AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 21, 1997
REGISTRATION NO. 333-_____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
KOS PHARMACEUTICALS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 65-0670898
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION)
1001 BRICKELL BAY DRIVE, SUITE 2502
MIAMI, FLORIDA 33131
(305) 577-3464
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ISSUANCES OF SHARES TO EMPLOYEES
(FULL TITLE OF PLAN)
DANIEL M. BELL
1001 BRICKELL BAY DRIVE, SUITE 2502
MIAMI, FLORIDA 33131
(305) 577-3464
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES OF ALL COMMUNICATIONS TO:
STEVEN SONBERG, ESQ.
HOLLAND & KNIGHT, LLP
ONE EAST BROWARD BOULEVARD
FT. LAUDERDALE, FLORIDA 33301
(954) 525-1000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE OFFERING PRICE(1) FEE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, PAR VALUE 250 $38.44 $9,610.00 $3.00
$.01 PER SHARE
================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
based upon the average of the high and low prices reported on the
consolidated reporting system for the Nasdaq National Market on August
20, 1997, of $38.44.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission by the Kos Pharmaceuticals, Inc. (the "Company") are incorporated
herein by reference:
(1) The Company's Prospectus filed with the Commission on March 7, 1997
pursuant to Rule 424(b);
(2) The Company's report on Form 10-Q filed for the period ending March
31, 1997;
(3) The Company's report on Form 8-K filed with the Commission on July
29, 1997;
(4) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all remaining securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this prospectus and to be part
thereof from the date of filing of such documents; and
(5) The description of the Company's Common Stock contained under the
caption "Description of Registrant's Capital Stock" in the 424(b) Prospectus and
incorporated by reference into the Registration Statement of the Company on Form
8-A (Commission File No. 000-22171) filed with the Commission pursuant to
Section 12(g) of the Exchange Act on February 25, 1997.
Any statement in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this prospectus 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 replaces such statement. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
The Company undertakes to provide without charge to each person,
including any beneficial owner, to whom this prospectus is delivered, upon
written or oral request of such person, a copy of any and all information that
has been incorporated by reference in this prospectus (not including exhibits to
the information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that this prospectus
incorporates). Such request should be directed to the President, Kos
Pharmaceuticals, Inc., 1001 Brickell Bay Drive, Suite 2502, Miami, Florida
33131, telephone number (305) 577-3464.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable; the class of securities to be offered is registered
under Section 12 of the Exchange Act.
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<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Florida Business Corporation Act ("FBCA") and the Company's Bylaws
provide that in certain cases, each officer and director of the Company shall be
indemnified by the Company against certain costs, expenses and liabilities which
he or she may incur in his or her capacity as such. The Company also intends to
purchase directors' and officers' liability insurance consistent with the
provisions of the Florida Business Corporation Act to protect directors and
officers from liabilities against various laws, including the Securities Act of
1933.
The Company's Bylaws provide:
RIGHT TO INDEMNIFICATION. Any person, his heirs, or personal
representative, made, or threatened to be made a party to any
threatened, pending, or completed action or proceeding, whether civil,
criminal, administrative, regulatory, or investigative ("Proceeding")
because he is or was a director or officer of this Corporation or
serves or served any other corporation or other enterprise in any
capacity at the request of this Corporation, shall be indemnified by
this Corporation, to the full extent permitted by the Florida Business
Corporation Act; provided, however, that the Corporation shall
indemnify any such person seeking indemnity in connection with a
Proceeding (or part thereof) initiated by such person only if such
Proceeding (or part thereof) was authorized by the Board of Directors
of the Corporation. In discharging his duty, any director or officer,
when acting in good faith, may rely upon information, opinions,
reports, or statements, including financial statements and other
financial data, in each case prepared or presented by (1) one or more
officers or employees of the Corporation whom the director or officer
reasonably believes to be reliable and competent in the matters
presented, (2) counsel, public accountants, or other persons as to
matters that the director or officer believes to be within that
person's professional or expert competence, or (3) in the case of a
director, a committee of the board of directors upon which he does not
serve, duly designated according to law, as to matters within its
designated authority, if the director reasonably believes that the
committee is competent.
