As filed with the Securities and Exchange Commission on June 20, 2014.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________________________________________
SOLIGENIX, INC.
(Exact Name of Registrant 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 No.)
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29 Emmons Drive, Suite C-10
Princeton, New Jersey 08540
(Address, Including Zip Code, of Principal Executive Offices)
______________________________________________________
Soligenix, Inc. 2005 Equity Incentive Plan
(Full Title of the Plan)
______________________________________________________
Christopher J. Schaber, Ph.D.
President and Chief Executive Officer
Soligenix, Inc.
29 Emmons Drive, Suite C-10
Princeton, New Jersey 08540
(609) 538-8200
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
with copies to:
Leslie J. Croland, Esq.
Duane Morris LLP
Suite 3400
200 South Biscayne Boulevard
Miami, Florida 33131-2318
(305) 960-2200
______________________________________________________
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. (Check one):
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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¨
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Smaller reporting company
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x
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CALCULATION OF REGISTRATION FEE
Title of Each Class
of Securities to be Registered
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Proposed
maximum
offering
price
per
share
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Common Stock,
$0.001 par value per share
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3,000,000
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(1)(2)
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$
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2.15
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(3)
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$
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6,450,000
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(3)
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$
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831
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(3)
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(1)
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This Registration Statement covers, in addition to the number of shares of Soligenix, Inc., a Delaware corporation (the “Company” or the “Registrant”), common stock, par value $0.001 per share (the “Common Stock”), stated above, options and other rights to purchase or acquire the shares of Common Stock covered by this Registration Statement and, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), an additional indeterminate number of shares, options and rights that may be offered or issued pursuant to the Soligenix, Inc. 2005 Equity Incentive Plan, as amended and restated (the “Plan”), as a result of one or more adjustments under the Plan to prevent dilution resulting from one or more stock splits, stock dividends or similar transactions.
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(2)
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This Registration Statement also covers the preferred stock purchase rights issuable in accordance with the Rights Agreement dated June 22, 2007, between the Registrant and American Stock Transfer & Trust Company, as Rights Agent, which are presently attached to and trade with the Registrant’s Common Stock.
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(2)
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These figures are estimates made solely for the purpose of calculating the registration fee pursuant to Rule 457 under the Securities Act. The registration fee has been calculated in accordance with Rule 457(h)(1) based upon the average of the bid and asked prices of the Common Stock as reported on the OTCQB on June 17, 2014.
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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
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The following documents, which previously have been filed by Soligenix, 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-K for the fiscal year ended December 31, 2013;
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(2)
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The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter March 31, 2014;
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(3)
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The Registrant's Current Report on Form 8-K filed with the SEC on January 8, 2014;
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(4)
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The Registrant's Current Report on Form 8-K filed with the SEC on June 20, 2014;
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(5)
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The description of the Common Stock, $0.001 par value, of the Registrant under the caption "Description of Securities" contained in the Registrant's Post-Effective Amendment No. 1 to Registration Statement on Form S-1, as filed with the Securities and Exchange Commission on April 8, 2014 (Commission File No. 333-192908) and any amendment or report subsequently filed by the Registrant for the purpose of updating that description; and
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(6)
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The description of the Company’s Preferred Stock Purchase Rights contained in its Registration Statement on Form 8-A filed with the Commission on June 22, 2007 (Commission File No. 000-
16929) 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
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Not applicable.
Item 5.
Interests of Named Experts and Counsel
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Not applicable.
Item 6.
Indemnification of Directors and Officers
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Section 102(b)(7) of the Delaware General Corporation Law allows companies to limit the personal liability of its directors to the company or its stockholders for monetary damages for breach of a fiduciary duty. Article IX of the Registrant’s Certificate of Incorporation, as amended, provides for the limitation of personal liability of 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 the Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”) may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
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
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Not applicable.
Item 8.
Exhibits
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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
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(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 Princeton, State of New Jersey, on this 20th day of June, 2014.
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SOLIGENIX, INC.
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By:
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/s/ Christopher J. Schaber
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Christopher J. Schaber
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Chief Executive Officer and President
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Christopher J. Schaber and Joseph Warusz, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 United States 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 or she 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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By:
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/s/ Christopher J. Schaber
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Christopher J. Schaber, PhD
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Chairman , President and Chief Executive Officer
(Principal Executive Officer)
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June 20, 2014
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By:
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/s/ Keith L. Brownlie
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Keith L. Brownlie, CPA
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Director
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June 20, 2014
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By:
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/s/ Marco M. Brughera
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Marco M. Brughera, D.V.M.
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Director
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June 20, 2014
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By:
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/s/ Gregg A. Lapointe
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Gregg A. Lapointe, CPA
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Director
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June 20, 2014
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By:
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/s/ Robert J. Rubin
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Robert J. Rubin, MD
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Director
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June 20, 2014
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By:
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/s/ Jerome Zeldis
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Jerome Zeldis, MD, PhD
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Director
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June 20, 2014
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By:
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/s/ Joseph M. Warusz
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Joseph M. Warusz, CPA
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Vice President of Finance, Acting Chief Financial Officer and Corporate Secretary (Principal Financial and Accounting Officer)
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June 20, 2014
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EXHIBIT INDEX
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4.1
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Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 included in the Registrant’s current report on Form 8-K filed on June 22, 2012).
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4.2
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Bylaws (incorporated by reference to Exhibit 3.1 included in the Registrant’s Quarterly Report on Form 10-QSB, as amended, for the fiscal quarter ended June 30, 2003).
