May 15, 2020
333-__________
Delaware | ||
(State or other jurisdiction of
| 20-4139823 (I.R.S. Employer
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registrant’s principal executive offices)
(858)926-7655
Jeremy D. Glaser,Jenna M. Stewart,Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.3580 Carmel Mountain Road,300San Diego,2609213092075
Approximate date of commencement of proposed sale to the public:(858)314-1500
From time to time after the effective date of this registration statement as determined by the registrant.☐¨☒x☐¨☐¨☐¨
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. ☐¨
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| Title of Each Class of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price per Unit | Proposed Maximum | Amount of Registration Fee | ||||
Common Stock, $0.0001 par value, issuable upon exercise of outstanding warrants | 3,720,500 (2) | $3.00 | $11,161,500 | $1,389.61 (2) | ||||
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| Title of Each Class of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price per Unit (3) | Proposed Maximum Aggregate Offering Price (3) | Amount of Registration Fee | |||
| Common Stock, $0.0001 par value | 5,008,917 | (2) | $1.12 | $5,609,987 | $728 | (2) | |
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
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| (3) | Estimated solely for purposes of |
EXPLANATORY NOTE
We have an existing “shelf” registration statement on FormS-3, File No.333-206396, which the Securities and Exchange Commission (the “SEC”) initially declared effective on August 28, 2015 (the “Prior Registration Statement”). Pursuant to Rule 415(a)(5) under the Securities Act of 1933, as amended (the “Securities Act”), the Prior Registration Statement expires on August 28, 2018. In one of the offerings registered under the Prior Registration Statement, we issued warrants to purchase an aggregate of 3,720,500 shares of our common stock, all of which remain outstanding and unexercised. This registration statement is intended to ensure that an effective registration statement covers all shares of our common stock issuable upon exercise of those outstanding warrants.
We are filing this registration statement for the registration of securities under the Securities Act that are being offered in a transaction that meets the transaction requirements of General Instruction I.B.4 of FormS-3.
MAY 15, 2020
3,720,500
shares of common stock.
i
development, and then out-license these products to companies with sales and distribution capabilities in women's health to leverage their commercial capabilities. We and our wholly owned subsidiaries operate in one business segment.
approval. Our two clinical-stage assets were obtained through product licenseglobal commercialization and development agreements:
Ovaprene,strategy involves partnering with pharmaceutical companies and regional distributors with established marketing and sales capabilities in women's health, including through co-development and promotion agreements, once we have advanced anon-hormonal monthly contraceptive candidate was licensedthrough mid- to late-stage clinical development.
Topical 5% Sildenafil Citrate Cream,, a potentialnovel thermosetting bioadhesive hydrogel formulated with clindamycin phosphate 2% to be administered in a single vaginally delivered application, as a first line treatment for Female Sexual Arousal Disorder,bacterial vaginosis, or FSAD, was licensed in February of 2018 from Strategic Science &BV;
Our preclinical candidates were obtained through the following agreements:
in March of 2018, we entered into a collaboration and option agreement with Orbis Biosciences, Inc. covering new injectable contraceptive product candidates;
in April of 2018, we licensed the worldwide rights to a portfolio of preclinical intravaginal rings from Juniper Pharmaceuticals, Inc.;
in May of 2018, we acquired Pear Tree Pharmaceuticals, Inc., a company that owns the rights tohormone-free, monthly vaginal contraceptive; and
in July a contraceptive application of 2018, we acquired certain assets from Hydra Bioscience, Inc.that technology utilizing levonorgestrel that is designed to provide user-controlled, long-acting, reversible contraception
Cream.cost-effective manner, and the need to obtain adequate additional capital to fund the development of product candidates. We initiated a postcoital test, or PCT, clinical trial of Ovaprene in May 2018. We intendare also subject to commence various clinical andseveral risks common to other studies related to Topical 5% Sildenafil Citrate Creamcompanies in the second halfindustry, including rapid technology change, regulatory approval of 2018.products, uncertainty of market acceptance of products, competition from substitute products and larger companies, compliance with government regulations, protection of proprietary technology, dependence on third parties, and product liability.
The Ovaprene intravaginal ring, if approved for marketing, requires no intervention at the time of intercourse, does not use hormones and would be intended to provide protection over multiple weeks of use. Ovaprene consists of a silicone-reinforced ring with a soft, absorbable scaffolding that encircles a fluid-permeable barrier. Anon-braided, multi-filament mesh in the center of the ring functions as a physical barrier to sperm. The silicone ring also releases two ingredients—ascorbic acid and ferrous gluconate—that act together to create a spermiostatic environment within the vagina.
Ovaprene is a combination product that previously underwent a request for designation process within the Office of Combination Products at the FDA. The FDA designated Center for Devices and Radiological Health, or CDRH, as the lead agency FDA program center for premarket review and product regulation; it also provided notice that CDRH has determined that a Premarket Approval, or PMA, will be required. We intend to develop Ovaprene based on PMA guidelines. If approved, Ovaprene would represent a new category of birth control. In a PCT pilot study conducted in 20 women and published inThe Journal of Reproductive Medicine® in 2009, Ovaprene demonstrated the ability to immobilize sperm and prevent their progression into the cervical mucus.
The ongoing PCT clinical trial of Ovaprene is designed to assess general safety, acceptability, and effectiveness in preventing progressively motile sperm from reaching the cervical canal following intercourse. The study is enrolling 50 couples, with the woman to be evaluated over the course of five menstrual cycles, with a target of having at least 25 women complete a total of 21 visits. Each woman’s cervical mucus will be measured at several points during the study, including a baseline measurement at menstrual cycle 1 that excludes the use of any product. Subsequent cycles and visits will include the use of a diaphragm (menstrual cycle 2) and the Ovaprenenon-hormonal vaginal ring (menstrual cycles 3, 4 and 5). Data from the PCT clinical trial is expected to be available in the second half of 2019. If there is demonstration of feasibility in the PCT clinical trial, we intend to prepare and file an Investigational Device Exemption with the FDA to commence a pivotal clinical trial to support marketing approvals of Ovaprene in the United States, Europe and other countries worldwide.
