As filed with the Securities and Exchange Commission on October 21, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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PHARMOS CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 36-3207413
(State or other jurisdiction (IRS Employer Identification
of incorporation or organization) Number)
2 Innovation Drive
Alachua, Florida 32615
(904) 462-1210
1. 1991 Incentive Stock Option Plan
2. 1992 Incentive and Non-Qualified Stock Option Plan
3. 1992 Aviv Stock Option Plan
4. 1992 Bodor Stock Option Plan
5. 1994 Grinstead Stock Option Plan
6. 1994 Loeb Stock Option Plan
7. 1995 Grinstead Stock Option Plan
8. 1995 Knight Stock Option Plan
9. 1995 Loeb Stock Option Plan
10. 1995 Schlachet Stock Option Plan
11. 1997 Employees and Directors Warrants Plan
12. Mark Consulting Warrants Plan
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(Full Titles of Plan)
Gad Riesenfeld
2 Innovation Drive
Alachua, Florida 32615
(904) 462-1210
(Name, address and telephone number of agent for service)
With a copy to:
Adam D. Eilenberg, Esq.
Eilenberg & Zivian
666 Third Avenue, 30th Floor
New York, New York 10017
(212) 986-2468
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
====================================================================================================================================
<CAPTION>
Title of Securities to be registered Amount to be Proposed Proposed Amount of
registered maximum maximum registration
(1) offering aggregate fee
price per offering
share price
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<S> <C> <C> <C> <C>
Shares of Common Stock issuable upon exercise of 11,476 $2.50 $28,690 $8.69
11,476 Options at $2.50 per share pursuant to the
1991 Incentive Stock Option Plan
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Shares of Common Stock issuable upon exercise of 586,499 $2.50 $1,466,148 $444.32
586,499 Options at $2.50 per share pursuant to the
1992 Incentive and Non-Qualified Stock Option Plan
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Shares of Common Stock issuable upon exercise of 163,501 $2.6875(2) $43,409(2) $133.15(2)
163,501 Options pursuant to the 1992 Incentive and
Non-Qualified Stock Option Plan
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Shares of Common Stock issuable upon exercise of 39,376 $2.50 $98,440 $29.83
39,376 Options at $2.50 per share pursuant to the
1992 Aviv Stock Option Plan
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Shares of Common Stock issuable upon exercise of 38,250 $5.20 $198,900 $60.27
38,250 Options at $5.20 per share pursuant to the
1992 Bodor Stock Option Plan
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Shares of Common Stock issuable upon exercise of 80,000 $2.50 $200,000 $60.61
80,000 Options at $2.50 per share pursuant to the
1994 Grinstead Stock Option Plan
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Shares of Common Stock issuable upon exercise of 30,000 $2.50 $75,000 $22.73
30,000 Options at $2.50 per share pursuant to the
1994 Loeb Stock Option Plan
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Shares of Common Stock issuable upon exercise of 20,000 $1.9375 $38,750 $11.74
20,000 Options at $1.9375 per share pursuant to the
1995 Grinstead Stock Option Plan
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Shares of Common Stock issuable upon exercise of 10,000 $1.9375 $19,375 $5.87
10,000 Options at $1.9375 per share pursuant to the
1995 Knight Stock Option Plan
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Shares of Common Stock issuable upon exercise of 20,000 $1.9375 $38,750 $11.74
20,000 Options at $1.9375 per share pursuant to the
1995 Loeb Stock Option Plan
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Shares of Common Stock issuable upon exercise of 10,000 $1.9375 $19,375 $5.87
10,000 Options at $1.9375 per share pursuant to the
1995 Schlachet Stock Option Plan
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Shares of Common Stock issuable upon exercise of 1,130,000 $1.59 $1,796,700 $544.45
1,130,000 Warrants at $1.59 per share pursuant to the
1997 Employees and Directors Warrants Plan
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Shares of Common Stock issuable upon exercise of 75,000 $1.66 $124,500 37.73
75,000 Warrants at $1.66 per share pursuant to the
1997 Employees and Directors Warrants Plan
- ------------------------------------------------------------------------------------------------------------------------------------
Shares of Common Stock issuable upon exercise for 10,000 $1.39 $13,900 $4.21
10,000 Warrants at $1.39 per share pursuant to the
Mark Consulting Warrants Plan
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</TABLE>
<PAGE>
<TABLE>
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<S> <C> <C> <C> <C>
Shares of Common Stock issuable upon exercise for 15,000 $1.59 $23,850 $7.23
15,000 Warrants at $1.59 per share pursuant to the
Mark Consulting Warrants Plan
- ------------------------------------------------------------------------------------------------------------------------------------
Shares of Common Stock issuable upon exercise for 15,000 $1.22 $18,300 $5.55
15,000 Warrants at $1.22 per share pursuant to the
Mark Consulting Warrants Plan
- ------------------------------------------------------------------------------------------------------------------------------------
$4,600,087 $1393.99
====================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, any additional
shares of Common Stock issued as a result of the anti-dilution provisions
of the Options and Warrants pursuant to which the Common Stock will be
issued are deemed to be registered herewith.
