AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 13, 2016

REGISTRATION NO. 333-189337

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

POST-EFFECTIVE AMENDMENT NO. 4 TO FORM S-1 ON FORM S-3

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

DELMAR PHARMACEUTICALS, INC.

(Exact name of registrant as specified in its charter)

 

Nevada

(State or other jurisdiction of incorporation or organization)

 

99-0360497

I.R.S. Employer Identification Number

 

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

 

Suite 720-999 West Broadway

Vancouver, British Columbia

Canada V5Z 1K5

(604) 629-5989

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

 

Copies to:

 

Gregory Sichenzia, Esq.

David B. Manno, Esq.

Sichenzia Ross Friedman Ference LLP

61 Broadway

New York, New York 10006

Phone: 212-930-9700

Fax: 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: ☐

 

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 plants, check the following box: ☐

 

 

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 and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

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

 

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

 

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

 

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

☐

Large accelerated filer

☐

Accelerated filer

☐

Non-accelerated filer

☒

Smaller reporting company

 

Note Regarding Registration Fees:

 

All fees for the registration of the shares registered on this Post-Effective Amendment No. 4 were paid upon the initial filing of the previously filed registration statement covering such shares. No additional shares are registered and accordingly, no additional fees are payable.

 

The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

Pursuant to Rule 429 under the Securities Act of 1933, as amended, this Registration Statement contains a prospectus that also relates to 1,021,771 shares of common stock issuable upon exercise of warrants registered on the Registration Statement on Form S-1 (Registration No. 333-203357) previously filed by the Registrant and declared effective on July 15, 2015. This Registration Statement constitutes Post-Effective Amendment No. 2 to the Registrant’s Registration Statement on Form S-1 (Registration No. 333-203357), and such post-effective amendment shall hereafter become effective concurrently with the effectiveness of this Registration Statement and in accordance with Section 8(c) of the Securities Act.

 

 

 

The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement relating to these securities that has been 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.

 

PROSPECTUS SUBJECT TO COMPLETION, DATED SEPTEMBER 13, 2016

 

DELMAR PHARMACEUTICALS, INC.

 

5,595,707 Shares of Common Stock Offered by Selling Stockholders

1,021,771 Shares of Common Stock Offered by the Company

 

This prospectus relates to the public offering of up to 5,595,707 shares of common stock of DelMar Pharmaceuticals, Inc. by the selling stockholders including 3,821,135 outstanding shares, 1,724,572 shares issuable upon exercise of outstanding warrants, and 50,000 shares issuable upon exchange of Exchangeable Shares (as defined herein). The selling stockholders may sell common stock from time to time in the principal market on which the stock is traded at the prevailing market price or in negotiated transactions. We will not receive any of the proceeds from the sale of common stock by the selling stockholders. We will pay the expenses of registering these shares.

 

This prospectus also includes 999,003 shares of common stock issuable upon exercise of warrants issued by the Company pursuant to the Company’s public offering of common stock and common stock purchase warrants completed by the Company in the quarter ended September 30, 2015 (the “Public Offering”), including shares issuable upon exercise of warrants issued to the investors under the Public Offering (the “Public Offering Warrants”) and 22,768 shares issued to the placement agents under the Public Offering (the “2015 Agent Warrants”). The Public Offering Warrants have an exercise price of $3.00 and expire on July 31, 2020. The 2015 Agent Warrants have an exercise price of $3.00 and expire on July 15, 2020.

 

Our common stock is currently traded on the NASDAQ Capital Market under the symbol “DMPI.” On September 9, 2016, the last reported sales price for our common stock was $7.10 per share.

 

The securities offered by this prospectus involve a high degree of risk. See “Risk Factors” beginning on page 2, in addition to Risk Factors contained in the applicable prospectus supplement.

 

We may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should read the entire prospectus and any amendments or supplements carefully before you make your investment decision.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

This prospectus is dated ___________, 2016

 

 

Table of Contents

 

	Page
ABOUT THIS PROSPECTUS
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS	ii
ABOUT DELMAR	1
RISK FACTORS	2
USE OF PROCEEDS	2
SELLING STOCKHOLDERS	2
DESCRIPTION OF CAPITAL STOCK	6
PLAN OF DISTRIBUTION	8
EXPERTS	10
WHERE YOU CAN FIND MORE INFORMATION	10
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE	10

  

You may only rely on the information contained in this prospectus or that we have referred you to. We have not authorized anyone to provide you with different information. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities other than the common stock offered by this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any common stock in any circumstances in which such offer or solicitation is unlawful. Neither the delivery of this prospectus nor any sale made in connection with this prospectus shall, under any circumstances, create any implication that there has been no change in our affairs since the date of this prospectus or that the information contained by reference to this prospectus is correct as of any time after its date.

 

 

EXPLANATORY NOTE

 

This registration statement is filed by the registrant as (i) post-effective amendment #4 on Form S-3 to update the Registration Statement on Form S-1 originally filed by the registrant with the Securities and Exchange Commission on June 14, 2013 and declared effective by the Securities and Exchange Commission on June 28, 2013, as amended by post-effective amendment #1 thereto, filed with the Securities and Exchange Commission on April 17, 2014, and declared effective by the Securities and Exchange Commission on April 29, 2014, and as amended by post-effective amendment #2 thereto, filed with the Securities and Exchange Commission on March 6, 2015, and declared effective by the Securities and Exchange Commission on March 13, 2015, and post-effective amendment #3 on Form S-1 filed with the Securities and Exchange Commission on November 20, 2015, and declared effective by the Securities and Exchange Commission on November 30, 2015 and (ii) post-effective amendment # 2 on From S-3 to update the Registration Statement on Form S-1 originally filed by the registrant with the Securities and Exchange Commission on April 10, 2015 and declared effective by the Securities and Exchange Commission on July 15, 2015, as a mended by post-effective amendment #1 thereto, filed with the Securities and Exchange Commission on November 20, 2015 and declared effective by the Securities and Exchange Commission on November 30, 2015. The registrant is not seeking to register any additional shares pursuant to this Registration Statement.

