Delaware
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13-4087132
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
No.)
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Large
accelerated filer £
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Accelerated
filer £
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Non-accelerated
filer £
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Smaller
reporting company x
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Title
of
Each
Class Of
Securities
To
Be
Registered(1)
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Proposed
Maximum Aggregate Offering Price(2)
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Amount
of Registration Fee
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Common
Stock, $0.001 par value per share
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--
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--
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Warrants
to purchase Common Stock
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--
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--
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Total
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$40,000,000
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$2,232
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Page
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Keryx
Biopharmaceuticals, Inc.
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1
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The
Offering
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1
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Where
You Can Find More Information
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1
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Important
Information About This Prospectus
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2
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Incorporation
of Certain Information by Reference
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2
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Description
of Securities We May Offer
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3
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Description
of Common Stock
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3
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Description
of Warrants
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3
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Plan
of Distribution
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4
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Legal
Matters
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5
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Experts
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5
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Use
of Proceeds
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We
intend to use the net proceeds of any offering as set forth in the
applicable prospectus supplement.
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Nasdaq
Symbol
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KERX
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(a)
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Our
Annual Report on Form 10-K for the year ended December 31,
2008;
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(b) | Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2009; | |
(c) | Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2009; |
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(d)
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Our
Current Reports on Form 8-K filed with the SEC on March 5, 2009, March 9,
2009, April 9, 2009, April 17, 2009, April 29, 2009, May 22, 2009, June 9,
2009, June 18, 2009, August 3, 2009, August 5, 2009;
and
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(e)
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The
description of our common stock contained in our registration statement on
Form 8-A filed with the SEC on June 30, 2000 (File No.
000-30929).
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·
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the
title of the warrants;
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·
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the
aggregate number of warrants
offered;
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·
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the
designation, number and terms of the shares of common stock purchasable
upon exercise of the warrants and procedures by which those numbers may be
adjusted;
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·
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the
exercise price of the warrants;
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·
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the
dates or periods during which the warrants are
exercisable;
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·
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the
designation and terms of any securities with which the warrants are
issued;
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·
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if
the warrants are issued as a unit with another security, the date on and
after which the warrants and the other security will be separately
transferable;
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·
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if
the exercise price is not payable in U.S. dollars, the foreign currency,
currency unit or composite currency in which the exercise price is
denominated;
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·
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any
minimum or maximum amount of warrants that may be exercised at any one
time;
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·
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any
terms relating to the modification of the
warrants;
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|
·
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any
terms, procedures and limitations relating to the transferability,
exchange or exercise of the warrants;
and
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·
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any
other specific terms of the
warrants.
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·
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through
underwriters or dealers;
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·
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directly
to a limited number of purchasers or to a single purchaser;
or
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·
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through
agents.
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·
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the
name or names of any underwriters, dealers or agents and the amounts of
any securities underwritten or purchased by each of them;
and
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·
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the
public offering price of the common stock and the proceeds to us and any
discounts, commissions or concessions allowed or reallowed or paid to
dealers.
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ITEM
14.
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OTHER
EXPENSES OF ISSUANCE AND
DISTRIBUTION.
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Securities
and Exchange Commission Registration Fee
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$2,232
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Legal
Fees and Expenses
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$ *
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Accountants’
Fees and Expenses
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$ *
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Printing
and Duplicating Expenses
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$ *
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Miscellaneous
Expenses
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$ *
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Total
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$
*
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ITEM
15.
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INDEMNIFICATION
OF DIRECTORS AND OFFICERS.
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ITEM
16.
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EXHIBITS.
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Exhibit
Number
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Description
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1.1
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Underwriting
Agreement*
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4.1
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Specimen
Common Stock Certificate, filed as Exhibit 4.1 to the Registrant’s First
Amendment to the Registration Statement on Form S-1 filed on June 30, 2000
(File No. 333-37402), and incorporated herein by
reference
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||
4.2
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Form
of Warrant Agreement*
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5.1
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Opinion
of Alston & Bird LLP
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23.1
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Consent
of KPMG LLP
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23.2
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Consent
of Alston & Bird LLP (included in Exhibit 5.1)
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24.1
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Power
of Attorney (included on the signature page to this Registration
Statement)
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ITEM
17.
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UNDERTAKINGS.
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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 registrationstatement (or the most recent post-effective amendment thereof) which, individually or in theaggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the 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 | |
(iii)
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To include any material information with respect to the plan of distribution not previously disclosed inthe registration statement or any material change to such information in the registration statement; |
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(A)
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Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of theRegistration Statement as of the date the filed
prospectus was deemed part of and included in theRegistration Statement;
and
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(B)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of aRegistration Statement in reliance on Rule 430B relating to an offering made pursuant to Rule415(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 the 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. |
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)
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Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offeringrequired 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 undersignedregistrant or used or referred to by the undersigned registrant; | |
(iii)
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The portion of any other free writing prospectuses relating to the offering containing materialinformation about the undersigned registrant or its securities provided by or on behalf of theundersigned registrant; and | |
(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to thepurchaser. |
KERYX
BIOPHARMACEUTICALS,
INC.
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By:
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/s/ Ron Bentsur | |
Ron Bentsur
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Chief
Executive Officer
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Signatures
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Title
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/s/
Ron Bentsur
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Chief
Executive Officer (principal executive officer)
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Ron
Bentsur
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/s/
James F. Oliviero
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Chief
Financial Officer (principal
financial and accounting officer)
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James
F. Oliviero
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/s/
Michael P. Tarnok
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Chairman
of the Board of Directors
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Michael
P. Tarnok
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/s/
Kevin Cameron
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Director
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Kevin
Cameron
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/s/
Wyche Fowler, Jr.
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Director
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Wyche
Fowler, Jr.
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/s/
Jack Kaye
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Director
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Jack
Kaye
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Exhibit
Number
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Description
|
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5.1
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Opinion
of Alston & Bird LLP
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23.1
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Consent
of KPMG LLP
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23.2
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Consent
of Alston & Bird LLP (included in Exhibit 5.1)
|
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24.1
|
Power
of Attorney (included on the signature page to this Registration
Statement)
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