UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 27, 2020
BIOPHARMX CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware |
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001-37411 |
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59-3843182 |
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(State or other jurisdiction
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(Commission
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(IRS Employer
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900 E. Hamilton Ave., Suite 100
San Jose, California 95008
(Address of principal executive offices)
Registrant’s telephone number, including area code: (650) 889-5020
N/A
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
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Common Stock, par value $0.001 per share |
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BPMX |
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The NYSE American, LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement Amendment
On April 27, 2020, BioPharmX Corporation (the “Company” or “BioPharmX”), BITI Merger Sub, Inc. (“Merger Sub”) and Timber Pharmaceuticals LLC (“Timber”) entered into Amendment No. 2 to Agreement and Plan of Merger and Reorganization (the “Merger Amendment”). The Merger Amendment amends that certain Agreement and Plan of Merger and Reorganization (as previously amended and as so amended, the “Merger Agreement”), dated January 28, 2020, by and among the Company, Merger Sub and Timber. Under the Merger Amendment, BioPharmX has agreed that, if it is required in order for the combined entity to meet the NYSE Market Capitalization Requirement at the Effective Time of the Merger, it will lower the ownership percentage that the BioPharmX stockholders will own of the combined entity following the merger from 11.5% to no lower than 8.9% of the combined entity (subject to further adjustment in the event that the second modification to the SPA Amendment described below is required to meet the NYSE Market Capitalization Requirement).
The foregoing description of the Merger Amendment does not purport to be complete and is qualified in its entirety by the full text of the Merger Amendment, a copy of which is filed as Exhibit 2.1 hereto and is incorporated by reference herein.
Amendment to Securities Purchase Agreement
On April 27, 2020, BioPharmX, Timber and the Investors providing the Timber Funding entered into that certain Amendment No. 1 to Securities Purchase Agreement (the “SPA Amendment”). The SPA Amendment modifies that certain Securities Purchase Agreement, dated as of March 27, 2020, among BioPharmX, Timber, and the investors (“Investors”) who are providing funding of approximately $25 million to the Company immediately prior to the Effective Time of the Merger (the “SPA”).
The SPA Amendment makes the following changes to the SPA in an effort to satisfy the NYSE American’s Listing Requirement that, at the Effective Time of the Merger, BioPharmX have a market capitalization of no less than $50 million (the “Market Capitalization Requirement”):
· BioPharmX, Timber, and the Investors have agreed that if required to meet the Market Capitalization Requirement, the Converted Additional Shares that are to be placed in escrow under the Securities Purchase Agreement will no longer be returned to BioPharmX as treasury stock depending on the market price of the BioPharmX common stock.
· BioPharmX, Timber and the Investors have also agreed that if the Market Capitalization Requirement is still not satisfied after effecting the change described above and the change contemplated by the Merger Amendment, the Investors will purchase up to an additional 67 million restricted shares of BioPharmX Common Stock for immediate delivery to the Escrow Agent to be held in escrow so long as an investor would otherwise hold in excess of 9.99% of the BioPharmX Common Stock. Any shares so purchased would reduce the number of shares available for purchase under the Series B Warrant to be issued by BioPharmX on the Warrant Closing Date.
The foregoing description of the SPA Amendment does not purport to be complete and is qualified in its entirety by the full text of the SPA Amendment, a form of which is attached to this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference.
Item 8.01 Other Events
On April 27, 2020, BioPharmX announced that the date of its special stockholders’ meeting to consider and vote on the proposed merger of BioPharmX with Timber and related matters has been changed. The meeting will now be held on Friday, May 13, 2020 at 10:00 AM eastern time.
Further, due to the COVID-19 pandemic, BioPharmX has determined that for the health and well-being of its stockholders, BioPharmX’s special meeting of stockholders to consider and vote upon the proposed merger and related matters will be a virtual meeting conducted exclusively via live audiocast at https://www.viewproxy.com/BioPharmXCorp/2020. There will not be a physical location for the special meeting, and stockholders will not be able to attend the meeting in person.
