S-8

As filed with the Securities and Exchange Commission on April 21, 2017

Registration No. 333-         

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

BIOPHARMX CORPORATION

(Exact Name of Registrant as Specified in Its Charter)

Delaware	59-3843182
(State or Other Jurisdiction of Incorporation or Organization)	(I.R.S. Employer Identification No.)

1505 Adams Drive

Menlo Park, California 94025

(Address of Principal Executive Offices)  (Zip Code)

2016 Equity Incentive Plan

(Full Title of the Plan)

Anja Krammer

President and Director

BioPharmX Corporation
1505 Adams Drive, Suite D
Menlo Park, California 94025

(Name and Address of Agent For Service)

(650) 889-5020

(Telephone Number, including area code, of agent for service)

Copies to:

Robert A. Freedman, Esq.

Niki Fang, Esq.

Fenwick & West LLP

801 California Street

Mountain View, California 94041

(650) 988-8500

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

Large accelerated filer ☐	Accelerated filer ☐
Non-accelerated filer ☐	Smaller reporting company ☒
(Do not check if a smaller reporting company)
Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

CALCULATION OF REGISTRATION FEE

Title of Securities To Be Registered	Amount To Be Registered (1)	Proposed Maximum Offering Price Per Share			Proposed Maximum Aggregate Offering Price		Amount of Registration Fee
Common Stock, $0.001 par value per share
— Reserved for issuance under the 2016 Equity Incentive Plan, as amended	20,000,000	$	0.72	(2)	$	14,400,000	$	1,669.00
TOTAL	20,000,000	N/A			$	14,400,000	$	1,669.00

(1) Pursuant to Rules 416(a) and 416(c) under the Securities Act of 1933, as amended (“Securities Act”), this Registration Statement also covers an indeterminable number of additional shares of common stock, $0.001 par value per share (“Common Stock”), of BioPharmX Corporation (“Registrant”) as may hereafter be issued in the event of stock dividend, stock split, recapitalization or any other similar transaction effected without Registrant’s receipt of consideration.

(2) Estimated solely for the purposes of calculating the registration fee in accordance with Rules 457(c) and (h) under the Securities Act, and based on the average of the high and low sale prices of Registrant’s Common Stock, as quoted on the NYSE MKT, on April 20, 2017.

PART I

REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION

Pursuant to General Instruction E of Form S-8, BioPharmX Corporation (the “Registrant”) is filing this Registration Statement with the Securities and Exchange Commission (the “Commission”) to register an aggregate of 20,000,000 additional shares of Common Stock under the Registrant’s 2016 Equity Incentive Plan (the “Plan”). This Registration Statement hereby incorporates by reference the contents of the Registrant’s registration statement on Form S-8 filed with the Commission on September 14, 2016 (Registration No. 333-213627). In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 8.  Exhibits.

See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this Registration Statement, which Exhibit Index is incorporated herein by reference.

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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Menlo Park, State of California, on April 21, 2017.

BIOPHARMX CORPORATION
By:	/s/ Anja Krammer
	Anja Krammer
	President (Principal Executive Officer)

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned officers and directors of BioPharmX Corporation, a Delaware corporation, do hereby constitute and appoint Anja Krammer and Greg Kitchener, or each of them individually, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement.  Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on behalf of the Registrant in the capacities and on the dates indicated.

Signature	Title	Date
/s/ Anja Krammer	President and Director (Principal Executive Officer)	April 21, 2017
Anja Krammer
/s/ Greg Kitchener	Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)	April 21, 2017
Greg Kitchener
/s/ Michael Hubbard	Director	April 21, 2017
Michael Hubbard
/s/ Stephen Morlock	Director	April 21, 2017
Stephen Morlock
/s/ C. Gregory Vontz	Director	April 21, 2017
C. Gregory Vontz

