As filed
with the Securities and Exchange Commission on August [ ],
2009
Registration
No. 333-________
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
__________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACCESS
PHARMACEUTICALS, INC.
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(Exact
Name of Registrant as Specified in Its Charter)
(State or
Other Jurisdiction of Incorporation or Organization)
(I.R.S.
Employer Identification No.)
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2600
Stemmons Freeway Suite 176, Dallas,
TX 75207
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(Address
of Principal Executive
Offices) (Zip
Code)
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ACCESS
PHARMACEUTICALS 2005 EQUITY INCENTIVE PLAN AND
2007
SPECIAL STOCK OPTION PLAN AND AGREEMENT
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(Full
Title of the Plan)
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Stephen
B. Thompson
Chief
Finacial Officer
Access
Pharmaceuticals, Inc.
2600
Stemmons Freeway, Suite 176
Dallas,
TX 75207
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with
copies to:
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John J. Concannon III,
Esq.
Bingham McCutchen
LLP
One Federal Street
Boston, MA
02110
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(Name and
address of agent for service)
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(214)
905-5100
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(617)
951-8000
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(Telephone
Number, Including Area Code, of Agent For Service)
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large
accelerated filer o
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Accelerated
filer o
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Non-accelerated
filer o
(Do
not check if a smaller reporting company)
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Smaller
reporting company x
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CALCULATION
OF REGISTRATION FEE
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Title
of
Securities
to
be
Registered
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Amount
to
be
Registered
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Proposed
Maximum
Offering
Price Per Share*
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Proposed
Maximum
Aggregate
Offering
Price*
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Amount
of
Registration
Fee
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Common
Stock, par value $0.01 per share
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3,510,000**
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$3.25
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$11,407,500
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$636.54
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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. For the purposes of
this table we have used the average of the bid and asked price of the
Registrant's Common Stock, par value $0.01 per share, as reported on the
Over-the-Counter Bulletin Board on August 28, 2009.
** Consists
of 3,010,000 shares of Common Stock being registered under the Access
Pharmaceuticals 2005 Equity Incentive Plan, and 500,000 shares of Common Stock
being registered under the 2007 Special Stock Option Plan and Agreement. The
number of shares to be registered takes into account a one-for-five reverse
stock split effected June 5, 2006.
ACCESS
PHARMACEUTICALS, INC.
REGISTRATION
STATEMENT ON FORM S-8
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan
Information
The documents containing the
information specified in this Item 1 will be sent or given to employees,
officers, directors or others as specified by Rule 428(b)(1). In accordance
with the rules and regulations of the Securities and Exchange Commission (the
“Commission”) and the instructions to Form S-8, such documents are not
being filed with the Commission either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424
Item
2. Registration
Information and Employee Plan Annual Information
The documents containing the
information specified in this Item 2 will be sent or given to employees,
officers, directors or others as specified by Rule 428(b)(1). In accordance
with the rules and regulations of the Commission and the instructions to
Form S-8, such documents are not being filed with the Commission either as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424
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,
2008, as filed by the Registrant with the SEC on March 31, 2009;
(2) 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, 2008; and
(3) the
description of the Common Stock of the Registrant, $0.01 par value per share
(the "Common
Stock"), contained in the Registrant's registration statement on Form 8-A
filed with the SEC on March 29, 2000, including any amendment or report filed
for the purpose of updating such description.
In addition, all documents filed by the
Registrant subsequent to the date of this Registration Statement pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all of such securities then remaining unsold
under this Registration Statement (other than Current Reports on Form 8-K
containing Regulation FD Disclosure furnished under Item 7.01 or Results of
Operations and Financial Condition disclosure furnished under Item 2.02 and
exhibits relating to such disclosures, unless otherwise specifically stated in
such Current Report on Form 8-K), shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the date of
filing of such documents. Any statement contained herein or 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 other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such earlier statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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 McCutchen LLP (150
Federal Street, Boston, MA 02110). Several partners of Bingham
McCutchen LLP may beneficially own shares of our common stock.
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, 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 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.
Section 102 of the DGCL allows a
Delaware corporation to eliminate or limit the personal liability of a director
to the corporation or to any of its stockholders for monetary damage for a
breach of fiduciary duty as a director, except in the case where the director
(i) breaches such person’s duty of loyalty to the corporation or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) authorizes the
unlawful payment of a dividend or approves unlawful repurchase or redemption in
violation of Section 174 of the DGCL or (iv) obtains an improper
personal benefit. In accordance with the DGCL, Article X of the Registrant’s
Certificate of Incorporation provides that, to the fullest extent permitted by
the DGCL as it may be amended, no director shall be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director.
