BPMX BioPharmX Corporation

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As filed with the Security and Exchange Commission on September 26, 2016.

Registration No. 333-213635

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

Amendment No. 1

to

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

1098 Hamilton Court

Menlo Park, California 94025

(650) 889-5020

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive

offices)

Anja Krammer

President

BioPharmX Corporation

1098 Hamilton Court

Menlo Park, California 94025

Telephone:(650) 889-5020

(Name, address including zip code, and telephone number, including area code, of agent for service)

With copies to:

Gregory Sichenzia, Esq.

Marcelle S. Balcombe, Esq.

Sichenzia Ross Friedman Ference LLP

61 Broadway, 32nd Floor

New York, New York 10006

Telephone: (212) 930-9700

Facsimile: (212) 930-9725

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

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.   o

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.   x

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.   o

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.   o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

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The information in this prospectus is not complete and may be changed. Neither we nor the selling stockholders may sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

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OUR BUSINESS

BioPharmX Corporation is referred to throughout this prospectus as “BioPharmX,” “we,” “us,” “our,” or the “Company.”

Company Overview

We are a specialty pharmaceutical company focused on utilizing our proprietary drug delivery technologies to develop and commercialize novel prescription and over-the-counter, or OTC, products that address large markets in dermatology and women’s health. Our objective is to develop products that treat health or age-related conditions that: (1) are not presently being addressed or treated or (2) are currently treated with drug therapies or drug delivery approaches that are sub-optimal. Our strategy is designed to bring new products to market by identifying optimal delivery mechanisms and/or alternative applications for United States Food and Drug Administration, or FDA, approved active pharmaceutical ingredients, or APIs, and biological materials, while, in appropriate circumstances, reducing the time, cost and risk typically associated with new product development by repurposing drugs with demonstrated safety profiles and, when applicable, taking advantage of the regulatory approval pathway under Section 505(b)(2) of the Federal Food, Drug, and Cosmetic Act, or FDC Act. We believe these approaches may reduce drug development risk and could reduce the time and resources we spend during development. Our current platform technologies include innovative delivery mechanisms for molecular iodine (I 2 ) and antibiotics.

Our current portfolio of product candidates targets significant market opportunities and includes two clinical stage product candidates: (1) BPX01, a topical antibiotic for the treatment of acne based on a unique formulation of minocycline currently in Phase 2b clinical trials and (2) BPX03, a molecular iodine (I 2 ) tablet for the treatment of benign breast pain associated with fibrocystic breast condition, or FBC, and cyclic mastalgia. The molecular iodine project includes an OTC dietary supplement version, or VI 2 OLET, for the alleviation of symptoms of FBC, as well as a prescription drug version for the treatment of moderate to severe, periodic breast pain associated with FBC and cyclic mastalgia. VI 2 OLET is currently the subject of a non-IND, or Investigational New Drug Application, clinical trial overseen by Health Canada and an Institutional Review Board, or IRB, to provide additional insight on how to design a Phase 3 safety and efficacy study.

Target Markets

We believe that the industry dynamics in the areas of dermatology and women’s health represent significant opportunities for innovative new products to emerge as attractive solutions for unmet needs in multi-billion dollar therapeutic categories. In particular, we believe that both the dermatology and women’s health markets are large specialty markets with significant global patient demand, and we believe that our focus on these markets coupled with our proprietary platform technologies should enable us to develop and commercialize attractive products within these categories.

Our Products and Product Candidates

We have developed our product portfolio using our proprietary drug delivery technologies including innovative delivery mechanisms for molecular iodine and antibiotics. We currently have one marketed product, VI 2 OLET iodine dietary supplement, and two clinical-stage product candidates, BPX01 and BPX03. The following table presents a summary of our marketed products and clinical-stage product candidates (years are in calendar years):

BPX01

BPX01, a hydrophilic, topical antibiotic gel for the treatment of acne vulgaris is currently the subject of a Phase 2 clinical trial. BPX01 combines the most widedly used oral antibiotic drug for the treatment of moderate-severe acne (minocycline) with a proprietary anhydrous hydrophilic topical delivery system specifically designed to localize the delivery of the drug while minimizing systemic side effects. In addition to its bacteriostatic properties, the active pharmaceutical ingredient, minocycline also has anti-inflammatory properties, which can help to reduce the swelling and redness commonly associated with acne vulgaris.

