- Securities Registration: Employee Benefit Plan (S-8)

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)

[phone]
(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
[phone]

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.

 

 

 

 

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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.

 

 

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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;

 

 

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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.

 

 

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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

 

 

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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)