As
filed with the Securities and Exchange Commission on December 30,
2005.
Registration
No. 333-_____
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
______________________________________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
______________________________________________________
DOR
BIOPHARMA, INC.
(Exact
name of small business issuer as specified in its charter)
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DELAWARE
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41-1505029
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification Number)
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1691
Michigan Ave., Suite 435
Miami,
FL
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33139
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(Address
of principal executive offices)
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(Zip
Code)
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(305)
534-3383
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(Issuer’s
telephone number, including area code)
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______________________________________________________
DOR
BioPharma, Inc.
2005
Equity Incentive Plan
(Full
Title of Plan)
______________________________________________________
Michael
T. Sember, M.B.A., Chief Executive Officer
DOR
BioPharma, Inc.
1691
Michigan Avenue, Suite 435
Miami,
Florida 33139
(305)
534-3383
(Name,
address, including zip code, and telephone
number,
including area code, of agent for service)
with
copies to:
Leslie
J. Croland, Esq.
Edwards
Angell Palmer & Dodge LLP
350
East Las Olas Blvd., Suite 1150
Fort
Lauderdale, Florida 33334-3607
(954)
727-2600
______________________________________________________
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class
of
Securities to be Registered
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Amount
to be registered
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Proposed
maximum offering price per share (1)
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Proposed
maximum aggregate offering price (1)
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Amount
of registration fee
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Common
Stock,
$0.001
par value per share. . . . .
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10,000,000(2)
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$0.27
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$2,700,000
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$289
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(1)
These
figures are estimates made solely for the purpose of calculating the
registration fee pursuant to Rule 457 under the Securities Act of 1933, as
amended (the “Securities Act”). The registration fee has been calculated in
accordance with Rule 457(h)(1) based upon the average of the high and low prices
of the Registrant's Common Stock reported on the American Stock Exchange on
December 23, 2005.
(2)
Pursuant
to Rule 416 under the Securities Act, to the extent additional shares of
Registrant’s Common Stock may be issued or issuable as a result of a stock
split, stock dividend or other distribution declared at any time by the
Registrant while this registration statement is in effect, this registration
statement is hereby deemed to cover all such additional shares of Common
Stock.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
(not
required to be filed as part of this Registration Statement)
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation
of Documents by Reference
.
The
following documents, which previously have been filed by DOR BioPharma, Inc.
(the “Company” or the “Registrant”) with the Securities and Exchange Commission
(the “SEC”), are incorporated herein by reference and made a part
hereof:
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(1)
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The
Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2004;
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(2)
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The
Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters
ended
March 31, 2005, June 30, 2005 and September 30,
2005;
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(3)
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The
Registrant's Current Reports on Form 8-K filed with the SEC on January
25,
2005, February 3, 2005, February 9, 2005, 2005, May 4, 2005, July
13,
2005, November 1, 2005, November 2, 2005, November 29, 2005, and
December
9, 2005; and
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(4)
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The
description of the Common Stock, $.001 par value, of the Registrant
under
the caption "Description of Capital Stock" contained in the Registrant's
Registration Statement on Form S-2, as filed with the Securities
and
Exchange Commission on January 21, 1998 is hereby incorporated by
reference, and any amendment or report subsequently filed by the
Registrant for the purpose of updating that description.
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In
addition to the foregoing, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to
the filing of a post-effective amendment to this Registration Statement
indicating that all of the securities offered hereunder have been sold or
deregistering all securities then remaining unsold, 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 (excluding information furnished
in
filings made under Items 2.02 or 7.01 of Form 8-K). Any statement contained
in a
document incorporated or deemed to be incorporated by reference in this
Registration Statement shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein
or in any subsequently filed document that is or is deemed to be also
incorporated by reference herein modified or supersedes such 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
.
Not
applicable.
Item
6.
Indemnification
of Directors and Officers
.
Section
102(b)(7) of the Delaware General Corporation Law grants the Registrant the
power to limit the personal liability of its directors to the Registrant or
its
stockholders for monetary damages for breach of a fiduciary duty. Article X
of
the Registrant’s Certificate of Incorporation, as amended, provides for the
limitation of personal liability of the directors of the Registrant as follows:
"A
Director of the Corporation shall have no personal liability to the corporation
or its stockholders for monetary damages for breach of his fiduciary duty as
a
Director; provided, however, this Article shall not eliminate or limit the
liability of a Director (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 the unlawful payment of dividends or unlawful stock repurchases under
Section 174 of the General Corporation Law of the State of Delaware; or (iv)
for
any transaction from which the Director derived an improper personal benefit.
