As filed with the Security and Exchange Commission on September 14, 2016.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BioPharmX Corporation
(Exact name of registrant as specified in its charter)
Delaware |
| 59-3843182 |
(State or other jurisdiction |
| (I.R.S. Employer |
1098 Hamilton Court
Menlo Park, California 94025
(650) 889-5020
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive
offices)
Anja Krammer
President
BioPharmX Corporation
1098 Hamilton Court
Menlo Park, California 94025
Telephone:(650) 889-5020
(Name, address including zip code, and telephone number, including area code, of agent for service)
With copies to:
Gregory Sichenzia, Esq.
Marcelle S. Balcombe, Esq.
Sichenzia Ross Friedman Ference LLP
61 Broadway, 32nd Floor
New York, New York 10006
Telephone: (212) 930-9700
Facsimile: (212) 930-9725
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
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. (Check one):
Large accelerated filer o | Accelerated filer o | Non-accelerated filer o | Smaller reporting company x |
CALCULATION OF REGISTRATION FEE
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Title of Each Class of |
| Amount to be |
| Proposed Maximum |
| Proposed Maximum |
| Amount of |
| |||
Common Stock, $0.001 par value |
| 2,269,231 |
| $ | 0.69 | (2) | $ | 1,565,769 | (2) | $ | 158.00 |
|
Common Stock, $0.001 par value per share issuable upon exercise of convertible promissory notes |
| 2,320,000 |
| $ | 0.80 | (3) | $ | 1,856,000 | (3) | $ | 187.00 |
|
Total |
| 4,589,231 |
|
| N/A |
| $ | 3,421,769 |
| $ | 345.00 |
|
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers such additional shares as may hereafter be offered or issued to prevent dilution resulting from stock splits, stock dividends, recapitalizations or certain other capital adjustments.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended. In accordance with Rule 457(c) of the Securities Act of 1933, as amended, the price shown is the average of the high and low sales prices of the common stock on September 13, 2016 as reported on the NYSE MKT.
(3) Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(g) of the Securities Act of 1933 based on the conversion price of the promissory notes.
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. Neither we nor the selling stockholders may sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 14, 2016
PROSPECTUS
4,589,231 Shares of Common Stock
This prospectus relates to the disposition from time to time of 2,423,077 shares of common stock and up to 2,320,000 shares of common stock which are issuable upon conversion of secured convertible promissory notes held by certain of the selling stockholders named in this prospectus. We are not selling any common stock under this prospectus and will not receive any proceeds from the sale of shares listed in this prospectus.
The selling stockholders may sell the shares of common stock described in this prospectus in a number of different ways and at varying prices. We provide more information about how the selling stockholders may sell their shares of common stock in the section entitled “Plan of Distribution” on page 7. The selling stockholders will bear all commissions and discounts, if any, attributable to the sale or disposition of the shares, or interests therein. We will bear all costs, expenses and fees in connection with the registration of the shares. We will not be paying any underwriting discounts or commissions in this offering.
Our common stock is traded on the NYSE MKT under the symbol “BPMX.” On September 13, 2016, the last reported sale price of our common stock was $0.67 per share.
An investment in our common stock involves a high degree of risk. See “Risk Factors” on page 3 of this prospectus for more information on these risks.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2016
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BioPharmX Corporation is referred to throughout this prospectus as “BioPharmX,” “we,” “us,” “our,” or the “Company.”
Company Overview
We are a specialty pharmaceutical company focused on utilizing our proprietary drug delivery technologies to develop and commercialize novel prescription and over-the-counter, or OTC, products that address large markets in dermatology and women’s health. Our objective is to develop products that treat health or age-related conditions that: (1) are not presently being addressed or treated or (2) are currently treated with drug therapies or drug delivery approaches that are sub-optimal. Our strategy is designed to bring new products to market by identifying optimal delivery mechanisms and/or alternative applications for United States Food and Drug Administration, or FDA, approved active pharmaceutical ingredients, or APIs, and biological materials, while, in appropriate circumstances, reducing the time, cost and risk typically associated with new product development by repurposing drugs with demonstrated safety profiles and, when applicable, taking advantage of the regulatory approval pathway under Section 505(b)(2) of the Federal Food, Drug, and Cosmetic Act, or FDC Act. We believe these approaches may reduce drug development risk and could reduce the time and resources we spend during development. Our current platform technologies include innovative delivery mechanisms for molecular iodine (I2) and antibiotics.
Our current portfolio of product candidates targets significant market opportunities and includes two clinical stage product candidates: (1) BPX01, a topical antibiotic for the treatment of acne based on a unique formulation of minocycline currently in Phase 2b clinical trials and (2) BPX03, a molecular iodine (I2) tablet for the treatment of benign breast pain associated with fibrocystic breast condition, or FBC, and cyclic mastalgia. The molecular iodine project includes an OTC dietary supplement version, or VI2OLET, for the alleviation of symptoms of FBC, as well as a prescription drug version for the treatment of moderate to severe, periodic breast pain associated with FBC and cyclic mastalgia. VI2OLET is currently the subject of a non-IND, or Investigational New Drug Application, clinical trial overseen by Health Canada and an Institutional Review Board, or IRB, to provide additional insight on how to design a Phase 3 safety and efficacy study.
