Copies to:
Ramsey Alloush
General Counsel
Journey Medical Corporation
9237 E Via de Ventura Blvd., Suite 105
Scottsdale, AZ 85258
(480) 434-6670 |
Rakesh Gopalan
David S. Wolpa
McGuireWoods LLP
201 N. Tryon Street, Suite 3000
Charlotte, NC 28202
(704) 343-2000 |
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement as determined by the registrant.
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 462(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, a smaller reporting company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth
company” in Rule 12b-2 of the Exchange Act. (Check one):
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Smaller reporting company |
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Emerging growth company |
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If an emerging growth company that prepares its financial statements
in accordance with U.S. GAAP, 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 7(a)(2)(B) of the Securities Act.
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, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement
contains two prospectuses:
| · | a base prospectus to be used in connection with offerings and sales by the registrant from time to time,
in one or more series of issuances and on terms to be determined at the time of the offering, any combination of the securities described
in that prospectus, up to an aggregate amount of $150 million; and |
| · | a sales agreement prospectus covering the offering, issuance and sale by us of up to 4,900,000 shares of our common
stock that may be issued and sold from time to time under a sales agreement with B. Riley Securities, Inc.
(“B. Riley”). |
The base prospectus immediately
follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in
a prospectus supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus. The 4,900,000
shares of common stock that may be offered, issued and sold under the sales agreement prospectus are included in the $150 million of
securities that may be offered, issued and sold by us under the base prospectus.
Upon termination of the Sales
Agreement with B. Riley, any portion of the 4,900,000 shares of common stock included in the sales agreement prospectus that are not sold
pursuant to the sales agreement will be available for sale in other primary offerings pursuant to the base prospectus and a corresponding
prospectus supplement, and if no shares are sold under the sales agreement, the full 4,900,000 shares of our common stock may be sold
in other offerings pursuant to the base prospectus and a corresponding prospectus supplement subject to any applicable limitations set
forth herein and therein.
The information in this prospectus is not complete
and may be changed. We may not sell these securities until the Registration Statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
DECEMBER 30, 2022
PROSPECTUS
![](https://content.edgar-online.com/edgar_conv_img/2022/12/30/0001104659-22-131336_tm2233626d1_s3img001.jpg)
$150,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
UNITS
This prospectus will allow us to issue, from time
to time at prices and on terms to be determined at or prior to the time of the offering, up to $150 million in aggregate principal amount
of our common stock, preferred stock, debt securities, warrants and/or units in one or more offerings. We may offer these securities separately
or together in units. We may also offer common stock or preferred stock upon conversion of or exchange for the debt securities and common
stock or preferred stock or debt securities upon the exercise of warrants.
This prospectus describes the general terms of
the securities we may offer and the general manner in which these securities will be offered. We will provide you with the specific terms
of any offering in one or more supplements to this prospectus. The prospectus supplements will specify the securities being offered and
also the specific manner in which the securities will be offered and may also supplement, update or amend information contained in this
document. You should read this prospectus and any prospectus supplement, as well as any documents incorporated by reference into this
prospectus or any prospectus supplement, carefully before you invest.
Our securities may be sold directly by us to you,
through agents designated from time to time or to or through underwriters or dealers. For additional information on the methods of sale,
you should refer to the section titled “Plan of Distribution” in this prospectus and in the applicable prospectus supplement.
If any underwriters or agents are involved in the sale of our securities with respect to which this prospectus is being delivered, the
names of such underwriters or agents and any applicable fees, commissions or discounts and over-allotment options will be set forth in
a prospectus supplement. The price to the public of such securities and the net proceeds that we expect to receive from such sale will
also be set forth in a prospectus supplement.
Our common stock is listed on the Nasdaq Capital
Market, under the symbol “DERM.” As of November 1, 2022, the aggregate market value of our public float, calculated according
to General Instructions I.B.6. of Form S-3, is $17,467,322.17, based on 11,765,700 shares of common stock outstanding as of December 28,
2022, of which 7,308,503 shares of our common stock are held by non-affiliates. We have not offered any securities pursuant to General
Instruction I.B.6. of Form S-3 during the prior 12 calendar month period that ends on, and includes, the date of this prospectus. Pursuant
to General Instruction I.B.6 of Form S-3, in no event will we sell our common stock in a public primary offering with a value exceeding
more than one-third of our public float in any 12-month period so long as our public float remains below $75,000,000.
