As
filed with the Securities and Exchange Commission on July 30, 2008
Registration
No. 333-[ ]
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
REXAHN PHARMACEUTICALS,
INC.
(Name
of small business issuer in its charter)
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Delaware
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2834
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11-3516358
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(State
or other jurisdiction of incorporation or organization)
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(Primary
Standard Industrial Classification Code Number)
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(I.R.S. employer
identification number)
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9620
Medical Center Drive
Rockville,
Maryland 20850
(240)
268-5300
(Address
and telephone number of principal executive offices)
Chang
H. Ahn
Chairman
and Chief Executive Officer
Rexahn
Pharmaceuticals, Inc.
9620
Medical Center Drive
Rockville,
Maryland 20850
(240)
268-5300
(Name,
address and telephone number of agent for service)
Copies
to:
Sean
P. McGuinness, Esq.
Chadbourne
& Parke LLP
1200
New Hampshire Avenue, N.W.
Washington,
DC 20036
(202)
974-5600
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933
(“Securities Act”), check the following box. T
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. £
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. £
If this
Form is a post-effective amendment filed pursuant to Rule 462(d) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. £
If
delivery of the prospectus is expected to be made pursuant to Rule 434, please
check the following box. £
Approximate
date of commencement of proposed sale to the public: From time to time as
described in the prospectus after the effective date of this Registration
Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. £
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. R
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. £
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. £
If this
Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the
Securities Act, check the following box. £
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the Securities
Act, check the following box. £
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities
to
be Registered (1)(2)
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Amounts
to be Registered (3)
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Proposed
Maximum Offering Price per Unit (3)
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Proposed
Maximum Aggregate Offering Price (3)(4)
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Amount
of Registration Fee (4)
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Common
Stock, par value $0.0001 per share
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Preferred
Stock, par value $0.0001 per share
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Warrants
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Debt
Securities
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Total
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$60,000,000
(2)
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$2,358
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(1)
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Not
specified as to each class of security to be registered pursuant to
General Instruction II.D of Form
S-3.
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(2)
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In
addition to the securities issued directly under this Registration
Statement, we are registering an indeterminate number of shares of common
stock and preferred stock as may be issued upon conversion, exercise or
exchange of the securities issued directly under this Registration
Statement. No separate consideration will be received for any
shares of common stock and preferred stock so issued upon conversion or
exchange.
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(3)
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An
indeterminate number of shares of common stock, shares of preferred stock
and warrants as may be issued from time to time at indeterminate prices
are being registered hereby. In no event will the aggregate
initial public offering price of all securities issued from time to time
pursuant to this Registration Statement exceed
$60,000,000.
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(4)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457(o) of the Securities
Act.
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The
Company hereby amends this Registration Statement on such date or dates as may
be necessary to delay its effective date until the Company shall file a further
amendment which specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the Registration Statement shall become effective on such
date as the Commission, acting pursuant to such Section 8(a), may
determine.
| The information in this prospectus is not complete and may be changed. We may not sell these securities until the Registration Statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. |
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PROSPECTUS
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Subject
to Completion
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Dated
July 30, 2008
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UP
TO $60,000,000 OF OUR
COMMON
STOCK
PREFERRED
STOCK
WARRANTS
DEBT
SECURITIES
We may
offer from time to time up to $60,000,000 in total of:
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shares
of our common stock (including the associated preferred stock purchase
rights);
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shares
of our preferred stock;
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warrants
to purchase shares of common stock or preferred
stock;
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debt
securities; or
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any
combination of our common stock, preferred stock, warrants or debt
securities.
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We may
offer the common stock, preferred stock, warrants and debt securities separately
or together, in separate series, in amounts, at prices and on terms to be set
forth in one or more supplements to this prospectus. The preferred
stock, warrants and debt securities we may offer may be convertible into or
exercisable or exchangeable for common or preferred stock or debt or other
securities of ours or equity securities or debt of one or more other
entities. When we decide to issue securities, we will provide you
with the specific terms and the public offering price of the securities in
prospectus supplements. In the case of debt securities, these terms
will include, as applicable, the specific designation, aggregate principal
amount, maturity, rate or formula of interest, premium, subordination terms,
terms of convertibility and terms for redemption. In the case of
shares of preferred stock, these terms will include, as applicable, the specific
title and stated value, and any dividend, liquidation, redemption, conversion,
voting and other rights. You should read this prospectus and the
prospectus supplements carefully before you invest. This prospectus
may not be used to offer or sell securities unless accompanied by a prospectus
supplement.
Our
common stock is listed on the American Stock Exchange and traded under the
symbol “RNN.” None of the other securities are currently publicly
traded. We may sell these securities to or through underwriters and
also to other purchasers or through agents. We will set forth the
names of any underwriters or agents in the accompanying prospectus
supplement.
Our
principal executive offices are located at 9620 Medical Center Drive, Rockville,
Maryland 20850 and our telephone number is (240) 268-5300.
You
should read carefully this prospectus, the documents incorporated by reference
in this prospectus and any prospectus supplement before you
invest. Please see “Risk Factors” on page __ for more
information.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date
of this prospectus is __________ , ______
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This
summary provides a brief overview of the key aspects of this
offering. Because it is only a summary, it does not contain all of
the detailed information contained elsewhere in this prospectus or in the
documents included as exhibits to the registration statement that contains this
prospectus. Accordingly, you are urged to carefully review this
prospectus in its entirety.
Except as
otherwise indicated by the context, references in this prospectus to “Rexahn,”
“we,” “us” or “our,” are references to Rexahn Pharmaceuticals,
Inc. The terms “Rexahn,” “we,” “us” or “our” in each case do not
include the selling stockholders. References to the “Securities Act”
are references to the Securities Act of 1933, as amended, and references to the
“Exchange Act” are references to the Securities Exchange Act of 1934, as
amended.
Company
Background
Our
company resulted from a merger of Corporate Road Show.Com Inc., originally a New
York corporation (“CPRD”), and Rexahn, Corp, a Maryland corporation, immediately
after giving effect to a 1-for-100 reverse stock split and the
reincorporation of CPRD as a Delaware corporation under the name Rexahn
Pharmaceuticals, Inc.” (“Rexahn Pharmaceuticals”), with Rexahn, Corp surviving
as a wholly owned operating subsidiary of ours (the “Merger”). The
Merger was effective as of May 13, 2005. On September 29,
2005, Rexahn, Corp, was merged with and into us and Rexahn, Corp’s separate
existence was terminated.
Rexahn,
Corp was founded in March 2001 and began as a biopharmaceutical company
focusing on oncology drugs. Dr. Chang H. Ahn,
our Chairman, a former reviewer for the Food and Drug Administration (the “FDA”)
and research scientist for the National Cancer Institute, helped guide our
initial research efforts toward signal inhibitor therapies. Our
mission is to discover, develop and market innovative therapeutics that address
unmet medical needs.
Our
Business Generally
We are a
clinical stage biopharmaceutical company dedicated to the discovery,
development, and commercialization of innovative treatments for cancer, central
nervous system disorders, sexual dysfunction and other unmet medical
needs. We intend to leverage our drug-discovery technologies,
scientific expertise and developmental know-how to develop and commercialize
targeted cancer drugs with greater clinical benefits for patients and new drugs
for the treatment of diseases of the central nervous system and sexual
dysfunction. We will continue to identify internally developed
compounds as potential drug candidates, as well as assess compounds developed by
others and, if necessary, license the rights to these compounds in order to
develop and commercialize them as drugs.
