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Delaware
(State or other jurisdiction of incorporation or organization) |
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45-3757789
(I.R.S. Employer Identification Number) |
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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| | | | | S-ii | | | |
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| | | | | S-8 | | |
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SEC registration fee
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| | | $ | 8,229(1) | | |
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FINRA filing fee
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| | | $ | 38,000 | | |
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Legal fees and expenses
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Accounting fees and expenses
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Transfer agent fees and expenses
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Printing and engraving costs
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Miscellaneous
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Total
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INCORPORATED BY REFERENCE
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EXHIBIT
NUMBER |
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DESCRIPTION OF EXHIBIT
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FORM
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FILE
NUMBER |
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EXHIBIT
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FILE
DATE |
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1.1** | | | Form of Underwriting Agreement | | | | | | | | | | | | | |
1.2 | | | | |
10-K
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001-38356
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10.3
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March 1, 2024
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4.1 | | | | |
10-K
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001-38356
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3.1
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March 17, 2022
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4.2 | | | | |
10-Q
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001-38356
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3.1(b)
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November 14, 2022
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4.3 | | | | |
8-K
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001-38356
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3.1
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January 17, 2023
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4.4 | | | | |
8-K
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001-38356
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3.1
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February 10, 2023
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4.5 | | | | |
10-Q
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001-38356
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3.2
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November 14, 2022
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4.6** | | |
Form of Warrant Agreement
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5.1* | | | | | | | | | | | | | | | | |
23.1* | | | | | | | | | | | | | | | | |
23.2* | | | Consent of Baker Tilly US, LLP, independent registered public accounting firm | | | | | | | | | | | | | |
24.1* | | | Power of Attorney (included on the signature page of this registration statement) | | | | | | | | | | | | | |
107* | | | | | | | | | | | | | | | |
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Signature
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Title
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Date
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/s/ David Domzalski
David Domzalski
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Director and Chief Executive Officer
(Principal Executive Officer) |
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March 1, 2024
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/s/ Tyler Zeronda
Tyler Zeronda
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer) |
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March 1, 2024
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/s/ Sharon Barbari
Sharon Barbari
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Director
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March 1, 2024
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/s/ Steven Basta
Steven Basta
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Director
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March 1, 2024
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/s/ Christine Borowski
Christine Borowski
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Director
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March 1, 2024
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/s/ Anthony Bruno
Anthony Bruno
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Director
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March 1, 2024
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/s/ Patrick LePore
Patrick LePore
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Director
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March 1, 2024
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/s/ Elisabeth Sandoval Little
Elisabeth Sandoval Little
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Director
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March 1, 2024
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Exhibit 5.1
Mark Ballantyne
T: +1 703 456 8084
mballantyne@cooley.com
March 1, 2024
VYNE Therapeutics Inc.
685 Route 202/206 N., Suite 301
Bridgewater, New Jersey 08807
Ladies and Gentlemen:
We have acted as counsel to VYNE Therapeutics Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of the Registration Statement on Form S-3 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement includes two prospectuses: (i) a base prospectus (the “Base Prospectus”), and (ii) a sales agreement prospectus (the “Sales Agreement Prospectus”), covering the offering by the Company of up to $50,000,000 of shares (the “Placement Shares”) of its common stock, par value $0.0001 per share (the “Common Stock”), that may be sold under the Sales Agreement, dated March 1, 2024, between the Company and Cowen and Company, LLC (the “Sales Agreement”). The Base Prospectus provides that it will be supplemented in the future by one or more prospectus supplements (each, a “Prospectus Supplement”). The Registration Statement, including the Base Prospectus (as supplemented from time to time by one or more Prospectus Supplements) and the Sales Agreement Prospectus will provide for the registration by the Company of the sale of:
· | shares of Common Stock (the “Base Prospectus Shares”); |
· | shares of preferred stock, par value $0.0001 per share, of the Company (the “Preferred Stock”); |
· | warrants to purchase Common Stock or Preferred Stock (the “Warrants”), which may be issued under one or more warrant agreements, to be dated on or about the date of the first issuance of the Warrants thereunder (the “Warrant Agreement”), by and between a warrant agent to be selected by the Company (the “Warrant Agent”) and the Company; and |
· | the Placement Shares. |
The Base Prospectus Shares, the Preferred Stock, the Warrants and the Placement Shares, plus any additional Common Stock, Preferred Stock and Warrants that may be registered pursuant to any registration statement that the Company may hereafter file with the Commission pursuant to Rule 462(b) under the Securities Act in connection with an offering by the Company pursuant to the Registration Statement, are collectively referred to herein as the “Securities.”