EXHIBIT INDEX

Exhibit		Incorporated by Reference				Filed
Number	Exhibit Description	Form	File No.	Filing Date	Exhibit	Herewith
4.1	Certificate of Incorporation	S-8	333-201708	1/26/2015	4.01
4.2	Bylaws	S-8	333-201708	1/26/2015	4.02
4.3	Certificate of Amendment to the Certificate of Incorporation	10-K	001-37411	4/21/2017	3.5
5.01	Opinion of Fenwick & West LLP as to legality of securities being registered					X
23.1	Consent of Fenwick & West LLP (included in Exhibit 5.01)					X
23.2	Consent of BPM LLP, Independent Registered Public Accounting Firm					X
24.1	Power of Attorney (included on signature page hereto)					X
99.1	Amended 2016 Equity Incentive Plan	10-K	001-37411	4/21/2017	10.11
99.2	Form of Stock Option Agreement under Amended 2016 Equity Incentive Plan	S-8	333-213627	9/14/2016	4.05
99.3	Form of Restricted Stock Unit Award Agreement under Amended 2016 Equity Incentive Plan	S-8	333-213627	9/14/2016	4.06
99.4	Form of Stock Bonus Award Agreement	S-8	333-213627	9/14/2016	4.07
99.5	Form of Restricted Stock Agreement	S-8	333-213627	9/14/2016	4.08
99.6	Form of Stock Appreciation Right Award Agreement	S-8	333-213627	9/14/2016	4.06

EX-5.01

EXHIBIT 5.01

April 21, 2017

BioPharmX Corporation

1505 Adams Drive

Menlo Park, CA 94025

Ladies and Gentlemen:

As counsel to BioPharmX Corporation, a Delaware corporation (the “Company”), we have examined the Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission (the "Commission") on or about April 21, 2017 (the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an aggregate of 20,000,000 shares (the “Shares”) of the Company’s Common Stock (the “Common Stock”), subject to issuance by the Company upon the exercise of equity awards to be granted under the Company’s 2016 Equity Incentive Plan, as amended (the “Plan”). At your request we are providing this letter to express our opinion on the matters set forth below in this letter (“our opinion”).

In connection with our opinion expressed below we have examined originals or copies of  the Company’s certificate of incorporation, certificate of amendment to the certificate of incorporation, bylaws, the Plan, certain corporate proceedings of the Company’s board of directors and stockholders relating to the Registration Statement, the Plan and the Company’s current certificate of incorporation and bylaws, and such other agreements, documents, certificates and statements of the Company and public or governmental officials, as we have deemed advisable, and have examined such questions of law as we have considered necessary. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures on documents submitted to us, the conformity to originals of all documents submitted to us as copies, and the absence of any undisclosed termination, waiver or amendment to any document reviewed by us.  In giving our opinion, we have also relied upon a good standing certificate regarding the Company issued by the Delaware Secretary of State and representations made to us by the Company, including representations that the Company has available a sufficient number of authorized shares of Common Stock that are not currently outstanding or reserved for issuance under other outstanding securities or plans of the Company, to enable the Company to issue and deliver all of the Shares as of the date of this letter.

We render this opinion only with respect to, and we express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing Delaware General Corporation Law (“DGCL”).

Based upon, and subject to, the foregoing, it is our opinion that when the 20,000,000 Shares of Common Stock that may be issued and sold by the Company upon the exercise of equity awards to be granted under the Plan, have been issued and sold by the Company against the Company’s receipt of payment therefor (in an amount and type of consideration not less than the par value per Share) in accordance with the terms (including payment provisions) of the Plan, and have been duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, such Shares will be validly issued, fully paid and non-assessable.

We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the prospectus constituting a part thereof and any amendments thereto.  We do not thereby admit that we are within the category of persons whose consent

is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.  This opinion is intended solely for use in connection with issuance and sale of the Shares subject to the Registration Statement and is not to be relied upon for any other purpose.  In providing this letter, we are opining only as to the specific legal issues expressly set forth above, and no opinion shall be inferred as to any other matter or matters.  This opinion is rendered on, and speaks only as of, the date of this letter first written above, and does not address any potential change in facts or law that may occur after the date of this opinion letter.  We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention, whether or not such occurrence would affect or modify any of the opinions expressed herein.

Very truly yours,

/s/ FENWICK & WEST LLP

EX-23.2

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report (which contains an explanatory paragraph relating to BioPharmX Corporation’s ability to continue as a going concern as described in Note 2 to the consolidated financial statements) dated April 21, 2017, relating to the consolidated financial statements of BioPharmX Corporation, which appears in the Annual Report on Form 10-K of BioPharmX Corporation for the year ended January 31, 2017.

/s/ BPM LLP

San Jose, California

April 21, 2017