As filed with the Securities and Exchange Commission on December 14, 2001
File No. 333-____________
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
2600 Stemmons Freeway, Suite 176, Dallas, Texas 75207 ----------------------------------------------- ---------- (Address of Principal Executive Offices) (Zip Code) |
Kerry P. Gray with copies to:
President and Chief Executive Officer John J. Concannon, III Esq.
Access Pharmaceuticals, Inc. Bingham Dana LLP
2600 Stemmons Freeway, Suite 176 150 Federal Street
Dallas, Texas 75207 Boston, MA 02110
---------------------------------------
(Name and address of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Ofering Registration
Registered Registered* Price* Price* Fee
------------ ----------- -------- ----------- ------------
Common Stock 200,000 $4.10 $820,000.00 $195.98
$.01 par
value per share
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* Estimated solely for the purpose of computing the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as amended, based on the average of the high and low prices of the Registrant's Common Stock, $.01 par value per share, reported by the American Stock Exchange on December 12, 2001.
PART II
Item 3. Incorporation Of Documents By Reference.
The following documents filed by Access Pharmaceuticals, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC")
are hereby incorporated by reference into this Registration Statement:
(1) the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000 filed by the Registrant with the SEC on April 2,
2001; (2) the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2001; (3) the Registrant's Quarterly Report on
Form 10-Q for the fiscal quarter ended June 30, 2001; (4) the Registrant's
Current Report on Form 8-K filed by the Registrant with the SEC on
November 7, 2001; (5) the Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 2001; (6) all other reports filed by the
Registrant pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") since December 31, 2000; and (7) the
description of the Common Stock of the Registrant, $.01 par value per
share (the "Common Stock"), contained in the Registrant's registration
statement on Form 8-A filed with the SEC under Section 12(b) of the
Exchange Act, including any amendment or report filed for the purpose
of updating such description.
In addition, all documents filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities registered hereby have been sold or which deregisters all of such securities then remaining unsold shall be incorporated by reference into this Registration Statement as of the filing date of each.
Item 4. Description Of Securities.
Not applicable.
Item 5. Interests Of Named Experts And Counsel.
The validity of the securities registered hereby is being passed upon for us by Bingham Dana LLP 150 Federal Street, Boston, Massachusetts 02110. Justin P. Morreale, David L. Engel and John J. Concannon III, partners of Bingham Dana LLP, beneficially own an aggregate of 181,499 shares of our common stock and warrants to purchase 834 shares of our common stock. Mr. Concannon is the corporate Secretary.
Item 6. Indemnification Of Directors And Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a Delaware corporation to indemnify any person who was or is, or is threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation) by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, provided that such person acted in good faith and in a manner that such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, such person had no reasonable cause to believe his conduct was unlawful. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. A Delaware corporation may also indemnify such persons against expenses (including attorneys' fees) in actions brought by or in the right of the corporation to procure a judgment in its favor, subject to the same conditions set forth in the immediately preceding sentences, except that no indemnification is permitted in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and to the extent the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court of Chancery or other such court shall deem proper. To the extent such person has been successful on the merits or otherwise in defense of any action to above, or in defense of any claim, issue or matter therein, the corporation must indemnify such person against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. The indemnification and advancement of expenses provided for in, or granted pursuant to, Section 145 is not exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by- law, agreement, vote of stockholders or disinterested directors or otherwise.
Section 145 of the DGCL also provides that a corporation may maintain insurance against liabilities for which indemnification is not expressly provided by the statute. The Registrant is insured against liabilities which it may incur by reason of its indemnification obligations under its Certificate of Incorporation, Bylaws and indemnification agreements.
Article X of the Registrant's Certificate of Incorporation provides that the Registrant will indemnify, defend and hold harmless directors, officers, employees and agents or the Registrant to the fullest extent currently permitted under the DGCL.