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4.3
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Rights Agreement dated June 22, 2007, between the Registrant and American Stock Transfer & Trust Company, as Rights Agent (incorporated by reference to Exhibit 4.1 included in the Registrant’s current report on Form 8-K filed on June 22, 2007).
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5.1
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Opinion of Duane Morris LLP regarding legality of securities being registered. *
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23.1
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Consent of Consent of EisnerAmper LLP. *
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23.2
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Consent of Duane Morris 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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99.1
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Soligenix, Inc. 2005 Equity Incentive Plan, as amended on September 25, 2013 (incorporated by reference to Exhibit 10.1 included in the Registrant’s current report on Form 8-K filed on September 30, 2013).
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* Filed herewith.
Exhibit 5.1
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NEW YORK
LONDON
SINGAPORE
PHILADELPHIA
CHICAGO
WASHINGTON, DC
SAN FRANCISCO
SILICON VALLEY
SAN DIEGO
BOSTON
HOUSTON
LOS ANGELES
HANOI
HO CHI MINH CITY
ATLANTA
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FIRM and AFFILIATE OFFICES
www.duanemorris.com
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BALTIMORE
WILMINGTON
MIAMI
BOCA RATON
PITTSBURGH
NEWARK
LAS VEGAS
CHERRY HILL
LAKE TAHOE
MYANMAR
OMAN
A GCC REPRESENTATIVE OFFICE
OF DUANE MORRIS
MEXICO CITY
ALLIANCE WITH
MIRANDA & ESTAVILLO
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June 20, 2014
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29 Emmons Drive, Suite C-10
Princeton, New Jersey 08540
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Registration Statement on Form S-8 Relating to the Soligenix, Inc. 2005 Equity Incentive Plan
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Ladies and Gentlemen:
We have acted as counsel to Soligenix, Inc., a Delaware corporation (the “Company”), in connection with the preparation of a registration statement on Form S-8 (the “Registration Statement”) for filing with the U.S. Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Act”), for the registration by the Company of 3,000,000 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share, and related preferred stock purchase rights (the “Rights”) issuable pursuant to the Rights Agreement dated June 22, 2007 (the “Rights Agreement”), between the Company and American Stock Transfer & Trust Company, as Rights Agent, which Shares and Rights may be issued under the Soligenix, Inc. 2005 Equity Incentive Plan (the “Plan”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, other than as expressly stated herein with respect to the issuance of the Shares and related Rights.
In connection with the opinion set forth in this letter, we have examined the Registration Statement, originals, or copies certified or otherwise identified to our satisfaction, of the Plan, the Second Amended and Restated Certificate of Incorporation of the Company, the Bylaws of the Company, the Rights Agreement and such other documents, records and other instruments as we have deemed appropriate for purposes of the opinion set forth herein. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.
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200 SOUTH BISCAYNE BOULEVARD, SUITE 3400 MIAMI, FL 33131-2318
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PHONE: +1 305 960 2200 FAX: +1 305 960 2201
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Soligenix, Inc.
June 20, 2014
Page 2
We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile, photostatic or other copies and the authenticity of the originals of all documents submitted to us as copies.
In rendering this opinion, we have assumed that the members of the Company’s Board of Directors have acted in a manner consistent with their fiduciary duties as required under applicable law in adopting the Rights Agreement. This opinion does not address the determination a court of competent jurisdiction may make regarding whether the Company’s Board of Directors would be required to redeem or terminate, or take other action with respect to, the Rights at some future time based on the facts and circumstances existing at that time. This opinion addresses the Rights and the Rights Agreement in their entirety, and it is not settled whether the invalidity of any particular provision of a rights agreement or of rights issued thereunder would result in invalidating such rights in their entirety.
Subject to the limitations set forth below, we have made such examination of law as we have deemed necessary for the purpose of this opinion. This opinion is limited solely to the federal laws of the United States and the Delaware General Corporation Law as in effect on the date hereof, and no opinion is expressed with respect to such laws as subsequently amended, or any other laws, or any effect that such amended or other laws may have on the opinions expressed herein.
Based upon the foregoing, we are of the opinion that:
1. The Shares, when issued and sold in accordance with the provisions of the Plan and relevant agreements duly authorized by and in accordance with the terms of the Plan, and upon payment for and delivery of the Shares as contemplated in accordance with the Plan, will be legally issued, fully paid and non-assessable; and
2. Each of the Rights, when issued and sold in accordance with the provisions of the Plan and relevant agreements duly authorized by and in accordance with the terms of the Plan, and upon payment for and delivery of the Shares to which such Rights as related as contemplated in accordance with the Plan, will be legally issued, and will constitute a valid and binding obligation of the Company under the law of Delaware enforceable against the Company in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
Soligenix, Inc.
June 20, 2014
Page
3
The opinion set forth above is limited to the laws of the State of Delaware as currently in effect, and no opinion is expressed with respect to such laws as subsequently amended, or any other laws, or any effect that such amended or other laws may have on the opinions expressed herein. The opinions expressed herein are limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated herein. The opinions expressed herein are given as of the date hereof, and we undertake no obligation to advise you of any changes in applicable laws after the date hereof or of any facts that might change the opinions expressed herein that we may become aware of after the date hereof.
We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement to be filed by the Company on or about the date hereof. In giving such opinion, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the U.S. Securities and Exchange Commission thereunder.