Target Markets
We believe that the industry dynamics in the areas of dermatology and women’s health represent significant opportunities for innovative new products to emerge as attractive solutions for unmet needs in multi-billion dollar therapeutic categories. In particular, we believe that both the dermatology and women’s health markets are large specialty markets with significant global patient demand, and we believe that our focus on these markets coupled with our proprietary platform technologies should enable us to develop and commercialize attractive products within these categories.
Our Products and Product Candidates
We have developed our product portfolio using our proprietary drug delivery technologies including innovative delivery mechanisms for molecular iodine and antibiotics. We currently have one marketed product, VI2OLET iodine dietary supplement, and two clinical-stage product candidates, BPX01 and BPX03. The following table presents a summary of our marketed products and clinical-stage product candidates (years are in calendar years):
Product/ |
| Delivery |
| Platform Technology/ Application |
| Product Type |
| Anticipated Study |
VI2OLET |
| Oral |
| Molecular iodine (I2) for the alleviation of symptoms of FBC |
| OTC Dietary Supplement |
| Currently Marketed |
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BPX03 |
| Oral |
| Molecular iodine (I2) for treatment of moderate to severe periodic breast pain associated with FBC and cyclic mastalgia |
| Prescription Drug |
| Pre-Phase 3 Study in Progress |
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BPX01 |
| Topical |
| Topical antibiotic for treatment of acne |
| Prescription Drug |
| Phase 2b Q3 2016 |
BPX01
We are developing BPX01, a hydrophilic, topical antibiotic gel for the treatment of acne vulgaris. BPX01 combines the most successful oral antibiotic drug for the treatment of moderate-severe acne (minocycline) with a proprietary anhydrous hydrophilic topical delivery system specifically designed to localize the delivery of the drug while minimizing systemic side effects. In addition to its bacteriostatic properties, the active pharmaceutical ingredient, minocycline also has anti-inflammatory properties, which can help to reduce swelling and redness common with acne vulgaris.
An IND to initiate the first Phase 2a clinical trial of BPX01 was submitted to the FDA in January 2016, and we received a letter from the FDA in March 2016 stating that the study may proceed. We have completed 4-week and 13-week animal toxicology studies to support a recently completed 4-week Phase 2a clinical study and the in-progress 12-week Phase 2b dose-finding clinical study. We are also preparing to conduct a bridging safety study using oral minocycline as the reference listed drug comparator. One or more 12-week Phase 3 studies will also be required along with a standard battery of dermal safety studies. We intend to pursue regulatory approval under Section 505(b)(2) of the FDC Act. We believe the Section 505(b)(2) regulatory pathway, which permits us to rely in part on the FDA’s prior findings of safety and/or efficacy for an approved drug product, may reduce the product development risk and could reduce the time and resources we spend during development of BPX01. We believe our design approach leveraging our anhydrous hydrophilic topical delivery system may also be utilized with other APIs including other antibiotics.
VI2OLET Iodine
Our first commercial product, VI2OLET, is a patented OTC molecular iodine dietary supplement that addresses cyclic breast discomfort and is clinically demonstrated to alleviate the symptoms associated with FBC, including tenderness, aches and swelling. Women who suffer from menstrual-related breast discomfort are recommended to take one to two tablets per day on an empty stomach for at least 60 days to realize initial symptom relief. Our patented molecular iodine formula is delivered to breast tissue and is intended to reduce the breast cell build-up that results in breast discomfort. We launched VI2OLET iodine in December 2014 in online stores and have since expanded into over 7,000 retail pharmacies, specialty chain outlet and grocery chain outlet stores throughout the United States. We are exploring commercial growth opportunities for the expansion of VI2OLET, which may include strategic partnerships with women’s and/or consumer health companies.
BPX03
In addition to VI2OLET, we are also developing BPX03, a prescription drug version of our molecular iodine tablet for the treatment of moderate to severe, periodic breast pain associated with FBC and cyclic mastalgia. We in-licensed this prescription iodine drug candidate, which was previously under development by the licensors, and refer to both the prior sponsor’s investigational drug and our investigational drug as BPX03. We are currently in the process of conducting a clinical study (using VI2OLET) under Health Canada and IRB oversight to provide additional insight on how to design a Phase 3 safety and efficacy study. We are currently seeking a partner or partners to pursue any necessary clinical development and additional regulatory approvals for the product using the learnings from our ongoing study.
BPX02
We are developing BPX02, an injectable product utilizing biologic materials for aesthetic dermatology applications. This research stage product candidate is currently under internal development with preclinical testing expected to begin in calendar year 2017. We will likely pursue regulatory approval for this product via a Biologics License Application, or BLA. As such, BPX02 would still be subject to regulation under the FDC Act, except the section of the FDC Act that governs the approval of NDAs. Instead, BPX02 would be subject to the marketing and exclusivity provisions of the Public Health Service Act, or PHSA, for approval of BLAs. However, the application process and requirements for approval of BLAs are very similar to those for NDAs.
