As filed with the Securities and Exchange Commission on December 14, 2001
File No. 333-____________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
ACCESS PHARMACEUTICALS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
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(State or Other Jurisdiction of Incorporation or Organization)
83-0221517
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(I.R.S. Employer Identification No.)
2600 Stemmons Freeway, Suite 176, Dallas, Texas 75207
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(Address of Principal Executive Offices) (Zip Code)
ACCESS PHARMACEUTICALS, INC. 2001 RESTRICTED STOCK PLAN
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(Full Title of the Plan)
Kerry P. Gray with copies to:
President and Chief Executive Officer John J. Concannon, III Esq.
Access Pharmaceuticals, Inc. Bingham Dana LLP
2600 Stemmons Freeway, Suite 176 150 Federal Street
Dallas, Texas 75207 Boston, MA 02110
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(Name and address of agent for service)
(214) 905-5100 (617) 951-8000
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(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Ofering Registration
Registered Registered* Price* Price* Fee
- ------------ ----------- -------- ----------- ------------
Common Stock 200,000 $4.10 $820,000.00 $195.98
$.01 par
value per share
* Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended,
based on the average of the high and low prices of the Registrant's
Common Stock, $.01 par value per share, reported by the American Stock
Exchange on December 12, 2001.
PART II
Item 3. Incorporation Of Documents By Reference.
The following documents filed by Access Pharmaceuticals, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC")
are hereby incorporated by reference into this Registration Statement:
(1) the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000 filed by the Registrant with the SEC on April 2,
2001; (2) the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2001; (3) the Registrant's Quarterly Report on
Form 10-Q for the fiscal quarter ended June 30, 2001; (4) the Registrant's
Current Report on Form 8-K filed by the Registrant with the SEC on
November 7, 2001; (5) the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 2001; (6) all other reports filed by the
Registrant pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") since December 31, 2000; and (7) the
description of the Common Stock of the Registrant, $.01 par value per
share (the "Common Stock"), contained in the Registrant's registration
statement on Form 8-A filed with the SEC under Section 12(b) of the
Exchange Act, including any amendment or report filed for the purpose
of updating such description.
In addition, all documents filed pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities registered hereby have been sold or which
deregisters all of such securities then remaining unsold shall be
incorporated by reference into this Registration Statement as of the filing
date of each.
Item 4. Description Of Securities.
Not applicable.
Item 5. Interests Of Named Experts And Counsel.
The validity of the securities registered hereby is being passed upon for
us by Bingham Dana LLP 150 Federal Street, Boston, Massachusetts
02110. Justin P. Morreale, David L. Engel and John J. Concannon III,
partners of Bingham Dana LLP, beneficially own an aggregate of 181,499
shares of our common stock and warrants to purchase 834 shares of our
common stock. Mr. Concannon is the corporate Secretary.
Item 6. Indemnification Of Directors And Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a Delaware corporation to indemnify any person who was or
is, or is threatened to be made, a party 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 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, partnership, joint venture, trust or other
enterprise, provided that such person acted in good faith and in a manner
that such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his conduct
was unlawful. 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. A Delaware corporation may also indemnify such persons
against expenses (including attorneys' fees) in actions brought by or in the
right of the corporation to procure a judgment in its favor, subject to the
same conditions set forth in the immediately preceding sentences, except
that no indemnification is permitted in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to
the corporation unless and to the extent the Court of Chancery of the State
of Delaware or the court in which such action or suit was brought shall
determine upon application that, in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses as the Court of Chancery or other such court shall deem proper.
To the extent such person has been successful on the merits or otherwise
in defense of any action to above, or in defense of any claim, issue or
matter therein, the corporation must indemnify such person against
expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith. The indemnification and
advancement of expenses provided for in, or granted pursuant to, Section
145 is not exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any by-
law, agreement, vote of stockholders or disinterested directors or
otherwise.
