As filed with the Securities and Exchange Commission on June 23, 2003
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PEREGRINE PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-3698422
- --------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
14272 FRANKLIN AVENUE, SUITE 100, TUSTIN, CALIFORNIA 92780-7017
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
2002 NON-QUALIFIED STOCK OPTION PLAN
------------------------------------
(Full title of the plan)
Paul J. Lytle, Chief Financial Officer, Corporate Secretary
Peregrine Pharmaceuticals, Inc
14272 FRANKLIN AVENUE, SUITE 100, TUSTIN, CALIFORNIA 92780-7017
---------------------------------------------------------------
(Name and address of agent for service)
(714) 508-6000
--------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
======================== ==================== ==================== ========================== ======================
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price per aggregate offering Amount of
be registered registered(1) unit(2) price(2) registration fee
- ------------------------ -------------------- -------------------- -------------------------- ----------------------
Common Stock, 3,000,000 shares $1.44 $4,320,000 $349.49
$0.001 par value
======================== ==================== ==================== ========================== ======================
(1) This registration statement also relates to such indeterminate number
of additional shares as may be issuable pursuant to the anti-dilution
provisions of the Peregrine Pharmaceuticals, Inc. 2002 Non-Qualified
Stock Option Plan in the event of any future stock split, stock
dividend or similar adjustment of Peregrine's outstanding common stock.
(2) Pursuant to Rule 457(c) and (h), the proposed offering price and
registration fee have been calculated on the basis of the average of
the bid and asked prices for the common stock on The Nasdaq SmallCap
Market on June 23, 2003.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents of Peregrine Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), previously filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
1. Annual Report on Form 10-K for the fiscal year ended April 30,
2002 and amended on a Form 10-K/A Amendment No. 2, as filed
with the Commission on March 21, 2003, under Section 13(a) of
the Securities Exchange Act of 1934;
2. Quarterly Reports on Form 10-Q for the quarters ended:
(i) July 31, 2002, filed with the Commission on September
16, 2002;
(ii) October 31, 2002, filed with the Commission on
December 16, 2002; and
(iii) January 31, 2003, filed with the Commission on March
17, 2003;
3. Current Report on Form 8-K, filed with the Commission on
August 22, 2002;
4. Current Report on Form 8-K, filed with the Commission on June
10, 2003;
5. Definitive Proxy Statement with respect to the Annual Meeting
of Stockholders held on October 22, 2002, as filed with the
Commission on August 28, 2002; and
6. The description of our common stock contained in our
Registration Statement on Form 8-A and Form 8-B (Registration
of Successor Issuers) filed under the Securities Exchange Act
of 1934, including any amendment or report filed for the
purpose of updating such description.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934
(the "Exchange Act") prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference into the prospectus and to be a part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Our common stock is registered pursuant to Section 12 of the Exchange
Act, and, therefore, the description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
2
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Bylaws provide that we will indemnify our directors and officers
and may indemnify our employees and other agents to the fullest extent permitted
by law. We believe that indemnification under our Bylaws covers at least
negligence and gross negligence by indemnified parties, and permits us to
advance litigation expenses in the case of stockholder derivative actions or
other actions, against an undertaking by the indemnified party to repay such
advances if it is ultimately determined that the indemnified party is not
entitled to indemnification. We have liability insurance for our directors and
officers.
In addition, our Certificate of Incorporation provides that, under
Delaware law, our directors shall not be liable for monetary damages for breach
of the directors' fiduciary duty as a director to us and our stockholders. This
provision in the Certificate of Incorporation does not eliminate the directors'
fiduciary duty, and in appropriate circumstances equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under
Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to our Company for acts
or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
Provisions of our Bylaws require us, among other things, to indemnify
them against certain liabilities that may arise by reason of their status or
service as directors or officers (other than liabilities arising from actions
not taken in good faith or in a manner the indemnitee believed to be opposed to
our best interests) to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified and to obtain
directors' insurance if available on reasonable terms. To the extent that
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers or persons controlling our Company as discussed
in the foregoing provisions, we have been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, and is therefore unenforceable. We believe that our
Certificate of Incorporation and Bylaw provisions are necessary to attract and
retain qualified persons as directors and officers.
We have in place a directors' and officers' liability insurance policy
that, subject to the terms and conditions of the policy, insures our directors
and officers against losses arising from any wrongful act (as defined by the
policy) in his or her capacity as a director or officer. The policy reimburses
us for amounts, which we lawfully indemnifies or is required or permitted by law
to indemnify its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index appearing at sequentially numbered page 6.
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;
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total value
of securities offered would not exceed that which was
3
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424
(b) if, in the aggregate, the changes in volume and price
present no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective 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 (1)(i) and (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 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.
(2) 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.
(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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act
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 pubic 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 Securities Act and will be governed by the final
adjudication of such issue.
4
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Tustin, State of California, on June 20, 2003.
PEREGRINE PHARMACEUTICALS, INC.
By: /S/ STEVEN W. KING
----------------------------------------
Steven W. King,
President and Chief Executive Officer,
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, Steven W. King and Paul J. Lytle,
and each of them, as his attorney-in-fact, each with full power of substitution,
for him in any and all capacities, to sign any and all amendments to this
Registration Statement (including post-effective amendments), and any and all
Registration Statements filed pursuant to Rule 462 under the Securities Act of
1933, as amended, in connection with or related to the Offering contemplated by
this Registration Statement and its amendments, if any, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorney to any and all amendments
to said Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/S/ STEVEN W. KING President and Chief Executive June 20, 2003
- -------------------------------- Officer
Steven W. King
/S/ PAUL J. LYTLE Chief Financial Officer and June 20, 2003
- -------------------------------- Corporate Secretary
Paul J. Lytle
/S/ EDWARD J. LEGERE Director June 20, 2003
- -------------------------------
Edward J. Legere
/S/ CARLTON M. JOHNSON Director June 20, 2003
- --------------------------------
Carlton M. Johnson
/S/ ERIC S. SWARTZ Director June 20, 2003
- --------------------------------
Eric S. Swartz
/S/ CLIVE R. TAYLOR Director June 20, 2003
- --------------------------------
Clive R. Taylor, M.D., Ph.D.
5
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------ ----------- --------
4.17 Peregrine Pharmaceuticals, Inc. 2002 Non-Qualified
Stock Option Plan 7
4.18 Form of Non-Qualified Stock Option Agreement 19
5.1 Opinion of Falk, Shaff & Ziebell, LLP. 26
23.1 Consent of Ernst & Young, LLP 28
23.2 Consent of Falk, Shaff & Ziebell, LLP 26
(included in Exhibit 5.1).
24.1 Power of Attorney (included on the Signature Page). 5
6