As filed with the Securities and Exchange Commission on March 25, 2010.

File No. 333-_______________
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC  20549
________________________________

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 

KERYX BIOPHARMACEUTICALS, INC.
 (Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction of incorporation or organization)

13-4087132
(IRS Employer Identification No.)

 
750 Lexington Avenue
  
 
New York, New York
10022
 
(Address of Principal Executive Offices)
(Zip Code)

2009 CEO Incentive Plan
(Full title of the plan)

James F. Oliviero
Chief Financial Officer
Keryx Biopharmaceuticals, Inc.
750 Lexington Avenue
New York, New York 10022
(212) 531-5965
 (Name, Address and Telephone number, including area code, of agent for service)
Copy to:
Michael L. Stevens
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
(404) 881-7970
 
 
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 o
 
Non-accelerated filer o
 Accelerated filer o
 
 Smaller reporting company x
 
 
CALCULATION OF REGISTRATION FEE
 
 
Title of securities
to be registered
 
Amount to
be registered
Proposed
maximum
offering price
per share
Proposed
maximum
aggregate
offering price
 
Amount of
registration fee
Common Stock,
$0.001 par value per share
600,000 (1) (2)
 
$0.35 (2)
$210,000 (2)
$15

(1)
Amount to be registered consists of an aggregate of 600,000 shares of Keryx Biopharmaceuticals, Inc. (the “Company”) common stock underlying a stock option granted to Mr. Ron Bentsur pursuant to the 2009 CEO Incentive Plan (the “Plan”) on May 20, 2009, at an exercise price of $0.35 per share, including additional shares that may become issuable in accordance with the adjustment and anti-dilution provisions of the Plan.  The stock option was issued as an inducement award in connection with Mr. Bentsur’s joining the Company as its Chief Executive Officer, and was not granted under the Company’s shareholder-approved incentive plan.

(2)
Determined in accordance with Rule 457(h), the registration fee calculation with respect to the shares of common stock underlying the prior grant of the stock option is computed on the basis of the price at which the options may be exercised.


PART I  INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

(a)  The documents constituting Part I of this registration statement will be delivered to the optionee as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

(b)  Upon written or oral request, the Company will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this registration statement.  The documents are incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant to Rule 428(b). Requests for the above-mentioned information should be directed to James Oliviero, at the address and telephone number on the cover of this registration statement.

PART II  INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.  Incorporation of Documents by Reference.

The following documents, filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference and deemed to be a part hereof:

 
(a)
The Company’s Annual Report on Form 10-K for the year ended December 31, 2009;

 
(b)
All reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act, since December 31, 2009;

 
(c)
The description of common stock contained in the Company’s Registration Statement on Form 8-A filed under Section 12 of the Exchange Act on June 28, 2000, including all amendments or reports filed for the purpose of updating such description; and

(d)
All other documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this registration statement that indicates that all securities offered have been sold or that deregisters all securities that remain unsold.

Any statement contained in a document incorporated or deemed incorporated herein by reference shall be deemed to be modified or superseded for the purpose of this registration statement to the extent that a statement contained herein or in any subsequently filed document which also is, or is deemed to be, incorporated herein by reference 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.

Under the General Corporation Law of the State of Delaware (“DGCL”), a corporation may include provisions in its certificate of incorporation that will relieve its directors of monetary liability for breaches of their fiduciary duty to the corporation, except under certain circumstances, including a breach of the director’s duty of loyalty, acts or omissions of the director not in good faith or which involve intentional misconduct or a knowing violation of law, the approval of an improper payment of a dividend or an improper purchase by the corporation of stock or any transaction from which the director derived an improper personal benefit.  The Company’s Amended and Restated Certificate of Incorporation eliminates the personal liability of directors to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director with certain limited exceptions set forth in the DGCL.

Section 145 of the DGCL grants to corporations the power to indemnify each officer and director against liabilities and expenses incurred by reason of the fact that he or she is or was an officer or director of the corporation if he or she acted in good faith and in a manner he or she 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 or her conduct was unlawful.  The Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws provide for indemnification of each officer and director of the Company to the fullest extent permitted by the DGCL.  Section 145 of the DGCL also empowers corporations to purchase and maintain insurance on behalf of any person who is or was an officer or director of the corporation against liability asserted against or incurred by him in any such capacity, whether or not the corporation would have the power to indemnify such officer or director against such liability under the provisions of Section 145 of the DGCL.

Item 7.  Exemption from Registration Claimed.

Not applicable.

Item 8.  Exhibits.

See the Exhibit Index, which is incorporated herein by reference.

Item 9.  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;

(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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
 
 
(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) of this section do not apply if the registration statement is on Form S-8, 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 Company pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement; and

(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 a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b)  The undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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 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 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 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 on following page)
 
 
SIGNATURES

The Company.  Pursuant to the requirements of the Securities Act, the Company 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 York, state of New York, on this 25th day of March, 2010.

 
KERYX BIOPHARMACEUTICALS, INC.
  
       
       
 
By:
 /s/ Ron Bentsur  
   
Ron Bentsur
  
   
Chief Executive Officer and Director
  

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Ron Bentsur and James Oliviero, and each or any one of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 Commission, granting unto said attorneys-in-fact and agents 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 they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
 
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:
 

SIGNATURE
  
TITLE
DATE
       
/s/ Ron Bentsur
  
Chief Executive Officer and Director
March 25, 2010
Ron Bentsur
  
(Principal Executive Officer)
  
       
/s/ James F. Oliviero  
Chief Financial Officer
March 25, 2010
James F. Oliviero
  
(Principal Financial and Accounting Officer)
  
       
/s/ Michael P. Tarnok
  
Chairman of the Board of Directors
March 25, 2010
Michael P. Tarnok
      
       
/s/ Kevin J. Cameron
  
Director
March 25, 2010
Kevin J. Cameron
      
       
/s/ Wyche Fowler, Jr.
  
Director
March 25, 2010
Wyche Fowler, Jr.
      
       
/s/ Jack Kaye  
Director
March 25, 2010
Jack Kaye
      
 
 
EXHIBIT INDEX
TO
FORM S-8

4.1
Amended and Restated Certificate of Incorporation of Keryx Biopharmaceuticals, Inc., filed as Exhibit 3.1 to the Company’s Annual Report on Form 10-Q for the quarter ended September 30, 2004, filed on August 12, 2004, and incorporated herein by reference.
   
4.2
Amended and Restated Bylaws of Keryx Biopharmaceuticals, Inc., filed as Exhibit 3.2 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2001, filed on March 26, 2002, and incorporated herein by reference.
   
4.3
Amendment to Amended and Restated Certificate of Incorporation of Keryx Biopharmaceuticals, Inc., dated July 24, 2007, filed as Exhibit 3.3 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2007, filed on August 9, 2007 and incorporated herein by reference.
   
5.1
Opinion of Counsel
   
23.1
Consent of Counsel (included in Exhibit 5.1)
   
23.2
Consent of UHY LLP
   
23.3
Consent of KPMG LLP
   
24.1
Power of Attorney (included on signature page of this registration statement)
   
99.1
Keryx Biopharmaceuticals, Inc. 2009 CEO Incentive Plan