Section 145 of the DGCL also provides that a corporation may maintain
insurance against liabilities for which indemnification is not expressly
provided by the statute. The Registrant is insured against liabilities which
it may incur by reason of its indemnification obligations under its
Certificate of Incorporation, Bylaws and indemnification agreements.
Article X of the Registrant's Certificate of Incorporation provides that the
Registrant will indemnify, defend and hold harmless directors, officers,
employees and agents or the Registrant to the fullest extent currently
permitted under the DGCL.
In addition, Article X of the Registrant's Certificate of Incorporation,
provides that neither the Registrant nor its stockholders may recover
monetary damages from the Registrant's directors for a breach of their
fiduciary duty in the performance of their duties as directors of the
Registrant, unless such breach relates to (i) the director's duty of loyalty,
(ii) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) unlawful payments of
dividends or unlawful stock repurchases or redemptions as provided in
Section 174 of the DGCL or (iv) any transactions for which the director
derived an improper personal benefit. The By-Laws of the Registrant
provide for indemnification of the Registrant's directors, officers,
employees and agents on the terms permitted under Section 145 of the
DGCL described above.
The Registrant has entered into indemnification agreements with certain
of its directors and executive officers. These agreements provide rights
of indemnification to the full extent allowed and provided for by Section
145 of the DGCL and the Certificate of Incorporation and Bylaws of
Access.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of or incorporated by reference
into this Registration Statement:
4.1.a Certificate of Incorporation (incorporated by reference to Exhibit
3(a) of the Registrant's Form 8-B dated July 12, 1989, Commission File
Number 9-9134)
4.1.b Certificate of Amendment of Certificate of Incorporation filed
August 21, 1992
4.1.c Certificate of Merger filed January 25, 1996. (Incorporated by
reference to Exhibit E of the Registrant's Registration Statement on
Form S-4 dated December 21, 1995, Commission File No. 33-64031)
4.1.d Certificate of Amendment of Certificate of Incorporation filed
January 25, 1996 (incorporated by reference to Exhibit E of the
Registrant's Registration Statement on Form S-4 dated December 21,
1995, Commission File No. 33-64031)
4.1.e Certificate of Amendment of Certificate of Incorporation filed July
18, 1996. (incorporated by reference to Exhibit 3.8 of the Registrant's
Form 10-K for the year ended December 31, 1996)
4.1.f Certificate of Amendment of Certificate of Incorporation filed June
18, 1998. (incorporated by reference to Exhibit 3.8 of the Registrant's
Form 10-Q for the quarter ended June 30, 1998)
4.1.g Certificate of Amendment of Certificate of Incorporation filed July
31, 2000 (incorporated by reference to Exhibit 3.8 of our form 10-Q for
the quarter ended March 31, 2001)
4.1.h Certificate of Designations of Series A Junior Participating Preferred
Stock filed November 7, 2001
4.2 Amended and Restated Bylaws (incorporated by reference to Exhibit
3.1 of the Registrant's Form 10-Q for the quarter ended June 30, 1996)
4.3 Rights Agreement, dated as of October 31, 2001 between the Registrant
and American Stock Transfer & Trust Company, as Rights Agent
(incorporated by reference to Exhibit 99.1 of the Regsistrant's
Current Report on Form 8-K dated October 19, 2001
4.4 2001 Restricted Stock Plan (incorporated by reference to Appendix A of
the Registrant's Proxy Statement filed with the Securities and Exchange
Commission on April 16, 2001)
5 Opinion of Bingham Dana LLP as to the legality of the securities being
registered
23.1 Consent of Grant Thornton LLP
23.4 Consent of Bingham Dana LLP (included in Exhibit 5)
24 Power of Attorney (included on the signature page of this Registration
Statement)
Item 9. Undertakings.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
pursuant to this Registration Statement, a post-effective amendment to this
Registration Statement 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;
(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.
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 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.
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 the foregoing provisions described in Item 6
above, 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 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.