  

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

 

This prospectus and the documents and information incorporated by reference in this prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These statements are based on our management’s beliefs and assumptions and on information currently available to our management. Forward-looking statements include statements concerning:

 

●

our ability to raise funds for general corporate purposes and operations, including our research activities and clinical trials;

 

●

our ability to recruit qualified management and technical personnel;

 

●

the success of our clinical trials;

 

●

our ability to obtain and maintain required regulatory approvals for our products; and

 

●

the other factors discussed in the “Risk Factors” section and elsewhere in this prospectus.

 

All statements in this prospectus and the documents and information incorporated by reference in this prospectus that are not historical facts are forward-looking statements. We may, in some cases, use terms such as “anticipates,” “believes,” “could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “predicts,” “projects,” “should,” “will,” “would” or similar expressions or the negative of such items that convey uncertainty of future events or outcomes to identify forward-looking statements.

 

Forward-looking statements are made based on management’s beliefs, estimates and opinions on the date the statements are made and we undertake no obligation to update forward-looking statements if these beliefs, estimates and opinions or other circumstances should change, except as may be required by applicable law. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements.

 

 

SUMMARY

 

The following is only a summary, and does not contain all of the information that you need to consider in making your investment decision. We urge you to read this entire prospectus, including the more detailed consolidated financial statements, notes to the consolidated financial statements and other information incorporated by reference into this prospectus under “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” from our other filings with the SEC, as well as any prospectus supplement applicable to an offering of the securities registered pursuant to the registration statement of which this prospectus forms a part. Investing in our securities involves risks. Therefore, please carefully consider the information provided under the heading “Risk Factors” beginning on page 2.

 

The terms “DelMar,” the “Company,” “we,” “our” or “us” in this prospectus refer to DelMar Pharmaceuticals, Inc. and its wholly-owned subsidiaries, unless the context suggests otherwise.

 

ABOUT DELMAR

 

DelMar Pharmaceuticals, Inc. (the “Company”) is a Nevada corporation formed on June 24, 2009. DelMar Pharmaceuticals, Inc. is the parent company of Del Mar Pharmaceuticals (BC) Ltd. (“DelMar (BC)”), a British Columbia, Canada corporation incorporated on April 6, 2010, which is a clinical and commercial stage drug development company with a focus on the treatment of cancer. We are conducting clinical trials in the United States with our product, VAL-083, as a potential new treatment for glioblastoma multiforme (“GBM”), the most common and aggressive form of brain cancer. We have also acquired certain exclusive commercial rights to VAL-083 in China where it is approved as a chemotherapy for the treatment of chronic myelogenous leukemia (“CML”) and lung cancer. We plan to seek marketing partnerships in China, and other jurisdictions, in order to potentially generate future royalty revenue as well as to pursue independent development and commercialization of VAL-083 and potentially other product candidates that we may acquire or discover through our research activities. 

 

We have incurred losses since our inception. Since our inception on April 6, 2010 through June 30, 2016, we have accumulated net losses of $32,237,859. We incurred net losses of $8,864,864 for the year ended June 30, 2016, and a net loss of $4,347,767 for the year ending June 30, 2015. 

 

Our principal executive offices are located a Suite 720-999 West Broadway, Vancouver, British Columbia, Canada V5Z 1K5. Our telephone number is (604) 629-5989. We maintain an Internet website at www.delmarpharma.com. The information contained on, connected to or that can be accessed via our website is not part of this prospectus. We have included our website address in this prospectus as an inactive textual reference only and not as an active hyperlink.

  

 

RISK FACTORS

  

An investment in our common stock involves a high degree of risk. Before making an investment decision, you should consider carefully the risks, uncertainties and other factors described in our most recent Annual Report on Form 10-K, as supplemented and updated by subsequent quarterly reports on Form 10-Q and current reports on Form 8-K that we have filed or will file with the SEC, which are incorporated by reference into this prospectus.

 

Our business, affairs, prospects, assets, financial condition, results of operations and cash flows could be materially and adversely affected by these risks. For more information about our SEC filings, please see “Where You Can Find More Information”.

 

USE OF PROCEEDS

 

We will receive no proceeds from the sale of shares of common stock offered by the selling stockholders. However, we will generate proceeds from the cash exercise of the Investor Warrants by the selling stockholders or from the cash exercise of the Public Offering Warrants or the 2015 Agent Warrants, if any. We intend to use those proceeds for general corporate purposes.

 

SELLING SECURITY HOLDERS

 

This prospectus relates to the offering by the selling stockholders of up to 5,595,707 shares of common stock, including 1,724,572 shares issuable upon exercise of warrants and 50,000 shares issuable upon exchange of Exchangeable Shares. Common stock issued upon exchange of Exchangeable Shares and upon the exercise of Exchange Agreement Warrants held by Canadian residents may be subject to statutory hold periods in accordance with applicable Canadian securities laws.

