportunities for a stockholder to
participate in tender offers, including tender offers at a price above the then
current market value of the Common Stock. Such provisions may also inhibit
fluctuations in the market price of the Common Stock that could result from
takeover attempts. In addition, the Board of Directors, without further
stockholder approval, may issue Preferred Stock that could have the effect of
delaying or preventing a change in control of the Company as well as adversely
affecting the voting power of the holders of Common Stock, including the loss of
voting control to others.
ABSENCE OF DIVIDENDS. The Company has never paid any cash dividends and
does not anticipate paying cash dividends in the foreseeable future.
11
<PAGE>
USE OF PROCEEDS
The Company will not receive any part of the proceeds from the sale of
shares by the Selling Stockholder.
SELLING STOCKHOLDER
As of May 20, 1996, the Selling Stockholder beneficially owned 8.59% of the
outstanding common stock of the Company. Set forth below is the name of the
Selling Stockholder, the number of shares of common stock owned by the Selling
Stockholder as of the effective date of this Prospectus, the number of shares of
common stock that may be offered by the Selling Stockholder pursuant to this
Prospectus, and the number of shares of common stock and the percentage of the
outstanding shares of common stock to be owned by the Selling Stockholder upon
completion of the offering if all the shares owned by the Selling Stockholder
are sold. Any or all of the shares listed below may be offered for sale by the
Selling Stockholder from time to time. The Company has entered into a
Development and License Agreement with the Selling Stockholder.
<TABLE>
<CAPTION>
PERCENT OF COMMON
SHARES OWNED STOCK OWNED PERCENT OF COMMON
SELLING PRIOR TO SHARES OFFERED SHARES OWNED AFTER BEFORE STOCK OWNED AFTER
STOCKHOLDER OFFERING HEREBY OFFERING (1) OFFERING (2) OFFERING (1)
- -------------- -------------- -------------- --------------------- ----------------- ---------------------
<S> <C> <C> <C> <C> <C>
Amgen Inc. 1,000,000 1,000,000 0 8.59% 0%
</TABLE>
- --------------
(1) Assumes no other disposition or other acquisition of common stock and all
shares included herein are sold.
(2) As of May 20, 1996.
PLAN OF DISTRIBUTION
The Company will not receive any proceeds from the sale of shares owned by
the Selling Stockholder. It is anticipated that the Selling Stockholder will
offer the shares in the manner set forth on the cover page of this Prospectus,
from time to time, directly or through broker/dealers or underwriters who act
solely as agents or maybe acquired the shares as principals, in all cases as
designated by the Selling Stockholder. Sales may be made on the Nasdaq Stock
Market or such other national securities exchange or automated inter-dealer
quotation systems on what shares of common stock are then listed, to negotiate a
transaction or otherwise at prices and at terms then prevailing or at prices
related to the then-current market price or in negotiated transactions. The
shares may be sold pursuant to one or more of the following:
(a) ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
(b) purchasers by an underwriter, a broker or a dealer as principal and
resale by such underwriter, broker or dealer for its account pursuant to this
Prospectus;
(c) a block trade in which the broker or dealer so engaged will attempt to
sell the shares as agent, but may position and resale a portion of the block as
principal to facilitate the transaction;
(d) an exchange distribution in accordance with the rules of such exchange;
and
(e) through the writing of options on the shares.
If necessary, a supplement prospectus that describes the method of sale in
greater detail may be filed by the Company with the Commission pursuant to Rule
424(c) under the 1933 Act under certain circumstances. In effecting sales,
underwriters, brokers or dealers engaged by the Selling Stockholder of the
shares may arrange for other underwriters, brokers or dealers to participate.
Underwriters, brokers or dealers will receive commissions, concessions or
discounts from the Selling Stockholder, the amount to
12
<PAGE>
be negotiated prior to the sale. In addition, any shares covered by this
Prospectus that qualify for sale pursuant to Rule 144 under the 1933 Act may be
sold under Rule 144 rather than pursuant to this Prospectus.