The press release is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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2.1 |
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10.1 |
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99.1 |
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Press Release issued by the Company on April 27, 2020 (Meeting Date and Virtual Meeting)* |
* Filed herewith
Where to find additional information about the Special Stockholders Meeting, the proposed Merger and related matters
On February 20, 2020, BioPharmX filed a Registration Statement on Form S-4 with the U.S. Securities and Exchange Commission (“SEC”) containing a prospectus and a proxy statement of BioPharmX concerning the proposed merger between BioPharmX and Timber. The registration statement was declared effective by the SEC on March 30, 2020 and the proxy statement describing the merger and related matters was mailed to BioPharmX stockholders on or about April 6, 2020. Subsequently, on April 27, 2020, BioPharmX filed a supplement to its proxy statement describing certain changes to the terms of the merger and related matters from that described in the original proxy statement. The supplement is expected to be mailed to BioPharmX stockholders on or about April 28, 2020 and the special stockholders meeting of BioPharmX to consider and vote upon the merger and the related matters described in the proxy statement and the supplement is now scheduled to be held on Friday, May 13, 2020 at 10:00 AM eastern time.
INVESTORS AND SECURITY HOLDERS OF BIOPHARMX ARE URGED TO READ THESE MATERIALS CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT BIOPHARMX, TIMBER, THE PROPOSED MERGER, AND RELATED MATTERS.
The proxy statement/prospectus, the supplement, and any other documents filed by BioPharmX with the SEC, may be obtained free of charge at the SEC website at www.sec.gov. In addition, investors and security holders may obtain free copies of the documents filed with the SEC by BioPharmX by directing a written request to: BioPharmX Corporation, 900 E. Hamilton Avenue, Suite 100, Campbell, CA 95008 or by downloading such materials from the Investor Page of the BioPharmX website, www.BioPharmX.com. BioPharmX security holders are urged to read the proxy statement/prospectus and the supplement before making any voting or investment decision with respect to the proposed merger.
Participants in the Solicitation
BioPharmX and its directors and executive officers and Timber and its managers and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of BioPharmX in connection with the proposed transaction under the rules of the SEC. Information about the directors and executive officers of BioPharmX and their ownership of shares of BioPharmX common stock is set forth in BioPhamX’s Annual Report on Form 10-K for the year ended January 31, 2020, which was filed with the SEC on March 23, 2020, and its subsequent documents filed with the SEC, including the joint proxy statement/prospectus and the supplement referred to above. Additional information regarding the persons who may be deemed participants in the proxy solicitations and a description of their direct and indirect interests in the proposed merger, by security holdings or otherwise, is also included in the joint prospectus/proxy statement, the supplement, and other relevant materials filed with the SEC when they become available. The managers and officers of Timber do not currently hold any direct or indirect interests, by security holdings or otherwise, in BioPharmX except as pursuant to the exercise of the bridge loan warrant described in BioPharmX’s SEC reporting.
Forward-Looking Statements
This press release contains forward-looking statements based upon BioPharmX’s and Timber’s current expectations. This communication contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are identified by terminology such as “may,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “target,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,” “potential” or “continue” or the negative of these terms or other similar words. These statements are only predictions. BioPharmX and Timber have based these forward-looking statements largely on their then-current expectations and projections about future events, as well as the beliefs and assumptions of management. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances that are beyond each of BioPharmX’s and Timber’s control, and actual results could differ materially from those stated or implied in forward-looking statements due to a number of factors, including but not limited to: (i) risks associated with BioPharmX’s ability to obtain the stockholder approval required to consummate the proposed merger transaction and related matters and the timing of the closing of the proposed merger transaction, including the risks that a condition to closing would not be satisfied within the expected timeframe or at all or that the closing of the proposed merger transaction will not occur; (ii) the outcome of any legal proceedings that may be instituted against the parties and others related to the merger agreement; (iii) whether the NYSE American will continue to list the common shares of BioPharmX following the merger, (iv) the occurrence of any event, change or other circumstance or condition that could give rise to the termination of the merger agreement, (v) unanticipated difficulties or expenditures relating to the proposed merger transaction, the response of business partners and competitors to the announcement of the proposed merger transaction, and/or potential difficulties in employee retention as a result of the announcement and pendency of the proposed merger transaction; (vi) whether the combined business of Timber and BioPharmX will be successful, and (vii) those risks detailed in BioPharmX’s most recent Annual Report on Form 10-K for the fiscal year ended January 31, 2020 and subsequent reports filed with the SEC, as well as other documents that may be filed by BioPharmX from time to time with the SEC (including the proxy statement/prospectus and the supplement). Accordingly, you should not rely upon forward-looking statements as predictions of future events. Neither BioPharmX nor Timber can assure you that the events and circumstances reflected in the forward-looking statements will be achieved or occur, and actual results could differ materially from those projected in the forward-looking statements. The forward-looking statements made in this communication relate only to events as of the date on which the statements are made. Except as required by applicable law or regulation, BioPharmX and Timber 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.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned duly authorized.