Investing in our securities involves a high
degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks that we have described on
page 5 of this prospectus under the caption “Risk Factors.” We may include specific risk factors in supplements to
this prospectus under the caption “Risk Factors.” This prospectus may not be used to sell our securities unless accompanied
by a prospectus supplement.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
2023
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement on Form S-3 (this “Registration Statement”) that we filed with the Securities and Exchange Commission
(the “SEC”), utilizing a “shelf” registration process. Under this shelf registration process, we may offer
shares of our common stock, preferred stock, various series of debt securities and/or warrants, either individually or in units, in
one or more offerings, with a total value of up to $150 million. This prospectus provides you with a general description of the securities
we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that
will contain specific information about the terms of that offering.
This prospectus does not contain all of the information
included in the registration statement. For a more complete understanding of the offering of the securities, you should refer to the registration
statement, including its exhibits. A prospectus supplement may also add, update or change information contained or incorporated by reference
in this prospectus. However, no prospectus supplement will offer a security the offering of which is not registered and described in this
prospectus at the time of its effectiveness. This prospectus, together with the applicable prospectus supplements and the documents incorporated
by reference into this prospectus, includes all material information relating to the offering of securities under this prospectus. You
should carefully read this prospectus, the applicable prospectus supplement, the information and documents incorporated herein by reference
and the additional information under the heading “Where You Can Find More Information” before making an investment
decision.
You should rely only on the information we have
provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with
information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson or other person is authorized
to give any information or to represent anything not contained or incorporated by reference in this prospectus. You must not rely on any
unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances
and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus or any prospectus supplement
is accurate only as of the date on the front of the document and that any information we have incorporated herein by reference is accurate
only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any sale of a
security.
We further note that the representations, warranties
and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in the accompanying
prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating
risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such
representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and
covenants should not be relied on as accurately representing the current state of our affairs.
This prospectus may not be used to consummate
sales of our securities, unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies between any prospectus
supplement, this prospectus and any documents incorporated by reference, the document with the most recent date will control.
Unless the context otherwise requires, “Journey,”
“our Company,” “we,” “us,” “our” and similar terms refer to Journey Medical Corporation.
PROSPECTUS SUMMARY
The following is a summary of what we believe
to be the most important aspects of our business and the offering of our securities under this prospectus. We urge you to read this entire
prospectus, including the more detailed consolidated financial statements, notes to the consolidated financial statements and other information
incorporated by reference from our other filings with the SEC or included in any applicable prospectus supplement. Investing in our securities
involves risks. Therefore, carefully consider the risk factors set forth in any prospectus supplements and in our most recent annual and
quarterly filings with the SEC, as well as other information in this prospectus and any prospectus supplements and the documents incorporated
by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely affect our business, operating
results and financial condition, as well as adversely affect the value of an investment in our securities.
Our Company
We are a commercial-stage
pharmaceutical company founded in October 2014 that focuses on the development and commercialization of pharmaceutical products for
the treatment of dermatological conditions. Our current portfolio includes eight branded and three authorized generic prescription drugs
for dermatological conditions that are actively marketed in the U.S. We are managed by experienced life science executives with a track
record of creating value for their stakeholders and bringing novel medicines to the market, enabling patients to experience increased
quality of life and physicians and other licensed medical professionals to provide better care for their patients. We aim to acquire rights
to future products by licensing or otherwise acquiring an ownership interest in, funding the research and development of, and eventually
commercializing, dermatological products through our exclusive field sales organization.
On November 16,
2021, we completed an initial public offering (“IPO”) of our Common Stock, which resulted in net proceeds of approximately
$30.6 million, after deducting underwriting discounts and other offering costs.