Our Topical 5% Sildenafil Citrate Cream, which incorporates sildenafil, the same active ingredient in male erectile dysfunction drug Viagra®, if approved, could be the firstFDA-approved FSAD treatment option for women. FSAD is characterized primarily by an inability to attainmaterially more or maintain sufficient physical sexual arousal, frequently resulting in distress or interpersonal difficulty. Topical 5% Sildenafil Citrate Cream is specifically designed to increase blood flow locally to the vulvar-vaginal tissue in women, leading to a potential improvement in genital arousal response and overall sexual experience.
We plan to pursue the 505(b)(2) regulatory pathway for Topical 5% Sildenafil Citrate Cream in the U.S. to leverage the existing data and established safety profileless than 2,008,927 shares of the Viagra® brand. We intend to commence various clinical and other studies related to Topical 5% Sildenafil Citrate Cream in the second halfcommon stock. See “Microchips Acquisition” on page 7 of 2018. We are in the process of seeking guidance from the FDA regarding the design of
our Phase 2b clinical trial for Topical 5% Sildenafil Citrate Cream. The timing of when we initiate any clinical studies related to Topical 5% Sildenafil Citrate Cream, including our Phase 2b clinical trial, will be influenced by such guidance. Currently, the planned Phase 2b study is expected to evaluate the product candidate under real-life conditions in women with FSAD. Clinical endpoints are expected to include patient reported outcomes, or PROs, using validated questionnaires, and FDA’s input will be requested on the proposed PROs and questionnaire tools as well.
Additional Information
We were incorporated under the laws of the State of Delaware in November 2005 under the name Tempo Pharmaceuticals, Inc. From October 2008 until July 20, 2017, the name of our company was Cerulean Pharma Inc., or Cerulean. On July 19, 2017, Cerulean and Daré Bioscience Operations, Inc., a privately held Delaware corporation, or Private Daré, completed a business combination transaction in accordance with the terms of the Stock Purchase Agreement, dated as of March 19, 2017, or the Daré Stock Purchase Agreement, by and among Cerulean, Private Daré and the holders of capital stock and securities convertible into capital stock of Private Daré named therein, or the Private Daré Stockholders. Pursuant to the Daré Stock Purchase Agreement, each Private Daré Stockholder sold their shares of capital stock of Private Daré to the Company in exchange for newly issued shares of the Company’s common stock and, as a result, Private Daré became a wholly-owned subsidiary of the Company and the Private Daré Stockholders became majority shareholders of the Company. In accordance with the terms of the Daré Stock Purchase Agreement, the Company changed its name from “Cerulean Pharma Inc.” to “Daré Bioscience, Inc.”
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| Shares of common stock offered by |
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| Use of proceeds | We will not receive any proceeds from the sale of our common stock | ||
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| Risk factors | Investment in our common stock involves a high degree of risk. See “Risk Factors” beginning on page | ||
Nasdaq Capital Market symbol | “DARE” |
| 1) | Comprised of: (i) 2,999,990 shares that we issued to the selling stockholders in connection with the closing of the merger, and (ii) up to 2,008,927 shares, or the Contingent Consideration Shares, that may be issued to the selling stockholders contingent upon the achievement of specified funding, product development and regulatory milestones set forth in the merger agreement governing the merger pursuant to which we acquired Microchips. The number of Contingent Consideration Shares assumes (a) the achievement of all the milestones for which we may elect to pay the consideration owed in shares of our common stock, (b) that we so elect to pay such consideration in shares of our common stock, and (c) that the per share price used to calculate the number of Contingent Consideration Shares issued with respect to the achievement of the applicable milestone is $1.12, which represents the average of the high and low prices of our common stock on May 8, 2020 as reported on The Nasdaq Capital Market. None of the Contingent Consideration Shares have been earned or issued as of the date of this prospectus. The actual number of Contingent Consideration Shares issued to the selling stockholders, if any, could be materially more or less than 2,008,927 shares of common stock. See “Microchips Acquisition” on page 7 of this prospectus. |
Risks Related to this Offering
Resales of our common stock in the public market during this offering by our stockholders may cause the market price of our common stock to fall.
We may issue common stock from time to time in connection with this offering. The issuance from time to time of these new shares of our common stock, or our ability to issue new shares of common stock in this offering, could result in resales of our common stock by our current stockholders concerned about the potential dilution of their holdings. In turn, these resales could have the effect of depressing the market price for our common stock.
There may be future sales or other dilution of our equity, which may adversely affect the market price of our common stock.
We are generally not restricted from issuing additional common stock, including any securities that are convertible into or exchangeable for, or that represent the right to receive, common stock. The market price of our common stock could decline as a result of sales of common stock or securities that are convertible into or exchangeable for, or that represent the right to receive, common stock after this offering or the perception that such sales could occur.
Our management will have broad discretion over the use of the net proceeds from this offering, you may not agree with how we use the proceeds and the proceeds may not be invested successfully.
We have not designated any portion of the net proceeds from this offering to be used for any particular purpose. Accordingly, our management will have broad discretion as to the use of the net proceeds from this offering and could use them for purposes other than those contemplated at the time of commencement of this offering. Accordingly, you will be relying on the judgment of our management with regard to the use of these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. It is possible that, pending their use, we may invest the net proceeds in a way that does not yield a favorable, or any, return for our company.
If you exercise your Warrants you will experience immediate and substantial dilution in the book value per share of the common stock you purchase.