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BioPharmX Corporation |
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a Delaware corporation |
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(Registrant) |
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Date: April 27, 2020 |
By: |
/s/ Steven M. Bosacki |
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Name: |
Steven M. Bosacki |
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Title: |
Chief Executive Officer |
AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AMENDMENT NO. 2 TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Amendment”), is made and entered into as of April 27, 2020 (the “Second Amendment Effective Date”), by and among BioPharmX Corporation, a Delaware corporation (“Parent”), BITI Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub”), and Timber Pharmaceuticals LLC, a Delaware limited liability company (“Company”). Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in that certain Agreement and Plan of Merger and Reorganization, made and entered into as of January 28, 2020, as previously amended, by and among Parent, Merger Sub and Company (the “Merger Agreement”).
RECITALS
A. Section 10.2 of the Merger Agreement provides that the Merger Agreement may not be amended except by the approval of Parent, Merger Sub and Company.
B. The board of directors and the board of managers of each of the respective parties, as applicable, have determined that this Amendment is advisable and in the best interests of their respective entities and their respective stockholders and members to enable the condition to the Merger that the Parent remain listed on the NYSE American Exchange (“NYSE”) to be satisfied, and this Amendment shall be read in a manner consistent with NYSE regulations so as to effectuate such purpose.
C. The parties wish to amend the Merger Agreement as set forth in this Amendment, such amendment to be effective as of the date hereof.
AGREEMENT
The parties to this Amendment, intending to be legally bound, hereby agree as follows:
1. Amendment to Definition of Timber Allocation Number. The definition of “Timber Allocation Number” set forth in Exhibit A of the Merger Agreement is supplemented to add the following at the end of the current definition:
“Notwithstanding the foregoing, if, immediately prior to the Effective Time, the New Outstanding Number (prior to the adjustments described herein) times the NYSE Closing Price is less than $50,000,000 then, at the Effective Time, the Timber Issuance Number shall be increased such that the New Outstanding Number times the NYSE Closing Price equals or exceeds $50,000,000; provided that the increase to the Timber Issuance Number shall not cause the number of shares of Parent Common Stock being issued to the holders of Timber Common Units under the Registration Statement to exceed the Limit Number; provided, further, that if the foregoing formula produces a product of less than $50,000,000, the Timber Issuance Number shall equal the Limit Number.”
2. Amendment to Definition of Timber Percentage. The definition of “Timber Percentage” set forth in Exhibit A of the Merger Agreement shall be deleted in its entirety and replaced with the following:
“Timber Percentage” means 88.5% unless the additional clause of the definition of Timber Allocation Number contained in Section 1 of this Amendment becomes applicable.”
3. Additional Definitions. The following additional terms shall be as defined herein.
a. “New Outstanding Number” shall mean the sum of the Parent Outstanding Number and the Timber Issuance Number.
b. “Parent Outstanding Number” shall mean the number of shares of Parent Common Stock outstanding on the Closing Date before the consummation of the Merger but excluding any shares of Parent Common Stock held by the Company (Parent represents such number is expected to be 16,407,907 at the Effective Time as of the Second Amendment Effective Date).
c. “Securities Purchase Agreement” shall mean the Securities Purchase Agreement, dated as of March 27, 2020, by and among Parent, Company and certain accredited investors, as it may be amended from time to time.
