S-3/A

As filed with the Securities and Exchange Commission on August 12, 2014

Registration No. 333-197544

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Pre-Effective Amendment No. 1

to

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

RESPONSE GENETICS, INC.

(Exact name of registrant as specified in charter)

Delaware	11-3525548
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification Number)

1640 Marengo Street, 7^th Floor

Los Angeles, California 90033

(323) 224-3900

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

Thomas A. Bologna

Chairman and Chief Executive Officer

Response Genetics, Inc.

1640 Marengo Street, 7^th Floor

Los Angeles, California 90033

(323) 224-3900

Fax: (323) 224-3096

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

Copy to:

Steven A. Seidman, Esq.

Laura L. Delanoy, Esq.

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York 10019

(212) 728-8000

Fax: (212) 728-8111

From time to time after the effective date of this registration statement.

(Approximate date of commencement of proposed sale to the public)

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 plans, check the following box:  x

If this Form is filed to register additional securities for an offering pursuant to Rule 426(b) under the Securities Act, please 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 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.

Large accelerated filer	¨	Accelerated filer	¨
Non-accelerated filer	¨  (Do not check if a smaller reporting company)	Smaller reporting company	x

DELAYING AMENDMENT UNDER RULE 473(A): 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 the registration statement shall become effective on such date as the Commission acting pursuant to section 8(a), may determine.

Explanatory Note

This Pre-Effective Amendment No. 1 (this “Amendment”) is being filed to amend the Registration Statement on Form S-3 (File No. 333-197544) originally filed by Response Genetics, Inc. on July 21, 2014. The sole purpose of this Amendment is to file the opinion of counsel regarding legality (Exhibit 5.1) to the Registration Statement and to re-file the Exhibit Index in Item 16 of Part II. Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 16 of Part II and the exhibit list therein, the signature pages and Exhibit 5.1 filed herewith.

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 16.              Exhibits. The following documents are filed herewith (unless otherwise indicated) and made a part of this registration statement.

Exhibit	Description
1.1**	Form of Underwriting Agreement.
3.1	Certificate of Incorporation, as amended, of Response Genetics, Inc. (included as Exhibit 3.1 to Amendment No. 4 to the Company’s Registration Statement on Form SB-2 (File No. 333-139534) filed on June 4, 2007 and incorporated by reference herein).
3.2	Certificate of Amendment to the Certificate of Incorporation, as amended, of Response Genetics, Inc. (included as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on July 15, 2014 and incorporated by reference herein).
3.3	Amended and Restated Bylaws of Response Genetics, Inc. (included as Exhibit 3.2.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2010 filed on August 10, 2010 and incorporated by reference herein).
4.1	Form of Common Stock Certificate (included as Exhibit 4.2 to Amendment No. 3 to the Company’s Registration Statement on Form SB-2 (File No. 333-139534) filed on May 31, 2007 and incorporated by reference herein).
4.2**	Form of Preferred Stock Certificate.
4.3**	Form of Certificate of Designations of Preferred Stock.
4.7**	Form of Warrant Agreement and Warrant Certificate.
5.1*	Opinion of Willkie Farr & Gallagher LLP.
23.1	Consent of BDO USA, LLP (included as Exhibit 23.1 to the Registration Statement on Form S-3 (File No. 333-197544) originally filed by the Company on July 21, 2014 and incorporated by reference herein).
23.2	Consent of Willkie Farr & Gallagher LLP (included in Exhibit 5.1).
24.1	Power of Attorney (included as Exhibit 24.1 to the Registration Statement on Form S-3 (File No. 333-197544) originally filed by the Company on July 21, 2014 and incorporated by reference herein).

*	Filed herewith.
**	To be filed by an amendment or as an exhibit to a report filed under the Securities and Exchange Act of 1934, as amended, and incorporated by reference herein.

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 on 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 Los Angeles, California, on August 12, 2014.

By:	/s/Thomas A. Bologna
Name:	Thomas A. Bologna
Title:	Chairman of the Board of Directors and Chief
	Executive Officer

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

	Signatures	Title	Date
By:	/s/ Thomas A. Bologna
	Thomas A. Bologna	Chief Executive Officer (principal executive officer) and Chairman of the Board of Directors	August 12, 2014
By:	*
	Kevin R. Harris	Vice President and Chief Financial Officer (principal financial and accounting officer)	August 12, 2014
By:	*
	Kirk Calhoun	Director	August 12, 2014
By:	*
	Sam Chawla	Director	August 12, 2014
By:	*
	David Schreiber	Director	August 12, 2014
By:	*
	Michael Serruya	Director	August 12, 2014
By:	*
	David Wurzer	Director	August 12, 2014
By:	*
	Richard van den Broek	Director	August 12, 2014

* This registration statement has been signed on behalf of the above listed officers and directors by Thomas A. Bologna, as attorney-in-fact, pursuant to a power of attorney filed as Exhibit 24.1 to this registration statement.