This offering involves the offer and sale by us of up to 3,720,350 shares of our common stock that are issuable upon the exercise of the Warrants. The exercise price of the Warrants as of the date of this prospectus is $3.00 per share. The exercise price of the Warrants at the time of exercise may be substantially higher than the book value per share of our common stock, and you may suffer immediate and substantial dilution in the net tangible book value of the common stock you purchase in this offering upon exercise of Warrants. Assuming that all 3,720,500 shares of our common stock are sold in this offering upon the exercise of the Warrants for cash, those investors who exercise the Warrants will experience immediate dilution of $1.46 per share, representing the difference between the exercise price per share of the Warrants as of the date of this prospectus and our as adjusted net tangible book value per share as of June 30, 2018 after giving effect to this offering. The exercise of outstanding stock options and other outstanding warrants may result in further dilution of your investment. See “Dilution” for a more detailed discussion of the dilution you may incur in connection with this offering.
Inability to continue as a going concern;
Inability to successfully attract partners and enter into collaborations on acceptable terms;
A decision by Bayer HealthCare LLC to discontinue its commercial interest in Ovaprene® and/or to terminate our license agreement;
Inability to develop and commercialize our product candidates;
Failure or delay in starting, conducting and completing clinical trials or obtaining United States Food and Drug Administration, or FDA, or foreign regulatory approval for our product candidates in a timely manner;
A change in the FDA’sFDA Center assigned primary oversight responsibility;
A change in regulatory requirements for our product candidates, including the development pathway pursuant to the FDA’s Section 505(b)(2);
Unsuccessful clinical trialstrial outcomes stemming from clinical trial designs, failure to enroll a sufficient number of patients, higher than anticipated patient dropout rates, failure to meet established clinical endpoints, undesirable side effects and other safety concerns;
Negative publicity concerning the safety and efficacy of our product candidates, or of product candidates being developed by others that share characteristics similar to our candidates;
Inability to demonstrate sufficient efficacy of our product candidates;
Loss of our licensed rights to develop and commercialize a product candidate as a result of the termination of the underlying licensing agreement;
Monetary obligations and other requirements in connection with our exclusive,in-license agreements covering the critical patents and related intellectual property related to our product candidates;
Developments by our competitors that make our product candidates less competitive or obsolete;
Dependence on third parties to conduct nonclinical studies and clinical trials and to manufactureof our product candidates;
Dependence on third parties to supply market and distribute products;
Interruptions in, or the complete shutdown of, the operations of third parties on which we rely, including clinical sites, manufacturers, suppliers, and other vendors, from matters beyond their control, such as the effects related to geopolitical actions, natural disasters, or public health emergencies or pandemics, such as the COVID-19 pandemic, and our lack of recourse against such third parties if their inability to perform is excused under the terms of our agreements with such parties;
A reduction in demand for contraceptives caused by an elimination of current requirements that health insurance plans cover and reimburse certain FDA-cleared or approved contraceptive products without cost sharing;
Lack of precedentUncertainty as to help assess whether health insurance plans will cover one of our product candidates;
The reimbursement environment relating to our product candidates at the timeeven if we successfully develop and obtain regulatory approval for them;
Difficulty in introducing branded products in a market made up of generic products;
Inability to adequately protect or enforce our, or our licensor’s, intellectual property rights;
Lack of patent protection for the active ingredients in certain of our product candidates which could expose our productsthose product candidates to competition from other formulations using the same active ingredients.
Higher risk of failure associated with product candidates in preclinicalpre-clinical stages of development that may lead investors to assign them little to no value and make these assets difficult to fund;
Disputes or other developments concerning our intellectual property rights;
Actual and anticipated fluctuations in our quarterly or annual operating results;
Price and volume fluctuations in the overall stock markets,market, and in our stock in particular, which could subject us to securities class-action litigation;
Failure to maintain the listing of the Company’s common stock on the Nasdaq Capital Market or another nationally recognized exchange;
Strict government regulations on our business, including various fraud and abuse laws, including, without limitation, the U.S. federal Anti-Kickback Statute, the U.S. federal False Claims Act and the U.S. Foreign Corrupt Practices Act;
Regulations governing the production or marketing of our product candidates;
Loss of, or inability to attract, key personnel; and
Increased costs as a result of operating as a public company, and substantial time devoted by our management to compliance initiatives and corporate governance practices.
We have not determinedtechnology that utilizes levonorgestrel.
If you purchase2,999,990 shares of our common stock to the selling stockholders, all of whom were the stockholders of Microchips’ immediately prior to the effective time of the merger. We agreed to pay the following contingent consideration to the selling stockholders: (1) up to $46.5 million contingent upon the exerciseachievement of your Warrant, your ownership interest will be dilutedspecified funding, product development and regulatory milestones; up to the extent$2.3 million of the difference between the exercise price per share and the net tangible book value per sharewhich we may elect to pay in shares of our common stock, subject to approval of our stockholders to the extent necessary to comply with Nasdaq Listing Rule
prospectus. The net tangible book valueactual number of Contingent Consideration Shares issued to the selling stockholders, if any, could be materially more or less than 2,008,927 shares of common stock depending on whether and to what extent the applicable Development Milestones are achieved, whether we elect to pay the amount due in shares of our common stock, on the average closing price of our common stock over the five consecutive trading days immediately prior to achievement of the applicable milestone, and, if applicable, if we obtain approval of our stockholders to the extent necessary to comply with Nasdaq Listing Rule 5635. The number of Contingent Consideration Shares is not intended to constitute an indication or prediction of whether any of the Development Milestones will be achieved or the future market price of our common stock.