An IND to initiate the first Phase 2 clinical trial of BPX01 was submitted to the FDA in January 2016, and we received a letter from the FDA in March 2016 stating that the study may proceed. We have completed 4-week and 13-week animal toxicology studies to support a recently completed 4-week Phase 2 clinical study and the in-progress 12-week Phase 2 dose-finding clinical study. We are also preparing to conduct a bridging safety study using oral minocycline as the reference listed drug comparator. One or more 12-week Phase 3 studies will also be required along with a standard battery of dermal safety studies. We intend to pursue regulatory approval under Section 505(b)(2) of the FDC Act. We believe the Section 505(b)(2) regulatory pathway, which permits us to rely in part on the FDA’s prior findings of safety and/or efficacy for an approved drug product, may reduce the product development risk and could reduce the time and resources we spend during development of BPX01. In addition to BPX01, we believe our anhydrous hydrophilic topical delivery system may also be utilized with other APIs including other antibiotics.

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VI 2 OLET Iodine

Our first commercial product, VI 2 OLET, is a patented OTC molecular iodine dietary supplement that addresses cyclic breast discomfort and is clinically demonstrated to alleviate the symptoms associated with FBC, including tenderness, aches and swelling. Women who suffer from menstrual-related breast discomfort are recommended to take one to two tablets per day on an empty stomach for at least 60 days to realize initial symptom relief. Our patented molecular iodine formula is delivered to breast tissue and is intended to reduce the fibrocystic changes that results in breast discomfort. We launched VI 2 OLET iodine in December 2014 in online stores and have since expanded into over 7,000 retail pharmacies, specialty chain outlet and grocery chain outlet stores throughout the United States. We are exploring commercial growth opportunities for the expansion of VI 2 OLET, which may include strategic partnerships with women’s and/or consumer health companies.

BPX03

In addition to VI 2 OLET, we are also developing BPX03, a prescription drug version of our molecular iodine tablet for the treatment of moderate to severe, periodic breast pain associated with FBC and cyclic mastalgia. We in-licensed this prescription iodine drug candidate, which was previously under development by the licensors, and refer to both the prior sponsor’s investigational drug and our investigational drug as BPX03. We are currently in the process of conducting a clinical study (using VI 2 OLET) under Health Canada and IRB oversight to provide additional insight on how to design a Phase 3 safety and efficacy study. We are currently seeking a partner or partners to pursue any necessary clinical development and additional regulatory approvals for the product using the learnings from our ongoing study.

BPX02

We are developing BPX02, an injectable product utilizing biologic materials for aesthetic dermatology applications. This research stage product candidate is currently under internal development with preclinical testing expected to begin in calendar year 2017. We will likely pursue regulatory approval for this product via a Biologics License Application, or BLA. As such, BPX02 would still be subject to regulation under the FDC Act, except the section of the FDC Act that governs the approval of NDAs. Instead, BPX02 would be subject to the marketing and exclusivity provisions of the Public Health Service Act, or PHSA, for approval of BLAs. However, the application process and requirements for approval of BLAs are very similar to those for NDAs.

Corporate Information

We were originally incorporated on August 30, 2010 in the State of Nevada under the name Thompson Designs, Inc. On January 23, 2014, we, BioPharmX, Inc. and stockholders of BioPharmX, Inc., who collectively owned 100% of BioPharmX, Inc., entered into and consummated transactions pursuant to a share exchange agreement, or Share Exchange Agreement, whereby we issued to the stockholders of BioPharmX, Inc. an aggregate of 7,025,000 shares of our common stock in exchange for 100% of the shares of BioPharmX, Inc., or Share Exchange. The shares of our common stock received by the stockholders of BioPharmX, Inc. in the Share Exchange constituted approximately 77.8% of our then issued and outstanding common stock, after giving effect to the issuance of shares pursuant to the Share Exchange Agreement. As a result of the Share Exchange, BioPharmX, Inc. became our wholly-owned subsidiary. On March 3, 2014, we changed our name to BioPharmX Corporation. On May 16, 2014, we reincorporated from Nevada to Delaware.

