As filed with the Securities and Exchange Commission on January 11, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ocuphire Pharma, Inc.
(Exact name of registrant as specified in its charter)
Delaware
|
|
11-3516358
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification Number.)
|
37000 Grand River Avenue, Suite 120
Farmington Hills, MI
|
|
48335
|
(Address of principal executive offices)
|
|
(Zip code)
|
Ocuphire Pharma, Inc. 2020 Equity Incentive Plan
|
(Full title of the plan)
|
Dr. George Magrath
Chief Executive Officer
Ocuphire Pharma, Inc.
37000 Grand River Avenue, Suite 120
Farmington Hills, MI 48335
(248) 957-9024
|
(Name, address, and telephone number, including area code, of agent for service)
|
Copy to:
Phillip D. Torrence, Esq.
Emily J. Johns, Esq.
Honigman LLP
650 Trade Centre Way, Suite 200
Kalamazoo, Michigan 49002-0402
(269) 337-7700
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large
accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐
|
Accelerated filer ☐
|
Non-accelerated filer ☒
|
Smaller reporting company ☒
|
|
Emerging growth company ☐
|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to
Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed by Ocuphire Pharma, Inc. (the “Company” or “Registrant” for the purpose of registering an additional 1,198,875 shares of Common Stock issuable pursuant to the Ocuphire Pharma, Inc. 2020 Equity Incentive Plan (the “Equity
Incentive Plan”).
Pursuant to General Instruction E to Form S-8, this Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for
which a Registration Statement of the Company on Form S-8 relating to the Equity Incentive Plan is effective, and the Company’s Registration Statements on Form S-8 previously filed with the Securities and Exchange Commission (the “Commission”) on November 9, 2020 (File No. 333-249978), March 31, 2021 (File No. 333-254923), April 5, 2022 (File No. 333-264139), and April 5, 2023
(File No. 333-271150) registering shares of Common Stock issuable under the Equity Incentive Plan are incorporated by reference in this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. |
Incorporation of Documents By Reference.
|
The following documents filed with the Commission by the Registrant are hereby incorporated by reference in this Registration Statement:
(c) |
the Registrant’s Current Reports on Form 8-K filed on January 25, 2023, April 21, 2023, June 2, 2023, June 9, 2023, June 14, 2023, August 11, 2023, September 27, 2023, November 1, 2023, November 2, 2023, November 27, 2023 and December 6, 2023; and
|
(d) |
the description of the Company’s Common Stock contained in the Company’s Form 8-A (File No. 001-34079), as filed with the Commission pursuant to Sections 12(b) and 12(g) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), on May
23, 2008.
|
In addition, all documents the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the filing of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities covered hereby then remaining unsold are incorporated by reference in this Registration Statement and are a part hereof
from the date of filing of such documents. Notwithstanding anything herein, the Registrant is not incorporating by reference any information furnished under Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless, and to the extent,
specified in any such Current Report on Form 8-K.
Any statement herein or contained in a document incorporated or deemed to be 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 herein, or in any subsequently filed document, which also is or is deemed to be incorporated by reference herein, modifies or supersedes such prior statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.
INDEX TO EXHIBITS
Exhibit
Number
|
|
Description
|
|
|
Amended and Restated Certificate of Incorporation (incorporated by reference to Appendix G to the Company’s Definitive Proxy Statement on Schedule 14A, filed on April 29, 2005)
|
|
|
|
|
|
Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on May 5, 2017)
|
|
|
|
|
|
Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on August 30, 2018)
|
|
|
|
|
|
Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on April 12, 2019).
|
|
|
|
|
|
Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on November 6, 2020)
|
|
|
|
|
|
Certificate of Amendment of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K, filed on November 6, 2020)
|
|
|
|
|
|
Second Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to the Company’s Current Report on Form 8-K, filed on November 6, 2020)
|
|
|
|
|
|
First Amendment to Second Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on June 10, 2022)
|
|
|
|
|
|
Second Amendment to Second Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on June 17, 2022)
|
|
|
|
|
|
Third Amendment to Second Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed on June 2, 2023)
|
|
|
|
|
|
Ocuphire Pharma, Inc. 2020 Equity Incentive Plan (incorporated by reference to Annex D to the Company’s Registration Statement on Form S-4, filed on September 30, 2020)
|
|
|
|
|
|
Opinion of Honigman LLP
|
|
|
|
|
|
Consent of Ernst & Young LLP
|
|
|
|
|
|
Consent of Honigman LLP (included in Exhibit 5.1)
|
|
|
|
|
|
Power of Attorney (included after the signature of the Registrant contained on Signature Page of this Registration Statement)
|
|
|
|
|
|
Filing Fee Table
|
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 Farmington Hills, State of Michigan, on January 11, 2024.
|
OCUPHIRE PHARMA, INC.
|
|
|
|
|
|
By:
|
/s/ Dr. George Magrath
|
|
|
Name:
|
Dr. George Magrath
|
|
|
Title:
|
Chief Executive Officer
|
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Dr. George Magrath, Bernhard Hoffmann and Amy Rabourn as his or her true and lawful
attorneys-in-fact and agents with full power of substitution, severally, for him in any and all capacities, to sign the Registration Statement on Form S-8 of Ocuphire Pharma, Inc., and any or all amendments (including post-effective amendments
thereto), 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 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 for 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 his 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 date indicated.
