As filed with the Securities and Exchange
Commission on May 14, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PLASMATECH
BIOPHARMACEUTICALS, INC.
(Exact name of registrant as specified in
its charter)
| Delaware |
|
83-0221517 |
| (State or other jurisdiction of incorporation or organization) |
|
(IRS Employer Identification Number) |
4848 Lemmon Avenue, Suite 517, Dallas, TX
75219
(214) 905-5100
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
John J. Concannon III, Esq.
Morgan, Lewis & Bockius LLP
One Federal Street
Boston, Massachusetts 02110
(617) 951-8000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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. ¨
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. ¨
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) 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. ¨
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. ¨
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. ¨
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 Securities Exchange Act of 1934.
| Large accelerated filer ¨ |
|
Accelerated filer ¨ |
|
Non-accelerated filer ¨ |
|
Smaller reporting company x |
| |
|
|
|
(Do not check if a smaller reporting company) |
CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be registered | |
Amount to be
Registered(1) | | |
Proposed maximum per
share offering price(2) | | |
Proposed
maximum
aggregate
offering
price(2) | | |
Amount of
registration fee | |
| Common Stock, par value $0.01 per share | |
| 1,925,000 | | |
$ | 7.31 | | |
$ | 14,071,750 | | |
$ | 1,635.14 | |
| (1) | This Registration Statement registers 1,925,000 shares of common stock of Plasmatech Biopharmaceuticals, Inc., of which 675,000
are issuable upon exercise of warrants. This Registration Statement also relates to such additional securities (i) to be offered
or issued in connection with any provision of any securities purported to be registered hereby to be offered pursuant to terms
which provide for a change in the amount of securities being offered or issued to prevent dilution resulting from stock splits,
stock dividends, or similar transactions and (ii) of the same class as the securities covered by this Registration Statement issued
or issuable prior to completion of the distribution of the securities covered by this Registration Statement as a result of a split
of, or a stock dividend on, the registered securities. |
| (2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act.
The price per share and aggregate offering price are based on the average of the high and low sales prices of the common stock
on May 8, 2015, as reported on The NASDAQ Capital Market. |
We hereby amend this registration statement
(the “Registration Statement”) on such date or dates as may be necessary to delay its effective date until we shall
file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 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 contained in this prospectus is not complete and may be changed. We may not 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 we are not soliciting offers to buy these securities in any jurisdiction where such offer or sale is not permitted.
Subject to Completion, Dated May 14, 2015
PROSPECTUS
PLASMATECH
BIOPHARMACEUTICALS, INC.
1,925,000 Shares of Common Stock
This prospectus relates to the possible resale,
from time to time, by the selling stockholders identified in this prospectus of up to 1,925,000 shares of our common stock, par
value $0.01 per share, initially issued in a private placement, of which 675,000 shares are issuable upon the exercise of warrants.
The selling stockholders may offer the
shares from time to time as each selling stockholder may determine through public or private transactions or through other means
described in the section entitled “Plan of Distribution” or a supplement to this prospectus. Each selling stockholder
may also sell shares under Rule 144 under the Securities Act of 1933, as amended, if available, rather than under this prospectus.
The registration of these shares does
not necessarily mean that any holders will sell any of their shares or exercise their warrants. We are not offering for sale any
shares of our common stock pursuant to this prospectus. We will not receive any cash proceeds from the sale of any of our shares
of common stock by the selling stockholders, but we have agreed to pay certain registration expenses.
Our common stock is listed on The NASDAQ Capital
Market under the symbol “PTBI.” On May 13, 2015, the closing price of our common stock was $8.60 per share.
The mailing address of our principal executive
offices is 4848 Lemmon Avenue, Suite 517, Dallas, Texas 75219. Our telephone number is (214) 905-5100.
Investing in our securities involves certain
risks. Before investing, you should refer to the risk factors beginning on page 8 of this prospectus, included in our periodic
reports, in prospectus supplements and in other information filed by us with the Securities and Exchange Commission.
This prospectus may not be used to offer
or sell any securities unless accompanied by a prospectus supplement.
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 ,
2015.
TABLE OF CONTENTS
Prospectus
ABOUT THIS PROSPECTUS
We have not authorized any dealer, agent
or other person to give any information or to make any representation other than those contained or incorporated by reference in
this prospectus. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus.
This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered
securities to which they relate, nor do this prospectus and the accompanying prospectus supplement, if any, constitute an offer
to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus is accurate
on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference
is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus is delivered
or securities are sold on a later date.
References in this prospectus to the terms
“the Company,” “PlasmaTech,” “we,” “our” and “us” or other similar
terms mean PlasmaTech Biopharmaceuticals, Inc., unless we state otherwise or the context indicates otherwise.
THE COMPANY
We are an emerging biopharmaceutical company
focused on developing a range of pharmaceutical products primarily based upon our nanopolymer chemistry technologies, and salt
diafiltration process (“SDF”) technology recently licensed from Plasma Technologies LLC (“Licensor”). We
currently have one marketed product licensed in the U.S., Europe, China, Australia, New Zealand and Korea. We also have additional
products and platform technologies in various stages of development and are seeking partners to continue development and/or to
license the technology.
We were incorporated in Wyoming in 1974 as Chemex
Corporation, and in 1983 we changed our name to Chemex Pharmaceuticals, Inc. We changed our state of incorporation from Wyoming
to Delaware on June 30, 1989. In 1996 we merged with Access Pharmaceuticals, Inc., a private Texas corporation, and changed our
name to Access Pharmaceuticals, Inc. On October 24, 2014 we changed
our name from Access Pharmaceuticals, Inc. to PlasmaTech Biopharmaceuticals, Inc. Our principal executive office is located at
4848 Lemmon Avenue, Suite 517, Dallas, Texas 75219. Our telephone number is (214) 905-5100. Our website address is www.plasmatechbio.com.
We do not incorporate by reference into this prospectus the information on our website, and you should not consider it as part
of this prospectus.
Recent Developments
On
April 7, 2015 we announced we had appointed Charlie Strange, M.D. to our Scientific Advisory Board (SAB). Dr. Strange is a highly
regarded thought leader in the Alpha-1 community, and has extensive clinical experience in designing and managing Alpha-1 clinical
studies. We believe his advice and counsel will help accelerate development and approval of our proprietary SDF Alpha™ biologic
drug.
On April 23, 2015 we closed a $7 million private placement of common
stock consisting of 2,333,333 shares of common stock, at a price of $3.00 per share.
