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As filed with the Securities and Exchange Commission on
August 28, 1997
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. 1993 INCENTIVE STOCK 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 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 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 1,500,000 (3) $14.3125 $21,468,750 $6,506
value per
share
</TABLE>
___________
(1) This Registration Statement covers the additional 1,500,000 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. 1993
Incentive Stock Plan.
(2) Reflects the average of the high and low prices of NeXstar Common
Stock on August 22, 1997 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 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 Statements on Form S-8
(Registration Nos. 33-80938 and 33-97206), dated June 30,
1994 and September 21, 1995, respectively, filed pursuant
to the Securities Act.
(b) The Registrant's annual report on Form 10-K for the fiscal
year ended December 31, 1996, 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 reports on Form 10-Q for the
quarters ended March 31, 1997 and June 30, 1997, filed
pursuant to the Exchange Act.
(e) The Registrant's current reports on Form 8-K dated as of
July 28, 1997 and August 11, 1997, filed pursuant to the
Exchange Act.
(f) The description of NeXstar's common stock, $0.01 par value
per share (the "Common Stock"), which is contained in
NeXagen, Inc.'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 of the 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 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.
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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 Registrant as a director or officer of another corporation, to
the fullest 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.
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.
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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 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 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
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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.
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Item 8. EXHIBITS
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 the Registrant, 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 1993 Incentive Stock Plan (Previously filed as an exhibit to
the Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1997, and incorporated herein by reference).
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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 on the 28th day of August 1997.
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 or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her 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 or she 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 or her 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 August 28, 1997
- -------------------------------- and Chief Scientific Officer
Lawrence M. Gold
/S/ PATRICK J. MAHAFFY Director, President and August 28, 1997
- -------------------------------- Chief Executive Officer
Patrick J. Mahaffy (Principal Executive Officer)
/S/ MICHAEL E. HART Vice President and August 28, 1997
- ------------------------------- Chief Financial Officer
Michael E. Hart (Principal Financial Officer
and Principal Accounting
Officer)
/S/ JOHN D. BALDESCHWIELER Director August 28, 1997
- --------------------------
John D. Baldeschwieler
/S/ JUDITH A. HEMBERGER Director August 28, 1997
- --------------------------------
Judith A. Hemberger
/S/ DAVID I. HIRSH Director August 28, 1997
- --------------------------------
David I. Hirsh
/S/ ROGER G. KENNEDY Director August 28, 1997
- --------------------------------
Roger G. Kennedy
/S/ RODMAN W. MOORHEAD, III Director August 28, 1997
- -------------------------------
Rodman W. Moorehead, III
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit No. Exhibit Page
- ----------- ------- ----
<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 the Registrant, 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 1993 Incentive Stock Plan (Previously filed as
an exhibit to the Registrant's Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 1997, and incorporated
herein by reference).
</TABLE>
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EXHIBIT 5.1
WILLKIE FARR & GALLAGHER
153 East 53rd Street
New York, New York 10022
(212) 821-8000
August 27, 1997
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 1,500,000 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 1993 Incentive Stock 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 option 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.
August 27, 1997
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 NeXstar Pharmaceuticals, Inc. 1993 Incentive Stock
Plan of NeXstar Pharmaceuticals, Inc. of our report dated February 27, 1997,
except for Note 13 as to which the date is March 27, 1997, 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, 1996, filed with
the Securities and Exchange Commission.
/S/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Denver, Colorado
August 20, 1997