d. “Timber Issuance Number” shall mean the number of shares of Parent Common Stock to be issued in the Merger to holders of Timber Common Units, including the investors party to the Securities Purchase Agreement upon conversion of the Initial Common Units and the Additional Common Units (both as defined in the Securities Purchase Agreement), all of which shares shall be issued at the Effective Time of the Merger (including the shares of Parent Common Stock underlying the Additional Common Units that were to be placed in escrow under the Securities Purchase Agreement), but excluding the shares of Parent Common Stock underlying the Company VARs.
e. “Limit Number” shall mean a number of shares of Parent Common Stock such that the number of registered shares of Parent Common Stock issued pursuant to the Registration Statement to holders of Timber Common Units would be 167,080,902 at the Effective Time, in which case the Timber Percentage would be 91.058%.
f. “NYSE Closing Price” means the price per share of Parent Common Stock used by the NYSE American to determine compliance with its market capital standards.
4. Continuing Effectiveness; Entire Agreement. Except as expressly modified by this Amendment, the Merger Agreement shall remain in full force and effect in accordance with its terms, with each of Parent, Merger Sub and Company ratifying, adopting and affirming the Merger Agreement and otherwise intending to be bound thereby. This Amendment shall be deemed an amendment to the Merger Agreement and shall become effective when executed and delivered by the Parties. Upon the effectiveness of this Amendment, all references in the Merger Agreement to “the Agreement” or “this Agreement,” as applicable, shall refer to the Merger Agreement, as modified by this Amendment.
5. Miscellaneous. Article X of the Merger Agreement is hereby incorporated into this Amendment mutatis mutandis.
[Signature page follows]
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the date first above written.
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BIOPHARMX CORPORATION |
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By: |
/s/ Steven M. Bosacki |
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Name: |
Steven M. Bosacki |
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Title: |
Chief Executive Officer |
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BITI MERGER SUB, INC. |
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By: |
/s/ Steven M. Bosacki |
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Name: |
Steven M. Bosacki |
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Title: |
Chief Executive Officer |
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TIMBER PHARMACEUTICALS LLC |
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By: |
/s/ John Koconis |
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Name: |
John Koconis |
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Title: |
Chief Executive Officer |
FORM OF AMENDMENT NO. 1 SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT (this “Amendment”), is made and entered into as of April 27, 2020 (the “First Amendment Effective Date”), by and among BioPharmX Corporation, a Delaware corporation (“BioPharmX”), Timber Pharmaceuticals LLC, a Delaware limited liability company (“Timber”) and each investor signatory hereto (each, an “Investor”). Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in that certain Securities Purchase Agreement, made and entered into as of March 27, 2020 by and among BioPharmX, Timber, the Investor and other investors (“Other Investors”) listed on the Schedule of Buyers attached thereto (the “Securities Purchase Agreement”).
RECITALS
A. Section 10(e) of the Securities Purchase Agreement provides that the Securities Purchase Agreement may not be amended except by the approval of BioPharmX, Timber and the Required Holders (as defined in the Securities Purchase Agreement).
B. The parties hereto have determined that this Amendment is advisable and in the best interests of their respective entities to enable the condition to the Merger that the BioPharmX remain listed on the NYSE American Exchange (“NYSE”) to be satisfied, and this Amendment shall be read in a manner consistent with NYSE regulations so as to effectuate such purpose.
C. The parties hereto wish to amend the Securities Purchase Agreement as set forth in this Amendment, which shall be effective (such time, the “Effective Time”) upon receipt by BioPharmX and Timber of (i) this Amendment duly executed and delivered by BioPharmX, Timber and the Investor and (ii) other amendments to the Securities Purchase Agreement substantially identical in form and substance to this Amendment duly executed and delivered by BioPharmX, Timber and certain Other Investors, which together with the Investor represent the Required Holders (as defined in the Securities Purchase Agreement)
AGREEMENT
The parties to this Amendment, intending to be legally bound, hereby agree as follows:
1. Amendments to Section 1.
Section 1(a) of the Securities Purchase Agreement is hereby amended and replaced in its entirety with the following paragraph:
“ (a) Purchase of Initial Common Units. Subject to the satisfaction (or waiver) of the conditions set forth in Section 7 and 8 below, (x) Timber shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from Timber on the Closing Date (as defined below), the number of Initial Common Units as is set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers, (y) Timber shall issue to each Buyer for no additional consideration, on the Closing Date (as defined below), a number of Timber Common Units equal to the lesser of (1) the number of Timber Common Units equal to the Buyers’ Allocation Number issuable as Additional Common Units and (2) such number of Timber Common Units that such Buyer indicates in writing to Timber on or prior to the Closing Date that it can receive without, after giving effect to the Merger, exceeding the Maximum Percentage (as defined in Section
1(c)(iv) below) and (z) Timber shall issue in escrow in the name of the Escrow Agent a number of shares of Timber Common Units equal to the difference between (1) such Buyers’ Allocation Number issuable as Additional Common Units and (2) the number of Timber Common Units issued to such Buyer in accordance with clause (y) above, in accordance with the terms hereof and the Securities Escrow Agreement (the “Closing”).
Section 1(c)(i) of the Securities Purchase Agreement is hereby amended by inserting the following immediately after the first paragraph:
“For purposes of this Agreement, the “Final Per Share Price” shall be equal to the greater of (a) the Reset Floor Price (as defined in the Warrants) and (b) eighty-five percent (85%) of the sum of the three (3) lowest Weighted Average Prices (as defined in the Warrants) of the BioPharmX Common Stock during the period beginning on the first (1st) Trading Day (as defined in the Warrants) immediately following the Closing Date and ending on the Warrant Closing Date, inclusive (as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar events during such period), divided by three (3).”
Section 1(c)(ii) of the Securities Purchase Agreement is amended and replaced in its entirety with the following paragraph:
“(ii) Obligation to Deliver Additional Common Units. Promptly, but in any event by no later than (x) the Trading Day immediately following the Closing Date and/or (y) if Section 1(c)(iv) prevents the delivery on the Trading Day immediately following the Closing Date of all or any portion of the Exchange Shares (as defined in Section 5(d)) issued into escrow pursuant to the Securities Escrow Agreement in exchange of Additional Common Units to a Buyer, the second (2nd) Trading Day immediately after the delivery to BioPharmX of a notice by such Buyer in the form attached hereto as Exhibit D setting forth such Buyer’s election to receive all or any portion of the Exchange Shares issued in exchange of the Additional Common Units and the delivery of which is no longer prevented by Section 1(c)(iv) (a “Capacity Notice”) (the Trading Day immediately following the Closing Date and each second (2nd) Trading Day immediately following the delivery to BioPharmX of a Capacity Notice, an “Additional Exchange Shares Delivery Date”), subject to Section 1(c)(iv), BioPharmX shall, in each case, without any additional consideration, cause the Escrow Agent to transfer from the escrow account governed by the Securities Escrow Agreement and deliver by crediting to such Buyer’s or its designee’s balance account with The Depository Trust Company (“DTC”) through its Deposit / Withdrawal At Custodian system, the Additional Common Units (once exchanged for the Exchange Shares as set forth herein) (as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar events occurring after the date hereof and including any securities, cash, rights or other property distributed with respect to such Additional Common Units or in exchange for such Additional Common Units), which such Exchange Shares issued in exchange of Additional Common Units shall be equal to the number of Exchange Shares issued in exchange for the Additional Common Units deposited in such Buyer’s escrow account (as adjusted for stock splits, stock dividends, recapitalizations, reorganizations, reclassification, combinations, reverse stock splits or other similar events occurring after the date hereof). The Securities Escrow Agreement shall provide that Timber, prior to the Merger, or BioPharmX, after the Merger, or its designee, has the power to vote each Exchange Share, not the Buyer, for so long as such Exchange Share is held in escrow. The Securities Escrow Agreement shall be in a form reasonably satisfactory to all parties hereto.”