After giving effectContingent Consideration Shares that may be issued to the saleselling stockholders in the future. As described in further detail in “Microchips Acquisition,” above, the actual number of 3,720,500 sharesContingent Consideration Shares issued to the selling stockholders, if any, could be materially more or less than 2,008,927 shares. The percent of our common stock to investors exercisingbeneficial ownership for the Warrants for cash at an exercise price of $3.00 per share, theas-adjusted net tangible book value of our common stock as of June 30, 2018 would have been approximately $23,329,463, or approximately $1.54 per share. This represents an immediate increase in net tangible book value of approximately $0.47 per share to our existingselling stockholders and an immediate dilution inas-adjusted net tangible book value of approximately $1.46 per share to investors exercising the Warrants, as illustrated by the following table:
Exercise price per share of the Warrants | $ | 3.00 | ||||||
Net tangible book value per share as of June 30, 2018 | $ | 1.07 | ||||||
Increase per share attributable to this offering | $ | 0.47 | ||||||
As-adjusted net tangible book value per share as of June 30, 2018, after giving effect to this offering | $ | 1.54 | ||||||
Dilution per share to investors purchasing shares in this offering upon exercise of the Warrants | $ | 1.46 |
The table above is based on 11,422,16126,646,191 shares of our common stock outstanding as of June 30, 2018, and excludesMay 12, 2020.
3,751,002 sharesselling stockholders has been an officer or director of ours or of our common stock issuable upon exercise of warrants outstanding as of June 30, 2018,affiliates within the past three years or had any material relationship with a weighted-average exercise price of $3.49 per share;
547,571 shares ofus or our common stock issuable upon exercise of options outstanding as of June 30, 2018,affiliates within the past three years. Our knowledge is based on information provided by the selling stockholders through questionnaires we distributed in connection with a weighted-average exercise price of $30.98 per share; and
138,804 shares of our common stock reserved and available as of June 30, 2018 for future issuance under our 2014 Stock Incentive Plan.
As of the date of this prospectus, there are 1,284,619 shares of our common stock reserved for future grants under our Amended and Restated 2014 Stock Incentive Plan, which became effective as of July 10, 2018. To the extent that after June 30, 2018 any outstanding options or warrants were or are exercised, new equity awards were or are issued under our equity incentive plan, shares of common stock are sold under our employee stock purchase plan, or we otherwise issued or issue additional shares of common stock in the future, including under our sales agreement with H.C. Wainwright & Co., LLC, at prices per share below the price per share for any shares sold in this offering upon exercise of Warrants, there will be further dilution to new investors.
The common stock offered under this prospectus will be offered solely by us and will be issued and sold upon the exercise of the Warrants. The holders of the Warrant must surrender payment in cash of the aggregate exercise price of the shares being acquired upon exercise of the Warrants. If, however, we are unable to offer and sell the shares underlying the Warrants pursuant to this prospectus due to the ineffectivenessfiling of the registration statement of which this prospectus is a part, thenpart.
Selling Stockholder | Shares of Common Stock Beneficially Owned Prior to the Offering | # of Shares of Common Stock Being Offered | Shares of Common Stock Beneficially Owned Upon Completion of this Offering (1) | ||||||||||||
| # | % | # | % | ||||||||||||
| Entities affiliated with Polaris Venture Partners (2) | 2,456,114 | 9.22 | % | 1,986,662 | 469,452 | 1.76 | % | ||||||||
| Teva Pharmaceuticals USA, Inc. (3) | 1,563,720 | 5.87 | % | 1,563,720 | — | — | |||||||||
| MS Pace LP (4) | 644,213 | 2.42 | % | 644,213 | — | — | |||||||||
| Entities affiliated with Intersouth Partners (5) | 349,882 | 1.31 | % | 349,882 | — | — | |||||||||
| Entities affiliated with Flybridge Capital Partners (6) | 124,904 | * | 124,904 | — | — | ||||||||||
| Robert S. Langer, Jr. (7) | 112,766 | * | 96,716 | 16,050 | * | ||||||||||
| InterWest Partners X, L.P. (8) | 84,096 | * | 84,096 | — | — | ||||||||||
| Lisa Anne Furnish Revocable Trust (9) | 37,211 | * | 37,211 | — | — | ||||||||||
| Charles E. Hutchinson 2011 Irrevocable Trusts (10) | 41,160 | * | 41,160 | — | — | ||||||||||
| Massachusetts Institute of Technology (11) | 28,905 | * | 28,905 | — | — | ||||||||||
| Michael J. Cima (12) | 25,048 | * | 25,048 | — | — | ||||||||||
| John T. Santini, Jr. and Catherine Santini (13) | 21,538 | * | 21,538 | — | — | ||||||||||
| Omega Fund IV, L.P. (14) | 197 | * | 197 | — | — | ||||||||||
| The Michael D Langer 2010 Trust (15) | 77 | * | 77 | — | — | ||||||||||
| The Susan K Langer 2010 Trust (16) | 77 | * | 77 | — | — | ||||||||||
| The Samuel A Langer 2012 Trust (17) | 77 | * | 77 | — | — | ||||||||||
| Other former stockholders of Microchips as a group (2 stockholders) (18) | 4,425 | * | 4,425 | — | — | ||||||||||
| 1) | Assumes that the selling stockholders will sell all the shares offered by this prospectus. The selling stockholders may sell some, all or none of the shares offered by this prospectus. |
| 2) | Shares beneficially owned prior to the offering consist of (a) 1,142,961 shares held of record by, and 765,375 Contingent Consideration Shares that may become issuable to, Polaris Venture Partners III, L.P. (“PVP III”), (b) 29,152 shares held of record by, and 19,521 Contingent Consideration Shares that may become issuable to, Polaris Venture Partners Entrepreneurs' Fund III, L.P. (“PVPEF III”), (c) 17,760 shares held of record by, and 11,893 Contingent Consideration Shares that may become issuable to, Polaris Venture Partners Founders' Fund III, L.P. (“PVPFF III,” and, together with PVP III and PVPEF III, the “PVP III Funds”), (d) 140,574 shares are held of record by Polaris Venture Partners IV, L.P. (“PVP IV”), (e) 2,635 shares are held of record by Polaris Venture Partners Entrepreneurs’ Fund IV, L.P. (“PVPEF IV,” and, together with PVP IV, the “PVP IV Funds”), (f) 314,804 shares are held of record by Polaris Venture Partners V, L.P. (“PVP V”), (g) 6,135 shares are held of record by Polaris Partners Entrepreneurs’ |