We
currently have a number of drug candidates in clinical
development. Our lead anti-cancer drug candidate, Archexin™, which we
previously referred to as RX-0201, completed Phase I clinical trials in 2006 and
is currently in Phase II clinical trials for patients with renal cell
carcinoma. Archexin™ received “orphan drug” designation from the
U.S. Food and Drug Administration, or FDA, for five cancer
indications (renal cell carcinoma, glioblastoma, ovarian cancer, stomach cancer
and pancreatic cancer). The FDA orphan drug program is intended to
stimulate research, development and approval of products that treat rare
diseases. With orphan drug designation, sponsor companies benefit
from an expedited FDA review or approval process, seven years of marketing
exclusivity after approval and tax incentives for clinical
research.
We are
currently developing SerdaxinTM for
treatment of depression, and ZoraxelTM for
treatment of sexual dysfunction. ZoraxelTM is in
Phase II clinical trials in male erectile dysfunction and is a dual enhancer of
serotonin and dopamine, which are key brain neurotransmitters important for
sexual function such as sexual arousal, erection and
ejaculation. Phase II clinical trials for SerdaxinTM are
also planned in 2008.
To date,
we have not received approval for the sale of any drug candidates in any market
and, therefore, have not generated any revenues from our drug
candidates.
Securities
We are Offering
We may
offer any of the following securities from time to time:
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shares
of our common stock (including the associated preferred stock purchase
rights);
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shares
of our preferred stock;
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warrants
to purchase shares of common stock or preferred
stock;
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debt
securities; or
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any
combination of our common stock, preferred stock, warrants or debt
securities.
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Common Stock. We
may offer shares of our common stock. Our common stock currently is
listed on the American Stock Exchange under the symbol “RNN.”
Preferred
Stock. We may offer our preferred stock in one or more
series. For any particular series we offer, the applicable prospectus
supplement will describe the specific designation; the aggregate number of
shares offered; the rate and periods, or manner of calculating the rate and
periods, for dividends, if any; the stated value and liquidation preference
amount, if any; the voting rights, if any; the terms on which the series will be
convertible into or exchangeable for other securities or property, if any; the
redemption terms, if any; and any other specific terms.
Warrants. We may
offer warrants to purchase our common stock and preferred stock. For
any particular warrants we offer, the applicable prospectus supplement will
describe the underlying security; expiration date; the exercise price or the
manner of determining the exercise price; the amount and kind, or the manner of
determining the amount and kind, of any security to be delivered by us upon
exercise; and any other specific terms. We may issue the warrants
under warrant agreements between us and one or more warrant agents.
Debt
Securities. Our debt securities may be senior or subordinated
in right of payment and may be convertible into our debt securities, preferred
stock, common stock or other securities or property. For any
particular debt securities we offer, the applicable prospectus supplement will
describe the specific designation, the aggregate principal or face amount and
the purchase price; the ranking, whether senior or subordinated; the stated
maturity; the redemption terms, if any; the conversion terms, if any; the rate
or manner of calculating the rate and the payment dates for interest, if any;
the amount or manner of calculating the amount payable at maturity and whether
that amount may be paid by delivering cash, securities or other property; and
any other specific terms. We will issue the senior and subordinated
debt securities under separate indentures between us and a trustee we will
identify in an applicable prospectus supplement.
Listing. If any
securities are to be listed or quoted on a securities exchange or quotation
system, the applicable prospectus supplement will say so.
An
investment in our securities involves a high degree of risk. You
should carefully consider the specific risks set forth under the caption “Risk
Factors” in the applicable prospectus supplement before making an investment
decision. The risks and uncertainties described in the prospectus
supplement are not the only ones we face. Additional risks and
uncertainties that we are unaware of or that we believe are not material at the
time could also materially adversely affect our business, financial condition or
results of operations. In any case, the value of our common stock,
preferred stock or warrants could decline, and you could lose all or part of
your investment. You should also refer to the other information
contained in this prospectus or incorporated herein by reference, including our
consolidated financial statements and the notes to those statements and the
risks and uncertainties described in Item 1 of our Annual Report on Form
10-KSB for the fiscal year ended December 31, 2007. See also the
information contained under the heading “Special Note Regarding Forward-Looking
Statements” immediately below.
This
prospectus and any accompanying prospectus supplement contains and incorporates
by reference certain forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. Forward-looking
statements also may be included in other statements that we make. All
statements that are not descriptions of historical facts are forward-looking
statements, based on management’s estimates, assumptions and projections that
are subject to risks and uncertainties. These statements can
generally be identified by the use of forward-looking terminology such as
“believes,” “expects,” “intends,” “may,” “will,” “should,” or “anticipates” or
similar terminology. Although we believe that the expectations
reflected in our forward-looking statements are reasonable as of the date made,
actual results could differ materially from those currently anticipated due to a
number of factors, including risks relating to the early stage of products under
development; uncertainties relating to clinical trials; dependence on third
parties; future capital needs; and risks relating to the commercialization, if
any, of our product candidates (such as marketing, safety, regulatory, patent,
product liability, supply, competition and other risks). Additional
important factors that could cause actual results to differ materially from our
current expectations are identified in other filings with the Securities and
Exchange Commission (the “SEC”). Our forward-looking statements are
based on information available to us today, and we will not update these
statements, except as may be required by law.
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the SEC using
a “shelf” registration process. Under this shelf process, we may from
time to time offer up to $60,000,000 in total of (a) shares of common
stock, $0.0001 par value per share (including the preferred stock purchase
rights attached thereto), (b) shares of preferred stock, $0.0001 par value
per share, in one or more series, (c) warrants to purchase shares of common
stock or preferred stock, (d) debt securities or (e) any combination
of our common stock, preferred stock, warrants or debt securities, either
individually or as units consisting of one or more of the foregoing, each at
prices and on terms to be determined at the time of sale. The common
stock, preferred stock, warrants and debt securities are collectively referred
to in this prospectus as “securities.” The securities offered pursuant to this
prospectus may be one or more series of issuances and the total offering price
of the securities will not exceed $60,000,000 (or its equivalent (based on the
applicable exchange rate at the time of the sale) in one or more foreign
currencies, currency units or composite currencies as shall be designated by
us).
This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with the additional
information described below under the heading “Where You Can Find More
Information.”
The
registration statement that contains this prospectus, including the exhibits to
the registration statement and the information incorporated by reference,
contains additional information about the securities offered under this
prospectus. That registration statement can be read at the SEC web
site or at the SEC offices mentioned below under the heading “Where You Can Find
More Information.”
You
should rely only on the information provided in this prospectus and in any
prospectus supplement, including the information incorporated by
reference. We have not authorized anyone to provide you with
different information. You should not assume that the information in
this prospectus or any supplement to this prospectus is accurate at any date
other than the date indicated on the cover of these documents.
USE OF PROCEEDS
We will
use the net proceeds received from the sale of the securities for development of
current and future product candidates, clinical trials, working capital and
general corporate purposes or as specified in a prospectus
supplement.