Corporate Information
We were originally incorporated on August 30, 2010 in the State of Nevada under the name Thompson Designs, Inc. On January 23, 2014, we, BioPharmX, Inc. and stockholders of BioPharmX, Inc., who collectively owned 100% of BioPharmX, Inc., entered into and consummated transactions pursuant to a share exchange agreement, or Share Exchange Agreement, whereby we issued to the stockholders of BioPharmX, Inc. an aggregate of 7,025,000 shares of our common stock in exchange for 100% of the shares of BioPharmX, Inc., or Share Exchange. The shares of our common stock received by the stockholders of BioPharmX, Inc. in the Share Exchange constituted approximately 77.8% of our then issued and outstanding common stock, after giving effect to the issuance of shares pursuant to the Share Exchange Agreement. As a result of the Share Exchange, BioPharmX, Inc. became our wholly-owned subsidiary. On March 3, 2014, we changed our name to BioPharmX Corporation. On May 16, 2014, we reincorporated from Nevada to Delaware.
Our headquarters are located at 1098 Hamilton Court, Menlo Park, California 94025, and our telephone number is (650) 889-5020. Our website address is www.biopharmx.com. However, the information on our website is not a part of this prospectus and is not incorporated by reference into this prospectus.
About this Offering
On August 12, 2016, the Company entered into a purchase agreement, or the Purchase Agreement, for the sale and issuance of an aggregate of 2,423,077 shares of the Company’s common stock in a private placement offering, or the Offering, at a price per share of $0.65, which was the closing market price of the Company’s common stock on the date of the Purchase Agreement, for an aggregate purchase price of $1,575,000.
The Company and the purchasers also entered into a registration rights agreement, or the Registration Rights Agreement, pursuant to which the Company agreed to file a registration statement with the Securities and Exchange Commission, or the SEC, within three months from the closing of the Offering and to use commercially reasonable efforts to have such registration statement declared effective by the SEC. In the event that the Company does not file the registration statement within three months from the closing of the Offering, for all or part of any 30-day period during which the failure to file remains uncured, the Company shall issue to the purchasers a number of shares of the Company’s common stock at no cost to the purchasers equal to 1.0% of the aggregate number of shares of the Company’s common stock purchased by the purchasers in the Offering for each 30-day period during which the failure to file remains uncured, but in no event shall the Company be required thereunder to issue to the purchasers an aggregate amount of shares of the Company’s common stock that exceeds 5% of the aggregate number of shares of common stock purchased by the purchasers in the Offering. The Registration Rights Agreement also granted the purchasers customary piggyback registration rights. This prospectus is being filed to satisfy the Company’s obligation to file a registration statement pursuant to the terms of the Registration Rights Agreement.
On August 17, 2016, the Company entered into a subscription agreement, or the Secured Note Subscription Agreement, between the Company and RTW Master Fund, Ltd., or RTW, pursuant to which the Company issued a secured convertible promissory note in the principal amount of $1,000,000 to RTW. The secured note was issued on August 17, 2016 and will mature 36 months from the date of issuance if not earlier converted pursuant to the terms therein.
The Company and RTW also entered into a registration rights agreement, or the RTW Registration Rights Agreement, pursuant to which the Company agreed to file a registration statement with the SEC within three months from the date of conversion of the secured note and to use commercially reasonable efforts to have the registration statement declared effective by the SEC. In the event that the Company does not file the registration statement within three months from the date of conversion of the secured note, for all or part of any 30-day period during which the failure to file remains uncured, the Company shall issue to RTW a number of
shares of the Company’s common stock at no cost to RTW equal to 1.0% of the aggregate number of shares of the Company’s common stock issued to RTW upon conversion of the secured note for each 30-day period during which the failure to file remains uncured, but in no event shall the Company be required thereunder to issue to RTW an aggregate amount of shares of the Company’s common stock that exceeds 5% of the aggregate number of shares of the Company’s common stock issued to RTW upon conversion of the secured note.
On August 17, 2016, the Company entered into a subscription agreement, or the Unsecured Note Subscription Agreement, for the issuance of an unsecured convertible promissory note in the principal amount of $500,000 to Xiao Dong Hua, or Hua. The unsecured note will mature six months from the date of issuance thereof if not earlier converted pursuant to the terms therein.
The Company and Hua also entered into a registration rights agreement, or the Hua Registration Rights Agreement, pursuant to which the Company will agree to file a registration statement with the SEC within three months from the date of conversion of the unsecured note and to use commercially reasonable efforts to have the registration statement declared effective by the SEC. In the event that the Company does not file the registration statement within three months from the date of conversion of the unsecured note, for all or part of any 30-day period during which the failure to file remains uncured, the Company shall issue to Hua a number of shares of the Company’s common stock at no cost to Hua equal to 1.0% of the aggregate number of shares of the Company’s common stock issued to Hua upon conversion of the unsecured note for each 30-day period during which the failure to file remains uncured, but in no event shall the Company be required thereunder to issue to Hua an aggregate amount of shares of the Company’s common stock that exceeds 5% of the aggregate number of shares of the Company’s common stock issued to Hua upon conversion of the unsecured note.
