S-8

As filed with the Securities and Exchange Commission on May 6, 2016

Registration No. 333-        

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

NIVALIS THERAPEUTICS, INC.

(Exact name of registrant as specified in its charter)

Delaware	20-8969493
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)
3122 Sterling Circle, Suite 200
Boulder, Colorado	80301
(Address of Principal Executive Offices)	(Zip Code)

Employment Inducement Awards

(Full titles of the plans)

Jon Congleton

President and Chief Executive Officer

Nivalis Therapeutics, Inc.

3122 Sterling Circle, Suite 200

Boulder, Colorado 80301

(720) 945-7700

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Carin Cutler, Esq.
Gross Cutler Seiler Dupont LLC
5480 Valmont Road, Suite 200
Boulder, CO 80301
(303) 926-4827 R. Michael Carruthers
Chief Financial Officer
Nivalis Therapeutics, Inc.
3122 Sterling Circle, Suite 200
Boulder, Colorado 80301
(720) 945-7700

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):

Large Accelerated filer	o	Accelerated filer	x
Non-accelerated filer	o (Do not check if a smaller reporting company)	Smaller reporting company	o

CALCULATION OF REGISTRATION FEE

Title of securities to be registered	Amount to be registered (1)		Proposed maximum offering price per share			Proposed maximum aggregate offering price			Amount of registration fee
Common Stock, $0.001 par value per share	108,333	(2)	$	4.68	(3)	$	506,999	(3)	$	51.05
Common Stock, $0.001 par value per share	216,667	(4)	$	4.325	(5)	$	937,085	(5)	$	94.37
TOTAL	325,000					$	1,444,084		$	145.42

(1)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock, par value $0.001 per share (“Common Stock”), that become issuable under the plans by reason of any stock dividend, stock split, recapitalization or other similar transaction.

(2)Consists of shares of Common Stock that are issuable upon exercise of stock options granted outside of the Registrant’s employee equity compensation plans to an individual to induce such individual to accept employment with the Registrant.

(3)Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) of the Securities Act using a weighted average exercise price of $4.68 per share.

(4)Consists of restricted stock units issued outside of the Registrant’s employee equity compensation plans to an individual to induce such individual to accept employment with the Registrant.

(5)This estimate is made pursuant to Rule 457(h) and Rule 457(c) of the Securities Act solely for purposes of calculating the registration fee, and is based on the average high and low reported market prices for shares of the Common Stock on May 5, 2016.

EXPLANATORY NOTE

To induce David M. Rodman, M.D. to accept employment with the Registrant as its Chief Medical Officer and Executive Vice President of Discovery, the Registrant granted the following equity awards to Dr. Rodman (the “Employment Inducement Awards”) on April 18, 2016 (the “Grant Date”):

·an option to purchase 108,333 shares of Common Stock (the “Option”) with a per-share exercise price of $4.68; and

·a restricted stock unit award (an “RSU’s”) with respect to 216,667 shares of Common Stock.

One-fourth of the shares underlying the Option will vest on the first anniversary of the Grant Date, and the remaining shares underlying the Option will vest in 36 equal installments on a monthly basis thereafter. The RSU’s will vest in equal quarterly installments over a three-year period commencing with the calendar quarter following the Grant Date. The vesting of the Option and the RSUs are subject to Dr. Rodman’s continued employment, except as otherwise described in his employment agreement.

Each Employment Inducement Award was approved by the Registrant’s Compensation Committee in compliance with and in reliance on NASDAQ Listing Rule 5635(c)(4), which exempts employment inducement grants from the general requirement of the NASDAQ Listing Rules that equity-based compensation plans and arrangements be approved by stockholders. This Registration Statement on Form S-8 registers shares of Common Stock issuable pursuant to the Employment Inducement Awards.

PART I

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS

ITEM 1.PLAN INFORMATION.

Not required to be filed with this Registration Statement.

ITEM 2.REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.

Not required to be filed with this Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3.INCORPORATION OF DOCUMENTS BY REFERENCE.

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”):

(a)The Registrant’s annual report on Form 10-K filed on March 8, 2016 (File No. 001-37449), (including, for the avoidance of doubt, information specifically incorporated by reference in the Registrant’s Form 10-K from the Registrant’s Definitive Proxy Statement for its 2016 Annual Meeting of Stockholders, filed with the Commission on March 21, 2016.