| 3) | Shares beneficially owned prior to the offering consist of 936,560 shares held of record by, and 627,160 Contingent Consideration Shares that may become issuable to, Teva Pharmaceuticals USA, Inc. (“Teva USA”). Teva USA is a subsidiary of Teva Pharmaceutical Industries Limited, an Israeli corporation and a reporting company under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. Asaph Naaman, Senior Vice President and Chief Financial Officer-North America of Teva USA, previously served as a member of the board of directors of Microchips. Teva Pharmaceuticals International GmbH, an affiliate of Teva USA, and Microchips were previously parties to a collaboration agreement, which was terminated in 2018. |
| 4) | Shares beneficially owned prior to the offering consist of 385,839 shares held of record by, and 258,374 Contingent Consideration Shares that may become issuable to, MS Pace LP. MS Pace Management, LLC (“MSP Management”) is the general partner of MS Pace LP. Sightline MS GP, LLC (“Sightline MSGP”) is the manager of MSP Management and Sightline Coventure, LLC (“Sightline Coventure”) is the manager of Sightline MSGP. MSP Management, Sightline MSGP and Sightline Coventure each may be deemed to have voting, investment and dispositive power with respect to shares held by MS Pace LP. Joe Biller and Buzz Benson, managing directors of Sightline Coventure, may be deemed to share voting, investment and dispositive power with respect to these shares. |
| 5) | Shares beneficially owned prior to the offering consist of (a) 200,932 shares held of record by, and 134,191 Contingent Consideration Shares that may become issuable to, Intersouth Partners V, L.P. and (b) 9,163 shares held of record by, and 6,136 Contingent Consideration Shares that may become issuable to, Intersouth Affiliates V, L.P. (together with Intersouth Partners V, L.P., the “Intersouth V Funds”). Intersouth Associates V, LLC is the general partner of each of the Intersouth V Funds and may be deemed to have voting, investment and dispositive power with respect to the shares held by each of the Intersouth V Funds. Dennis Dougherty and Mitchell Mumma, member managers of Intersouth Associates V, LLC, may each be deemed to share voting, investment and dispositive power with respect to these shares. |
| 6) | Shares beneficially owned prior to the offering consist of (a) 74,332 shares held of record by, and 49,776 Contingent Consideration Shares that may become issuable to, Flybridge Capital Partners I, L.P. and (b) 477 shares held of record by, and 319 Contingent Consideration Shares that may become issuable to, Flybridge Capital Partners III, L.P. Flybridge Capital Partners GP I, LLC is the general partner of Flybridge Capital Partners I, L.P. and may be deemed to have voting, investment and dispositive power with respect to the shares held by Flybridge Capital Partners I, L.P. Flybridge Capital Partners GP III, LLC is the general partner of Flybridge Capital Partners III, L.P. and may be deemed to have voting, investment and dispositive power with respect to the shares held by Flybridge Capital Partners III, L.P. Charles M. Hazard, Jr., Jeffrey J. Bussgang and David B. Aronoff may be deemed to share voting, investment and dispositive power with respect to these shares. |
| 7) | Shares beneficially owned prior to the offering consist of (a) 57,926 shares held of record by, and 38,790 Contingent Consideration Shares that may become issuable to, Dr. Langer and (b) 16,050 shares beneficially owned by Dr. Langer. Dr. Langer previously served as a member of the board of directors of Microchips and he provides consulting and adviser services to Microchips and Daré, respectively. |
| 8) | Shares beneficially owned prior to the offering consist of 50,368 shares held of record by, and 33,728 Contingent Consideration Shares that may become issuable to, InterWest Partners X, L.P. InterWest Management Partners X, LLC (“IMP10”) is the general partner of InterWest Partners X, L.P. and may be deemed to have voting, investment and dispositive power with respect to the shares held by InterWest Partners X, L.P. Gilbert H. Kliman and Arnold L. Oronsky, managing directors of IMP10, and Khaled A. Nasr and Keval Desai, venture members of IMP10, each may be deemed to share voting, investment and dispositive power with respect to these shares. |
| 9) | Shares beneficially owned prior to the offering consist of 22,287 shares held of record by, and 14,924 Contingent Consideration Shares that may become issuable to, the Lisa Anne Furnish Revocable Trust. Lisa Anne Furnish, |
| 10) | Shares beneficially owned prior to the offering consist of (a) 12,326 shares held of record by, and 8,254 Contingent Consideration Shares that may become issuable to, the GST Exempt Separate Family Trust C/U The Charles E. Hutchinson 2011 IT (the “Exempt Hutchinson 2011 IT”), and (b) 12,326 shares held of record by, and 8,254 Contingent Consideration Shares that may become issuable to, the GST Taxable Separate Family Trust C/U The Charles E. Hutchinson 2011 IT (together with the Exempt Hutchinson 2011 IT, the “Hutchinson Trusts”). Concord Trust Company, LLC, trustee of the Hutchinson Trusts, may be deemed to have voting, investment and dispositive power with respect to the shares held by each of the Hutchinson Trusts. Christopher Martin and Andrew Powell, trust officers, may be deemed to share voting, investment and dispositive power with respect to these shares. Charles E. Hutchinson previously served as a member of the board of directors of Microchips. |
| 11) | Shares beneficially owned prior to the offering consist of 17,312 shares held of record by, and 11,593 Contingent Consideration Shares that may become issuable to, Massachusetts Institute of Technology (“MIT”). Voting and dispositive power over these shares is exercised Lesley Millar-Nicholson, Director, MIT Technology Licensing Office. Ms. Millar-Nicholson disclaims beneficial ownership of these shares. |
| 12) | Shares beneficially owned prior to the offering consist of 15,002 shares held of record by, and 10,046 Contingent Consideration Shares that may become issuable to, Dr. Cima. Dr. Cima previously served as a member of the board of directors of Microchips and he provides consulting services to Microchips. |
| 13) | Shares beneficially owned prior to the offering consist of (a) 9,657 shares held of record by, and 6,466 Contingent Consideration Shares that may become issuable to, John and Catherine Santini, joint tenants, (b) 1,660 shares held of record by, and 1,111 Contingent Consideration Shares that may become issuable to, Mr. Santini, (c) 1,584 shares held of record by, and 1,060 Contingent Consideration Shares that may become issuable to, Mrs. Santini. |
