As
filed with the Securities and Exchange Commission on December 12, 2005
Registration
No.
333-_________
UNITED
STATES
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)
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Delaware
(State
or other jurisdiction of
incorporation
or organization)
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95-3698422
(I.R.S.
Employer
Identification
No.)
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14272
Franklin Avenue
Tustin,
California 92780-7017
(714)
508-6000
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
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Paul
J. Lytle, Chief Financial Officer
Peregrine
Pharmaceuticals, Inc.
14272
Franklin Avenue
Tustin,
California 92780-7017
(714)
508-6000
(Name,
address, including zip code, and telephone number, including area
code, of
agent for service)
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with
copies to:
Mark
R. Ziebell
Snell
& Wilmer LLP
600
Anton Boulevard
Suite
1400
Costa
Mesa, California 92626
CALCULATION
OF REGISTRATION FEE
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Title
of securities to be registered
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Amount
to be registered(1)
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Proposed
maximum offering price per share(2)
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Proposed
maximum aggregate offering price(2)
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Amount
of registration fee
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Common
Stock,
$0.001
par value
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5,000,000
shares
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$0.99
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$4,950,000
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$529.65
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| (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. 2005 Stock Incentive
Plan in the event of any future stock split, stock dividend or similar
adjustment of Peregrine’s outstanding common
stock.
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| (2) |
Estimated
solely for the purpose of determining the registration fee pursuant
to
Rule 457(c) and (h) and based upon the average of the high and low
sale
prices of the Company’s Common Stock as reported on The Nasdaq Capital
Market on December 8, 2005.
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PART
II
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 hereby incorporated herein by reference:
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(a)
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Annual
Report on Form 10-K for the fiscal year ended April 30, 2005, as
filed
with the Commission on July 14, 2005 under Section 13(a) of the Securities
Exchange Act of 1934;
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(b)
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Definitive
Proxy Statement with respect to the Annual Meeting of Stockholders
held on
October 24, 2005, as filed with the Commission on August 28,
2005;
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(c)
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Quarterly
Reports on Form 10-Q for the quarters ended July 31, 2005 and October
31,
2005, filed with the Commission on September 9, 2005 and December
12,
2005, respectively;
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(d)
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Current
Reports on Form 8-K filed with the Commission on September 9, 2005,
October 28, 2005, November 23, 2005 and December 9, 2005;
and
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(e)
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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.
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All
reports and other documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), after the filing hereof and prior to a filing of a
post-effective amendment which indicates that all securities offered hereby
have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date
of
the filing of such reports and documents. Any statement contained herein or
in
any 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
subsequent filed document which also is or is deemed to be incorporated by
reference herein modified or superseded such statement. Any such statement
so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
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.
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.
2
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
for which we lawfully indemnify or are required or permitted by law to indemnify
our 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 as follows:
(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 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;
3
(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 registration
statement is on Form S-3, Form S-8, or Form F-3, and 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 December 12, 2005.
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.
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SIGNATURE
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TITLE
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DATE
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/s/
Steven W. King
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President
and Chief Executive
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December
12, 2005
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Steven
W. King
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Officer,
Director
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/s/
Paul J. Lytle
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Chief
Financial Officer and
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December
12, 2005
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Paul
J. Lytle
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Corporate
Secretary
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/s/
Carlton M. Johnson
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Director
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December
12, 2005
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Carlton
M. Johnson
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/s/
Eric S. Swartz
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Director
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December
12, 2005
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Eric
S. Swartz
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/s/
David H. Pohl
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Director
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December
12, 2005
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David
H. Pohl
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/s/
Thomas A. Waltz, M.D.