The Securities are being registered for offer and sale from time to time pursuant to Rule 415 under the Securities Act.
In connection with this opinion, we have examined and relied upon the Company’s certificate of incorporation and bylaws, each as currently in effect, and such other records, documents, certificates, opinions, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Cooley LLP One Freedom Square, Reston Town Center, 11951 Freedom Drive, Reston, VA 20190-5656
t: +1 703 456-8084 f: +1 703 456-8100 cooley.com
March 1, 2024 Page Two |
In rendering this opinion, we have assumed the genuineness of all signatures; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents where authorization, execution and delivery are prerequisites to the effectiveness thereof.
With respect to our opinion as to the Base Prospectus Shares, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Common Stock will be authorized and available for issuance and that the consideration for the issuance and sale of the Base Prospectus Shares (or Preferred Stock convertible into, or Warrants exercisable for, Common Stock) will be in an amount that is not less than the par value of the Common Stock. With respect to our opinion as to the Preferred Stock, we have assumed that, at the time of issuance and sale, a sufficient number of shares of Preferred Stock will be authorized, designated and available for issuance and that the consideration for the issuance and sale of the Preferred Stock (or Warrants exercisable for Preferred Stock) will be in an amount that is not less than the par value of the Preferred Stock. We have also assumed that any Warrants offered under the Registration Statement and the related Warrant Agreement will be executed in the form to be filed as exhibits to the Registration Statement or incorporated by reference therein. We have also assumed that (i) with respect to Securities issuable upon conversion of any convertible Preferred Stock, such convertible Preferred Stock will be duly authorized, validly issued, fully paid and nonassessable; and (ii) with respect to any Securities issuable upon exercise of any Warrants, such convertible Warrants will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
With respect to the Placement Shares, we have assumed (i) that each sale of the Placement Shares will be duly authorized by the Board of Directors of the Company, a duly authorized committee thereof or a person or body pursuant to an authorization granted in accordance with Section 152 of the General Corporation Law of the State of Delaware (the “DGCL”), (ii) that no more than 50,000,000 Placement Shares will be sold for a consideration not less than the par value of the Common Stock. With respect to the Placement Shares, we express no opinion to the extent that future issuances of securities of the Company, anti-dilution adjustments to outstanding securities of the Company or other matters cause the number of shares of Common Stock issuable under the Sales Agreement to exceed the number of shares available for issuance by the Company.
Our opinion herein is expressed solely with respect to the DGCL and, as to the Warrants constituting binding obligations of the Company, the laws of the State of New York. Our opinion is based on these laws as in effect on the date hereof. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
Cooley LLP One Freedom Square, Reston Town Center, 11951 Freedom Drive, Reston, VA 20190-5656
t: +1 703 456-8084 f: +1 703 456-8100 cooley.com
March 1, 2024 Page Three |
On the basis of the foregoing, and in reliance thereon, and subject to the qualifications herein stated, we are of the opinion that:
1. With respect to the Base Prospectus Shares offered under the Registration Statement, provided that (a) the Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (b) the issuance of the Base Prospectus Shares has been duly authorized by all necessary corporate action on the part of the Company; (c) the issuance and sale of the Base Prospectus Shares do not violate any applicable law, are in conformity with the Company’s then operative certificate of incorporation (the “Certificate of Incorporation”) and bylaws (the “Bylaws”), do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (d) the certificates, if any, for the Base Prospectus Shares have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor, then the Base Prospectus Shares, when issued and sold in accordance with a duly authorized, executed and delivered purchase, underwriting or similar agreement, or upon conversion of any convertible Preferred Stock in accordance with their terms, or upon exercise of any Warrants in accordance with their terms, will be validly issued, fully paid and nonassessable.