PLAN OF DISTRIBUTION
We may
sell the securities being offered by this prospectus separately or
together:
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directly
to purchasers;
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through
agents;
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to
or through underwriters;
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through
dealers;
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through
a block trade in which the broker or dealer engaged to handle the block
trade will attempt to sell the securities as agent, but may position and
resell a portion of the block as principal to facilitate the transaction;
or
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through
a combination of any of these methods of
sale.
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In
addition, we may issue the securities being offered by this prospectus as a
dividend or distribution.
We may
effect the distribution of the securities from time to time in one or more
transactions at a fixed price or prices, which may be changed from time to
time:
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at
market prices prevailing at the times of
sale;
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at
prices related to prevailing market prices;
or
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at
negotiated prices.
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We will
describe the method of distribution of the securities in the prospectus
supplement.
We may
directly solicit offers to purchase the securities offered by this
prospectus. Agents designated by us from time to time may solicit
offers to purchase the securities. We will name any agent involved in
the offer of sale of the securities and set forth any commissions payable by us
to an agent in the prospectus supplement. Unless otherwise indicated
in the prospectus supplement, any agent will be acting on a best efforts basis
for the period of its appointment. Any agent may be deemed to be an
“underwriter” of the securities as that term is defined in the Securities Act of
1933, as amended (the “Securities Act”).
If we use
an underwriter or underwriters in the sale of securities, we will execute an
underwriting agreement with the underwriter or underwriters at the time we reach
an agreement for sale. We will set forth in the prospectus supplement
the names of the specific managing underwriter or underwriters, as well as any
other underwriters, and the terms of the transactions, including compensation of
the underwriters and dealers. This compensation may be in the form of
discounts, concessions or commissions. Underwriters and others
participating in any offering of the securities may engage in transactions that
stabilize, maintain or otherwise affect the price of the
securities. We will describe any of these activities in the
prospectus supplement.
If a
dealer is used in the sale of the securities, we or an underwriter will sell
securities to the dealer, as principal. The dealer may resell the
securities to the public at varying prices to be determined by the dealer at the
time of resale. The prospectus supplement will set forth the name of
the dealer and the terms of the transactions.
We may
directly solicit offers to purchase the securities, and we may sell directly to
institutional investors or others. These persons may be deemed to be
underwriters within the meaning of the Securities Act with respect to any resale
of the securities. The prospectus supplement will describe the terms
of any direct sales, including the terms of any bidding or auction
process.
Agreements
we enter into with agents, underwriters and dealers may entitle them to
indemnification by us against specified liabilities, including liabilities under
the Securities Act, or to contribution by us to payments they may be required to
make in respect of these liabilities. The prospectus supplement will
describe the terms and conditions of indemnification or
contribution.
We may
authorize underwriters, dealers and agents to solicit offers by certain
institutional investors to purchase offered securities under contracts providing
for payment and delivery on a future date specified in the prospectus
supplement. The prospectus supplement will also describe the public
offering price for the securities and the commission payable for solicitation of
these delayed delivery contracts. Delayed delivery contracts will
contain definite fixed price and quantity terms. The obligations of a
purchase under these delayed delivery contracts will be subject to only two
conditions:
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that
the institution’s purchase of the securities at the time of delivery of
the securities is not prohibited under the law of any jurisdiction to
which the institution is subject;
and
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that
we shall have sold to the underwriters the total principal amount of the
offered securities, less the principal amount covered by the delayed
contracts.
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To the
extent permitted by and in accordance with Regulation M under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), in connection
with an offering an underwriter may engage in over-allotments, stabilizing
transactions, short covering transactions and penalty
bids. Over-allotments involve sales in excess of the offering size,
which creates a short position. Stabilizing transactions permit bids
to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. Short covering transactions involve
purchases of the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering transaction to cover
short positions. Those activities may cause the price of the
securities to be higher than it would be otherwise. If commenced, the
underwriters may discontinue any of the activities at any time.
To the
extent permitted by and in accordance with Regulation M under the Exchange
Act, any underwriters who are qualified market makers on the American Stock
Exchange may engage in passive market making transactions in the securities on
the American Stock Exchange during the business day prior to the pricing of an
offering, before the commencement of offers or sales of the
securities. Passive market makers must comply with applicable volume
and price limitations and must be identified as passive market
makers. In general, a passive market maker must display its bid at a
price not in excess of the highest independent bid for such security; if all
independent bids are lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain purchase limits are
exceeded.
No
securities may be sold under this prospectus without delivery, in paper format,
in electronic format on the Internet, or both, of the applicable prospectus
supplement describing the method and terms of the offering.
DESCRIPTION OF DEBT SECURITIES
We may
offer any combination of senior debt securities or subordinated debt
securities. We may issue the senior debt securities and the
subordinated debt securities under separate indentures between us, as issuer,
and the trustee or trustees identified in a prospectus
supplement. Further information regarding the trustee may be provided
in the prospectus supplement. The form for each type of indenture is
filed as an exhibit to the registration statement of which this prospectus is a
part.
The
prospectus supplement will describe the particular terms of any debt securities
we may offer and may supplement the terms summarized below. The
following summaries of the debt securities and the indentures are not
complete. We urge you to read the indentures filed as exhibits to the
registration statement that includes this prospectus and the description of the
additional terms of the debt securities included in the prospectus
supplement.
General
Within
the total dollar amount of this shelf registration statement, we may issue an
unlimited principal amount of debt securities in separate series. We
may specify a maximum aggregate principal amount for the debt securities of any
series. The debt securities will have terms that are consistent with
the indentures. Senior debt securities will be unsecured and
unsubordinated obligations and will rank equal with all our other unsecured and
unsubordinated debt. Subordinated debt securities will be paid only
if all payments due under our senior indebtedness, including any outstanding
senior debt securities, have been made.
The
indentures might not limit the amount of other debt that we may incur or whether
that debt is senior to the debt securities offered by this prospectus, and might
not contain financial or similar restrictive covenants. The
indentures might not contain any provision to protect holders of debt securities
against a sudden or dramatic decline in our ability to pay our
debt.
The
prospectus supplement will describe the debt securities and the price or prices
at which we will offer the debt securities. The description will
include:
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the
title and form of the debt
securities;
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any
limit on the aggregate principal amount of the debt securities or the
series of which they are a part;
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the
person to whom any interest on a debt security of the series will be
paid;
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the
date or dates on which we must repay the
principal;
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the
rate or rates at which the debt securities will bear
interest;
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if
any, the date or dates from which interest will accrue, and the dates on
which we must pay interest;
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the
place or places where we must pay the principal and any premium or
interest on the debt securities;
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the
terms and conditions on which we may redeem any debt security, if at
all;
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any
obligation to redeem or purchase any debt securities, and the terms and
conditions on which we must do so;
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the
denominations in which we may issue the debt
securities;
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the
manner in which we will determine the amount of principal of or any
premium or interest on the debt
securities;
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the
currency in which we will pay the principal of and any premium or interest
on the debt securities;
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the
principal amount of the debt securities that we will pay upon declaration
of acceleration of their maturity;
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the
amount that will be deemed to be the principal amount for any purpose,
including the principal amount that will be due and payable upon any
maturity or that will be deemed to be outstanding as of any
date;
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if
applicable, that the debt securities are defeasible and the terms of such
defeasance;
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if
applicable, the terms of any right to convert debt securities into, or
exchange debt securities for, shares of our debt securities, preferred
stock or common stock or other securities or
property;
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whether
we will issue the debt securities in the form of one or more global
securities and, if so, the respective depositaries for the global
securities and the terms of the global
securities;
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the
subordination provisions that will apply to any subordinated debt
securities;
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any
addition to or change in the events of default applicable to the debt
securities and any change in the right of the trustee or the holders to
declare the principal amount of any of the debt securities due and
payable;
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any
addition to or change in the covenants in the indentures;
and
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any
other terms of the debt securities not inconsistent with the applicable
indentures.