In addition, Article X of the Registrant's Certificate of Incorporation,
provides that neither the Registrant nor its stockholders may recover
monetary damages from the Registrant's directors for a breach of their
fiduciary duty in the performance of their duties as directors of the
Registrant, unless such breach relates to (i) the director's duty of loyalty,
(ii) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) unlawful payments of
dividends or unlawful stock repurchases or redemptions as provided in
Section 174 of the DGCL or (iv) any transactions for which the director
derived an improper personal benefit. The By-Laws of the Registrant
provide for indemnification of the Registrant's directors, officers,
employees and agents on the terms permitted under Section 145 of the
DGCL described above.
The Registrant has entered into indemnification agreements with certain of its directors and executive officers. These agreements provide rights of indemnification to the full extent allowed and provided for by Section 145 of the DGCL and the Certificate of Incorporation and Bylaws of Access.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of or incorporated by reference into this Registration Statement:
4.1.a Certificate of Incorporation (incorporated by reference to Exhibit
3(a) of the Registrant's Form 8-B dated July 12, 1989, Commission File
Number 9-9134)
4.1.b Certificate of Amendment of Certificate of Incorporation filed
August 21, 1992
4.1.c Certificate of Merger filed January 25, 1996. (Incorporated by
reference to Exhibit E of the Registrant's Registration Statement on
Form S-4 dated December 21, 1995, Commission File No. 33-64031)
4.1.d Certificate of Amendment of Certificate of Incorporation filed
January 25, 1996 (incorporated by reference to Exhibit E of the
Registrant's Registration Statement on Form S-4 dated December 21,
1995, Commission File No. 33-64031)
4.1.e Certificate of Amendment of Certificate of Incorporation filed July
18, 1996. (incorporated by reference to Exhibit 3.8 of the Registrant's
Form 10-K for the year ended December 31, 1996)
4.1.f Certificate of Amendment of Certificate of Incorporation filed June
18, 1998. (incorporated by reference to Exhibit 3.8 of the Registrant's
Form 10-Q for the quarter ended June 30, 1998)
4.1.g Certificate of Amendment of Certificate of Incorporation filed July
31, 2000 (incorporated by reference to Exhibit 3.8 of our form 10-Q for
the quarter ended March 31, 2001)
4.1.h Certificate of Designations of Series A Junior Participating Preferred
Stock filed November 7, 2001
4.2 Amended and Restated Bylaws (incorporated by reference to Exhibit
3.1 of the Registrant's Form 10-Q for the quarter ended June 30, 1996)
4.3 Rights Agreement, dated as of October 31, 2001 between the Registrant
and American Stock Transfer & Trust Company, as Rights Agent
(incorporated by reference to Exhibit 99.1 of the Regsistrant's
Current Report on Form 8-K dated October 19, 2001
4.4 2001 Restricted Stock Plan (incorporated by reference to Appendix A of
the Registrant's Proxy Statement filed with the Securities and Exchange
Commission on April 16, 2001)
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5 Opinion of Bingham Dana LLP as to the legality of the securities being
registered
23.1 Consent of Grant Thornton LLP
23.4 Consent of Bingham Dana LLP (included in Exhibit 5)
24 Power of Attorney (included on the signature page of this Registration
Statement)
Item 9. Undertakings.
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The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made pursuant to this Registration Statement, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions described in Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, Texas, as of the 14th day of December, 2001.
ACCESS PHARMACEUTICALS, INC.