This prospectus includes the resale of 4,589,231 shares of common stock, consisting of (i) 2,269,231 shares of common stock that were issued pursuant to the Purchase Agreement in August 2016 and (ii) 2,320,000 shares of common stock that are issuable upon conversion of our convertible notes issued pursuant to the Secured Note Subscription Agreement and the Unsecured Note Subscription Agreement.
You should consider carefully the risks discussed under the section captioned “Risk Factors” contained in our annual report on Form 10-K for the year ended January 31, 2016, as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended, or the Exchange Act, each of which is incorporated by reference in this prospectus. If any of the events outlined in the Risk Factors actually occur, our business, operating results, prospects or financial condition could be materially and adversely affected. This could cause the trading price of our common stock to decline and you may lose all or part of your investment. The risks discussed are not the only ones that we face. Additional risks not presently known to us or that we currently deem immaterial may also affect our business operations.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. Such forward-looking statements include those that express plans, anticipation, intent, contingency, goals, targets or future development and/or otherwise are not statements of historical fact. These forward-looking statements are based on our current expectations and projections about future events and they are subject to risks and uncertainties known and unknown that could cause actual results and developments to differ materially from those expressed or implied in such statements.
In some cases, you can identify forward-looking statements by terminology, such as “expects,” “anticipates,” “intends,” “estimates,” “plans,” “believes,” “seeks,” “may,” “should”, “could” or the negative of such terms or other similar expressions. Accordingly, these statements involve estimates, assumptions and uncertainties that could cause actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their entirety by reference to the factors discussed throughout this prospectus.
You should read this prospectus and any accompanying prospectus supplement and the documents that we reference herein and therein and have filed as exhibits to the registration statement, of which this prospectus is part, completely and with the understanding that our actual future results may be materially different from what we expect. You should assume that the information appearing in this prospectus and any accompanying prospectus supplement is accurate as of the date on the front cover of this prospectus or such prospectus supplement only. Because the risk factors referred to above, as well as the risk factors we disclose in our filings with the SEC and incorporated herein by reference, could cause actual results or outcomes to differ materially from those expressed in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking statements. Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict which factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. We qualify all of the information presented in this prospectus and any accompanying prospectus supplement, and particularly our forward-looking statements, by these cautionary statements.
The net proceeds from any disposition of the shares covered hereby will be received by the selling stockholders. We will not receive any of the proceeds from any such sale of the common stock offered by this prospectus.
We have prepared this prospectus to allow the selling stockholders, to sell, from time to time, 2,269,231 shares of common stock and up to 2,320,000 shares of our common stock underlying convertible promissory notes. All of the common stock offered by this prospectus may be offered for sale by the selling stockholders for their own benefit of account. We will receive no proceeds from any such sale of these shares by the selling stockholders.
Selling Stockholder Table
The following table sets forth the number of shares of common stock beneficially owned by the selling stockholders as of September 14, 2016, the number of shares of common stock covered by this prospectus on behalf of the stockholders and the total number of shares of common stock that the selling stockholders will beneficially own upon completion of the offering. To our knowledge, each of the selling stockholders have sole voting and investment power over the common stock listed in the table below. Other than as set forth in the following table, the selling stockholders have not held any position or office or had any other material relationship with us or any of our predecessors or affiliates within the past three years. This table assumes that the stockholders will offer for sale all of the shares of common stock covered by this prospectus and that the selling stockholder acquires no additional shares of common stock before the completion of this offering.
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| Beneficial ownership Prior to |
| Common stock |
| Beneficial ownership |
| ||||
Name of Selling Stockholder |
| Shares (1) |
| % |
| to prospectus |
| Shares |
| % |
|
Franklin Templeton Investment Funds - Franklin Biotechnology Discovery Fund(2) |
| 2,962,878 |
| 9 | % | 138,878 |
| 2,824,000 |
| 9 | % |
Franklin Strategic Series - Franklin Biotechnology Discovery Fund (3) |
| 2,161,737 |
| 7 | % | 345,737 |
| 1,816,000 |
| 6 | % |
The Sweigart Family Trust dated March 24, 2005 (4) |
| 182,675 |
| * |
| 153,846 |
| 28,829 |
| * |
|
Jeffrey William Olyniec |
| 274,399 |
| * |
| 153,846 |
| 120,553 |
| * |
|
John David Thomas Trust 5/4/98 (5) |
| 38,462 |
| * |
| 38,462 |
| — |
| * |
|
Still Lake Value Partners, L.P. c/o Still Lake Capital (6) |
| 307,692 |
| * |
| 307,692 |
| — |
| * |
|
Jon & Linda Gruber Trust (7) |
| 686,106 |
| 2 | % | 461,538 |
| 224,568 |
| * |
|
Steven Kay |
| 187,630 |
| * |
| 153,846 |
| 33,784 |
| * |
|
Ramer B. Holtan |
| 83,423 |
| * |
| 46,154 |
| 37,269 |
| * |
|
Thomas W. Hanson |
| 76,923 |
| * |
| 76,923 |
| — |
| * |
|
Stephen Morlock Roth IRA |
| 115,385 |
| * |
| 115,385 |
| — |
| * |
|
Doug Kircher PIM Managed Account |
| 240,962 |
| * |
| 38,462 |
| 202,500 |
| * |
|
Scott Kircher |
| 240,962 |
| * |
| 38,462 |
| 202,500 |
| * |
|
Kircher Family Trust dated 3/24/04 (8) |
| 366,595 |
| 1 | % | 76,923 |
| 289,672 |
| * |
|
Hood Family Trust UA DTD 11/27/07 (9) |
| 87,695 |
| * |
| 46,154 |
| 41,541 |
| * |
|
Richard A. Bocci |
| 110,707 |
| * |
| 76,923 |
| 33,784 |
| * |
|
RTW Innovation Master Fund, Ltd. (10) |
| 58,477 |
| * |
| 58,477 |
| –– |
| * |
|
RTW Master Fund, Ltd. (11) |
| 2,305,909 |
| 7 | % | 1,567,885 |
| 700,636 |
| 2 | % |
Xiao Dong Hua (12) |
| 656,250 |
| 2 | % | 656,250 |
| –– |
| * |
|
TOTAL |
| 11,144,867 |
| 32.6 | % | 4,589,231 |
| 6,555,636 |
| 21.0 | % |
* Less than 1%
(1) Based upon 31,175,582 shares of common stock issued and outstanding as of September 14, 2016.