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We may
sell the debt securities at a substantial discount below their stated principal
amount. We will describe U.S. federal income tax
considerations, if any, applicable to debt securities sold at an original issue
discount in the prospectus supplement. An “original issue discount
security” is any debt security sold for less than its face value, and which
provides that the holder cannot receive the full face value if maturity is
accelerated. The prospectus supplement relating to any original issue
discount securities will describe the particular provisions relating to
acceleration of the maturity upon the occurrence of an event of
default. In addition, we will describe U.S. federal income
tax or other considerations applicable to any debt securities that are
denominated in a currency or unit other than U.S. dollars in the
prospectus supplement.
Conversion
and Exchange Rights
The
prospectus supplement will describe, if applicable, the terms on which you may
convert debt securities into or exchange them for debt securities, preferred
stock and common stock or other securities or property. The
conversion or exchange may be mandatory or may be at your option. The
prospectus supplement will describe how the amount of debt securities, number of
shares of preferred stock and common stock or other securities or property to be
received upon conversion or exchange would be calculated.
Subordination
of Subordinated Debt Securities
The
indebtedness underlying any subordinated debt securities will be payable only if
all payments due under our senior indebtedness, as defined in the applicable
indenture and any indenture supplement, including any outstanding senior debt
securities, have been made. If we distribute our assets to creditors
upon any dissolution, winding-up, liquidation or reorganization or in
bankruptcy, insolvency, receivership or similar proceedings, we must first pay
all amounts due or to become due on all senior indebtedness before we pay the
principal of, or any premium or interest on, the subordinated debt
securities. In the event the subordinated debt securities are
accelerated because of an event of default, we may not make any payment on the
subordinated debt securities until we have paid all senior indebtedness or the
acceleration is rescinded. If the payment of subordinated debt
securities accelerates because of an event of default, we must promptly notify
holders of senior indebtedness of the acceleration.
If we
experience a bankruptcy, dissolution or reorganization, holders of senior
indebtedness may receive more, ratably, and holders of subordinated debt
securities may receive less, ratably, than our other creditors. The
indenture for subordinated debt securities may not limit our ability to incur
additional senior indebtedness.
Form,
Exchange and Transfer
We will
issue debt securities only in fully registered form, without coupons, and only
in denominations of $1,000 and integral multiples thereof, unless the prospectus
supplement provides otherwise. The holder of a debt security may
elect, subject to the terms of the indentures and the limitations applicable to
global securities, to exchange them for other debt securities of the same series
of any authorized denomination and of similar terms and aggregate principal
amount.
Holders
of debt securities may present them for exchange as provided above or for
registration of transfer, duly endorsed or with the form of transfer duly
executed, at the office of the transfer agent we designate for that
purpose. We will not impose a service charge for any registration of
transfer or exchange of debt securities, but we may require a payment sufficient
to cover any tax or other governmental charge payable in connection with the
transfer or exchange. We will name the transfer agent in the
prospectus supplement. We may designate additional transfer agents or
rescind the designation of any transfer agent or approve a change in the office
through which any transfer agent acts, but we must maintain a transfer agent in
each place where we will make payment on debt securities.
If we
redeem the debt securities, we will not be required to issue, register the
transfer of or exchange any debt security during a specified period prior to
mailing a notice of redemption. We are not required to register the
transfer of or exchange of any debt security selected for redemption, except the
unredeemed portion of the debt security being redeemed.
Global
Securities
The debt
securities may be represented, in whole or in part, by one or more global
securities that will have an aggregate principal amount equal to that of all
debt securities of that series. Each global security will be
registered in the name of a depositary identified in the prospectus
supplement. We will deposit the global security with the depositary
or a custodian, and the global security will bear a legend regarding the
restrictions on exchanges and registration of transfer.
No global
security may be exchanged in whole or in part for debt securities registered,
and no transfer of a global security in whole or in part may be registered, in
the name of any person other than the depositary or any nominee or successor of
the depositary unless:
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the
depositary is unwilling or unable to continue as depositary;
or
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the
depositary is no longer in good standing under the Exchange Act or other
applicable statute or regulation.
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The
depositary will determine how all securities issued in exchange for a global
security will be registered.
As long
as the depositary or its nominee is the registered holder of a global security,
we will consider the depositary or the nominee to be the sole owner and holder
of the global security and the underlying debt securities. Except as
stated above, owners of beneficial interests in a global security will not be
entitled to have the global security or any debt security registered in their
names, will not receive physical delivery of certificated debt securities and
will not be considered to be the owners or holders of the global security or
underlying debt securities. We will make all payments of principal,
premium and interest on a global security to the depositary or its
nominee. The laws of some jurisdictions require that some purchasers
of securities take physical delivery of such securities in definitive
form. These laws may prevent you from transferring your beneficial
interests in a global security.
Only
institutions that have accounts with the depositary or its nominee and persons
that hold beneficial interests through the depositary or its nominee may own
beneficial interests in a global security. The depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of debt securities represented by the global security to the
accounts of its participants. Ownership of beneficial interests in a
global security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the depositary or
any such participant.
The
policies and procedures of the depositary may govern payments, transfers,
exchanges and other matters relating to beneficial interests in a global
security. We and the trustee will assume no responsibility or
liability for any aspect of the depositary’s or any participant’s records
relating to, or for payments made on account of, beneficial interests in a
global security.
Payment
and Paying Agents
We will
pay principal and any premium or interest on a debt security to the person in
whose name the debt security is registered at the close of business on the
regular record date for such interest.
We will
pay principal and any premium or interest on the debt securities at the office
of our designated paying agent. Unless the prospectus supplement
indicates otherwise, the corporate trust office of the trustee will be the
paying agent for the debt securities.
Any other
paying agents we designate for the debt securities of a particular series will
be named in the prospectus supplement. We may designate additional
paying agents, rescind the designation of any paying agent or approve a change
in the office through which any paying agent acts, but we must maintain a paying
agent in each place of payment for the debt securities.
The
paying agent will return to us all money we pay to it for the payment of the
principal, premium or interest on any debt security that remains unclaimed for a
specified period. Thereafter, the holder may look only to us for
payment, as an unsecured general creditor.
Consolidation,
Merger and Sale of Assets
Under the
terms of the indentures, so long as any securities remain outstanding, we may
not consolidate or enter into a share exchange with or merge into any other
person, in a transaction in which we are not the surviving corporation, or sell,
convey, transfer or lease our properties and assets substantially as an entirety
to any person, unless:
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the
successor assumes our obligations under the debt securities and the
indentures; and
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we
meet the other conditions described in the
indentures.