(2) These amounts are based on the average of the bid and asked price of
Pharmos Corporation Common Stock on October 14, 1997 as reported on the
Nasdaq Stock Market and are used solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) under the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information containing the information specified in Part I of Form S-8
will be sent or given to participants in the Plans as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act").
Such documents are not being filed with the Securities and Exchange Commission
(the "Commission"), but constitute (along with the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II hereof)
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed with the SEC by Pharmos
Corporation (the "Company") are incorporated in this Registration Statement by
reference:
1. The Company's most recent Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, filed pursuant to Section 13 of the
Securities Exchange Act of 1934 (the "Exchange Act").
2. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1996, specifically, the
Company's Quarterly Reports on Form 10-Q filed on May 14, 1997 and
August 14, 1997 and the Company's Current Report on Form 8-K filed on
September 16, 1997.
3. The description of the Company's common stock (the "Common Stock"),
contained in the Company's Registration Statement on Form 8-A dated
January 30, 1984, filed pursuant to Section 12 of the Exchange Act.
In addition, all documents filed by the Company pursuant to Section 13(a),
13(c), 14 and 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 such
securities then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and to be a part hereof from the date of
filing of such documents.
Any statement contained in a 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 subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as modified or superseded, to constitute a part of the Registration
Statement.
THE REGISTRANT UNDERTAKES TO PROVIDE, WITHOUT CHARGE, TO EACH PARTICIPANT,
UPON THE WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY AND ALL OF THE
DOCUMENTS OR INFORMATION REFERRED TO ABOVE THAT HAS BEEN OR MAY BE INCORPORATED
BY REFERENCE INTO THIS REGISTRATION STATEMENT (EXCLUDING EXHIBITS TO SUCH
DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE).
REQUESTS SHOULD BE DIRECTED TO GAD RIESENFELD, PRESIDENT, PHARMOS CORPORATION, 2
INNOVATION DRIVE, ALACHUA, FLORIDA 32615, TELEPHONE: (904) 462-1210.
II-1
<PAGE>
Item 4. Description of Securities.
The Company's common stock is registered under Section 12 of the Exchange
Act.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article 12 of the Company's Articles of Incorporation, as amended, directs
the Company to provide in its bylaws for provisions relating to the
indemnification of directors and officers to the full extent permitted by law.
Section 78.751 of the Nevada Revised Statutes, as amended, authorizes the
Company to indemnify any director or officer under certain prescribed
circumstances and subject to certain limitations against certain costs and
expenses, including attorneys' fees actually and reasonably incurred in
connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which such person is a party by reason of
being a director or officer of the Company if it is determined that such person
acted in accordance with the applicable standard of conduct set forth in such
statutory provisions.
The Company may also purchase and maintain insurance for the benefit of any
director or officer which may cover claims for which the Company could not
indemnify such person.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Specimen of Common Stock Certificate (incorporated by reference to
Form S-3 Registration Statement of the Company dated November 25, 1994
[No. 33- 86720]).
4.2 Restated Articles of Incorporation (incorporated by reference to
Appendix E to the Joint Proxy Statement/Prospectus included in the
Form S-4 Registration Statement of the Company dated September 28,
1992 [No. 33-52398]).
4.3 Certificate of Amendment of Restated Articles of Incorporation
(incorporated by reference to the Company's Annual Report on Form 10-K
for the year ended December 31, 1994 [No. 0-11550])
4.4 Amended and Restated By-Laws dated May 27, 1997.
5 Opinion of Eilenberg & Zivian as to the legality of the shares of
common stock being offered under the Plans.
II-2
<PAGE>
23.1 Consent of Price Waterhouse LLP, independent accountants.
23.2 Consent of Eilenberg & Zivian (contained in their opinion filed as
Exhibit 5).
24 Power of Attorney (included on the signature page of this Registration
Statement).
Item 9. Undertakings.
1. The Company hereby undertakes:
(a) 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 of 1933;
(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;
(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)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment
by this paragraph is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(b) 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.
(c) 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.
2. The Company hereby undertakes that, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
and each filing of the Company'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 on a fide offering thereof.
II-3
<PAGE>
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the SEC 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defence of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company 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 on the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe 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 Alachua, State of Florida, on this 21st day of
October, 1997.