 

The following table sets forth, based on information provided to us by the selling stockholders or known to us, the name of each selling stockholder, the nature of any position, office or other material relationship, if any, which the selling stockholder has had, within the past three years, with us or with any of our predecessors or affiliates, and the number of shares of our common stock beneficially owned by the stockholder before this offering. The number of shares owned are those beneficially owned, as determined under the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under these rules, beneficial ownership includes any shares of common stock as to which a person has sole or shared voting power or investment power and any shares of common stock which the person has the right to acquire within 60 days through the exercise of any option, warrant or right, through conversion of any security or pursuant to the automatic termination of a power of attorney or revocation of a trust, discretionary account or similar arrangement. Except as set forth below, none of the selling stockholders is a broker-dealer or an affiliate of a broker-dealer.

 

We have assumed all shares of common stock reflected on the table will be sold from time to time in the offering covered by this prospectus. Because the selling stockholders may offer all or any portions of the shares of common stock listed in the table below, no estimate can be given as to the amount of those shares of common stock covered by this prospectus that will be held by the selling stockholders upon the termination of the offering.

 

Selling Stockholder		Number of Shares of Common Stock Beneficially Owned Prior to Offering				Shares of Common Stock Offered in this Offering				Shares of Common Stock Beneficially Owned After this Offering				Percentage of Common Stock Beneficially Owned After this Offering
Howard K. Fuguet			619,750				500,000	(1)			0				0
NFS LLC Roth IRA FBO Howard K. Fuguet			119,750				119,750	(1)			0				0
Justin K. McCormick			62,500				62,500	(1)			0				0
Greg Waisanen			7,876				7,876	(2)			0				0
John Menna			37,500				37,500	(3)			0				0
Michael Menna			11,250				11,250	(56)			0				0
Jonathan Menna			11,250				11,250	(56)			0				0
Sean Menna			11,250				11,250	(56)			0				0
Brandon Menna			11,250				11,250	(56)			0				0
Kevin Menna			11,250				11,250	(56)			0				0
Michael Leiter			137,740				109,376	(4)			28,364				*
Don Bahouth			347,500				260,625	(34)			86,875				*
Robert M. Newsome			290,451				290,451	(1)			0				0
John C. Ramsay			75,001				75,001	(1)			0				0
Renald & Catherine C. Anelle JTTEN			98,126				98,126	(1)			0				0
John D. Marx			17,424				12,487	(34)			4,937				*
William R. Lefever			219,456				143,500	(1)			75,956				*
William H. Heilferty			24,064				24,064	(1)			0				0
Martin Johnston			9,852				9,803	(34)			49				*
NFS LLC IRA FBO David A. King			15,000				15,000	(1)			0				0
Scott Anderson			41,667				31,250	(34)			10,417				*
AT Media Corp.			170,383				90,000	(57)			80,383				*
Ross DiMaggio			25,000				25,000	(58)			0				0

 

 

Selling Stockholder		Number of Shares of Common Stock Beneficially Owned Prior to Offering				Shares of Common Stock Offered in this Offering				Shares of Common Stock Beneficially Owned After this Offering				Percentage of Common Stock Beneficially Owned After this Offering
Alessandro Dubini			10,000				10,000	(1)			0				0
Richard Grossbard			93,751				93,751	(1)			0				0
George C. Christensen			49,752				17,782	(34)			12,438				*
COR Clearing FBO George C. Christensen Roth IRA			19,532				19,532	(34)			0				0
Lance Siegall			7,750				7,750	(1)			0				0
David Barry			22,918				20,938	(34)			1,980				*
Sean Joseph Cunningham			8,334				6,250	(34)			2,084				*
Janet Gargiulo			4,424				3,510	(34)			914				*
Michael Ravallo			83,334				31,250	(34)			10,417				*
DCG & T TTEE FBO Michael Ravallo ROTH IRA			41,667				31,250	(34)			10,417				*
W. Ron Raecker			10,158				10,158	(1)			0				0
Steve M. Payne			125,000				125,000	(6)			0				0
Lawrence Grossbard			116,564				116,564	(7)			0				0
Michael L. & Ann J. Hetzner JTTEN			5,250				5,250	(1)			0				0
Feldman Rev Inter Vivos Tr. Howard Feldman TTEE			15,626				15,626	(1)			0				0
Mayra Acevedo			3,334				2,500	(34)			834				*
Marc S. Sidoti			41,668				20,834	(34)			20,834				*
ECPC Capital LLC (37)			125,000				125,000	(6)			0				0
Mark F. Adams			23,376				23,376	(8)			0				0
John A. Medica III			4,938				4,938	(1)			0				0
Ryan Modesto			125,000				93,750	(34)			31,250				*
Keith Goodman			25,000				12,500	(9)			0				0
IRA FBO Keith Goodman Pershing LLC as Custodian			12,500				12,500	(12)			0				0
William C. & Debra B. Purdon JTTEN			22,500				22,500	(1)			0				0
National Financial Services, LLC FBO William C. Stone SEP IRA			24,375				24,375	(1)			0				0
William C. Stone & Megan N. Williams JTTEN			55,000				55,000	(1)			0				0
Anthony Lightman			3,203				3,203	(1)			0				0
Tim Slifkin			3,126				3,126	(10)			0				0
Jerry L. Derflinger			28,126				28,126	(1)			0				0
Space Maker Marketing Ltd (38)			2,709				2,032	(34)			677				*
Richard Todd Gross			6,750				6,750	(34)			0				0
Ronald C. Astrup			2,500				1,875	(34)			625				*
S. Kent Adams			103,750				103,750	(11)			0				0
Bradley Emms			18,000				18,000	(13)			0				0
Ralph D. Bias			50,000				50,000	(1)			0				0
Lennin Cepeda			1,251				938	(34)			313				*
Fermo C. Jaeckle			6,250				6,250	(14)			0				0
Manish Desai & Patricia Yeomans JTTEN			12,500				12,500	(12)			0				0
Joseph E. & Christine D. Heller JTTEN			22,597				20,626	(15)			1,875				*
Deepak H. Aggarwal			25,000				25,000	(16)			0				0
Eugene H. & Ellen R. Winter JTTEN			6,876				6,876	(17)			0				0
Akita Capital LLC (39)			15,626				15,626	(1)			0				0
Robert W. Lawrence			3,500				1,938	(34)			1,562				*
Charles Hill			214,002				136,500	(18)			0				0
COR Clearing FBO Charles Hill Roth IRA			77,502				77,502	(19)			0				0
COR Clearing FBO Sherri Hill Roth IRA			142,940				142,940	(20)			0				0
Jennifer Warneke			834				625	(1)			209				*
Virginia J. Wardlaw TTEE Samuel J. Wardlaw TTEE Bradley Dale Wardlaw Revocable Trust UAD 08/16/94			4,376				4,376	(21)			0				0
William Nowlin			16,043				12,032	(34)			4,011				*
Salvatore Gaglio			6,667				5,000	(34)			1,667				*
Thomas J. & Norva H. Gormley JTTEN			10,418				7,813	(34)			2,605				*
Rex Foley			3,500				3,500	(22)			0				0
Veidt Research LLC Profit Sharing Plan Michael Anthony TTEE			62,500				62,500	(29)			0				0
Jesse W. Yeomans			18,545				18,545	(23)			0				0
Michael Bonevento			31,250				31,250	(1)			0				0
Ronald J. Kapphahn			3,750				3,750	(1)			0				0
Daniel Coiro			31,250				31,250	(1)			0				0
Barry Magnus			12,500				12,500	(1)			0				0
Shawn MacArthur			10,938				10,938	(5)			0				0