ADVANCES. The rights set forth above in this Article VI shall include
the right to be paid by the Corporation expenses incurred in defending
or being represented in any such Proceeding in advance of its final
disposition; provided, however, that the payment of such expenses
incurred by a director or officer because he is or was a director of
officer of this Corporation or serves or served any other corporation
or enterprise in any capacity at the request of this Corporation (and
not in any other capacity in which service was or is rendered by such
person while a director or officer, including service to an employee
benefit plan) in advance of the final disposition of such Proceeding,
shall be made only upon delivery to the Corporation of an undertaking,
by or on behalf of such director or officer, to repay all amounts so
advanced if it should be determined ultimately that such director or
officer is not entitled to be indemnified under this Article VI or
otherwise.
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<PAGE>
CONTRACT RIGHT. All rights to indemnification, including advancement of
expenses, shall be deemed to be provided by a contract between the
Corporation and the director or officer who serves in such capacity at
any time while this Article VI and other relevant provisions of the
Florida Business Corporation Act and other applicable law, if any, are
in effect, such that any repeal or modification thereof shall not
adversely affect any right existing at the time of such repeal or
modification.
RIGHT TO BRING SUIT. If a claim under the preceding paragraphs of this
Article VI is not paid in full by the Corporation within 90 days after
a written claim therefor has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim and, if successful in whole
or in part, the claimant shall be entitled to be paid also the expense,
including attorney's fees, of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any Proceeding in advance of
its final disposition where the required undertaking has been tendered
to the Corporation) that the claimant has not met the applicable
standard of conduct which makes it permissible under the Florida
Business Corporation Act for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel, or its shareholders)
to have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in the
Florida Business Corporation Act, nor an actual determination by the
Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant had not met the applicable standard
of conduct.
NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by this
Article VI shall not be exclusive of any other right which such person
may have or hereafter acquire under any statute, provision of these
Bylaws, the Articles of Incorporation, agreement, vote of shareholders
or disinterested directors or otherwise.
INSURANCE. The Corporation may maintain insurance, at its expense, for
the purpose of indemnifying itself and any director, officer, employee
or agent of the Corporation or another corporation, partnership, trust
or other enterprise, whether or not the Corporation would have the
power to provide such indemnity under the Florida Business Corporation
Act.
Section 607.0850 of the FBCA, "Indemnification of officers, directors, employees
and agents," provides:
(1) A corporation shall have power to indemnify any person who was or
is a party to any proceeding (other than an action by, or in the right
of, the corporation), by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation or is or was
serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise against liability incurred in connection
with such proceeding, including any appeal thereof, if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any proceeding by judgment,
order, settlement, or conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the
II-3
<PAGE>
person did not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the
corporation or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to indemnify any person, who was or
is a party to any proceeding by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee, or agent of the corporation or is or was
serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, against expenses and amounts paid in
settlement not exceeding, in the judgment of the board of directors,
the estimated expense of litigating the proceeding to conclusion,
actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation, except that no indemnification shall
be made under this subsection in respect of any claim, issue, or matter
as to which such person shall have been adjudged to be liable unless,
and only to the extent that, the court in which such proceeding was
brought, or any other court of competent jurisdiction, shall determine
upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(3) To the extent that a director, officer, employee, or agent of a
corporation has been successful on the merits or otherwise in defense
of any proceeding referred to in subsection (1) or subsection (2), or
in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses actually and reasonably incurred by him in
connection therewith.
(4) Any indemnification under subsection (1) or subsection (2), unless
pursuant to a determination by a court, shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee,
or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsection (1) or
subsection (2). Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such
proceeding;
(b) If such a quorum is not obtainable or, even if obtainable,
by majority vote of a committee duly designated by the board
of directors (in which directors who are parties may
participate) consisting solely of two or more directors not at
the time parties to the proceeding;
(c) By independent legal counsel;
1. Selected by the board of directors prescribed in
paragraph (a) or the committee prescribed in
paragraph (b); or
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<PAGE>
2. If a quorum of the directors cannot be obtained
for paragraph (1) and the committee cannot be
designated under paragraph (b), selected by majority
vote of the full board of directors (in which
directors who are parties may participate); or
(d) By the shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to such
proceeding or, if no such quorum is obtainable, by a majority
vote of shareholders who were not parties to such proceeding.
