July 23, 2019
Paul DiPerna
Chief Executive Officer
Modular Medical, Inc.
800 West Valley Parkway, Suite 203
Escondido, California 92025
Re: Modular Medical, Inc.
Registration Statement on Form S-1
Filed June 27, 2019
File No. 333-232377
Dear Mr. DiPerna:
We have reviewed your registration statement and have the following
comments. In
some of our comments, we may ask you to provide us with information so we may
better
understand your disclosure.
Please respond to this letter by amending your registration statement
and providing the
requested information. If you do not believe our comments apply to your facts
and
circumstances or do not believe an amendment is appropriate, please tell us why
in your
response.
After reviewing any amendment to your registration statement and the
information you
provide in response to these comments, we may have additional comments.
Registration Statement on Form S-1 filed June 27, 2019
Cover Page
1. Please disclose the fixed price at which the securities will be sold in
this offering. See
Item 501(b)(3) of Regulation S-K. Depending on your responses to the
other comments in
this letter, you may disclose, if true, that the selling shareholders
will sell at the disclosed
fixed price per share until your shares are quoted on the OTC Bulletin
Board or in the
OTCQX or OTCQB marketplace of OTC Link and thereafter at prevailing
market prices
or in privately negotiated transactions. Please also make corresponding
changes
elsewhere in the prospectus.
2. Given the nature and size of the transaction being registered, advise
the staff of the
company's basis for determining that the transaction is appropriately
characterized as a
transaction that is eligible to be made on a shelf basis under Rule
415(a)(1)(i).
Paul DiPerna
Modular Medical, Inc.
July 23, 2019
Page 2
Prospectus Summary, page 2
3. Please explain clearly each material step you must take to reach
commercialization of
your technology to address the markets mentioned on page 26. Include
the material
hurdles before you are able to address these markets. If such detail
is not appropriate for
your prospectus summary, carefully consider the information that is
the most significant,
and briefly highlight that information in the summary and include more
detailed
disclosure elsewhere in your prospectus.
The Company, page 2
4. Please expand the disclosure in the third paragraph of this section to
disclose the
regulatory status of your insulin pump. Also, tell us whether the
"substantial feedback"
mentioned on page 2 has revealed any material disadvantages of your
insulin pump.
The Private Placement Transactions, page 2
5. Please reconcile the number of shares purchased for cash in the 2017
placement as
disclosed here and on page F-10. Also, if some of the selling
shareholders did not pay
cash for the offered securities, please disclose the number of shares
exchanged for new
shares and when the exchanged shares were "previously canceled";
include appropriate
disclosure regarding the exchange in your "Selling Shareholders"
section regarding each
selling shareholder who did not pay cash.
Corporate History and Background, page 3
6. Please provide us your analysis of whether you are an "emerging growth
company" as
defined in Section 2 of the Securities Act.
Risk Factors, page 4
7. Please include appropriate risk factors regarding (1) the conclusions
of your CEO and
CFO related to the effectiveness of your controls and procedures and
(2) the extent of your
board of directors' ability to adopt any recapitalization by effecting
a forward or reverse
split of the outstanding shares of your common stock without
shareholder approval. We
note your Article IX of exhibit 3.1.
8. We note your disclosure on page 23 regarding your Board of Directors
being elected
annually. Please show us how you comply with Regulation 14A or 14C, as
appropriate, in
FirstName LastNamePaul DiPerna action. Also clarify whether shareholders have
the ability to
connection with shareholder
Comapany NameModular Medical, Inc.
vote on the directors appointed under the agreement mentioned on page
34. Include any
July 23, 2019 Pagerisk factors.
appropriate 2
FirstName LastName
Paul DiPerna
FirstName LastNamePaul DiPerna
Modular Medical, Inc.
Comapany NameModular Medical, Inc.
July 23, 2019
July 23, 2019 Page 3
Page 3
FirstName LastName
Any failure to attract and retain skilled directors, executives, employees and
consultants, page 7
9. We note your disclosure on page 33 that Mr. DiPerna is the manager of
one entity and the
chief executive officer of another entity. Please add a risk factor to
highlight, if
appropriate, the amount of time Mr. DiPerna may work on your business
and any
conflicts. Also, please tell us why the disclosure on page 33 does not
address the activity
mentioned at the end of schedule 1.1 of exhibit 10.4.
We will need to outsource and rely on third parties, page 7
10. Please expand the appropriate section to disclose the material
termination provisions of
your agreements mentioned in the third sentence of the second
paragraph of this risk
factor. Also, provide us your analysis of whether you must file any of
the agreements as
exhibits to your registration statement.
Selling Shareholders, page 16
11. We note your disclosure indicating that footnotes would contain any
exceptions to your
statements in the last sentence of the first paragraph. Please ensure
that the footnotes that
you mention describe the exceptions.
Our Solution, page 27
12. Please disclose the basis, to the extent material, for your belief
that your "proposed insulin
pump will be the simplest and least expensive product on the market
and the easiest for
physicians to prescribe for diabetes patients" in view of the status
of your product
mentioned in the fourth paragraph on page 27. Also, if claims
regarding safety can be
made only after the FDA has not cleared a product for sale, please
tell us why you believe
it is appropriate to make claims regarding safety like you do on page
27.