 

 

Selling Stockholder		Number of Shares of Common Stock Beneficially Owned Prior to Offering				Shares of Common Stock Offered in this Offering				Shares of Common Stock Beneficially Owned After this Offering				Percentage of Common Stock Beneficially Owned After this Offering
Empire Stock Transfer Inc. (40)			15,625				15,625	(5)			0				0
Joseph B. Byrum			125,000				125,000	(1)			0				0
COR Clearing FBO John Dempsey Roth IRA			25,000				25,000	(1)			0				0
Michael A. Price			35,373				35,373	(24)			0				0
Allan P. Steffes			62,500				62,500	(29)			0				0
Laura Kozlowski			6,250				6,250	(14)			0				0
Robert J. Hoffman & Angela C. Mattiace			6,250				6,250	(14)			0				0
Brian & Debbie Keller JT WROS			16,472				12,063	(34)			4,409				*
Doug Terry			33,376				33,376	(25)			0				0
Mark B. Reed			15,625				15,625	(26)			0				0
Deck F. Couch			43,043				40,043	(34)			3,000				*
Paul Schumacher			44,376				44,376	(27)			0				0
MFO Management Co Pension Trust FBO C. Edward White			6,250				6,250	(1)			0				0
Philip Benz IRA COR Clearing Cust			8,688				8,688	(28)			0				0
Rajo Corp (42)			7,813				7,813	(5)			0				0
Ikona Global Partners			25,391				25,391	(59)			0				0
Baitfish Partners			5,860				5,860	(60)			0				0
Craig Fielder			92,750				80,250	(34)			12,500				*
John Ricotta			12,500				12,500	(1)			0				0
Kent F. Osborne			3,126				3,126	(10)			0				0
Arun Virick			3,000				3,000	(1)			0				0
Charles Schwab FBO Jared Sender			4,000				4,000	(5)			0				0
Harris Berenholz			4,167				3,125	(34)			1,042				*
Max Poynor			15,000				15,000	(31)			0				0
Rafique Sheikh			1,667				1,250	(34)			417				*
Robert Crocitto			18,250				10,000	(1)			8,250				*
Grigoriy Levitskiy			3,126				3,126	(10)			0				0
John Muccino			15,626				15,626	(1)			0				0
Tyler Meierotto			18,750				18,750	(1)			0				0
Karen M. Allen			6,250				6,250	(14)			0				0
Scott Marshall			50,000				50,000	(32)			0				0
Stephanie Gillespie			5,644				5,644	(33)			0				0
OMNIBUS S.A. (44)			74,991				74,991	(1)			0				0
Susan L. Martin			15,626				15,626	(26)			0				0
Dale Associates (45)			400,001				400,001	(46)			0				0
Lisa Guise (47)			12,500				12,500	(46)			0				*
Alison T. Winter			400,001				400,001	(46)			0				0
Michael Rice (48)			10,373				10,373				0				0
Gerald Amato (48)			50,000				50,000				0				0
Sol Barer - controls SJ Barer Consulting LLC (48)			60,000				60,000				0				0
Claire A. Feldman TTEE Feldman Revocable InterVivos Trust			13,750				13,750	(51)			0				0
Onbelay Capital Inc. (52)			27,500				27,500	(53)			0				0
Gundyco ITF Alan Ezrin			13,750				13,750	(54)			0				0
Macquarie Private Wealth ITF Edwin & Julia Levy			13,750				13,750	(55)			0				0
RBC Dominion Securities Inc. ITF Cathy Steiner 421-51351-22			13,750				13,750	(55)			0				0
NFS/FMTC IRA-BDA NSPS James A. Tuffield			7,013				7,013				0				0
Johanne Paquet			13,750				13,750	(54)			0				0
C. Lowell Parsons			13,750				13,750	(51)			0				0

 

*	Less than 1%.

