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As filed with the Securities and Exchange Commission on July 19, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under the Securities Act of 1933
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NPS PHARMACEUTICALS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 420 Chipeta Way, 87-0439579
(State or other jurisdiction Salt Lake City, Utah 84108-1256 (I.R.S. Employer Identification
of incorporation or organization) (801) 583-4939 No.)
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(Address and telephone number of principal executive offices)
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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, and telephone number of agent for service of process)
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Approximate date of commencement of proposed sale to the public: As soon
as practicable 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, please 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 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. [_]
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Offering Amount of
Title of Securities to be Registered Registered Per Share (1) Price (1) Registration Fee
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Common Stock (par value $ .001) 215,867 $32.1875 $6,948,219.06 $1,834.33
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c). The price per share and aggregate
offering price are based upon the average of the high and low prices of the
Registrant's Common Stock on July 17, 2000 as reported on the Nasdaq Stock
Market.
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 SEC, acting pursuant to said Section 8(a), may
determine.
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SUBJECT TO COMPLETION DATED JULY 19, 2000
PROSPECTUS
215,867 Shares
[NPS PHARMACEUTICALS LOGO HERE]
Common Stock
The 215,867 shares of common stock offered by this prospectus will be
issued to certain holders of exchangeable shares of our wholly owned Canadian
subsidiary, NPS Allelix Inc. The exchangeable shares were acquired upon the
exercise of warrants to buy common stock of NPS Allelix Corp. The exchangeable
shares may be exchanged for shares of our common stock at any time at a one-for-
one ratio.
Our common stock is traded on the Nasdaq Stock Market under the symbol
NPSP. On July 18, 2000 the last reported sale price of our common stock on
Nasdaq was $34.625 per share.
Before buying any shares of our common stock you should read the discussion
of material risks of investing in our common stock under the heading "Risk
Factors" beginning on page 4.
_______________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
_______________
The date of this Prospectus is ____________, 2000
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TABLE OF CONTENTS
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Page
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NPS Pharmaceuticals....................................... 4
Risk Factors.............................................. 4
Forward-Looking Statements................................ 9
Use of Proceeds........................................... 9
Plan of Distribution...................................... 10
Legal Matters............................................. 10
Experts................................................... 10
Where You Can Find More Information....................... 10
Information Not Required in Prospectus.................... 11
Signatures................................................ 13
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NPS PHARMACEUTICALS
NPS Pharmaceuticals, Inc. is a biopharmaceutical company with headquarters
in Salt Lake City, Utah, and additional operations in Toronto (Mississauga),
Ontario, Canada. We conduct our operations in Canada under the name "NPS Allelix
Corp." We engage in drug discovery and development of small, orally active drug
products and recombinant peptides that are intended to address a variety of
important diseases. We use a blend of partnered initiatives and internal efforts
to fund and pursue our discovery, development and marketing efforts.
Our most advanced programs focus on the development of human
pharmaceuticals for the treatment of hyperparathyroidism and osteoporosis. We
also have ongoing development efforts for drugs to treat gastrointestinal
disorders and disorders of the central nervous system, including neuroprotection
in stroke and head trauma as well as epilepsy and bipolar disorder. In addition,
we are pursuing several discovery programs that are extensions of our research
on calcium receptors and ion channels, and we periodically consider other
product candidates in later stages of development for potential in-license or
collaboration opportunities.
Our corporate headquarters is located at 420 Chipeta Way, Salt Lake City,
Utah 84108, where the telephone number is (801) 583-4939.
RISK FACTORS
You should carefully consider the following risk factors and warnings
before making an investment decision. Additional risks that we do not yet know
of or that we currently think are immaterial may also impair our business
operations. If any of the events or circumstances described in the following
risks actually occur, our business, financial condition, or results of
operations could be materially adversely affected. In such case, the trading
price of our common stock could decline, and you may lose all or part of your
investment.
We have a history of operating losses and may never reach profitability.
We have not been profitable since our inception in 1986. As of March 31, 2000,
we had an accumulated deficit of approximately $89.8 million. We expect to
continue to incur losses for the next several years. We may never realize
significant revenues or be profitable. Factors that will influence our
profitability include:
. the success of our product candidates placed with Amgen, Kirin,
SmithKline Beecham, Janssen, Abbott and Eli Lilly;
. the development and commercialization of additional products,
especially our most advanced non-partnered product candidates ALX1-11
and ALX-0600, which relate to the treatment of osteoporosis and short
bowel syndrome, respectively;
. our ability to secure corporate partners to share the expense of
development of our non-partnered programs;
. the timing and difficulty of obtaining regulatory approvals; and
. competition.
