As filed with the Securities and Exchange Commission on August 5, 2005.
Registration No. ________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEPHROS, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3971809
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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AMENDED AND RESTATED NEPHROS 2000 EQUITY INCENTIVE PLAN
NEPHROS, INC. 2004 STOCK INCENTIVE PLAN
(Full Title of the Plans)
Norman J. Barta
President and Chief Executive Officer
Nephros, Inc.
3960 Broadway
New York, New York 10032
(Name and Address of Agent for Service)
(212) 781-5113
(Telephone Number, Including Area Code,
of Agent for Service)
Copy to:
Thomas D. Balliett, Esq.
J. Michael Mayerfeld, Esq.
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, New York 10036
(212) 715-9100
(212) 715-8000 (Fax)
CALCULATION OF REGISTRATION FEE
-------------------------------------------- --------------------- -------------------- -------------------- --------------
Proposed Maximum Proposed Maximum Amount of
Amount to be Offering Aggregate Registration
Title of Securities to be Registered Registered (1)(2) Price Per Share (3) Offering Price (3) Fee
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 506,234 (4) $2.99 (5) $1,513,639.66 (5) $178.16
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 30,000 (6) $5.45 (7) $163,500.00 (7) $19.24
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 79,000 (6) $4.80 (7) $379,200.00 (7) $44.63
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 20,000 (6) $3.70 (7) $74,000.00 (7) $8.71
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 45,000 (6) $3.40 (7) $153,000.00 (7) $18.01
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 364,500 (8) $2.78 (7) $1,013,310.00 (7) $119.27
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 22,728 (8) $2.64 (7) $60,001.92 (7) $7.06
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 119,766 (6) $2.39 (7) $286,240.74 (7) $33.69
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 197,165 (8) $2.39 (7) $471,224.35 (7) $55.46
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 5,682 (8) $2.32 (7) $13,182.24 (7) $1.55
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 499,732 (8) $1.76 (7) $879,528.32 (7) $103.52
-------------------------------------------- --------------------- -------------------- -------------------- --------------
common stock, par value $.001 per share 533,966 (8) $0.32 (7) $170,869.12 (7) $20.11
-------------------------------------------- --------------------- -------------------- -------------------- --------------
TOTAL 2,423,773 (1) $5,177,696.35 $609.41
-------------------------------------------- --------------------- -------------------- -------------------- --------------
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(1) This Registration Statement is being filed with the Securities and Exchange Commission to register 2,423,773 shares of common stock which may be issued upon the exercise of stock options under (i) the Amended and Restated Nephros 2000 Equity Incentive Plan (the "2000 Plan") of which 1,623,773 shares may be issued upon the exercise of stock options that have been issued under the 2000 Plan and (ii) the Nephros, Inc. 2004 Stock Incentive Plan (the "2004 Plan"), of which 293,766 shares may be issued upon the exercise of stock options that have been issued under the 2004 Plan and 506,234 shares may be issued upon the exercise of stock options that may be issued under the 2004 Plan.
(2) Share amounts have been rounded to the nearest whole share.
(3) Prices have been rounded to the nearest penny.
(4) Represents the aggregate of 506,234 shares that may be issued pursuant to awards that may be granted under the 2004 Plan.
(5) Estimated, in accordance with Rule 457(c) and Rule 457(h)(1), solely for the purpose of calculating the registration fee. The Proposed Maximum Offering Price Per Share and the Proposed Maximum Aggregate Offering Price are based on the average of the high and low prices reported by the American Stock Exchange on August 1, 2005, which is within five (5) business days prior to the date of this Registration Statement.
(6) Represents shares that may be issued upon the exercise of stock options that have been issued under the 2004 Plan.
(7) Pursuant to Rule 457(h)(1), the Proposed Maximum Offering Price Per Share and the Proposed Maximum Aggregate Offering Price have been calculated based on the exercise prices of options previously granted.
