S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on October 28, 2005
As
filed
with the Securities and Exchange Commission on October 28, 2005.
Registration
Statement No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
Rexahn
Pharmaceuticals, Inc.
(Exact
name of registrant as specified in its charter)
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DELAWARE
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11-3516358
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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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9620
Medical Center Drive
Rockville,
Maryland
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20850
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Rexahn Pharmaceuticals, Inc. Stock Option Plan
(Full
title of the plan)
Tae
Heum Jeong
Chief
Financial Officer and Secretary
Rexahn
Pharmaceuticals, Inc.
9620
Medical Center Drive
Rockville,
Maryland 20850
(240)
268-5300
(Name,
address and telephone number, including area code, of agent for
service)
Copies
to:
Hwan
Kim,
Esq.
Chadbourne
& Parke LLP
1200
New Hampshire Avenue, N.W.
Washington,
DC 20036
(202)
974-5600
Calculation
of Registration Fee
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Title
of securities to be registered
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Amount
to be registered (1)
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Proposed
maximum offering price per share (2)
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Proposed
maximum aggregate offering price (2)
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Amount
of registration fee
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Common
Stock, par value $.0001 per share
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6,992,500 shares
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$3.13
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$21,886,525
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$2,577
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(1)
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The
shares of Common Stock set forth in the Calculation of Registration
Fee
table and which may be offered pursuant to this registration statement
include, pursuant to Rule 416 under the Securities Act of 1933,
as amended
(the "Securities Act"), such additional number of shares of the
Registrant's Common Stock as may be offered or issued as a result
of any
stock splits, stock dividends or similar
events.
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(2)
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Estimated
solely for purposes of calculating the registration fee pursuant
to Rules
457(c) and (h) under the Securities Act, based upon the average
of the
lowest bid and highest asked price on October 25, 2005, as reported
on The
Over-The-Counter Bulletin
Board.
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PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents filed by Rexahn Pharmaceuticals, Inc. (the "Company")
with
the Commission are hereby incorporated by reference into this registration
statement as of their respective dates:
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(a)
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Annual
Report on Form 10-KSB for the fiscal year ended December 31, 2004
of the
Company (File No. 000-50590);
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(b)
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Quarterly
Report on Form 10-QSB for the quarter ended March 31, 2005 of the
Company;
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(c)
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Quarterly
Report on Form 10-QSB for the quarter ended June 30, 2005 of the
Company;
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(d)
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Current
Reports on Form 8-K of the Company filed with the Commission on
January
18, 2005, January 21, 2005, February 7, 2005, May 16, 2005, June
17, 2005,
August 11, 2005 and September 15, 2005;
and
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(e)
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The
description of the Company's Common Stock contained in Item 8.01
of the
Company's Current Report on Form 8-K filed with the Commission
on May 16,
2005.
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All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") prior to the filing of a post-effective amendment which indicates that
all
securities offered hereby have been sold or that deregisters all such securities
then remaining unsold, shall be deemed to be incorporated herein by reference
and to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated herein
by
reference 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 document which also is or is deemed to be incorporated
by reference herein modifies or supersedes that statement. Any such statement
so
modified or superseded shall not constitute a part of this registration
statement, except as so modified or superseded.
Item
4. Description of Securities.
This
Item
is not applicable.
Item
5. Interests of Named Experts and Counsel.
This
Item
is not applicable.
Item
6. Indemnification of Directors and Officers.
Section
102(b)(7) of the Delaware General Corporation Law (the "DGCL") 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 for:
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l
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any
breach of the director’s duty of loyalty to the corporation or its
stockholders;
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l
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acts
or omissions not in good faith or which involve intentional misconduct
or
a knowing violation of law;
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l
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unlawful
payments of dividends or unlawful stock repurchases, redemptions
or other
distributions; or
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any
transaction from which the director derived an improper personal
benefit.
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Article
Seventh of the Company's Amended and Restated Certificate of Incorporation
provides for this limitation of liability.
Section
145 of the DGCL 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
or
agent of the Company, subject to certain limitations. The DGCL provides that
Section 145 is not exclusive of other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise.
The
DGCL
provides for indemnification of directors, officers, employees and agents
subject to limitations. Section 14 of Article III of the Company's Amended
and
Restated Bylaws and the appendix to the Company's Amended and Restated Bylaws
provide for the indemnification of directors, officers, employees and agents
under certain circumstances and upon satisfaction of certain conditions to
the
extent permitted by Delaware law.
Item
7. Exemption from Registration Claimed.
This
Item
is not applicable.
Item
8. Exhibits.
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4.1
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Amended
and Restated Certificate of Incorporation, filed as Appendix G
to the
Company's Definitive Proxy Statement on Schedule 14A (File No.