If
the General Corporation Law is amended after approval by the stockholders of
this Article to authorize corporate action further eliminating or limiting
the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted
by
the General Corporation Law of the State of Delaware, as so
amended."
Article
VIII of the Registrant's Bylaws, as amended and restated, provide for
indemnification of directors and officers to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law.
The
Registrant has entered into indemnification agreements with its directors that
would require the Registrant, subject to any limitations on the maximum
permissible indemnification that may exist at law, to indemnify a director
for
claims that arise because of his service as a director.
The
Registrant has a directors’ and officers’ liability insurance policy.
The
above
discussion is qualified in its entirety by reference to the Registrant’s
Certificate of Incorporation and Bylaws and the form of the indemnification
agreement with directors.
Item
7.
Exemption
from Registration Claimed
.
Not
applicable.
Item
8.
Exhibits
.
A
list of
the exhibits included as part of this Registration Statement is set forth in
the
Exhibit Index which immediately precedes such exhibits and is hereby
incorporated by reference herein.
Item
9.
Undertakings
.
(a)
The
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;
(ii)
To
reflect in the prospectus any facts or events arising after the effective date
of this 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 this 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 SEC
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; and
(iii)
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;
provided,
however, that paragraphs (i) and (ii) shall not apply if 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 SEC by the
Registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act that are incorporated by reference in this Registration
Statement;
(2)
That,
for the purpose of determining any liability under the Securities Act, 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
Registrant hereby further undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant’s Annual
Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that
is
incorporated by reference in the Registration Statement shall be deemed to
be a
new registration statement relating to the securities offered therein, and
the
offering of such securities at that time shall be deemed to be the initial
bona
fide offering thereof.
(c)
Insofar
as indemnification for liabilities arising under the Securities Act 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 SEC 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, 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
Miami, state of Florida, on this 30th day of December, 2005.
DOR
BIOPHARMA, INC.
By:
/s/
Michael T. Sember_____________
Michael
T. Sember, M.B.A.
President
and Chief Executive Officer
POWER
OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Michael T. Sember and Evan Myrianthopoulos, and each
of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead in
any
and all capacities, to sign any or all amendments to this Registration Statement
on Form S-8 (including post-effective amendments), and to file the same, with
all exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents 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 and
to
all intents and purposes as he might or could do in person, hereby ratifying
and
confirming that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/
Michael T. Sember
Michael
T. Sember
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Director,
President and Chief Executive Officer (Principal Executive
Officer))
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December
30, 2005
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/s/
Evan Myrianthopoulos
Evan
Myrianthopoulos
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Director,
Chief Financial Officer (Principal Financial and Accounting
Officer)
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December
30, 2005
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/s/
Alexander P. Haig
Alexander
P. Haig
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Chairman
of the Board
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December
30, 2005
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/s/
Steve H.Kanzer
Steve
H. Kanzer
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Vice-Chairman
of the Board
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December
30, 2005
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James
S. Kuo
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Director
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December
__, 2005
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T.
Jerome Madison
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Director
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December
__, 2005
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EXHIBIT
INDEX
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4.1
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Amended
and Restated Certificate of Incorporation (incorporated by reference
to
our Quarterly Report on Form 10-QSB, as amended, for the fiscal quarter
ended September 30, 2003).
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*4.2
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Certificate
of Amendment to Amended and Restated Certificate of
Incorporation.
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4.3
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By-laws
(incorporated by reference to our Quarterly Report on Form 10-QSB,
as
amended, for the fiscal quarter ended June 30, 2003).
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4.4
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DOR
BioPharma, Inc. 2005 Equity Incentive Plan (incorporated by reference
to
our Proxy Statement on Schedule 14A, dated December 12,
2005).
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* 5.1
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Opinion
of Edwards Angell Palmer & Dodge LLP regarding legality of securities
being registered.
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* 23.1
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Consent
of Consent of Sweeney, Gates & Co.
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23.2
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Consent
of Edwards Angell Palmer & Dodge LLP (included in Exhibit 5.1 to this
Registration Statement).
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24.1
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Power
of Attorney (included on signature pages of this Registration
Statement).