If we fail to obtain additional financing to fund our operations, we will
be unable to complete development of some or all of our product candidates or
commercialization of a product. Most of our funding has come from research and
development fees and the sale of stock. We have not generated any material
revenues from product sales. We have expended and will continue to expend
significant sums to complete development of our products. Our current resources
are inadequate to finance all of the work planned and needed to complete
development of our current programs through to commercialization. We have
announced our intention to devote considerable cash resources to clinical
development. If we exceed our cost estimates, or incur costs earlier than
expected, we may have to reduce costs, delay development or seek additional
financing through collaborative relationships or public and private financings.
We may not be able to obtain additional financing on favorable terms, if at all.
If we do not obtain additional funding we may have to delay development and
commercialization of some of our programs, and we may be forced to reduce or
eliminate other programs or to relinquish rights to technology, product
candidates or products.
If we fail to maintain our existing collaborative relationships or if our
partners do not apply adequate resources to our collaborations, we may have to
reduce our rate of product development, we may not be able to
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achieve profitability, and we may have to obtain other sources of revenue to
complete development of our products. Our corporate partners have full control
over the development and commercialization activities in their territories for
their respective programs. Because we have granted exclusive development,
commercialization, and marketing rights to these partners, the success of the
programs depends upon their efforts. If our partners do not satisfactorily
perform under the agreements, or if our partners terminate these agreements
before they identify lead product candidates or develop any related product
candidates, we might not have the financial resources necessary to continue
development of those programs. As a result, we would have to seek other sources
of revenue which may not be available. If we are not able to continue to develop
these programs, we might not become profitable. In addition, much of the revenue
that we may receive under these partnerships depends upon our partners'
successful development and commercialization of the products. Our partners may
develop alternative technologies or products outside of their partnerships with
us, and the alternative technologies or products may be used to develop
treatments for the diseases targeted by our partnerships.
If we do not find corporate partners for new product candidates, we may
have to reduce our rate of product development or increase our capital
expenditures. Our strategy for the development, testing, manufacturing and
commercialization of our products requires us to enter into various
collaborations with partners, licensors, licensees, and others in order to
conserve financial resources. We may not be able to negotiate further
collaborative arrangements on acceptable terms, if at all. If we are not able to
establish additional collaborative arrangements, we will either have to delay
further development of some of our programs or increase our capital expenditures
and undertake the development activities at our own expense. We may encounter
significant delays in commercializing our products or find that the development,
manufacture or sale of our products is hindered by the absence of collaborative
agreements.
If we are not successful in acquiring rights to external technologies,
programs, and product candidates, we may not be able to maintain or expand our
product portfolio. In order to reduce our dependence on the success of the few
product candidates we now have, we are actively evaluating product acquisition
opportunities to establish and maintain an appropriate portfolio of product
candidates. We seek optimum diversity of materials, timetables, development
costs, applicability to current medical needs, and other select criteria. We may
be unsuccessful in our efforts to identify, acquire and exploit third-party
technologies or product opportunities. If we are unsuccessful in our efforts, we
will remain dependent on the success of our relatively few product candidates.
If we fail to successfully integrate the operations of NPS and Allelix
Biopharmaceuticals Inc. ("Allelix"), we may waste financial resources and we may
be forced to stop or delay development and commercialization of our products. As
a result of the acquisition of Allelix in December 1999, we must integrate two
companies that previously operated independently. We will have to coordinate
each company's efforts in research and development, business development,
intellectual property, finance, and administration to successfully integrate the
two companies. Integration will require significant efforts from each of us. We
may not be able to integrate the respective operations of NPS and Allelix
without encountering difficulties or experiencing loss of personnel, and we may
not realize the benefits we expect from the integration. If there are
difficulties, management will have to divert its attention which, when combined
with any difficulties we encounter in the transition process, including the
interruption of, or a loss of momentum in, Allelix's or our activities and
problems associated with employee uncertainty and the potential loss of key
personnel, could cause us to delay development and commercialization of our
products and result in our inefficient use of limited corporate resources.
