As filed with the Securities and Exchange Commission on June 29, 2001
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
NEXELL THERAPEUTICS INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 06-1192468
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
9 Parker
Irvine, California 92618
(Address of Principal Executive Offices, including Zip Code)
NEXELL THERAPEUTICS INC.
1997 INCENTIVE AND NON-INCENTIVE STOCK OPTION PLAN
(Full Title of the Plan)
WILLIAM A. ALBRIGHT, JR.
CHIEF EXECUTIVE OFFICER, PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
NEXELL THERAPEUTICS INC.
9 PARKER
IRVINE, CALIFORNIA 92618
(Name and Address of Agent For Service)
(949) 470-6485
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
WILLIAM M. ROSS, ESQ.
BRYAN CAVE LLP
120 BROADWAY, SUITE 300
SANTA MONICA, CA 90401-2305
(310) 576-2100
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CALCULATION OF REGISTRATION FEE
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SHARE (2) PRICE (2) FEE
common stock, par value $.001 950,000 $2.305 $2,189,750 $548
per share ("Common Stock") (3)
(1) Pursuant to Rule 416, this Registration Statement shall also cover a
presently indeterminate number of additional shares of the Registrant's
Common Stock that may become issuable as a result of anti-dilution
adjustments deemed necessary or equitable by the Board of Directors of the
Registrant upon stock splits, stock dividends or other similar changes in
capitalization.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) These shares are offered under the Registrant's 1997 Incentive and Non-
Incentive Stock Option Plan. Pursuant to Rule 457(h)(1), the filing fee
for the 950,000 shares subject to options that have not yet been granted is
calculated based upon the average of the high and low selling prices per
share of the Common Stock on June 25, 2001, as reported on the Nasdaq
National Market, which was $2.305 per share.
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INCORPORATION OF CONTENTS OF
REGISTRATION STATEMENT BY REFERENCE
Nexell Therapeutics Inc. (the "Registrant") filed a Registration Statement
on Form S-8 (Registration No. 333-33910) with the Securities and Exchange
Commission (the "Commission") on April 3, 2000 covering, among other matters,
the registration of 750,000 shares authorized for issuance under the
Registrant's 1997 Incentive and Non-Incentive Stock Option Plan (the "1997
Plan"), and the Registrant filed a Registration Statement on Form S-8
(Registration No. 333-40860) with the Commission on July 6, 2000 registering an
additional 562,500 shares authorized under the 1997 Plan. An amendment to the
1997 Plan to increase the number of shares authorized under the 1997 Plan by an
additional 950,000 shares was authorized by the Registrant's Board of Directors
and was approved by the stockholders on June 21, 2001. Pursuant to General
Instruction E of Form S-8, this Registration Statement is being filed to
register the additional 950,000 shares authorized under the 1997 Plan. This
Registration Statement should also be considered a post-effective amendment to
the prior Registration Statements. The contents of the prior Registration
Statements are incorporated herein by reference. All share figures above
reflect the Registrant's one-for-four reverse stock split of its Common Stock
effected on June 15, 2000.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
Information required by Part I to be contained in the Section
10(a)prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities Act") and
the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed with the
Commission are hereby incorporated in this Registration Statement by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000;
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001;
(3) The Registrant's Current Report on Form 8-K filed with the Commission
on June 14, 2001; and
(4) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A, as amended to date
(File No. 0-19153).
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all shares of Common Stock offered
hereunder have been sold or which deregisters all such shares then remaining
unsold shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such reports or
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein 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 or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any 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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law ("DGCL") provides
that a Delaware corporation may indemnify 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
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no cause to believe his
or her conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any
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of the capacities set forth above, against expenses actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if he or she acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or misconduct
in the performance of his or her duty to the corporation unless and only to the
extent that the court in which such action or suit was brought shall determine
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to be indemnified for
such expenses which the court shall deem proper. Section 145 of the DGCL further
provides that to the extent a director or officer of a corporation has been
successful in the defense of any action, suit or proceeding referred to in
subsection (a) and (b) or in the defense of any claim, issue or matter therein,
such officer or director shall be indemnified against expenses actually and
reasonably incurred by him or her in connection therewith; that indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; and that the corporation may
purchase and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against such officer or director and
incurred by him or her in any such capacity or arising out of his or her status
as such, whether or not the corporation would have the power to indemnify him or
her against such liabilities under Section 145.
As permitted by Section 102(b)(7) of the DGCL, the Registrant's Amended and
Restated Certificate of Incorporation, as amended, provides that a director
shall not be liable to the Registrant or its stockholders for monetary damages
for breach of fiduciary duty as a director. However, such provision does not
eliminate or limit the liability of a director for acts or omissions not in good
faith or for breaching his or her duty of loyalty, engaging in intentional
misconduct or knowingly violating a law, paying a dividend or approving a stock
repurchase which was illegal, or obtaining an improper personal benefit. A
provision of this type has no effect on the availability of equitable remedies,
such as injunction or rescission, for breach of fiduciary duty.
The Registrant's Amended and Restated Certificate of Incorporation, as
amended, and its Bylaws provide for indemnification of its directors, officers,
agents and employees to the fullest extent permissible under applicable law, and
the Registrant has entered into indemnification agreements with its directors.
The Registrant maintains policies of directors' and officers' liability
insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits.
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 this 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 this Registration Statement; and (iii) to include any
material information with respect to the plan of 4 distribution not
previously disclosed in this Registration Statement or any material
change to such information in this Registration Statement; provided,
however, that paragraphs (a)(1)(i) and (a)(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 with or
furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d)
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of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
this 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
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, 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 Irvine, State of California, on this 29th day of
June, 2001.
NEXELL THERAPEUTICS INC.
By: /s/ William A. Albright, Jr.
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William A. Albright, Jr.
Chief Executive Officer, President, Chief
Financial Officer and Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard L. Dunning and William A.
Albright, Jr. or either one of them acting alone, 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, including post-effective 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 attorney-in-fact and agent full power and authority to do 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 attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on this 29th day of June, 2001, by the
following persons in the capacities indicated.
Signature Title
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/s/ Richard L. Dunning Chairman of the Board
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Richard L. Dunning
/s/ William A. Albright, Jr. Director, Chief Executive Officer, President,
- ------------------------------ Chief Financial Officer and Treasurer
William A. Albright, Jr. (Principal Executive, Financial and
Accounting Officer)
/s/ Daniel Levitt, M.D., Ph.D. Director
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Daniel Levitt, M.D., Ph.D.
/s/ Victor W. Schmitt Director
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Victor W. Schmitt
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Signature Title
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/s/ Eric A. Rose, M.D. Director
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Eric A. Rose, M.D.
/s/ Richard L. Casey Director
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Richard L. Casey
/s/ Joseph A. Mollica Director
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Joseph A. Mollica
/s/ C. Richard Piazza Director
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C. Richard Piazza
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INDEX TO EXHIBITS
Exhibit
Number Description Method of Filing
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4.1 The Registrant's Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 4.1 to
dated July 10, 1990, as amended to date. the Registrant's Registration Statement on
Form S-8 (Registration No. 333-40860) filed
with the Commission on July 6, 2000)
4.3 The Registrant's 1997 Incentive and Non-Incentive Stock Option Plan, Filed herewith electronically
as amended to date.
5.1 Opinion of Bryan Cave LLP. Filed herewith electronically
23.1 Consent of KPMG LLP. Filed herewith electronically
23.2 Consent of Bryan Cave LLP. (included in Exhibit 5.1)
24.1 Power of Attorney. (included on signature page of this
Registration Statement)
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