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Events
of Default
Each of
the following will constitute an event of default under each
indenture:
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failure
to pay any interest on any debt security when due, for more than a
specified number of days past the due
date;
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failure
to deposit any sinking fund payment when
due;
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failure
to perform any covenant or agreement in the indenture that continues for a
specified number of days after written notice has been given by the
trustee or the holders of a specified percentage in aggregate principal
amount of the debt securities of that
series;
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events
of bankruptcy, insolvency or reorganization;
and
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any
other event of default specified in the prospectus
supplement.
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If an
event of default occurs and continues, both the trustee and holders of a
specified percentage in aggregate principal amount of the outstanding securities
of that series may declare the principal amount of the debt securities of that
series to be immediately due and payable. The holders of a majority
in aggregate principal amount of the outstanding securities of that series may
rescind and annul the acceleration if all events of default, other than the
nonpayment of accelerated principal, have been cured or waived.
Except
for its duties in case of an event of default, the trustee will not be obligated
to exercise any of its rights or powers at the request or direction of any of
the holders, unless the holders have offered the trustee reasonable
indemnity. If they provide this indemnification and subject to
conditions specified in the applicable indenture, the holders of a majority in
aggregate principal amount of the outstanding securities of any series may
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the
trustee with respect to the debt securities of that series.
No holder
of a debt security of any series may institute any proceeding with respect to
the indentures, or for the appointment of a receiver or a trustee, or for any
other remedy, unless:
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the
holder has previously given the trustee written notice of a continuing
event of default;
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the
holders of a specified percentage in aggregate principal amount of the
outstanding securities of that series have made a written request upon the
trustee, and have offered reasonable indemnity to the trustee, to
institute the proceeding;
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the
trustee has failed to institute the proceeding for a specified period of
time after its receipt of the notification;
and
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the
trustee has not received a direction inconsistent with the request within
a specified number of days from the holders of a specified percentage in
aggregate principal amount of the outstanding securities of that
series.
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Modification
and Waiver
We and
the trustee may change an indenture without the consent of any holders with
respect to specific matters, including:
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to
fix any ambiguity, defect or inconsistency in the indenture;
and
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to
change anything that does not materially adversely affect the interests of
any holder of debt securities of any
series.
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In
addition, under the indentures, the rights of holders of a series of notes may
be changed by us and the trustee with the written consent of the holders of at
least a majority in aggregate principal amount of the outstanding debt
securities of each series that is affected. However, we and the
trustee may only make the following changes with the consent of the holder of
any outstanding debt securities affected:
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extending
the fixed maturity of the series of
notes;
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reducing
the principal amount, reducing the rate of or extending the time of
payment of interest, or any premium payable upon the redemption, of any
debt securities; or
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reducing
the percentage of debt securities the holders of which are required to
consent to any amendment.
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The
holders of a majority in principal amount of the outstanding debt securities of
any series may waive any past default under the indenture with respect to debt
securities of that series, except a default in the payment of principal, premium
or interest on any debt security of that series or in respect of a covenant or
provision of the indenture that cannot be amended without each holder’s
consent.
Except in
limited circumstances, we may set any day as a record date for the purpose of
determining the holders of outstanding debt securities of any series entitled to
give or take any direction, notice, consent, waiver or other action under the
indentures. In limited circumstances, the trustee may set a record
date. To be effective, the action must be taken by holders of the
requisite principal amount of such debt securities within a specified period
following the record date.
Defeasance
To the
extent stated in the prospectus supplement, we may elect to apply the provisions
in the indentures relating to defeasance and discharge of indebtedness, or to
defeasance of restrictive covenants, to the debt securities of any
series. The indentures provide that, upon satisfaction of the
requirements described below, we may terminate all of our obligations under the
debt securities of any series and the applicable indenture, known as legal
defeasance, other than our obligation:
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to
maintain a registrar and paying agents and hold monies for payment in
trust;
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to
register the transfer or exchange of the notes;
and
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to
replace mutilated, destroyed, lost or stolen
notes.
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In
addition, we may terminate our obligation to comply with any restrictive
covenants under the debt securities of any series or the applicable indenture,
known as covenant defeasance.
We may
exercise our legal defeasance option even if we have previously exercised our
covenant defeasance option. If we exercise either defeasance option,
payment of the notes may not be accelerated because of the occurrence of events
of default.
To
exercise either defeasance option as to debt securities of any series, we must
irrevocably deposit in trust with the trustee money and/or obligations backed by
the full faith and credit of the United States that will provide money in an
amount sufficient in the written opinion of a nationally recognized firm of
independent public accountants to pay the principal of, premium, if any, and
each installment of interest on the debt securities. We may only
establish this trust if, among other things:
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no
event of default shall have occurred or be
continuing;
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in
the case of legal defeasance, we have delivered to the trustee an opinion
of counsel to the effect that we have received from, or there has been
published by, the Internal Revenue Service a ruling or there has been a
change in law, which in the opinion of our counsel, provides that holders
of the debt securities will not recognize gain or loss for federal income
tax purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not
occurred;
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in
the case of covenant defeasance, we have delivered to the trustee an
opinion of counsel to the effect that the holders of the debt securities
will not recognize gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to
federal income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred; and
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we
satisfy other customary conditions precedent described in the applicable
indenture.
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Notices
We will
mail notices to holders of debt securities as indicated in the prospectus
supplement.
Title
We may
treat the person in whose name a debt security is registered as the absolute
owner, whether or not such debt security may be overdue, for the purpose of
making payment and for all other purposes.
Governing
Law
The
indentures and the debt securities will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF COMMON STOCK
The
following description of our common stock, together with the additional
information we include in any applicable prospectus supplements, summarizes the
material terms and provisions of the common stock that we may offer under this
prospectus. For the complete terms of our common stock, please refer
to our Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws that are filed as exhibits to our reports incorporated by
reference into the registration statement that includes this
prospectus. The General Corporation Law of Delaware may also affect
the terms of our common stock.
Authorized
and Outstanding Common Stock
Our
Amended and Restated Certificate of Incorporation provides that we have
authority to issue 500,000,000 shares of our common stock, par value $0.0001 per
share. As of July 22, 2008, there were 56,025,649 shares of
common stock issued and outstanding, and there were outstanding warrants to
purchase approximately an additional 1,207,151 shares of our common stock and
options to purchase 6,195,795 shares of our common stock.
Listing
Our
common stock is listed on the American Stock Exchange under the symbol
“RNN”.
Dividends
Our Board
of Directors may authorize, and we may make, distributions to our common
stockholders, subject to any restriction in our Amended and Restated Certificate
of Incorporation and to those limitations prescribed by law. However,
we have never paid cash dividends on our common stock or any other
securities. We anticipate that we will retain all of our future
earnings, if any, for use in the expansion and operation of our business and do
not anticipate paying cash dividends in the foreseeable future.
Fully
Paid and Non-Assessable
All
shares of our outstanding common stock are fully paid and
non-assessable.
Voting
Rights
Each
share of our common stock is entitled to one vote in each matter submitted to a
vote at a meeting of stockholders including in all elections for directors;
stockholders are not entitled to cumulative voting in the election for
directors. Our stockholders may vote either in person or by
proxy.
