As filed with the Securities and Exchange Commission on August 5, 2005.
Registration No. ________
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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
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)
3960 Broadway
New York, New York 10032
(Address of Principal Executive Offices)
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
-------------------------------------------- --------------------- -------------------- -------------------- --------------
(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
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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).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
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.
EXHIBIT INDEX
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).
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).