(8) Represents shares that may be issued upon the exercise of stock options that have been issued under the 2000 Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required to be contained in the Section 10(a) prospectus is omitted from this Registration Statement pursuant to Rule 428 of the Securities Act of 1933, as amended (the "Securities Act"), and the note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration Statement the following documents:
(1) the Registrant's Current Report on Form 8-K, filed with the SEC on March 3, 2005;
(2) the Registrant's Current Report on Form 8-K, filed with the SEC on March 15, 2005;
(3) the Registrant's Current Report on Form 8-K, filed with the SEC on March 31, 2005;
(4) the Registrant's Annual Report on Form 10-KSB for the year ended December 31, 2004, filed with the SEC on March 31, 2005;
(5) the Registrant's Current Report on Form 8-K, filed with the SEC on April 25, 2005;
(6) the Registrant's Current Report on Form 8-K, filed with the SEC on April 26, 2005;
(7) the Registrant's Quarterly Report on Form 10-QSB for the quarter ended March 31, 2005, filed with the SEC on May 16, 2005;
(8) the Registrant's Current Report on Form 8-K, filed with the SEC on May 17, 2005;
(9) the Registrant's Current Report on Form 8-K, filed with the SEC on May 17, 2005;
(10) the Registrant's Current Report on Form 8-K, filed with the SEC on May 26, 2005;
(11) the Registrant's Current Report on Form 8-K, filed with the SEC on June 17, 2005;
(12) the Registrant's Current Report on Form 8-K, filed with the SEC on June 23, 2005;
(13) the Registrant's Current Report on Form 8-K, filed with the SEC on June 29, 2005;
(14) the Registrant's Current Report on Form 8-K, filed with the SEC on July 8, 2005; and
(15) the description of the Registrant's common stock contained in its Registration Statement on Form 8-A under Section 12 of the Securities Exchange Act of 1934, as amended, dated August 27, 2004, including any amendment or reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to the Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers, as well as other employees and individuals, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by any such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the Registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Article XIII of the Registrant's Third Amended and Restated Certificate of Incorporation and Article VI of the Registrant's Amended and Restated Bylaws provide for indemnification by the Registrant of its directors and officers to the fullest extent permitted by the Delaware General Corporation Law.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock purchases, redemptions or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. Article XII of the Registrant's Third Amended and Restated Certificate of Incorporation provides for such limitation of liability to the fullest extent permitted by Section 102(b)(7) of the Delaware General Corporation Law (or any successor section).
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) Exhibits.
Exhibit Number Description
-------------- -----------
4.1 Amended and Restated Nephros 2000 Equity Incentive
Plan (incorporated by reference to Exhibit 10.1
filed with the Company's Registration Statement on
Form S-1 (No. 333-116162) as filed with the SEC on
July 20, 2004).
4.2 Nephros, Inc. 2004 Stock Incentive Plan
(incorporated by reference to Exhibit 10.2 filed
with the Company's Registration Statement on Form
S-1 (No. 333-116162) as filed with the SEC on July
20, 2004).
4.3 Amendment No. 1 to Nephros, Inc. 2004 Stock
Incentive Plan (filed herewith).
4.4 Fourth Amended and Restated Certificate of
Incorporation of the Registrant (filed herewith).
4.5 Amended and Restated By-laws of the Registrant
(incorporated by reference to Exhibit 3.2 filed
with the Company's Registration Statement on Form
S-1 (No. 333-116162) as filed with the SEC on
August 26, 2004).
5.1 Opinion of Kramer Levin Naftalis & Frankel LLP
(filed herewith).
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23.1 Consent of Kramer Levin Naftalis & Frankel LLP
(included in Exhibit 5.1 to this Registration
Statement).
23.2 Consent of Grant Thornton LLP (filed herewith).
23.3 Consent of Deloitte & Touche LLP (filed herewith).
24.1 Power of Attorney (included on the signature page
of this Registration Statement).
Item 9. Undertakings.
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The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any additional or changed material information with respect to the plan of distribution.
(2) For the purpose of determining any liability under the Securities Act, to treat each post-effective amendment as a new registration statement relating to the securities offered therein, and the offering of such securities at that time as the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from registration any of the securities being registered that remain unsold at the end of the offering.
SIGNATURES
Pursuant to the requirements of the Securities Act, Nephros, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this 5th day of August, 2005.
NEPHROS, INC.
By: /s/ Norman J. Barta ------------------------------------ Norman J. Barta President and Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that the persons whose signatures appear below each severally constitutes and appoints Norman J. Barta his true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including pre-effective and post-effective amendments) to this registration statement, and to file the same, with all exhibits, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all which said attorney-in-fact and agent, or his substitute, may lawfully do, or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Norman J. Barta President, Chief August 5, 2005
------------------------- Executive Officer and
Norman J. Barta Director
/s/ Marc L. Panoff Chief Financial Officer August 5, 2005
------------------------- and Principal Accounting
Officer
/s/ Eric A. Rose, M.D. Director August 5, 2005
-------------------------
Eric A. Rose, M.D.