Preemptive
and Other Rights
During
the period from December 24, 2007 to March 28, 2008, we issued 5,500,017 shares
of our common stock at a sale price of $1.40 per share, and warrants to purchase
an additional 1,207,151 shares of our common stock at an exercise price of $1.80
per share, in transactions exempt from the registration requirements of the
Securities Act. If we sell shares of our common stock at a price of less that
$1.40 per share before the two-year anniversary of the related private
placement, then the securities purchase agreements executed in connection with
the private placement obligate us to issue additional shares to the private
placement purchasers to ensure that their effective purchase price per share
will equal the lowest price at which we sell shares of our common stock during
the applicable two-year period. Likewise, if we sell shares of our common stock
at a price less than $1.80 per share before the two-year anniversary of the
related private placement, then pursuant to the warrants issued in the private
placement the exercise price under such warrants will be adjusted to equal the
lowest price at which we sell shares of our common stock during the applicable
two-year period.
Except as
described in the preceding paragraph, holders of our common stock have no
preemptive rights and have no other rights to subscribe for additional
securities of our company under Delaware law. Our common stockholders
do not have any conversion rights or rights of redemption (or, if any such
rights have been granted in relation to the common stock, any such rights have
been waived). Upon liquidation, all holders of our common stock are
entitled to participate pro rata in our assets available for distribution,
subject to the rights of any class of preferred stock then
outstanding.
Stockholder
Action by Written Consent; Meetings
Pursuant
to our Amended and Restated Certificate of Incorporation, stockholders may take
action by written consent in lieu of voting at a meeting.
Our
Amended and Restated Bylaws provide that we must hold an annual meeting of
stockholders. Special meetings of our stockholders may be called at
any time only by the Board of Directors or by the Chairman of the
Board.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Olde Monmouth Stock
Transfer Company Incorporated.
Limitations
of Director Liability
Delaware
law authorizes corporations to limit or eliminate the personal liability of
directors to corporations and their stockholders for monetary damages for breach
of directors’ fiduciary duty of care. Although Delaware law does not
change directors’ duty of care, it enables corporations to limit available
relief to equitable remedies such as injunction or rescission. Our
Amended and Restated Bylaws in effect limit the liability of our directors to us
and our stockholders to the full extent permitted by Delaware
law. Specifically, directors are not personally liable for monetary
damages to us or our stockholders for breach of the director’s fiduciary duty as
a director, except for liability for:
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any
breach of the director’s duty of loyalty to us or our
stockholders;
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acts
or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law;
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unlawful
payments of dividends or unlawful stock repurchases or redemptions;
and
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any
transaction from which the director derived an improper personal
benefit.
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Indemnification
Our
Amended and Restated Bylaws provides for mandatory indemnification of directors
and officers against any expense, liability or loss to which they may become
subject, or which they may incur as a result of being or having been a director
or officer, in effect to the maximum extent permitted by law. Our
Amended and Restated Bylaws in addition require us to advance or reimburse
directors and officers for expenses they incur in connection with indemnifiable
claims. We also maintain directors’ and officers’ liability
insurance.
DESCRIPTION OF PREFERRED STOCK
The
following description of our preferred stock, together with the additional
information we include in any prospectus supplements, summarizes the material
terms and provisions of the preferred stock that we may offer under this
prospectus. For the complete terms of our preferred stock, please
refer to our Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws that are filed as exhibits to our reports incorporated by
reference into the registration statement that includes this
prospectus. The General Corporation Law of Delaware may also affect
the terms of our common stock.
Preferred
Stock That We May Offer and Sell to You
Our
Amended and Restated Certificate of Incorporation authorizes our Board of
Directors, without further stockholder action, to provide for the issuance of up
to 100,000,000 shares of preferred stock, in one or more classes or series and
to fix the rights, preferences, privileges, and restrictions thereof, including
dividend rights, dividend rates, conversion rights, voting rights, terms of
redemption, redemption prices, liquidation preferences and the number of shares
constituting any series of the designation of such series, without further vote
or action by the stockholders. We may amend from time to time our
restated Certificate to increase the number of authorized shares of preferred
stock. Any such amendment would require the approval of the holders
of a majority of the voting power of all of the shares of capital stock entitled
to vote for directors, without a vote of the holders of preferred stock or any
series thereof unless any such holder is entitled to vote for directors or a
vote of any such holder is otherwise required pursuant to the restated
certificate or certificates of designations establishing a series of preferred
stock. As of the date of this prospectus, no shares of preferred
stock are outstanding.
The
particular terms of any series of preferred stock being offered by us under this
shelf registration statement will be described in the prospectus supplement
relating to that series of preferred stock.
Those
terms may include:
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the
title and liquidation preference per share of the preferred stock and the
number of shares offered;
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the
purchase price of the preferred
stock;
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the
dividend rate (or method of calculation), the dates on which dividends
will be paid and the date from which dividends will begin to
accumulate;
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any
redemption or sinking fund provisions of the preferred
stock;
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any
conversion provisions of the preferred
stock;
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the
voting rights, if any, of the preferred stock;
and
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any
additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions of the
preferred stock.
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The
preferred stock will, when issued, be fully paid and
non-assessable.
The
description of preferred stock above and the description of the terms of a
particular series of preferred stock in the prospectus supplement are not
complete. You should refer to the applicable certificate of
designations for complete information. The prospectus supplement will
also contain a description of U.S. federal income tax consequences
relating to the preferred stock, if material.
Voting
Rights
The
General Corporation Law of Delaware provides that the holders of preferred stock
will have the right to vote separately as a class on any proposal involving
fundamental changes in the rights of holders of that preferred
stock. This right is in addition to any voting rights that may be
provided for in the applicable certificate of designations.
Other
Our
issuance of preferred stock may have the effect of delaying or preventing a
change in control. Our issuance of preferred stock could decrease the
amount of earnings and assets available for distribution to the holders of
common stock or other preferred stock or could adversely affect the rights and
powers, including voting rights, of the holders of common stock or other
preferred stock. The issuance of preferred stock could have the
effect of decreasing the market price of our common stock.
Transfer
Agent and Registrar
The
transfer agent and registrar for the preferred stock will be set forth in the
applicable prospectus supplement.
DESCRIPTION OF WARRANTS
General
The
following description, together with the additional information we may include
in any applicable prospectus supplements, summarizes the material terms and
provisions of the warrants that we may offer under this prospectus and the
related warrant agreements and warrant certificates. While the terms
summarized below will apply generally to any warrants we may offer, we will
describe the particular terms of any series of warrants in more detail in the
applicable prospectus supplement.
We may
issue warrants for the purchase of shares of our common stock or preferred
stock. Warrants may be issued independently or together with the
shares of common stock or preferred stock offered by any prospectus supplement
to this prospectus and may be attached to or separate from such
shares. Further terms of the warrants will be set forth in the
applicable prospectus supplement.