Article X of the Registrant’s
Certificate of Incorporation provides that the Registrant will indemnify, defend
and hold harmless directors, officers, employees and agents of the Registrant to
the fullest extent currently permitted under the DGCL.
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:
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Exhibit No.
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Description of Document
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4.1*
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Access
Pharmaceuticals, Inc. 2005 Equity Incentive Plan.
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4.2
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Amendment
to Access Pharmaceuticals, Inc. 2005 Equity Incentive
Plan.
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4.3**
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2007
Special Stock Option Plan and Agreement.
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5
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Opinion
of Bingham McCutchen LLP.
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23.1
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Consent
of Whitley Penn LLP.
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23.2
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Consent
of Whitley Penn LLP.
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| 23.3 |
Consent
of Bingham McCutchen LLP (included in Exhibit 5). |
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24
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Power
of Attorney (included on the signature
page).
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*
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Filed
with the SEC on April 18, 2005 as Exhibit 1 to Proxy Statement filed
pursuant to Rule 14a-6 of the Exchange Act, File No. 001-15771, and
incorporated herein by reference.
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| ** |
Filed
with the SEC on May 18, 2007 as Exhibit 10.35 to our Form 10-QSB, and
incorporated herein by reference. |
Item
9. Undertakings.
(a) 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:
(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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
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)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement
is on Form S-8, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the 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.
(b) 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 Section 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.
(h)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, 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 Dallas, Texas, on the 31st day of
August, 2009.
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ACCESS
PHARMACEUTICALS, INC.
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Jeffrey
B. Davis
Chief
Executive Officer
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By:
/s/ Stephen B.
Thompson
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Stephen
B. Thompson
Vice
President, Chief Financial Officer and Treasurer
POWER
OF ATTORNEY
Each person whose signature appears
below hereby appoints Jeffrey B. Davis and Stephen B. Thompson, and each of them
severally as such person's true and lawful attorney-in-fact with the authority
to execute in the name of each such person, and to file with the SEC, 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 SEC 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 indicated as of the dates set forth
below.
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Signature
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Title
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Date
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/s/ Jeffrey B. Davis
Jeffrey
B. Davis
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Chief
Executive Officer, and Director (Principal Executive Officer)
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August
31, 2009
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/s/ Stephen B. Thompson
Stephen
B. Thompson
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Vice
President, Chief Financial Officer, Treasurer and Secretary (Principal
Financial and Accounting Officer)
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August
31, 2009
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/s/ Mark J.
Ahn
Mark
J. Ahn
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Director
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August
31, 2009
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/s/ Mark J. Alvino
Mark
J. Alvino
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Director
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August
31, 2009
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/s/ Estaban
Cvitkovic
Estaban
Cvitkovik
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Director
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August
31, 2009
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/s/ Stephen B.
Howell
Stephen
B. Howell
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Director
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August
31, 2009
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/s/ David P. Luci
David
P. Luci
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Director
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August
31, 2009
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/s/ Steven H.
Rouhandeh
Steven
H. Rouhandeh
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Director
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August
31, 2009
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EXHIBIT
INDEX
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Exhibit No.
|
Description of Document
|
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4.1*
|
Access
Pharmaceuticals, Inc. 2005 Equity Incentive Plan.
|
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4.2
|
Amendment
to Access Pharmaceuticals, Inc. 2005 Equity Incentive
Plan.
|
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4.3**
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2007
Special Stock Option Plan and Agreement.
|
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5
|
Opinion
of Bingham McCutchen LLP.
|
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23.1
|
Consent
of Whitley Penn LLP.
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| 23.2 |
Consent
of Whitley Penn LLP. |
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23.3
|
Consent
of Bingham McCutchen LLP (included in Exhibit 5).
|
|
24
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Power
of Attorney (included on the signature
page).
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* Filed
with the SEC on April 18, 2005 as Exhibit 1 to Proxy Statement filed pursuant to
Rule 14a-6 of the Exchange Act, File No. 001-15771, and incorporated herein by
reference.
** Filed with the SEC on May 18, 2007 as
Exhibit 10.35 to our Form 10-QSB, and incorporated herein by
reference.