On May 11, 2015 we closed a $10 million private placement of common
stock consisting of 1,250,000 shares of common stock, at a price of $8.00 per share, and warrants to purchase 625,000 shares of
common stock.
On May 5, 2015, the Company, Plasmatech Merger Sub Inc. (“Merger
Sub”), a wholly owned subsidiary of the Company, Abeona Therapeutics LLC, an Ohio limited liability company (“Abeona”)
and Paul A. Hawkins, an individual, solely in his capacity as Member Representative (“Member Representative”) entered
into an Agreement and Plan of Merger (the “Merger Agreement”). Pursuant to the terms and subject to the conditions
set forth in the Merger Agreement, Merger Sub will merge with and into Abeona, with Abeona continuing as the surviving corporation
and becoming a wholly owned subsidiary of PlasmaTech (the “Merger”). The Board of Directors of PlasmaTech and Managers
of Abeona have unanimously approved the transaction.
In connection with the Merger, the PlasmaTech will issue to Abeona
members a total of 3,979,761 common shares upon closing of the transaction, and up to an additional $9 million in performance milestones,
in common stock or cash, at the Company’s option. The completion of the Merger is subject to customary closing conditions.
On May 8, 2015, holders of warrants to purchase an aggregate of
665,950 shares of our common stock issued in our underwritten public offering, which closed on December 24, 201, exercised such
warrants at a per share purchase price of $5.00. Proceeds from such exercise to us was $3,329,750 in cash.
Marketed
Product
MuGard®
is our marketed product for the management of oral mucositis, a frequent side-effect of cancer therapy for which there is no other
established treatment. The market for mucositis treatment is estimated to be in excess of $1.0 billion worldwide. MuGard, a proprietary
nanopolymer formulation, has received marketing clearance in the U.S. from the FDA. We launched MuGard in the U.S. in 2010.
Recent MuGard Developments
On August 5, 2010, we entered into an exclusive license with RHEI Pharmaceuticals, N.V. (“RHEI”)
related to the commercialization of MuGard in China and other Southeast Asian countries. Our China partners have received an acceptance
letter from the State Food and Drug Administration of the People’s Republic of China, which provides marketing approval in
China. MuGard has been manufactured in the U.S. and shipped to China for sale. RHEI has rights to sub-license MuGard sales in some
Southeast Asia countries.
On June 6, 2013 we entered into an exclusive license agreement with
AMAG Pharmaceuticals, Inc. (“AMAG”), related to the commercialization of MuGard in the U.S. and its territories. Under
the terms of the licensing agreement we received an upfront licensing fee of $3.3 million and will receive a tiered, double-digit
royalty on net sales of MuGard in the licensed territory. We receive quarterly royalty payments from AMAG.
On March 11, 2014, we announced we had entered into an exclusive license agreement with Hanmi Pharmaceutical
Co. Ltd. (“Hanmi”) related to MuGard commercialization in South Korea. Under the terms of the agreement, we received
an upfront licensing fee and will receive double digit royalties on sales
of MuGard in the licensed territory.
On July 8, 2014, we announced we received notification from the
Hong Kong Patent Office that a patent for MuGard has been granted.
On August 7, 2014, we entered into an exclusive license agreement
with Norgine B.V. (“Norgine”), a leading independent European specialty pharmaceutical company, for the commercialization
of MuGard in Europe. Under the terms of the license agreement, we could receive up to $10 million in milestone payments and an
escalating double digit royalty on the net sales of the oral mucositis product, MuGard, in the licensed territories. Norgine will
develop, manufacture, and commercialize MuGard in the European Union, Switzerland, Norway, Iceland and Lichtenstein. Norgine anticipates
launching MuGard in 2015.
On September 12, 2014, we announced we had received notification
from the European Patent Office that an additional European patent for MuGard had been granted. The patent (EP1997478) protects
a wide range of liquid formulations for the prevention and treatment of mucosal diseases and disorders.
On October 27, 2014, we entered into an exclusive license agreement
with Norgine for the commercialization of MuGard in Australia and New Zealand. The terms of the agreement are congruent to our
recent license with Norgine for MuGard in Europe. Norgine intends to develop, manufacture and commercialize MuGard in the new territories.
On March 31, 2015, we announced that Hanmi has received marketing approval in Korea from the country’s
Ministry of Food and Drug Safety and the Korea Testing & Research Institute for MuGard. Hanmi intends to market MuGard in Korea
under the trade name Mucogard.
We are actively seeking partners to license MuGard in other territories.
Product
Candidates
| • | ProctiGardTM received 510(K) marketing clearance from the FDA on July 22, 2014 for the treatment of symptomatic
management of rectal mucositis. ProctiGard is our product for the treatment of radiation proctitis, a frequent side effect of radiation
treatment to the pelvic region. Radiation proctitis, or RP, is the inflammation and damage to the lower portion of the colon after
exposure to x-rays or ionizing radiation as part of radiation therapy. RP is most common after treatments for cancer, such as cervical,
colon and prostate cancer. RP can be acute, occurring within weeks of initiation of therapy, or can occur months or years after
treatment. We intend to commercialize ProctiGard in a manner similar to the commercialization of MuGard, which may include confirmatory
clinical trials, with the objective of commercialization in collaboration with marketing partners globally. |
| • | We are also developing additional products using our proprietary mucoadhesive hydrogel technology
as a mucoprotectant and/or delivery vehicle, as well as our vitamin B-12 mediated delivery technology. |
| Compound |
|
Originator |
|
Technology |
|
Indication |
|
Clinical Stage |
| MuGard® |
|
PlasmaTech |
|
Mucoadhesive liquid |
|
Mucositis |
|
— Launched in U.S.
— Licensed to AMAG: U.S. rights
— Licensed to Norgine: European Union rights
— Licensed to RHEI: China rights and other SE Asia countries
— Licensed to Hanmi: South Korea rights
— Licensed to Norgine: Australia & New Zealand rights |
| |
|
|
|
|
|
|
|
|
| ProctiGardTM |
|
PlasmaTech |
|
Mucoadhesive hydrogel technology |
|
Radiation proctitis |
|
FDA clearance 7/22/14 |
| |
|
|
|
|
|
|
|
|
| Alpha-1 Protease Inhibitor (A1PI) |
|
Licensor |
|
Proprietary biological processing |
|
Various |
|
Process validation |
| |
|
|
|
|
|
|
|
|
| Intravenous immune globulin (IVIG) |
|
Licensor |
|
Proprietary biological processing |
|
Various |
|
Process validation |
Drug Development Strategy
We have a rich
potential pipeline of products and product candidates ranging from preclinical development candidates to one approved product.