The
applicable prospectus supplement will describe the terms of the warrants in
respect of which this prospectus is being delivered, including, where
applicable, the following:
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the
title of such warrants;
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the
aggregate number of such warrants;
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the
price or prices at which such warrants will be
issued;
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the
designation, terms and number of shares of common stock or preferred stock
purchasable upon exercise of such
warrants;
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the
designation and terms of the shares of common stock or preferred stock
with which such warrants are issued and the number of such warrants issued
with such shares;
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the
date on and after which such warrants and the related common stock or
preferred stock will be separately transferable, including any limitations
on ownership and transfer of such
warrants;
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the
price at which each share of common stock or preferred stock purchasable
upon exercise of such warrants may be
purchased;
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the
date on which the right to exercise such warrants shall commence and the
date on which such right shall
expire;
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the
minimum or maximum amount of such warrants that may be exercised at any
one time;
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information
with respect to book-entry procedures, if
any;
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·
|
a
discussion of certain federal income tax consequences;
and
|
|
|
·
|
any
other terms of such warrants, including terms, procedures and limitations
relating to the exchange and exercise of such
warrants.
|
This
summary of the warrants is not complete. We urge you to read the
warrants filed as exhibits to the registration statement that includes this
prospectus and the description of the additional terms of the warrants included
in the prospectus supplement.
Before
exercising their warrants, holders of warrants will not have any of the rights
of holders of the securities purchasable upon such exercise, including the right
to receive dividends, if any, or payments upon our liquidation, dissolution or
winding up or to exercise voting rights, if any.
Exercise
of Warrants
Each
warrant will entitle the holder thereof to purchase for cash the amount of debt
securities, the number of shares of preferred stock and the number of shares of
common stock at the exercise price as shall in each case be set forth in, or be
determinable as set forth in, the applicable prospectus
supplement. Warrants may be exercised at any time up to the close of
business on the expiration date set forth in the applicable prospectus
supplement. After the close of business on the expiration date,
unexercised warrants will become void.
Warrants
may be exercised as set forth in the applicable prospectus supplement relating
to the warrants offered thereby. Upon receipt of payment and the
warrant certificate properly completed and duly executed at the corporate trust
office of the warrant agent, if any, or any other office indicated in the
applicable prospectus supplement, we will, as soon as practicable, forward the
purchased securities. If less than all of the warrants represented by
the warrant certificate are exercised, a new warrant certificate will be issued
for the remaining warrants. Holders of warrants will be required to
pay any tax or governmental charge that may be imposed in connection with
transferring the underlying securities in connection with the exercise of the
warrants.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC
allows us to incorporate by reference the information that we file with the SEC,
which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is
considered to be part of the prospectus. These documents may include
periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form
10-Q and Current Reports on Form 8-K, as well as Proxy
Statements. Any documents that we subsequently file with the SEC will
automatically update and replace the information previously filed with the
SEC. Thus, for example, in the case of a conflict or inconsistency
between information set forth in this prospectus and information incorporated by
reference into this prospectus, you should rely on the information contained in
the document that was filed later.
This
prospectus incorporates by reference the documents listed below that we
previously have filed with the SEC and any additional documents that we may file
with the SEC (File No. 000-50590) under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act between the date of this prospectus and the
termination of the offering of the securities. These documents
contain important information about us.
|
|
·
|
Our
Annual Report on Form 10-KSB for the year ended December 31,
2007;
|
|
|
·
|
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2008;
|
|
|
·
|
Our
Current Reports on Form 8-K filed with the SEC on January 3,
March 6, March 26, April 1 and July 16,
2008;
|
|
|
·
|
All
documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this prospectus and before the
termination of the offering; and
|
|
|
·
|
The
description of our common stock contained in our Registration Statement on
Form 8-A filed under the Exchange Act on May 23, 2008, including any
amendment or report filed for the purpose of updating such
description.
|
We are
not, however, incorporating by reference any documents, or portions of
documents, that are not deemed “filed” with the SEC.
You can
obtain a copy of any or all of the documents incorporated by reference in this
prospectus (other than an exhibit to a document unless that exhibit is
specifically incorporated by reference into that document) from the SEC on its
web site at http://www.sec.gov. You also can obtain these documents
from us without charge by visiting our internet web site http://www.rexahn.com
or by requesting them in writing, by email or by telephone at the following
address:
|
Tae
Heum (Ted) Jeong
|
|
|
Senior
Vice President & Chief Financial Officer
|
|
|
Rexahn
Pharmaceuticals, Inc.
|
|
|
9620
Medical Center Drive
|
|
|
Rockville,
Maryland 20850
|
|
|
(240) 268-5300
|
WHERE YOU CAN FIND MORE INFORMATION
We have
filed with the SEC a registration statement under the Securities Act that
registers the distribution of the securities offered under this
prospectus. The registration statement, including the attached
exhibits and schedules and the information incorporated by reference, contains
additional relevant information about the securities and us. The
rules and regulations of the SEC allow us to omit from this prospectus certain
information included in the registration statement.
In
addition, we file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy this
information and the registration statement at the SEC public reference room
located at 450 Fifth Street, N.W., Washington
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more
information about the operation of the public reference room.
In
addition, the SEC maintains an internet web site that contains reports, proxy
statements and other information about issuers of securities, like us, who file
such material electronically with the SEC. The address of that web
site is http://www.sec.gov. We also maintain a web site at
http://www.rexahn.com, which provides additional information about our
company. The contents of our website, however, are not a part of this
prospectus.
LEGAL MATTERS
Chadbourne
& Parke LLP, Washington, DC, will provide us an opinion as to certain legal
matters in connection with the securities offered hereby.
The
financial statements of Rexahn Pharmaceuticals, Inc. appearing in the Annual
Report (Form 10-KSB) as of December 31, 2007 and 2006 and for the years
ended December 31, 2007, 2006 and the cumulative period from inception (March
19, 2001) to December 31, 2007 have been audited by Lazar Levine & Felix
LLP, an independent registered public accounting firm, as set forth in their
reports thereon included therein, and incorporated herein by reference. Such
financial statements are incorporated herein by reference in reliance upon such
reports given on the authority of such firm as experts in accounting and
auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14. Other
Expenses of Issuance and Distribution.
The
following table sets forth the estimated costs and expenses in connection with
the sale and distribution of the securities being registered, all of which will
be paid by the Company.
|
To
be Paid
By
The Company
|
||||
|
SEC
Registration
|
$ | 2,358 | ||
|
Accounting
fees and expenses
|
5,000 | |||
|
Printing
fees and expenses
|
5,000 | |||
|
Legal
fees and expenses
|
35,000 | |||
|
Miscellaneous
expenses
|
5,000 | |||
|
Total
|
$ | 52,358 | ||
Item 15. Indemnification
of Directors and Officers.
Section 145
of the Delaware General Corporation Law (“DGCL”) permits, under certain
circumstances, the indemnification of any person who was or is a party or is
threatened to be made 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
corporation, or is or was serving in a similar capacity for another enterprise
at the request of the corporation. To the extent that a director,
officer, employee or agent of the corporation has been successful in defending
any such proceeding, the DGCL provides that he shall be indemnified against
expenses (including attorneys’ fees), actually and reasonably incurred by him in
connection therewith. With respect to a proceeding by or in the right
of the corporation, such person may be indemnified against expenses (including
attorneys’ fees), actually and reasonably incurred, 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 corporation. The DGCL provides, however, that
indemnification shall not be permitted in such a proceeding if such person is
adjudged liable to the corporation unless, and only to the extent that, the
court, upon application, determines that he is entitled to indemnification under
the circumstances. With respect to proceedings other than those
brought by or in the right of the corporation, notwithstanding the outcome of
such a proceeding, such person may be indemnified against judgments, fines and
amounts paid in settlement, as well as expenses, 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 corporation and, with respect to any criminal action, had no reason to
believe his conduct was unlawful. Except with respect to mandatory
indemnification of expenses to successful defendants as described in the
preceding paragraph or pursuant to a court order, the indemnification described
in this paragraph may be made only upon a determination in each specific case
(1) by majority vote of the directors that are not parties to the
proceeding, even though less that a quorum, or (2) by a committee of the
directors that are not a party to the proceeding who have been appointed by a
majority vote of directors who are not party to the proceeding, even though less
than a quorum, or (3) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion or (4) by the
stockholders.