Our headquarters are located at 1098 Hamilton Court, Menlo Park, California 94025, and our telephone number is (650) 889-5020. Our website address is  www.biopharmx.com .  However, the information on our website is not a part of this prospectus and is not incorporated by reference into this prospectus.

About this Offering

On August 12, 2016, the Company entered into a purchase agreement, or the Purchase Agreement, for the sale and issuance of an aggregate of 2,423,077 shares of the Company’s common stock in a private placement offering, or the Offering, at a price per share of $0.65, which was the closing market price of the Company’s common stock on the date of the Purchase Agreement, for an aggregate purchase price of $1,575,000.

The Company and the purchasers also entered into a registration rights agreement, or the Registration Rights Agreement, pursuant to which the Company agreed to file a registration statement with the Securities and Exchange Commission, or the SEC, within three months from the closing of the Offering and to use commercially reasonable efforts to have such registration statement declared effective by the SEC. In the event that the Company does not file the registration statement within three months from the closing of the Offering, for all or part of any 30-day period during which the failure to file remains uncured, the Company shall issue to the purchasers a number of shares of the Company’s common stock at no cost to the purchasers equal to 1.0% of the aggregate number of shares of the Company’s common stock purchased by the purchasers in the Offering for each 30-day period during which the failure to file remains uncured, but in no event shall the Company be required thereunder to issue to the purchasers an aggregate amount of shares of the Company’s common stock that exceeds 5% of the aggregate number of shares of common stock purchased by the purchasers in the Offering. The Registration Rights Agreement also granted the purchasers customary piggyback registration rights. This prospectus is being filed to satisfy the Company’s obligation to file a registration statement pursuant to the terms of the Registration Rights Agreement.

On August 17, 2016, the Company entered into a subscription agreement, or the Secured Note Subscription Agreement, between the Company and RTW Master Fund, Ltd., or RTW, pursuant to which the Company issued a secured convertible promissory note in the principal amount of $1,000,000 to RTW.  The secured note was issued on August 17, 2016 and will mature 36 months from the date of issuance if not earlier converted pursuant to the terms therein.

The Company and RTW also entered into a registration rights agreement, or the RTW Registration Rights Agreement, pursuant to which the Company agreed to file a registration statement with the SEC within three months from the date of conversion of the secured note and to use commercially reasonable efforts to have the registration statement declared effective by the SEC. In the event that the Company does not file the registration statement within three months from the date of conversion of the secured note, for all or part of any 30-day period during which the failure to file remains uncured, the Company shall issue to RTW a number of

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shares of the Company’s common stock at no cost to RTW equal to 1.0% of the aggregate number of shares of the Company’s common stock issued to RTW upon conversion of the secured note for each 30-day period during which the failure to file remains uncured, but in no event shall the Company be required thereunder to issue to RTW an aggregate amount of shares of the Company’s common stock that exceeds 5% of the aggregate number of shares of the Company’s common stock issued to RTW upon conversion of the secured note.

On August 17, 2016, the Company entered into a subscription agreement, or the Unsecured Note Subscription Agreement, for the issuance of an unsecured convertible promissory note in the principal amount of $500,000 to Xiao Dong Hua, or Hua.  The unsecured note will mature six months from the date of issuance thereof if not earlier converted pursuant to the terms therein.

The Company and Hua also entered into a registration rights agreement, or the Hua Registration Rights Agreement, pursuant to which the Company will agree to file a registration statement with the SEC within three months from the date of conversion of the unsecured note and to use commercially reasonable efforts to have the registration statement declared effective by the SEC. In the event that the Company does not file the registration statement within three months from the date of conversion of the unsecured note, for all or part of any 30-day period during which the failure to file remains uncured, the Company shall issue to Hua a number of shares of the Company’s common stock at no cost to Hua equal to 1.0% of the aggregate number of shares of the Company’s common stock issued to Hua upon conversion of the unsecured note for each 30-day period during which the failure to file remains uncured, but in no event shall the Company be required thereunder to issue to Hua an aggregate amount of shares of the Company’s common stock that exceeds 5% of the aggregate number of shares of the Company’s common stock issued to Hua upon conversion of the unsecured note.