(b)The Registrant’s quarterly report on Form 10-Q filed with the Commission on May 3, 2016 (File No. 001-37449).

(c)The Registrant’s current reports on Form 8-K filed with the Commission on January 15, 2016, January 26, 2016, February 18, 2016, March 1, 2016, March 7, 2016, April 5, 2016 and April 22, 2016 (File No. 001-37449).

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(d)The description of the Registrant’s Common Stock contained in the Registrant’s registration statement on Form 8-A filed on June 16, 2015 (File No. 001-37449) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

All documents, reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and 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, reports and definitive proxy or information statements, or portions thereof, which are furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes that statement. Any such statement so modified or superseded shall not constitute a part of this Registration Statement, except as so modified or superseded.

ITEM 4.DESCRIPTION OF SECURITIES.

Not applicable.

ITEM 5.INTERESTS OF NAMED EXPERTS AND COUNSEL.

Not applicable.

ITEM 6.INDEMNIFICATION OF DIRECTORS AND OFFICERS.

The Registrant is incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any persons who were, are, or are threatened to be made, parties 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 such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who were, are, or are threatened to be made, a party to any threatened, pending or completed action or suit 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 such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) actually and reasonably incurred.

The Registrant’s amended and restated certificate of incorporation and amended and restated bylaws provide for the indemnification of its directors and officers to the fullest extent permitted under the Delaware General Corporation Law.

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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 duties as a director, except for liability for any:

·transaction from which the director derives an improper personal benefit;

·act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

·unlawful payment of dividends or redemption of shares; or

·breach of a director’s duty of loyalty to the corporation or its stockholders.

The Registrant’s amended and restated certificate of incorporation includes such a provision. Expenses incurred by any officer or director in defending any such action, suit or proceeding in advance of its final disposition shall be paid by the Registrant upon delivery to it of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Registrant.

Section 174 of the Delaware General Corporation Law provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.

As permitted by the Delaware General Corporation Law, the Registrant has entered into indemnity agreements with each of its directors and executive officers. The indemnification agreements provide that the Registrant will indemnify the director or officer to the fullest extent permitted by law for claims arising in his or her capacity as a director or officer, provided that he or she acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the Registrant’s best interests and, with respect to any criminal proceeding, had no reasonable cause to believe that his conduct was unlawful. The indemnification agreements provide that in the event that the Registrant does not assume the defense of a claim against a director or officer, the Registrant will be required to advance his expenses in connection with his defense, provided that he undertakes to repay all amounts advanced if it is ultimately determined that he is not entitled to be indemnified by the Registrant.

At present, there is no pending litigation or proceeding involving any of the Registrant’s directors or executive officers as to which indemnification is required or permitted, and the Registrant is not aware of any threatened litigation or proceeding that may result in a claim for indemnification.

The Registrant has an insurance policy in place that covers its officers and directors with respect to certain liabilities, including liabilities arising under the Securities Act or otherwise.

ITEM 7.EXEMPTION FROM REGISTRATION CLAIMED.

Not applicable.

ITEM 8.EXHIBITS.

The exhibits listed below in the “Index to exhibits” are part of this Registration Statement on Form S-8 and are number in accordance with Item 601 of Regulation S-K.

ITEM 9.UNDERTAKINGS.

(a)The undersigned Registrant hereby undertakes:

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(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 dollar 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent 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 (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 Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement; and

(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.

(c)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 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 of 1933, as amended, 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 Boulder, State of Colorado, on May 6, 2016.

NIVALIS THERAPEUTICS, INC.
By:	/s/ Jon Congleton
	Jon Congleton
	President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jon Congleton, R. Michael Carruthers and Tom Sokolowski, and each of them, his true and lawful attorneys-in-fact and agents, each 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 exhibits thereto and other documents in connection therewith, with the Securities and Exchange 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, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their 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 by the following persons in the capacities set forth opposite their names and on the dates indicated.

