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.)
     
15245 Shady Grove Road, Suite 470, Rockville, MD   20850
(Address of registrant’s principal executive offices)   (Zip Code)
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.
             
Large accelerated filer o   Accelerated filer o   Non-accelerated filer o   Smaller reporting company þ
        (Do not check if a smaller reporting company)    
CALCULATION OF REGISTRATION FEE
                                             
 
                  Proposed     Proposed        
                  maximum     maximum        
        Amount to be     offering price     aggregate     Amount of  
  Title of securities to be registered     registered (1)     per share (2)     offering price     registration fee  
 
Common Stock, par value $0.001 per share
      5,000,000       $ 0.26       $ 1,300,000       $ 92.69    
 
     
(1)   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.
 
(2)   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.
 
 

 

 


 

PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTU S
Item 1.   Plan Information*
Item 2.   Registrant Information and Employee Plan Annual Information*
     
*   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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.   Incorporation of Documents by Reference.
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:
  (1)   The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009, filed on March 31, 2010;
  (2)   The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2009, filed on May 17, 2010;
  (3)   The Company’s Current Reports on Form 8-K filed on May 21, 2010 and July 20, 2010; and
  (4)   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.
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.
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 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.
Item 7.   Exemption from Registration Claimed.
Not applicable.
Item 8.   Exhibits.
See Exhibit Index.
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;
(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.
             
    REGENERX BIOPHARMACEUTICALS, INC.    
 
           
 
  By:   /s/ J.J. FINKELSTEIN
 
J.J. Finkelstein
   
 
      President and Chief Executive Officer    
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.
         
Signature   Title   Date
 
       
/s/ ALLAN L. GOLDSTEIN
 
Allan L. Goldstein
  Chairman of the Board    July 21, 2010
 
       
/s/ J.J. FINKELSTEIN
 
J.J. Finkelstein
  President, Chief Executive Officer and Director 
(Principal Executive Officer)
  July 21, 2010
 
 
  Director    
 
Joseph C. McNay
       
 
       
/s/ L. THOMPSON BOWLES
 
L. Thompson Bowles
  Director    July 21, 2010
 
 
  Director    
 
Mauro Bove
       
 
       
/s/ C. NEIL LYONS
 
C. Neil Lyons
  Chief Financial Officer and Treasurer 
(Principal Financial and Accounting Officer)
  July 21, 2010

 

 


 

EXHIBIT INDEX
             
Exhibit    
No.   Description
  3.1    
Restated Certificate of Incorporation
  Exhibit 3.1 to the Company’s Registration Statement on Form S-1 (File No. 333-166146) (filed April 16, 2010)
       
 
   
  3.2    
Certificate of Amendment of Restated Certificate of Incorporation
  Exhibit 3.2 to the Company’s Registration Statement on Form S-1 (File No. 333-166146) (filed April 16, 2010)
       
 
   
  3.3    
Certificate of Amendment of Restated Certificate of Incorporation
  Exhibit 3.3 to the Company’s Registration Statement on Form S-1 (File No. 333-166146) (filed April 16, 2010)
       
 
   
  3.4    
Certificate of Amendment of Restated Certificate of Incorporation
  Filed herewith
       
 
   
  3.5    
Certificate of Designation of Series A Participating Cumulative Preferred Stock
  Exhibit 3.4 to the Company’s Registration Statement on Form S-1 (File No. 333-166146) (filed April 16, 2010)
       
 
   
  3.6    
Amended and Restated Bylaws
  Exhibit 3.4 to the Company’s Quarterly Report on Form 10-Q (filed August 14, 2006)
       
 
   
  3.7    
Amendment to Amended and Restated Bylaws of the Company
  Exhibit 3.6 to the Company’s Registration Statement on Form S-8 (File No. 333-152250) (filed July 10, 2008)
       
 
   
  4.1    
Form of Stock Certificate
  Exhibit 4.1 to the Company’s Registration Statement on Form S-1 (File No. 333-166146) (filed April 16, 2010)
       
 
   
  4.2    
Form of Rights Certificate
  Exhibit 4.2 to the Company’s Registration Statement on Form S-1 (File No. 333-166146) (filed April 16, 2010)
       
 
   
  4.3    
Rights Agreement, dated as of April 29, 1994, between the Company and American Stock Transfer & Trust Company, as Rights Agent
  Exhibit 4.3 to the Company’s Registration Statement on Form S-1 (File No. 333-166146) (filed April 16, 2010)
       
 
   
  4.4    
Amendment No. 1 to Rights Agreement, dated March 4, 2004, between the Company and American Stock Transfer & Trust Company, as Rights Agent
  Exhibit 4.4 to the Company’s Registration Statement on Form S-1 (File No. 333-166146) (filed April 16, 2010)
       
 
   
  5.1    
Opinion of Cooley LLP
  Filed herewith
       
 
   
  23.1    
Consent of Reznick Group, P.C., independent registered public accounting firm
  Filed herewith
       
 
   
  23.1    
Consent of Cooley LLP
  Included in Exhibit 5.1
       
 
   
  24.1    
Power of Attorney
  Included on signature page
       
 
   
  99.1    
RegeneRx Biopharmaceuticals, Inc. 2010 Equity Incentive Plan
  Exhibit 10.1 to the Company’s Current Report on Form 8-K (filed July 20, 2010)
       
 
   
  99.2    
Forms of Stock Option Grant Notice and Option Agreement under 2010 Equity Incentive Plan
  Exhibit 10.2 to the Company’s Current Report on Form 8-K (filed July 20, 2010)

 

 

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.
             
0937420    8100

100637337
You may verify
this certificate online at
corp.delaware.gov/authver.shtml
  (LOGO)   /s/ Jeffrey W. Bullock
 
Jeffrey W. Bullock, Secretary of State
AUTHENTICATION: 8043505
DATE: 06-09-10
   

 

PAGE 1


 

     
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
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.
             
    RegeneRx Biopharmaceuticals, Inc.    
 
           
 
  By:   /s/ J.J. Finkelstein
 
J.J. Finkelstein, President
   
     
Attest:
   
 
   
/s/ C. Neil Lyons
 
Neil Lyons, Assistant Secretary
   

 

 

Exhibit 5.1
 
(COOLEY LOGO)
Darren K. DeStefano
(703)-456-8034
ddestefano@cooley.com
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
         
By:
  /s/ Darren K. DeStefano
 
Darren K. DeStefano
   
ONE FREEDOM SQUARE, RESTON TOWN CENTER, 11951 FREEDOM DRIVE, RESTON, VA 20190-5656 T: (703) 456-8000 F: (703) 456-8100 WWW.COOLEY.COM

 

 

Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the RegeneRx Biopharmaceuticals, Inc. 2010 Equity Incentive Plan, of our report dated March 31, 2010, relating to the financial statements of RegeneRx Biopharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2009.
/s/ Reznick Group, P.C.
Vienna, Virginia
July 21, 2010