| 14) | Shares beneficially owned prior to the offering consist of 118 shares held of record by, and 79 Contingent Consideration Shares that may become issuable to, Omega Fund IV, L.P. Omega Fund IV GP, L.P. is the general partner of Omega Fund IV, L.P. and may be deemed to have voting, investment and dispositive power with respect to the shares held by Omega Fund IV, L.P. Omega Fund IV GP Manager Ltd. is the general partner of Omega Fund IV GP, L.P. and may be deemed to have voting, investment and dispositive power with respect to the shares held by Omega Fund IV GP, L.P. Otello Stampacchia, Anne-Mari Paster and Claudio Nessi each may be deemed to share voting, investment and dispositive power with respect to these shares. Paulina Hill, a principal of Omega Funds, previously served on the board of directors of Microchips. |
| 15) | Shares beneficially owned prior to the offering consist of 46 shares held of record by, and 31 Contingent Consideration Shares that may become issuable to, The Michael D Langer 2010 Trust. Michael D. Langer and Aimee Hamilton, trustees of The Michael D Langer 2010 Trust, may be deemed to have voting, investment and dispositive power with respect to these shares. |
| 16) | Shares beneficially owned prior to the offering consist of 46 shares held of record by, and 31 Contingent Consideration Shares that may become issuable to, The Susan K Langer 2010 Trust. Susan K. Langer and Aimee Hamilton, trustees of The Susan K Langer 2010 Trust, may be deemed to have voting, investment and dispositive power with respect to these shares. |
| 17) | Shares beneficially owned prior to the offering consist of 46 shares held of record by, and 31 Contingent Consideration Shares that may become issuable to, The Samuel A Langer 2012 Trust. Samuel A. Langer and Aimee Hamilton, trustees of The Samuel A Langer 2012 Trust, may be deemed to have voting, investment and dispositive power with respect to these shares. |
| 18) | Consists of 2,650 outstanding shares and 1,775 Contingent Consideration Shares. |
or sell securities at a price which varies or may vary with the market price ofextent required, the shares of our common stock to be sold, the holdersnames of the Warrants shallselling stockholders, the respective purchase prices and public offering prices, the names of any agents, dealers or underwriters, and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
The Warrants are not listed on any national securities exchange, and we do not plan on making an application to list the Warrants on the Nasdaq Capital Market, any national securities exchange or other nationally recognized trading system. The Company will act as the registrar and transfer agent for the Warrants.
We are authorized to issue 120,000,000 shares of common stock, par value $0.0001 per share. As of August 22, 2018, we had 11,422,161 shares of common stock outstanding.
The following summary of certain provisions of our common stock does not purport to be complete. You should refer to the section of this prospectus entitled “Certain Provisions of Delaware Law and of the Company’s Certificate of Incorporation andBy-laws” and our Restated Certificate of Incorporation, as amended, referred to herein as our restated certificate of incorporation, and our Second Amended and RestatedBy-laws, as amended, referred to herein as our restatedby-laws, both of which are included as exhibits tokeep the registration statement of which this prospectus isconstitutes a part. The summary below is also qualified by provisionspart effective until the earlier of applicable law.
General
Voting Rights
Holders of our common stock are entitled to one vote for each share held on(i) such time as all matters submitted to a vote of stockholders, except that unless otherwise required by law, holders of our common stock are not entitled to vote on any amendment to our restated certificate of incorporation that relates solely to the terms of one or more outstanding series of preferred stock, if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more such other series, to vote thereon pursuant to our restated certificate of incorporation. Holders of our common stock do not have cumulative voting rights.
An election of directors will be decided by a plurality of the votes cast by the stockholders entitled to vote on the election at a duly held stockholders’ meeting at which a quorum is present. All other questions will be decided by a majority of the votes cast by stockholders entitled to vote thereon at a duly held meeting of stockholders at which a quorum is present, except when a different vote is required by law, our restated certificate of incorporation or restatedby-laws.
Dividends
Holders of our common stock are entitled to receive proportionately any dividends as may be declared by our board of directors, subject to any preferential dividend or other rights of any series of preferred stock that we may designate and issue in the future.
Liquidation and Dissolution
In the event of our liquidation or dissolution, the holders of our common stock are entitled to receive proportionately our net assets available for distribution to stockholders after the payment of all debts and other liabilities and subject to any preferential or other rights of any outstanding preferred stock.
Other Rights
Holders of our common stock have no preemptive, subscription, redemption or conversion rights. The rights, preferences and privileges of holders of common stock are subject to and may be adversely affected by the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC, with offices at 6201 15th Avenue, Brooklyn, NY 11219.
Stock Exchange Listing
Our common stock is listed on the Nasdaq Capital Market under the symbol “DARE.”
CERTAIN PROVISIONS OF DELAWARE LAW AND OF THE
COMPANY’S CERTIFICATE OF INCORPORATION ANDBY-LAWS
Anti-Takeover Provisions
Delaware Law
We are subject to Section 203 of the Delaware General Corporation Law, or the DGCL. Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation from engaging in a “business combination” with any “interested stockholder” for three years following the date that the person became an interested stockholder, unless the interested stockholder attained such status with the approval of our board of directors or unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger or consolidation involving us and the “interested stockholder” and the sale of more than 10% of our assets. In general, an “interested stockholder” is any entity or person beneficially owning 15% or more of our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity or person. The provisions of Section 203 may deter a hostile takeover or delay a change in control.