2. With respect to the Preferred Stock offered under the Registration Statement, provided that (a) the Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (b) the terms and issuance of the Preferred Stock have been duly authorized by all necessary corporate action on the part of the Company; (c) the terms of the shares of the Preferred Stock and their issuance and sale do not violate any applicable law, are in conformity with the Certificate of Incorporation and the Bylaws, do not result in a default under or breach of any agreement or instrument binding upon the Company and comply with any applicable requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (d) the certificates, if any, for the Preferred Stock have been duly executed by the Company, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor, then the Preferred Stock, when issued and sold in accordance with a duly authorized, executed and delivered purchase, underwriting or similar agreement, or upon exercise of any Warrants in accordance with their terms, will be validly issued, fully paid and nonassessable.
3. With respect to the Warrants issued under the Warrant Agreements and offered under the Registration Statement, provided that (a) the Registration Statement and any required post-effective amendment thereto have become effective under the Securities Act and the Base Prospectus and any and all Prospectus Supplement(s) required by applicable laws have been delivered and filed as required by such laws; (b) the applicable Warrant Agreement has been duly authorized by the Company and the Warrant Agent by all necessary corporate action; (c) the applicable Warrant Agreement has been duly executed and delivered by the Company and the Warrant Agent; (d) the issuance and terms of the Warrants have been duly authorized by the Company by all necessary corporate action; (e) the terms of the Warrants and of their issuance and sale have been duly established in conformity with the applicable Warrant Agreement and as described in the Registration Statement, the Base Prospectus and the related Prospectus Supplement(s), so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company, so as to be in conformity with the Certificate of Incorporation and the Bylaws, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; and (f) the Warrants have been duly executed and delivered by the Company and authenticated by the Warrant Agent pursuant to the applicable Warrant Agreement and delivered against payment therefor, then the Warrants, when issued and sold in accordance with the applicable Warrant Agreement and a duly authorized, executed and delivered purchase, underwriting or similar agreement, will be binding obligations of the Company, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, and by general equitable principles (regardless of whether considered in a proceeding at law or in equity).
Cooley LLP One Freedom Square, Reston Town Center, 11951 Freedom Drive, Reston, VA 20190-5656
t: +1 703 456-8084 f: +1 703 456-8100 cooley.com
March 1, 2024 Page Four |
4. The Placement Shares, when sold and issued against payment therefor in accordance with the Sales Agreement, the Registration Statement and the Sales Agreement Prospectus, 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 our firm under the caption “Legal Matters” in the Base Prospectus and the Sales Agreement Prospectus. We further consent to the incorporation by reference of this opinion into any registration statement filed pursuant to Rule 462(b) under the Securities Act with respect to additional Securities. In giving such consents, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Our opinion set forth above is limited to the matters expressly set forth in this letter, and no opinion should be implied or may be inferred beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof, and we undertake no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
Very truly yours,
Cooley LLP
By: | /s/ Mark Ballantyne | |
Mark Ballantyne |
Cooley LLP One Freedom Square, Reston Town Center, 11951 Freedom Drive, Reston, VA 20190-5656
t: +1 703 456-8084 f: +1 703 456-8100 cooley.com
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated March 1, 2024, relating to the consolidated financial statements of VYNE Therapeutics Inc. which appears in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023.
We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ BAKER TILLY US, LLP
Tewksbury, Massachusetts
March 1, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
VYNE Therapeutics Inc.
