PRE 14C: Preliminary information statement not related to a contested matter or merger/acquisition
Published on April 12, 2016
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C
(RULE 14C-101)
INFORMATION STATEMENT
PURSUANT TO SECTION 14(C)
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
| Check the appropriate box: | ||
| x | Preliminary Information Statement | |
| ¨ | Definitive Information Statement | |
| ¨ | Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)(2)) | |
HEDGEPATH PHARMACEUTICALS, INC.
(Name of Registrant As Specified In Its Charter)
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HEDGEPATH PHARMACEUTICALS, INC.
NOTICE OF STOCKHOLDER ACTION BY WRITTEN CONSENT
April 12, 2016
Dear Stockholders:
We are furnishing the attached Information Statement to the holders of common stock, par value $0.0001 per share (the Common Stock), of HedgePath Pharmaceuticals, Inc., a Delaware corporation (the Company, we, us, our or similar terminology). The purpose of the Information Statement is to notify the Companys stockholders that, in lieu of a meeting of the Companys Board of Directors (the Board) and a meeting of the Companys stockholders, respectively, and pursuant to Sections 141(f), 228 and 242 of the Delaware General Corporation Law (the DGCL), the Board, and Hedgepath, LLC (HPLLC) and Mayne Pharma Ventures Pty Ltd. (Mayne Pharma and collectively with HPLLC, the Voting Stockholders), the holders of approximately 92% of our outstanding Common Stock as of April 5, 2016, have taken and approved, by joint written consent, an amendment (the Amendment) to Article FOURTH of the Companys Certificate of Incorporation, as amended (the Certificate of Incorporation), to increase the number of authorized shares of Common Stock from 340,000,000 to 500,000,000.
This Notice of Stockholder Action by Written Consent shall constitute notice to you of the Voting Stockholders taking action by written consent under Section 228 of the DGCL.
The accompanying Information Statement is being provided to you for your information to comply with the requirements of Regulation 14C of the Securities Exchange Act of 1934, as amended (Exchange Act). The Information Statement constitutes further notice to you of the aforementioned corporate actions to be taken without a meeting, by less than unanimous consent of our stockholders, pursuant to Section 228 of the DGCL. You are urged to read the Information Statement carefully in its entirety. However, no action is required on your part in connection with the Information Statement or the actions taken by the Voting Stockholders, including with respect to the approval of the Amendment. No meeting of our stockholders will be held or proxies requested because we have received written consent to these matters from the Voting Stockholders who collectively hold a majority of the aggregate issued and outstanding shares of our voting stock.
Under Rule 14c-2(b) of the Exchange Act, none of the actions described in the Information Statement may be taken earlier than 20 calendar days after we have sent or given the Information Statement to our stockholders. We intend to distribute this Notice and Information Statement to our stockholders on or about April 22, 2016. The record date established for purposes of determining the number of issued and outstanding shares of voting stock, and thus voting power, was April 5, 2016.
THIS IS FOR YOUR INFORMATION ONLY. YOU DO NOT NEED TO DO ANYTHING IN RESPONSE TO THIS INFORMATION STATEMENT. THIS IS NOT A NOTICE OF A MEETING OF STOCKHOLDERS AND NO STOCKHOLDER MEETING WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED HEREIN.
| Sincerely |
| /s/ Nicholas J. Virca |
| Name: Nicholas J. Virca Title: President and Chief Executive Officer |
HEDGEPATH PHARMACEUTICALS, INC.
324 South Hyde Park Avenue, Suite 350
Tampa, Florida 33606
(813) 864-2559
INFORMATION STATEMENT
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY
INTRODUCTION
This Information Statement is being furnished to the stockholders of HedgePath Pharmaceuticals, Inc. (the Company, we, us, our or similar terminology) in connection with the actions to be taken by us as a result of a joint written consent in lieu of a meeting of the Companys Board of Directors (the Board) and the Companys majority stockholders, respectively, pursuant to Sections 141(f), 228 and 242 of the Delaware General Corporation Law (the DGCL), dated March 11, 2016.
This Information Statement and Notice of Stockholder Action by Written Consent is being furnished by us to our stockholders of record as of April 5, 2016 (the Record Date), to inform our stockholders that the Board, along with Hedgepath, LLC (HPLLC) and Mayne Pharma Ventures Pty Ltd. (Mayne Pharma and collectively with HPLLC, the Voting Stockholders), as the holders of approximately 83.9% of our outstanding common stock, par value $0.0001 per share (the Common Stock) as of April 5, 2016, have taken and approved, by joint written consent, an amendment (the Amendment) to Article FOURTH of our Certificate of Incorporation, as amended (the Certificate of Incorporation), to increase the number of authorized shares of Common Stock from 340,000,000 to 500,000,000 (the Corporate Action).