/s/ Lawrence J. Centella Director August 5, 2005
-------------------------
Lawrence J. Centella
/s/ Donald G. Drapkin Director August 5, 2005
-------------------------
Donald G. Drapkin
/s/ Howard Davis Director August 5, 2005
--------------------------
Howard Davis
/s/ William J. Fox Director August 5, 2005
--------------------------
William J. Fox
/s/ W. Townsend Ziebold, Jr. Director August 5, 2005
----------------------------
W. Townsend Ziebold, Jr.
/s/ Bernard Salick, M.D. Director August 5, 2005
---------------------------
Bernard Salick, M.D.
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EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
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4.1 Amended and Restated Nephros 2000 Equity Incentive
Plan (incorporated by reference to Exhibit 10.1
filed with the Company's Registration Statement on
Form S-1 (No. 333-116162) as filed with the SEC on
July 20, 2004).
4.2 Nephros, Inc. 2004 Stock Incentive Plan
(incorporated by reference to Exhibit 10.2 filed
with the Company's Registration Statement on Form
S-1 (No. 333-116162) as filed with the SEC on July
20, 2004).
4.3 Amendment No. 1 to Nephros, Inc. 2004 Stock
Incentive Plan (filed herewith).
4.4 Fourth Amended and Restated Certificate of
Incorporation of the Registrant (filed herewith).
4.5 Amended and Restated By-laws of the Registrant
(incorporated by reference to Exhibit 3.2 filed
with the Company's Registration Statement on Form
S-1 (No. 333-116162) as filed with the SEC on
August 26, 2004).
5.1 Opinion of Kramer Levin Naftalis & Frankel LLP
(filed herewith).
23.1 Consent of Kramer Levin Naftalis & Frankel LLP
(included in Exhibit 5.1 to this Registration
Statement).
23.2 Consent of Grant Thornton LLP (filed herewith).
23.3 Consent of Deloitte & Touche LLP (filed herewith).
24.1 Power of Attorney (included on the signature page
of this Registration Statement).
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EXHIBIT 4.3
NEPHROS, INC.
AMENDMENT NO. 1
TO
NEPHROS, INC. 2004 STOCK INCENTIVE PLAN
Pursuant to Section 9.1 of the Nephros, Inc. 2004 Stock Incentive Plan (the "Plan"), and in accordance with the resolutions of the Board of Directors of Nephros, Inc. (the "Company") adopted as of April 19, 2005 and approved by the Company's stockholders on June 23, 2005, Section 4.2(a) of the Plan is hereby amended and restated as follows:
"(a) Aggregate Plan Limit. The total number of Shares with respect to which Awards may be granted is 800,000 Shares. Such amount may be adjusted under paragraph (e) below. To the extent that a SAR or Phantom Stock Unit does not provide for the issuance of Shares, there is no limit on the number of shares with respect to which such SARs or Phantom Stock Units may be granted."
EXHIBIT 4.4
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NEPHROS, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
NEPHROS, INC., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name of the corporation is NEPHROS, INC. and that this corporation was originally incorporated pursuant to the General Corporation Law on April 3, 1997.
SECOND: That the Board of this corporation duly adopted resolutions proposing to amend and restate the Certificate of Incorporation of this corporation, declaring said amendment and restatement to be advisable, and authorizing the appropriate officers of this corporation to submit said amendment and restatement to the stockholders of the corporation for their approval. The resolution setting forth the proposed amendment and restatement is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended and restated in its entirety to read as follows:
ARTICLE I
The name of this corporation is Nephros, Inc. (referred to herein as the "Corporation").
ARTICLE II
The address of the Corporation's registered office in the State of Delaware is 2711 Centerville Road, Suite 400 in the City of Wilmington, 19808, County of New Castle. The name of the Corporation's registered agent at such address is Corporation Service Company.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
Section 1. Certain Definitions. As used in this Amended and Restated Certificate of Incorporation (the "Certificate of Incorporation"), the following terms shall have the following meanings:
"Board" means the Board of Directors of the Corporation.
"DGCL" means the Delaware General Corporation Law, as the same may be amended or supplemented from time to time.