PHARMOS CORPORATION
By: /s/ HAIM AVIV
-----------------------------------
Dr. Haim Aviv, Chairman, Chief Scientist,
Chief Executive Officer (Principal
Executive Officer), Acting Chief
Financial Officer (Principal Financial
and Accounting Officer) and Director
II-5
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Dr. Haim Aviv and and his true and lawful attorneys-in-fact and agents, with
full power of substitution and revocation, to sign on his behalf, individually
and in each capacity stated below, all amendments and post-effective amendments
to this Registration Statement of Form S-8 and to file the same, with all
exhibits thereto and any other documents in connection therewith, with the
Securities and Exchange Commission under the Securities Act of 1933, granting
unto each such attorney-in-fact and agent full power and authority to do an
perform each and every act and thing requisite and necessary to be done in an
about the premised, as fully to all intents and purposes as such person might or
could do in person, hereby ratifying and confirming each act that said
attorney-in-fact and agent may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 21, 1997.
Signature Title
- --------- -----
/s/ MARVIN P. LOEB Director
- -----------------------------
Marvin P. Loeb
/s/ E. ANDREWS GRINSTEAD III Director
- -----------------------------
E. Andrews Grinstead III
/s/ STEPHEN C. KNIGHT Director
- -----------------------------
Stephen C. Knight
/s/ DAVID SCHLACHET Director
- -----------------------------
David Schlachet
/s/ FREDRIC D. PRICE Director
- -----------------------------
Fredric D. Price
/s/ MONY BEN-DOR Director
- -----------------------------
Mony Ben-Dor
EXHIBIT 4.4
AMENDED AND RESTATED
BY-LAWS
OF
PHARMOS CORPORATION
(A Nevada Corporation)
(As of May 1997)
ARTICLE I
Office
Section 1. Principal and Other Offices. The principal office of the
Corporation shall be located in the City of Alachua, County of Alachua, State of
Florida. The Corporation may have offices at such other places within or without
the State of Florida or within or without the United States as the Board of
Directors from time to time may designate or the business of the Corporation may
require.
ARTICLE II
Stockholders
Section 1. Place of Meetings. Special and annual meetings of stockholders
shall be held at the principal office of the Corporation or at such other place
within or without the State of New York as fixed by the Board of Directors and
set forth in the notice of the meeting.
Section 2. Annual Meetings. The annual meeting of stockholders shall be
held for the election of directors and the transaction of such other business as
properly may come before it on the second Tuesday of October of each year or any
such other day as the Board of Directors may agree upon.
Section 3. Special Meetings. Special meetings of stockholders other than
those regulated by statute may be called at any time by a majority of the
members of the Board of Directors, the Chairman of the Board of Directors or the
President and shall be called by any one of them or by the Secretary upon
receipt of a written request to do so, specifying the matter or matters,
appropriate for action at such a meeting proposed to be presented at the meeting
and signed by holders of record of a majority of the shares of the Corporation
issued and outstanding that would be entitled to vote on such matters if the
meeting were held on the day such request is received and the record date for
such meeting were the close of business on the preceding day. No business other
than that specified in the notice of the meeting shall be transacted at any
meeting of stockholders except with the unanimous consent of all stockholders
entitled to notice thereof.
<PAGE>
Section 4. Notices. Written notice of the annual meeting of stockholders
stating the place, date and hours shall be given personally or by mail not less
than ten (10) nor more than fifty (50) days before the date of the meeting to
each stockholder entitled to vote at such meeting. Written notice of each
special meeting of stockholders stating the place, date and hour indicating that
it is issued by or at the direction of the person or persons calling the meeting
and stating the purpose or purposes for which the meeting is called shall be
given personally or by mail not less than ten (10) nor more than fifty (50) days
before the date of the meeting to each stockholder entitled to vote at such
meeting. Written notice of a meeting, if mailed, shall be deemed given when
deposited in the United States mail, postage prepaid, and directed to a
stockholder at his address as it appears on the record of stockholders. At any
meeting at which any stockholders are present without protesting prior to the
conclusion of the meeting the lack of notice of such meeting and of which
stockholders not present have waived notice in writing, the giving of the notice
specified above may be dispensed with.
Section 5. Quorum. Except as otherwise provided in the Certificate of
Incorporation or as otherwise required by law, at any meeting of stockholders
the holders of one-third of the shares entitled to vote thereat present in
person or by proxy shall constitute a quorum for the transaction of any
business; provided, however, when a specified item of business is required to be
voted on by a class or series, voting as a class, the holders of a majority of
the shares of such class or series shall constitute a quorum for the transaction
of such specified item of business. Once a quorum is present in person or by
proxy to organize a meeting, such quorum shall not be broken by the subsequent
withdrawal of any stockholders. Stockholders present in person or by proxy at
any meeting may adjourn the meeting despite the absence of a quorum. At any
adjourned meeting, any business may be transacted which might have been
transacted at the meeting as originally called.