Staggered Board; Removal of Directors
Our restated certificate of incorporation and restatedby-laws divide our board of directors into three classes with staggered three year terms. In addition, our restated certificate of incorporation and restatedby-laws provide that directors may be removed only for cause and only by the affirmative vote of the holders of 75% of our shares of capital stock present in person or by proxy and entitled to vote. Under our restated certificate of incorporation and restatedby-laws, any vacancy on our board of directors, including a vacancy resulting from an enlargement of our board of directors, may be filled only by vote of a majority of our directors then in office. Furthermore, our restated certificate of incorporation provides that the authorized number of directors may be changed only by the resolution of our board of directors, subject to the rights of any holders of preferred stock to elect directors. The classification of our board of directors and the limitations on the ability of our stockholders to remove directors, change the authorized number of directors and fill vacancies could make it more difficult for a third party to acquire, or discourage a third party from seeking to acquire, control of our company.
Authorized but Unissued Shares
The authorized but unissued shares of common stock covered by this prospectus have been sold and preferred stock are available for future issuance without stockholder approval, subject to any limitations imposed by(ii) such timer as all the listing standardsshares of
any securities exchange on which our shares are listed. These additional shares may be used for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved common stock and preferred stock could make more difficultcovered by this prospectus are saleable under Rule 144 without manner of sale or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Stockholder Action; Special Meeting of Stockholders; Advance Notice Requirements for Stockholder Proposals and Director Nominations
Our restated certificate of incorporation and restatedby-laws provide that any action required or permitted to be taken by our stockholders at an annual meeting or special meeting of stockholders may only be taken if it is properly brought before such meeting and may not be taken by written action in lieu of a meeting. Our restated certificate of incorporation and restatedby-laws also provide that, except as otherwise required by law, special meetings of the stockholders can only be called by our board of directors, the chairman of our board of directors or our chief executive officer, and may not be called by any other person or persons. In addition, our restatedby-laws establish an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of candidates for election to our board of directors. Stockholders at an annual meeting may only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of our board of directors, or by a stockholder of record on the record date for the meeting who is entitled to vote at the meeting, who has delivered timely written notice in proper form to our secretary of the stockholder’s intention to bring such business before the meeting in compliance with the applicable procedures set forth in our restatedby-laws, and who was also a stockholder on the date of the giving of such notice. These provisions could have the effect of delaying until the next stockholder meeting stockholder actions that are favored by the holders of a majority of our outstanding voting securities. These provisions also could discourage a third party from making a tender offer for our common stock because even if the third party acquired a majority of our outstanding voting stock, it would be able to take action as a stockholder, such as electing new directors or approving a merger, only at a duly called stockholders meeting and not by written consent.
Super Majority Voting
The DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation orby-laws, unless a corporation’s certificate of incorporation orby-laws, as the case may be, requires a greater percentage. Our restatedby-laws may be amended or repealed by a majority vote of the directors present at any meeting of our board of directors at which a quorum is present or by the affirmative vote of the holders of at least 75% of the votes that all our stockholders would be entitled to cast in any annual election of directors or class of directors. In addition, the affirmative vote of the holders of at least 75% of the votes that all our stockholders would be entitled to cast in any annual election of directors or class of directors is required to amend or repeal or to adopt any provision inconsistent with certain of the provisions of our restated certificate of incorporation, including the provisions governing amendment or repeal of our restatedby-laws, removal of directors, stockholder action, and special meetings of stockholders.
Limitation of Liability and Indemnification
Section 102 of the DGCL permits a corporation to eliminate the personal liability of its directors to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for any willful or negligent violation of sections of the DGCL related to the declaration and
payment of dividends and to the purchase or redemption of the corporation’s capital stock; or (iv) for any transaction from which the director derived an improper personal benefit.
Our restated certificate of incorporation provides that no director of our corporation shall be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
Our restated certificate of incorporation provides that we will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of us), by reason of the fact that he or she is or was, or has agreed to become, our director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an Indemnitee), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.
Our restated certificate of incorporation also provides that we will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the Indemnitee is or was, or has agreed to become, our director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee or, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, except that no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to us, unless a court determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by us against all expenses (including attorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If we do not assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
Section 145 of the DGCL permits a corporation to indemnify any director or officer of the corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the believe his or her conduct was unlawful. In a derivative action (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the Delaware Chancery Court or the court in which the action or suit was brought shall
determine that such person is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
We have entered into indemnification agreements with our directors and certain officers, in addition to the indemnification provided in our restated certificate of incorporation, and intend to enter into indemnification agreements with any new directors and executive officers in the future. In general, these agreements provide that we will indemnify the director or officer to the fullest extent permitted by law for claims arising in his or her capacity as a director or officer of our company or in connection with their service at our request for another corporation or entity. The indemnification agreements also provide for procedures that will apply in the event that the director or officer makes a claim for indemnification and establish certain presumptions that are favorable to the director or officer, as applicable. We have purchased and intend to maintain insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
The foregoing discussion of our restated certificate of incorporation, restatedby-laws, indemnification agreements and Delaware law is not intended to be exhaustive and is qualified in its entirety by such documents or law.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, or the Securities Act, may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., San Diego,2017,2019, as set forth in its report, which is incorporated by reference in this prospectus and the registration statement. Our financial statements are incorporated by reference in reliance on Mayer Hoffman McCann P.C.’s report, given on the authority of said firm as experts in accounting and auditing.You may readThe SEC maintains an internet site that contains reports, proxy and copy these reports, proxyinformation statements and other information atregarding issuers, such as our company, that file documents electronically with the SEC’s public reference facilities at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You can request copies of these documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC at1-800-SEC-0330 for more information about the operation of the public reference facilities.SEC. Our SEC filings are also available to the public at the SEC’s website address at http://www.sec.gov. This prospectusThe information on the SEC’s website is onlynot part of a registration statement on FormS-3 that we have filed with the SEC
under the Securities Act, and therefore omits certain information contained in the registration statement. We have also filed exhibits and schedules with the registration statement that are excluded from this prospectus, and you should referany references to the applicable exhibitSEC’s website or schedule for a complete description of any statement referring to any contract or other document. You may inspect a copy of the registration statement, including the exhibits and schedules, without charge, at the public reference room or obtain a copy from the SEC upon payment of the fees prescribed by the SEC.
website are inactive textual references only. We also maintain a website at www.darebioscience.com, through which you can access our SEC filings. The information set forth on our website is not part of this prospectus.