(2) Evan McCulloch is the Vice President of Franklin Templeton Investment Funds - Franklin Biotechnology Discovery Fund, and as such has voting and investment power over the securities owned by the Selling Stockholder. The Selling Stockholder is an affiliate of a broker-dealer. The Selling Stockholder purchased the purchased the securities in the ordinary course of business and at the time of the purchase of the securities, the Selling Stockholder had no agreements or understandings, directly or indirectly, with any person to distribute the securities.
(3) Evan McCulloch is the Vice President of Franklin Strategic Series - Franklin Biotechnology Discovery Fund, and as such has voting and investment power over the securities owned by the Selling Stockholder. The Selling Stockholder is an affiliate of a broker-dealer. The Selling Stockholder purchased the purchased the securities in the ordinary course of business and at the time of the purchase of the securities, the Selling Stockholder had no agreements or understandings, directly or indirectly, with any person to distribute the securities.
(4) Jack Sweigart is the Trustee of The Sweigart Family Trust dated March 24, 2005, and as such has voting and investment power over the securities owned by the Selling Stockholder.
(5) John D. Thomas is the Trustee of the John David Thomas Trust 5/4/98, and as such has voting and investment power over the securities owned by the Selling Stockholder.
(6) Bruce Martin is the Managing Member of Still Lake Value Partners, L.P. c/o Still Lake Capital, and as such has voting and investment power over the securities owned by the Selling Stockholder.
(7) Jon D. Gruber is the Trustee of the Jon & Linda Gruber Trust, and as such has voting and investment power over the securities owned by the Selling Stockholder.
(8) Stephen C. Kircher is the Trustee of the Kircher Family Trust dated 3/24/04, and as such has voting and investment power over the securities owned by the Selling Stockholder.
(9) Scott W. Hood & Heidi J. Hood are the Trustees of the Hood Family Trust UA DTD 11/27/07, and as such have voting and investment power over the securities owned by the Selling Stockholder.
(10) Represents shares underlying principal and estimated accrued interest through the maturity date of secured promissory notes. Roderick Wong is the Managing Member and as such has voting and investment power over the securities owned by the Selling Stockholder.
(11) Represents shares underlying principal and estimated accrued interest through the maturity date of secured promissory notes. Roderick Wong is the Managing Member and such has voting and investment power over the securities owned by the Selling Stockholder.
(12) Represents shares underlying principal and estimated accrued interest through the maturity date of unsecured promissory notes.
General
As of September 14, 2016, our authorized capital stock consisted of 90,000,000 shares of common stock, $0.001 par value per share, and 10,000,000 shares of preferred stock, $0.001 par value per share. Our board of directors may establish the rights and preferences of the preferred stock from time to time. As of September 14, 2016, there are 31,329,428 shares of our common stock issued and outstanding and no shares of Series A Preferred Stock issued and outstanding.
Common Stock
Dividend Rights
Subject to preferences that may apply to any shares of preferred stock outstanding at the time, the holders of our common stock are entitled to receive dividends out of funds legally available if our board of directors, in its discretion, determines to issue dividends and then only at the times and in the amounts that our board of directors may determine.
Voting Rights
Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of stockholders. We have not provided for cumulative voting for any matter in our certificate of incorporation. Accordingly, pursuant to our certificate of incorporation, holders of a majority of the shares of our common stock will be able to elect all of our directors.
No Preemptive or Similar Rights
Our common stock is not entitled to preemptive rights, and is not subject to conversion, redemption or sinking fund provisions.
Right to Receive Liquidation Distributions
Upon our liquidation, dissolution or winding-up, the assets legally available for distribution to our stockholders would be distributable ratably among the holders of our common stock and any participating preferred stock outstanding at that time, subject to prior satisfaction of all outstanding debt and liabilities and the preferential rights of and the payment of liquidation preferences, if any, on any outstanding shares of preferred stock.