(5) Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the determination
that indemnification is permissible. However, if the determination of
permissibility is made by independent legal counsel, persons specified
by paragraph (4)(c) shall evaluate the reasonableness of expenses and
may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a civil or
criminal proceeding may be paid by the corporation in advance of the
final disposition of such proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if he is
ultimately found not to be entitled to indemnification by the
corporation pursuant to this section. Expenses incurred by other
employees and agents may be paid in advance upon such terms or
conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided pursuant
to this section are not exclusive, and a corporation may make any other
or further indemnification or advancement of expenses of any of its
directors, officers, employees, or agents, under any bylaw, agreement,
vote of shareholders or disinterested directors, or otherwise, both as
to action in his official capacity and as to action in another capacity
while holding such office. However, indemnification or advancement of
expenses shall not be made to or on behalf of any director, officer,
employee, or agent if a judgment or other final adjudication
establishes that his actions, or omissions to act, were material to the
cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful;
(b) A transaction from which the director, officer, employee,
or agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the
liability provisions of s. 607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the
right of the corporation to procure a judgment in its favor or
in a proceeding by or in the right of a shareholder.
II-5
<PAGE>
(8) Indemnification and advancement of expenses as provided in this
section shall continue as, unless otherwise provided when authorized or
ratified, to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person, unless otherwise
provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or
of the shareholders in the specific case, a director, officer,
employee, or agent of the corporation who is or was a party to a
proceeding may apply for indemnification or advancement of expenses, or
both, to the court conducting the proceeding, to the circuit court, or
to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice that it considers
necessary, may order indemnification and advancement of expenses,
including expenses incurred in seeking court-ordered indemnification or
advancement of expenses, if it determines that:
(a) The director, officer, employee, or agent is entitled to
mandatory indemnification under subsection (3), in which case
the court shall also order the corporation to pay the director
reasonable expenses incurred in obtaining court-ordered
indemnification or advancement of expenses;
(b) The director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue
of the exercise by the corporation of its power pursuant to
subsection (7); or
(c) The director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of
expenses, or both, in view of all the relevant circumstances,
regardless of whether such person met the standard of conduct
set forth in subsection (1), subsection (2), or subsection
(7).
(10) For purposes of this section, the term "corporation" includes, in
addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director,
officer, employee, or agent of a constituent corporation, or is or was
serving at the request of a constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, is in the same position under this
section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(11) For purposes of this section;
(a) The term "other enterprises" includes employee benefit
plans;
(b) The term "expenses" includes counsel fees, including those
for appeal;
(c) The term "liability" includes obligations to pay a
judgment, settlement, penalty, fine (including an excise tax
assessed with respect to any employee benefit plan), and
expenses actually and reasonably incurred with respect to a
proceeding;
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<PAGE>
(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether
civil, criminal, administrative, or investigative and whether
formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation"
includes any service as a director, officer, employee, or
agent of the corporation that imposes duties on such persons,
including duties relating to an employee benefit plan and its
participants or beneficiaries; and
(g) The term "not opposed to the best interest of the
corporation" describes the actions of a person who acts in
good faith and in a manner he reasonably believes to be in the
best interests of the participants and beneficiaries of an
employee benefit plan.
(12) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee, or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any
such capacity or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such
liability under the provisions of this section.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company,
the Company has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-7
<PAGE>
ITEM 8. EXHIBITS.