Our acquisition of Allelix will result in integration costs and transaction
expenses that could reduce our profitability and cause the price of our stock to
decline. If the benefits of the acquisition do not exceed the costs associated
with it, including the dilution to our stockholders resulting from the issuance
of shares of NPS common stock in connection with the acquisition of Allelix, our
financial results, including earnings per share, could decline. We expect to
incur significant costs associated with integrating the operations of NPS and
Allelix. Integration costs may include:
. elimination of duplicate operations;
. consolidation of certain administration, support, and research and
development activities; and
. increased expenditures for human trials of ALX1-11 and ALX-0600.
Our actual costs of integration may substantially exceed our preliminary
estimates. In addition, we may experience unanticipated expenses associated with
integrating the two companies. We incurred a charge of $17.76 million in the
fourth quarter of 1999 to reflect our write-off of Allelix's in-process research
and development efforts. This write-off was not accompanied by outward cash
flow, but may be seen by investors as increasing our net loss.
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We may also incur additional charges in subsequent quarters to reflect costs
associated with the acquisition. As a result, our future earnings per share may
decrease.
We are subject to extensive government regulation which may cause us to
cancel or delay the introduction of our products to market. Our research and
development activities and the investigation, manufacture, distribution, and
marketing of drug products are subject to extensive regulation by governmental
authorities in the United States and other countries. Prior to marketing in the
United States, a drug must undergo rigorous testing and an extensive regulatory
approval process implemented by the FDA under federal law, including the Federal
Food, Drug, and Cosmetic Act. In order to receive approval, we must, among other
things, satisfy the FDA that the product is both safe and effective. Typically,
the approval process takes several years depending upon the type, complexity and
novelty of the product and the nature of the disease or other problem to be
treated and requires an expenditure of substantial resources. Drug testing is
subject to complex FDA rules and regulations, including the requirement to
conduct human testing on a large number of test subjects. We or the FDA may
suspend human trials at any time if either believes that subjects are being
exposed to unacceptable health risks.
Before we receive FDA approval to market a product, we may have to
demonstrate that the product represents an improved form of treatment when
compared to existing therapies. Data obtained from testing are susceptible to
varying interpretations that could delay, limit, or prevent regulatory approvals
of our products. In addition, we may encounter delays or rejections from
additional government regulation as a result of future legislation,
administrative action, or changes in FDA policy during the period of product
development, human trials, and FDA regulatory review. If we receive regulatory
approval of a product, the approval will be limited to those disease states and
conditions for which the product is useful, as demonstrated through clinical
studies. Furthermore, FDA approval may subject us to ongoing requirements for
post-marketing studies. Even if we obtain FDA approval, a marketed product, its
manufacturer, and its manufacturing facilities are subject to continual or
periodic review. We may discover previously unknown problems with a product,
manufacturer, or facility that may result in restrictions on that product or
manufacturer, including costly recalls or withdrawal of the product from the
market. Compounds developed by us alone or in conjunction with others may not
prove to be safe or effective in human trials and may not meet all of the
applicable regulatory requirements needed for marketing approval.
Outside the United States, our 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. The foreign regulatory approval process includes all of the risks
associated with FDA approval discussed above.
As a result of intense competition and technological change in the
pharmaceutical industry, the marketplace may not accept our products and we may
not be able to compete against other companies in our industry and achieve
profitability. The pharmaceutical industry is intensely competitive. Existing
and future products, therapies, and technological approaches will compete
directly with our products. Competing products may provide greater therapeutic
benefits for a specific problem or may offer comparable performance at a lower
cost. If doctors and patients do not use our products, we may not become
profitable.
We compete with fully integrated pharmaceutical companies, smaller
companies that are collaborating with larger pharmaceutical companies, academic
institutions, government agencies and other public and private research
organizations. Many of our competitors have drug products already approved or in
development and operate large, well-funded research and development programs in
these fields. Our competitors may develop safer or more effective drugs and
achieve faster or broader regulatory approval. In addition, many of our
competitors have wider availability of supply, more effective marketing and
sales and superior intellectual property positions. Any products that we develop
may become obsolete before we recover any expenses we incurred in connection
with the development of these products. As a result, we may never achieve
profitability.
If we fail to protect our intellectual property or if we infringe the
intellectual property rights of others, we may not be able to compete
effectively and we may not achieve profitability. Our ability to achieve
profitability depends, in part, on our ability to obtain and protect patents,
maintain trade secrets and operate without infringing the intellectual property
rights of others. Our competitors may challenge, invalidate, or circumvent our
patents or patent applications. These patents may also fail to provide us with
meaningful competitive advantages.