This prospectus includes the resale of 4,743,077 shares of common stock, consisting of (i) 2,423,077 shares of common stock that were issued pursuant to the Purchase Agreement in August 2016 and (ii) 2,320,000 shares of common stock that are issuable upon conversion of our convertible notes issued pursuant to the Secured Note Subscription Agreement and the Unsecured Note Subscription Agreement.

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Selling Stockholder Table

The following table sets forth the number of shares of common stock beneficially owned by the selling stockholders as of September 23, 2016, the number of shares of common stock covered by this prospectus on behalf of the stockholders and the total number of shares of common stock that the selling stockholders will beneficially own upon completion of the offering. To our knowledge, each of the selling stockholders have sole voting and investment power over the common stock listed in the table below. Other than as set forth in the following table, the selling stockholders have not held any position or office or had any other material relationship with us or any of our predecessors or affiliates within the past three years. This table assumes that the stockholders will offer for sale all of the shares of common stock covered by this prospectus and that the selling stockholder acquires no additional shares of common stock before the completion of this offering.

*  Less than 1%

(1)              Based upon 31,329,428 shares of common stock issued and outstanding as of September 23, 2016.

(2)              Evan McCulloch is the Vice President of Franklin Templeton Investment Funds - Franklin Biotechnology Discovery Fund, and as such has voting and investment power over the securities owned by the Selling Stockholder. The Selling Stockholder is an affiliate of a broker-dealer. The Selling Stockholder purchased the purchased the securities in the ordinary course of business and at the time of the purchase of the securities, the Selling Stockholder had no agreements or understandings, directly or indirectly, with any person to distribute the securities.

(3)              Evan McCulloch is the Vice President of Franklin Strategic Series - Franklin Biotechnology Discovery Fund, and as such has voting and investment power over the securities owned by the Selling Stockholder. The Selling Stockholder is an affiliate of a broker-dealer. The Selling Stockholder purchased the purchased the securities in the ordinary course of business and at the time of the purchase of the securities, the Selling Stockholder had no agreements or understandings, directly or indirectly, with any person to distribute the securities.

(4)              Jack Sweigart is the Trustee of The Sweigart Family Trust dated March 24, 2005, and as such has voting and investment power over the securities owned by the Selling Stockholder.

(5)              John D. Thomas is the Trustee of the John David Thomas Trust 5/4/98, and as such has voting and investment power over the securities owned by the Selling Stockholder.

(6)              Bruce Martin is the Managing Member of Still Lake Value Partners, L.P. c/o Still Lake Capital, and as such has voting and investment power over the securities owned by the Selling Stockholder.

(7)              Jon D. Gruber is the Trustee of the Jon & Linda Gruber Trust, and as such has voting and investment power over the securities owned by the Selling Stockholder.

(8)              Stephen C. Kircher is the Trustee of the Kircher Family Trust dated 3/24/04, and as such has voting and investment power over the securities owned by the Selling Stockholder.

(9)              Stephen C. Kircher has voting and investment power over the securities owned by the Selling Stockholder.

(10)         Scott W. Hood & Heidi J. Hood are the Trustees of the Hood Family Trust UA DTD 11/27/07, and as such have voting and investment power over the securities owned by the Selling Stockholder.

(11)         Represents shares underlying principal and estimated accrued interest through the maturity date of secured promissory notes. Roderick Wong is the Managing Member and as such has voting and investment power over the securities owned by the Selling Stockholder.

(12)         Represents shares underlying principal and estimated accrued interest through the maturity date of secured promissory notes. Roderick Wong is the Managing Member and such has voting and investment power over the securities owned by the Selling Stockholder.

(13)         Represents shares underlying principal and estimated accrued interest through the maturity date of unsecured promissory notes.

