sv8
As filed with the Securities and Exchange Commission on August 20, 2008
Registration No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEKTAR THERAPEUTICS
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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94-3134940 |
(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.) |
201 Industrial Road
San Carlos, California 94070
(Address, Including Zip Code, of Principal Executive Offices)
Nektar Therapeutics
2008 Equity Incentive Plan
(Full Title of the Plan)
Howard W. Robin
Chief Executive Officer, President and Director
Nektar Therapeutics
201 Industrial Road
San Carlos, CA 94070
(650) 631-3100
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
COPY TO:
Sam Zucker, Esq.
OMelveny & Myers LLP
2765 Sand Hill Road
Menlo Park, CA 94025
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See the
definitions of large accelerated filer, accelerated filer, and smaller reporting
company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Maximum |
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Title of |
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Amount |
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Offering |
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Aggregate |
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Amount Of |
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Securities |
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To Be |
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Price |
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Offering |
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Registration |
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To Be Registered |
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Registered |
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Per Share |
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Price |
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Fee |
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Common Stock,
$0.0001 par value per share |
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9,000,000(1) shares |
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$4.61(2) |
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41,490,000(2) |
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$1,631(2) |
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(1) |
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This Registration Statement covers, in addition to the number of shares of Nektar Therapeutics, a Delaware
corporation (the Company or the Registrant), common stock, par value $0.0001 per share (the Common Stock), stated above,
options and other rights to purchase or acquire the shares of Common Stock covered by this Registration Statement and, pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the Securities Act), an additional indeterminate number of shares,
options and rights that may be offered or issued pursuant to the Nektar Therapeutics 2008 Equity Incentive Plan (the Plan) as a
result of one or more adjustments under the Plan to prevent dilution resulting from one or more stock splits, stock dividends or
similar transactions. |
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Pursuant to Securities Act Rule 457(h), the maximum offering price, per share and in the aggregate, and the
registration fee were calculated based upon the average of the high and low prices of the Common Stock on August 18, 2008, as
quoted on the Nasdaq Global Market. |
The Exhibit Index for this Registration Statement is at page 8.
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will be sent or
given to participants as specified by Securities Act Rule 428(b)(1).
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of the Company filed with the Securities and Exchange Commission (the
Commission) are incorporated herein by reference:
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The Companys Annual Report on Form 10-K for its fiscal year ended December 31,
2007, filed with the Commission on February 29, 2008 (Commission File No. 000-24006); |
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(b) |
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The Companys Quarterly Reports on Form 10-Q for its fiscal quarters ended June
30, 2008 and March 31, 2008, filed with the Commission on August 8, 2008 and May 9,
2008, respectively (Commission File No. 000-24006); |
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(c) |
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The Companys Current Reports on Form 8-K, filed with the Commission on
February 12, 2008 (with respect to Items 2.05 and 5.02 only), February 15, 2008,
February 29, 2008 (with respect to Item 5.02 only), April 9, 2008, April 25, 2008, May
22, 2008, June 11, 2008 and August 7, 2008 (Commission File No. 000-24006); and |
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(d) |
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The description of the Companys Common Stock contained in its Registration
Statement on Form 8-A filed with the Commission on May 2, 1994 (Commission File No.
000-24006), and any other amendment or report filed for the purpose of updating such
description. |
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(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 securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date of filing of such
documents; provided, however, that documents or information deemed to have been furnished and not
filed in accordance with Commission rules shall not be deemed incorporated by reference into this
Registration Statement. Any statement contained herein or in a document, all or a portion of which
is 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 statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or amended, 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.
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Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law, the Company has broad powers to
indemnify its directors and officers against liabilities they may incur in such capacities,
including liabilities under the Securities Act.
The Companys certificate of incorporation, as amended, provides for the elimination of
liability for monetary damages for breach of the directors fiduciary duty of care to the Company
and its stockholders. These provisions do not eliminate the directors duty of care and, in
appropriate circumstances, equitable remedies such an 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 directors duty of loyalty to the Company, for acts or
omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
for any transaction from which the director derived an improper personal benefit and for violating
Section 174 of the Delaware General Corporation Law. The provision does not affect a directors
responsibilities under any other laws, such as the federal securities laws or state or federal
environmental laws.
The Company has entered into agreements with its directors and executive officers that require
the Company to indemnify such persons against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of the Company or any of its
affiliated enterprises, provided such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the Company and, with respect
to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The
indemnification agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See the attached Exhibit Index at page 8, which is incorporated herein by reference.
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 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;
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(iii) To include any material information with respect to the plan of
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 registration
statement is on Form S-8, and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this 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 Registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plans annual report pursuant to Section 15(d) of the Exchange Act) 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.
(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
provisions described in Item 6 above, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as expressed in the
Securities 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Form S-8 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Carlos, State of California, on August 20, 2008.
