As filed with the Securities and Exchange Commission on July 21, 2010
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
REGENERX BIOPHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
52-1253406
(I.R.S. Employer Identification No.)
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15245 Shady Grove Road, Suite 470, Rockville, MD
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20850
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(Address of registrant’s principal executive offices)
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(Zip Code)
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2010 Equity Incentive Plan
(Full title of the Plan)
J.J. Finkelstein
President and Chief Executive Officer
RegeneRx Biopharmaceuticals, Inc.
15245 Shady Grove Road, Suite 470
Rockville, MD 20850
(Name and address of agent for service)
(301) 208-9191
(Telephone number, including area code, of agent for service)
Copy to:
Darren K. DeStefano, Esq.
Cooley LLP
One Freedom Square
Reston Town Center
11951 Freedom Drive
Reston, VA 20190-5656
(703) 456-8000
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 the definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Proposed
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Proposed
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maximum
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maximum
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Amount to be
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offering price
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aggregate
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Amount of
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Title of securities to be registered
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registered (1)
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per share (2)
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offering price
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registration fee
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Common Stock, par value $0.001 per
share
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5,000,000
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$
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0.26
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$
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1,300,000
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$
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92.69
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(1)
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Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement shall also cover any additional shares of
Registrant’s Common Stock that become issuable under the plans set forth herein by reason of any
stock dividend, stock split, recapitalization or other similar transaction effected without receipt
of consideration that increases the number of outstanding shares of Registrant’s Common Stock.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee
pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price
per share and the aggregate offering price are based upon the average of the high and low prices of
the Registrant’s Common Stock as reported on the NYSE Amex stock exchange on July 14, 2010.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTU
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Item 1.
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Plan Information*
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Item 2.
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Registrant Information and Employee Plan Annual Information*
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*
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Information required by Part I to be contained in the Section 10(a) prospectus is omitted from
this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and
the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents, which have heretofore been filed by RegeneRx Biopharmaceuticals, Inc.
(the “Company”) with the Securities and Exchange Commission pursuant to the Securities Act and
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated
by reference herein and shall be deemed to be a part hereof:
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(1)
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The Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2009, filed on March 31, 2010;
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(2)
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The Company’s Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2009, filed on May 17, 2010;
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(3)
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The Company’s Current Reports on Form 8-K filed on May 21, 2010 and July 20,
2010; and
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(4)
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The description of the Company’s common stock contained in the Company’s
Registration Statement on Form S-3, as amended (Registration No. 333-122386),
originally filed with the Securities and Exchange Commission on January 28, 2005 and
incorporated by reference in Item 1 of the Company’s Registration Statement on Form 8-A
under the Exchange Act, originally filed with the Securities and Exchange Commission on
March 22, 2005, and all amendments or reports filed for the purpose of updating such
description.
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All other reports and other documents subsequently filed by the Company 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 offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this
Registration Statement from the date of the filing of such reports and documents.
Any statement contained herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained in any subsequently filed
incorporated document modifies or supersedes such statement. Any statement contained in an
incorporated document 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 incorporated document modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
The Registrant’s Exchange Act file number with the Commission is 001-15070.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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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 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 of or agent to the Company. The statute provides that it is not
exclusive of other rights to which those seeking indemnification may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
Article VII of the Company’s bylaws provides that the Company shall indemnify any person who
was or is 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 the
Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise (all such
persons being referred to hereinafter as an “Indemnitee”), against expenses (including attorneys’
fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Company, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, or itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, that such person had reasonable cause to believe that his conduct was unlawful.
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 payments of unlawful dividends or unlawful stock
repurchases or redemptions, or (iv) for any transaction from which the director derived an improper
personal benefit. The Company’s certificate of incorporation provides for such limitation of
liability.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation or enterprise, against any liability asserted against him and incurred by him in any
such capacity, arising out of his status as such, whether or not the corporation would otherwise
have the power to indemnify him under Section 145. Policies of insurance are maintained by the
Company under which its directors and officers are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the defense of, and
certain liabilities which might be imposed as result of, actions, suits or proceedings to which
they are parties by reason of being or having been such directors or officers.
At present, there is no pending litigation or proceeding involving a director or officer of
the Company regarding which indemnification is sought, nor is the Company aware of any threatened
litigation that may result in claims for indemnification.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
See Exhibit Index.
(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;
(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 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 the Registration Statement or any material change to such information in the
Registration Statement;
provided
,
however
, that the undertakings set forth in clauses (i) and (ii) above do not apply if
the information required to be included
in a post-effective amendment by those clauses 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 of 1934, as amended (the “Exchange Act”), that are incorporated by reference in this
registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the 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 the registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) 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 this 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.