 

(1)	Represents outstanding shares purchased in the Private Offering or issued upon exercise of warrants purchased in the Private Offering.

(2)	Includes 3,938 outstanding shares and 3,938 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(3)	Includes 31,250 outstanding shares and 6,250 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(4)	Includes 90,688 outstanding shares and 18,688 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(5)	Represents shares issuable upon exercise of warrants purchased in the Private Offering.

(6)	Includes 62,500 outstanding shares and 62,500 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(7)	Includes 89,032 outstanding shares and 27,532 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(8)	Includes 15,513 outstanding shares and 7,863 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(9)	Includes 6,250 outstanding shares and 6,250 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(10)	Includes 1,563 outstanding shares and 1,563 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

 

 

(11)	Includes 51,875 outstanding shares and 51,875 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(12)	Includes 6,250 outstanding shares and 6,250 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(13)	Includes 9,000 outstanding shares and 9,000 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(14)	Includes 3,125 outstanding shares and 3,125 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(15)	Includes 15,626 outstanding shares and 5,000 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.
(16)	Includes 20,000 outstanding shares and 5,000 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(17)	Includes 3,438 outstanding shares and 3,438 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(18)	Includes 68,250 outstanding shares and 68,250 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(19)	Includes 38,751 outstanding shares and 38,751 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(20)	Includes 71,470 outstanding shares and 71,470 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(21)	Includes 2,188 outstanding shares and 2,188 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(22)	Includes 1,750 outstanding shares and 1,750 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(23)	Includes 18,545 outstanding shares.

(24)	Includes 25,000 outstanding shares.

(25)	Includes 10,688 outstanding shares and 22,688 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(26)	Includes 7,813 outstanding shares and 7,813 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.
(27)	Includes 22,188 outstanding shares and 22,188 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(28)	Includes 2,500 outstanding shares and 6,188 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(29)	Includes 31,250 outstanding shares and 31,250 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(30)

Reserved

(31)	Includes 7,500 outstanding shares and 7,500 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(32)	Includes 25,000 outstanding shares and 25,000 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(33)	Includes 4,072 outstanding shares and 1,572 shares issuable upon exercise of outstanding warrants purchased in the Private Offering.

(34)	Represents outstanding shares purchased in the Private Offering.

(35)

Reserved.

(36)

Reserved

(37)	Alfred Allen has voting and investment power over the securities held by the selling stockholder.

(38)	Ronald C. Astrup has voting and investment power over the securities held by the selling stockholder.

(39)	Gary Gotto has voting and investment power over the securities held by the selling stockholder.

(40)	Patrick Morros has voting and investment power over the securities held by the selling stockholder.

(41)

Reserved.

(42)	Richard Calta has voting and investment power over the securities held by the selling stockholder.

(43)

Reserved.

(44)	Anthony Killarney and Kenneth Ciapala have voting and investment power over the securities held by the selling stockholder.

(45)	Lasha Jones has voting and investment power over the securities held by the selling stockholder.

(46)	Represents shares issuable upon exercise of Dividend Warrants.

(47)	The selling stockholder is the former chief executive officer and director of the Company.

(48)	The selling stockholder is a consultant to the Company.

(49)	The selling stockholder is a consultant to the Company. Sol Barer has voting and dispositive power over the securities of the Company owned by the selling stockholder.

(50)

Reserved.

(51)	Includes 12,500 from Parent Shares and exercise of 1,250 Exchange Agreement Warrants.

(52)	John K. Bell, a director of the Company, has voting and dispositive power over the securities of the Company owned by the selling stockholder.

(53)	Includes 2,500 shares issued upon the exercise of Exchange Agreement Warrants and 25,000 shares issuable upon exchange of Exchangeable Shares

(54)	Includes 1,250 shares issued upon the exercise of Exchange Agreement Warrants and 12,500 shares issuable upon exchange of Exchangeable Shares.

(55)	Includes 12,500 shares issued upon the exchange of Exchangeable Shares and 1,250 shares issued upon the exercise of Exchange Agreement Warrants.

(56)	Includes 11,250 shares issuable upon exercise of outstanding warrants.

(57)	Includes 90,000 shares issuable upon exercise of outstanding warrants.

(58)	Includes 25,000 shares issuable upon exercise of outstanding warrants.

(59)	Includes 25,391 shares issuable upon exercise of outstanding warrants.

(60)	Includes 5,860 shares issuable upon exercise of outstanding warrants.

 

 

DESCRIPTION OF COMMON STOCK

 

General

 

We are authorized to issue 50,000,000 shares of common stock, par value of $0.001 per share. As of September 9, 2016, we have 10,317,193 shares of common stock issued and outstanding.

 

Holders of the Company’s common stock are entitled to one vote for each share on all matters submitted to a stockholder vote. Holders of common stock do not have cumulative voting rights. Therefore, holders of a majority of the shares of common stock voting for the election of directors can elect all of the directors. Holders of the Company’s common stock representing a majority of the voting power of the Company’s capital stock issued, outstanding and entitled to vote, represented in person or by proxy, are necessary to constitute a quorum at any meeting of stockholders. A vote by the holders of a majority of the Company’s outstanding shares is required to effectuate certain fundamental corporate changes such as liquidation, merger or an amendment to the Company’s certificate of incorporation.