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Nektar Therapeutics
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By: |
/s/ Howard W. Robin
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Howard W. Robin |
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Chief Executive Officer and President |
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Howard W. Robin and John
Nicholson, and each of them, acting individually and without the other, as his or her true and
lawful attorneys-in-fact and agents, 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 (including post-effective amendments, exhibits thereto and other documents in connection
therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the 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 to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them individually, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been
signed below by the following persons in the capacities and on the dates indicated.
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Signature |
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/s/ Howard W. Robin
Howard W. Robin
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Chief Executive Officer,
President and Director
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August 20, 2008 |
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(Principal Executive Officer) |
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Senior Vice President,
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August 20, 2008 |
John Nicholson
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Finance and Chief Financial Officer (Principal Financial |
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and Accounting Officer) |
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Signature |
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Chairman of the Board of Directors
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August 20, 2008 |
Robert B. Chess
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Director
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August 20, 2008 |
Michael A. Brown |
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Director
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August 20, 2008 |
Hoyoung Huh |
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Director
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August 20, 2008 |
Joseph J. Krivulka |
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/s/ Christopher A. Kuebler
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Director
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August 20, 2008 |
Christopher A. Kuebler |
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/s/ Irwin Lerner
Irwin Lerner
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Director
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August 20, 2008 |
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Director
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August 20, 2008 |
John S. Patton, Ph.D. |
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Director
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August 20, 2008 |
Susan Wang |
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Director
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August 20, 2008 |
Roy A. Whitfield |
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7
EXHIBIT INDEX
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Exhibit |
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Number |
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Description of Exhibit |
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4.
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Nektar Therapeutics 2008 Equity Incentive Plan. (Filed as Exhibit A to the Companys Proxy
Statement filed with the Commission pursuant to Section 14(a) of the Exchange Act on April 29,
2008 (Commission File No. 000-24006) and incorporated herein by this reference.) |
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5.
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Opinion of OMelveny & Myers LLP (opinion re legality). |
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23.1
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Consent of independent registered public accounting firm. |
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23.2
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Consent of Counsel (included in Exhibit 5). |
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24.
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Power of Attorney (included in this Registration Statement under Signatures). |
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exv5
EXHIBIT 5
August 20, 2008
Nektar Therapeutics
201 Industrial Road
San Carlos, CA 94070
Re: Registration of Securities of Nektar Therapeutics on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Nektar Therapeutics, a Delaware corporation (the
Company), in connection with the Registration Statement on Form S-8 (the
Registration Statement) filed with the Securities and Exchange Commission on the date
hereof under the Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (the Securities Act), for the registration of up to 9,000,000 shares of common
stock, par value $0.0001 per share, of the Company (the Shares), reserved for future
issuance pursuant to the Nektar Therapeutics 2008 Equity Incentive Plan (the Plan). You
have requested our opinion as to the matters set forth below in connection with the Registration
Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the
Securities Act.
In our capacity as special counsel to the Company in connection with the Registration
Statement, we have examined originals or copies of those corporate and other records and documents
we considered appropriate. As to relevant factual matters, we have relied upon, among other
things, the factual representations we have received from the Company. We have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us as originals and
the conformity with originals of all documents submitted to us as copies.
On the basis of such examination, our reliance upon the assumptions in this opinion and our
consideration of those questions of law we considered relevant, and subject to the limitations and
qualifications in this opinion, we are of the opinion that the Shares have been duly authorized for
issuance by all necessary corporate action on the part of the Company and, when issued in
accordance with such authorization, the provisions of the Plan and relevant agreements duly
authorized by and in accordance with the terms of the Plan, and upon payment for and delivery of
the Shares in accordance with the Plan and either (a) the countersigning of the certificate or
certificates representing the Shares by a duly authorized signatory of the registrar for the common
stock of the Company or (b) the book-entry of the Shares by the transfer agent for the common stock
of the Company in the name of The Depository Trust Company or its nominee, the Shares will be
validly issued, fully paid and non-assessable.
The law covered in this opinion is limited to the present law of the State of Delaware. We
express no opinion as to the laws of any other jurisdiction and no opinion regarding the statutes,
administrative decisions, rules, regulations or requirements of any
county, municipality, subdivision or local authority of any other jurisdiction. This opinion
is expressly limited to the matters set forth above, and we render no opinion, whether by
implication or otherwise, as to any other matters. This letter speaks only as of the date hereof
and we assume no obligation to update or supplement this opinion to reflect any facts or
circumstances that arise after the date of this opinion and come to our attention, or any future
changes in laws.
We consent to your filing this opinion as an exhibit to the Registration Statement. In giving
our consent, we do not admit that we are experts with respect to any part of the Registration
Statement, the prospectus or any prospectus supplement within the meaning of the term expert as
used in Section 11 of the Securities Act, nor do we admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act.
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Respectfully submitted,
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/s/ OMelveny & Myers LLP
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exv23w1
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to
the Nektar Therapeutics 2008 Equity Incentive Plan of our reports dated February 25, 2008, with
respect to the consolidated financial statements and schedule of Nektar Therapeutics and the
effectiveness of internal control over financial reporting of Nektar Therapeutics, included in its
Annual Report (Form 10-K) for the year ended December 31, 2007, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
August 18, 2008