Section 6. Voting. At every meeting of stockholders each stockholder shall
be entitled to vote in person or by proxy appointed by a written instrument.
Every stockholder of record shall be entitled to one vote for every share
standing in his name on the record of stockholders on the record date. Except as
otherwise provided in the Certificate of Incorporation and these By-Laws, all
corporate action to be taken by vote of the stockholders shall be authorized by
a majority of the votes cast at a meeting of stockholders by the holders of
shares entitled to vote thereon.
Section 7. Record Date. For the purposed of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any divided or the allotment of any rights, or for the
purpose of any other action, the Board of Directors may fix, in advance, a date
as the record date for any such determination of stockholders. Such date shall
not be more than fifty nor less than ten days before the date of such meeting,
nor more than fifty days prior to any other action. If no record date is fixed,
the record date for determining stockholders entitled to notice of or to vote at
a stockholders' meeting shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; the record date for any other purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating thereto.
<PAGE>
Section 8. Proxies. Every stockholders entitled to vote at a meeting of
stockholders or to express consent or dissent or action without a meeting may
authorize another person or persons to act for him by proxy. Every proxy shall
be in writing and shall be signed by the stockholder or his attorney-in-fact. No
proxy shall be valid after the expiration of six (6) months from the date
thereof unless (a) the proxy is coupled with an interest, or (b) the stockholder
specifies in the proxy the length of time for which it is to continue in force,
which may not exceed seven (7) years from the date of its creation. Every proxy
shall be revocable at the option of the stockholder executing the proxy except
as otherwise provided by law.
Section 9. Written Consents. Whenever under any provision of law, the
Certificate of Incorporation or the By-Laws, stockholders are required or
permitted to take any action by vote, such action may be taken without a meeting
on written consent setting forth the action so taken signed by the holders of
all outstanding shares entitled to vote thereon; provided, however, this
provision shall not alter or modify any provision of law, the Certificate of
Incorporation or the By-Laws under which the written consent of the holders of
less than all outstanding shares is sufficient for corporate action.
Section 10. Stockholders' List. A list of stockholders as of the record
date, certified by the corporate office responsible for its preparation or by a
transfer agent, shall be produced at any meeting of stockholders upon the
request thereat or prior thereto of any stockholder. If the right to vote at any
meeting is challenged, the inspectors of election, or person presiding thereat,
shall require such list of stockholders to be produced as evidence of the right
of the persons challenged to vote at such meeting, and all persons who appear
from such list to be stockholder entitled to vote thereat may vote at such
meeting.
ARTICLE III
Directors
Section 1. Duties and Powers. The Board of Directors shall have control and
management of the affairs and business of the Corporation. Directors in all
cases shall act as a board, regularly convened. Except as otherwise provided by
law or the Certificate of Incorporation, in the transaction of business the act
of a majority of the directors present at the time of the vote at a meeting at
which a quorum is present shall be the act of the Board of Directors.
Section 2. Qualifications. Each director shall be at least eighteen (18)
years of age.
Section 3. Number. The number of directors of the Corporation shall be
fixed from time to time by the vote of a majority of the entire Board then in
office and the number thereof may thereafter by like vote be increased or
decreased to such greater or lesser number, except that the number of directors
shall not be less than three unless all the shares of the Corporation are owned
beneficially and of record by less than three stockholders, then the number of
directors may be the number of stockholders of the Corporation.
Section 4. Election and Term. Directors shall be elected at each annual
meeting of stockholders by a plurality of the votes cast at said meeting by the
holders of shares entitled to vote in such an election. Each director shall hold
office until the expiration of the term for
<PAGE>
which he is elected and until his successor has been elected and qualified or he
resigns or is removed.
Section 5. Meetings. The annual meeting of each newly elected Board of
Directors shall be held at the place of the annual meeting of stockholders
immediately following the annual meeting of stockholders for the purpose of
electing officers and for the transaction of such other business as properly may
come before the meeting. Special meetings of the Board of Directors shall be
held upon notice to the members of the Board of Directors. A majority of the
directors present, whether or not a quorum is present, may adjourn any meeting
of directors to another time and place.
Section 6. Quorum. A majority of the entire Board of Directors shall
constitute a quorum for the transaction of business or of any specified item of
business. The vote of a majority of the Board of Directors present at the time
of a vote, if a quorum is present at such time, shall be the act of the Board of
Directors.
Section 7. Notices. All meetings of the Board of Directors shall be held
upon written notice to the directors at the call of the President, the Secretary
or any two or more directors. Notice of a meeting of the Board of Directors
shall state the place, date and hour of the meeting and shall indicate it is
issued by or at the direction of the person or persons calling the meeting.
