File No. 333-______
As filed with the Securities and Exchange Commission on September ___,2000
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 issuer as specified in its charter)
Delaware 83-0221517
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(State or other jurisdiction (I.R.S. Employer
or incorporation or organization) Identification No.)
2600 Stemmons Frwy., Suite 176, Dallas, Texas 75207
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(Address of Principal Executive Offices) (Zip Code)
Access Pharmaceuticals, Inc. 1995 Stock Option Plan
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(Full title of the plan)
Kerry P. Gray Copy to: John J. Concannon III, Esq.
Chief Executive Officer Bingham Dana LLP.
Access Pharmaceuticals, Inc. 150 Federal Street
2600 Stemmons Frwy., Suite 176 Boston, MA 02110
Dallas, Texas 75207
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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
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share* price fee
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Common Stock, 2,500,000 $6.125* $13,937,500 $3,679.50
$0.01 par value shares
per share
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* This estimate is made pursuant to Rule 457(h) solely for the purpose of
determining the registration fee. It is not known how many shares will be
purchased under the plan or at what price such shares will be purchased.
The above calculation is based on the offering of 2,500,000 shares at a
purchase price of $6.125 per share, which purchase price is the closing
price of the Registrants's Common Stock as reported on the American Stock
Exchange on September 11, 2000.
<PAGE>
PART II
INFORMATION REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents filed by Access Pharmaceuticals, Inc., or the
Registrant, with the Securities and Exchange Commission, or the SEC, are
hereby incorporated by reference into this Registration Statement:
1. our Annual Report on Form 10-K for the year ended December 31,
1999, as filed with the SEC pursuant to Section 13(a) or 15(d) of the
Securities and Exchange Act of 1934, as amended, or the Exchange Act;
2. all reports previously filed by us pursuant to Section 13(a) or 15(d) of
the Exchange Act, since December 31, 1999; and
3. the description of the Common Stock contained in our registration
statement filed with the SEC under Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
In addition, all documents subsequently filed by the Registrant 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 securities registered
hereby have been sold or which deregisters all of such 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.
Item 4. Description of Securities
Not applicable
Item 5. Interests of Named Experts or Counsel
The validity of our common stock to be sold in this prospectus 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 shares of
our common stock and warrants to purchase 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, or DGCL,
empowers a Delaware corporation to indemnify its officers and directors
and certain other persons to the extent and under the circumstances set forth
therein.
<PAGE>
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.
We intend to maintain insurance for the benefit of its directors and officers
insuring such persons against certain liabilities, including liabilities under
the securities laws.
Item 7. Exemption from Registration Claimed
Not applicable
Item 8. Exhibits
The following exhibits are part of this Registration Statement:
4.1 Certificate of Incorporation (Incorporated by reference to Exhibit 3(a)
of our Form 8-B dated July 12, 1989, Commission File Number 9-9134).
4.2 Certificate of Amendment of Certificate of Incorporation filed August
21, 1992 (Incorporated by reference to Exhibit 3.3 of our Annual Report
on Form 10-K for the year ended December 31, 1992).
4.3 Certificate of Merger filed January 25, 1996. (Incorporated by
reference to Exhibit E of our Registration Statement on Form S-4 dated
December 21, 1995, Commission File No. 33-64031).
4.4 Certificate of Amendment of Certificate of Incorporation filed January
25, 1996. (Incorporated by reference to Exhibit E of our Registration
Statement on Form S-4 dated December 21, 1995, Commission File No.
33-64031).
<PAGE>
4.5 Certificate of Amendment of Certificate of Incorporation filed July 18,
1996 (Incorporated by reference to Exhibit 3.8 of our Form 10-K for the
year ended December 31, 1996).
4.6 Amended and Restated By-Laws (Incorporated by reference to Exhibit
3.1 of our Form 10-Q dated June 30, 1996).
4.7 1995 Stock Option Plan (Incorporated by reference to Exhibit F of our
Registration Statement on Form S-4 dated December 21, 1995, Commission
File No. 33-64031).
4.8 Certificate of Amendment of Certificate of Incorporation filed June 18,
1998 (Incorporated by reference to Exhibit 3.8 of our Form 10-Q for the
quarter ended June 30, 1998).
4.9 Certificate of Amendment of Certificate of Incorporation filed July 31,
2000
5.0 Opinion and Consent of Bingham Dana LLP as to the legality of the
securities being registered.
23.1 Consent of Grant Thornton LLP.
23.2 Consent of KPMG LLP.
23.3 Consent of Smith, Anglin & Company.
24 Power of Attorney (included on the signature pages of the Registration
Statement).
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement 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;
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3. To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination
of the offering;
4. That, for purposes of determining any liability under the Securities Act
of 1933, each filing of our annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof; and
5. 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, 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 of 1933 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 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 of 1933 and
will be governed by the final adjudication of such issue.
[Remainder of page intentionally left blank]
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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 Dallas, State of Texas, on this
12th day of September 2000.
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, acting alone and
without the other, his/her true and lawful attorney-in-fact with the authority
to execute in the name of each 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.
<PAGE>
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 September 11, 2000
----------------------- Officer, Director
Kerry P. Gray
/s/ Stephen B. Thompson Vice President, Chief Financial September 11, 2000
------------------------ Officer, Treasurer
Stephen B. Thompson
/s/ Herbert H. McDade, Jr. Chairman of the Board of September 11, 2000
-------------------------- Directors
Herbert H. McDade, Jr.
/s/ J. Michael Flinn Director September 11, 2000
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J. Michael Flinn
/s/ Stephen B. Howell Director September 11, 2000
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Stephen B. Howell
/s/ Max Link Director September 11. 2000
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Max Link
/s/ Howard P. Milstein Director September 11, 2000
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Howard P. Milstein
/s/ Richard Stone Director September 11, 2000
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Richard Stone
/s/ Preston Tsao Director September 11, 2000
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Preston Tsao