We expect our expenses
will increase for the foreseeable future as we pursue business development opportunities, commercialize, and market new products and incur
additional costs associated with operating as a public company. To date, our business has not been materially impacted by COVID-19; however,
depending on the extent of the ongoing pandemic, it is possible that our business, financial condition and results of operations could
be materially and adversely affected by COVID-19 in the future. Our cash and cash equivalents balance was $34.9 million at September 30,
2022.
We are a majority-owned
subsidiary of Fortress Biotech, Inc. (“Fortress”).
Overview of the Business, Relevant Disease
States, Market, and Products
Journey Medical Corporation
is a commercial-stage pharmaceutical company founded in October 2014 that focuses on the development and commercialization of pharmaceutical
products for the treatment of dermatological conditions. Our current portfolio includes eight branded and three authorized generic prescription
drugs for dermatological conditions that are actively marketed in the U.S. Since inception, we have made significant investments to build
out our commercial product portfolios, which we believe, coupled with our experienced dermatology sales leadership team and our recently
expanded field sales force, will position our business for growth.
As of December 29,
2022, our major actively marketed products, which have been approved by the U.S. Food and Drug Administration (“FDA”) for
sale in the United States, include:
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Amzeeq® ((minocycline) topical foam, 4% for the treatment of inflammatory lesions of non-nodular moderate to severe acne vulgaris in adults and children 9 years and older), acquired and launched in January 2022; |
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Zilxi® ((minocycline) topical foam, 1.5% for inflammatory lesions due to rosacea in adults), acquired and launched in January 2022; |
| · | Qbrexza® (a medicated cloth towelette for the treatment of primary axillary
hyperhidrosis), acquired and launched in May 2021; |
| · | Accutane® (an oral isotretinoin drug for the treatment of severe recalcitrant
nodular acne), licensed in July 2020 and launched in March 2021; |
| · | Ximino® (an oral minocycline drug for the treatment of moderate to severe
acne), acquired and launched in August 2019; |
| · | Exelderm® Cream and Solution (a broad-spectrum antifungal intended for
topical use), acquired and launched in October 2018; and |
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Targadox® (an oral doxycycline drug for adjunctive therapy for severe acne), licensed in March 2015 and launched in October 2016. |
Additionally, we sell
three authorized generic products:
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minocycline hydrocholoride extended release capsules, launched in April 2020; |
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sulconazole nitrate cream and solution, launched in January 2020; and |
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| · | doxycycline hyclate immediate release tablets, launched in May 2018. |
Our Strategy
We are a highly focused, pharmaceutical company
dedicated to developing and commercializing therapies for the treatment of dermatologic conditions that seeks to deliver value to patients,
physicians and the healthcare system, as well as to our stakeholders. Our strategic priorities include continuing to augment and grow
our product portfolio and organization in order to maximize the probabilities of sustainable long-term value creation. This will consist
of both commercial execution on our existing product portfolio, including lifecycle management, as well as investing in additional growth
strategies through product and company acquisitions, licensing, or developing new products.
For the year ended December 31, 2021, we
generated net product revenue of $63.1 million, compared to $44.5 million for the year ended December 31, 2020. For the nine months ended September 30, 2022, we generated net product revenue of $57.7 million, compared to $45.6 million for the nine
months ended September 30, 2021.
An important part of our growth strategy is
to identify new business development opportunities, including development stage and commercial drugs that we may acquire from other
pharmaceutical companies. On June 29, 2021, we entered into an agreement with DRL to license and acquire global (except for the
DRL retained rights to the BRIC and CIS countries) ownership rights, title, and interest to DFD-29, a modified release minocycline
late-stage development product that is being evaluated to treat inflammatory lesions of rosacea. DFD-29 is currently in clinical
development and will remain subject to FDA approval. We also remain responsible for funding the clinical program. Additionally, we
recently acquired two FDA-approved drugs. In May 2021, we acquired global ownership rights, title, and interest to Qbrexza®
(a medicated cloth towelette for the treatment of primary axillary hyperhidrosis) from Dermira. In December 2020, we acquired
an anti-itch product from Sun Pharmaceutical Industries Inc., which we plan on launching in the U.S. during the first half of 2023.