Promissory Notes
On August 17, 2016, the Company entered into a subscription agreement, or the Secured Note Subscription Agreement, between the Company and RTW Master Fund, Ltd., pursuant to which the Company issued a secured convertible promissory note in the principal amount of $1,000,000 to RTW. The secured note was issued on August 17, 2016 and will mature 36 months from the date of issuance if not earlier converted pursuant to the terms therein
On August 17, 2016, the Company entered into a subscription agreement, or the Unsecured Note Subscription Agreement, for the issuance of an unsecured convertible promissory note in the principal amount of $500,000 to Xiao Dong Hua. The unsecured note will mature six months from the date of issuance thereof if not earlier converted pursuant to the terms therein.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock and warrants is Computershare Trust Company, N.A.
Listing
Our common stock is listed on the NYSE MKT under the trading symbol “BPMX.”
Anti-Takeover Effects of Certain Provisions of our Certificate of Incorporation, Bylaws and the DGCL
The provisions of Delaware law, our certificate of incorporation and our bylaws could have the effect of delaying, deferring or discouraging another person from acquiring control of our Company. These provisions, which are summarized below, may have the effect of discouraging a third-party from acquiring us, even if doing so would be beneficial to our stockholders. These provisions are intended to enhance the likelihood of continuity and stability in the composition of our board of directors and in the policies formulated by them, and to discourage some types of transactions that may involve an actual or threatened change in control of our Company. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal and to discourage some tactics that may be used in proxy fights. We believe that the benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure our company outweigh the disadvantages of discouraging such proposals because, among other things, negotiation of such proposals could result in an improvement of their terms. However, these provisions could have the effect of discouraging others from making tender offers for our shares that could result from actual or rumored takeover attempts. These provisions also may have the effect of preventing changes in our management.
Delaware Law
We are subject to Section 203 of the Delaware General Corporation Law (“Section 203”). This provision generally prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years following the date the stockholder became an interested stockholder, unless:
· prior to such date, the board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
· upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned by persons who are directors and also officers and by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
· on or subsequent to such date, the business combination is approved by the board of directors and authorized at an annual meeting or special meeting of stockholders and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.
Section 203 defines a business combination to include:
· any merger or consolidation involving the corporation and the interested stockholder;
· any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
· subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
· any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or
· the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
In general, Section 203 defines an “interested stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of a corporation, or an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of a corporation at any time within three years prior to the time of determination of interested stockholder status and any entity or person affiliated with or controlling or controlled by such entity or person.
These statutory provisions could delay or frustrate the removal of incumbent directors or a change in control of our Company. They could also discourage, impede, or prevent a merger, tender offer or proxy contest, even if such event would be favorable to the interests of stockholders.
Certificate of Incorporation and Bylaw Provisions
Our certificate of incorporation and bylaws contain provisions that could have the effect of discouraging potential acquisition proposals or making a tender offer or delaying or preventing a change in control, including changes a stockholder might consider favorable. In particular, our certificate of incorporation and bylaws include the following provisions:
· Board of Directors Vacancies. Our bylaws authorize a majority of directors in office, although less than a quorum, to fill vacant directorships, including newly created seats. This provision could prevent a stockholder from gaining control of our board of directors by filling vacancies with its own nominees. This makes it more difficult to change the composition of our board of directors but promotes continuity of management.
· Special Meetings of Stockholders. Our bylaws provide that special meetings of our stockholders may be called only by a majority of our board of directors or an officer instructed by the directors to call a special meeting, thus prohibiting a stockholder from calling a special meeting. This provision might delay the ability of our stockholders to force consideration of a proposal or for stockholders controlling a majority of our capital stock to take any action, including the removal of directors.
· No Cumulative Voting. The DGCL provides that stockholders are not entitled to the right to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. Our certificate of incorporation and bylaws do not provide for cumulative voting.
· Amendment of Bylaw Provisions. Any of the above provisions in our bylaws may be amended or repealed by unanimous written consent of our board of directors and without stockholder approval.
· Issuance of Undesignated Preferred Stock. Our board of directors has the authority, without further action by the stockholders, to issue up to 10,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time by our board of directors. The existence of authorized but unissued shares of preferred stock enables our board of directors to render more difficult or to discourage an attempt to obtain control of us by merger, tender offer, proxy contest or other means.
Disclosure of SEC Position on Indemnification for Securities Act Liabilities
Insofar as indemnification for liabilities arising under the Securities Act may be permitted for directors, officers and persons controlling our company, we understand that it is the SEC’s opinion that such indemnification is against public policy as expressed in the Securities Act and may therefore be unenforceable.
The selling stockholders may, from time to time, sell, transfer, or otherwise dispose of any or all of its shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. These dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market price, at varying prices determined at the time of sale or at negotiated prices.
The selling stockholders may use any one or more of the following methods when disposing of shares or interests therein:
· ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
· block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
· purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
· an exchange distribution in accordance with the rules of the applicable exchange;
· privately negotiated transactions;
· broker-dealers may agree with the selling stockholder to sell a specified number of such shares at a stipulated price per share; or
· a combination of any such methods of sale.