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Anti-Takeover Effects of Certain Provisions of our Certificate of Incorporation, Bylaws and the DGCL

The provisions of Delaware law, our certificate of incorporation and our bylaws could have the effect of delaying, deferring or discouraging another person from acquiring control of our Company. These provisions, which are summarized below, may have the effect of discouraging a third-party from acquiring us, even if doing so would be beneficial to our stockholders. These provisions are intended to enhance the likelihood of continuity and stability in the composition of our board of directors and in the policies formulated by them, and to discourage some types of transactions that may involve an actual or threatened change in control of our Company. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal and to discourage some tactics that may be used in proxy fights. We believe that the benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure our company outweigh the disadvantages of discouraging such proposals because, among other things, negotiation of such proposals could result in an improvement of their terms. However, these provisions could have the effect of discouraging others from making tender offers for our shares that could result from actual or rumored takeover attempts. These provisions also may have the effect of preventing changes in our management.

Delaware Law

We are subject to Section 203 of the Delaware General Corporation Law (“Section 203”). This provision generally prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years following the date the stockholder became an interested stockholder, unless:

·       prior to such date, the board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;

·       upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned by persons who are directors and also officers and by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

·       on or subsequent to such date, the business combination is approved by the board of directors and authorized at an annual meeting or special meeting of stockholders and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.

Section 203 defines a business combination to include:

·       any merger or consolidation involving the corporation and the interested stockholder;

·       any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;

·       subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;

·       any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or

·       the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.

In general, Section 203 defines an “interested stockholder” as any entity or person beneficially owning 15% or more of the outstanding voting stock of a corporation, or an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of a corporation at any time within three years prior to the time of determination of interested stockholder status and any entity or person affiliated with or controlling or controlled by such entity or person.

These statutory provisions could delay or frustrate the removal of incumbent directors or a change in control of our Company. They could also discourage, impede, or prevent a merger, tender offer or proxy contest, even if such event would be favorable to the interests of stockholders.

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Certificate of Incorporation and Bylaw Provisions

Our certificate of incorporation and bylaws contain provisions that could have the effect of discouraging potential acquisition proposals or making a tender offer or delaying or preventing a change in control, including changes a stockholder might consider favorable. In particular, our certificate of incorporation and bylaws include the following provisions:

·        Board of Directors Vacancies.   Our bylaws authorize a majority of directors in office, although less than a quorum, to fill vacant directorships, including newly created seats. This provision could prevent a stockholder from gaining control of our board of directors by filling vacancies with its own nominees. This makes it more difficult to change the composition of our board of directors but promotes continuity of management.

·        Special Meetings of Stockholders.   Our bylaws provide that special meetings of our stockholders may be called only by a majority of our board of directors or an officer instructed by the directors to call a special meeting, thus prohibiting a stockholder from calling a special meeting. This provision might delay the ability of our stockholders to force consideration of a proposal or for stockholders controlling a majority of our capital stock to take any action, including the removal of directors.

·        No Cumulative Voting.   The DGCL provides that stockholders are not entitled to the right to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. Our certificate of incorporation and bylaws do not provide for cumulative voting.

·        Amendment of Bylaw Provisions.   Any of the above provisions in our bylaws may be amended or repealed by unanimous written consent of our board of directors and without stockholder approval.

·        Issuance of Undesignated Preferred Stock.   Our board of directors has the authority, without further action by the stockholders, to issue up to 10,000,000 shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time by our board of directors. The existence of authorized but unissued shares of preferred stock enables our board of directors to render more difficult or to discourage an attempt to obtain control of us by merger, tender offer, proxy contest or other means.

Disclosure of SEC Position on Indemnification for Securities Act Liabilities

Insofar as indemnification for liabilities arising under the Securities Act may be permitted for directors, officers and persons controlling our company, we understand that it is the SEC’s opinion that such indemnification is against public policy as expressed in the Securities Act and may therefore be unenforceable.

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(5)  That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i)  Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii)  Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

(iii)  The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(iv)  Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

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

(c)  Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.  In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

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