We are in various stages of discussion for other opportunities, both commercial and development stage, that could drive additional
growth in the business. Successful development and commercialization of any future in-licensed development stage or commercial drugs
will require us to navigate the many laws and regulations of governmental authorities and regulatory agencies around the world,
including the FDA, relating to the manufacture, development, approval and commercialization of investigational drugs. For
development stage drugs, we may require financial resources significantly in excess of those received by the Company upon completion
of its IPO, and it may take many years for us to receive marketing approval, if ever, for any in-licensed or acquired product
candidate.
Relationship with Fortress
We have a seven-year
operating history. We are a majority owned subsidiary of Fortress. Fortress is a biopharmaceutical company dedicated to acquiring, developing
and commercializing pharmaceutical and biotechnology products and product candidates at its majority-owned and majority-controlled subsidiaries
and joint ventures, and at entities founded by Fortress and in which it maintains significant minority ownership positions. Fortress has
a talented and experienced business development team, comprised of scientists, doctors, and finance professionals, who identify, evaluate,
and propose for our consideration promising products and product candidates.
Corporate Information
Journey
Medical Corporation was incorporated in Delaware in 2014. Our executive offices are located at 9237 E Via de Ventura Blvd. Suite 105,
Scottsdale, AZ 85258. Our telephone number is 480-434-6670, and our e-mail address is info@jmcderm.com or ir@jmcderm.com.
We maintain a website with the address www.jmcderm.com.
We make available free of charge through our Internet website our annual reports on Form 10-K, quarterly reports on Form 10-K
and current reports on Form 8-K, and any amendments to these reports, as soon as reasonably practicable after we electronically file
such material with, or furnish such material to, the Securities and Exchange Commission (“SEC”). We are not including the
information on our website as a part of, nor incorporating it by reference into, this report. Additionally, the SEC maintains a website
that contains annual, quarterly, and current reports, proxy statements, and other information that issuers (including us) file electronically
with the SEC. The SEC’s website address is http://www.sec.gov.
Implications of Being an Emerging Growth Company and a Smaller Reporting Company
We are an “emerging growth company”
as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”), and may remain an emerging growth company
until December 31, 2026, or until such earlier time as we have more than $1.07 billion in annual revenue, we become a “large
accelerated filer” under SEC rules, or we issue more than $1 billion of non-convertible debt over a three-year period.
The JOBS Act contains provisions that, among other things, reduce certain reporting requirements for an “emerging growth
company.” For so long as we remain an emerging growth company, we are permitted and plan to rely on exemptions from certain disclosure
requirements that are applicable to other public companies that are not emerging growth companies.
These exemptions include reduced disclosure
obligations regarding executive compensation. In addition, as an emerging growth company, we are not required to conduct votes seeking
approval, on an advisory basis, of the compensation of our named executive officers or the frequency with which such votes must be conducted.
We may take advantage of some or all of these exemptions until such time as we are no longer an emerging growth company.
We are also a “smaller reporting company,”
meaning that the market value of our stock held by non-affiliates is less than $700 million and our annual revenue was less
than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company if either (i) the
market value of our stock held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100
million during the most recently completed fiscal year and the market value of our stock held by non-affiliates was less than
$700 million. If we are a smaller reporting company at the time we cease to be an emerging growth company, we may continue to rely on
exemptions from certain disclosure requirements that are available to smaller reporting companies. For so long as we remain a smaller
reporting company, we are permitted and intend to rely on exemptions from certain disclosure and other requirements that are applicable
to other public companies that are not applicable to a smaller reporting company.
RISK FACTORS
Investing in our securities involves risks. You
should carefully consider the risks, uncertainties and other factors described in our most recent Annual Report on Form 10-K, as
supplemented and updated by subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K that we have filed or
will file with the SEC, and in other documents which are incorporated by reference into this prospectus, as well as the risk factors and
other information contained in or incorporated by reference into any accompanying prospectus supplement before investing in any of our
securities. Our business, financial condition, results of operations, cash flows or prospects could be materially and adversely affected
by any of these risks. The risks and uncertainties described in the documents incorporated by reference herein are not the only risks
and uncertainties that you may face.
