As filed with the Securities and Exchange Commission on April 2, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NaPro BioTherapeutics, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 84-1187753
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
6304 Spine Road, Unit A 80301
Boulder, Colorado (Zip Code)
Telephone: (303) 530-3891
(Address of Principal Executive Offices)
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NaPro BioTherapeutics, Inc.
1994 Long-Term Performance Incentive Plan
NaPro BioTherapeutics, Inc.
1998 Stock Option Plan
(full title of the plans)
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Gordon H. Link, Jr. With Copies to:
Chief Financial Officer
6304 Spine Road, Unit A Susan L. Oakes, Esq.
Boulder, Colorado 80301 Holme Roberts & Owen LLP
Telephone: (303) 530-3891 1700 Lincoln Street, Suite 4100
Telecopier: (303) 530-1296 Denver, Colorado 80203
(Name, Address, and Telephone Number, Telephone: (303) 866-0495
Including Area Code, of Agent for Service) Telecopier: (303) 866-0200
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offerin Amount of
to be Registered Registered (1) Per Share(2) Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock
($.0075 par value) $ 502,350 1.0000 $502,350.00 139.65
40,000 1.1875 47,500.00 13.21
84,140 1.8125 152,503.75 42.40
95,105 2.0000 190,210.00 52.88
103,405 2.1719 224,585.32 62.44
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825,000 $1,144,613.44 $ 310.58
</TABLE>
(1) 700,000 and 125,000 shares are covered by the 1994 Long-Term Performance
Incentive Plan and the 1998 Stock Option Plan, respectively.
(2) Estimated solely for the purpose of calculating the registration fee for
the shares being registered hereby pursuant to Rule 457 based on (a) an
exercise price of $1.00 per share for 502,350 shares, $1.1875 per share for
40,000 shares, $1.8125 per share for 84,140 shares and $2.00 per share for
95,105 shares, and (b) an exercise price of $2.1719 per share (the average
of the high and low sales price for Common Stock on March 30, 1999, as
reported on the Nasdaq market) for 103,405 shares of Common Stock covered
by the Registrant's Plans which are not subject to outstanding options or
restricted stock grants.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by NaPro BioTherapeutics, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in the Registration Statement:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998;
(2) The Company's Reports on Form 8-K filed on January 15, 1999, and
January 27, 1999; and
(3) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein by the Company shall be deemed
to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in
any other subsequently filed document which also is incorporated
or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
Item 4. Description of Securities
The description of the Common Stock to be issued is incorporated by
reference from Amendment No. 2 to the Company's Registration Statement on Form
S-1 filed May 17, 1996 (File No. 33-78016), as may be amended.
Item 5. Interests of Named Experts and Counsel
The legality of the shares of Common Stock will be passed on for the
Company by Holme Roberts & Owen LLC, Denver, Colorado.
The consolidated financial statements of NaPro Bio Therapeutics, Inc.
appearing in NaPro BioTherapeutics, Inc.'s Annual Report (Form 10K) for the year
ended December 31, 1998, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are, and audited
financial statements to be included in subsequently filed documents will be,
incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining
to such financial statements to the extent covered by consents filed with the
Securities and Exchange Commission given upon the authority of such firm as
experts in accounting and auditing.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law permits a
Delaware corporation to limit the personal liability of its directors in
accordance with the provisions set forth therein. The Certificate of
Incorporation of the Registrant provides that the personal liability of its
directors shall be limited to the fullest extent permitted by applicable law.
Section 145 of the Delaware General Corporation Law contains provisions
permitting corporations organized thereunder to indemnify directors, officers,
employees or agents against expenses, judgments and fines reasonably incurred
and against certain other liabilities in connection with any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that such person was or is a director,
officer, employee or agent of the corporation. The Certificate of Incorporation
and the
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By-Laws of the Registrant provide for indemnification of its directors and
officers to the fullest extent permitted by applicable law. In addition, the
Registrant maintains an officers and directors liability insurance policy.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Exhibit
3.1 Amended and Restated Certificate of Incorporation of the
Company(1)
3.2 Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Company(2)
3.3 Bylaws of the Company.(1)
4.1 Common Stock Certificate.(1)
5.1 Opinion of Holme Roberts & Owen LLP.
23.1 Consent of Ernst & Young LLP.
23.2 The consent of Holme Roberts & Owen LLP is included in Exhibit
5.1.
24.1 Powers of Attorney.
(1) Incorporated herein by reference from the registration statement on Form
S-1 of NaPro BioTherapeutics, Inc. filed July 27, 1994; File 33-78016.
(2) Incorporated herein by reference from the Form 10-K for fiscal year 1998
filed March 31, 1999.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(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 (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and 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.
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(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 which remain unsold at
the termination of the offering.
(b) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boulder, State of Colorado, as of March 30,
1999.
