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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.
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(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
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(Address of principal executive offices) (zip code)
NEXAGEN, INC. 1994 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
PATRICK J. MAHAFFY
Chief Executive Officer
NeXstar Pharmaceuticals, Inc.
2860 Wilderness Place
Boulder, CO 80301
(303) 444-5893
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(Name and address, including zip code, of agent for service)
(Telephone number, including area code, of agent for service)
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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 Proposed
Title of Amount maximum maximum Amount
securities to be offering aggregate of reg-
to be regis- price per offering istration
registered tered(1) share (2) price (2) fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common
Stock,
$0.01 par
value per
share 300,000(3) $20,625 $6,187,500 $2,134
</TABLE>
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(1) This Registration Statement covers the additional 300,000 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 NeXagen, Inc. 1994 Employee Stock Purchase Plan.
On February 21, 1995, NeXagen, Inc. changed its name to NeXstar
Pharmaceuticals, Inc. in connection with the merger of its wholly-owned
subsidiary Neptune Merger-Sub Corp., a Delaware corporation, with and
into Vestar, Inc., a Delaware corporation.
(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 Registration Statement on Form
S-8 (Registration No. 33-88074), dated December 30, 1994,
filed pursuant to the Securities Act.
(b) 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").
(c) 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 (b) above, including, without limitation, the reports
referred to in items (d) and (e) below.
(d) The Registrant's quarterly report on Form 10-Q
for the quarter ended March 31, 1996, filed pursuant to the
Exchange Act.
(e) 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.
(f) 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
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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 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 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 ultimately be
determined that he is not entitled to be indemnified by the Registrant
as authorized in the Registrant's Certificate of Incorporation.
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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, 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
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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 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit No.
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<S> <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 1994 Employee Stock Purchase Plan (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.)
99.2 Amendment No. 1 to Registrant's 1994 Employees Stock Purchase Plan (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.)
</TABLE>
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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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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
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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
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<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 1994 Employee Stock Purchase Plan (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.)
99.2 Amendment No. 1 to Registrant's 1994 Employee Stock Purchase
Plan (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.)
</TABLE>
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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 300,000 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 1994 Employee Stock Purchase 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
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the NeXagen, Inc. 1994 Employee Stock Purchase 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