The Company will bear all expenses (including the reasonable fees and
expenses of one legal counsel for the Selling Stockholder incurred after the
date of filing of the Form S-3 Registration Statement) in connection with the
registration and sale of the shares, other than commissions, concessions or
discounts to underwriters, brokers and dealers, and fees and expenses of other
advisors to the Selling Stockholder.
This Registration Statement is filed pursuant to the terms of the Stock
Purchase Agreement, dated March 18, 1996, between the Company and the Selling
Stockholder under which the Company has agreed to file a "shelf" registration
statement pursuant to Rule 415 under the Securities Act covering all the shares
of common stock issued to the Selling Stockholder and to maintain the
effectiveness of the Form S-3 Registration Statement for no less than three
years from the date of execution of the Stock Purchase Agreement.
To comply with the securities laws of certain jurisdictions, the securities
offered hereby may be offered or sold in such jurisdiction only through
registered or licensed brokers or dealers. In addition, in certain
jurisdictions, the securities offered hereby may not be offered or sold unless
they have been registered or qualified for sale in such jurisdictions or an
exemption from registration or qualification is available and is complied with.
LEGAL MATTERS
The legality of the shares offered hereby has been passed upon by Pillsbury
Madison & Sutro LLP, Menlo Park, California, counsel to the Company.
EXPERTS
The financial statements of the Company, a development stage company, as of
December 31, 1994 and 1995, and for each of the years in the three-year period
ending December 31, 1995, and for the period from October 22, 1986 (inception)
through December 31, 1995, is incorporated by reference herein and elsewhere in
the Registration Statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said accounting firm as experts in accounting and
auditing.
13
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee........................ $ 4,741
Nasdaq Stock Market Listing Fee............................................ $ 17,500
Accountant's Fees and Expenses............................................. $ 5,000
Legal Fees and Expenses.................................................... $ 5,000
Blue Sky Fees and Expenses................................................. $ 1,000
Miscellaneous Expenses..................................................... $ 59
---------
Total...................................................................... $ 33,600
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act of 1933, as amended (the "Securities Act"). The Registrant's Bylaws also
provide that the Registrant will indemnify its directors and executive officers
and may indemnify its other officers, employees and other agents to the fullest
extent not prohibited by Delaware law.
The Registrant's Certificate of Incorporation provides for the elimination
of liability for monetary damages for breach of the directors' fiduciary duty of
care to the Registrant and its stockholders. 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
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
The Registrant has entered into agreements with its directors and executive
officers that require the Registrant to indemnify such persons 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
Registrant 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 interests of the Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation (1)
4.2 Amended and Restated Bylaws (1)
5.1 Opinion of Pillsbury Madison & Sutro LLP
10.17 Stock Purchase Agreement between NPS Pharmaceuticals, Inc. and Amgen Inc. dated March 18, 1996 (2)
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1)
24.1 Power of Attorney (3)
</TABLE>
- --------------
(1) Incorporated herein by reference to the Registration Statement on Form S-1,
filed January 21, 1994, or amendments thereto (file number 33-74318).
(2) Incorporated herein by reference to Amendment No. 1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995.
(3) Previously filed.
ITEM 17. UNDERTAKINGS.
A. RULE 415 OFFERING.
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:
(i) to include any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "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;
(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 Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference 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 that remain unsold at the termination
of the offering.
B. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE.
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
II-2
<PAGE>
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. INDEMNIFICATION OF OFFICERS, DIRECTORS AND CONTROLLING PERSONS.
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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Salt Lake,
State of Utah, on May 31, 1996.
NPS PHARMACEUTICALS, INC.
By /s/ HUNTER JACKSON
------------------------------------
Hunter Jackson, Ph.D.