This Information Statement is being sent to you to notify you of the Corporate Action being taken and shall constitute notice to you of the Voting Stockholders taking action by written consent under Section 228 of the DGCL.
The ability to proceed without a special meeting of the stockholders to approve, adopt and/or ratify the Corporate Action is authorized by Sections 228 and 242 of the DGCL which provides that, unless otherwise provided in our Certificate of Incorporation, actions required or permitted to be taken at a meeting of our stockholders may be taken without a meeting if a written consent that sets forth the action so taken is signed by stockholders holding at least a majority of the voting power, except that if a different proportion of voting power is required for such an action at a meeting, then that proportion of written consents is required. Such consent shall have the same force and effect as a majority vote of the stockholders and may be stated as such in any document. Our Certificate of Incorporation does not contain any provisions contrary to the provisions of Sections 228 and 242 of the DGCL. Thus, to eliminate the cost and time involved in holding a meeting, and in order to take the Corporate Action as described in this Information Statement, certain of our stockholders representing in excess of 50% of the voting stock executed and delivered the joint written consent to us.
We are distributing this Information Statement to our stockholders in full satisfaction of any notice requirements we may have under the DGCL and of Regulation 14C of the Securities and Exchange Act of 1934, as amended (the Exchange Act).
This Information Statement is dated as of and is first being sent or given to our stockholders of record on or about April 22, 2016.
As of the Record Date, there were 245,353,270 shares of our Common Stock issued and outstanding and entitled to notice of and to vote on all matters presented to stockholders. We do not have any shares of preferred stock issued and outstanding. The required vote for the adoption of the Amendment was a majority of the issued and outstanding shares of Common Stock. On March 11, 2016, the Voting Stockholders, as the holders of record of approximately 83.9% of the outstanding shares of our voting stock on such date, executed a joint written consent adopting, approving and/or ratifying the Corporate Action. When actions are taken by written consent of less than all of the stockholders entitled to vote on a matter, Section 228 of the DGCL requires notice of the action to those
stockholders who did not vote. This Information Statement and the accompanying Notice of Stockholder Action by Written Consent constitute notice to you of the action by written consent as required by Section 228 of the DGCL. Because we have obtained sufficient stockholder approval of the Corporate Action, no other consents or votes will be solicited in connection with this Information Statement.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
Under federal securities laws, the Corporate Action may not be completed until 20 calendar days after the date of distribution of this Information Statement to our stockholders. Therefore, notwithstanding the execution and delivery of the written consent, the Corporate Action will not occur until that time has elapsed.
Dissenters Rights of Appraisal
Under the DGCL, Company stockholders are not entitled to appraisal rights with respect to the Corporate Actions.
Proposals by Security Holders
No stockholder has requested that we include any additional proposals in this Information Statement.
Interest of Certain Persons In or Opposition to Matters to be Acted Upon
We are not aware of any substantial interest, direct or indirect, by our executive officers or directors that is in favor of or in opposition to the Corporate Action.
Security Ownership of Certain Beneficial Owners and Management
As of the Record Date, the Company had 245,353,270 shares of Common Stock issued and outstanding. Holders of Common Stock are entitled to one vote per share. The following table sets forth the beneficial ownership of the Common Stock as of the Record Date by each person who served as a director and/or an executive officer of the Company on the Record Date, the number of shares beneficially owned by all of the Companys directors and executive officers as a group, and any persons who beneficially own 5% or greater of the Common Stock as of the Record Date. The business address for each of the Companys officers and directors is 324 South Hyde Park Avenue, Suite 350, Tampa, FL 33606.