To maximize return on this portfolio, we plan to develop in-house or with collaborators the following products and technologies:
MuGard, ProctiGard and mucoadhesive hydrogel technology.
SDF Licensed Technology
On September
22, 2014, we entered into an exclusive, worldwide licensing agreement with Licensor to obtain rights to utilize and to sub-license
to other pharmaceutical firms its patented methods for the extraction of therapeutic biologics from human plasma. Plasma biologics
are bio-pharmaceutical proteins extracted, purified, and formulated from human blood plasma by the use of biotechnological processing
techniques including precipitation, diafiltration, affinity chromatography, and ion-exchange chromatography. Because plasma biologics
are biosimilar, they are less likely than recombinant or transgenic proteins to cause toxic or other adverse reactions, or cause
adverse immunological responses such as the stimulation of inhibitors in recipients.
Under the terms of the licensing agreement,
as amended on January 23, 2015, we paid a license fee of $1 million in cash, will pay $4 million in cash or 1,096,151 shares of
our common stock in 2017, a regulatory approval milestone payment of 513,375 shares of our common stock upon the first FDA regulatory
approval of a drug derived from the Licensor’s proprietary SDF process, and a tiered royalty on annual net sales of plasma
fractions produced with Licensor’s proprietary SDF process.
Licensor was
founded to develop superior high-yield technology to extract a wide range of therapeutically useful proteins from human blood plasma.
We believe that Licensor’s proprietary SDF process is expected to significantly enhance yields of key value blood proteins,
including alpha-1 protease inhibitor (“A1PI”), expanding market
opportunities, while greatly enhancing margins. We obtained rights to utilize and sub-license to other pharmaceutical firms the
recently patented improved methods for the extraction of therapeutic biologics from human plasma. We believe that Licensor’s
lead product, A1PI offers a low-risk, high revenue, short time-to-market respiratory product for treatment of inherited COPD (pulmonary
emphysema), among other genetic A1PI deficiencies. Additionally, the ability to extract several additional therapeutically useful
and important proteins, due to the process being less destructive than historical fractionation processes, may enable us to seek
new therapeutic applications and address high-value-added orphan indications.
RISK FACTORS
An investment in our securities involves risks.
We urge you to consider carefully the risks described in the documents incorporated by reference in this prospectus before making
an investment decision, including those risks identified under “Item IA. Risk Factors” in our Annual Report on Form 10-K
for the year ended December 31, 2014, filed with the Securities and Exchange Commission on March 31, 2015, which report is
incorporated by reference in this prospectus, as such information may be amended, supplemented or superseded from time to time
by other reports that we subsequently file with the Securities and Exchange Commission.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and the other documents we
have filed with the SEC that are incorporated herein by reference contain forward-looking statements that involve substantial risks
and uncertainties. All statements, other than statements of historical facts, regarding our strategy, future operations, future
financial position, future revenues, projected costs, prospects, plans, objectives of management or other financial items are forward-looking
statements. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,”
“may,” “plan,” “predict,” “project,” “will,” “would” and
similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these
identifying words.
We may not actually achieve the plans, intentions
or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements.
Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking statements
we make. We have included important factors in the cautionary statements included in this prospectus, particularly as set forth
and incorporated by reference in the “Risk Factors” section above, that we believe could cause actual results or events
to differ materially from the forward-looking statements that we make. Our forward-looking statements do not reflect the potential
impact of any future acquisitions, mergers, dispositions, joint ventures, collaborations or investments we may make.
You should read this prospectus and the documents
that we incorporate by reference in this prospectus completely and with the understanding that our actual future results may be
materially different from what we expect. We do not assume any obligation to update any forward-looking statements, except
as otherwise required by law. We advise you, however, to consult any further disclosures we make on related subjects in our future
annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K we file with or furnish
to the SEC.
USE OF PROCEEDS
We will not receive any cash proceeds from
the sale of shares of our common stock by the selling stockholders pursuant to this prospectus. The selling stockholders will bear
any underwriting commissions and discounts attributable to their sale of shares of our common stock.
SELLING STOCKHOLDERS
As of the date of this prospectus, the selling
stockholders collectively hold 1,250,000 shares of our Common Stock and warrants to purchase 675,000 of our shares of Common Stock.
The warrants were distributed to the selling stockholders in connection with the private placement, which closed on May 11, 2015.
Pursuant to a registration rights agreement entered into among the Company and the selling stockholders, we are registering the
shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except for
the transactions contemplated by the underlying private placement, the selling stockholders have not had any material relationship
with us within the past three years. H.C. Wainwright & Co. acted as the exclusive placement agent for the transaction.
The table below describes the selling stockholders’
beneficial ownership of our common stock (i) as of the date of this prospectus and (ii) assuming the selling stockholders have
exercised the warrants to purchase shares of our common stock and resold such shares of common stock pursuant to this prospectus.
The selling stockholders may sell some, all or none of its shares in this offering.
| | |
Beneficial Ownership Prior
to this Offering (1) | |
Beneficial Ownership After
to this Offering (1)(3) | |
| Name and Address of Selling Stockholder | |
Number of Shares
of Common
Stock (2) | | |
Percentage of
Common Stock | |
Number of Shares
of Common
Stock (2) | | |
Percentage of
Common Stock | |
| | |
| | |
| |
| | |
| |
| Sabby Volatility Warrant Master Fund Ltd (4)
(5) | |
| 825,000 | | |
* | |
| — | | |
| — | |
| | |
| | | |
| |
| | | |
| | |
| Sabby Healthcare Master Fund Ltd (4) (5) | |
| 1,050,000 | | |
* | |
| — | | |
| — | |
| | |
| | | |
| |
| | | |
| | |
| Michael Vasinkevich (6) | |
| 17,250 | | |
* | |
| — | | |
| — | |
| | |
| | | |
| |
| | | |
| | |
| Noam Rubinstein (6) | |
| 15,750 | | |
* | |
| — | | |
| — | |
| | |
| | | |
| |
| | | |
| | |
| H. C. Wainwright & Co., LLC (6) | |
| 15,000 | | |
* | |
| — | | |
| — | |
| | |
| | | |
| |
| | | |
| | |
| Mark Viklund (6) | |
| 1,500 | | |
* | |
| — | | |
| — | |
| | |
| | | |
| |
| | | |
| | |
| Charles Worthman (6) | |
| 500 | | |
* | |
| — | | |
| — | |
| (1) | Beneficial ownership is determined in accordance with Rule 13d-3(d) promulgated by the SEC under the Securities and Exchange
Act of 1934, as amended, or the Exchange Act. Unless otherwise noted, each person or group identified, possesses sole voting and
investment power with respect to the shares. In calculating the number of shares beneficially owned by each selling stockholder
prior to and after this offering, we have based our calculations on 24,268,085 shares of common stock outstanding as of May 14,
2015. |
| (2) | Assumes the exercise of underlying warrants. |
| (3) | Assumes exercise of underlying warrants and the sale of all shares of common stock by the selling stockholders pursuant to
this prospectus. |
| | (4) | Sabby Healthcare Master Fund, Ltd. (“SHMF”) and
Sabby Volatility Warrant Master Fund, Ltd. (“SVWMF”) have indicated to us that Hal Mintz has voting and investment
power over the shares held by each fund. SHMF and SVWMF have also indicated to us that Sabby Management, LLC serves as the investment
manager of SHMF and SVWMF, that Hal Mintz is the manager of Sabby Management, LLC and that each of Sabby Management, LLC and Hal
Mintz disclaim beneficial ownership over these shares except to the extent of any pecuniary interest therein.