Written notice to each director shall be given personally or by mail not less
than 10 (10) nor more than twenty (20) days before the date of the meeting. If
given by mail, such notice shall be deemed given when deposited in the United
States mail, postage prepaid and addressed to each director at his address as it
appears on the Corporation's records or at such other address as the director
may have furnished the Corporation for that purpose.
Section 8. Newly Created Directorships and Vacancies. Newly created
directorships resulting from an increase in the number of members of the Board
of Directors and vacancies occurring in the Board of Directors and vacancies
occurring in the Board of Directors for any reason may be filled by vote of a
majority of the directors then in office, although less than a quorum. A
director elected to fill a vacancy shall be elected to hold office for the
unexpired term of his predecessor and until his successor has been elected and
qualified or his resignation or removal.
Section 9. Removal. Any or all of the directors may be removed for cause or
without cause by vote of stockholders representing not less than two-thirds of
the voting power of the issued and outstanding stock entitled to vote. If the
Certificate of Incorporation provides for the election of directors by
cumulative voting, then no director may be removed from office except upon the
vote of stockholders owning sufficient shares to have prevented such director's
election in the first instance.
Section 10. Resignation. Any director may resign at any time. A resignation
shall be written and shall take effect at the time specified therein. If no time
is so specified, a resignation shall take effect at the time of its receipt by
the President or Secretary of the Corporation. The acceptance of a resignation
shall not be necessary to make it effective. No resignation shall discharge any
accrued obligation or duty of a director.
Section 11. Compensation. Directors, at such, shall not receive any salary
for their services as directors. By resolution of the Board of Directors, a
fixed sum and expense of
<PAGE>
attendance, if any, may be allowed for attendance at each regular or special
meeting of the Board of Directors. Nothing contained in the By-Laws shall
preclude any director from serving the Corporation in any capacity in addition
to a director and receiving compensation therefor.
Section 12. Contracts or Other Transactions with Directors. No contract or
other transaction between the Corporation and one or more of its directors or
between the Corporation and any other corporation, firm, association or other
entity in which one or more of its directors are directors or officers or have a
substantial financial interest shall be either void or voidable for such reason
alone or by reason alone that such director or directors are present at the
meeting of the Board of Directors, or of a committee thereof, which approves
such contract or transaction or by reason alone that his or their votes are
counted for such purpose:
1. If the fact of such common directorship, officership or financial
interest is disclosed in good faith or known to the Board of Directors or
committee and is noted in the minutes, and the Board of Directors or committee
approves such contract or transaction by a vote sufficient for such purpose
without counting the vote or votes of such interested director or directors or,
if the votes of the disinterested directors are insufficient to constitute an
act of the Board, by unanimous vote of the disinterested directors; or
2. If such common directorship, officership or financial interest is
disclosed in good faith or known to the stockholders entitled to vote thereon
and such contract or transaction is approved by vote of the stockholders; or
3. If the contract or transaction is fair and reasonable as to the
Corporation at the time it is approved by the Board of Directors, a committee or
the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board or a committee which approves such
contract or transaction.
Section 13. Chairman. At all meetings of the Board of Directors the
Chairman of the Board of Directors, elected at the annual meeting of the Board
of Directors, shall preside.
Section 14. Committees. The Board of Directors, by resolution adopted by a
majority of the entire board, may designate from among its members an executive
committee and other committees each consisting of three (3) or more directors.
Each committee shall serve at the direction and at the pleasure of the Board of
Directors. To the extent provided in the resolution adopted by the Board of
Directors, each committee may have all the authority of the Board of Directors
except as prohibited by law.
<PAGE>
Section 15. Written Consents. Any action required or permitted to be taken
by the Board of Directors or any Committee thereof may be taken without a
meeting if all the members of the Board of Directors or the Committee consent in
writing to the adoption of a resolution authorizing the action.
Section 16. Participation by Telephone. Any one or more members of the
Board of Directors or any committee thereof may participate in a meeting of the
Board of Directors or such committee by means of a conference telephone or
similar communications equipment allowing all persons participating in the
meeting to hear each other at the same time. Participation by such means shall
constitute presence in person at a meeting.
ARTICLE IV
Officers
Section 1. Number. The officers of the Corporation shall be a President,
one or more Vice Presidents, a Secretary and a Treasurer. Each officer shall be
elected by the Board of Directors. The Board of Directors may also elect a
Chairman of the Board of Directors, a Comptroller, one or more Assistant
Secretaries, one or more Assistant Treasurers and such other officers as it may
from time to time deem appropriate.