| Name and address of beneficial owners |
Amount and nature of beneficial ownership of Common Stock |
Approximate percentage of outstanding Common Stock (1) |
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| Mayne Pharma Ventures Pty Ltd.(2) |
164,761,132 | 57.0 | % | |||||
| Hedgepath, LLC(3) |
94,937,638 | 37.1 | % | |||||
| Black Robe Capital LLC(4) |
94,937,638 | 37.1 | % | |||||
| Hopkins Capital Group II, LLC(5) |
20,000,000 | 8.2 | % | |||||
| Frank E. ODonnell, Jr., M.D.(4) |
114,937,638 | 45.0 | % | |||||
| Nicholas J. Virca(6) |
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| Garrison J. Hasara, CPA(7) |
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| Samuel P. Sears(8) |
1,106,096 | * | ||||||
| Stefan J. Cross(9) |
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| Dr. R. Dana Ono(10) |
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| W. Mark Watson, CPA(11) |
10,000 | * | ||||||
| All directors and executive officers as a group (7 persons) |
116,063,734 | 45.4 | % | |||||
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* Less than 1%
| (1) | Applicable percentages are based on 245,353,270 shares outstanding as of the Record Date. This table is based upon information supplied by officers, directors, and principal stockholders and Schedule 13D(s) and 13G(s) filed with the SEC. Unless indicated in the footnotes to this table and subject to community property laws where applicable, we believe that each of the stockholders named in this table has sole voting and investment power with respect to the shares indicated as beneficially owned. |
| (2) | Includes 121,177,230 shares of our Common Stock and vested but unexercised warrants to purchase an additional 43,583,902 shares of our Common Stock. The address for Mayne Pharma is Level 14, 474 Flinders Street, Melbourne Vic 3000, Australia. |
| (3) | Includes 84,687,069 shares of our Common Stock and a warrant to purchase an additional 10,250,569 shares of our Common Stock. The address for HPLLC is 324 S Hyde Park Avenue, Suite 350, Tampa, Florida 33606 |
| (4) | The address for Black Robe Capital, LLC (Black Robe) is 324 S Hyde Park, Suite 350, Tampa, Florida 33606. Black Robe is the sole manager of HPLLC, and has sole voting and dispositive power over the securities held by HPLLC. Frank E. ODonnell, Jr., MD, our Executive Chairman, is the sole manager of Black Robe, with sole voting and dispositive power over Black Robe, and The Francis E. ODonnell Jr. Irrevocable Trust No. 7 is the sole member of Black Robe. Pursuant to his manager role at Black Robe, Dr. ODonnell may be considered for SEC reporting purposes the beneficial owner of any shares held by HPLLC. He disclaims ownership of any shares in HPLLC in which he does not have a pecuniary interest. |
| (5) | The address for Hopkins Capital Group II, LLC is 324 S Hyde Park Suite 350, Tampa, Florida 33606. As a co-manager of Hopkins Capital Group II, LLC, Dr. ODonnell may be considered for SEC reporting purposes the beneficial owner of any shares held by Hopkins Capital Group II, LLC. He disclaims ownership of any shares in Hopkins Capital Group II, LLC in which he does not have a pecuniary interest. |
| (6) | Mr. Virca is our Chief Executive Officer and President. Excludes 15,041,738 unvested restricted stock units issued under our 2014 Equity Incentive Plan. Mr. Vircas address is 700 West Harbor Drive #1104, San Diego, CA 92101. |
| (7) | Mr. Hasara is our Chief Financial Officer and Treasurer. Excludes 7,000,000 unvested restricted stock units issued under our 2014 Equity Incentive Plan. Mr. Hasaras address is 16904 Melissa Ann Drive, Lutz, FL 33558. |
| (8) | Mr. Sears is a director of our Company. Excludes 600,000 unvested restricted stock units issued under our 2014 Equity Incentive Plan. Mr. Sears address is 1 Fieldstone Drive, Winchester, MA. 01890. |
| (9) | Mr. Cross is a director of our Company. Excludes 600,000 unvested restricted stock units issued under our 2014 Equity Incentive Plan. Mr. Cross address is 503 Guilford Circle, Raleigh, NC 27608. |
| (10) | Dr. Ono is a director of our Company. Excludes 600,000 unvested restricted stock units issued under our 2014 Equity Incentive Plan. Dr. Onos address is 18 Spring Road, Concord, MA, 01742. |
| (11) | Mr. Watson is a director of our Company. Excludes 700,000 unvested restricted stock units issued under our 2014 Equity Incentive Plan. Mr. Watsons address is 275 Bayshore Blvd., #403, Tampa, FL 33606. |
DESCRIPTION OF STOCKHOLDER ACTIONS
Introduction
On March 11, 2016, the Board and the Voting Stockholders, acting by joint written consent, approved the Amendment to amend the Certificate of Incorporation to increase the number of authorized shares of Common Stock from 340,000,000 to 500,000,000. The Certificate of Amendment to the Certificate of Incorporation (the Certificate of Amendment) reflecting the Amendment, which will not be filed until at least twenty days following the date of this Information Statement, will be effective upon the filing of such Certificate of Amendment in the form attached as Annex A with the Secretary of State of Delaware.