Section 2. Capital Stock. The total authorized capital stock of the Corporation shall be: 30,000,000 shares, consisting of:
(i) 25,000,000 shares of Common Stock, $.001 par value per share (the "Common Stock");
(ii) 5,000,000 shares of preferred stock, $.001 par value per share (collectively, the "Undesignated Preferred Stock"). Subject to any limitations set forth elsewhere in this Certificate of Incorporation, the shares of Undesignated Preferred Stock may be issued from time to time in one or more series. Subject to any limitations set forth elsewhere in this Certificate of Incorporation, the Board of Directors is hereby authorized, by adopting appropriate resolutions and causing one or more certificates of amendment to be signed, verified and delivered in accordance with the DGCL, to establish from time to time the number of shares to be included in such series, and to fix the powers, preferences and rights of, and the qualifications, limitations and restrictions granted to and imposed upon such Undesignated Preferred Stock. Such powers, preferences and rights of, and the qualifications, limitations and restrictions granted to and imposed upon such Undesignated Preferred Stock may include, but are not limited to, the fixing or alteration of the dividend rights, dividend rate, conversion rights, exchange rights, voting rights, rights and terms of redemption (including sinking fund provisions), the redemption price or prices, and the liquidation preferences of any wholly unissued series of shares of Undesignated Preferred Stock, or any of them. In accordance with the authority hereby granted, the Board may increase or decrease the number of shares of any series of preferred stock, whether or not such preferred stock then constitutes Undesignated Preferred Stock, subsequent to the issuance of shares of that series; provided that any such increase shall be no greater than the total number of authorized shares of Undesignated Preferred Stock at such time, and no such decrease shall result in the number of authorized shares of such series being fewer than the number then outstanding. In case the number of shares of any series of preferred stock, other than Undesignated Preferred Stock, shall be so
decreased, the shares constituting such decrease shall become
Additional Undesignated Preferred Stock. Any shares of a series
of preferred stock, which is designated pursuant to this clause
(ii), that were issued but, thereafter, are no longer outstanding
shall not resume the status of authorized and unissued shares of
such series, but shall instead become authorized and unissued
shares of Additional Undesignated Preferred Stock. Except as may
otherwise be required by law or this Certificate of
Incorporation, the terms of any series of Undesignated Preferred
Stock may be amended without the consent of the holders of any
other series of the Corporation's preferred stock, or Common
Stock.
ARTICLE V
Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under ss. 291 the DGCL (or any successor section) or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under ss. 279 of the DGCL (or any successor section) order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
ARTICLE VI
The Board of this Corporation shall have the power to adopt, amend or repeal By-laws of this Corporation, subject to the power of the stockholders of this Corporation to adopt By-laws and to amend or repeal By-laws adopted by the Board.
ARTICLE VII
For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation, and regulation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided:
Section 1. The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the By-
laws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning, to wit, the total number of directors which the Corporation would have if there were no vacancies. No election of directors need be by written ballot.
Section 2. The Board shall be divided into three classes, as nearly equal in number as the then total number of directors constituting the entire Board permits, with the term of office of one or another of the three classes expiring each year. The Board shall by resolution initially divide the Board into three classes, with the term of office of the first class to expire at the Annual Meeting of Stockholders to be held during 2005, the term of office of the second class to expire at the Annual Meeting of Stockholders to be held during 2006 and the term of office of the third class to expire at the Annual Meeting of Stockholders to be held during 2007.
Section 3. Commencing with the first Annual Meeting of Stockholders following September 24, 2004, the directors elected at an annual meeting of stockholders to succeed those whose terms then expire shall be identified as being directors of the same class as the directors whom they succeed, and each of them shall hold office until the third succeeding annual meeting of stockholders and until such director's successor is elected and has been qualified. Any vacancies in the Board for any reason, and any created directorships resulting from any increase in the number of directors, may be filled by the vote of not less than a majority of the members of the Board then in office, although less than a quorum, and any directors so chosen shall hold office until the next election of the class for which such directors shall have been chosen and until their successors shall be elected and qualified. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of preferred stock shall have the right, voting separately as a class, to elect one or more directors of the Corporation, the then authorized number of directors shall be increased by the number of directors so to be elected, and the terms of the director or directors elected by such holders shall expire at the next succeeding annual meeting of stockholders.
Section 4. Notwithstanding any other provisions of this Certificate of Incorporation or the By-laws of the Corporation, any director or the entire Board of the Corporation may be removed at any time, but only for cause and only by the affirmative vote of the holders of a majority of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class, with preferred stock, the terms of which provide for voting as to such matters, voting on an as-converted basis, unless otherwise provided in the amendment to this Certificate of Incorporation defining the rights of the holders of such preferred stock) cast at a meeting of the stockholders called for that purpose. Notwithstanding the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of preferred stock shall have the right, voting separately as a class, to elect one or more directors of the Corporation, the provisions of this Section 4 shall not apply with respect to the election of the director or directors elected by such holders of preferred stock.
Section 5. Notwithstanding any other provisions of this Certificate of Incorporation or the By-laws of the Corporation, any action by the Corporation's stockholders may only be effected at an annual or special meeting of the Corporation's stockholders called in
compliance with Section 6 below, or pursuant to an unanimous written consent of the Corporation's stockholders in compliance with ss.228 of the DGCL (or any successor section of the DGCL).