The DGCL
permits a corporation to advance expenses incurred by a proposed indemnitee in
advance of final disposition of the proceeding, provided that the indemnitee
undertakes to repay such advanced expenses if it is ultimately determined that
he is not entitled to indemnification. Also, a corporation may
purchase insurance on behalf of an indemnitee against any liability asserted
against him in his designated capacity, whether or not the corporation itself
would be empowered to indemnify him against such liability.
The
Company has adopted provisions in its Amended and Restated Bylaws that in effect
provide for indemnification of its officers and directors to the maximum extent
permitted under the DGCL. As authorized by the DGCL, the Company’s
Amended and Restated Certificate of Incorporation limits the liability of
directors of the Company for monetary damages. The effect of this
provision is to eliminate the rights of the Company and its stockholders to
recover monetary damages against a director for breach of the fiduciary duty of
care as a director except in certain limited situations. This
provision does not limit or eliminate the rights of the Company or any
stockholder to seek non-monetary relief such as an injunction or rescission in
the event of a breach of a director’s duty of care. These provisions
will not alter the liability of directors under federal securities
laws. We have also entered into agreements with our directors and
certain of our executive officers that require us to indemnify them against
certain liabilities that may arise by reason of their status or service as
directors or executive officers to the fullest extent not prohibited by Delaware
law. The Company has purchased an insurance policy that purports to
insure the officers and directors of the Corporation against certain liabilities
incurred by them in the discharge of their functions as such officers and
directors. The foregoing descriptions are only general
summaries. For additional information please see the full text of our
Amended and Restated Certification of Incorporation., filed as Appendix A
to our definitive proxy statement on Schedule 14A dated April 29,
2005.
Item 16.
Exhibits
The
exhibits listed on the Index to Exhibits of this Registration Statement are
filed herewith or are incorporated herein by reference to other
filings.
Item 17. 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 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 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 a 20% change
in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective 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), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
registration statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
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, or is contained in a
form of prospectus filed pursuant to Rule 424(b) (§230.424(b) of this chapter)
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 registration by means of post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If
the Registrant is relying on Rule 430B (§230.430B of this
chapter):
(A) Each
prospectus filed by the Registrant pursuant to Rule 424(b)(3)
(§230.424(b)(3) of this chapter) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of and included in
the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) (§230.424(b)(2), (b)(5), or (b)(7) of this chapter) as part of a
registration statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) (§230.415(a)(1)(i),
(vii), or (x) of this chapter) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of
the issuer and any person that is at that date an underwriter, such date shall
be deemed to be a new effective date of the registration statement relating to
the securities in the registration statement to which that prospectus relates,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date;
or
(ii) If
the Registrant is subject to Rule 430C (§230.430C of this chapter), each
prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on
Rule 430B or other than prospectuses filed in reliance on Rule 430A
(§230.430A of this chapter), shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use.
(5) That,
for the purpose of determining liability of the Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the
securities:
The
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424 (§230.424 of this
chapter);
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
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.
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 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, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 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 July 29,
2008.
|
REXAHN
PHARMACEUTICALS, INC.
|
||
|
By:
|
/s/ Chang H. Ahn | |
|
Chang
H. Ahn
|
||
|
Chairman
of the Board, Chief Executive Officer and
Director
|
||
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.
|
SIGNATURE
|
TITLE
|
DATE
|
||
| /s/ Chang H. Ahn | Chairman of the Board, Chief Executive Officer and Director (Principal Executive Officer) | |||
|
Chang
H. Ahn
|
July
28, 2008
|
|||
| /s/ Tae Heum Jeong | Chief Financial Officer, Secretary and Director (Principal Financial and Accounting Officer) | |||
|
Tae
Heum Jeong
|
July
28, 2008
|
|||
| /s/ Charles Beever | Director | |||
|
Charles
Beever
|
July
25, 2008
|
|||
| /s/ Kwang Soo Cheong | Director | |||
|
Kwang
Soo Cheong
|
July
25, 2008
|
|||
| /s/ Freddie Ann Hoffman | Director | |||
|
Freddie
Ann Hoffman
|
July
28, 2008
|
|||
| /s/ Y. Michele Kang | Director | |||
|
Y. Michele
Kang
|
July
28, 2008
|
|||
| /s/ David McIntosh | Director | |||
|
David
McIntosh
|
July
29, 2008
|
INDEX
TO EXHIBITS
The
following documents are filed herewith (unless otherwise indicated) and made a
part of this registration statement.
|
Exhibit 3.1
|
Amended
and Restated Certificate of Incorporation of Rexahn Pharmaceuticals,
Inc. filed as Appendix G to the Registrant’s definitive
proxy statement on Schedule 14A (File no. 000-50590) dated April 29,
2005, is incorporated herein by reference.
|
|
|
Exhibit 3.2
|
Amended
and Restated Bylaws of Rexahn Pharmaceuticals, Inc., filed as
Appendix A to the Registrant’s definitive proxy statement on Schedule
14A (File no. 000-50590) dated April 29, 2005, is incorporated herein
by reference.
|
|
|
Exhibit
4.1
|
Specimen
Common Stock Certificate, filed as Exhibit 4.4 to the Registrant’s
Registration Statement on Form S-8 (File No. 333-129294) dated October 28,
2005, is incorporated by reference herein.
|
|
|
Form
of Senior Debt Securities Indenture.
|
||
|
Form
of Subordinated Debt Securities Indenture.
|
||
|
Opinion
of Chadbourne & Parke LLP.
|
||
|
Consent
of Lazar Levine & Felix LLP.
|
||
|
Exhibit 23.2
|
Consent
of Chadbourne & Parke LLP (included in
Exhibit 5.1).
|
|
| Exhibit 24.1 | Power of Attorney |
____________________
If
necessary, the Registrant will file as an exhibit to an amendment to the
Registration Statement or to a report filed under the Exchange Act (i) any
underwriting, remarketing or agency agreement relating to securities offered
hereby, (ii) the instruments setting forth the terms of any debt
securities, preferred stock, warrants or units, (iii) any additional
required opinions of counsel with respect to legality of the securities offered
hereby, (iv) a statement of computation of ratio of earnings to fixed
charges, (v) the Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of the Trustee on Form T-1 and (vi) any required
opinion of counsel to the Registrant as to certain tax matters relative to
securities offered hereby.
The
Registrant undertakes to provide to each stockholder requesting the same a copy
of each exhibit referred to herein upon payment of a reasonable fee limited to
the Registrant’s reasonable expenses in furnishing such
exhibit.
II -
6