As filed with the Securities and Exchange Commission on February 9, 2017.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Moleculin Biotech, Inc.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 2834 | 47-4671997 |
| (State or Other Jurisdiction of | (Primary Standard Industrial | (I.R.S. Employer |
| Incorporation or Organization) | Classification Code Number) | Identification Number) |
2575 West Bellfort, Suite 333
Houston, Texas 77054
(713) 300-5160
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Mr. Walter Klemp, Chief Executive Officer
2575 West Bellfort, Suite 333
Houston, Texas 77054
(713) 300-5160
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
| Cavas S. Pavri | Robert F. Charron, Esq. |
| Schiff Hardin LLP | Ellenoff Grossman & Schole LLP |
| 100 N. 18th, Suite 300 | 1345 Avenue of the Americas |
| Philadelphia, PA 19103 | New York, New York 10105-0302 |
| Telephone: (202) 724-6847 | Telephone: (212) 370-1300 |
| Fax: (202) 778-6460 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.
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, 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, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. x 333-214898
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. ¨
If this form is a post-effective amendment filed pursuant to Rule 462(d) 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. ¨
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. (Check one):
| Large accelerated filer | ¨ | Accelerated filer | ¨ |
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | x |
CALCULATION OF REGISTRATION FEE
|
Title of each class of securities to be registered |
Proposed maximum aggregate offering price (1) |
Amount of registration fee |
||||||
| Units, each consisting of one share of Common stock, par value $0.001 per share, and Series A, Series B and Series C Warrants, to purchase shares of Common stock | $ | 9,775.00 | $ | 1.13 | ||||
| Common Stock underlying the Series A Warrants included in the Units | $ | 324,875.00 | $ | 37.65 | ||||
| Common Stock underlying the Series B Warrants included in the Units | $ | 9,775.00 | $ | 1.13 | ||||
| Common Stock underlying the Series C Warrants included in the Units | $ | 324,875.00 | $ | 37.65 | ||||
| Common stock issuable upon exercise of the Representatives’ warrant | $ | 684.25 | $ | 0.08 | ||||
| Total | $ | 669,984.25 | $ | 77.65 | ||||
| (1) | Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(o) promulgated under the Securities Act of 1933. |
| (2) | In accordance with Rule 462(b) promulgated under the Securities Act of 1933, as amended, an additional amount of securities having a proposed maximum aggregate offering price of no more than 20% of the maximum aggregate offering price of the securities eligible to be sold under the related Registration Statement on Form S-1 (File No. 333-214898), as amended, is hereby registered. The registrant previously registered securities with a proposed aggregate offering price of $ $17,652,500.00 on the Registration Statement on Form S-1 (File No. 333-214898), for which a filing fee of $ $2,045.92 was previously paid. |
This Registration Statement shall become effective upon filing in accordance with Rule 462(b) under the Securities Act of 1933, as amended.
Explanatory Note
This registration statement is being filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and includes the registration statement facing page, this page, the signature page, an exhibit index, an opinion of counsel regarding the legality of the securities being registered and a related consent, and the consent of the independent registered public accounting firm of Moleculin Biotech, Inc. (“Company”). This registration statement relates to the Company’s registration statement on Form S-1 (File No. 333-214898), as amended, including the exhibits and power of attorney thereto (the “Initial Registration Statement”), initially filed by the Company on December 2, 2016 and declared effective by the Securities and Exchange Commission (the “Commission”) on February 8, 2017. The Company is filing this registration statement for the sole purpose of increasing the proposed maximum aggregate offering price of the securities subject of the Initial Registration Statement. Pursuant to Rule 462(b), the contents of the Initial Registration Statement are incorporated by reference into this registration statement.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Houston, Texas, on February 9, 2017.
| MOLECULIN BIOTECH, INC. | ||
| (Registrant) | ||
| By: | /s/ Walter V. Klemp | |
| Walter V. Klemp | ||
| Director and Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated:
| SIGNATURE | TITLE | DATE | ||
| /s/ Walter V. Klemp | ||||
| Walter V. Klemp | Chief Executive Officer and Sole Director | February 9, 2017 | ||
| (Principal Executive Officer) | ||||
| /s/ Jonathan P. Foster | ||||
| Jonathan P. Foster | Chief Financial Officer | February 9, 2017 | ||
| (Principal Financial Officer and Principal Accounting Officer) | ||||
| * | ||||
| Donald Picker | President and Chief Operating Officer | February 9, 2017 | ||
| * | ||||
| Robert George | Director | February 9, 2017 | ||
| * | ||||
| Michael Cannon | Director | February 9, 2017 | ||
| * | ||||
| Jacqueline Northcut | Director | February 9, 2017 |
| * By: | /s/ Walter V. Klemp | |
| Walter V. Klemp | ||
| Attorney-in-Fact |
EXHIBIT INDEX
| Exhibit Number |
Description |
| 5 | Opinion of Schiff Hardin LLP as to legality of the securities being registered |
| 23.1 | Consent of GBH CPAs, PC |
| 23.2 | Consent of Schiff Hardin LLP (included in Exhibit 5) |
| 24.1 | Power of Attorney (Filed as an exhibit to the Registrant’s Registration Statement on Form S-1 (File No. 333-214898) and incorporated herein by reference) |
Exhibit 5
February 9, 2017
Board of Directors
Moleculin Biotech, Inc.