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ---------------------------------------- ---------------
<C> <S> <C>
/s/ HUNTER JACKSON President, Chief Executive Officer and
------------------------------------------- Chairman of the Board (Principal May 31, 1996
Hunter Jackson, Ph.D. Executive Officer)
/s/ ROBERT K. MERRELL* Vice President, Finance, Chief Financial
------------------------------------------- Officer and Treasurer (Principal May 31, 1996
Robert K. Merrell Financial and Accounting Officer)
/s/ JAMES U. JENSEN Vice President, Corporate Development
------------------------------------------- and Legal Affairs, Secretary and May 31, 1996
James U. Jensen Director
/s/ SANTO J. COSTA*
------------------------------------------- Director May 31, 1996
Santo J. Costa
/s/ JAMES G. GRONINGER*
------------------------------------------- Director May 31, 1996
James G. Groninger
/s/ DONALD E. KUHLA*
------------------------------------------- Director May 31, 1996
Donald E. Kuhla, Ph.D.
/s/ THOMAS N. PARKS*
------------------------------------------- Director May 31, 1996
Thomas N. Parks, Ph.D.
/s/ DOUG REED*
------------------------------------------- Director May 31, 1996
Doug Reed, M.D.
/s/ TIMOTHY J. RINK*
------------------------------------------- Director May 31, 1996
Timothy J. Rink, M.D., Sc.D.
/s/ JESSE L. TREU*
------------------------------------------- Director May 31, 1996
Jesse L. Treu, Ph.D.
*By /s/ JAMES U. JENSEN
--------------------------------------
James U. Jensen
ATTORNEY-IN-FACT
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ------------- -------------------------------------------------------------------------------------------- ---------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation (1).......................................
4.2 Amended and Restated Bylaws (1).............................................................
5.1 Opinion of Pillsbury Madison & Sutro LLP....................................................
10.17 Stock Purchase Agreement between NPS Pharmaceuticals, Inc. and Amgen Inc. dated March 18,
1996 (2)....................................................................................
23.1 Consent of KPMG Peat Marwick LLP............................................................
23.2 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1)..........................
24.1 Power of Attorney (3).......................................................................
</TABLE>
- --------------
(1) Incorporated herein by reference to the Registration Statement on Form S-1,
filed January 21, 1994, or amendments thereto (file number 33-74318).
(2) Incorporated herein by reference to the Amendment No. 1 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995.
(3) Previously filed.
<PAGE>
Exhibit 5.1
[Letterhead]
LAW OFFICES OF
PILLSBURY MADISON & SUTRO LLP
POST OFFICE BOX 7880
SAN FRANCISCO, CALIFORNIA 94120
TELEPHONE (415) 983-1000
FACSIMILE (415) 983-1200
May 28, 1996
NPS Pharmaceuticals, Inc.
420 Chipeta Way
Salt Lake City, Utah 84108-1256
Re: Registration Statement on Form S-3 (File No. 333-02564)
Ladies and Gentlemen:
We are acting as counsel for NPS Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 1,000,000 shares of Common Stock, par
value $.001 per share (the "Common Stock"), of the Company, previously
issued by the Company to a certain current stockholder (the "Selling
Stockholder"). The Common Stock will be offered and sold by the Selling
Stockholder. In this regard we have participated in the preparation of a
Registration Statement on Form S-3 (File No. 333-02564) relating to such
shares of Common Stock. Such Registration Statement, as amended, is herein
referred to as the "Registration Statement."
We are of the opinion that the shares of Common Stock to be offered and
sold by the Selling Stockholder have been duly authorized and are legally
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Registration Statement and in the Prospectus included therein.
Very truly yours,
/s/ Pillsbury Madison & Sutro LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
NPS Pharmaceuticals, Inc.:
We consent to incorporation by reference in this Registration Statement on
Form S-3 of our report dated February 7, 1996, except as to note 11 which is as
of March 18, 1996, relating to the balance sheets of NPS Pharmaceuticals, Inc.
as of December 31, 1995 and 1994, and the related statements of operations,
stockholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1995, and for the period from October 22, 1986
(inception) through December 31, 1995, which report appears in the December 31,
1995, annual report on Form 10-K of NPS Pharmaceuticals, Inc.
KPMG PEAT MARWICK LLP
Salt Lake City, Utah
May 31, 1996