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*Filed
herewith.
Exhibit
4.2
CERTIFICATE
OF AMENDMENT TO
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION
OF
DOR
BIOPHARMA, INC.
It
is
hereby certified that:
1.
The
name of the corporation (hereinafter called the “Corporation”) is: DOR
BioPharma, Inc.
2.
The
Amended and Restated Certificate of Incorporation, as amended, of the
Corporation is hereby further amended by striking out the first introductory
paragraphs of Article IV thereof, and by substituting in lieu thereof, the
following new introductory paragraphs:
“The
total number of shares of capital stock of all classes which the Corporation
shall have authority to issue is one hundred fifty-five million (155,000,000)
shares, of which one hundred fifty million (150,000,000) shares, of par value
of
$.001 per share, shall be of a class designated “Common Stock,” four million six
hundred thousand (4,600,000) shares, of a par value of $.001 per share, shall
be
of a class designated “Preferred Stock,” two hundred thousand (200,000) shares,
of a par value of $.05 per share, shall be of a class designated “Series B
Convertible Preferred Stock,” and two hundred thousand (200,000) shares, of a
par value of $.05 per share, shall be of a class designated “Series C
Convertible Preferred Stock.
The
designations, powers, preferences, privileges, and relative, participating,
option, or other special rights and qualifications, limitations or restrictions
of the above classes of capital stock shall be as follows:”
3.
The
Amendment of the Certificate of Incorporation herein certified has been duly
adopted in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
Signed
on
December 29, 2005.
/s/
Evan Myrianthopoulos____
Name:
Evan
Myrianthopoulos
Title:
Chief
Financial Officer
EDWARDS
ANGELL PALMER & DODGE LLP
350
E.
Las Olas Boulevard, Suite 1150
Fort
Lauderdale, FL 33301
Exhibit
5.1
December
30, 2005
DOR
BioPharma, Inc.
1691
Michigan Avenue, Suite 435
Miami,
Florida 33139
Re:
Registration
Statement on Form S-8
Ladies
and Gentlemen:
You
have
requested our opinion with respect to certain matters in connection with the
filing of a Registration Statement on Form S-8 (the “Registration Statement”) to
be filed by DOR BioPharma, Inc. (the “Company”) with the Securities and Exchange
Commission (the “Commission”) on the date hereof in connection with the
registration under the Securities Act of 1933, as amended (the “Act”), of
10,000,000 shares of the Company’s common stock, $0.001 par value (the “Common
Stock”), to be issued pursuant to the DOR BioPharma, Inc. 2005 Equity Incentive
Plan (the “Plan”).
In
connection with this opinion, we have examined the following documents and
records:
1.
The
Certificate of Incorporation of the Company, as amended to date;
2.
The
By-Laws of the Company, as amended to date; and
3.
The
Plan.
We
have
also examined such further documents, records and proceedings as we have deemed
pertinent in connection with the issuance of the Common Stock. In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the completeness and authenticity of all documents
submitted to us as originals, and the conformity to the originals of all
documents submitted to us as certified, photostatic or conformed copies, and
the
validity of all laws and regulations.
We
are
qualified to practice law in the State of Florida and we do not purport to
express any opinion herein concerning any law other than the laws of the State
of Florida, the General Corporation Law of the State of Delaware and the federal
law of the United States.
Based
upon such examination, it is our opinion that the Common Stock being registered
by the Registration Statement, when issued and paid for as contemplated by
the
Plan, will be legally issued, fully paid and non-assessable.
We
hereby
consent to the use of this opinion as Exhibit 5.1 to the Registration Statement.
In giving this consent, we do not hereby 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.
Very
truly yours,
/s/
Edwards, Angell Palmer & Dodge LLP
Edwards,
Angell, Palmer & Dodge LLP
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the reference to the incorporation by reference in the Registration
Statement (Form S-8 No. 333-_____) pertaining to the DOR BioPharma, Inc. 2005
Equity Incentive Plan, of our report dated February 16, 2005, with respect
to
the consolidated financial statements of DOR BioPharma, Inc. included in its
Annual Report (Form 10-KSB) for the year ended December 31, 2004, filed with
the
Securities and Exchange Commission.
/s/
Sweeney, Gates & Co.
Sweeney,
Gates & Co.
Fort
Lauderdale, Florida
December
29, 2005