Government Regulation, page 28
13. We note your disclosure regarding your intended consumers in the last
sentence on page
27. Please tell us why this section does not address the regulatory
process of relevant
foreign authorities.
14. We note your disclosure that you anticipate that your proposed product
will require the
PMA approval process. Please more fully disclose the nature of that
process; include, as
applicable, the investigational device exemption process, and, if
needed, whether you have
received the exemption. Also disclose the duration of the PMA process,
and clarify the
nature of the "more rigorous examination" that you mention in the
first sentence on page
29.
Paul DiPerna
FirstName LastNamePaul DiPerna
Modular Medical, Inc.
Comapany NameModular Medical, Inc.
July 23, 2019
July 23, 2019 Page 4
Page 4
FirstName LastName
Operating Expenses, page 30
15. Please clarify the nature of the consulting services mentioned in the
second sentence of
this section. Also, clarify what you mean by the phrase "increasing
outside expenses."
Management, page 33
16. If you elect to highlight achievements related to the companies that
you mention, please
ensure that your disclosure is balanced. For example, did the
companies incur material
losses?
17. Please provide the disclosure required by Item 401(e)(1) of Regulation
S-K regarding the
specific experience, qualifications, attributes, or skills that led to
the conclusion that
Messrs. DiPerna, Burns and Frank should serve as directors.
Involvement in Legal Proceedings, page 34
18. We note the reference to the "disclosure with regard to Mr. Burns;"
however, the
disclosure appears to be missing. Please advise or revise.
The DiPerna Employment Agreement and Related Agreements, page 35
19. Please disclose the post-termination compensation provision mentioned
in section 5(c) of
exhibit 10.4 and the change of control compensation mentioned in
section 6 of that
exhibit. Also, file as exhibits to your registration statement the
agreements mentioned in
the last sentence of this section.
Composition of the Board, page 35
20. Please describe the effect of section 3.03 of exhibit 3.2 to your
registration statement.
Executive Compensation, page 37
21. Please reconcile your disclosure in the table on page 38 about the
salary of $30,000 and all
other compensation of $105,000 for the fiscal year ended March 31,
2018 with your
disclosure in footnote (1) on page 38 that Mr. Diperna was named CEO
on July 24, 2017
at an annual salary base of $180,000. Also, clarify how the option
grant mentioned in the
first paragraph on page 39 is reflected in the first table on page 38,
and note the disclosure
required by the Instructions to Regulation S-K Item 402(c)(2)(v) and
(vi) or Item
402(n)(2)(v) and (n)(2)(vi), as appropriate.
Related Party Transactions, page 40
22. We note your reference to $120,000 in the first paragraph. Please
revise given the
threshold in Regulation S-K Item 404(d)(1). Also, provide disclosure
that addresses the
entire time period mentioned in Instruction 1 to Item 404.
Paul DiPerna
FirstName LastNamePaul DiPerna
Modular Medical, Inc.
Comapany NameModular Medical, Inc.
July 23, 2019
July 23, 2019 Page 5
Page 5
FirstName LastName
Consolidated Statements of Stockholders' Equity, page F-4
23. Please revise the penultimate caption of the table to correctly
indicate that the net loss is
for the fiscal year ended March 31, 2019, rather than for the quarter
ended March 31,
2019.
Note 1 - Organization and Summary of Significant Accounting Policies
Earnings Per Share ("EPS"), page F-9
24. Revise this note and your Consolidated Statement of Operations on page
F-3 to present
your earnings per share to the nearest cent, so as not to imply more
precision than exists.
25. Revise to disclose the securities that could potentially dilute basic
EPS in the future that
were not included in the computation of diluted EPS because to do so
would have been
anti-dilutive for the periods presented. Refer to ASC 260-10-50-1(c).
Note 5 - Stockholders' Equity
Stock Options, page F-11
26. Please revise to disclose the method used to estimate the fair value
of the equity
instruments granted during the period to both employees and
consultants, as well as the
underlying basis for the assumptions used. Refer to ASC 718-10-50-2(f)
and 505-50-50-
1. In addition, as applicable, revise to provide the disclosures
required by ASC 718-10-50-
2(c) through (e).
27. You disclose on page F-12 that options issued to consultants were
valued at $682,240 and
was accrued monthly in research and development expenses for the year
ended March 31,
2019. However, we note from your statement of cash flows that total
stock-based
compensation expense for fiscal year 2019 was $532,108. Please revise
to clarify this
discrepancy and to disclose the method used for measuring compensation
cost from share-
based payment arrangements.
Signatures, page 48
28. Please clarify below the second paragraph of text that Form S-1
requires on the Signatures
page who signed your document in the capacity of principal accounting
officer or
controller.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
Paul DiPerna
Modular Medical, Inc.
July 23, 2019
Page 6
You may contact Gary Newberry at 202-551-3761 or Lynn Dicker, Senior
Accountant, at
202-551-3616 if you have questions regarding comments on the financial
statements and related
matters. Please contact Thomas Jones at 202-551-3602 or Russell Mancuso, Branch
Chief, at
202-551-3617 with any other questions.
Sincerely,
FirstName LastNamePaul DiPerna
Division of
Corporation Finance
Comapany NameModular Medical, Inc.
Office of Electronics
and Machinery
July 23, 2019 Page 6
cc: Lawrence G. Nusbaum, Esq.
FirstName LastName