For more information about our SEC filings, please
see “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain matters discussed
in this prospectus, including the documents that we incorporate by reference, may constitute forward-looking statements for purposes of
the Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements
to be materially different from the future results, performance or achievements expressed or implied by such forward-looking statements.
The words “plan,” “predict,” “potential,” “continue,” “anticipate,” “believe,”
“estimate,” “may,” “expect,” “will,” “could,” “project,” “intend”
and similar expressions are generally intended to identify forward-looking statements. Our actual results may differ materially from the
results anticipated in these forward-looking statements due to a variety of factors, including, without limitation, those discussed under
the captions “Risk Factors,” and elsewhere in this report. All written or oral forward-looking statements attributable
to us are expressly qualified in their entirety by these cautionary statements. Such forward-looking statements include, but are not limited
to, statements about:
| · | our future financial performance, including our expectations regarding our revenue, cost and operating
expenses, including changes in technology and development, selling and marketing and general and administrative expenses, gross profit,
and our ability to achieve, and maintain, future profitability; |
| · | our business plan and our ability to effectively manage our growth; |
| · | economic and industry trends, projected growth, or trend analysis; |
| · | political, economic, legal, social and health risks, including the COVID-19 pandemic and subsequent public
health measures that may affect our business or the global economy and the actions we may take in response thereto; |
| · | developments and projections relating to our competitors and industry; |
| · | increases in costs and disruption of supply or shortage of raw materials; |
| · | our and our licensors’ ability to obtain, establish, maintain, protect and enforce intellectual
property and proprietary protection for our products and technologies and to avoid claims of infringement, misappropriation or other violation
of third-party intellectual property and proprietary rights; |
| · | the outcome of any current or future litigation; |
| · | our ability to hire and retain key management; |
| · | our ability to obtain additional financing; |
| · | our beliefs and objectives for future operations; |
| · | our ability to maintain, protect, and enhance our intellectual property; |
| · | our expectations concerning relationships with third parties, including strategic partners; |
| · | the volatility of the trading price of our common stock; |
| · | evolving regulations and the potential for unfavorable changes to, or failure by us to comply with, regulations;
and |
| · | our expectations regarding the period during which we qualify as an emerging growth company under the
Jumpstart Our Business Act. |
The forward-looking statements
contained in this prospectus reflect our views and assumptions as of the effective date of this report. New risks and uncertainties arise
from time to time, and it is impossible for us to predict these events or how they may affect us. Except as required by law, we assume
no responsibility for updating any forward-looking statements.
We qualify all of our
forward-looking statements by these cautionary statements. In addition, with respect to all of our forward-looking statements, we claim
the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995.
USE OF PROCEEDS
We cannot assure you that we will receive any
proceeds in connection with securities that may be offered pursuant to this prospectus. Unless otherwise indicated in the applicable prospectus
supplement, we may use any net proceeds from the sale of securities under this prospectus for general corporate purposes, including working
capital, research and development, payments for research and development — licenses acquired, sales and marketing
activities, general administrative matters, operating expenses and capital expenditures. As a result, our management will have broad discretion
to allocate the net proceeds, if any, we receive in connection with securities offered pursuant to this prospectus for any purpose. Pending
application of the net proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade, interest-bearing
securities or apply them to the reduction of short-term indebtedness.
DESCRIPTION OF CAPITAL STOCK
The following description summarizes the material
terms of our capital stock. Because it is only a summary, it does not contain all the information that may be important to you. For a
complete description of our capital stock, you should refer to our Third Amended and Restated Certificate of Incorporation and our Amended
and Restated Bylaws, each as amended from time to time, and to the provisions of applicable Delaware law.
Common Stock
Our common stock is traded on the Nasdaq Capital
Market under the symbol “DERM.”
The authorized capital stock of Journey consists
of 50,000,000 shares of common stock, with $0.0001 par value, 6,000,000 shares of which have been designated as Class A Common Stock,
and 5,000,000 shares of Preferred Stock, par value $0.0001 per share. The shares of Preferred Stock are undesignated.