Section 2. Election and Term. Each officer shall be elected or appointed by
the Board of Directors to hold office until the meeting of the Board of
Directors following the next annual meeting of stockholders. Each officer shall
hold office for such term and until his successor is elected or appointed and
qualified or until he resigns or is removed.
Section 3. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if such office be occupied, shall have such powers and duties as the
By-Laws or the Board of Directors may from time to time prescribe.
Section 4. President. The President shall, in general, supervise, manage
and control the business and affairs of the Corporation subject to the control
of the Board of Directors. He shall preside at all meetings of stockholders. He
shall perform all duties customarily incident to the office of President. He
also shall be an ex-officio member of all standing committees.
Section 5. Vice President. The Vice President in the absence or disability
of the President, shall perform the duties and exercise the powers of the
President. The Vice President shall have such powers and shall perform such
duties as may be delegated to him by the President or prescribed by the Board of
Directors. If there is more than one Vice President, each Vice President shall
have the powers and authority as prescribed by the President or Board of
Directors.
Section 6. Secretary. The Secretary shall keep the minutes of all meetings
of the Board of Directors and stockholders. He shall give or cause to be given
notice of all meetings of directors and stockholders and all other notices
required by law or the By-Laws. In the event of his absence or refusal to do so,
any such notice may be given by any person so directed by the President or by
the directors or by the stockholders upon whose request the meeting is called.
He shall have charge of the corporate books and records. He shall have custody
of the seal of
<PAGE>
the Corporation and shall affix the seal to all instruments requiring such seal
when authorized by the directors or President and shall attest the same. In
general, he shall perform all duties customarily incident to the office of
Secretary.
Section 7. Treasurer. The Treasurer, shall have custody of all valuable
documents of the Corporation. He shall enter or cause to be entered in the books
of the Corporation to be kept for the purpose, full and accurate accounts of all
moneys received and paid out of account of the Corporation and, when required by
the President or Board of Directors, shall render a statement of his accounts.
He shall keep or cause to be kept such other books as will show a true record of
the expenses, losses, gains, assets and liabilities of the Corporation. He at
all reasonable times shall exhibit his books and accounts to any directors of
the Corporation upon application at the office of the Corporation during
business hours. In general, he shall perform all duties customarily incident to
the office of Treasurer.
Section 8. Resignation. Any officer may resign at any time. A resignation
shall be written and shall take effect at the time specified therein. If no time
is so specified a resignation shall take effect at the time of its receipt by
the President or Secretary of the Corporation. The acceptance of a resignation
shall not be necessary to make it effective. No resignation shall discharge any
accrued obligation or duty of an officer.
Section 9. Removal. Any officer elected or appointed by the Board of
Directors may be removed by the Board of Directors at any time with or without
cause.
Section 10. Vacancies. If the office of any officer becomes vacant, the
Board of Directors may appoint any qualified person to fill such vacancy. Any
person so appointed shall hold office for the unexpired term of his predecessor
and until his successor is elected or appointed and qualified or until he
resigns or is removed.
ARTICLE V
Shares
Section 1. Shares. The shares of the Corporation shall be represented by a
certificate or certificates, numbered consecutively, in such form as shall be
approved by the Board of Directors. The certificates shall be signed by the
Chairman of the Board of Directors or the President or Vice President and by the
Secretary or Treasurer or Assistant Secretary or Assistant Treasurer of the
Corporation. If such certificate is countersigned by (a) a transfer agent other
than the Corporation or its employee, or (b) by a registrar other than the
Corporation or its employee, the officers' signatures on the certificate may be
facsimiles. Each certificate shall state upon the face thereof: (a) that the
Corporation is formed under the laws of the State of Nevada; (b) the name of the
person or person to whom issued; (c) the number and class of shares, and the
designation of the series, if any, which such certificate represents; and (d)
the par value of each share represented by such certificate or a statement that
the shares are without par value. If the Corporation is authorized to issue
shares of more than one class, each certificate representing shares shall set
forth upon the face or back of the certificate, or shall state that the
Corporation will furnish to any stockholder upon request and without charge, a
full statement of the designations, relative rights, preferences and limitations
of the shares of each class authorized to be issued and, if the Corporation is
authorized to issue any class of preferred shares in series, the designations,
relative rights, preferences and limitations of each such series
<PAGE>
so far as the same have been fixed and the authority of the board to designate
and fix the relative rights, preferences and limitations of other series.
Section 2. Lost, Destroyed and Stolen Certificates. Any person claiming a
certificate representing shares to be lost, apparently destroyed or wrongfully
taken shall execute an affidavit or affirmation of such fact, shall advertise
the same in such manner as the Board of Directors may require, and shall give
the Corporation an indemnity bond in such form and with one or more sureties
satisfactory to the Board in such amount as the Board of Directors may
determine, which shall be at least double the par value of the shares
represented by such certificate, to protect it or any person injured by the
issue of the new certificate from any liability or expense which it or they may
incur by reason of the original certificate remaining outstanding. Thereupon a
new certificate may be issued of the same tenor and for the same number of
shares as the one alleged to be lost, destroyed or wrongfully taken certificate
has been acquired by a bona fide purchaser.
