SEC Comment Letter for Phio Pharmaceuticals Corp. (PHIO) (CIK 0001533040) (PHIO) — Jan 11, 2012
Phio Pharmaceuticals Corp. (PHIO) (CIK 0001533040)
Date: Jan. 11, 2012 · CIK: 0001533040 · Accession: 0000000000-12-001622
AI Filing Summary & Sentiment
Reasoning
File numbers found in text: 333-177498
Letter
January 10, 2012 Via E-mail Dr. Mark J. Ahn, Ph.D. President RXi Pharmaceuticals Corporation 60 Prescott Street Worcester, MA 01605
Re: RXi Pharmaceuticals Corporation Amendment No. 2 to Form S-1 Filed December 29, 2011 File No. 333-177498
Dear Dr. Ahn:
We have reviewed your amended regist ration statement and response letter each filed on December 29, 2011 and have the following comments. In some of our comments, we may ask you to provide us w ith information so we may better understand your disclosure. Please respond to this letter by am ending your registration statement and providing the requested information. If you do not believe our comments apply to your facts and circumstances or do not believe an amendment is appropriate, please tell us why in your response. After reviewing any further amendments to your registration statement and the information you provide in response to th ese comments, we may have additional comments. General
1. Please revise your filing to complete the missing disclosure concerning share numbers and the disclosure concerning your stock split. Please also revise your Exhibit 3.1 to include the complete certificate of incorporation, as filed with the Secretary of State of Delaware.
Dr. Mark J. Ahn RXi Pharmaceuticals Corporation January 10, 2012 Page 2 Financial Statements
Notes to Financial Statements 12. Subsequent Events, page F-30 2. Please refer to your response to comme nt 11. You state on page F-24 with respect to the thirteen month warrants and the five year warrants issued in the March 2011 offering that the fair va lue of the remaining 2,550,000 warrants totaling $1,790,000 was recorded as a deri vative liability in RXI’s financial statements. You state on page F-25 with respect to the April 2011 offering, including the warrants issued in excha nged for the March 2011 warrants, that a portion of the liability was allocated to RXI based on the expected offering proceeds. Based on the disclosure in the filing and your response you allocated 100% of the warrant liabil ity relating to the remaining March warrants (after the exchange) to RXI a nd 50% of the warrant liability for the April issuance, including the March exch ange warrants to RXI. We note that RXI had a cash balance of $6.891 million at December 31, 2010 and that cash used in the nine months ending September 30, 2011 was $6.469 million which resulted in a cash balance of $422,000 at September 30, 2011. As it is not clear that any of the offering proceed s were allocated to the historical operations of RXI, please tell us why you believe it is appropriate to record the derivative relating to the March and April 2011 offerings in the historical financial statements of RXI. We note in the Statement of Cash Flows that Galena contributed $369,000 to RXI in the nine months ended September 30, 2011. Please tell us if that contribution was part of the agreement to loan up to $1.5 million to RXI as part of the spin-off.
Exhibit 5.1
3. Please expand this opinion to disclose the number of shares of common stock included in this opinion. Please also c onfirm that this amount is consistent with the amount of securities being regi stered on this registration statement. 4. Please revise this opinion to remove a ssumptions (3) and (4) contained in the last paragraph of the first page of this opinion. See Secti on II.B.3.a of Staff Legal Bulletin 19.
We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be certain that the filing includes the information the Securities Act of 1933 and all applicable Securities Act rules require. Since the company and its management are in possession of all facts re lating to a company’s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made.
Notwithstanding our comments, in the ev ent you request acceleration of the effective date of the pending registration st atement please provide a written statement from the company acknowledging that:
Dr. Mark J. Ahn RXi Pharmaceuticals Corporation January 10, 2012 Page 3 should the Commission or the staff, acti ng pursuant to delegated authority, declare the filing effective, it does not foreclose the Commission from taking any action with respect to the filing;
the action of the Commission or the staff, acting pursuant to delegated authority, in declaring the filing effective, does not relieve the company from its full responsibility for the adequacy and accuracy of the disclo sure in the filing; and
the company may not assert staff comment s and the declaration of effectiveness as a defense in any proceeding initiat ed by the Commission or any person under the federal securities laws of the United States.
Please refer to Rules 460 and 461 regard ing requests for acceleration. We will consider a written request for acceleration of the effective date of the registration statement as confirmation of th e fact that those requesting acc eleration are aware of their respective responsibilities unde r the Securities Act of 1933 a nd the Securities Exchange Act of 1934 as they relate to the proposed public offering of the securi ties specified in the above registration statement. Please allo w adequate time for us to review any amendment prior to the requested effective da te of the registration statement. You may contact James Pekl enk at (202) 551-3661 or Mary Mast at (202) 551- 3613 if you have questions regarding comments on the financial statements and related matters. Please contact Jennifer Riegel, Sp ecial Counsel, at (202) 551- 3575 or me at (202) 551-3715 with any other questions.