SIGNATURE
|
|
TITLE
|
|
DATE
|
|
|
|
|
|
/s/ Dr. George Magrath
|
|
|
|
|
Dr. George Magrath
|
|
Chief Executive Officer & Director
(Principal Executive Officer)
|
|
January 11, 2024
|
|
|
|
|
|
/s/ Amy Rabourn
|
|
|
|
|
Amy Rabourn
|
|
Senior Vice President of Finance
(Principal Financial and Accounting Officer)
|
|
January 11, 2024
|
|
|
|
|
|
/s/ Sean Ainsworth
|
|
|
|
|
Sean Ainsworth
|
|
Director
|
|
January 11, 2024
|
|
|
|
|
|
/s/ James S. Manuso
|
|
|
|
|
James S. Manuso
|
|
Director
|
|
January 11, 2024
|
|
|
|
|
|
/s/ Cam Gallagher
|
|
|
|
|
Cam Gallagher
|
|
Director
|
|
January 11, 2024
|
|
|
|
|
|
/s/ Jay Pepose
|
|
|
|
|
Jay Pepose
|
|
Director
|
|
January 11, 2024
|
|
|
|
|
|
/s/ Richard Rodgers
|
|
|
|
|
Richard Rodgers
|
|
Director
|
|
January 11, 2024
|
|
|
|
|
|
/s/ Susan K. Benton
|
|
|
|
|
Susan K. Benton
|
|
Director
|
|
January 11, 2024
|
Exhibit 5.1
January 11, 2024
Ocuphire Pharma, Inc.
37000 Grand River Avenue, Suite 120
Farmington Hills, Michigan 48335
|
Re: |
Registration Statement on Form S-8
|
Ladies and Gentlemen:
We have acted as counsel to Ocuphire Pharma, Inc., a Delaware corporation (the “Company”), in connection with preparing and filing with the Securities and Exchange Commission (the “Commission”)
pursuant to the Securities Act of 1933, as amended (the “Securities Act”) of a Registration Statement on Form S-8 (the “Registration Statement”). The Registration Statement relates to the registration under the Securities Act of a maximum of
1,198,875 shares (the “2020 Plan Shares”) of the Company’s common stock, par value $0.0001 per share, reserved for issuance under the Company’s 2020 Equity Incentive Plan (the “2020 Plan”).
In connection with this opinion letter, we have examined and relied upon originals or copies of such records, documents, certificates, opinions, memoranda and other instruments as in our judgment
are necessary or appropriate to enable us to render the opinions expressed below.
In rendering the opinions in this opinion letter, we have assumed the genuineness and authenticity of all signatures on original documents; the authenticity of all documents submitted to us as
originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents where
authorization, execution and delivery are prerequisites to the effectiveness of such documents.
Our opinions herein are expressed solely with respect to the General Corporation Law of the State of Delaware, as amended. Our opinions are based on these laws as in effect on the date hereof. We
express no opinion as to whether the laws of any jurisdiction are applicable to the subject matter hereof. We are not rendering any opinion as to compliance with any federal or state antifraud law, rule or regulation relating to securities, or to
the sale or issuance thereof. It is understood that this opinion letter is to be used only in connection with the offer and sale of the 2020 Plan Shares while the Registration Statement is in effect and only speaks as of the date of this opinion
letter.
On the basis of the foregoing and in reliance thereon, and subject to the qualifications herein stated, we are of the opinion that the 2020 Plan Shares are duly authorized and, when issued and sold
by the Company in accordance with the 2020 Plan, the awards thereunder, the Registration Statement and the related prospectus, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is
required by Section 7 of the Securities Act or the rules and regulations promulgated thereunder by the Commission. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes in the
facts stated or assumed herein or of any subsequent changes in applicable law.
|
Very truly yours,
|
|
|
|
/s/ Honigman LLP
|
|
|
|
HONIGMAN LLP
|
Honigman LLP • 650 Trade Centre Way • Suite 200 • Kalamazoo, Michigan 49002-0402
|