Section 3. Transfer. Shares of the Corporation shall be transferable only
upon the books of the Corporation by the holders thereof in person or by their
duly authorized attorneys or legal representatives. Upon any transfer, the old
certificates duly endorsed or accompanied by evidence of succession, assignment
or authority to transfer shall be surrendered to the Corporation by delivery
thereof for cancellation to the person in charge of the list of stockholders and
the transfer books and ledgers or to such other person as the directors may
designate. New certificates thereupon shall be issued. A record shall be made of
each transfer. Whenever a transfer is made for collateral security, and not
absolutely, such fact shall be expressed in the entry of the transfer on the
record of stockholders of the Corporation. No shares will be transferred on the
books of the Corporation in violation of a share transfer restriction imposed by
the Corporation or a private share transfer restriction known to the Corporation
and conspicuously endorsed on the share certificate.
Section 4. Record. The Corporation shall keep its office in this state or
at the office of the transfer agent or registrar in this state, a record
containing the names and addresses of all stockholders, the number and class of
shares held by each and the date when they respectively become the owners of
record thereof in written form or in any other form capable of being converted
into written form within a reasonable time. The Corporation shall be protected
in treating the persons in whose names shares stand on the record of
stockholders as the owners thereof for all purposes.
ARTICLE VI
Miscellaneous
Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
Section 2. Dividends. The Board of Directors may declare and the
Corporation may pay, on its outstanding shares, dividends in cash or its shares
or bonds or its property, including the shares or bonds of other corporations.
Such dividends may be declared or paid out of surplus only and upon such terms
and conditions as may be provided by the Certificate of Incorporation or by law.
Before the declaration and payment of any dividend, there may be set aside out
of the surplus available for dividends such sum or sums as the directors, from
time to
<PAGE>
time, in their absolute discretion deem proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purposes as the directors shall
deem conducive to the interests of the Corporation.
Section 3. Seal. The seal of the Corporation shall be circular in form and
have inscribed thereon the name of the Corporation, the year of its
organization, and the words "Corporate Seal" and "Nevada". The seal shall be in
the charge of the Secretary. If and when so directed by the Board of Directors
or the President, a duplicate of the seal may be kept and used by the Secretary
or Treasurer. The seal may be used by causing it or a facsimile thereof to be
affixed or impressed or reproduced in any other manner.
Section 4. Notices and Waivers. Whenever communication with any stockholder
or director is unlawful under any statute of the State of Nevada or of the
United States or any such statute, then the giving of such notice or
communication to such person shall not be required and there shall be no duty to
apply for license or other permission to do so. Notice of a meeting shall not be
required to be given to any stockholder or director who submits a signed waiver
of notice, in person or by proxy, whether before or after the meeting. The
presence of a stockholder or director at a meeting and such person's oral
consent entered on the minutes, or such person's taking part in the
deliberations at such meeting without objection, shall constitute waiver of
notice by such person.
Section 5. Obligations. All obligations of the Corporation shall be signed
by such officers of the Corporation or by such other person or persons as may be
authorized by the Board of Directors.
Section 6. Indemnification.
(a) Subject to Subsection (c) of this Section 6, the Corporation shall
indemnify any person who was or is a party 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 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 expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding 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
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plead of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner that 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
reasonable cause to believe that his conduct was unlawful.
(b) Subject to Subsection (c) of this Section 6, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit 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
<PAGE>
of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit 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; except that no indemnification
shall be made with respect to any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the
extent that the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court deems proper.
(c) Any indemnification under this Section (unless ordered 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 (a) or Subsection (b), as the case may be. Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, or (iii) by the Board of Directors
upon the opinion in writing of independent legal counsel opinion, or (iv) by the
stockholders. To the extent, however, that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of any
claim, issue or matter herein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case.
(d) Notwithstanding any contrary determination in the specific case under
Subsection (c) of this Section 6, and notwithstanding the absence of any
determination thereunder, any director, officer, employee or agent may apply to
any court of competent jurisdiction for indemnification to the extent otherwise
permissible under Subsections (a) and (b) of this Section 6. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set forth
in Subsections 9(a) and (b) of this Section 6, as the case may be. Notice of any
application for indemnification pursuant to this Section 6 shall be given to the
Corporation promptly upon the filing of such application.
(e) Expenses incurred in defending or investigating a threatened or pending
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized i this Section 6.