(5) That, 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 the City of Rockville, State of Maryland on this 21st day of July,
2010.
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REGENERX BIOPHARMACEUTICALS, INC.
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By:
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/s/ J.J. FINKELSTEIN
J.J. Finkelstein
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
J.J. Finkelstein and C. Neil Lyons, and each of them, his true and lawful attorney-in-fact and
agent, with full power 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 post-effective
amendments) to this Registration Statement, 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, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection therewith, as fully
to all intents and purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute,
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 indicated.
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Signature
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Title
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Date
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/s/ ALLAN L. GOLDSTEIN
Allan L. Goldstein
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Chairman of the Board
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July 21, 2010
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/s/ J.J. FINKELSTEIN
J.J. Finkelstein
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President, Chief Executive Officer and Director
(Principal
Executive Officer)
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July 21, 2010
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Director
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/s/ L. THOMPSON BOWLES
L. Thompson Bowles
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Director
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July 21, 2010
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Director
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/s/ C. NEIL LYONS
C. Neil Lyons
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Chief Financial Officer and Treasurer
(Principal
Financial and Accounting Officer)
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July 21, 2010
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EXHIBIT INDEX
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Exhibit
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No.
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Description
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3.1
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Restated Certificate of Incorporation
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Exhibit 3.1 to the
Company’s Registration
Statement on Form S-1
(File No. 333-166146)
(filed April 16, 2010)
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3.2
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Certificate of Amendment of Restated
Certificate of Incorporation
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Exhibit 3.2 to the
Company’s Registration
Statement on Form S-1
(File No. 333-166146)
(filed April 16, 2010)
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3.3
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Certificate of Amendment of Restated
Certificate of Incorporation
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Exhibit 3.3 to the
Company’s Registration
Statement on Form S-1
(File No. 333-166146)
(filed April 16, 2010)
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3.4
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Certificate of Amendment of Restated
Certificate of Incorporation
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Filed herewith
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3.5
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Certificate of Designation of Series
A Participating Cumulative Preferred
Stock
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Exhibit 3.4 to the
Company’s Registration
Statement on Form S-1
(File No. 333-166146)
(filed April 16, 2010)
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3.6
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Amended and Restated Bylaws
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Exhibit 3.4 to the
Company’s Quarterly
Report on Form 10-Q
(filed August 14, 2006)
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3.7
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Amendment to Amended and Restated Bylaws
of the Company
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Exhibit 3.6 to the
Company’s Registration
Statement on Form S-8
(File No. 333-152250)
(filed July 10, 2008)
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4.1
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Form of Stock Certificate
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Exhibit 4.1 to the
Company’s Registration
Statement on Form S-1
(File No. 333-166146)
(filed April 16, 2010)
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4.2
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Form of Rights Certificate
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Exhibit 4.2 to the
Company’s Registration
Statement on Form S-1
(File No. 333-166146)
(filed April 16, 2010)
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4.3
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Rights Agreement, dated as of April 29,
1994, between the Company and American
Stock Transfer & Trust Company, as Rights
Agent
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Exhibit 4.3 to the
Company’s Registration
Statement on Form S-1
(File No. 333-166146)
(filed April 16, 2010)
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4.4
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Amendment No. 1 to Rights Agreement,
dated March 4, 2004, between the Company
and American Stock Transfer & Trust
Company, as Rights Agent
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Exhibit 4.4 to the
Company’s Registration
Statement on Form S-1
(File No. 333-166146)
(filed April 16, 2010)
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5.1
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Opinion of Cooley LLP
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Filed herewith
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23.1
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Consent of Reznick Group, P.C.,
independent registered public accounting
firm
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Filed herewith
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23.1
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Consent of Cooley LLP
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Included in Exhibit 5.1
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24.1
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Power of Attorney
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Included on signature page
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99.1
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RegeneRx Biopharmaceuticals, Inc. 2010
Equity Incentive Plan
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Exhibit 10.1 to the
Company’s Current Report
on Form 8-K (filed July
20, 2010)
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99.2
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Forms of Stock Option Grant Notice and
Option Agreement under 2010 Equity
Incentive Plan
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Exhibit 10.2 to the
Company’s Current Report
on Form 8-K (filed July
20, 2010)
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Exhibit 3.4
Delaware
The
First State
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE,
DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE
CERTIFICATE OF AMENDMENT OF “REGENERX BIOPHARMACEUTICALS, INC.”, FILED IN
THIS OFFICE ON THE EIGHTH DAY OF JUNE, A.D. 2010, AT 12:05 O’CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY
RECORDER OF DEEDS.
