<PAGE> 1
As filed with the Securities and Exchange Commission on
July 10, 1996
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEXSTAR PHARMACEUTICALS, INC.
--------------------------------------------------
(Exact name of issuer as specified in its charter)
DELAWARE 84-1173453
- --------------------------------- ----------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2860 Wilderness Place
Boulder, CO 80301
- --------------------------------- ----------
(Address of principal executive offices) (zip code)
NEXSTAR PHARMACEUTICALS, INC. 1995 DIRECTOR OPTION PLAN
-------------------------------------------------------
(Full title of the plan)
PATRICK J. MAHAFFY
Chief Executive Officer
NeXstar Pharmaceuticals, Inc.
2860 Wilderness Place
Boulder, CO 80301
(303) 444-5893
------------------
(Name and address, including zip code, of agent for service)
(Telephone number, including area code, of agent for service)
------------------
COPY TO:
Peter H. Jakes, Esq.
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, NY 10022
(212) 821-8000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
Proposed
Title of maximum Amount
securities Amount offering Proposed maximum of
to be to be price per aggregate offering registration
registered registered(1) share (2) price (2) fee
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par
value per
share 500,000(3) $20.625 10,312,500 $3,557
</TABLE>
- --------------------------------
(1) This Registration Statement covers the 500,000 shares of Common Stock,
$0.01 par value per share, of NeXstar Pharmaceuticals, Inc., a Delaware
corporation ("NeXstar" or the "Registrant"), authorized to be issued
under the NeXstar Pharmaceuticals, Inc. 1995 Director Option Plan.
(2) Reflects the average of the high and low prices of NeXstar Common Stock
on July 8, 1996 on the Nasdaq National Market pursuant to Rule 457(h)
and (c) under the Securities Act of 1933, as amended (the "Securities
Act").
(3) Represents shares which have not yet been issued.
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PART I
INFORMATION NOT REQUIRED
IN THE REGISTRATION STATEMENT
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and
Exchange Commission (the "Commission") by NeXstar, a Delaware corporation, are
incorporated herein by reference:
(a) The Registrant's annual report on Form 10-K for
the fiscal year ended December 31, 1995, filed pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act").
(b) All other reports filed by the Registrant
pursuant to Section 13(a) or 15(d) of the Exchange Act since
the end of the fiscal year covered by the Form 10-K referred
to in (a) above, including, without limitation, the reports
referred to in items (c) and (d) below.
(c) The Registrant's quarterly report on Form 10-Q
for the quarter ended March 31, 1996, filed pursuant to the
Exchange Act.
(d) The Registrant's current reports on Form 8-K,
filed with the Commission on April 10, 1996, June 21,
1996, and July 8, 1996, respectively.
(e) The description of NeXstar's common stock, $0.01
par value per share (the "Common Stock"), which is contained
in NeXagen's Registration Statement filed under the Exchange
Act, on Form 8-A (File No. 0-23012) on December 6, 1993, as
amended on Form 8-A/A filed on January 25, 1994.
In addition, all documents filed by NeXstar with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a post-
effective amendment which indicates that all the securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of the filing of such documents with the Commission. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for
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purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document which also is incorporated by reference
herein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof except as so
modified or superseded.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the shares of Common Stock
registered hereunder will be passed upon for the Registrant by Willkie Farr &
Gallagher, New York, New York. A member of the firm of Willkie Farr & Gallagher
owns 2,440 shares of the Registrant's Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's By-Laws require the Registrant to indemnify any
and all of its directors or officers, or directors or officers who serve at the
request of the corporation as a director or officer of another corporation, to
the full extent permitted by the Delaware General Corporation Law (the "DGCL").
The Registrant's Second Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") also provides that:
The Registrant shall indemnify to the fullest extent permitted
under and in accordance with the laws of the State of Delaware any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of
the fact that he is or was a director, officer, employee or agent of
the Registrant, or is or was serving at the request of the Registrant
as a director, officer, trustee, employee or agent of or in any other
capacity with another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful.