By:	/s/Thomas A. Bologna
Name:	Thomas A. Bologna
	Attorney-in-Fact

EX-5.1

August 12, 2014

Response Genetics, Inc.

1640 Marengo St., 7th Floor

Los Angeles, California 90033

Ladies and Gentlemen:

We have acted as counsel to Response Genetics, Inc., a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3, as may be amended from time to time (the “Registration Statement”), under the Securities Act of 1933, as amended (the “Securities Act”), relating to the issuance and sale from time to time at an aggregate initial offering price of up to $20,000,000 of (i) shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”), (ii) shares of preferred stock, par value $0.01 per share, of the Company (the “Preferred Stock”), and (iii) warrants to purchase Common Stock and/or Preferred Stock (the “Warrants”). The Common Stock, the Preferred Stock and the Warrants are referred to herein collectively as the “Securities.”

We have examined such documents as we have considered necessary for purposes of this opinion, including (i) the Registration Statement; (ii) the Certificate of Incorporation of the Company, as amended to date; (iii) the Amended and Restated Bylaws of the Company, as amended to date; (iv) certain resolutions of the Board of Directors of the Company relating to the Securities and related matters and (v) such other records and documents that we have deemed necessary for the purpose of this opinion. We have also examined such other records, documents, papers, statutes and authorities as we have deemed necessary to form a basis for the opinions hereinafter expressed.

As to questions of fact material to the opinions expressed below, we have relied without independent check or verification upon certificates and comparable documents of public officials and officers and representatives of the Company and statements of fact contained in the documents we have examined. In our examination and in rendering our opinions contained herein, we have assumed (i) the genuineness of all signatures of all parties; (ii) the authenticity of all corporate records, documents, agreements, instruments and certificates submitted to us as originals and the conformity to original documents and agreements of all documents and agreements submitted to us as conformed, certified or photostatic copies and (iii) the capacity of natural persons. With respect to certain factual matters, we have relied upon a certificate of an officer of the Company.

August 12, 2014
Page 2
 

In connection with the opinions expressed below, we have assumed that, at or prior to the time of the delivery of any such Security, (i) the Company shall have duly established the terms of such Security and duly authorized the issuance and sale of such Security and such authorization shall not have been modified or rescinded; (ii) each party to any document entered into in connection with the issuance or delivery of any such Security other than the Company shall have the power, corporate or other, to enter into and perform all obligations in accordance with the documents to be executed by such parties, and we have also assumed that upon the execution and delivery by such parties of such documents that such documents shall constitute valid and binding obligations of such parties; (iii) the Registration Statement and any amendments thereto shall be effective under the Securities Act and comply with all applicable laws and such effectiveness shall not have been terminated or rescinded; (iv) the appropriate prospectus supplement, free writing prospectus or term sheet relating to the Securities offered thereby will be prepared and filed with the Securities and Exchange Commission in compliance with the Securities Act and will comply with applicable laws at the time the Securities are offered or issued; (v) all Securities will be issued and sold in compliance with the applicable provisions of the Securities Act and in compliance with the “blue sky” laws of certain states and in the manner stated in the Registration Statement and the applicable prospectus supplement; (vi) there shall not have occurred any change in law affecting the validity or enforceability of such Security; (vii) the number of shares of Common Stock, as the case may be, offered pursuant to the Registration Statement does not exceed, at the time of issuance, the authorized but unissued shares of Common Stock, as the case may be; (viii) the number of shares of Preferred Stock, as the case may be, offered pursuant to the Registration Statement does not exceed, at the time of issuance, the authorized but unissued shares of Preferred Stock, as the case may be; (ix) any Securities issuable upon conversion, exercise or exchange of any Securities being offered or issued will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exercise or exchange and (x) the Company has timely filed all necessary reports pursuant to the Securities Exchange Act of 1934, as amended, which are incorporated into the Registration Statement by reference.