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0937420
8100
100637337
You may verify
this certificate online at
corp.delaware.gov/authver.shtml
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/s/ Jeffrey W. Bullock
Jeffrey W. Bullock, Secretary of State
AUTHENTICATION: 8043505
DATE: 06-09-10
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PAGE 1
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State of Delaware
Secretary of State
Division of Corporations
Delivered 12:12 PM 06/08/2010
FILED 12:05 PM 06/08/2010
SRV 100637337 — 0937420 FILE
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CERTIFICATE OF AMENDMENT OF RESTATED
CERTIFICATE OF INCORPORATION OF
REGENERX BIOPHARMACEUTICALS, INC.
RegeneRx Biopharmaceuticals, Inc.
, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware (the “
Corporation
”), hereby
certifies that
:
First:
The name of the Corporation is
RegeneRx Biopharmaceuticals, Inc.
Second:
The original name of the Corporation is Alpha 1 Biomedicals, Inc. and the
date of filing the original Certificate of Incorporation of the Corporation with the Secretary of
State of the State of Delaware was May 13, 1982.
Third:
The Board of Directors of the Corporation, acting in accordance with the
provisions of Sections 141 and 242 of the General Corporation Law of the State of Delaware, adopted
resolutions amending its Restated Certificate of Incorporation as follows:
Article 4 shall be amended and restated to read in its entirety as follows:
“4.
Authorized Capital Stock.
The total number of shares of capital stock
which the Corporation shall have the authority to issue is Two Hundred One Million
(201,000,000) shares divided into two classes of which One Million (1,000,000) shares
of the par value of $.001 per share shall be designated Preferred Stock and Two
Hundred Million (200,000,000) shares of the par value of $.001 per share shall be
designated Common Stock.”
Fourth:
Pursuant to a resolution of the Board of Directors, an action by written
consent of the stockholders of the Company, in lieu of a special meeting, was duly executed in
accordance with Section 228 of the General Corporation Law of the State of Delaware, by the holders
of outstanding stock of the Company having not less than the minimum number of votes that would be
necessary to approve this Certificate of Amendment at a meeting at which all shares entitled to
vote thereon were present and voting.
Fifth:
This Certificate of Amendment has been duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of Delaware.
In Witness Whereof
,
RegeneRx Biopharmaceuticals, Inc.
has caused this
Certificate of Amendment to be signed by its President and attested to by its Assistant Secretary
this 8th day of June, 2010.
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RegeneRx Biopharmaceuticals, Inc.
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By:
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/s/ J.J. Finkelstein
J.J. Finkelstein, President
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Attest:
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/s/ C. Neil Lyons
Neil Lyons, Assistant Secretary
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Exhibit 5.1
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Darren K. DeStefano
(703)-456-8034
ddestefano@cooley.com
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July 21, 2010
RegeneRx Biopharmaceuticals, Inc.
15245 Shady Grove Road, Suite 470
Rockville, MD 20850
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection with the filing
by RegeneRx Biopharmaceuticals, Inc. (the “
Company
”) of a Registration Statement on Form S-8 (the
“
Registration Statement
”) with the Securities and Exchange Commission covering the offering of up
to 5,000,000 shares of the Company’s Common Stock, $0.001 par value, issuable under the Company’s
2010 Equity Incentive Plan (the “
2010 Plan
”) (collectively the “
S-8 Shares
”).
In connection with this opinion, we have examined and relied upon the Registration Statement
and related prospectus, the Company’s Restated Certificate of Incorporation and Amended and
Restated Bylaws, each as amended to date, the 2010 Plan and such other documents, records,
certificates, memoranda and other instruments as we deemed necessary as a basis for this opinion.
We have assumed the genuineness and authenticity of all documents submitted to us as originals; the
conformity to originals of all documents submitted to us as copies thereof; the accuracy,
completeness and authenticity of certificates of public officials; and the due execution and
delivery of all documents where due execution and delivery are a prerequisite to the effectiveness
thereof. As to certain factual matters, we have relied upon a certificate of an officer of the
Company and have not independently sought to verify such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of
Delaware. We express no opinion as to whether the laws of any particular jurisdiction other than
the jurisdiction identified above are applicable to the subject matter hereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the S-8
Shares, when issued and sold in accordance with the 2010 Plan, the Registration Statement and
related prospectus, will be validly issued, fully paid and nonassessable (except as to shares
issued pursuant to certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
Cooley LLP
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By:
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/s/ Darren K. DeStefano
Darren K. DeStefano
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ONE FREEDOM SQUARE, RESTON TOWN CENTER, 11951 FREEDOM DRIVE, RESTON, VA 20190-5656 T: (703)
456-8000 F: (703) 456-8100 WWW.COOLEY.COM