Expenses incurred in defending a civil or criminal action, suit
or proceeding shall (in the case of any action, suit or proceeding
against a director of the Registrant) or may (in the case of any
action, suit or proceeding against an officer, trustee, employee or
agent) be paid by the Registrant in advance of the final disposition
of such action, suit or proceeding as authorized by the Registrant's
Board of Directors upon receipt of an undertaking by or on behalf of
the indemnified person to repay such amount if it shall
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ultimately be determined that he is not entitled to be indemnified by
the Registrant as authorized in the Registrant's Certificate of
Incorporation.
The indemnification and other rights set forth in the
Certificate of Incorporation shall not be exclusive of any provisions
with respect thereto in the By-Laws or any other contract or agreement
between the Registrant and any officer, director, employee or agent of
the Registrant.
Neither the amendment nor repeal of the provisions (described
above) in the Certificate of Incorporation regarding indemnification,
nor the adoption of any provision of the Certificate of Incorporation
inconsistent with such provisions, shall eliminate or reduce the
effect of such provisions, in respect of any matter occurring prior to
such amendment, repeal or adoption of an inconsistent provision or in
respect of any cause of action, suit or claim relating to any such
matter which would have given rise to a right of indemnification or
right to receive expenses pursuant to such provisions, if such
provision had not been so amended or repealed or if a provision
inconsistent therewith had not been so adopted.
No director shall be personally liable to the Registrant or any
stockholder for monetary damages for breach of fiduciary duty as a
director, except for any matter in respect of which such director (A)
shall be liable under Section 174 of the DGCL or any amendment thereto
or successor provision thereto, or (B) shall be liable by reason that,
in addition to any and all other requirements for liability he:
(i) shall have breached his duty of loyalty to the
Registrant or its stockholders;
(ii) shall not have acted in good faith or, in failing to act,
shall not have acted in good faith;
(iii) shall have acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have
acted in a manner involving intentional misconduct or a knowing violation
of law; or
(iv) shall have derived an improper personal benefit.
If the DGCL is amended after the date upon which a document is
filed in the State of Delaware to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of a director of the Registrant shall be eliminated or
limited to the fullest extent permitted by the DGCL, as so amended.
Section 145 of the DGCL empowers a Delaware corporation to
indemnify any persons who are, or are threatened to be made,
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parties to any threatened, pending or completed legal action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was
an officer or director of such corporation, or is or was serving
at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such
action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner reasonably believed
to be in or not opposed to the corporation's best interests,
and, for criminal proceedings, had no reasonable cause to
believe his conduct was illegal. A Delaware corporation may
indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation
in the performance of his duty. Where an officer or director is
successful on the merits or otherwise in the defense of any
action referred to above, the corporation must indemnify him
against the expenses which such officer or director actually and
reasonably incurred.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
Item 8. EXHIBITS
Exhibit No.
- -----------
4.1 Second Amended and Restated Certificate of Incorporation of
the Registrant (Previously filed as an exhibit to the
Registrant's Registration Statement on Form S-3 (File No.
333-04653), declared effective by the Commission on June 19,
1996, and incorporated herein by reference.)
4.2 Form of Common Stock Certificate of the Registrant (Previously
filed as an exhibit to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1994, and
incorporated herein by reference.)
5.1 Opinion of Willkie Farr & Gallagher, counsel to NeXstar, as to
the legality of the shares being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in exhibit 5.1).
24.1 Power of Attorney (reference is made to the signature page).
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99.1 Registrant's 1995 Director Option Plan (Previously filed as an
exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1995, and
incorporated herein by reference.)
Item 9. UNDERTAKINGS
1. NeXstar hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(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)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by NeXstar
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(b) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
2. NeXstar hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of NeXstar'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
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offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. NeXstar hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
4. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of NeXstar pursuant to the foregoing provisions, or otherwise, NeXstar has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by NeXstar of expenses incurred or paid by
a director, officer or controlling person of NeXstar 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, NeXstar
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.
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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 Boulder, Colorado on the 10th day of
July 1996.
NEXSTAR PHARMACEUTICALS, INC.