 

Holders of the Company’s common stock are entitled to share in all dividends that the board of directors, in its discretion, declares from legally available funds. In the event of a liquidation, dissolution or winding up, each outstanding share entitles its holder to participate pro rata in all assets that remain after payment of liabilities and after providing for each class of stock, if any, having preference over the common stock. The Company’s common stock has no pre-emptive rights, no conversion rights and there are no redemption provisions applicable to the Company’s common stock.

 

Transfer Agent and Registrar

 

The transfer agent and registrar for our common stock is Island Stock Transfer.

 

Listing

 

Our common stock is currently traded on the NASDAQ Capital Market under the symbol “DMPI”.

 

DESCRIPTION OF PREFERRED STOCK

 

General

 

The Company’s articles of incorporation authorize the issuance of 5,000,000 shares of “blank check” preferred stock, par value $0.001 per share, in one or more series, subject to any limitations prescribed by law, without further vote or action by the stockholders. Each such series of preferred stock shall have such number of shares, designations, preferences, voting powers, qualifications, and special or relative rights or privileges as shall be determined by our board of directors, which may include, among others, dividend rights, voting rights, liquidation preferences, conversion rights and preemptive rights. 

 

Preferred stock is available for possible future financings or acquisitions and for general corporate purposes without further authorization of stockholders unless such authorization is required by applicable law, the rules of the NASDAQ Capital Market or other securities exchange or market on which our stock is then listed or admitted to trading.

 

Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes could, under some circumstances, have the effect of delaying, deferring or preventing a change in control of the Company.

 

A prospectus supplement relating to any series of preferred stock being offered will include specific terms relating to the offering. Such prospectus supplement will include:

 

●

the title and stated or par value of the preferred stock;

 

●

the number of shares of the preferred stock offered, the liquidation preference per share and the offering price of the preferred stock;

 

●

the dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation thereof applicable to the preferred stock;

 

 

●

whether dividends shall be cumulative or non-cumulative and, if cumulative, the date from which dividends on the preferred stock shall accumulate;

 

●

the provisions for a sinking fund, if any, for the preferred stock;

 

●

any voting rights of the preferred stock;

 

●·

the provisions for redemption, if applicable, of the preferred stock;

 

●

any listing of the preferred stock on any securities exchange;

 

●

the terms and conditions, if applicable, upon which the preferred stock will be convertible into our common stock, including the conversion price or the manner of calculating the conversion price and conversion period;

 

●

if appropriate, a discussion of Federal income tax consequences applicable to the preferred stock;

 

●

and any other specific terms, preferences, rights, limitations or restrictions of the preferred stock.

  

The terms, if any, on which the preferred stock may be convertible into or exchangeable for our common stock will also be stated in the preferred stock prospectus supplement. The terms will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option, and may include provisions pursuant to which the number of shares of our common stock to be received by the holders of preferred stock would be subject to adjustment.

 

Special Voting Preferred Stock

 

Pursuant to the Certificate of Designation of the Company’s Special Voting Preferred Stock, one share of the Company’s blank check preferred stock has been designated as Special Voting Preferred Stock and is issued and outstanding. The Special Voting Preferred Stock votes as a single class with the common stock and is entitled to a number of votes equal to the number of Exchangeable Shares of 0959456 B.C. Ltd., a British Columbia corporation and a wholly-owned subsidiary of the Company (formed for the purpose of effectuating the Company’s reverse merger transaction that closed in January 2013 (“Exchangeco”)) outstanding as of the applicable record date (i) that are not owned by the Company or any affiliated companies and (ii) as to which the holder has received voting instructions from the holders of such Exchangeable Shares in accordance with the voting and trust agreement (the “Trust Agreement”) among the Company, 0959454 B.C. Ltd., a British Columbia corporation and a wholly-owned subsidiary of the Company (formed for the purpose of effectuating the Company’s reverse merger transaction that closed in January 2013), Exchangeco and Computershare Trust Company of Canada.

 

The Special Voting Preferred Stock is not entitled to receive any dividends or to receive any assets of the Company upon any liquidation, and is not convertible into common stock of the Company.

 

The voting rights of the Special Voting Preferred Stock will terminate pursuant to and in accordance with the Trust Agreement. The Special Voting Preferred Stock will be automatically cancelled at such time as the share of Special Voting Preferred Stock has no votes attached to it.

 

Common stock issued upon exchange of Exchangeable Shares and upon the exercise of Exchange Agreement Warrants held by Canadian residents may be subject to statutory hold periods in accordance with applicable Canadian securities laws.

 

 

Series A Preferred Stock

 

Pursuant to the Company’s Certificate of Designation of Series A Preferred Stock, the Company designated 278,530 shares of preferred stock as Series A Preferred Stock. As of September 9, 2016, there were 278,530 shares of Series A Preferred Stock issued and outstanding. The shares of Series A Preferred Stock have a stated value of $1.00 per share and are not convertible into common stock. The holders of the Series A Preferred Stock are entitled to dividends at the rate of 3% of the Stated Value per year, payable quarterly in arrears. Upon any liquidation of the Company, the holder of the Series A Preferred Stock will be entitled to be paid, out of any assets of the Company available for distribution to stockholders, the Stated Value of the shares of Series A Preferred Stock held by such holder, plus any accrued but unpaid dividends thereon, prior to any payments being made with respect to the common stock.  