Section 1 of the Securities Purchase Agreement is further amended to add the following paragraphs as Section 1(g):
“(g) Amendment Relating to Series B Warrants; Acceleration of Exercises. Notwithstanding anything set forth in this Agreement, if immediately prior to the Effective Time on the Closing Date, following (i) the issuance of the Additional Common Units to the Buyer and the Escrow Agent at Closing under Section 1(c)(ii) above and to all Buyers and the Escrow Agent under comparable provisions, and (ii) the issuance of a number of shares of BioPharmX Common Stock equal to the Limit Number pursuant to Amendment No. 2 to the Merger Agreement, dated as of the date hereof, by and among BioPharmX, Timber and certain other parties (the “Merger Amendment”), the product of the New Outstanding Number times the NYSE Closing Price (the “Market Value”) would still be less than $50 million, then each applicable Buyer agrees to purchase, and BioPharmX agrees to sell, for immediate delivery by BioPharmX to the Escrow Agent immediately following the Effective Time on the Closing Date, at a price of $0.001 per share, a number of shares of restricted BioPharmX Common Stock (the “Restricted Stock”) with a value (based on the NYSE Closing Price) equal to the applicable Buyer’s percentage that is calculated by dividing (x) the aggregate Purchase Price to be paid by such Buyer under the Schedule of Buyers annexed to the Securities Purchase Agreement by (y) $25 million (the “Buyer Percentage”) of $50 million less the Buyer Percentage of the Market Value, such that, following the purchases by all Buyers, the Market Value of the New Outstanding Number plus the value of the shares of Restricted Stock issued pursuant to this Section 1(g) contemporaneously with the Effective Time shall be equal to $50 million; provided, that if the number of shares of Restricted Stock would otherwise exceed the Buyer Percentage of 67,000,000 pre-reverse split shares, the number of shares of Restricted Stock purchased pursuant to this Section 1(g) shall equal the Buyer Percentage of 67,000,000 pre-reverse split shares.
Furthermore, any purchase pursuant to this Section 1(g) shall be deemed among the parties an acceleration of the exercise of such purchaser’s Series B Warrant, such that the Initial Maximum Eligibility Number and Maximum Eligibility Number (as such terms are defined in such purchaser’s Series B Warrant) shall be reduced, but not below zero, by the number of shares of Restricted Stock issued to such purchaser pursuant to this Section 1(g), and the Series B Warrant issued to such purchaser on the Warrant Closing Date shall reflect such lesser number of shares of BioPharmX Common Stock. Any shares of BioPharmX Common Stock issued hereunder shall be Restricted Stock, and bear a legend reflecting such securities laws restrictions, consistent with the terms of the Series B Warrants. In addition, the legend removal provisions, including any liquidated damages provisions relating to failure to timely issue securities without restrictive legends and/or to remove restrictive legends, shall apply to the Restricted Stock as if the Restricted Stock were issued pursuant to the Series B Warrants. Notwithstanding anything to the contrary contained in the Registration Rights Agreement, the Restricted Stock shall be deemed to be Registrable Securities under the terms of the Registration Rights Agreement and shall be registered for resale along with the shares of Common Stock underlying the Series A Warrants and the Series B Warrants.
Promptly but in any event by no later than (x) the Trading Day immediately following the Closing Date and/or (y) if Section 1(c)(iv) prevents the delivery on the Trading Day immediately following the Closing Date of all or any portion of the shares of Restricted Stock, the second (2nd) Trading Day immediately after the delivery to BioPharmX of a notice by such Buyer in the form attached hereto as Exhibit D setting forth such Buyer’s election to receive all or any portion of the Restricted Stock such Buyer is entitled to pursuant to this Section 1(g) and the delivery of which is no longer prevented by Section 1(c)(iv) (a “Restricted Stock Capacity Notice”) (the Trading Day immediately following the Closing Date and each second (2nd) Trading Day immediately
following the delivery to BioPharmX of a Restricted Capacity Notice, an “Additional Restricted Stock Delivery Date”), subject to Section 1(c)(iv), BioPharmX shall, in each case, without any additional consideration, cause the Escrow Agent to transfer from the escrow account governed by the Restricted Stock Escrow Agreement (as defined below) and deliver a certificate bearing a restricted stock legend representing such shares of Restricted Stock.