By: /s/ Patrick J. Mahaffy
----------------------
Patrick J. Mahaffy
President and
Chief Executive Officer
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<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Patrick J. Mahaffy, Michael E.
Hart and Adam Cochran and each of them singly, with full power to act without
the other, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary fully to all intents and purposes as he might or could do in person
thereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Lawrence M. Gold Chairman of the Board July 10, 1996
- -------------------------------------- and Chief Scientific Offer
Lawrence M. Gold
/s/ Patrick J. Mahaffy Director, President and July 10, 1996
- -------------------------------------- Chief Executive Officer
Patrick J. Mahaffy (Principal Executive Officer)
/s/ Michael E. Hart Vice President and July 10, 1996
- -------------------------------------- Chief Financial Officer
Michael E. Hart (Principal Financial Officer
and Principal Accounting
Officer)
/s/ John D. Baldeschwieler Director July 10, 1996
- --------------------------------------
John D. Baldeschwieler
/s/ James A. Eskridge Director July 10, 1996
- --------------------------------------
James A. Eskridge
/s/ David I. Hirsh Director July 10, 1996
- --------------------------------------
David I. Hirsh
/s/ Rodman W. Moorhead, III Director July 10, 1996
- --------------------------------------
Rodman W. Moorhead, III
/s/ Carl F. Pollard Director July 10, 1996
- --------------------------------------
Carl F. Pollard
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit No. Exhibit Page
- ----------- ------- ------------
<S> <C> <C>
4.1 Second Amended and Restated Certificate of Incorporation of
the Registrant (Previously filed as an exhibit to the
Registrant's Registration Statement on Form S-3 (File No.
333-04653), declared effective by the Commission on June 19,
1996, and incorporated herein by reference.)
4.2 Form of Common Stock Certificate of the Registrant
(Previously filed as an exhibit to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1994, and incorporated herein by reference.)
5.1 Opinion of Willkie Farr & Gallagher, counsel to NeXstar, as
to the legality of the shares being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in exhibit
5.1).
24.1 Power of Attorney (reference is made to the signature page).
99.1 Registrant's 1995 Director Option Plan (Previously filed as
an exhibit to the Registrant's Quarterly Report on Form 10-Q
for the quarterly period ended September 30, 1995, and
incorporated herein by reference.)
</TABLE>
<PAGE> 1
EXHIBIT 5.1
July 10, 1996
NeXstar Pharmaceuticals, Inc.
2860 Wilderness Place
Boulder, Colorado 80301
Dear Sirs:
We are delivering this opinion in connection with the Registration Statement on
Form S-8 (the "Registration Statement") of NeXstar Pharmaceuticals, Inc. (the
"Company") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to an
aggregate of 500,000 shares, par value $.01 per share, of common stock of the
Company (the "Shares"). The Shares are to be offered pursuant to the terms of
the Company's 1995 Director Option Plan (the "Plan") to participants in the
Plan (the "Participants"). We have examined and are familiar with originals or
copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments relating to the
incorporation of the Company and to the authorization and issuance of the
Shares, and have made such investigations of law, as we have deemed necessary
and advisable.
Based upon the foregoing and having due regard for such legal questions as we
have deemed relevant, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the laws
of the State of Delaware; and
2. The Shares have been duly authorized and, when issued, delivered and
sold by the Company and paid for by the Participants, pursuant to the
terms of the Plan, will constitute duly authorized, validly issued,
fully paid and nonassessable shares of common stock of the Company.
<PAGE> 2
NeXstar Pharmaceuticals, Inc.
July 10, 1996
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and to the reference to our firm in
the summary of the Plan provided to the Participants, which, together with the
documents incorporated by reference in the Registration Statement, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
Very truly yours,
/s/ Willkie Farr & Gallagher
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the NeXstar Pharmaceuticals, Inc. 1995 Director
Option Plan of NeXstar Pharmaceuticals, Inc. of our report dated February 16,
1996, with respect to the consolidated financial statements of NeXstar
Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year
ended December 31, 1995, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Denver, Colorado
July 10, 1996