 

Series B Preferred Stock

 

On April 29, 2016, the Company filed a Certificate of Designation (the “Series B Certificate of Designations”) with the Secretary of State of Nevada to designate the preferences, rights and limitations of the Series B Preferred Stock. Pursuant to the Certificate of Designations, the company designated 1,000,000 shares of the Company’s preferred stock as Series B Preferred Stock. The Series B Preferred Stock has a Stated Value of $8.00 per share. The Series B Preferred Stock is convertible at the option of the holder into such number of shares of the Company’s common stock equal to the number of shares of Series B Preferred Stock to be converted, multiplied by the stated value of $8.00 (the “Stated Value”), divided by the Conversion Price in effect at the time of the conversion (the initial conversion price is $3.20, subject to adjustment in the event of stock splits, stock dividends, and similar transactions). The Series B Preferred Stock will automatically convert to common stock at the earlier of (a) the Company’s lead product candidate, VAL-083, receiving Food and Drug Administration or European Medicines Agency approval (provided that, at the time of such approval, the closing bid price of the common stock is at least $8.00 (subject to adjustment for stock splits or stock dividends) or (b) five years from the final closing of the Series B Preferred Stock. Pursuant to the Series B Certificate of Designation, holders will receive cumulative dividends at a rate of 9% per year, payable quarterly in arrears in shares of common stock (“PIK Shares”), valued based on the conversion price of the Series B Preferred Stock. The Series B Preferred Stock votes on an as-converted basis with the Company’s common stock and upon any liquidation, dissolution or winding-up of the Company the holders of the Series B Preferred Stock will be entitled to receive, pari passu with the Series A Preferred Stock, for each share of Series B Preferred Stock an amount equal to the Stated Value per share plus any accrued but unpaid dividends thereon before any distribution or payment may be made to the holders of any common stock or the Company’s Special Voting Preferred Stock. As of September 9, 2016, there are 902,238 shares of Series B Preferred Stock outstanding.

 

PLAN OF DISTRIBUTION

 

This prospectus includes 5,595,707 shares of common stock offered by the selling stockholders.

 

Each selling stockholder and any of its pledgees, assignees and successors-in-interest may, from time to time, sell any or all of its shares of common stock on the Nasdaq Capital Market or any other stock exchange, market or trading facility on which our shares are traded or in private transactions. These sales may be at fixed or negotiated prices. A selling stockholder may use any one or more of the following methods when selling shares:

 

●

ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

 

●

block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

 

●

purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

 

●

an exchange distribution in accordance with the rules of the applicable exchange;

 

●

privately negotiated transactions;

 

●

settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part;

 

 

●

broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;

 

●

through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;

 

●

a combination of any such methods of sale; or

 

●

any other method permitted pursuant to applicable law.

  

The selling stockholders may also sell shares under Rule 144 under the Securities Act, if available, rather than under this prospectus.

 

In addition, the selling stockholders may transfer the shares of common stock by other means not described in this prospectus. If the selling stockholders effect such transactions by selling shares of common stock to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the shares of common stock for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the shares of common stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and deliver shares of common stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares.

 

The selling stockholders may pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

 

To the extent required by the Securities Act and the rules and regulations thereunder, the selling stockholders and any broker-dealer participating in the distribution of the shares of common stock may be deemed to be “underwriters”” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the shares of common stock is made, a prospectus supplement, if required, will be distributed, which will set forth the aggregate amount of shares of common stock being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.

 

There can be no assurance that any selling stockholder will sell any or all of the shares of common stock registered pursuant to the registration statement, of which this prospectus forms a part.

 

 

The selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock by the selling stockholders and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock to engage in market-making activities with respect to the shares of common stock. All of the foregoing may affect the marketability of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock.

 

We will pay all expenses of the registration of the shares of common stock.

 

Once sold under the registration statement, of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates.

 

This prospectus also includes 1,021,771 shares of common stock issuable upon exercise of warrants issued by the Company pursuant to the Company’s public offering of common stock and common stock purchase warrants pursuant to the Company’s Public Offering, including 999,003 shares issuable upon exercise of warrants issued to the investors under the Public Offering (the “Public Offering Warrants”) and 22,768 shares issued to the placement agents under the Public Offering (the “2015 Agent Warrants”). The Public Offering Warrants have an exercise price of $3.00 and expire on July 31, 2020. The 2015 Agent Warrants have an exercise price of $3.00 and expire on July 15, 2020.

  

LEGAL MATTERS

 

The validity of the issuance of the securities offered by this prospectus will be passed upon for us by Sichenzia Ross Friedman Ference LLP, New York, New York.

 

EXPERTS

 

The consolidated financial statements of DelMar Pharmaceuticals, Inc. as of and for the years ended June 30, 2016 and June 30, 2015 appearing in DelMar Pharmaceuticals Inc.’s Annual Report on Form 10-K for the year ended June 30, 2016, have been audited by PricewaterhouseCoopers LLP, as set forth in its report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.

 

WHERE YOU CAN FIND MORE INFORMATION

 

We file annual, quarterly and special reports, along with other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov. You may also read and copy any document we file at the SEC’s Public Reference Room at 100 F Street, NE, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room.

 

This prospectus is part of a registration statement on Form S-3 that we filed with the SEC to register the securities offered hereby under the Securities Act of 1933, as amended. This prospectus does not contain all of the information included in the registration statement, including certain exhibits and schedules. You may obtain the registration statement and exhibits to the registration statement from the SEC at the address listed above or from the SEC’s internet site.

 

INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

 

This prospectus is part of a registration statement filed with the SEC. The SEC allows us to “incorporate by reference” into this prospectus the information that we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. The following documents are incorporated by reference and made a part of this prospectus:

 

●

our Annual Report on Form 10-K for the year ended June 30, 2016 filed with the SEC on September 13, 2016;

 

●

the description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on July 8, 2016 (File No. 001-37823), including any amendment or report filed for the purpose of updating such description; and

 

●

all reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus and prior to the termination of this offering.

