SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
REGISTRATION
STATEMENT
Under
The
Securities Act of 1933
ARNO
THERAPEUTICS, INC.
(Exact
Name of Registrant as Specified in its Charter)
Delaware
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(State
or Other Juris-
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(I.R.S.
Employer
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diction
of Incorporation
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Identification
Number)
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or
Organization)
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30
Two Bridges Rd., Suite #270
Fairfield,
NJ 07004
(Address
of Principal Executive Office and Zip Code)
Arno
Therapeutics, Inc. 2005 Stock Option Plan
(Full
Title of the Plan)
Brian
Lenz
Chief
Financial Officer
Arno
Therapeutics, Inc.
30
Two
Bridges Rd., Suite #270
Fairfield,
NJ 07004
(862)
703-7170
(Name,
Address and Telephone Number, Including Area Code, of Agent for
Service)
Copies
to:
Christopher
J. Melsha, Esq.
Fredrikson
& Byron, P.A.
200
South
Sixth Street, Suite 4000
Minneapolis,
MN 55402
Fax:
(612) 492-7077
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
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o
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Accelerated
filer
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Non-accelerated
filer
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Smaller
Reporting Company
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x
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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(2)
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Proposed
Maximum
Aggregate
Offering Price(2)
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Amount
of
Registration Fee
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Common
Stock, $0.0001 par value
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2,990,655 shares
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$
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2.10
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$
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6,280,376
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$
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246.82
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(1)
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In
addition, pursuant to Rule 416(a) under the Securities Act of 1933,
there
is also being registered hereunder an indeterminate number of shares
of
Common Stock as shall be issuable to prevent dilution resulting from
stock
splits, stock dividends or similar
transactions.
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(2)
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Estimated
pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee and based upon the average of the high and low prices
of
the Registrant’s Common Stock on October 30,
2008.
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PART
I
As
permitted by the rules of the Securities and Exchange Commission, this
registration statement omits the information specified in Part I of Form S-8.
The documents containing the information specified in Part I of this
registration statement will be sent or given to eligible employees as specified
in Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended
(the
“Securities Act”). Such documents are not being filed with the Commission either
as part of this registration statement or as prospectuses or prospectus
supplements pursuant to Rule 424 promulgated under the Securities Act. These
documents and the documents incorporated by reference in the registration
statement pursuant to Item 3 of Part II of this form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities
Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
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Incorporation
of Documents by Reference
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The
following documents, previously filed by the Registrant with the Securities
and
Exchange Commission (the “Commission”), are hereby incorporated by reference
herein:
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1.
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Annual
Report on Form 10-KSB for the fiscal year ended December 31, 2007,
including Amendment No. 1 on Form 10-KSB/A filed on September 12,
2008;
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2.
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Quarterly
Reports on Form 10-QSB and Form 10-Q for the quarters ended March
31, 2008
and June 30, 2008, respectively;
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3.
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Current
Reports on Form 8-K filed with the Commission on March 6, 2008, June
9,
2008, September 3, 2008, and October 30, 2008, respectively;
and
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4.
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The
description of our common stock set forth in the registration statement
on
Form 8-A filed with the Commission on July 26, 2006, including any
amendments or reports filed for the purpose of updating such
information.
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All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and
to
be a part hereof from the date of filing of such documents.
Item
4.
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Description
of Securities
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Not
Applicable.
Item
5.
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Interests
of Named Experts and Counsel
.
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Not
applicable.
Item
6.
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Indemnification
of Directors and Officers
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Section 145
of the General Corporation Law of the State of Delaware provides as follows:
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
the
person 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), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the person
in
connection with such action, suit or proceeding if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed
to
the best interest of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person’s conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, 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 the person’s conduct was
unlawful.
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 the person in connection with the defense
or
settlement of such action or suit if the person acted in good faith and in
a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification will be made
in
respect to 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.
A
corporation shall indemnify any present or former director or officer of the
corporation who has been successful on the merits or otherwise in defense of
any
action, suit or proceeding referred to in the preceding two paragraphs, or
in
defense of any claim, issue or matter therein, against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection
therewith.
Item
7.
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Exemption
from Registration Claimed
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Not
applicable.
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5.1
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Opinion
of Fredrikson & Byron, P.A.
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23.1
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Consent
of
Hays
& Company LLP
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23.2
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Consent
of
Chang
G. Park, CPA
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23.3
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Consent
of Fredrikson & Byron, P.A. (included in Exhibit
5.1)
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24.1
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Power
of Attorney (included on signature page
hereof)
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(a)
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The
undersigned Registrant hereby
undertakes:
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(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, represents a fundamental
change in the information set forth in the 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) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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.
(2)
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.
(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)
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
plans’ 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.
(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 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 final adjudication of
such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Fairfield, State of New Jersey, on October 30, 2008.
ARNO
THERAPEUTICS, INC.
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By
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/s/
Brian Lenz
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Brian
Lenz
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Chief
Financial Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
Each
of
the undersigned constitutes and appoints Roger G. Berlin and Brian Lenz his
true
and lawful attorney-in-fact and agent, each acting alone, with full powers
of
substitution and resubstitution, for him and in his name, place and stead,
in
any and all capacities, to sign the Form S-8 Registration Statement of Arno
Therapeutics, Inc. relating to the Company’s 2005 Stock Option Plan and any or
all amendments or post-effective amendments to the Form S-8 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, each acting alone, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, 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, each acting alone, or their substitute
or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the date
listed below.
Signature
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Title
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Date
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/s/
Roger G. Berlin, M.D.
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Chief
Executive Officer and Director (principal
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October
30, 2008
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Roger
G. Berlin, M.D.
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executive
officer)
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/s/
Brian Lenz
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Chief
Financial Officer
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October
30, 2008
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Brian
Lenz
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(principal
financial and accounting officer)
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/s/
Arie S. Belldegrun, M.D.
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Non-Executive
Chairman and Director
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October
27, 2008
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Arie
S. Belldegrun, M.D.
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/s/
Robert I. Falk
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Director
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October
27, 2008
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Robert
I. Falk
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/s/
William F. Hamilton, Ph.D.
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Director
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October
27, 2008
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William
F. Hamilton, Ph.D.
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Director
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October
__, 2008
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Peter
M. Kash
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/s/
Joshua A. Kazam
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Director
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October
27, 2008
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Joshua
A. Kazam
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/s/
David M. Tanen
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Director
and Secretary
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October
27, 2008
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David
M. Tanen
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EXHIBIT
INDEX
Exhibit
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Number
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Exhibit
Description
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5.1
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Opinion
of Fredrikson & Byron, P.A.
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23.1
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Consent
of Hays & Company LLP
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23.2
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Consent
of Chang G. Park, CPA
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23.3
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Consent
of Fredrikson & Byron, P.A. (included in Exhibit
5.1)
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24.1
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Power
of Attorney (included on signature page
hereof)
|
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