As
filed with the Securities and Exchange Commission on January 12, 2006
Registration
No. 333-__________
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
PROTALEX,
INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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91-2003490
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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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145
Union Square Drive
New
Hope, PA
(Address
of Principal Executive Offices)
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18938
(Zip
Code)
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NONSTATUTORY
STOCK OPTION AGREEMENT WITH
VICTOR
S. SLOAN DATED AUGUST 23, 2005
(Full
title of the plan)
Mr.
Steven H. Kane
President
and Chief Executive Officer
145
Union Square Drive
New
Hope, PA 18938
(215)
862-9720
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies
to:
Donald
C. Reinke, Esq.
Reed
Smith LLP
Two
Embarcadero Center
San
Francisco, CA 94111
(415)
543-8700
(415)
391-8269 (fax)
Calculation
of Registration Fee
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Title
of securities to be registered
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Amount
to be registered(1)
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Proposed
maximum offering price per share
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Proposed
maximum aggregate offering price
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Amount
of registration fee
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Common
Stock, par
value $0.00001
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50,000
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$
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2.50(2
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)
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$
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125,000(2
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)
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$
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13.38
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Total
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50,000
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$
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13.38
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| (1) |
This
Registration Statement shall also cover any additional shares of
Common
Stock which shall become issuable under the individual agreement
by reason
of any stock dividend, stock split, recapitalization or any other
similar
transaction effected without the receipt of consideration which results
in
an increase in the number of the Registrant’s outstanding shares of Common
Stock.
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| (2) |
The
offering price per share and aggregate offering price are derived
from the
price as determined in the individual
agreement.
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EXPLANATORY
NOTES
This
Registration Statement on Form S-8 is filed by Protalex, Inc. (the “Registrant”
or “Company”) relating to:
| · |
50,000
shares of Common Stock issuable to Victor S. Sloan under the Nonstatutory
Stock Option Agreement with Victor S. Sloan by the Company dated
August
23, 2005
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document or documents containing the information specified in Part I are not
required to be filed with the Securities and Exchange Commission as
part
of this Form S-8 Registration Statement in accordance with Rule 428 of the
Securities Act of 1933, as amended.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
The
following documents and information previously filed by the Registrant with
the
Securities Exchange Commission (“SEC”) are hereby incorporated by reference in
this Registration Statement:
(a)
The
registrant’s latest annual report on Form 10-KSB filed
pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”);
(b)
All
other reports filed by the registrant pursuant to Section 13(a) of the Exchange
Act since the end of the fiscal year covered by the annual report on Form 10-KSB
referred to in paragraph (a) above; and
(c)
The description of the registrant’s Common Stock contained in the Form 10-SB
filed on December 6, 1999 pursuant to Section 12(g) of the Exchange
Act.
In
addition, all documents that are
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and
15(d) of the Exchange Act after the date of the filing of the annual report
on
Form 10-KSB referred to in paragraph (a) above (and that are filed prior
to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities remaining unsold) shall
also
be deemed to be incorporated by reference into this Registration Statement
and
to be a part hereof commencing on the respective dates on which such documents
are filed; except that the information included in any document in response
to
paragraphs (h) of Item 402 of Regulation S-B and any document or portion
thereof
that is furnished to, rather than filed with, the SEC is not incorporated
by
reference in this Registration Statement.
Any
statement contained in a document incorporated or deemed to be incorporated
by
reference in this Registration Statement shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in this Registration Statement or in any other
contemporaneously or subsequently filed document which also is or is deemed
to
be incorporated by reference in this Registration Statement modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this
Registration Statement.
Item
4. Description of Securities.
Not
Applicable.
Item
5. Interests
of Named Experts and Counsel.
Not
Applicable.
Item
6. Indemnification of Directors and Officers.
Section
145 of Delaware General Corporation Law.
Section
145 of the Delaware General Corporation Law (the “DGCL”) provides that a
corporation may indemnify 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 at the request of the corporation as a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or
proceeding 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 or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement or conviction, or upon a plea of nolo contendere
or
its equivalent, shall not, of itself, create a presumption that the person
did
not act in good faith and in a manner which he reasonably believed to be in
or
not opposed to the best interests of the corporation, and, with respect to
any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
Section
145 also provides that a corporation may indemnify any person who was or is
a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys’ fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, 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 except that no indemnification shall
be
made in respect of any claim, issue or matter as to which such person shall
have
been adjudged to be liable to the corporation unless and only to the extent
that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability,
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
To
the
extent that a present or former director or officer of the corporation has
been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to above, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection
therewith.
Any
indemnification in reference to the first two paragraphs in this Item 6 (unless
ordered by a court) shall be made by the corporation only as authorized in
the
specific case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because
such
person has met the applicable standard of conduct set forth in the first two
paragraphs of this Item 6. Such determination shall be made, with respect to
a
person who is a director or officer at the time of such
determination:
(a)
by a
majority vote of the directors who were not parties to such action, suit or
proceeding, even though less than a quorum; or
(b)
by a
committee of such directors designated by majority vote of such directors,
even
though less than a quorum; or
(c)
if
there are no such directors, or, if such directors so direct, by independent
legal counsel in a written opinion; or
(d)
by
the stockholders.
