As filed with the Securities and Exchange Commission on September 29, 2004.
File No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KERYX BIOPHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 13-4087132
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
750 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 531-5965
(Address, including zip code, and telephone number of
Principal Executive Offices)
KERYX BIOPHARMACEUTICALS, INC. 2004 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
RON BENTSUR
VICE PRESIDENT FINANCE AND INVESTOR RELATIONS
KERYX BIOPHARMACEUTICALS, INC.
750 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 531-5971
(Name and Address of Agent For Service)
COPY TO:
MARK F. MCELREATH
ALSTON & BIRD LLP
90 PARK AVENUE
NEW YORK, NEW YORK 10016
(212) 210-9595
-------------------------
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Amount To Offering Aggregate Amount of
Class of Securities Be Price Offering Registration
To Be Registered Registered Per Share Price Fee
---------------- ---------- --------- ----- ---
Common Stock, par value
$0.001 per share 3,557,500(1) $10.97(2) $39,025,775 $4,944.57
Common Stock, par value
$0.001 per share 442,500(3) $10.83(4) $ 4,792,275 $ 607.18
Total 4,000,000 -- $43,818,050 $5,551.75
(1) Amount to be registered consists of an aggregate of 3,557,500 shares that
may be issued pursuant to the grant or exercise of awards granted to
employees, officers, directors and consultants under the Keryx
Biopharmaceuticals, Inc. 2004 Long-Term Incentive Plan, including
additional shares that may become issuable in accordance with the
adjustment and anti-dilution provisions of the plan.
(2) Determined in accordance with Rule 457(h), the registration fee
calculation with respect to shares underlying future grants or awards is
based on the average of the high and low prices of a share of the
Company's Common Stock reported on the Nasdaq Stock Market on September
27, 2004.
(3) Amount to be registered consists of an aggregate of 442,500 shares
underlying prior grants or awards of options to employees, officers,
directors and consultants under the Keryx Biopharmaceuticals, Inc. 2004
Long-Term Incentive Plan, having a weighted average exercise price of
$10.83 per share.
(4) Determined in accordance with Rule 457(b), the registration fee
calculation with respect to shares underlying prior grants or awards is
computed on the basis of the price at which the options may be exercised.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this Registration Statement
will be sent or given to participants in the Keryx Biopharmaceuticals, Inc. 2004
Long-Term Incentive Plan as specified by Rule 428(b)(1) under the Securities Act
of 1933, as amended (the "Securities Act").
(b) Upon written or oral request, Keryx Biopharmaceuticals, Inc.
(the "Company") will provide, without charge, the documents incorporated by
reference in Item 3 of Part II of this Registration Statement. The documents are
incorporated by reference in the Section 10(a) prospectus. The Company will also
provide, without charge, upon written or oral request, other documents required
to be delivered to employees pursuant to Rule 428(b). Requests for the
above-mentioned information should be directed to Ron Bentsur at (212) 531-5971
or by mail to Keryx Biopharmaceuticals, Inc., 750 Lexington Avenue, New York,
New York 10022.
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act") are hereby incorporated by reference into this Registration
Statement:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 2003;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2004 and June 30, 2004;
(3) The Company's Current Reports on Form 8-K filed on January 15,
2004, and September 23, 2004, and the Current Report on Form 8-K
filed on February 20, 2004, as amended by the Form 8-K/A filed
April 20, 2004;
(4) The description of the Company's Common Stock contained in our
Registration Statement on Form 8-A dated June 28, 2000 (File No.
000-30929); and
(5) All other documents subsequently filed by the Company pursuant to
Section 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
that indicates that all securities offered have been sold or that
deregisters all securities that remain unsold.
Any statement contained in a document incorporated by reference herein and
filed prior to the filing hereof shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein modifies or supersedes such statement, and any statement
contained herein or in any other document incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in any other subsequently
filed document which also is incorporated by reference herein 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.
ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the General Corporation Law of the State of Delaware, or DGCL, a
corporation may include provisions in its certificate of incorporation that will
relieve its directors of monetary liability for breaches of their fiduciary duty
to the corporation, except under certain circumstances, including a breach of
the director's duty of loyalty, acts or omissions of the director not in good
faith or which involve intentional misconduct or a knowing violation of law, the
approval of an improper payment of a dividend or an improper purchase by the
corporation of stock or any transaction from which the director derived an
improper personal benefit. The Company's Amended and Restated Certificate of
Incorporation eliminates the personal liability of directors to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a director
with certain limited exceptions as set forth in the DGCL.
Section 145 of the DGCL grants to corporations the power to indemnify each
officer and director against liabilities and expenses incurred by reason of the
fact that he or she is or was an officer or director of the corporation if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The Company's Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws provide for indemnification of
each officer and director of the Company to the fullest extent permitted by the
DGCL. Section 145 of the DGCL also empowers corporations to purchase and
maintain insurance on behalf of any person who is or was an officer or director
of the corporation against liability asserted against or incurred by him in any
such capacity, whether or not the corporation would have the power to indemnify
such officer or director against such liability under the provisions of Section
145 of the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description
-------------- -----------
5.1 Opinion of Alston & Bird LLP
23.1 Consent of KPMG LLP
23.2 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on signature page)
99.1 Keryx Biopharmaceuticals, Inc. 2004 Long-Term Incentive
Plan filed as Annex C to the Registrant's Definitive
Proxy Statement for its 2004 Annual Meeting of
Stockholders filed on April 29, 2004, and incorporated
herein by reference.
ITEM 9. UNDERTAKINGS
RULE 415 OFFERING
(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 the registration statement:
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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 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 this
registration statement;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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 Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities being 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.
FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF REGISTRATION
STATEMENT ON FORM S-8
(c) 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 New York, State of New York on this 28th day of
September, 2004.
Keryx Biopharmaceuticals, Inc.
By: /s/ Michael S. Weiss
---------------------------------
Michael S. Weiss
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael S. Weiss and Ron Bentsur, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and his name, place and stead, in any and all
capacities, to sign any or 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 attorney-in-fact and agent, 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 to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or any of his 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 indicated as of September 28, 2004.
Signatures Title
---------- -----
/s/ Michael S. Weiss Chairman of the Board and Chief Executive Officer
------------------------
Michael S. Weiss (Principal Executive Officer)
/s/ Ron Bentsur Vice President Finance and Investor Relations
------------------------
Ron Bentsur (Principal Financial and Accounting Officer)
/s/ I. Craig Henderson President, Director
------------------------
I. Craig Henderson
/s/ Malcolm Hoenlein Director
------------------------
Malcolm Hoenlein
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Director
------------------------
Lawrence Jay Kessel
/s/ Eric Rose Director
------------------------
Eric Rose
/s/ Lindsay A. Rosenwald Director
------------------------
Lindsay A. Rosenwald
/s/ Peter Salomon Director
------------------------
Peter Salomon
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
-------------- -----------
5.1 Opinion of Alston & Bird LLP
23.1 Consent of KPMG LLP
23.2 Consent of Deloitte & Touche LLP
24.1 Power of Attorney (included on signature page)