(f) The indemnification and advancement of expenses provided by or granted
pursuant to this Section 6 shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any By-law, agreement, contract, vote of stockholders or disinterested
directors or pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office. It is the policy
of the Corporation that indemnification of the persons specified in Subsections
(a) and (b) of this Section 6 shall be made to the fullest extent permitted by
law. The provisions of this Section
<PAGE>
6 shall not be deemed to preclude the indemnification of any person who is not
specified in Subsections (a) and (b) of this Section 6 but whomever the
Corporation has the power or obligation to indemnify under the provisions of the
General Corporation Law of the State of Nevada, or otherwise.
(g) The Corporation may 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, 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 or the obligation to indemnify him against such liability
under the provisions of this Section 6.
(h) For purposes of this Section 6, references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Section 6 with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(i) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Section 6 shall, unless otherwise provided when authorized or
ratified, continue as 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.
Section 7. Control Share Acquisition Act. The provisions of the Nevada
Control Share Acquisition Act, Nevada Revised Statutes 78.378-78.3793, shall not
apply to the corporation.
ARTICLE VII
Amendment and Repeal
Section 1. Amendment and Repeal. By-Laws may be amended, repealed or
adopted at any meeting of stockholders; or at any meeting of the Board of
Directors.
EXHIBIT 5
EILENBERG & ZIVIAN
NEW YORK o CHICAGO
30TH FLOOR TELEPHONE
666 THIRD AVENUE (212) 986-2468
NEW YORK, NEW YORK 10017 -----
FACSIMILE (212) 986-2399
October 21, 1997
Pharmos Corporation
2 Innovation Drive
Alachua, Florida 32615
Re: Pharmos Corporation
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Pharmos Corporation, a Nevada corporation (the
"Company") in connection with the preparation and filing of a Form S-8
Registration Statement (the "Registration Statement") relating to (i) 11,476
shares of the Company's common stock, $.03 par value per share (the "Common
Stock), issuable upon the exercise of options granted under the 1991 Old Pharmos
Stock Option Plan, (ii) 750,000 shares of Common Stock issuable upon the
exercise of options granted under the 1992 Employee Stock Option Plan, (iii)
39,376 shares of Common Stock issuable upon the exercise of options granted
under the 1992 Aviv Stock Option Plan, (iv) 38,250 shares of Common Stock
issuable upon the exercise of options granted under the 1992 Bodor Stock Option
Plan, (v) 80,000 shares of Common Stock issuable upon the exercise of options
granted under the 1994 Grinstead Stock Option Plan, (vi) 30,000 shares of Common
Stock issuable upon the exercise of options granted under the 1994 Loeb Stock
Option Plan, (vii) 20,000 shares of Common Stock issuable upon the exercise of
options granted under the 1995 Grinstead Stock Option Plan, (viii) 20,000 shares
of Common Stock issuable upon the exercise of options granted under the 1995
Knight Stock Option Plan, (ix) 10,000 shares of Common Stock issuable upon the
exercise of options granted under the 1995 Loeb Stock Option Plan, (x) 10,000
shares of Common Stock issuable upon the exercise of options granted under the
1995 Schlachet Stock Option Plan, (xi) 1,205,000 shares of Common Stock issuable
upon the exercise of options granted under the 1997 Employees and Directors
Warrants Plan and (xii) 40,000 shares of Common Stock issuable upon the exercise
of options granted under the Mark Consulting Warrants Plan (all the shares of
Common Stock issuable are collectively referred to as the "Shares" and the above
referenced plans are referred to as the "Plans").
We have examined such corporate records, documents, instruments and
certificates of the Company and have received such representations from the
officers and directors of the Company and have reviewed such questions of law as
we have deemed necessary, relevant or
<PAGE>
appropriate to enable us to render the opinion expressed herein. In such
examination, we have assumed the genuineness of all signatures and authenticity
of all documents, instruments, records and certificates submitted to us as
originals.
On the basis of the foregoing, we are of the opinion that the Shares, when
issued in accordance with the terms and conditions of the Plans, will be legally
issued, fully paid and nonassessable.
The opinion expressed herein is limited to the corporate laws of the State
of Nevada and we express no opinion as to the effect on the matters covered by
any other jurisdiction.
This firm consents to the filing of this opinion as an exhibit to the
Registration Statement and to all references to the firm in the Registration
Statement.
Very truly yours,
/s/ EILENBERG & ZIVIAN
--------------------------------------
EILENBERG & ZIVIAN
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Shareholders of Pharmos Corporation
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 31, 1997 appearing in Pharmos
Corporation's Annual Report on Form 10-K for the year ended December 31, 1996.
/s/ PRICE WATERHOUSE LLP
- ---------------------------
PRICE WATERHOUSE LLP
New York, New York
October 20, 1997