|
| | (5) | The address for each of the Sabby funds is c/o Sabby Management, LLC, 10 Mountainview Road, Ste 205, Upper Saddle River,
NJ 07458. |
| | (6) | The address of such selling stockholder is c/o H.C. Wainwright & Co., LLC, 430 Park Avenue, New York, NY 10022. |
PLAN OF DISTRIBUTION
Each Selling Stockholder (the “Selling
Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time,
sell any or all of their securities covered hereby on the The NASDAQ Capital Market or any other stock exchange, market or trading
facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling
Stockholder may use any one or more of the following methods when selling securities:
| · | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| · | block trades in which the broker-dealer will attempt to sell the securities 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; |
| · | settlement of short sales; |
| · | in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities
at a stipulated price per security; |
| · | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| · | a combination of any such methods of sale; or |
| · | any other method permitted pursuant to applicable law. |
The Selling Stockholders may also sell securities
under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”), if available, rather than under
this prospectus.
Broker-dealers engaged by the Selling Stockholders
may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling
Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated,
but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary
brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction a markup or markdown in compliance
with FINRA IM-2440.
In connection with the sale of the securities
or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions,
which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling Stockholders
may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities
to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions
with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such
broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other
financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and any broker-dealers
or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities
Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the securities.
The Company is required to pay certain fees
and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective
until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and without
regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance
with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of
the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect.
The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable state securities
laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and
is complied with.
Under applicable rules and regulations under
the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making
activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement
of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the common stock
by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders and
have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION
BY REFERENCE
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may read and copy information filed by us with the SEC at the SEC’s
public reference section, 100 F Street, N.E., Washington, D.C. 20549. Information regarding the operation of the public reference
section can be obtained by calling 1-800-SEC-0330. The SEC also maintains an Internet site at http://www.sec.gov that contains
reports, statements and other information about issuers, such as us, who file electronically with the SEC. We maintain an Internet
site at http://www.plasmatechbio.com. However, the information on our Internet site is not incorporated by reference in this prospectus
and any prospectus supplement and you should not consider it a part of this prospectus or any accompanying prospectus supplement.
The SEC allows us to “incorporate by
reference” into this prospectus the information in other documents that we file with it. This means that we can disclose
important information to you by referring you to those documents. The information incorporated by reference is considered to be
a part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede
information contained in documents filed earlier with the SEC or contained in this prospectus. We incorporate by reference in this
prospectus the documents listed below and any future filings that we may make with the SEC under Sections 13(a), 13(c), 14, or
15(d) of the Exchange Act prior to the termination of the offering under this prospectus; provided, however, that we are not incorporating,
in each case, any documents or information deemed to have been furnished and not filed in accordance with SEC rules:
| • | Our Annual Report on Form 10-K for the year ended December 31, 2014 (filed on March 31, 2015); |
| • | Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2015 (filed on May 14, 2015); |
| • | Our Current Reports on Form 8-K filed on January 5, 2015, January 6, 2015, February 9, 2015, March 5,
2015, April 7, 2015, April 24, 2015, May 6, 2015, May 7, 2015, May 8, 2015, May 11, 2015, and May 12, 2015, and on Form 8-K/A filed
on April 27, 2015 and May 13, 2015; |
| • | Definitive Proxy Statement on Schedule 14A relating to the Company’s 2015 Annual Meeting of Shareholders (filed on April
7, 2015); and |
| • | the description of our common stock, par value $0.01 per share
contained in our Registration Statement on Form 8-A, dated and filed with the SEC on November 4, 2014, and any amendment or
report filed with the SEC for the purpose of updating the description. |
All reports and other documents we subsequently
file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering, including
all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness
of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated
by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You may obtain a copy of any or all of the
documents referred to above which may have been or may be incorporated by reference into this prospectus, except for exhibits to
those documents (unless the exhibits are specifically incorporated by reference into those documents) at no cost to you by writing
or telephoning us at the following address: Investor Relations, PlasmaTech Biopharmaceuticals, 4848 Lemmon Avenue, Suite 517, Dallas,
Texas 75219, telephone (214) 905-5100.
LEGAL MATTERS
The validity of the securities being offered
hereby will be passed upon by Morgan, Lewis & Bockius LLP. One or more partners or other employees of Morgan, Lewis & Bockius
LLP may beneficially own shares of our common stock.
EXPERTS
The consolidated financial statements incorporated by reference from the Company’s Annual Report
on Form 10-K for the fiscal year ended December 31, 2014, have been audited by Whitley Penn LLP, an independent registered public
accounting firm, as stated in their report, which is incorporated by reference
in this prospectus. Such financial statements have been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate (except in the
case of the registration fee) of the amount of fees and expenses to be incurred in connection with the issuance and distribution
of the offered securities registered hereby, other than underwriting discounts and commission, if any, incurred in connection with
the sale of the offered securities. All such amounts will be borne by PlasmaTech Biopharmaceuticals, Inc.
| SEC Registration Fee | |
$ | 1,635 | |
| Accounting Fees and Expenses | |
$ | 25,000 | |
| Legal Fees and Expenses | |
$ | 25,000 | |
| Miscellaneous Fees and Expenses | |
$ | 1,365 | |
| Total: | |
$ | 53,000 | |
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation
law empowers a Delaware corporation to indemnify its officers and directors and certain other persons to the extent and under the
circumstances set forth therein.
