Delaware
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11-3516358
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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SEC Registration Fee
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$23,162.76
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Financial Industry Regulatory Authority Filing Fee
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(1)
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Legal Fees and Expenses
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(1)
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Nasdaq Capital Market Listing Fees
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(1)
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Accounting Fees
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(1)
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Printing and Miscellaneous Fees
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(1)
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Total
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(1)
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(1)
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The amount of securities and number of offerings are indeterminable and the expenses cannot be estimated at this time. An estimate of the aggregate expenses in
connection with the sale and distribution of securities being offered will be included in the applicable prospectus supplement.
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Exhibit
Number
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Description
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1.1*
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Form of Underwriting Agreement.
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Amended and Restated Certificate of Incorporation, filed as Appendix G to the Company’s Definitive Proxy Statement on Schedule 14A filed on April 29, 2005, is
incorporated herein by reference.
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Certificate of Amendment of Amended and Restated Certificate of Incorporation, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on May 5,
2017, is incorporated herein by reference.
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Certificate of Amendment of Amended and Restated Certificate of Incorporation, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on August 30,
2018 is incorporated herein by reference.
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Certificate of Amendment of Amended and Restated Certificate of Incorporation, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on April 12,
2019, is incorporated herein by reference.
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Certificate of Amendment of Amended and Restated Certificate of Incorporation, filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K, filed on November
6, 2020, is incorporated herein by reference.
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Certificate of Amendment of Amended and Restated Certificate of Incorporation, filed as Exhibit 3.2 to the Company’s Current Report on Form 8-K, filed on November
6, 2020, is incorporated herein by reference.
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Second Amended and Restated Bylaws of the Registrant, filed as Exhibit 3.3 to the Company’s Current Report on Form 8-K, filed on November 6, 2020, is incorporated
herein by reference.
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Form of common stock certificate of the Registrant., filed as Exhibit 4.3 to the Company's Registration Statement on Form S-8, filed on October 28, 2005, is
incorporated herein by reference.
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4.2*
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Form of Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock.
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Form of Indenture.
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4.4*
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Form of Debt Securities.
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Form of Common Stock Warrant Agreement and Warrant Certificate.
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Form of Preferred Stock Warrant Agreement and Warrant Certificate.
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Form of Debt Securities Warrant Agreement and Warrant Certificate.
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Form of Series A/B Warrants filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed on July 1, 2020, is incorporated herein by reference.
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Form of Waiver Agreement, dated as of February 3, 2021, by and between Ocuphire Pharma, Inc. and the Holder(s) filed as Exhibit 4.1 to the Company’s Current Report
on Form 8-K, filed on February 4, 2021, is incorporated herein by reference.
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Opinion of Honigman LLP.
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Consent of Independent Registered Public Accounting Firm.
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Consent of Independent Registered Public Accounting Firm.
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23.3
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Consent of Honigman LLP (reference is made to Exhibit 5.1).
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Power of Attorney
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25.1*+
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Statement of Eligibility of Trustee under the Indenture.
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*
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To be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference, if applicable.
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**
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Previously filed.
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+
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To be filed separately under electronic form type 305B2, if applicable.
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(a)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii)
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to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such
information in the registration statement;
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(b)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(c)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(d)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) 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
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(ii)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) 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) 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.
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(e)
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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:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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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;
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(iii)
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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
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(f)
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That for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(g)
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That, for purposes of determining any liability under the Securities Act, (i) the information omitted from the form of prospectus filed as part of the registration
statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant to Rule 424(b)(l) or (4) or 497(h) under the Securities Act shall be deemed to be a part of the registration statement as of the
time it was declared effective; and (ii) each post-effective amendment that contains a form of prospectus 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.
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(h)
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To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
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(i)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is
therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such
issue.
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OCUPHIRE PHARMA, INC.
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By:
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/s/ Mina Sooch
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Mina Sooch
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President and Chief Executive Officer
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Signature
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Title
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Date
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/s/ Mina Sooch
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President, Chief Executive Officer
(Principal Executive Officer)
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February 11, 2021
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Mina Sooch
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/s/ Amy Rabourn
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Vice President of Finance
(Principal Financial and Accounting Officer)
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February 11, 2021
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Amy Rabourn
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*
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Director
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February 11, 2021
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Sean Ainsworth
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*
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Director
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February 11, 2021
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James S. Manuso
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*
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Director
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February 11, 2021
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Cam Gallagher
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*
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Director
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February 11, 2021
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Alan R. Meyer
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*
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Director
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February 11, 2021
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Richard J. Rodgers
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*
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Director
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February 11, 2021
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Susan K. Benton
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/s/ Mina Sooch
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Mina Sooch, Attorney-in-Fact
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