By: /s/ Kerry P. Gray
-----------------------
Kerry P. Gray
President and Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Kerry P. Gray and Stephen B. Thompson, and each of them severally as his true and lawful attorney-in-fact with the authority to execute in the name of each such person, and to file with the Securities and Exchange Commission, together with any exhibits thereto and other documents therewith, any and all amendments (including without limitation post- effective amendments) to this Registration Statement on Form S-8 necessary or advisable to enable the Registrant to comply with the Securities Act of 1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission in respect thereof, which amendments may make such other changes in the Registration Statement as the aforesaid attorney-in-fact executing the same deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date -------------------------- ----------------------------- ------------ /s/ Kerry P. Gray President and Chief Executive December 14, 2001 ------------------------- Officer, Director ----------------- Kerry P. Gray /s/ Herbert H. McDade, Jr. Director December 14, 2001 -------------------------- ----------------- Herbert H. McDade, Jr. /s/ J. Michael Flinn Director December 14, 2001 -------------------------- ----------------- J. Michael Flinn /s/ Stephen B. Howell Director December 14, 2001 -------------------------- ----------------- Stephen B. Howell /s/ Max Link Director December 14, 2001 -------------------------- ----------------- Max Link /s/ John J. Meakem, Jr. Director December 14, 2001 -------------------------- ----------------- John J. Meakem, Jr. /s/ Stephen B. Thompson Vice President, Chief December 14, 2001 -------------------------- Financial Officer, Treasurer ----------------- Stephen B. Thompson |
EXHIBIT INDEX
Exhibit No. Description of Documents
----------- -------------------------
4.1.a Certificate of Incorporation (incorporated by reference to Exhibit
3(a) of the Registrant's Form 8-B dated July 12, 1989, Commission
File Number 9-9134)
4.1.b Certificate of Amendment of Certificate of Incorporation filed
August 21, 1992
4.1.c Certificate of Merger filed January 25, 1996. (Incorporated by
reference to Exhibit E of the Registrant's Registration Statement
on Form S-4 dated December 21, 1995, Commission File No. 33-64031)
4.1.d Certificate of Amendment of Certificate of Incorporation filed
January 25, 1996 (incorporated by reference to Exhibit E of the
Registrant's Registration Statement on Form S-4 dated December 21,
1995, Commission File No. 33-64031)
4.1.e Certificate of Amendment of Certificate of Incorporation filed
July 18, 1996. (incorporated by reference to Exhibit 3.8 of the
Registrant's Form 10-K for the year ended December 31, 1996)
4.1.f Certificate of Amendment of Certificate of Incorporation filed
June 18, 1998. (incorporated by reference to Exhibit 3.8 of the
Registrant's Form 10-Q for the quarter ended June 30, 1998)
4.1.g Certificate of Amendment of Certificate of Incorporation filed
July 31, 2000 (incorporated by reference to Exhibit 3.8 of the
Registrant's Form 10-Q for the quarter ended March 31, 2001)
4.1.h Certificate of Designations of Series A Junior Participating
Preferred Stock filed November 7, 2001
4.2 Amended and Restated Bylaws (incorporated by reference to Exhibit
3.1 of the Registrant's Form 10-Q for the quarter ended
June 30, 1996)
4.3 Rights Agreement, Dated as of October 31, 2001 between the
Registrant and American Stock Transfer & Trust Company, as
Rights Agent (incorporated by reference to Exhibit 99.1 of the
Registrant's Current Report on Form 8-K dated October 19, 2001)
4.4 2001 Restricted Stock Plan (incorporated by reference to
Appendix A of the Registrant's Proxy Statement filed with the
Securities and Exchange Commission on April 16, 2001)
5 Opinion of Bingham Dana LLP as to the legality of the securities
being registered
23.1 Consent of Grant Thornton LLP
23.4 Consent of Bingham Dana LLP (included in Exhibit 5)
24 Power of Attorney (included on the signature page of this
Registration Statement)
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Exhibit 4.1.h
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
ACCESS PHARMACEUTICALS, INC.