 

Notwithstanding the foregoing, information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits, is not incorporated by reference in this prospectus.

 

The information about us contained in this prospectus should be read together with the information in the documents incorporated by reference. You may request a copy of any or all of these filings, at no cost, by writing or telephoning us at: Scott Praill, Chief Financial Officer, DelMar Pharmaceuticals, Inc. 720-999 West Broadway, Vancouver, British Columbia, Canada V5Z 1K5, telephone number 604-629-5989.

 

 

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 14. Other Expenses of Issuance and Distribution.

 

The following table sets forth the costs and expenses payable by the Registrant in connection with this offering, other than underwriting commissions and discounts, all of which are estimated except for the SEC registration fee.

 

Item		Amount
SEC registration fee		$	11,403
Printing and engraving expenses			3,000	*
Legal fees and expenses			670,000	*
Accounting fees and expenses			58,000	*
Transfer agent and registrar’s fees and expenses			1,000	*
Miscellaneous expenses			15,000	*
Total		$	758,403	*

 

*

Estimate

 

Item 15. Indemnification of Directors and Officers.

 

Neither our Articles of Incorporation nor Bylaws prevent us from indemnifying our officers, directors and agents to the extent permitted under the Nevada Revised Statute (“NRS”). NRS Section 78.7502 provides that a corporation shall indemnify any director, officer, employee or agent of a corporation against expenses, including attorneys’ fees, actually and reasonably incurred by him in connection with any the defense to the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to Section 78.7502(1) or 78.7502(2), or in defense of any claim, issue or matter therein.

 

NRS 78.7502(1) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.

 

NRS Section 78.7502(2) provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor, by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid in settlement and attorneys’ fees actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals there from, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.

 

 

NRS Section 78.747 provides that except as otherwise provided by specific statute, no stockholder, director or officer of a corporation is individually liable for a debt or liability of the corporation, unless the director or officer acts as the alter ego of the corporation. The court as a matter of law must determine the question of whether a director or officer acts as the alter ego of a corporation.

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or controlling persons of ours, pursuant to the foregoing provisions, or otherwise, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities 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 a director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed hereby in the Securities Act and we will be governed by the final adjudication of such issue.

 

Item 16. Exhibits.

 

Exhibit
Number		Description of Document
4.1		Articles of Incorporation of the Company (incorporated by reference to an exhibit to the Registration Statement on Form S-1 filed August 17, 2010).
4.2		Articles of Merger of the Company (incorporated by reference to an exhibit to the Current Report on Form 8-K filed January 23, 2013).
4.3		Certificate of Amendment to Articles of Incorporation (incorporated by reference to 8-K filed January 7, 2013).
4.4		Certificate of Designation of Special Voting Preferred Stock of the Company (incorporated by reference to an exhibit to Current Report on Form 8-K filed January 23, 2013).
4.5		Bylaws of the Company (incorporated by reference to an exhibit to the Registration Statement on Form S-1 filed August 17, 2010).
4.6		Amendment to the Bylaws (incorporated by reference to 8-K filed February 14, 2013)
4.7		Certificate of Change (incorporated by reference to 8-K filed May 20, 2016)
4.8		Certificate of Designation of Series A Preferred Stock (incorporated by reference to 8-K filed October 3, 2014)
4.9		Certificate of Designation of Series B Preferred Stock (incorporated by reference to 8-K filed May 5, 2016)
4.10		Amendment to Bylaws of the Company (incorporated by reference to an exhibit to the Current Report on Form 8-K filed February 14, 2013).
5.1		Opinion of Sichenzia Ross Friedman Ference LLP (previously filed)
23.1		Consent of PricewaterhouseCoopers LLP
23.2		Consent of Sichenzia Ross Friedman Ference LLP (contained in Exhibit 5.1) (previously filed)

 

 

Item 17. Undertakings

 

(a) The undersigned registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.

 

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

 

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

 

(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

 

(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or

 

 

(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 registrant hereby undertakes that for purposes of determining any liability under the Securities Act of 1933, 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 the 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 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 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.

 

(d) The registrant hereby undertakes that:

 

(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

 

(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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. 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vancouver, British Columbia, Canada, on September 13, 2016.

 

	DELMAR PHARMACEUTICALS, INC.
	By:	/s/ Jeffrey Bacha
		Jeffrey Bacha
	Its:	Chief Executive Officer and Chairman
		(Principal Executive Officer)

 

	By:	/s/ Scott Praill
		Scott Praill
	Its:	Chief Financial Officer
		(Principal Financial and Accounting Officer)

  

Each person whose signature appears below constitutes and appoints Jeffrey Bacha and Scott Praill, and each of them severally, as his true and lawful attorney in fact and agent, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post effective amendments) to the Registration Statement, and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post effective amendments thereto, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, each acting alone, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.

 

/s/ Jeffrey Bacha		September 13, 2016
Jeffrey Bacha
Chief Executive Officer and Director (Principal Executive Officer)
/s/ Scott Praill		September 13, 2016
Scott Praill Chief Financial Officer (Principal Financial and Accounting Officer)
/s/ Dennis Brown		September 13, 2016
Dennis Brown Director
/s/ Lynda Cranston		September 13, 2016
Lynda Cranston Director
/s/ John K. Bell		September 13, 2016
John K. Bell Director
/s/ Erich Mohr		September 13, 2016
Erich Mohr
Director
/s/ Robert J. Toth Jr.		September 13, 2016
Robert J. Toth Jr.
Director

 

 

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