Our Certificate of Incorporation, as amended,
and By-laws, as amended, provide for indemnification of our officers and directors and certain other persons against liabilities
and expenses incurred by any of them in certain stated proceedings and under certain stated conditions.
The above discussion of the Registrant’s
Certificate of Incorporation, as amended, By-laws, as amended, and Section 145 of the Delaware General Corporation Law is not intended
to be exhaustive and is qualified in its entirety by such Certificate of Incorporation, By-Laws and statute.
The Company maintains
a general liability insurance policy that covers certain liabilities of the Company’s directors and officers arising out
of claims based on acts or omissions in their capacities as directors or officers.
Item 16. Exhibits
INDEX TO EXHIBITS
| 2.1 |
|
Amended and Restated Agreement of Merger and Plan of Reorganization between the Registrant and Chemex Pharmaceuticals, Inc., dated as of October 31, 1995 (Incorporated by reference to Exhibit A of our Registration Statement on Form S-4 dated December 20, 1995, Commission File No. 33-64031) |
| |
|
|
| 2.2 |
|
Agreement and Plan of Merger, by and among the Registrant, Somanta Acquisition Corporation, Somanta Pharmaceuticals, Inc., Somanta Incorporated and Somanta Limited, dated April 19, 2007 (Incorporated by reference to Exhibit 2.1 to our Form 8-K dated April 18, 2007) |
| |
|
|
| 2.3 |
|
Agreement and Plan of Merger, by and among the Registrant, MACM Acquisition Corporation and MacroChem Corporation, dated July 9, 2008 (Incorporated by reference to Exhibit 2.3 of our Form 10-Q for the quarter ended June 30, 2008) |
| |
|
|
| 3.1 |
|
Certificate of Incorporation (Incorporated by reference to Exhibit 3(a) of our Form 8-K dated July 12, 1989, Commission File Number 9-9134) |
| |
|
|
| 3.2 |
|
Certificate of Amendment of Certificate of Incorporation filed August 13, 1992 (Incorporated by reference to Exhibit 3.3 of our Form 10-K for year ended December 31, 1995) |
| |
|
|
| 3.3 |
|
Certificate of Merger filed January 25, 1996 (Incorporated by reference to Exhibit E of our Registration Statement on Form S-4 dated December 20, 1995, Commission File No. 33-64031) |
| 3.4 |
|
Certificate of Amendment of Certificate of Incorporation filed January 25, 1996 (Incorporated by reference to Exhibit E of our Registration Statement on Form S-4 dated December 20, 1995, Commission File No. 33-64031) |
| |
|
|
| 3.5 |
|
Certificate of Amendment of Certificate of Incorporation filed July 18, 1996 (Incorporated by reference to Exhibit 3.7 of our Form 10-K for the year ended December 31, 1996) |
| |
|
|
| 3.6 |
|
Certificate of Amendment of Certificate of Incorporation filed June 18, 1998. (Incorporated by reference to Exhibit 3.8 of our Form 10-Q for the quarter ended June 30, 1998) |
| |
|
|
| 3.7 |
|
Certificate of Amendment of Certificate of Incorporation filed July 31, 2000 (Incorporated by reference to Exhibit 3.8 of our Form 10-Q for the quarter ended March 31, 2001) |
| |
|
|
| 3.8 |
|
Certificate of Designations of Series A Junior Participating Preferred Stock filed November 7, 2001 (Incorporated by reference to Exhibit 4.1.H of our Registration Statement on Form S-8 dated December 14, 2001, Commission File No. 333-75136) |
| |
|
|
| 3.9 |
|
Amended and Restated Bylaws (Incorporated by reference to Exhibit 2.1 of our Form 10-Q for the quarter ended June 30, 1996) |
| |
|
|
| 3.10 |
|
Certificate of Designation, Rights and Preferences of Series A Cumulative Convertible Preferred Stock filed November 9, 2007 (Incorporated by reference to Exhibit 3.10 to our Form SB-2 filed on December 10, 2007) |
| |
|
|
| 3.11 |
|
Certificate of Amendment to Certificate of Designations, Rights and Preferences of Series A Cumulative Convertible Preferred Stock filed June 11, 2008 (Incorporated by reference to Exhibit 3.11 of our Form 10-Q for the quarter ended June 30, 2008) |
| |
|
|
| 3.12 |
|
Certificate of Designations, Rights and Preferences of Series B Cumulative Convertible Preferred Stock filed October 26, 2012 (Incorporated by reference to Exhibit 10.3 of our Form 8-K filed October 26, 2012) |
| |
|
|
| 3.13 |
|
Certificate of Amendment of Certificate of Incorporation filed July 1, 2013 increasing the aggregate number of shares of Common Stock which we have authority to issue to Two Hundred Million (200,000,000) shares with a par value of one cent ($0.01) per share (Incorporated by reference to Exhibit 3.3 of our Form 10-Q for the quarter ended June 30, 2014). |
| |
|
|
| 3.14 |
|
Certificate of Amendment of Certificate of Incorporation filed October 23, 2014 (Incorporated by reference to Exhibit 3.14 of our Form 8-K filed October 23, 2014) |
| |
|
|
| 3.15 |
|
Certificate of Amendment to Certificate of Designations, Rights and Preferences of Series A Cumulative Convertible Preferred Stock (Incorporated by reference to Exhibit 3.15 of our Form 8-K filed on October 23, 2014) |
| |
|
|
| 3.16 |
|
Amendment to Bylaws (Incorporated by reference to Exhibit 3.1 of our Form 8-K filed January 1, 2015) |
| |
|
|
| 3.17 |
|
Amendment to Bylaws (Incorporated by reference to Exhibit 3.1 of our Form 8-K filed March 2, 2015) |
| |
|
|
| 4.1 |
|
Form of stock certificate evidencing shares of common stock, $0.01 par value per share, of the Company (filed herewith) |
| |
|
|
| 4.2 |
|
Form of Warrant dated February 16, 2006, issued by the Company to certain Purchasers (Incorporated by reference to Exhibit 10.31 of the Company’s Form 10-Q for the quarter ended March 31, 2006) |
| |
|
|
| 4.3 |
|