(Exact name of Registrant as Specified in its Charter)
Security Type | Security Class Title | Fee Calculation or Carry Forward Rule | Amount Registered | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | Carry Forward Form Type | Carry Forward File Number | Carry Forward Initial effective date | Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward | ||||||||||||||||||
Newly Registered Securities | |||||||||||||||||||||||||||||
Fees to Be Paid | Equity | Common Stock, par value $0.0001 per share | — | — | — | — | — | — | |||||||||||||||||||||
Equity | Preferred Stock, par value $0.0001 per share | — | — | — | — | — | — | ||||||||||||||||||||||
Other | Warrants | — | — | — | — | — | — | ||||||||||||||||||||||
Total | Unallocated (Universal) Shelf | Rule 457(o) | (1 | ) | (2 | ) | $ | 55,752,313.40 | 0.00014760 | $ | 8,229.04 | ||||||||||||||||||
Carry Forward Securities | |||||||||||||||||||||||||||||
Carry Forward Securities | Equity | Common Stock, par value $0.0001 per share | — | — | — | — | — | — | — | — | — | — | |||||||||||||||||
Equity | Preferred Stock, par value $0.0001 per share | — | — | — | — | — | — | — | — | — | — | ||||||||||||||||||
Other | Warrants | — | — | — | — | — | — | — | — | — | — | ||||||||||||||||||
Total | Unallocated (Universal) Shelf | Rule 415(a)(6) | (3 | ) | $ | 194,247,686.60 | (3) | S-3 | 333-255841 | May 6, 2021 | $ | 21,192.42 | (3) | ||||||||||||||||
Total Offering Amounts | $ | 250,000,000 | $ | 8,229.04 | |||||||||||||||||||||||||
Total Fees Previously Paid | — | ||||||||||||||||||||||||||||
Total Fee Offsets | — | ||||||||||||||||||||||||||||
Net Fee Due | $ | 8,229.04 |
(1) There are being registered hereunder such indeterminate number of shares of common stock, such indeterminate number of shares of preferred stock and such indeterminate number of warrants to purchase common stock or preferred stock registered hereunder as shall have an aggregate initial offering price not to exceed $250,000,000. The securities registered also include such indeterminate number of shares of common stock and preferred stock as may be issued upon exercise of warrants or pursuant to the antidilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
(2) The proposed maximum aggregate offering price per class of security will be determined from time to time by VYNE Therapeutics Inc. (the “Registrant”) in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to Instruction 2.A.iii.b of the Instructions to the Calculation of Filing Fee Tables and related disclosure on Form S-3.
(3) The Registrant previously filed a Registration Statement on Form S-3 with the Securities and Exchange Commission (the “SEC”) on May 6, 2021 (File No. 333-255841) (the “Prior Registration Statement”), which was declared effective on May 14, 2021, that registered $200,000,000 of securities to be offered by the Registrant from time to time. Pursuant to Rule 415(a)(6) under the Securities Act, this Registration Statement includes $194,247,686.60 of unsold securities (the “Unsold Securities”) that were previously registered on the Prior Registration Statement. In connection with the registration of the Unsold Securities on the Prior Registration Statement, the Registrant paid a filing fee of $21,192.42 (calculated at the filing fee rate in effect at the time of the filing of the Prior Registration Statement). The Registrant is not required to pay any additional fee with respect to the Unsold Securities being included in this Registration Statement in reliance on Rule 415(a)(6), because such Unsold Securities (and associated fees) are being moved from the Prior Registration Statement to this Registration Statement. Accordingly, the Amount of Registration Fee in the table above reflects only the registration fee attributable to the $55,752,313.40 of new securities registered on this Registration Statement. The registration fee previously paid by the Registrant relating to the Unsold Securities included on this Registration Statement will continue to be applied to such Unsold Securities. During the grace period afforded by Rule 415(a)(5) under the Securities Act, the Registrant may continue to offer and sell under the Prior Registration Statement the Unsold Securities being registered hereunder. To the extent that, after the filing date hereof and prior to the effectiveness of this Registration Statement, the Registrant sells any such Unsold Securities pursuant to the Prior Registration Statement, the Registrant will identify in a pre-effective amendment to this Registration Statement the updated amount of Unsold Securities from the Prior Registration Statement to be included in this Registration Statement pursuant to Rule 415(a)(6). Pursuant to Rule 415(a)(6), the offering of the Unsold Securities under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this Registration Statement.
1
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