The exhibits filed as part of this Registration Statement are as
follows:
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 -- Articles of Incorporation of the Company, as amended, (incorporated by
reference to Exhibit 3.1 of the Registrant's Registration Statement
on Form S-1 filed with the Commission on December 17, 1997, as
amended (File No. 333-17991)
4.2 -- Bylaws of the Registrant (incorporated by reference to Exhibit 3.2
of the Registrant's Registration Statement on Form S-1 filed with the
Commission on December 17, 1997, as amended (File No. 333-17991)
5 -- Opinion of Holland & Knight LLP
23.1 -- Consent of Arthur Andersen LLP
23.2 -- Consent of Holland & Knight LLP (included in opinion filed as Exhibit
5)
24.1 -- Powers of Attorney (included on the signature page to this
Registration Statement)
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
A. (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; and
(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 (1) (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed or
II-8
<PAGE>
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 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 herein, 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 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 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 of 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 of 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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, Kos Pharmaceuticals, Inc., 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 Miami, State of Florida,
on the 21st day of August, 1997.
KOS PHARMACEUTICALS, INC.
By: /s/ DANIEL M. BELL
---------------------------------
Daniel M. Bell, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Daniel M. Bell and Juan F. Rodriguez and each of them,
his true and lawful attorney-in-fact and agents, 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 all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents 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
might or could do in person, hereby ratifying and confirming all that each of
said attorneys-in-fact or his 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 below by the following persons in their
capacities on August 21, 1997.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ DANIEL M. BELL
- --------------------------- President, Chief Executive August 21, 1997
Daniel M. Bell Officer and Director
(Principal Executive Officer)
/s/ MICHAEL JAHARIS
- --------------------------- Chairman of the Board of August 21, 1997
Michael Jaharis Directors
/s/ GEORGE BLEWS
- --------------------------- Vice President & Treasurer August 21, 1997
George Blews (Principal Financial Officer)
/s/ JUAN F. RODRIGUEZ
- --------------------------- Controller August 21, 1997
Juan F. Rodriguez (Principal Accounting Officer)
/s/ ROBERT E. BALDINI
- --------------------------- Vice Chairman of the Board of August 21, 1997
Robert E. Baldini Directors
/s/ JOHN BRADEMAS
- --------------------------- Director August 18, 1997
John Brademas
/s/ STEVEN JAHARIS
- --------------------------- Director August 21, 1997
Steven Jaharis
/s/ LOUIS C. LASAGNA
- --------------------------- Director August 21, 1997
Louis C. Lasagna
/s/ MARK NOVITCH
- --------------------------- Director August 16, 1997
Mark Novitch
- --------------------------- Director
Frederick B. Whittemore
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
5 -- Opinion of Holland & Knight LLP
23.1 -- Consent of Arthur Andersen LLP
23.2 -- Consent of Holland & Knight LLP
(included in opinion filed as Exhibit 5).
EXHIBIT 5
August 21, 1997
Kos Pharmaceuticals, Inc.
1001 Brickell Bay Drive
Suite 2502
Miami, Florida 33131
Re: Kos Pharmaceuticals, Inc. (the "Company") - Registration Statement on
Form S-8
Ladies & Gentlemen:
You have requested our opinion in connection with the above-referenced
Registration Statement, (the "Registration Statement") in connection with the
registration for sale of up to 250 shares (the "Shares") of the common stock,
$.01 par value per share, of the Company (the "Common Stock"), which may be
issued by the Company to certain of its employees.
We have reviewed copies of the Articles of Incorporation and Bylaws of the
Company, and have examined such corporate documents and records and other
certificates, and have made such investigations of law, as we have deemed
necessary in order to render the opinion hereinafter set forth.
Based upon and subject to the foregoing, we are of the opinion that the Shares
are duly authorized, validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not hereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
HOLLAND & KNIGHT LLP
By: /S/ STEVEN SONBERG
--------------------------
Steven Sonberg
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated July 15,
1996 included in Kos Pharmaceuticals, Inc.'s Form S-1 Registration Statement for
the year ended June 30, 1996 and to all references to our Firm included in this
Form S-8 Registration Statement.
ARTHUR ANDERSEN LLP
Miami, Florida,
August 21, 1997.