2575 West Bellfort, Suite 333
Houston, Texas 77054
| Re: | Registration Statement on Form S-1 (File No. 333-214898) |
Ladies and Gentlemen:
We have acted as counsel to Moleculin Biotech, Inc., a Delaware corporation (the “Company”), in connection with the filing of a registration statement (No. 333-214898) on Form S-1 (as amended, the “Registration Statement”) with the Securities and Exchange Commission, including a related prospectus (the “Prospectus”), covering an underwritten public offering of (i) up to 4,266,500 units (the “Units”), each consisting of one share of the Company’s common stock, par value $0.001 per share (the “Common Stock”), a Series A warrant to purchase 0.50 of a share of Common Stock, a Series B warrant to purchase one share of Common Stock, and a Series C warrant to purchase 0.50 of a share of Common Stock, (ii) up to 2,133,250 Series A warrants, 4,266,500 Series B warrants and 2,133,250 Series C warrants (collectively, the “Warrants”) included in the Units, and (iii) up to 8,533,000 shares of Common Stock issuable pursuant to the Warrants (the “Warrant Shares”). In addition, the Registration Statement covers (i) a warrant issuable to the underwriters in the offering referred to above (the “Underwriters’ Warrant”) to purchase up to 298,655 shares of Common Stock (the “Underwriters’ Warrant Shares”) and (ii) the Underwriters’ Warrant Shares. The Units, the Shares, the Warrants and the Warrant Shares are to be sold by the Company as described in the Registration Statement and Prospectus. The Units, the Shares, the Warrants, the Underwriters’ Warrant and the Underwriters’ Warrant Shares are collectively referred to as the “Securities”.
In connection with this opinion, we have examined the Registration Statement, including the exhibits thereto, the form of Warrant and form of Underwriters’ Warrant, the Underwriting Agreement filed as an exhibit to the Registration Statement and such other documents, corporate records and instruments, and have examined such laws and regulations, as we have deemed necessary for purposes of the opinion set forth herein. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the legal capacity of all natural persons.
Based on the foregoing, and subject to the qualifications set forth below, we are of the opinion that:
(i) The Shares have been duly authorized and, when issued and delivered as part of the Units against payment therefor in accordance with the Registration Statement and the Prospectus, will be validly issued, fully paid and nonassessable.
(ii) The Warrants and Underwriters’ Warrants have been duly authorized by the Board of Directors of the Company and, when executed on behalf of the Company and issued and delivered, in the case of the Warrants as part of the Units against payment therefor, in accordance with the Registration Statement and the Prospectus, will be valid and binding obligations of the Company in accordance with their respective terms.
(iii) The Warrant Shares and the Underwriters’ Warrant Shares, when issued and delivered upon exercise of the Warrants and Underwriters’ Warrant, respectively, in accordance with the terms thereof will be duly authorized, validly issued, fully paid and nonassessable.
(iv) The Units have been duly authorized by the Board of Directors of the Company and, when issued and delivered against payment therefor in accordance with the Registration Statement and the Prospectus, will be valid and binding obligations of the Company.
The opinions set forth above are subject to the following qualifications:
A. The opinions expressed herein with respect to the legality, validity, binding nature and enforceability of the Units, Warrants and Underwriters’ Warrants are subject to (i) applicable laws relating to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting creditors’ rights generally, whether now or hereafter in effect, and (ii) general principles of equity, including, without limitation, concepts of materiality, laches, reasonableness, good faith and fair dealing and the principles regarding when injunctive or other equitable remedies will be available (regardless of whether considered in a proceeding at law or in equity).
B. The foregoing opinions are limited to the laws of the State of New York and the General Corporation Law of Delaware, and we express no opinion as to the laws of any other jurisdiction.
The opinions expressed in this opinion letter are as of the date of this opinion letter only and as to laws covered hereby only as they are in effect on that date, and we assume no obligation to update or supplement such opinion to reflect any facts or circumstances that may come to our attention after that date or any changes in law that may occur or become effective after that date. The opinions herein are limited to the matters expressly set forth in this opinion letter, and no opinion or representation is given or may be inferred beyond the opinions expressly set forth in this opinion letter.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference made to this firm in the Prospectus under the heading “Validity of Securities.” In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission issued thereunder.
| Very truly yours, | |||
| SCHIFF HARDIN LLP | |||
| By: | /s/ Cavas Pavri | ||
| Cavas Pavri | |||
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the inclusion in this Registration Statement on Form S-1 of our report dated March 21, 2016 relating to Moleculin Biotech, Inc.’s financial statements as of December 31, 2015 and for the period from July 28, 2015 (Inception) to December 31, 2015 and our report dated March 21, 2016 relating to Moleculin, LLC’s financial statements as of December 31, 2015 and 2014 and for the years then ended. We also consent to the reference to our firm under the heading "Experts" incorporated by reference from the registration statement on Form S-1 (File No. 333-214898).
/s/ GBH CPAs, PC
GBH CPAs, PC
www.gbhcpas.com
Houston, Texas
February 9, 2017