As filed with the Securities and Exchange Commission on July 10, 2002
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NASTECH PHARMACEUTICAL COMPANY INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 11-2658569
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
45 Davids Drive
Hauppauge, NY 11788
(Address of Principal Executive Offices)(Zip Code)
STOCK OPTIONS AWARDED PURSUANT TO EMPLOYMENT AGREEMENTS WITH CERTAIN NAMED
EXECUTIVES OF THE CORPORATION
(Full title of the plan)
Dr. Steven C. Quay
Chairman, Chief Executive Officer and President
NASTECH PHARMACEUTICAL COMPANY INC.
45 Adams Avenue
Hauppauge, NY 11788
(631) 273-0101
(Name, address and telephone number of agent for service)
Copies to:
Bruce R. Thaw, Esq.
45 Banfi Plaza
Farmingdale, NY 11735
(631) 752-1760
CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share (1) Offering Price (1) Registration Fee (1)
---------------- ----------- ------------- ------------------ --------------------
Shares of Common Stock $.006 par
value, reserved for Steven C. Quay
and Gregory L. Weaver 561,719 15.455 8,681,367.15 $2,074.84
(1) Pursuant to paragraphs (c) and (h) of Rule 457 of the Securities Act of
1933, the proposed maximum offering price per share of such shares is estimated
solely for the purpose of determining the registration fee and is based upon the
average of the high and low sale prices per share of the Registrant's shares as
reported on the Nasdaq National Market System on July 5, 2002.
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
will be sent or given to Dr. Steven C. Quay and Gregory L. Weaver as specified
by Rule 428(b)(1). Such documents need not be filed with the Commission either
as part of this registration statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in the registration statement pursuant to Item 3 of Part II of this
form, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
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
("SEC") are incorporated by reference in this registration statement:
o Annual Report on Form 10-K for the fiscal year ended December 31,
2001;
o Quarterly Report on Form 10-Q for the quarterly period ended March
31, 2002;
o Definitive and Revised Proxy Statement dated May 1, 2002 and May 7,
2002, respectively, for the Annual Meeting of stockholders held on
June 6, 2002, including any documents incorporated by reference
therein;
o The description of our common stock contained in the Form 8-A
Registration Statement filed with the SEC on October 6, 1985, and
any amendment or report filed for the purpose of updating those
descriptions.
All reports and other documents subsequently filed with the SEC pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part of this registration statement from the
date of filing of such documents. Any statement contained herein or in a
document 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 statement. Any such 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.
The validity of the issuance of securities being registered hereby has
been passed upon for the Company by the Law Offices of Bruce R. Thaw, 45 Banfi
Plaza, Farmingdale, NY 11735. Bruce R. Thaw is the General Counsel and a
Director of the Company and owns 198,041 shares of the Company's Common Stock
including options to acquire 120,000 shares of the Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our Certificate of Incorporation provides that the indemnification
provisions of Sections 102(b)(7) and 145 of the Delaware General Corporation Law
shall be utilized to the fullest extent possible. Further, the Certificate of
Incorporation contains provisions to eliminate the liability of our directors to
the Company or its stockholders to the fullest extent permitted by Section
102(b)(7) of the Delaware General Corporation Law, as amended from time to time.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being
or having been a director, officer, employee or agent of the corporation. The
Delaware General Corporation Law provides that Section 145 is not exclusive of
other rights to which those seeking indemnification may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or
other distributions, or (iv) for any transaction from which the director derived
an improper personal benefit. Our Certificate of Incorporation provides for such
limitation of liability.
At present, there is no pending litigation or proceeding involving any of
our directors, officers or employees as to which indemnification is sought, nor
are we aware of any threatened litigation or proceeding that may result in
claims for indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, is permitted to directors, officers or controlling
persons of the Registrant, pursuant to any charter provision, by-law contract,
arrangement, statute, 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 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Specimen of Common Stock Certificate of Registrant (1)
4.2 Articles of Incorporation of Registrant, as amended and filed with the
Secretary of State of Delaware on November 8, 1993 (1)
4.3 By-laws of Registrant (1)
4.4 Employment Agreement, dated as of August 8, 2000, between Nastech
Pharmaceutical Company Inc. and Steven C. Quay, M.D., Ph.D.(2)
4.5 Employment Agreement, dated as of April 30, 2002, between Nastech
Pharmaceutical Company Inc. and Gregory L. Weaver.
5 Opinion of Counsel Bruce R. Thaw, Counsel to the Company, as to the
legality of securities being registered
15 None
23A Consent of Counsel Bruce R. Thaw, Counsel to the Company (included in
Exhibit 5)
23B Consent of KPMG LLP, Independent Auditors
24 Power of Attorney - See signature page
- ----------
(1) Filed as an exhibit to the Registration Statement on Form SB-2 (File No.
33-70180) of the Registrant, filed on October 12, 1993, and incorporated
herein by reference.
(2) Filed as an exhibit to the Current Report on Form 8-K (File No. 000-13789)
of the Registrant and incorporated herein by reference.
ITEM 9. UNDERTAKINGS
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 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.
(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.
(4) 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 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.
(5) 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 any charter provision, by-law, contract,
arrangement, statute, 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 against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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 Hauppauge, New York on the 10th day of July, 2002.
NASTECH PHARMACEUTICAL COMPANY INC.
By: /s/ Dr. Steven C. Quay
---------------------------------------
DR. STEVEN C. QUAY, M.D., Chairman, President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each of the undersigned whose signature
appears below constitutes and appoints Dr. Steven C. Quay and Bruce R. Thaw,
Esq., and each of them (with full power of each of them to act alone), his true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution for him and on his behalf, and in his name, place and stead, in
any and all capacities to execute and sign any and all amendments or
post-effective amendments to this registration statement, or subsequent
registration statements related to the shares registered hereby and to file the
same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or 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 agents or any of them or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof and the
Registrant hereby confers like authority on its behalf.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on July 10, 2002:
Signature Title
--------- -----
/s/ Steven C. Quay
- ----------------------------- President, Chief Executive Officer and Chairman
Dr. Steven C. Quay of the Board (Principal Executive Officer)
/s/ Gregory L. Weaver
- ----------------------------- Chief Financial Officer
Gregory Weaver (Principal Financial and Accounting Officer)
/s/ Grant W. Denison
- ----------------------------- Director
Grant W. Denison
/s/ Ian R. Ferrier
- ----------------------------- Director
Dr. Ian R. Ferrier
/s/ Alvin Katz
- ----------------------------- Director
Alvin Katz
/s/ John V. Pollock
- ----------------------------- Director
John V. Pollock
/s/ Bruce R. Thaw
- ----------------------------- Director
Bruce R. Thaw
/s/ Devin N. Wenig
- ----------------------------- Director
Devin N. Wenig