Section 6. Special meetings of the stockholders may be called exclusively by the Board, the Chairman of the Board, the Corporation's President or any Vice President or the Secretary, upon not less than 10 days written notice to the stockholders. Such notice shall state the purpose or purposes of the proposed special meeting. The business transacted at any special meeting shall be limited to the purposes stated when the meeting is called or in the notice of such meeting.
Section 7. Notwithstanding any other provisions of this Certificate of Incorporation or the By-laws of the Corporation (and notwithstanding the fact that some lesser percentage may be specified by law, this Certificate of Incorporation or the By-laws of the Corporation), the affirmative vote of the holders of 80% or more of the voting power represented by the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (considered for this purpose as one class) shall be required to amend, alter, change or repeal this Article VII or any portion hereof.
ARTICLE VIII
The personal liability of the directors of the Corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of ss. 102 of the DGCL, (or any successor section of the DGCL).
ARTICLE IX
The Corporation shall, to the fullest extent permitted by the provisions of ss. 145 of the DGCL, (or any successor section of the DGCL), indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall 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.
ARTICLE X
Except as may be otherwise provided in this Certificate of Incorporation, from time to time any of the provisions of this Certificate of Incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article X.
THIRD: That the foregoing amendment and restatement was approved by the holders of the requisite number of shares of said Corporation at a meeting called and held upon notice in accordance with ss. 222 of the DGCL.
FOURTH: That said amendment and restatement was duly adopted in accordance with the provisions of ss.ss. 242 and 245 of the DGCL.
IN WITNESS WHEREOF, said Corporation has caused this Fourth Amended and Restated Certificate of Incorporation to be signed by its Chief Executive Officer this 24th day of June, 2005.
NEPHROS, INC.
By: /s/ Norman Barta --------------------------------- Name: Norman Barta Title: Chief Executive Officer |
EXHIBIT 5.1
KRAMER LEVIN NAFTALIS & FRANKEL LLP
August 5, 2005
Nephros, Inc.
3960 Broadway
New York, New York 10032
Ladies and Gentlemen:
We have acted as counsel to Nephros, Inc., a Delaware corporation (the "Registrant"), in connection with the preparation and filing of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission"), with respect to the registration under the Securities Act of 1933, as amended (the "Act"), of an aggregate of 2,423,773 shares (the "Shares") of common stock, par value $0.001 per share (the "Common Stock"), of the Registrant, to be issued pursuant to the Amended and Restated Nephros 2000 Equity Incentive Plan and the Nephros, Inc. 2004 Stock Incentive Plan, as amended (collectively, the "Plans").
We have reviewed copies of:
1. the Registration Statement;
2. the Plans;
3. the Fourth Amended and Restated Certificate of Incorporation of the Registrant;
4. the Amended and Restated Bylaws of the Registrant; and
5. resolutions of the Board of Directors and the Compensation Committee of the Registrant.
We have also reviewed such other documents and made such other investigations as we have deemed appropriate. As to various questions of fact material to this opinion, we have relied upon statements, representations and certificates of officers or representatives of the Registrant, public officials and others. We have not independently verified the facts so relied on.
Based on the foregoing, and subject to the qualifications, limitations and assumptions set forth herein, we are of the opinion that the Shares covered by the Registration Statement, when issued upon the exercise of options granted under the Plans in accordance with the terms and conditions of the Plans and the option agreements governing such options, and assuming that the exercise price for such
Shares is equal to or in excess of the par value of the Common Stock and is paid in full, will be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the Registration Statement. In giving this consent we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder.
We do not express any opinion with respect to any law other than the General Corporation Law of the State of Delaware. This opinion is rendered only with respect to the laws and legal interpretations and the facts and circumstances in effect on the date hereof.
Very truly yours,
/s/ Kramer Levin Naftalis & Frankel LLP |
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated April 28, 2004 accompanying the consolidated financial statements of Nephros, Inc. and subsidiary included in the Annual Report of Nephros, Inc. on Form 10-KSB for the year ended December 31, 2004, which are 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
New York, New York
August 4, 2005
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CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report, dated March 28, 2005, relating to the consolidated financial statements of Nephros, Inc and Subsidiary (the "Company") (a Delaware corporation in the development stage) for the year ended December 31, 2004, appearing in the Annual Report on Form 10-KSB of the Company for the year ended December 31, 2004.
/s/ DELOITTE & TOUCHE LLP August 5, 2005 |