000-50590)
dated April 29, 2004, is incorporated herein by
reference.
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4.2
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Amended
and Restated Bylaws, filed as Appendix H to the Company's Definitive
Proxy
Statement on Schedule 14A (File No. 000-50590) dated April 29,
2004, is
incorporated herein by reference.
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Specimen
Certificate for the Company's Common Stock, par value $.0001 per
share.
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Rexahn
Pharmaceuticals, Inc. Stock Option Plan, as amended.
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Form
of Stock Option Grant Agreement for Employees.
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Form
of Stock Option Grant Agreement for Non-Employee Directors and
Consultants.
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Opinion
of Chadbourne & Parke LLP as to the legality of any newly issued
shares of Common Stock of the Company covered by this registration
statement.
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Consent
of Lazar, Levine & Felix, LLP,
independent registered public accounting firm.
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Consent
of SF Partnership, LLP, independent registered public accounting
firm.
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23.3
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Consent
of Chadbourne & Parke LLP, contained in its opinion field as Exhibit 5
to this registration statement.
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24
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Power
of Attorney (Included
on signature page of the registration
statement).
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Item
9. Undertakings.
The
Company hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to:
(i)
Include any prospectus required by Section 10(a)(3) of the Securities Act
of
1933, as amended (the "Securities Act");
(ii)
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; and
(iii)
Include any additional or changed material information on the plan of
distribution;
provided,
however,
that
clauses (i) and (ii) 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 Commission by the Company pursuant to Section
13
or 15(d) of the Exchange Act that are incorporated by reference in this
registration statement.
(2)
For determining liability under the Securities Act, to treat each post-effective
amendment as a new registration statement of the securities offered, and
the
offering of the securities at that time to be the initial bona fide
offering.
(3)
To file a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
(4)
That,
for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or 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 the time shall be deemed to be the initial
bona fide offering thereof.
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, Maryland, on October 21, 2005.
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REXAHN
PHARMACEUTICALS, INC.
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By
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/s/
Chang H. Ahn
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Name:
Chang H. Ahn
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Title:
Chairman, Chief Executive Officer and
Director
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KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Chang H. Ahn and Tae Heum Jeong, and each of them,
with
full power to act without the other, his or her true and lawful
attorneys-in-fact and agents, with full power to them and each of them
(including the 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 (including post-effective amendments and supplements) to
this
registration statement to be filed by REXAHN PHARMACEUTICALS, INC. 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 they 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 or her substitute
or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and
on the
dates indicated:
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Signature
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Title
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Date
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/s/
Chang H. Ahn
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Chairman
and Chief Executive Officer
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Chang
H. Ahn
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and
Director (principal executive officer)
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October
21, 2005
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/s/
Tae Heum Jeong
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Chief
Financial Officer and Secretary
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Tae
Heum Jeong
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and
Director (principal financial and
accounting
officer)
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October
21, 2005
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/s/
Inok Ahn
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Treasurer
and Director
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Inok
Ahn
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October
21, 2005
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/s/
John Holaday
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Director
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John
Holaday
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October
20, 2005
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/s/
David McIntosh
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Director
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David
McIntosh
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October
17, 2005
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/s/
Young-Soon Park
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Director
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Young-Soon
Park
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October
21, 2005
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EXHIBIT
INDEX
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4.1
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Amended
and Restated Certificate of Incorporation, filed as Appendix G
to the
Company's Definitive Proxy Statement on Schedule 14A (File No.
000-50590)
dated April 29, 2004, is incorporated herein by
reference.
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4.2
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Amended
and Restated Bylaws, filed as Appendix H to the Company's Definitive
Proxy
Statement on Schedule 14A (File No. 000-50590) dated April 29,
2004, is
incorporated herein by reference.
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4.3
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Specimen
Certificate for the Company's Common Stock, par value $.0001 per
share.
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4.4
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Rexahn
Pharmaceuticals, Inc. Stock Option Plan, as amended.
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4.5.1
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Form
of Stock Option Grant Agreement for Employees.
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4.5.2
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Form
of Stock Option Grant Agreement for Non-Employee Directors and
Consultants.
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5
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Opinion
of Chadbourne & Parke LLP as to the legality of any newly issued
shares of Common Stock of the Company covered by this registration
statement.
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23.1
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Consent
of Lazar, Levine & Felix, LLP,
independent registered public accounting firm.
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23.2
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Consent
of SF Partnership, LLP, independent registered public accounting
firm.
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23.3
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Consent
of Chadbourne & Parke LLP, contained in its opinion field as Exhibit 5
to this registration statement.
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Power
of Attorney (Included
on signature page of the registration
statement).
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