We have included our website address in this prospectus solely as an inactive textual reference.
our Annual Report on Form10-K for the fiscal year ended December 31, 2017,2019, filed with the SEC on March 28, 2018 (as amended27, 2020 (the “Annual Report”), including all material incorporated by Amendment No. 1reference therein, which includes the portions of our definitive proxy statement on Form10-K/ASchedule 14A filed with the SEC on April 30, 2018);
our Quarterly ReportsReport on Form10-Q for the fiscal quarterthree months ended March 31, 2018,2020, filed with the SEC on May 14, 2017, and for the fiscal quarter ended June 30, 2018, filed with the SEC on August 13, 2018;
our Current Reports on Form8-K and on Form 8-K/A filed with the SEC on January 4, 2018,9, 2020, January 13, 2020, January 30, 2020, February 12, 2018,5, 2020, February 13, 2018,6, 2020, February 10, 2020, March 16, 2020, April 11, 2018,23, 2020, and April 30, 2018, May 4, 2018, June 1, 2018 and July 12, 201827, 2020 (except for the information furnished under Items 2.02 or 7.01 of Form 8-K and theall exhibits furnished thereto)related to such items);
the description of our common stock contained in our Registration Statement on Form8-A filed on April 4, 2014, (FileNo. 001-36395), including any amendments thereto or reports filed for the purpose of updating such description; and
The SEC file number for each of the documents listed above is 001-36395.
The SEC file number for each of the documents listed above is001-36395.
In addition, all 8-K and exhibits furnished with such reports and other documents filed by us pursuantthat are related to the Exchange Act (other than current reports on Form8-K, or portions thereof, furnished under Items 2.02 or 7.01 of Form8-K)such items) after
the date of the initial registration statement of which this prospectus is a part and prior to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus.
statement.
You may
directed to:
3,720,500
PROSPECTUS
SEC registration fee | $ | 1,389.61 | ||
Legal fees and expenses | 15,000.00 | |||
Accounting fees and expenses | 7,500.00 | |||
Miscellaneous | 5,000.00 | |||
|
| |||
Total | $ | 28,889.61 | ||
|
|
| SEC registration fee | $ | 728 | |||
| Legal fees and expenses | 5,000 | ||||
| Accounting fees and expenses | 7,500 | ||||
| Miscellaneous | 5,000 | ||||
| Total | $ | 18,228 | |||
II-1
action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of us), by reason of the fact that he or she is or was, or has agreed to become, our director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an Indemnitee), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom if such Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.
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Item 17. Undertakings
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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.
(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, 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.
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Exhibit Number | Exhibit Description | Filed Herewith | Incorporated by Reference herein from Form or Schedule | Filing Date | SEC | |||||
4.1 | 10-Q (Exhibit No. 3.1) | 001-36395 | ||||||||
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| 4.2 | 10-Q (Exhibit No. 3.1) | 001-36395 | ||||||||
| ||||||||||
| 4.3 | 10-K (Exhibit No. 4.1) | 001-36395 | ||||||||
| ||||||||||
| 4.4 | 8-K (Exhibit No. 4.1) | 1/8/2015 | 001-36395 | |||||||
| 4.5 | S-1 (Exhibit No. 10.20) | 3/10/2014 | 333-194442 | |||||||
| 4.6 | S-1 (Exhibit No. 10.19) | 3/10/2014 | 333-194442 | |||||||
| 4.7(a) | 8-K (Exhibit No. 4.1) | 001-36395 | ||||||||
| ||||||||||
| 4.7(b) | 10-Q (Exhibit No. 4.1) | 11/13/2018 | 001-36395 | |||||||
| 4.8 | 10-K (Exhibit No. 4.6) | 3/27/2020 | 001-36395 | |||||||
| 5.1 | X | |||||||||
| 23.1 | X | |||||||||
| Daré Bioscience, Inc. | ||
By: | ||
Lisa Walters-Hoffert | ||
Chief Financial Officer | ||
Signature President, Chief Executive Officer, Secretary and Director /s/ Lisa Walters-Hoffert Chief Financial Officer /s/ /s/ Susan L. Kelley /s/ Robin J. SteeleSignatureTitleDateTitle Date /s/ Sabrina Martucci Johnson Sabrina Martucci JohnsonMay 15, 2020 Sabrina Martucci Johnson (Principal Executive Officer) August 24, 2018Lisa Walters-HoffertMay 15, 2020 Lisa Walters-Hoffert (Principal Financial and Accounting Officer) August 24, 2018Roger L. HawleyRoger L. HawleyWilliam H. Rastetter Chairman of the Board August 24, 2018William H. Rastetter, Ph.D. /s/ Cheryl R. Blanchard Director May 15, 2020 Cheryl R. Blanchard, Ph.D. /s/ Jessica D. Grossman Director May 15, 2020 Jessica D. Grossman, M.D. Director August 24, 2018Director May 15, 2020 Susan L. Kelley, M.D. Director August 24, 2018/s/ Gregory W. Matz Director May 15, 2020 /s/ William H. RastetterWilliam H. Rastetter, Ph.D. Director August 24, 2018Director May 15, 2020 Robin J. Steele, J.D., L.L.M. DirectorAugust 24, 2018