Form of Warrant dated October 24, 2006, issued by the Company to certain Purchasers (Incorporated by reference to Exhibit 10.27 of the Company’s Form 10-KSB filed on April 2, 2007) |
| |
|
|
| 4.4 |
|
Form of Warrant December 6, 2006, issued by the Company to certain Purchasers (Incorporated by reference to Exhibit 10.32 of the Company’s Form 10-KSB filed on April 2, 2007) |
| |
|
|
| 4.5 |
|
Board Designation Agreement dated November 15, 2007, between the Company and SCO Capital Partners LLC (Incorporated by reference to Exhibit 10.26 of the Company’s Form S-1 filed on March 11, 2008) |
| 4.6 |
|
Form of Securities Purchase Agreement (Incorporated by reference to Exhibit 10.29 of the Company’s Form S-1 filed on January 15, 2010) |
| |
|
|
| 4.7 |
|
Form of Warrant (Incorporated by reference to Exhibit 10.30 of the Company’s Form S-1 filed on January 15, 2010) |
| |
|
|
| 4.8 |
|
Form of Securities Purchase Agreement dated as of December 10, 2010 by and among the Company and the Purchasers named therein (Incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K filed on December 14, 2010) |
| |
|
|
| 4.9 |
|
Form of Common Stock Warrant issued by the Company (Incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K filed on December 14, 2010) |
| |
|
|
| 4.10 |
|
Form of Securities Purchase Agreement dated as of November 1, 2011 by and among the Company and the Purchasers named therein (Incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K filed on November 10, 2011) |
| |
|
|
| 4.11 |
|
Form of Common Stock Warrant (Five Year Warrant) issued by the Company (Incorporated by reference to Exhibit 10.3 of the Company’s Form 8-K filed on November 10, 2011) |
| |
|
|
| 4.12 |
|
Amendment No.1 to Warrant Agreement dated February 10, 2012 by and among the Company and warrant holders including certain affiliates named therein extending the term of certain warrants until 2015 (Incorporated by reference to Exhibit 99.1 of the Company’s Form 8-K filed on February 10, 2012) |
| |
|
|
| 4.13 |
|
Preferred Stock and Warrant Purchase Agreement dated October 25, 2012 by and among the Company and the Purchasers named therein (Incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K filed October 26, 2012) |
| |
|
|
| 4.14 |
|
Investor Rights Agreement dated October 25, 2012, between the Company and certain Purchasers (Incorporated by reference to Exhibit 10.2 of the Company’s Form 8-K filed on October 26, 2012) |
| |
|
|
| 4.15 |
|
Form of Common Stock Warrant issued by the Company (Incorporated by reference to Exhibit 10.3 of the Company’s Form 8-K filed on October 26, 2012) |
| |
|
|
| 4.16 |
|
Unsecured Grid Note $250,000, dated September 10, 2014, by and between the Company and SCO Capital Partners LLC (Incorporated by reference to Exhibit 10.33 of the Company’s Form 8-K filed October 23, 2014) |
| |
|
|
| 4.17 |
|
Unsecured Grid Note $250,000, dated December 1, 2014, by and between us and SCO Capital Partners LLC (Incorporated by reference to Exhibit 10.34 of our Form 8-K filed December 3, 2014) |
| |
|
|
| 4.18 |
|
Form of Warrant Agreement between the Company and American Stock Transfer & Trust Company (Incorporated by reference to Exhibit 4.1 of the Company’s Pre-effective Amendment No. 1 to Form S-1 filed October 24, 2014) |
| |
|
|
| 5.1 |
|
Opinion of Morgan, Lewis & Bockius LLP (filed herewith) |
| |
|
|
| 23.1 |
|
Consent of Whitley Penn LLP (filed herewith) |
| |
|
|
| 23.2 |
|
Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1) |
| |
|
|
| 24 |
|
Powers of Attorney (included on signature page) |
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.
(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.
(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 (i),
(ii) and (iii) do not apply if the registration statement is on Form S-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 Exchange Act 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, 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.
(5) That, for the purpose of determining liability
under the Securities Act to any purchaser:
(i) 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
(ii) 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 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 the 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;
and
(6) That, for the purpose of determining
liability of the registrant under the Securities Act 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, each filing of the registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act 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.
(h) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to
the provisions described under Item 15 above, 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 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, PlasmaTech Biopharmaceuticals, Inc., 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 Dallas, State of Texas, on this 14th day of May, 2015.
| |
PLASMATECH BIOPHARMACEUTICALS, INC. |
| |
|
|
| |
By: |
/s/ Steven H. Rouhandeh |
| |
|
Steven H. Rouhandeh |
| |
|
Executive Chairman |
| |
|
|
| |
By: |
/s/ Stephen B. Thompson |
| |
|
Stephen B. Thompson |
| |
|
Vice President Finance |
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Steven H.
Rouhandeh and Jeffrey B. Davis, and each of them,
as such person’s true and lawful attorneys-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) and additions to this Registration Statement on Form S-3 and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully
to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or such person’s substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities indicated as of the 14th day of May, 2015.