Section
145 permits a Delaware business corporation to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent
of
the corporation, or is or was serving at the request of the corporation as
a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against
such
person and incurred by such person in any such capacity, or arising out of
such
person’s status as such, whether or not the corporation would have the power to
indemnify such person against such liability.
Section
102(b)(7) of the Delaware General Corporation Law.
Section
102(b)(7) of the DGCL provides that a corporation may set forth in its
Certificate of Incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach
of
the director’s duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a
knowing violation of law, (iii) under Section 174 of the DGCL regarding the
unlawful payment of dividends or approval of unlawful stock repurchases or
redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit. No such provision shall eliminate or limit the
liability of a director for any act or omission occurring prior to the date
when
such provision becomes effective.
Certificate
of Incorporation Provision on Liability of Directors and
Indemnification.
The
registrant’s Certificate of Incorporation (the “Charter”) provides that no
director of the registrant shall be personally liable to the registrant for
monetary damages for breach of fiduciary duty as a director except for liability
(i) for any breach of the director’s duty of loyalty to the registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (iii) under Section
174 of the Delaware General Corporation Law, or (iv) for any transaction from
which the director derived any improper personal benefit. The Charter also
authorizes the registrant to indemnify any of its officers, directors, employees
and agents to the extent permitted by applicable law. The Corporation maintains
directors and officers liability insurance with an aggregate coverage limit
of
$1,000,000. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Corporation pursuant to the foregoing provisions, the Corporation has been
informed that in the opinion of the SEC, such indemnification is against public
policy as expressed in the Act and is therefore unenforceable.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
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Exhibit
No.
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Description
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4.1*
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Nonstatutory
Stock Option Agreement between the Company and Victor S. Sloan dated
August 23, 2005.
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5.1*
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Opinion
of Reed Smith LLP.
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23.1*
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Consent
of Grant Thornton LLP.
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23.2*
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Consent
of Reed Smith LLP (contained in Exhibit 5.1 to this Registration
Statement).
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24.1*
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Power
of Attorney (contained on the Signature Page of this Registration
Statement).
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*
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Filed
herewith.
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Item
9. Undertakings
(a) Rule
415 offering.
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;
(ii) To
reflect in the prospectus any facts or events which, individually or together,
represent a fundamental change in the information 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 additional or changed material information on the plan of
distribution;
2. For
determining liability under the Securities Act, each post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered, and the offering of such securities at that time shall be deemed
to be
the initial bona fide offering thereof; and.
3. To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b)
Filings
incorporating subsequent Exchange Act Documents by Reference.
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 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 herein, and
the
offering of such securities at that time shall be deemed to be the initial
bona
fide offering thereof.
(e)
Request
for acceleration of effective date.
Insofar
as indemnification for liabilities arising under the Securities Act may
be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Company has been advised that
in
the opinion of the SEC 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 Company 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 Company 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 of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by a final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the Registrant certifies that it
has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this registration statement to be signed on
its
behalf by the undersigned, thereunto duly authorized, in the City of New Hope,
Commonwealth of Pennsylvania on January 11, 2006.
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PROTALEX,
INC., a
Delaware corporation |
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By: |
/s/
Steven H. Kane |
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Steven
H. Kane, President and Chief Executive Officer
and
Principal Executive Officer
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POWER
OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Steven H. Kane and Marc L. Rose, and each of
them, the undersigned’s true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, for and in the undersigned’s name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the
same,
with all exhibits thereto, and other documents in connection therewith, with
the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant
to the requirements of the Securities Act, this registration statement has
been
signed by the following persons in the capacities and on the date
indicated.
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Signature
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Title
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Date
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/s/
Steven H. Kane
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President,
Chief Executive Officer, Director and Principal
Executive Officer
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January
11, 2006
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| Steven
H. Kane |
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/s/
Marc L. Rose
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Chief
Financial Officer (Principal Accounting Officer), Vice President
of
Finance, Treasurer and Secretary
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January
11, 2006
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Marc
L. Rose
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/s/
Frank M. Dougherty
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Director
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January
11, 2006
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Frank
M. Dougherty
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/s/
G. Kirk Raab
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Chairman
of the Board
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January
11, 2006
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G.
Kirk Raab
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/s/
Thomas P. Stagnaro
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Director
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January
11, 2006
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Thomas
P. Stagnaro
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/s/
Dinesh Patel
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Director
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January
11, 2006
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Dinesh
Patel
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/s/
Eugene Bauer
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Director
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January
11, 2006
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Eugene
Bauer
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/s/
Carleton A. Holstrom
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Director
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January
11, 2006
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Carleton
A. Holstrom
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/s/
Peter G. Tombros
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Director
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January
11, 2006
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Peter
G. Tombros
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