The aggregate proceeds to the selling stockholders from any sale of the common stock offered by it will be the purchase price of the common stock less discounts or commissions, if any. The selling stockholders reserve the right to accept and, together with its agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from any such sale.
The selling stockholders also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 promulgated under the Securities Act, provided that it meets the criteria and conform to the requirements of that rule.
The selling stockholders and any broker-dealers or agents that participate in the sale of the common stock may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. The selling stockholders are subject to the prospectus delivery requirements of the Securities Act.
The validity of the issuance of the securities offered hereby will be passed upon for us by Sichenzia Ross Friedman Ference LLP, New York, New York.
The consolidated financial statements of BioPharmX Corporation as of January 31, 2016 and 2015, and for the year ended January 31, 2016, the one-month period ended January 31, 2015 and the year ended December 31, 2014 incorporated by reference in this prospectus, have been so incorporated in reliance on the report (which contain an explanatory paragraph relating to the Company’s ability to continue as a going concern as described in Note 2 to the consolidated financial statements) of Burr Pilger Mayer, Inc., an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted by the SEC’s rules, this prospectus, which forms a part of the registration statement, does not contain all the information that is included in the registration statement. You will find additional information about us in the registration statement. Any statements made in this prospectus concerning legal documents are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of the document or matter.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read, without charge, and copy the documents we file at the SEC’s public reference rooms in Washington, D.C. at 100 F Street, NE, Room 1580, Washington, DC 20549, or in New York, New York and Chicago, Illinois. You can request copies of these documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public at no cost from the SEC’s website at http://www.sec.gov.
INCORPORATION OF DOCUMENTS BY REFERENCE
We have filed a registration statement on Form S-3 with the Securities and Exchange Commission under the Securities Act. This prospectus is part of the registration statement but the registration statement includes and incorporates by reference additional information and exhibits. The Securities and Exchange Commission permits us to “incorporate by reference” the information contained in documents we file with the Securities and Exchange Commission, which means that we can disclose important information to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus. Information that we file later with the Securities and Exchange Commission will automatically update and supersede the information that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus from the date those documents are filed. We have filed with the Securities and Exchange Commission, and incorporate by reference in this prospectus:
· our annual report on Form 10-K for the year ended January 31, 2016 filed with the SEC on May 2, 2016;
· our quarterly report on Form 10-Q for the quarter ended April 30, 2016 filed with the SEC on June 14, 2016 and for the quarter ended July 31, 2016 filed with the SEC on September 14, 2016;
· our current reports on Form 8-K filed with the SEC on March 18, 2016, March 29, 2016, April 1, 2016, May 12, 2016, July 6, 2016, July 25, 2016, August 18, 2016 and August 24, 2016; and
· the description of our common stock contained in the Registrant’s registration statement on Form 8-A filed with the SEC on June 1, 2015.
You may request and obtain a copy of any of the filings incorporated herein by reference, at no cost, by writing or telephoning us at the following address or phone number:
BioPharmX Corporation
1098 Hamilton Court
Menlo Park, California 94025
Attn.: Corporate Secretary
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being registered hereby, other than underwriting discounts and commissions, all of which shall be borne by BioPharmX Corporation (the “Registrant” or the “Company”). All of such fees and expenses, except for the SEC Registration Fee, are estimated:
SEC registration fee |
| $ | 345.00 |
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Transfer agent’s fees and expenses |
| 4,000.00 | * | |
Legal fees and expenses |
| 25,000.00 | * | |
Printing fees and expenses |
| 1,500.00 | * | |
Accounting fees and expenses |
| 8,000.00 | * | |
Miscellaneous fees and expenses |
| 155.00 | * | |
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Total |
| $ | 39,000.00 |
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* Estimated
Item 15. Indemnification of Officers and Directors.
Section 145 of the DGCL authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the DGCL are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.
As permitted by the DGCL, the Registrant’s certificate of incorporation contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except liability for the following:
· any breach of the director’s duty of loyalty to the Registrant or its stockholders;
· acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
· under Section 174 of the DGCL (regarding unlawful dividends and stock purchases); or
· any transaction from which the director derived an improper personal benefit.
As permitted by the DGCL, the Registrant’s certificate of incorporation provides that the Registrant is required to indemnify each person that it has the power to indemnify to the fullest extent permitted by Section 145 of the DGCL.
The Registrant has entered into indemnification agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s certificate of incorporation and to provide additional procedural protections. There is no pending litigation or proceeding involving a director or executive officer of the Registrant for which indemnification is sought. The indemnification provisions in the Registrant’s certificate of incorporation and the indemnification agreements entered into or to be entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act.
The Registrant currently carries liability insurance for its directors and officers.
Item 16. Exhibits.
a) Exhibits.