| Signature |
|
Capacity |
|
Date |
| |
|
Executive Chairman and
|
|
|
| /s/ Steven H. Rouhandeh |
|
Chairman of the Board |
|
May 14, 2015 |
| Steven H. Rouhandeh |
|
(principal executive officer) |
|
|
| |
|
|
|
|
| /s/ Stephen B. Thompson |
|
Vice President Finance |
|
May 14, 2015 |
| Stephen B. Thompson |
|
(principal financial and accounting officer) |
|
|
| |
|
|
|
|
| /s/ Jeffrey B. Davis |
|
Director |
|
May 14, 2015 |
| Jeffrey B. Davis |
|
|
|
|
| |
|
|
|
|
| /s/ Mark J. Ahn |
|
Director |
|
May 14, 2015 |
| Mark J. Ahn |
|
|
|
|
| |
|
|
|
|
| /s/ Mark J. Alvino |
|
Director |
|
May 14, 2015 |
| Mark J. Alvino |
|
|
|
|
| |
|
|
|
|
| /s/ Stephen B. Howell |
|
Director |
|
May 14, 2015 |
| Stephen B. Howell |
|
|
|
|
| |
|
|
|
|
| /s/ Todd Wider |
|
Director |
|
May 14, 2015 |
| Todd Wider |
|
|
|
|
EXHIBITS
| 2.1 |
|
Amended and Restated Agreement of Merger and Plan of Reorganization between the Registrant and Chemex Pharmaceuticals, Inc., dated as of October 31, 1995 (Incorporated by reference to Exhibit A of our Registration Statement on Form S-4 dated December 20, 1995, Commission File No. 33-64031) |
| |
|
|
| 2.2 |
|
Agreement and Plan of Merger, by and among the Registrant, Somanta Acquisition Corporation, Somanta Pharmaceuticals, Inc., Somanta Incorporated and Somanta Limited, dated April 19, 2007 (Incorporated by reference to Exhibit 2.1 to our Form 8-K dated April 18, 2007) |
| |
|
|
| 2.3 |
|
Agreement and Plan of Merger, by and among the Registrant, MACM Acquisition Corporation and MacroChem Corporation, dated July 9, 2008 (Incorporated by reference to Exhibit 2.3 of our Form 10-Q for the quarter ended June 30, 2008) |
| |
|
|
| 3.1 |
|
Certificate of Incorporation (Incorporated by reference to Exhibit 3(a) of our Form 8-K dated July 12, 1989, Commission File Number 9-9134) |
| |
|
|
| 3.2 |
|
Certificate of Amendment of Certificate of Incorporation filed August 13, 1992 (Incorporated by reference to Exhibit 3.3 of our Form 10-K for year ended December 31, 1995) |
| |
|
|
| 3.3 |
|
Certificate of Merger filed January 25, 1996 (Incorporated by reference to Exhibit E of our Registration Statement on Form S-4 dated December 20, 1995, Commission File No. 33-64031) |
| |
|
|
| 3.4 |
|
Certificate of Amendment of Certificate of Incorporation filed January 25, 1996 (Incorporated by reference to Exhibit E of our Registration Statement on Form S-4 dated December 20, 1995, Commission File No. 33-64031) |
| |
|
|
| 3.5 |
|
Certificate of Amendment of Certificate of Incorporation filed July 18, 1996 (Incorporated by reference to Exhibit 3.7 of our Form 10-K for the year ended December 31, 1996) |
| |
|
|
| 3.6 |
|
Certificate of Amendment of Certificate of Incorporation filed June 18, 1998. (Incorporated by reference to Exhibit 3.8 of our Form 10-Q for the quarter ended June 30, 1998) |
| |
|
|
| 3.7 |
|
Certificate of Amendment of Certificate of Incorporation filed July 31, 2000 (Incorporated by reference to Exhibit 3.8 of our Form 10-Q for the quarter ended March 31, 2001) |
| |
|
|
| 3.8 |
|
Certificate of Designations of Series A Junior Participating Preferred Stock filed November 7, 2001 (Incorporated by reference to Exhibit 4.1.H of our Registration Statement on Form S-8 dated December 14, 2001, Commission File No. 333-75136) |
| |
|
|
| 3.9 |
|
Amended and Restated Bylaws (Incorporated by reference to Exhibit 2.1 of our Form 10-Q for the quarter ended June 30, 1996) |
| |
|
|
| 3.10 |
|
Certificate of Designation, Rights and Preferences of Series A Cumulative Convertible Preferred Stock filed November 9, 2007 (Incorporated by reference to Exhibit 3.10 to our Form SB-2 filed on December 10, 2007) |
| |
|
|
| 3.11 |
|
Certificate of Amendment to Certificate of Designations, Rights and Preferences of Series A Cumulative Convertible Preferred Stock filed June 11, 2008 (Incorporated by reference to Exhibit 3.11 of our Form 10-Q for the quarter ended June 30, 2008) |
| |
|
|
| 3.12 |
|
Certificate of Designations, Rights and Preferences of Series B Cumulative Convertible Preferred Stock filed October 26, 2012 (Incorporated by reference to Exhibit 10.3 of our Form 8-K filed October 26, 2012) |
| |
|
|
| 3.13 |
|
Certificate of Amendment of Certificate of Incorporation filed July 1, 2013 increasing the aggregate number of shares of Common Stock which we have authority to issue to Two Hundred Million (200,000,000) shares with a par value of one cent ($0.01) per share (Incorporated by reference to Exhibit 3.3 of our Form 10-Q for the quarter ended June 30, 2014). |
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| 3.14 |
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Certificate of Amendment of Certificate of Incorporation filed October 23, 2014 (Incorporated by reference to Exhibit 3.14 of our Form 8-K filed October 23, 2014) |
| 3.15 |
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Certificate of Amendment to Certificate of Designations, Rights and Preferences of Series A Cumulative Convertible Preferred Stock (Incorporated by reference to Exhibit 3.15 of our Form 8-K filed on October 23, 2014) |
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| 3.16 |
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Amendment to Bylaws (Incorporated by reference to Exhibit 3.1 of our Form 8-K filed January 1, 2015) |
| |
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| 3.17 |
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Amendment to Bylaws (Incorporated by reference to Exhibit 3.1 of our Form 8-K filed March 2, 2015) |
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| 4.1 |
|
Form of stock certificate evidencing shares of common stock, $0.01 par value per share, of the Company (filed herewith) |
| |
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| 4.2 |
|
Form of Warrant dated February 16, 2006, issued by the Company to certain Purchasers (Incorporated by reference to Exhibit 10.31 of the Company’s Form 10-Q for the quarter ended March 31, 2006) |
| |
|
|
| 4.3 |
|
Form of Warrant dated October 24, 2006, issued by the Company to certain Purchasers (Incorporated by reference to Exhibit 10.27 of the Company’s Form 10-KSB filed on April 2, 2007) |
| |
|
|
| 4.4 |
|
Form of Warrant December 6, 2006, issued by the Company to certain Purchasers (Incorporated by reference to Exhibit 10.32 of the Company’s Form 10-KSB filed on April 2, 2007) |
| |
|
|
| 4.5 |
|
Board Designation Agreement dated November 15, 2007, between the Company and SCO Capital Partners LLC (Incorporated by reference to Exhibit 10.26 of the Company’s Form S-1 filed on March 11, 2008) |
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| 4.6 |
|
Form of Securities Purchase Agreement (Incorporated by reference to Exhibit 10.29 of the Company’s Form S-1 filed on January 15, 2010) |
| |
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| 4.7 |
|
Form of Warrant (Incorporated by reference to Exhibit 10.30 of the Company’s Form S-1 filed on January 15, 2010) |
| |
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| 4.8 |
|
Form of Securities Purchase Agreement dated as of December 10, 2010 by and among the Company and the Purchasers named therein (Incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K filed on December 14, 2010) |
| |
|
|
| 4.9 |
|
Form of Common Stock Warrant issued by the Company (Incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K filed on December 14, 2010) |
| |
|
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| 4.10 |
|