Signature	Title	Date
/s/ John Congleton	President, Chief Executive Officer and Member of the Board of Directors	May 6, 2016
Jon Congleton	(Principal Executive Officer)
/s/ R. Michael Carruthers	Chief Financial Officer	May 6, 2016
R. Michael Carruthers	(Principal Financial and Accounting Officer)
/s/ Howard Furst, M.D.	Chairman of the Board of Directors	May 6, 2016
Howard Furst, M.D.
/s/ Paul Sekhri	Member of the Board of Directors	May 6, 2016
Paul Sekhri
/s/ Evan Loh, M.D.	Member of the Board of Directors	May 6, 2016
Evan Loh, M.D.
/s/ John Moore	Member of the Board of Directors	May 6, 2016
John Moore
/s/ Robert Conway	Member of the Board of Directors	May 6, 2016
Robert Conway

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EXHIBIT INDEX

Exhibit Number	Description
4.1	Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-8 (Registration No. 333-205220), filed June 25, 2015)
4.2	Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.4 to the Registrant’s Registration Statement on Form S-1 (Registration No. 333-204127), filed May 13, 2015)
4.3	Form of Common Stock Certificate of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (Registration No. 333-204127), filed May 13, 2015)
4.4	Inducement Stock Option Agreement between the Registrant and David M. Rodman, M.D. (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q (File No. 001-37449), filed May 3, 2016)
4.5	Inducement Stock Restricted Stock Unit Agreement between the Registrant and David M. Rodman, M.D. (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q (File No. 001-37449), filed May 3, 2016)
5.1	Opinion of Gross Cutler Seiler Dupont LLC
23.1	Consent of Gross Cutler Seiler Dupont LLC (included as part of Exhibit 5.1)
23.2	Consent of Ernst & Young LLP, independent registered public accounting firm
24.1	Powers of Attorney (included on signature page)

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EX-5.1

Exhibit 5.1

May 6, 2016

Board of Directors

Nivalis Therapeutics, Inc.

3122 Sterling Circle

Boulder, Colorado 80302

Ladies and Gentlemen:

We are acting as counsel to Nivalis Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with its registration statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”) relating to the registration of 216,667 additional shares of Common Stock (the “RSU Shares”) issuable from time to time in accordance with the terms of an Inducement Restricted Stock Agreement dated April 18, 2016 between the Company and David Rodman, M.D. (the “Inducement RSU Agreement”), and 108,333 additional shares of Common Stock (the “Option Shares” and collectively with the RSU Shares, the “Shares”) issuable from time to time in accordance with the terms of an Inducement Stock Option Agreement dated April 18, 2016 between the Company and David Rodman, M.D. (the “Inducement Option Agreement”).  This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement

For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on.  This opinion letter is given, and all statements herein are made, in the context of the foregoing.

This opinion letter is based as to matters of law solely on the Delaware General Corporation Law, as amended.  We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations.  As used herein, the term “Delaware General Corporation Law, as amended” includes the statutory provisions contained therein, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws.

Based upon, subject to and limited by the foregoing, we are of the opinion that, as of the date hereof, the Shares have been duly authorized by all necessary corporate action on the part of the Company and,

following (i) effectiveness of the Registration Statement, (ii) issuance of the RSU Shares reserved for issuance under the Inducement RSU Agreement in accordance with the terms of the Inducement RSU Agreement, (iii) the issuance of the Option Shares reserved for issuance under the Inducement Option Agreement in accordance with the terms of the Inducement Option Agreement, and (iv) receipt by the Company of the consideration for the Shares specified in the resolutions of the Board of Directors or a duly authorized committee of the Board of Directors authorizing the issuance thereof, the Shares will be validly issued, fully paid and nonassessable.

This opinion letter has been prepared for use in connection with the Registration Statement.  We assume no obligation to advise you of any changes in the foregoing subsequent to the effective date of the Registration Statement.

We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the prospectus constituting a part of the Registration Statement.  In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act of 1933, as amended.

Very truly yours,

/s/ Gross Cutler Seiler Dupont LLC

GROSS CUTLER SEILER DUPONT LLC

5480 Valmont Road, Suite 200, Boulder, CO 80304

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EX-23.2

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Employment Inducement Awards, granted by Nivalis Therapeutics, Inc. of our report dated March 8, 2016, with respect to the financial statements of Nivalis Therapeutics, Inc. included in its Annual Report on Form 10-K , filed with the Securities and Exchange Commission.

	/s/ Ernst & Young LLP
Denver, Colorado
May 6, 2016