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Exhibit |
| Exhibit Description |
| Form |
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| Filing Date |
| Exhibit |
| Filed |
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2.1 |
| Form of Share Exchange Agreement dated January 23, 2014 by and among Thompson Designs, Inc., BioPharmX, Inc. and BioPharmX, Inc. Stockholders |
| 8-K |
| 000-54871 |
| 1/27/2014 |
| 2.1 |
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3.1 |
| Certificate of Incorporation |
| S-8 |
| 333-201708 |
| 1/26/2015 |
| 4.01 |
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3.2 |
| Bylaws |
| S-8 |
| 333-201708 |
| 1/26/2015 |
| 4.02 |
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3.3 |
| Certificate of Elimination of Certificate of Designations, Preference and Rights of Series A Preferred Stock |
| 8-K |
| 001-37411 |
| 3/18/2016 |
| 3.1 |
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4.1 |
| Specimen Stock Certificate |
| S-1 |
| 333-201708 |
| 1/26/2015 |
| 4.03 |
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4.2 |
| Standstill Agreement, dated August 12, 2016, by and among BioPharmX Corporation and the purchasers listed on Schedule I thereto. |
| 8-K |
| 001-37411 |
| 8/18/2016 |
| 4.1 |
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4.3 |
| Registration Rights Agreement, dated August 12, 2016, by and among BioPharmX Corporation and the purchasers listed on Schedule I thereto. |
| 8-K |
| 001-37411 |
| 8/18/2016 |
| 4.2 |
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4.4 |
| Secured Convertible Promissory Note, dated August 17, 2016, issued to RTW Master Fund, Ltd. |
| 8-K |
| 001-37411 |
| 8/18/2016 |
| 4.3 |
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4.5 |
| Registration Rights Agreement, dated August 17, 2016, by and between BioPharmX Corporation and RTW Master Fund, Ltd. |
| 8-K |
| 001-37411 |
| 8/18/2016 |
| 4.4 |
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4.6 |
| Registration Rights Agreement, dated August 24, 2016, by and between BioPharmX Corporation and Xiao Dong Hua. |
| 8-K |
| 001-37411 |
| 8/24/2016 |
| 4.1 |
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4.7 |
| Convertible Promissory Note, dated August 24, 2016, issued to Xiao Dong Hua. |
| 8-K |
| 001-37411 |
| 8/24/2016 |
| 4.2 |
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5.1 |
| Opinion of Sichenzia Ross Friedman Ference LLP |
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| X |
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10.1 |
| Purchase Agreement, dated August 12, 2016, by and among BioPharmX Corporation and the purchasers listed on Schedule I thereto. |
| 8-K |
| 001-37411 |
| 8/18/2016 |
| 10.1 |
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10.2 |
| Letter Agreement, dated August 12, 2016, by and among BioPharmX Corporation, Franklin Strategic Series — Franklin Biotechnology Discovery Fund and Franklin Templeton Investment Funds — Franklin Biotechnology Discovery Fund. |
| 8-K |
| 001-37411 |
| 8/18/2016 |
| 10.2 |
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10.3 |
| Subscription Agreement, dated August 17, 2016, by and between BioPharmX Corporation and RTW Master Fund, Ltd. |
| 8-K |
| 001-37411 |
| 8/18/2016 |
| 10.3 |
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10.4 |
| Security Agreement, dated August 17, 2016, by and between BioPharmX Corporation and RTW Master Fund, Ltd. |
| 8-K |
| 001-37411 |
| 8/18/2016 |
| 10.4 |
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10.5 |
| Subscription Agreement, dated August 17, 2016, by and between BioPharmX Corporation and Xiao Dong Hua. |
| 8-K |
| 001-37411 |
| 8/18/2016 |
| 10.5 |
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23.1 |
| Consent of Sichenzia Ross Friedman Ference LLP (included in Exhibit 5.1) |
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| X |
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23.2 |
| Consent of Burr Pilger Mayer, Inc. |
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| X |
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24.1 |
| Power of Attorney (included on signature pages of registration statement) |
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| X |
Item 17. 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 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, 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.
(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), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if 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 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 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 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the Registrant is relying on Rule 430B:
(A) 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
(B) 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; or
(ii) If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use.
(5) 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:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) 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;
(iii) 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
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, 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 this 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, as amended, 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 of 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.
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-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Menlo Park, State of California, on September 14, 2016.
| BIOPHARMX CORPORATION | |
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| By: | /s/ Anja Krammer |
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| Anja Krammer |
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| President (Principal Executive Officer) |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Anja Krammer and Greg Kitchener, or each one of them individually, as the undersigned’s true and lawful attorney-in-fact and agents, with full power of substitution and resubstitution for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto, and other documents in connection therewith to this Registration Statement and any later registration statement filed by the registrant under Rule 462(b) of the Securities Act of 1933, which relates to this Registration Statement) and to file the same with exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent 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 such person might or could do in person, hereby ratifying and confirming all that each of said attorney-in-fact and agent, 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 dates indicated.
Signature |
| Title |
| Date |
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/s/ Anja Krammer |
| President (Principal Executive Officer) |
| September 14, 2016 |
Anja Krammer |
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/s/ Greg Kitchener |
| Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
| September 14, 2016 |
Greg Kitchener |
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/s/ Michael Hubbard |
| Director |
| September 14, 2016 |
Michael Hubbard |
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/s/ Stephen Morlock |
| Director |
| September 14, 2016 |
Stephen Morlock |
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/s/ Craig Barbarosh |
| Director |
| September 14, 2016 |
Craig Barbarosh |
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