Intellectual property rights are uncertain and involve complex legal and
factual questions, particularly with respect to biotechnology and pharmaceutical
patents. Generally, patent applications in the United States are maintained in
secrecy until patents issue, and publication of discoveries in the scientific or
patent literature often
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lags behind actual discoveries. Accordingly, we cannot be certain that the
inventors named in our patent applications were the first to invent, or that we
were the first to pursue patent coverage for those inventions. We may
unknowingly infringe the intellectual property rights of others and may be
liable for that infringement, which could result in significant liability for
us. Any infringement could force us to either seek a license to intellectual
property rights of others or alter our products or processes so that they no
longer infringe the intellectual property of others. A license could be very
expensive for us to obtain, or we may not be able to obtain a license at all.
Similarly, it may be costly or impractical for us to change our products or
processes to avoid infringing the rights of others. If we become involved in a
dispute regarding intellectual property, whether ours or that of another
company, we may have to participate in interference proceedings declared by the
U.S. Patent and Trademark Office to determine who had the claimed rights first.
We may also have to seek a judicial determination concerning the rights in
question. Judicial proceedings may be costly and time consuming for us, even if
we eventually prevail. If we do not prevail, we might have to pay significant
damages, obtain a license or stop making a certain product.
We also rely on trade secrets, know-how, and confidentiality provisions in
agreements with collaborative partners, employees, and consultants to protect
our intellectual property. However, other parties may not comply with the terms
of their agreements with us and we might not be able to adequately enforce our
rights against these people, or obtain adequate compensation in respect of the
damages caused by their unauthorized disclosure.
Because we do not have internal manufacturing facilities and we rely on
third party manufacturers, we are not able to control our rate of product
development, which may delay our receipt of revenues and profitability. We do
not have any internal manufacturing capacity, and we rely on third-party
manufacturers for the manufacture of all of our products used in clinical
trials. If we are unable to contract for a sufficient supply of our products on
acceptable terms, or if we encounter delays and difficulties in our
relationships with manufacturers, we would have to delay our product testing
schedule. A delay would set back our timetable for submission of products for
regulatory approval, market introduction, and subsequent sales, and would
postpone revenues and profitability. Also, our contract manufacturers may be
unable to manufacture any products we develop in commercial quantities on a cost
effective basis. We will need to expand our existing relationships or establish
new relationships with additional third-party manufacturers for products that we
successfully develop in the future. We may be unable to establish or maintain
relationships with third-party manufacturers on acceptable terms. Our dependence
upon third parties may reduce our profit margins and delay our ability to
develop and commercialize products on a timely and competitive basis.
Furthermore, third-party manufacturers may encounter manufacturing or quality
control problems in connection with the manufacture of our products and they may
be unable to maintain the necessary governmental licenses and approvals to
continue manufacturing our products.
Because we do not have sales, marketing, and distribution capabilities, we
may not be able to market and sell our products and generate revenues. We do not
have any sales, marketing, or distribution capabilities. We will have to develop
a sales force or rely on third parties to perform these functions for any
products we develop. In order to market any products directly, we would have to
develop a marketing and sales force with technical expertise and supporting
distribution capability. We might not be able to establish in-house sales and
distribution capabilities or relationships with third parties to accomplish
these tasks, which would limit our ability to generate revenues.
Because of the uncertainty of pharmaceutical pricing, reimbursement, and
healthcare reform measures, we may be unable to sell our products profitably.
The availability of reimbursement by governmental and other third-party payors
affects the market for any pharmaceutical product. These third-party payors
continually attempt to contain or reduce the costs of healthcare. There have
been a number of legislative and regulatory proposals to change the healthcare
system, and further proposals are likely. Under current guidelines, Medicare
does not reimburse patients for self-administered drugs. Medicare's policy may
decrease the market for our products designed to treat patients with age-related
disorders, such as hyperparathyroidism and osteoporosis. In addition, third-
party payors are increasingly challenging the price and cost-effectiveness of
medical products and services. Significant uncertainty exists with respect to
the reimbursement status of newly approved health care products. We might not be
able to sell our products profitably if reimbursement is unavailable or limited
in scope.
