Form S-3/A NephroGenex, Inc.

 

As filed with the Securities and Exchange Commission on December 11, 2015

 

Registration No. 333-208263

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

Amendment No. 1 to

 

FORM S-3

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

NEPHROGENEX, INC.

(Exact name of registrant as specified in its charter)

 

 

3200 Beechleaf Court

Suite 900

Raleigh, NC 27604

(609) 986-1780
(Address, including zip code, and telephone number, including area

code, of registrant’s principal executive offices)

 

Pierre Legault
Chief Executive Officer
NephroGenex, Inc.
3200 Beechleaf Court

Suite 900

Raleigh, NC 27604
(609) 986-1780
(Name, address, including zip code, and telephone number, including area

code, of agent for service)

 

Copies to:

 

Joel I. Papernik, Esq.
Kenneth R. Koch, Esq.

Daniel Bagliebter, Esq.

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C.

Chrysler Center, 666 Third Avenue

New York, NY 10017

Tel: (212) 935-3000

 

Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined by the registrant.

 

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):

 

 

 

 

EXPLANATORY NOTE

 

NephroGenex, Inc. is filing this Amendment No. 1 to its registration statement on Form S-3 (File No. 333-208263)  (“Registration Statement”), to refile Exhibit 5.1 to the Registration Statement. Accordingly, this Amendment No. 1 to the Registration Statement only consists of the facing page, this explanatory note, Part II of the Registration Statement, the signature page to the Registration Statement, the Exhibit Index and Exhibit 5.1 filed herewith. Part I of the Registration Statement is unchanged and has therefore been omitted.

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 14. Other Expenses of Issuance and Distribution

 

The following table sets forth an itemization of the various expenses, all of which we will pay, in connection with the issuance and distribution of the securities being registered. All of the amounts shown are estimated except the SEC Registration Fee.

 

SEC Registration Fee		$	2,140.75
Legal Fees and Expenses		6,500.00
Accounting Fees and Expenses		5,000.00
Miscellaneous		9.25
Total		$	13,650.00

 

Item 15. Indemnification of Directors and Officers

 

Our restated certificate of incorporation provides that we shall indemnify, to the fullest extent authorized by the Delaware General Corporation Law, each person who is involved in any litigation or other proceeding because such person is or was a director or officer of NephroGenex, Inc. or is or was serving as an officer or director of another entity at our request, against all expense, loss or liability reasonably incurred or suffered in connection therewith. Our restated certificate of incorporation provides that the right to indemnification includes the right to be paid expenses incurred in defending any proceeding in advance of its final disposition, provided, however, that such advance payment will only be made upon delivery to us of an undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it is ultimately determined that such director is not entitled to indemnification. If we do not pay a proper claim for indemnification in full within 30 days after we receive a written claim for such indemnification, our certificate of incorporation and our bylaws authorize the claimant to bring an action against us and prescribe what constitutes a defense to such action.

 

Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reason to believe his or her conduct was unlawful. In a derivative action, (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.

 

Pursuant to Section 102(b)(7) of the Delaware General Corporation Law, our restated certificate of incorporation eliminates the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:

 

·                                                                  from any breach of the director’s duty of loyalty to us or our stockholders;

 

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·                                                                  from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

 

·                                                                  under Section 174 of the Delaware General Corporation Law; or

 

·                                                                  from any transaction from which the director derived an improper personal benefit.

 

We carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors and officers.

 

In addition, we have entered into indemnification agreements with each of our current directors and executive officers. These agreements require us to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to us and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. We also intend to enter into indemnification agreements with our future directors and executive officers.

 

Item 16. Exhibits

 

The exhibits to this registration statement are listed in the Exhibit Index to this registration statement, which Exhibit Index is hereby incorporated by reference.

 

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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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.

 

(b)     The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

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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 Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Raleigh, State of North Carolina, on December 11, 2015.

 

	NEPHROGENEX, INC.
	By	/s/ Pierre Legault
		Pierre Legault
		President and Chief Executive Officer

 

SIGNATURES AND POWER OF ATTORNEY

 

Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to the Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

 

 

*Pursuant to Power of Attorney
By:	/s/ Pierre Legault
	Pierre Legault

 

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EXHIBIT INDEX

 

Exhibit				Incorporated		Filing		SEC File/Reg.
Number		Description		By Reference		Date		Number
4.1		Form of Common Stock Certificate.		Form S-1 (Exhibit 4.1)		1/10/2014		333-193023
4.2		Form of Warrant		Form 8-K (Exhibit 4.1)		11/6/2015		001-36303
5.1		Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
23.1		Consent of EisnerAmper LLP		Form S-3 (Exhibit 23.1)		11/30/2015		333-208263
23.2		Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in the opinion filed as Exhibit 5.1).
24.1		Powers of Attorney (included on the signature page to the registration statement filed on November 30, 2015).

 

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Exhibit 5.1

 

Chrysler Center 666 Third Avenue New York, NY  10017 212-935-3000 212-983-3115 fax www.mintz.com

 

December 11, 2015

 

NephroGenex, Inc.

3200 Beechleaf Ct., Suite 900

Raleigh, North Carolina 27604

 

Re: NephroGenex, Inc.

 

Ladies and Gentlemen:

 

We have acted as counsel to NephroGenex, Inc., a Delaware corporation (the “Company”), in connection with the preparation of the Registration Statement on Form S-3 (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering by certain selling stockholders of the Company named in the Registration Statement (the “Selling Stockholders”) of a total of 10,245,099 shares of common stock of the Company, par value $0.001 per share (“Common Stock”), consisting of (i) 2,156,863 shares of Common Stock issued to the Selling Stockholders (the “Shares”) under the terms of a Securities Purchase Agreement dated November 3, 2015 (the “Securities Purchase Agreement”), and (ii) up to 8,088,236  shares of common stock that may be issued upon the exercise of warrants held by the Selling Stockholders (the “Warrant Shares”).

 

In such capacity, we have examined the following documents:

 

a)             the Registration Statement;

 

b)             the Restated Certificate of Incorporation and the Restated Bylaws of the Company; and

 

c)              the Securities Purchase Agreement.

 

We have also examined such other documents, records and instruments as we have deemed necessary and appropriate for purposes of this opinion.

 

Our opinion is limited to the General Corporation Law of the State of Delaware and the United States federal laws, and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares or the Warrant Shares under the securities or blue sky laws of any state or any foreign jurisdiction.

 

Based on the foregoing, we are of the opinion that the Shares issued to the Selling Stockholders are validly issued, fully paid and non-assessable and the Warrant Shares to be issued to the Selling Stockholders upon exercise of the warrants, when paid for by the Selling Stockholders and issued by the Company in accordance with the terms of the Securities Purchase Agreement, will be validly issued, fully paid and non-assessable.

 

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

 

BOSTON | WASHINGTON | NEW YORK | STAMFORD | LOS ANGELES | SAN DIEGO | SAN FRANCISCO | LONDON

 

 

In rendering the foregoing opinions, we have assumed (a) the accuracy and truthfulness of all public records of the Company and of all certifications, documents and other proceedings examined by us that have been produced by officials of the Company acting within the scope of their official capacities, without verifying the accuracy or truthfulness of such representations, and (b) the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as copies thereof.

 

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.

 

We understand that you wish to file this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act and to reference the firm’s name under the caption “Legal Matters” in the Registration Statement, and we hereby consent thereto. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 

		Very truly yours,
		/s/ Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
	MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO, P.C.

 

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