Sincerely,
/s/ Jennifer Riegel for Jeffrey Riedler
Assistant Director
cc: Dale E. Short, Esq. TroyGould PC 1801 Century Park East, Suite 1600 Los Angeles, CA 90067-2367
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January 10, 2012 Via E-mail Dr. Mark J. Ahn, Ph.D. President RXi Pharmaceuticals Corporation 60 Prescott Street Worcester, MA 01605 Re: RXi Pharmaceuticals Corporation Amendment No. 2 to Form S-1 Filed December 29, 2011 File No. 333-177498 Dear Dr. Ahn: We have reviewed your amended regist ration statement and response letter each filed on December 29, 2011 and have the following comments. In some of our comments, we may ask you to provide us w ith information so we may better understand your disclosure. Please respond to this letter by am ending your registration statement and providing the requested information. If you do not believe our comments apply to your facts and circumstances or do not believe an amendment is appropriate, please tell us why in your response. After reviewing any further amendments to your registration statement and the information you provide in response to th ese comments, we may have additional comments. General 1. Please revise your filing to complete the missing disclosure concerning share numbers and the disclosure concerning your stock split. Please also revise your Exhibit 3.1 to include the complete certificate of incorporation, as filed with the Secretary of State of Delaware. Dr. Mark J. Ahn RXi Pharmaceuticals Corporation January 10, 2012 Page 2 Financial Statements Notes to Financial Statements 12. Subsequent Events, page F-30 2. Please refer to your response to comme nt 11. You state on page F-24 with respect to the thirteen month warrants and the five year warrants issued in the March 2011 offering that the fair va lue of the remaining 2,550,000 warrants totaling $1,790,000 was recorded as a deri vative liability in RXI’s financial statements. You state on page F-25 with respect to the April 2011 offering, including the warrants issued in excha nged for the March 2011 warrants, that a portion of the liability was allocated to RXI based on the expected offering proceeds. Based on the disclosure in the filing and your response you allocated 100% of the warrant liabil ity relating to the remaining March warrants (after the exchange) to RXI a nd 50% of the warrant liability for the April issuance, including the March exch ange warrants to RXI. We note that RXI had a cash balance of $6.891 million at December 31, 2010 and that cash used in the nine months ending September 30, 2011 was $6.469 million which resulted in a cash balance of $422,000 at September 30, 2011. As it is not clear that any of the offering proceed s were allocated to the historical operations of RXI, please tell us why you believe it is appropriate to record the derivative relating to the March and April 2011 offerings in the historical financial statements of RXI. We note in the Statement of Cash Flows that Galena contributed $369,000 to RXI in the nine months ended September 30, 2011. Please tell us if that contribution was part of the agreement to loan up to $1.5 million to RXI as part of the spin-off. Exhibit 5.1 3. Please expand this opinion to disclose the number of shares of common stock included in this opinion. Please also c onfirm that this amount is consistent with the amount of securities being regi stered on this registration statement. 4. Please revise this opinion to remove a ssumptions (3) and (4) contained in the last paragraph of the first page of this opinion. See Secti on II.B.3.a of Staff Legal Bulletin 19. We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be certain that the filing includes the information the Securities Act of 1933 and all applicable Securities Act rules require. Since the company and its management are in possession of all facts re lating to a company’s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made. Notwithstanding our comments, in the ev ent you request acceleration of the effective date of the pending registration st atement please provide a written statement from the company acknowledging that: Dr. Mark J. Ahn RXi Pharmaceuticals Corporation January 10, 2012 Page 3 should the Commission or the staff, acti ng pursuant to delegated authority, declare the filing effective, it does not foreclose the Commission from taking any action with respect to the filing; the action of the Commission or the staff, acting pursuant to delegated authority, in declaring the filing effective, does not relieve the company from its full responsibility for the adequacy and accuracy of the disclo sure in the filing; and the company may not assert staff comment s and the declaration of effectiveness as a defense in any proceeding initiat ed by the Commission or any person under the federal securities laws of the United States. Please refer to Rules 460 and 461 regard ing requests for acceleration. We will consider a written request for acceleration of the effective date of the registration statement as confirmation of th e fact that those requesting acc eleration are aware of their respective responsibilities unde r the Securities Act of 1933 a nd the Securities Exchange Act of 1934 as they relate to the proposed public offering of the securi ties specified in the above registration statement. Please allo w adequate time for us to review any amendment prior to the requested effective da te of the registration statement. You may contact James Pekl enk at (202) 551-3661 or Mary Mast at (202) 551- 3613 if you have questions regarding comments on the financial statements and related matters. Please contact Jennifer Riegel, Sp ecial Counsel, at (202) 551- 3575 or me at (202) 551-3715 with any other questions. Sincerely, /s/ Jennifer Riegel for Jeffrey Riedler Assistant Director cc: Dale E. Short, Esq. TroyGould PC 1801 Century Park East, Suite 1600 Los Angeles, CA 90067-2367