If we fail to attract and retain key employees and consultants, we may have
to delay development and commercialization of our products. We are highly
dependent on the principal members of our scientific and management staff. If we
lose any of these persons, our ability to develop products and become profitable
could suffer. Nonetheless, we do not have long-term employment contracts. Our
future success will also depend in large part upon our continued ability to
attract and retain highly qualified scientific and management personnel. We face
competition for personnel from other companies, academic institutions,
government entities, and other
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organizations. Our 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, will
place increased demands on our personnel resources. These demands may require us
to add new management and research, development, and administrative personnel.
Our existing management and personnel may have to develop additional expertise.
If we fail to acquire additional management or personnel with the additional
expertise, or if our existing management fails to develop such expertise, we may
not be able to obtain required approval for products or become profitable. Our
agreements with our partners and any additional corporate collaborations we may
enter into may alleviate some of our need to hire additional personnel or
develop further expertise. Nevertheless, we may find that services provided by
them are insufficient to meet our personnel or management needs.
If product liability claims are brought against us, we may incur
substantial liabilities which could reduce our financial resources. The testing
and commercial use of pharmaceutical products entails significant exposure to
product liability claims. If we succeed in developing products, the use of our
products in clinical trials and the sale of our products following regulatory
approval may expose us to product liability claims. These claims might be made
directly by consumers or others. We have obtained limited product liability
insurance coverage for our clinical trials on humans. This coverage may be
insufficient to protect us against product liability damages. We might not be
able to obtain or maintain product liability insurance in the future on
acceptable terms or in sufficient amounts to protect us against product
liability damages. We are entitled to indemnification under agreements with our
partners and licensees against damage claims, but claims arising from products
sold by a collaborative partner or licensee may also include claims directly
against us and may not be indemnifiable under the agreement. If we are required
to pay a product liability claim, we may not have sufficient financial resources
to complete development or commercialization of any of our products.
Our operations involve hazardous materials and we must comply with
environmental laws and regulations, which can be expensive and restrict how we
do business. Our research and development activities involve the controlled use
of hazardous materials, radioactive compounds, and other potentially dangerous
chemicals and biological agents. Although we believe that our safety procedures
for these materials comply with governmental standards, we cannot eliminate the
risk of accidental contamination or injury from these materials. If an accident
or environmental discharge occurs, we could be held liable for any resulting
damages, which could exceed our financial resources. We disposed radioactive
waste at a site in Denver, Colorado, which is currently in remediation. Although
we were a small contributor to the site and there are a number of other
financially responsible contributors, we may be held liable for all or a portion
of the clean-up cost or any other costs or damages associated with this disposal
site.
Our stock price has been and may continue to be volatile and your
investment could suffer a decline in value. You should consider an investment in
our stock as risky and invest only if you can withstand a significant loss and
wide fluctuations in market value of your investment. We receive little
attention by securities analysts and frequently experience an imbalance between
supply and demand for our stock. The market price of our common stock has been
highly volatile and is likely to continue to be volatile. Factors affecting our
stock price include:
. fluctuations in our operating results;
. announcements of technological innovations or new commercial products
by us or our competitors;
. published reports by securities analysts;
. progress with clinical trials;
. governmental regulation;
. changes in reimbursement policies;
. developments in patent or other intellectual property rights;
. publicity concerning the discovery and development activities by our
licensees;
. public concern as to the safety and efficacy of drugs developed by us
and our competitors; and
. general market conditions.
When we issue shares of our common stock under employee stock incentive
plans or in connection with public or private financings, we will dilute the
stockholdings of current stockholders and reduce future earnings per share. We
maintain stock incentive plans through which employees, directors, and
consultants can acquire shares of our common stock through the exercise of stock
options, grants, and purchases. Shares we issue under these plans or in
connection with public or private financings may dilute the holdings of current
stockholders and reduce earnings per share in the future.
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Antitakeover provisions in our articles, bylaws, shareholders rights plan
and under Delaware Law may discourage someone from acquiring us, and may prevent
a stockholder from receiving a favorable price for his or her shares. Provisions
of our certificate of incorporation and bylaws and Section 203 of the Delaware
General Corporation Law could discourage potential acquisition proposals and
could delay or prevent a change in control of our company. In addition, our
Board of Directors, without further stockholder approval, may issue preferred
stock that could delay or prevent a change in control of our company as well as
reduce the voting power of the holders of common stock, even to the extent of
losing control to others. In addition, our Board of Directors has adopted a
shareholder rights plan, commonly known as a "poison pill," that may delay or
prevent a change in control. These provisions could diminish the opportunities
for a stockholder to participate in tender offers, including those at a price
above the then-current market value of our common stock. In addition, these
provisions may also inhibit fluctuations in the market price of our common stock
that could result from takeover attempts.