(Pursuant to Section 151 of the Delaware General Corporation Law)
Access Pharmaceuticals, Inc. (the "Corporation"), a corporation organized and existing under the General Corporation Law of the State of Delaware (the "DGCL"), hereby certifies that the following resolution was adopted by the Board of Directors of the Corporation as required by Section 151 of the DGCL at a meeting duly called and held on October 19, 2001:
RESOLVED: That pursuant to Article V(B) of the Certificate of Incorporation, as amended, of the Corporation, the Board of Directors hereby establishes a series of Preferred Stock, par value $0.01 per share (the "Series A Preferred Stock"), of the Corporation and hereby states the designation and number of shares, and fixes the preferences, voting powers, qualifications and special or relative rights or privileges thereof, as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be designated as "Series A Junior Participating Preferred Stock" (the "Series A Preferred Stock") and the number of shares constituting the Series A Preferred Stock shall be 300,000. Such number of shares may be increased or decreased by resolution of the Board of Directors; provided that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the number of shares of Series A Preferred Stock then outstanding, plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon conversion of any outstanding securities issued by the Corporation and convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of Preferred Stock (or any similar stock) ranking prior and superior to the Series A Preferred Stock with respect to dividends, the holders of shares of Series A Preferred Stock, in preference to the holders of the Common Stock of the Corporation, par value $0.01 per share ("Common Stock"), and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the first day of March, June, September and December in
each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of Series A Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a) $1 or (b) subject to the provision for adjustment hereinafter set forth, 100 times the aggregate per share amount of all cash dividends, and 100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any share or fraction of a share of Series A Preferred Stock. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series A Preferred Stock as provided in paragraph (A) of this Section immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $1 per share on the Series A Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of the stockholders of the Corporation. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other Certificate of Designations creating a series of Preferred Stock or any similar stock, or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law, holders of Series A Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except dividends paid ratably on the Series A Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Certificate of Incorporation, or in any other Certificate of Designations creating a series of Preferred Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made (1) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock shall have received $100 per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, provided that the holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on the Series A Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series A Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with respect to the payment of dividends and the distribution of assets, junior to all series of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock, voting together as a single class.
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of the Corporation by its President and Chief Executive Officer and attested by its Secretary as of November 6, 2001.
ACCESS PHARMACEUTICALS, INC.
By: /s/ Kerry P. Gray
--------------------
Kerry P. Gray
President and Chief Executive Officer
ATTEST:
By: /s/ John J. Concannon III
----------------------------
John J. Concannon III
Secretary
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Exhibit 5
BINGHAM DANA LLP
150 Federal Street
Boston, MA 02110
December 14, 2001
Access Pharmaceuticals, Inc.
2600 Stemmons Freeway, Suite 176
Dallas, Texas 75207
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is furnished in connection with the registration, pursuant to a Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the "Act"), to be filed with the Securities and Exchange Commission on or about December 14, 2001 (the "Registration Statement"), of 200,000 shares (the "Shares") of common stock, par value $0.01 per share (the "Common Stock"), of Access Pharmaceuticals, Inc., a Delaware corporation (the "Company"), which the Company may sell or grant as restricted stock pursuant to the Company's 2001 Restricted Stock Plan (the "2001 Restricted Stock Plan").
We have acted as counsel to the Company in connection with the foregoing registration of the Shares. We have examined and relied upon originals or copies of such records, instruments, certificates, memoranda and other documents as we have deemed necessary or advisable for purposes of this opinion and have assumed, without independent inquiry, the accuracy of those documents. In that examination, we have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing such documents. We have further assumed that all Shares sold or granted as restricted stock will be sold or granted in accordance with the terms of the awards of such restricted stock and the 2001 Restricted Stock Plan.
This opinion is limited solely to the Delaware General Corporation Law, as applied by courts located in Delaware, the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting those laws.
Based upon and subject to the foregoing, we are of the opinion that upon the issuance and delivery of the Shares in the form of restricted stock in accordance with the terms of the awards of such restricted stock and the 2001 Restricted Stock Plan, and upon the Company's receipt of the full purchase price therefore, as determined by the Board of Directors of the Company and as specified in the documents governing such awards and the 2001 Restricted Stock Plan, the Shares will be validly issued, fully paid and nonassessable shares of the Company's Common Stock.
We consent to the filing of a copy of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/ Bingham Dana LLP -------------------- BINGHAM DANA LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 23, 2001, accompanying the consolidated financial statements of Access Pharmaceuticals, Inc. and subsidiaries appearing in the Annual Report on Form 10-K for the year ended December 31, 2000, which is incorporated by reference in this Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned report.
/s/ Grant Thornton LLP ---------------------- Grant Thornton LLP Dallas, Texas December 14, 2001 |