NaPro BioTherapeutics, Inc.
By: /s/ Gordon H. Link, Jr.
Gordon H. Link, Jr.
Vice President and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and as of the dates indicated.
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Signatures Title Date
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<S> <C> <C>
* President and Chief Executive Officer; March 30, 1999
- ---------------------------------------- Director (Principal Executive Officer)
Sterling K. Ainsworth
*
- ---------------------------------------- Chairman of the Board of Directors March 30, 1999
Leonard P. Shaykin
/s/ Gordon H. Link, Jr. Vice President, Chief Financial Officer March 30, 1999
- ---------------------------------------- (Principal Financial Officer)
Gordon H. Link, Jr.
/s/ Robert L. Poley Controller (Principal Accounting Officer) March 30, 1999
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Robert L. Poley
* Director March 30, 1999
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Mark B. Hacken
* Director March 30, 1999
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Arthur D. Hayes, Jr.
* Director March 30, 1999
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Patricia A. Pilia
* Director March 30, 1999
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Stanley Knowlton
* Director March 29, 1999
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Seth Rudnick
</TABLE>
* By: /s/ Gordon H. Link, Jr.
Gordon H. Link, Jr.
Attorney-in-fact
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Exhibit 5.1
April 2, 1999
NaPro BioTherapeutics, Inc.
Board of Directors
6304 Spine Road, Unit A
Boulder, Colorado 80301
Gentlemen:
Reference is made to the registration statement on Form S-8 to be filed
with the Securities and Exchange Commission (the "Commission") on or about April
2, 1999 (the "Registration Statement") by NaPro BioTherapeutics, Inc., a
Delaware corporation (the "Company"), for the purpose of registering under the
Securities Act of 1933, as amended (the "Act"), 825,000 shares of its Common
Stock, $.0075 par value (the "Common Stock").
As counsel for the Company, we have examined such documents and
reviewed such questions of law as we have considered necessary or appropriate
for the purpose of this opinion. Based on the foregoing, we are of the opinion
that the shares of Common Stock, when sold and delivered by the Company pursuant
to the 1994 Long-Term Performance Incentive Plan and the 1998 Stock Option Plan
described in the Registration Statement, will be legally issued, fully paid and
non-assessable.
We consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the reference to us under the
caption "Interests of Named Experts and Counsel." In giving this consent, we do
not thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Act or under the rules and regulations of the
Commission.
We do not express an opinion on any matters other than those expressly
set forth in this letter.
Very truly yours,
HOLME ROBERTS & OWEN LLP
By: /s/ Susan L. Oakes
Susan L. Oakes, Partner
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Interests of Named
Experts and Counsel" in the Registration Statement on Form S-8 pertaining to the
1994 Long Term Performance Incentive Plan and the 1998 Stock Option Plan of
NaPro BioTherapeutics, Inc. and to the incorporation by reference therein of our
report dated March 24, 1999, with respect to the consolidated financial
statements of NaPro BioTherapeutics, Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
Denver, Colorado
March 30, 1999
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Sterling K. Ainsworth and
Gordon H. Link, Jr., and each of them, his or her attorneys-in-fact, with full
power of substitution, for him or her in any and all capacities, to sign the
Annual Report on Form 10-K for NaPro BioTherapeutics, Inc., a Delaware
corporation (the "Company") for its year ended December 31, 1998, and all
amendments thereto, and a registration statement to be filed with the Securities
and Exchange Commission (the "Commission") on Form S-8 in connection with the
issuance and sale by the "Company, of shares of the Company's Common Stock, par
value $.0075 per share ("Common Stock"), and all amendments (including
post-effective amendments) thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission; and
to sign all documents in connection with the qualification and sale of the
Common Stock with Blue Sky authorities; granting unto said attorneys-in-fact
full power and authority to perform any other act on behalf of the undersigned
required to be done in the premises, hereby ratifying and confirming all that
said attorneys-in-fact may lawfully do or cause to be done by virtue hereof.
Date: March 30, 1999 /s/ Sterling K. Ainsworth
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Sterling K. Ainsworth
Date: March 30, 1999 /s/ Leonard P. Shaykin
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Leonard P. Shaykin
Date: -----------------------------
Gordon H. Link, Jr.
Date: March 30, 1999 /s/ Patricia A. Pilia
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Patricia A. Pilia
Date: March 30, 1999 /s/ Arthur D. Hayes, Jr.
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Arthur D. Hayes, Jr.
Date: March 30, 1999 /s/ Mark B. Hacken
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Mark B. Hacken
Date: March 30, 1999 /s/ Stanley Knowlton
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Stanley Knowlton
Date: March 29, 1999 /s/ Seth Rudnick
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Seth Rudnick
Date: -----------------------------
Robert L. Poley