Purpose of Corporate Action
The purpose of the Corporate Action is to increase the number of authorized shares of Common Stock to accommodate the Companys future financing plans and corporate initiatives.
Vote Required
Section 242 of the DGCL required the affirmative vote of a majority of the outstanding shares of our Common Stock to approve and adopt the Amendment.
ANNUAL REPORT ON FORM 10-K AND ADDITIONAL INFORMATION
Information Available
The Company is subject to the information and reporting requirements of the Exchange Act and in accordance with the Exchange Act, the Company files periodic reports, documents and other information with the SEC relating to its business, financial statements and other matters, including the Companys Annual Report on Form 10-K for the year ended December 31, 2015, and any reports prior to or subsequent to that date.
These reports and other information filed by the Company with the SEC may be inspected and are available for copying at the public reference facilities maintained at the SEC at 100 F Street NW, Washington, D.C. 20549.
The Companys filings with the SEC are also available to the public from the SECs website, http://www.sec.gov. The Companys Annual Report on Form 10-K for the year ended December 31, 2015, and other reports filed under the Exchange Act, are also available to any stockholder at no cost upon request to: 324 S. Hyde Park Avenue, Ste. 350, Tampa, Florida 33606.
Stockholder Communications
Stockholders wishing to communicate with the Board may direct such communications to the Company at 324 S. Hyde Park Avenue, Ste. 350, Tampa, Florida 33606, Attn: Nicholas J. Virca. Mr. Virca will present a summary of all stockholder communications to the Board at subsequent Board meetings. The directors will have the opportunity to review the actual communications at their discretion.
Delivery Of Documents To Security Holders Sharing An Address
If hard copies of the materials are requested, we will send only one Information Statement and other corporate mailings to stockholders who share a single address unless we received contrary instructions from any stockholder at that address. This practice, known as householding, is designed to reduce our printing and postage costs. However, the Company will deliver promptly upon written or oral request a separate copy of the Information Statement to a stockholder at a shared address to which a single copy of the Information Statement was delivered. You may make such a written or oral request by (a) sending a written notification stating (i) your name, (ii) your shared address and (iii) the address to which the Company should direct the additional copy of the Information Statement, to the Company at 324 S. Hyde Park Avenue, Ste. 350, Tampa, Florida 33606.
If multiple stockholders sharing an address have received one copy of this Information Statement or any other corporate mailing and would prefer the Company to mail each stockholder a separate copy of future mailings, you may send notification to or call the Companys principal executive offices. Additionally, if current stockholders with a shared address received multiple copies of this Information Statement or other corporate mailings and would prefer the Company to mail one copy of future mailings to stockholders at the shared address, notification of such request may also be made by mail or telephone to the Companys principal executive offices.
| By Order of the Board of Directors |
| /s/ James A. McNulty |
| Name: James A. McNulty Title: Secretary |
Annex A
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
HEDGEPATH PHARMACEUTICALS, INC.
HedgePath Pharmaceuticals, Inc. (the Corporation), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the DGCL), does hereby certify:
First: That the Board of Directors of the Corporation (the Board), in accordance with the applicable provisions of Section 141(f) of the DGCL, by written consent filed with the minutes of the Board, adopted resolutions proposing and declaring advisable the following amendments to the Certificate of Incorporation of the Corporation (the Certificate of Incorporation):
RESOLVED, that Article FOURTH of the Certificate of Incorporation be amended by deleting in its entirety the first sentence of such Article and replacing such language with the following:
The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is Five Hundred Ten Million (510,000,000), of which Five Hundred Million (500,000,000) shares shall be common stock, par value of $0.0001 per share (Common Stock), and Ten Million (10,000,000) shares of preferred stock, par value $0.0001 per share (the Preferred Stock).
Second: That in lieu of a meeting and vote of the stockholders of the Corporation (the Stockholders), the Stockholders have given written consent to said amendments in accordance with the provisions of Section 228 of the DGCL, and written notice of the adoption of the amendments has been given as provided in Section 228 of the DGCL to every stockholder entitled to such notice.
Third: That the aforesaid amendments were duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the DGCL.
Fourth: That the amendment shall be effective on the date of the filing of this Certificate of Amendment of Certificate of Incorporation (this Certificate) with the office of the Secretary of State of the State of Delaware.
[Signature Page Follows]
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed this [ ] day of [ ], 2016.
| HEDGEPATH PHARMACEUTICALS, INC. | ||
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