Any shares of Restricted Stock issued pursuant to this Section 1(g) shall be placed into escrow with the Escrow Agent pursuant to a separate escrow agreement (the “Restricted Stock Escrow Agreement”). The Restricted Stock Escrow Agreement shall provide that Timber, prior to the Merger, or BioPharmX, after the Merger, or its designee, has the power to vote each share of Restricted Stock, not the Buyer, for as long as such share of Restricted Stock is held in escrow. The Restricted Stock Escrow Agreement shall be in a form reasonably satisfactory to all parties hereto.
For purposes of this Section 1(g) only, capitalized terms not otherwise defined in this Agreement shall have the meaning assigned to such terms in the Merger Amendment.”
2. Effectiveness. The provisions of this Amendment shall be effective, and shall only be effective, upon the Effective Time.
3. No Group. BioPharmX hereby acknowledges and agrees with the Investor that it is not aware of any relationship between the Investor and any Other Investors, other than the relationship between the Investor and funds managed by the investment manager of the Investors. Timber hereby acknowledges and agrees with the Investor that it is not aware of any relationship between the Investor and any Other Investors, other than the relationship between the Investor and funds managed by the investment manager of the Investors.
4. Continuing Effectiveness; Entire Agreement. Except as expressly modified by this Amendment from and after the Effective Time, the Securities Purchase Agreement shall remain in full force and effect in accordance with its terms, with each of BioPharmX, Timber and the Investor ratifying, adopting and affirming the Securities Purchase Agreement and otherwise intending to be bound thereby. From and after the Effective Time, this Amendment shall be deemed an amendment to the Securities Purchase Agreement. Upon the effectiveness of this Amendment, all references in the Securities Purchase Agreement to “the Agreement” or “this Agreement,” as applicable, shall refer to the Securities Purchase Agreement, as modified by this Amendment and the Other Amendments.
5. Miscellaneous. Section 10 of the Securities Purchase Agreement is hereby incorporated into this Amendment mutatis mutandis.
[Signature page follows]
BioPharmX Corporation Announces that its Special Stockholders’ Meeting
will now be held on Wednesday, May 13, 2020 at 10:00 AM eastern time
Special Stockholders’ Meeting will now be a virtual meeting
CAMPBELL, California, April 27, 2020 - BioPharmX Corporation (NYSE American: BPMX) (“BioPharmX”) today announced that the date of its special stockholders’ meeting to consider and vote on the proposed merger of BioPharmX with Timber Pharmaceuticals LLC (“Timber”) and related matters has been changed. The meeting will now be held on Wednesday, May 13, 2020 at 10:00 AM eastern time.
Further, due to the COVID-19 pandemic, BioPharmX has determined that for the health and well-being of its stockholders, BioPharmX’s special meeting of stockholders to consider and vote upon the proposed merger and related matters will be a virtual meeting conducted exclusively via live audiocast at https://www.viewproxy.com/BioPharmXCorp/2020. There will not be a physical location for the special meeting, and you will not be able to attend the meeting in person.
Where to find additional information about the Special Stockholders Meeting, the proposed Merger and related matters
On February 20, 2020, BioPharmX filed a Registration Statement on Form S-4 with the U.S. Securities and Exchange Commission (“SEC”) containing a prospectus and a proxy statement of BioPharmX concerning the proposed merger between BioPharmX and Timber. The registration statement was declared effective by the SEC on March 30, 2020 and the proxy statement describing the merger and related matters was mailed to BioPharmX stockholders on or about April 6, 2020. Subsequently, on April 27, 2020, BioPharmX filed a supplement to its proxy statement describing certain changes to the terms of the merger and related matters from that described in the original proxy statement. The supplement is expected to be mailed to BioPharmX stockholders on or about April 28, 2020 and the special stockholders meeting of BioPharmX to consider and vote upon the merger and the related matters described in the proxy statement and the supplement is now scheduled to be held on Wednesday, May 13, 2020 at 10:00 AM eastern time.
INVESTORS AND SECURITY HOLDERS OF BIOPHARMX ARE URGED TO READ THESE MATERIALS CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT BIOPHARMX, TIMBER, THE PROPOSED MERGER, AND RELATED MATTERS.