Form of Securities Purchase Agreement dated as of November 1, 2011 by and among the Company and the Purchasers named therein (Incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K filed on November 10, 2011) |
| |
|
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| 4.11 |
|
Form of Common Stock Warrant (Five Year Warrant) issued by the Company (Incorporated by reference to Exhibit 10.3 of the Company’s Form 8-K filed on November 10, 2011) |
| |
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|
| 4.12 |
|
Amendment No.1 to Warrant Agreement dated February 10, 2012 by and among the Company and warrant holders including certain affiliates named therein extending the term of certain warrants until 2015 (Incorporated by reference to Exhibit 99.1 of the Company’s Form 8-K filed on February 10, 2012) |
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| 4.13 |
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Preferred Stock and Warrant Purchase Agreement dated October 25, 2012 by and among the Company and the Purchasers named therein (Incorporated by reference to Exhibit 10.1 of the Company’s Form 8-K filed October 26, 2012) |
| |
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| 4.14 |
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Investor Rights Agreement dated October 25, 2012, between the Company and certain Purchasers (Incorporated by reference to Exhibit 10.2 of the Company’s Form 8-K filed on October 26, 2012) |
| |
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| 4.15 |
|
Form of Common Stock Warrant issued by the Company (Incorporated by reference to Exhibit 10.3 of the Company’s Form 8-K filed on October 26, 2012) |
| |
|
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| 4.16 |
|
Unsecured Grid Note $250,000, dated September 10, 2014, by and between the Company and SCO Capital Partners LLC (Incorporated by reference to Exhibit 10.33 of the Company’s Form 8-K filed October 23, 2014) |
| |
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| 4.17 |
|
Unsecured Grid Note $250,000, dated December 1, 2014, by and between us and SCO Capital Partners LLC (Incorporated by reference to Exhibit 10.34 of our Form 8-K filed December 3, 2014) |
| 4.18 |
|
Form of Warrant Agreement between the Company and American Stock Transfer & Trust Company (Incorporated by reference to Exhibit 4.1 of the Company’s Pre-effective Amendment No. 1 to Form S-1 filed October 24, 2014) |
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| 5.1 |
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Opinion of Morgan, Lewis & Bockius LLP (filed herewith) |
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| 23.1 |
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Consent of Whitley Penn LLP (filed herewith) |
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| 23.2 |
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Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1) |
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| 24 |
|
Powers of Attorney (included on signature page) |
Exhibit 4.1
Exhibit 5.1
Morgan, Lewis & Bockius llp
One Federal Street
Boston, Massachusetts 02110-1726
Tel. +1.617.341.7700
Fax: +1.617.341.7701
www.morganlewis.com |
 |
May 14, 2015
PlasmaTech Biopharmaceuticals, Inc.
4848 Lemmon Avenue, Suite 517
Dallas, Texas 75219
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel
to PlasmaTech Biopharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the Company’s
registration statement on Form S-3 filed with the Securities and Exchange Commission (the “Registration Statement”)
under the Securities Act of 1933, as amended (the “Act”), relating to an aggregate of up to 1,925,000 shares of common
stock, par value $0.01 per share, of the Company (the “Shares”) that may be sold or delivered by the parties listed
as selling stockholders in the Registration Statement (the “Selling Stockholders”), of which 1,250,000 Shares (the
“Existing Shares”) are currently held by the Selling Stockholders and 675,000 (the “Warrant Shares”) are
issuable by the Company upon the exercise of warrants (the “Warrants”) currently held by the Selling Stockholders.
The Existing Shares may be sold or delivered, and the Warrant Shares, after exercise of the Warrants in accordance with the terms
thereof, may be sold or delivered, from time to time as set forth in the Registration Statement, any amendment thereto, the prospectus
contained therein (the “Prospectus”) and supplements to the Prospectus, and pursuant to Rule 415 under the Act.
We have reviewed the
corporate proceedings of the Company with respect to the authorization of the issuance of the Shares. As such counsel, we have
also examined originals or copies of the Registration Statement and the exhibits thereto and such other documents, corporate records
and other instruments as we have deemed necessary or appropriate for the purpose of this opinion. As to questions of fact material
to this opinion, we have relied on certificates or comparable documents of public officials and of officers and representatives
of the Company.
We have assumed the
genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing
any document.
We have also assumed
that, at or prior to the time of the issuance and delivery of any Warrant Shares, that there will not have occurred any change
in law, change in the Warrants or the Company’s Certificate of Incorporation, or further action by the Company’s board
of directors, in each case affecting the validity of the issuance of the Warrant Shares.
Almaty Astana
Beijing Boston Brussels Chicago Dallas Dubai Frankfurt Harrisburg Hartford Houston London Los Angeles Miami Moscow
New York Orange County Paris Philadelphia Pittsburgh Princeton San Francisco Santa Monica Silicon Valley Tokyo Washington Wilmington
PlasmaTech Biopharmaceuticals, Inc.
May 14, 2015
Page 2
This opinion is limited
solely to the Delaware General Corporation Law, as applied by courts located in Delaware.
Based upon and subject
to the foregoing, we are of the opinion that the Existing Shares are validly issued, fully paid and nonassessable, and the Warrant
Shares, when issued after exercise of the Warrants in accordance with the terms thereof, will be validly issued, fully paid and
nonassessable.
We hereby consent to
the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the heading “Legal
Matters” in the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose
consent is required under Section 7 of the Act, or the rules and regulations promulgated thereunder. In rendering the opinions
set forth above, we are opining only as to the specific legal issues expressly set forth therein, and no opinion shall be inferred
as to any other matter or matters.
This opinion is intended
solely for use in connection with the issuance and sale of the Shares that are the subject of the Registration Statement and is
not to be relied upon for any other purpose.
Very truly yours,
/s/ Morgan, Lewis & Bockius
LLP
MORGAN, LEWIS & BOCKIUS LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We consent to the inclusion in this Registration
Statement on Form S-3 of PlasmaTech Biopharmaceuticals, Inc. of our report dated March 31, 2015 relating to our audits of the consolidated
financial statements of PlasmaTech Biopharmaceuticals, Inc. as of and for the years ended December 31, 2014 and 2013. We also consent
to the reference to our firm under the heading “Experts” in such Registration Statement.
/s/ Whitley Penn, LLP
Dallas, Texas
May 14, 2015
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