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Director
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December
12, 2005
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Thomas
A. Waltz, M.D.
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5
EXHIBIT
INDEX
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Exhibit
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Number
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Description
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5.1
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Opinion
of Snell & Wilmer LLP
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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 Snell & Wilmer LLP (contained in Exhibit 5.1)
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(1)
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Peregrine
Pharmaceuticals, Inc. 2005 Stock Incentive Plan
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10.98*
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Form
of Qualified Incentive Stock Option
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10.99*
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Form
of Non-Qualified Stock Option Agreement
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(1)
Incorporated by reference to Exhibit B to Definitive Proxy Statement filed
with
the Commission on August 29, 2005
* Incorporated
by reference to the Current Report on Form 8-K filed with the Commission on
October 28, 2005
6
EXHIBIT
5.1
OPINION
OF COUNSEL
Snell
& Wilmer LLP
600
Anton
Boulevard
Suite
1400
Costa
Mesa, California 92626-7689
TELEPHONE:
(714) 427-7000
FACSIMILE:
(714) 427-7799
December
12, 2005
Peregrine
Pharmaceuticals, Inc.
14272
Franklin Avenue
Tustin,
California 92780
Attention:
Steven M. King, CEO
Re: Issuance
of Shares Pursuant to S-8 Registration Statement
Dear
Mr.
King:
This
letter relates to the issuance of up to 5,000,000 shares of common stock, $.001
par value (the “Shares”), of Peregrine Pharmaceuticals, Inc., a Delaware
corporation (the “Company”) registered pursuant to that Registration Statement
on Form S-8, filed with the Securities and Exchange Commission on December
12,
2005 (the “Registration Statement”). You have requested that we deliver to you
an opinion as to whether the Shares will have been duly authorized, validly
issued, and, when issued, will be fully paid and non-assessable shares of common
stock of the Company. We have examined the Certificate of Incorporation, as
amended, and such other corporate records, including the resolutions of the
Company’s Board of Directors, and such other documents as we have deemed
necessary in order to express the opinion set forth below. In our examination
we
have assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity of all originals
of
all documents submitted to us as copies. As to questions of fact material to
such opinion, we have relied upon statements and representations of the
Company.
Our
opinion is based on existing law that is subject to change either prospectively
or retroactively. Relevant laws could change in a manner that could adversely
affect the Company or its stockholders. We have no obligation to inform the
Company of any such change in the law. We have not been requested to opine,
and
we have not opined, as to any issues other than those expressly set forth
herein. This opinion extends only to questions relating to the validity of
the
Shares offered and sold under the Registration Statement. We express no opinion
with respect to any other issue.
We
are
admitted to practice law in the State of California and our opinion is limited
to federal law and the corporate laws of the State of California and the State
of Delaware that affect such opinion. We express no opinion with respect to
any
other law or the laws of any other jurisdiction.
Based
on
our examination mentioned above, we are of the opinion that the Shares being
registered to be sold pursuant to the Registration Statement are duly authorized
and will be, when sold in the manner described in the Registration Statement
and
documents incorporated by reference thereto, legally and validly issued, and
fully paid and non-assessable.
For
purposes of rendering this opinion we have made such legal and factual inquiries
as we have deemed necessary under the circumstances. Although we have not
independently verified all of the facts relied upon for purposes hereof, nothing
has come to our attention that has led us to believe that the facts are other
than as stated herein, or that there exist other material facts not
considered.
Our
opinion contained herein is solely for the benefit of the Company and may be
relied upon by the Company only in connection with the Registration Statement.
In this regard, we hereby consent to the filing of this opinion, including
this
consent, as an exhibit to the Registration Statement.
Very
truly
yours,
/s/
Snell &
Wilmer LLP
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 2005 Stock Incentive Plan of Peregrine Pharmaceuticals,
Inc. of our report dated July 8, 2005, with respect to the consolidated
financial statements and schedule of Peregrine Pharmaceuticals, Inc. included
in
its Annual Report (Form 10-K) for the year ended April 30, 2005, Peregrine
Pharmaceuticals, Inc. management's assessment of the effectiveness of internal
control over financial reporting, and the effectiveness of internal control
over
financial reporting of Peregrine Pharmaceuticals, Inc., filed with the
Securities and Exchange Commission.
/s/
Ernst
& Young LLP
Orange
County, California
December
5, 2005