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 Dallas, Texas, as of the 14th day
of December, 2001.
ACCESS PHARMACEUTICALS, INC.
By: /s/ Kerry P. Gray
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Kerry P. Gray
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Kerry P.
Gray and Stephen B. Thompson, and each of them severally as his true
and lawful attorney-in-fact with the authority to execute in the name of
each such person, and to file with the Securities and Exchange
Commission, together with any exhibits thereto and other documents
therewith, any and all amendments (including without limitation post-
effective amendments) to this Registration Statement on Form S-8
necessary or advisable to enable the Registrant to comply with the
Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission in respect
thereof, which amendments may make such other changes in the
Registration Statement as the aforesaid attorney-in-fact executing the same
deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Kerry P. Gray President and Chief Executive December 14, 2001
- ------------------------- Officer, Director -----------------
Kerry P. Gray
/s/ Herbert H. McDade, Jr. Director December 14, 2001
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Herbert H. McDade, Jr.
/s/ J. Michael Flinn Director December 14, 2001
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J. Michael Flinn
/s/ Stephen B. Howell Director December 14, 2001
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Stephen B. Howell
/s/ Max Link Director December 14, 2001
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Max Link
/s/ John J. Meakem, Jr. Director December 14, 2001
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John J. Meakem, Jr.
/s/ Stephen B. Thompson Vice President, Chief December 14, 2001
- -------------------------- Financial Officer, Treasurer -----------------
Stephen B. Thompson
EXHIBIT INDEX
Exhibit No. Description of Documents
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4.1.a Certificate of Incorporation (incorporated by reference to Exhibit
3(a) of the Registrant's Form 8-B dated July 12, 1989, Commission
File Number 9-9134)
4.1.b Certificate of Amendment of Certificate of Incorporation filed
August 21, 1992
4.1.c Certificate of Merger filed January 25, 1996. (Incorporated by
reference to Exhibit E of the Registrant's Registration Statement
on Form S-4 dated December 21, 1995, Commission File No. 33-64031)
4.1.d Certificate of Amendment of Certificate of Incorporation filed
January 25, 1996 (incorporated by reference to Exhibit E of the
Registrant's Registration Statement on Form S-4 dated December 21,
1995, Commission File No. 33-64031)
4.1.e Certificate of Amendment of Certificate of Incorporation filed
July 18, 1996. (incorporated by reference to Exhibit 3.8 of the
Registrant's Form 10-K for the year ended December 31, 1996)
4.1.f Certificate of Amendment of Certificate of Incorporation filed
June 18, 1998. (incorporated by reference to Exhibit 3.8 of the
Registrant's Form 10-Q for the quarter ended June 30, 1998)
4.1.g Certificate of Amendment of Certificate of Incorporation filed
July 31, 2000 (incorporated by reference to Exhibit 3.8 of the
Registrant's Form 10-Q for the quarter ended March 31, 2001)
4.1.h Certificate of Designations of Series A Junior Participating
Preferred Stock filed November 7, 2001
4.2 Amended and Restated Bylaws (incorporated by reference to Exhibit
3.1 of the Registrant's Form 10-Q for the quarter ended
June 30, 1996)
4.3 Rights Agreement, Dated as of October 31, 2001 between the
Registrant and American Stock Transfer & Trust Company, as
Rights Agent (incorporated by reference to Exhibit 99.1 of the
Registrant's Current Report on Form 8-K dated October 19, 2001)
4.4 2001 Restricted Stock Plan (incorporated by reference to
Appendix A of the Registrant's Proxy Statement filed with the
Securities and Exchange Commission on April 16, 2001)
5 Opinion of Bingham Dana LLP as to the legality of the securities
being registered
23.1 Consent of Grant Thornton LLP
23.4 Consent of Bingham Dana LLP (included in Exhibit 5)
24 Power of Attorney (included on the signature page of this
Registration Statement)