We have never paid cash dividends on our common stock. We intend to retain
any future earnings to finance the growth and development of our business, and
we do not plan to pay cash dividends in the foreseeable future. As a result,
stockholders should not expect to receive cash from holding our common stock.
Unexpected Year 2000 related problems could still arise and, if
significant, could delay our development of products and reduce our available
financial resources. During 1999, we planned, inventoried, and evaluated our
systems, and remediated, replaced, and tested such remediation and replacements
as necessary. We used internal information systems technology personnel and
other personnel. We have not experienced any year 2000 related issues. However,
we recognize that there may be residual effects related to year 2000 issues. We
do not have any way to assess the costs related to remediation of such residual
issues. We may in the future identify a significant internal or external year
2000 residual issue which, if not remedied in a timely manner, could require us
to spend significant resources.
FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements concerning our
operations, economic performance and financial condition, including, in
particular, our business strategy and means to implement the strategy, our
goals, the markets we intend to compete in and the likelihood of our success in
developing and expanding our business. These statements are based on a number of
assumptions and estimates which are inherently subject to significant risks and
uncertainties, many of which are beyond our control and reflect future business
conditions which are subject to change. A variety of factors, some of which are
described under "Risk Factors" in this prospectus, could cause actual results to
differ materially from those anticipated and reflected in our forward-looking
statements.
Consequently, all of the forward-looking statements made or incorporated by
reference in this prospectus are qualified by these cautionary statements, and
you are cautioned not to place undue reliance on these forward-looking
statements, which reflect management's analysis, judgment, belief or expectation
only as of the date of this prospectus. We undertake no obligation to publicly
revise these forward-looking statements to reflect events or circumstances that
arise after the date of this prospectus or to publicly release the results of
any revisions to the forward-looking statements that may be made to reflect
events or circumstances after the date of this prospectus. In addition to the
disclosure contained in this prospectus, you should carefully review any
disclosure of risks and uncertainties contained in other documents we file or
have filed from time to time with the Securities and Exchange Commission
according to the Securities Exchange Act of 1934.
USE OF PROCEEDS
Because the common stock will be issued upon exchange of the exchangeable
shares of our subsidiary NPS Allelix Inc., none of which are held by us, we will
receive no proceeds upon the sale of the common stock.
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PLAN OF DISTRIBUTION
The common stock offered in this Registration Statement will be issued in
exchange for exchangeable shares issued by our subsidiary NPS Allelix Inc. in
connection with our acquisition of Allelix Biopharmaceuticals. No broker,
dealer, or underwriter has been engaged in connection with this offering.
LEGAL MATTERS
James U. Jensen, our Vice President, Corporate Development & Legal Affairs,
will pass on the validity of our common stock being registered.
EXPERTS
Our financial statements as of December 31, 1999 and 1998, and for each of
the years in the three-year period ended December 31, 1999 and for the period
from October 22, 1986 (inception) to December 31, 1999 have been incorporated by
reference in this prospectus and the related registration statement in reliance
upon the report of KPMG LLP, independent auditors, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You can inspect and copy the registration statement on
Form S-3 of which this prospectus is a part (File No. 333-_____), as well as
reports, proxy statements and other information filed by us, at the public
reference facilities maintained by the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C., 20549, and at the following regional offices of the SEC: 7
World Trade Center, Suite 1300, New York, New York, 10048 and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois, 60661. You can obtain
copies of this material from the Public Reference Room of the SEC at 450 Fifth
Street N.W., Washington, D.C., 20549, at prescribed rates. You can call the SEC
at 1-800-732-0330 for information regarding the operation of its Public
Reference Room. The SEC also maintains a world wide web site at
http://www.sec.gov that contains reports, proxy and information statements, and
other information regarding registrants like our company that file
electronically.
The SEC allows us to "incorporate by reference" other information that we
file with it, which means that we can disclose important in formation to you by
referring to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and replace this information. We incorporate by
reference the documents listed below and any future filings made by us with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 until we have sold all of the securities that we have registered:
1. Our Annual Report on Form 10-K/A for the fiscal year ended December
31, 1999, as filed on May 11, 2000.
2. Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2000.
3. Our Proxy Statement for the June 21, 2000 Annual Meeting of
Stockholders.
4. Our Proxy Statement for the December 15, 1999 Special Meeting of
Stockholders.
5. The description of our common stock contained in our Registration
Statement on Form 8-A filed May 23, 1994.
The reports and other documents that we file after the date of this
prospectus will update and supersede the information in this prospectus.
If you make a request for this information in writing or by telephone, we
will provide you without charge, a copy of any or all of the information
incorporated by reference in the registration statement of which this prospectus
10
<PAGE>
is a part. Requests for this information should be submitted in writing to:
Corporate Secretary, NPS Pharmaceuticals, Inc., 420 Chipeta Way, Salt Lake City,
Utah, 84108, (801) 583-4939.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses payable by
us in connection with the issuance and distribution of the common stock pursuant
to this registration statement. All amounts are estimates except the SEC
registration fee and the Nasdaq Stock Market additional listing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee.. $ 1,834.33
Accountant's Fees and Expenses Fee................... $ 3,000.00
Legal Fees and Expenses Fee.......................... $ 1,000.00
Miscellaneous Expenses Fee........................... $ 2,000.00
Total........................................... $ 7,834.33
</TABLE>
Item 15. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, the Company has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act.
The Company's Bylaws also provide that the Company 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 Company's Certificate of Incorporation provides for the elimination of
liability for monetary damages for breach of the directors' fiduciary duty of
care to the Company 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 Company, 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 Company has entered into agreements with its directors and executive
officers that require the Company 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 Company 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 Company 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.
Item 16. Exhibits.
Exhibit No. Description
----------- -----------
5.1 Opinion of Counsel
23.1 Consent of independent certified public accountants
23.2 Consent of counsel (included in Exhibit 5.1)
24.1 Power of Attorney (incorporated in the signature page of this S-3)
11
<PAGE>
Item 17. Undertakings.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(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; and
(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 that are incorporated by
reference in the Registration Statement.
(2) 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.
(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. 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 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. 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 SEC 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.
D. The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Salt Lake, County of Salt Lake, State of Utah, on the
19th day of July, 2000.
NPS PHARMACEUTICALS, INC.
By: /s/ James U. Jensen
--------------------------------------------
James U. Jensen, Vice President Corporate
Development and Legal Affairs and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Hunter
Jackson, Ph.D., and James U. Jensen, J.D. his true and lawful attorneys-in-fact
and agents, each acting alone, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same with all exhibits thereto,
and all 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 so 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 attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
----------------------------------------- -------------------------------------- ---------------------------
<S> <C> <C>
President, Chief Executive Officer
/s/ Hunter Jackson and Chairman of the Board July 19, 2000
-----------------------------------------
Hunter Jackson
Vice President, Finance, Chief
/s/ Robert K. Merrell Financial Officer and Treasurer July 19, 2000
-----------------------------------------
Robert K. Merrell
Vice President, Corporate Development
and Legal Affairs, Secretary
/s/ James U. Jensen Director July 19, 2000
-----------------------------------------
James U. Jensen
/s/ Santo J. Costa Director July 19, 2000
-----------------------------------------
Santo J. Costa
/s/ John R. Evans Director July 19, 2000
-----------------------------------------
Dr. John R. Evans
/s/ James G. Groninger Director July 19, 2000
-----------------------------------------
James G. Groninger
/s/ Tamar Howson Director July 19, 2000
-----------------------------------------
Tamar Howson
/s/ Joseph Klein, III Director July 19, 2000
-----------------------------------------
Joseph Klein, III
/s/ Donald E. Kuhla Director July 19, 2000
-----------------------------------------
Donald E. Kuhla
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
----------------------------------------- -------------------------------------- ---------------------------
<S> <C> <C>
/s/ Thomas N. Parks Director July 19, 2000
-----------------------------------------
Thomas N. Parks
/s/ Edward Rygiel Director July 19, 2000
-----------------------------------------
Edward Rygiel
/s/ Calvin R. Stiller Director July 19, 2000
-----------------------------------------
Dr. Calvin R. Stiller
/s/ Peter G. Tombros Director July 19, 2000
-----------------------------------------
Peter G. Tombros
</TABLE>
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