The proxy statement/prospectus, the supplement, and any other documents filed by BioPharmX with the SEC, may be obtained free of charge at the SEC website at www.sec.gov. In addition, investors and security holders may obtain free copies of the documents filed with the SEC by BioPharmX by directing a written request to: BioPharmX Corporation, 900 E. Hamilton Avenue, Suite 100, Campbell, CA 95008 or by downloading the materials from the Investor Page of the BioPharmX website, www.BioPharmX.com. BioPharmX security holders are urged to read the proxy statement/prospectus and the supplement before making any voting or investment decision with respect to the proposed merger.
About BioPharmX® Corporation
BioPharmX Corporation (NYSE American: BPMX) is a specialty pharmaceutical company focused on developing prescription products utilizing its proprietary HyantX Topical Delivery System for dermatology indications. To learn more about BioPharmX, visit www.BioPharmX.com.
About Timber Pharmaceuticals LLC
Timber Pharmaceuticals is a privately held biopharmaceutical company focused on the development and commercialization of treatments for orphan dermatologic diseases. The company’s investigational therapies have proven mechanisms-of-action backed by decades of clinical experience and well-established CMC (chemistry, manufacturing and control) and safety profiles. Timber is initially focused on developing non-systemic treatments for rare dermatologic diseases including congenital ichthyosis (CI), tuberous sclerosis complex (TSC), and localized scleroderma. For more information, visit https://www.timberpharma.com/.
Forward-Looking Statements
This press release contains forward-looking statements based upon BioPharmX’s and Timber’s current expectations. This communication contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are identified by terminology such as “may,” “should,” “expects,” “plans,” “anticipates,” “could,” “intends,” “target,” “projects,” “contemplates,” “believes,” “estimates,” “predicts,” “potential” or “continue” or the negative of these terms or other similar words. These statements are only predictions. BioPharmX and Timber have based these forward-looking statements largely on their then-current expectations and projections about future events, as well as the beliefs and assumptions of management. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances that are beyond each of BioPharmX’s and Timber’s control, and actual results could differ materially from those stated or implied in forward-looking statements due to a number of factors, including but not limited to: (i) risks associated with BioPharmX’s ability to obtain the stockholder approval required to consummate the proposed merger transaction and related matters and the timing of the closing of the proposed merger transaction, including the risks that a condition to closing would not be satisfied within the expected timeframe or at all or that the closing of the proposed merger transaction will not occur; (ii) the outcome of any legal proceedings that may be instituted against the parties and others related to the merger agreement; (iii) whether the NYSE American will continue to list the common shares of BioPharmX following the merger, (iv) the occurrence of any event, change or other circumstance or condition that could give rise to the termination of the merger agreement, (v) unanticipated difficulties or expenditures relating to the proposed merger transaction, the response of business partners and competitors to the announcement of the proposed merger transaction, and/or potential difficulties in employee retention as a result of the announcement and pendency of the proposed merger transaction; (vi) whether the combined business of Timber and BioPharmX will be successful, and (vii) those risks detailed in BioPharmX’s most recent Annual Report on Form 10-K for the fiscal year ended January 31, 2020 and subsequent reports filed with the SEC, as well as other documents that may be filed by BioPharmX from time to time with the SEC (including the proxy statement/prospectus and the supplement). Accordingly, you should not rely upon forward-looking statements as predictions of future events. Neither BioPharmX nor Timber can assure you that the events and circumstances reflected in the forward-looking statements will be achieved or occur, and actual results could differ materially from those projected in the forward-looking statements. The forward-looking statements made in this communication relate only to events as of the date on which the statements are made. Except as required by applicable law or regulation, BioPharmX and Timber 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.
For further information, contact:
BioPharmX Corporation
Steven Bosacki
Chief Executive Officer
650-238-9395
sbosacki@biopharmx.com
Timber Pharmaceuticals LLC
John Koconis
Chief Executive Officer
jkoconis@timberpharma.com
PCG Advisory Inc.
Jeff Ramson
646-762-4518
jramson@pcgadvisory.com