We have also assumed that none of the terms of any Security to be established subsequent to the date hereof, nor the issuance and delivery of such Security, nor the compliance by the Company with the terms of such Security nor the documents governing such Securities will violate any applicable law or will result in a violation of, or constitute a default or breach under, any provision of any instrument or agreement then binding upon the Company, any restriction imposed by any court or governmental body having jurisdiction over the Company or any consent, approval, license, authorization or validation of, or filing, recording or registration with, any governmental authority.

A. Based on the foregoing, and subject to the qualifications and assumptions set forth herein, we are of the opinion that:

1.With respect to the Common Stock, (i) when all necessary and appropriate corporate action has been taken by the Company and its stockholders, including to authorize and approve the issuance of any Common Stock, the terms of the offering thereof and related matters, the Common Stock will be duly and validly authorized and (ii) when the shares of Common Stock have been issued, delivered and paid for in accordance with the terms set forth in the Registration Statement, the supplement or supplements to the prospectus included therein and the applicable definitive purchase, underwriting or similar agreement, the Common Stock will be validly issued, fully paid and nonassessable.

August 12, 2014
Page 3

2.With respect to the Preferred Stock, (i) when all necessary and appropriate corporate action has been taken by the Company and its stockholders, including to authorize and approve the issuance of any Preferred Stock, the terms of the offering thereof and related matters (including the adoption of a Certificate of Designations for the Preferred Stock in accordance with the applicable provisions of the General Corporation Law of the State of Delaware), the Preferred Stock will be duly and validly authorized and (ii) when the shares of Preferred Stock have been issued, delivered and paid for in accordance with the terms set forth in the Registration Statement, the supplement or supplements to the prospectus included therein and the applicable definitive purchase, underwriting or similar agreement, the Preferred Stock will be validly issued, fully paid and nonassessable.

3.With respect to the Warrants, when (i) (A) all necessary and appropriate corporate action has been taken by the Company and its stockholders, including to authorize and approve the issuance and terms of the Warrants, the terms of the offering thereof and related matters and (B) a warrant agreement relating to Warrants, and each amendment thereof or supplement thereto (each such warrant agreement, as so amended or supplemented, being referred to as a “Warrant Agreement”), has been duly executed and delivered by the parties thereto, assuming the legality and validity of the Common Stock and/or Preferred Stock underlying such Warrants, the Warrants will be duly and validly authorized and (ii) the Warrants are duly executed by the Company, authenticated by the warrant agent and issued, delivered and paid for and in accordance with the terms set forth in the Registration Statement, the supplement or supplements to the prospectus included therein, the Warrant Agreement and the applicable definitive purchase, underwriting or similar agreement, assuming the documents governing the Warrants are governed by New York law, the Warrants will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and will entitle the holders thereof to the rights specified in the Warrant Agreement.

B. The foregoing opinions are subject to the following assumptions, qualifications and exceptions:

The opinions expressed herein are limited to the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States as in effect on the date of this opinion typically applicable to transactions of the type contemplated by this opinion and to the specific legal matters expressly addressed herein, and no opinion is expressed or implied with respect to the laws of any other jurisdiction or any legal matter not expressly addressed herein.

The opinions set forth above are qualified in that the legality or enforceability of the documents referred to therein may be (a) subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, (b) limited insofar as the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and the discretion of the court before which any enforcement thereof may be sought and (c) subject to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) including principles of commercial reasonableness or conscionability and an implied covenant of good faith and fair dealing. Insofar as provisions of any of the documents referenced in this opinion letter provide for indemnification or contribution, the enforcement thereof may be limited by public policy considerations.

August 12, 2014
Page 4

We express no opinion as to provisions of the documents referenced in this opinion letter insofar as such provisions relate to (i) the subject matter jurisdiction of a United States federal court to adjudicate any controversy relating to such documents, (ii) the waiver of inconvenient forum with respect to proceedings in any such United States federal court, (iii) the waiver of right to a jury trial, (iv) the validity or enforceability under certain circumstances of provisions of the documents with respect to severability or any right of setoff or (v) limitations on the effectiveness of oral amendments, modifications, consents and waivers.

This letter speaks only as of the date hereof and is limited to present statutes, regulations and administrative and judicial interpretations. We undertake no responsibility to update or supplement this letter after the date hereof.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the Registration Statement and the related prospectus or any prospectus supplement thereto. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated thereunder.

Very truly yours,

/s/ Willkie Farr & Gallagher LLP