Class A Common Stock
The description of our Class A Common Stock
in this item is for information purposes only. All of the Class A Common Stock has been issued to Fortress.
Class A Common Stock is identical to our
common stock other than as to voting rights and the election of directors for a definite period (as described below). On any matter presented
to our stockholders for their action or consideration at any meeting of our stockholders (or by written consent of stockholders in lieu
of meeting), each holder of outstanding shares of Class A Common Stock will be entitled to cast for each share of Class A Common
Stock held by such holder as of the record date for determining stockholders entitled to vote on such matter, the number of votes that
is equal to one and one-tenth (1.1) times a fraction, the numerator of which is the number of shares of outstanding common stock and the
denominator of which is the number of shares of outstanding Class A Common Stock (the “Class A Common Stock Ratio”).
Thus, the Class A Common Stock will at all times constitute a voting majority.
For a period of ten (10) years from the date
of the first issuance of shares of Class A Common Stock (the “Class A Director Period”), the holders of record of
the shares of Class A Common Stock (or other capital stock or securities issued upon conversion of or in exchange for the Class A
Common Stock), exclusively and as a separate class, shall be entitled to appoint or elect the majority of the directors of Journey (the
“Class A Directors”). Thus, the Class A Common Stock will be entitled to elect the majority of the board of directors
during the Class A Director Period.
Finally, each share of Class A Common Stock
is convertible, at the option of the holder, into one fully paid and nonassessable share of common stock (the “Conversion Ratio”),
subject to certain adjustments.
Features of Our Common Stock and Class A
Common Stock
Voting
Rights. The holders of our common stock are entitled to one vote for each share of common stock held and the holders of
our Class A Common Stock are entitled to the number of votes equal to the Class A Common Stock Ratio for each share of Class A
Common Stock held on all matters submitted to a vote of the stockholders, including the election of directors except as to the Class A
Directors during the Class A Director Period. Our certificate of incorporation and bylaws do not provide for cumulative voting rights.
No
Preemptive or Similar Rights. The holders of our common stock and Class A Common Stock have no preemptive or subscription
rights, and there are no redemption or sinking fund provisions applicable thereto. Additionally, the holders of our common stock (excluding
the holders of Class A Common Stock) have no conversion rights.
Adjustment
to Class A Common Stock Conversion Ratio. If Journey, at any time effects a subdivision or combination of the outstanding
common stock (or other capital stock or securities at the time issuable upon conversion of the Class A Common Stock) (by any stock
split, stock dividend, recapitalization, reverse stock split or otherwise), the Conversion Ratio for the Class A Common Stock in
effect immediately before that subdivision will be proportionately decreased or increased, as applicable depending on whether there is
a subdivision or combination, so that the number of shares of common stock issuable on conversion of each share of Class A Common
Stock shall be increased or decreased, as applicable, depending on whether there is a subdivision or combination, in proportion to such
increase or decrease in the aggregate number of shares of common stock outstanding. Additionally, if any reorganization, recapitalization,
reclassification, consolidation or merger involving the Company occurs in which the common stock (but not the Class A Common Stock)
is converted into or exchanged for securities, cash or other property, then each share of Class A Common Stock becomes convertible
into the kind and amount of securities, cash or other property which a holder of the number of shares of common stock of the Company issuable
upon conversion of one share of the Class A Common Stock immediately prior to such reorganization, recapitalization, reclassification,
consolidation or merger would have been entitled to receive pursuant to such transaction.
Blank-Check
Preferred Stock; Authorized but Unissued Common Stock. Our Board is authorized to issue, without shareholder approval, preferred
stock, the rights of which will be determined at the discretion of our Board and that, if issued, could operate as a “poison pill”
to dilute the stock ownership of a potential hostile acquirer to prevent an acquisition that our Board does not approve. Further, the
existence of authorized but unissued shares of common stock and preferred stock could render more difficult or discourage an attempt to
obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Anti-Takeover Provisions
Our Third Amended and Restated Certificate of
Incorporation and bylaws contain provisions that could delay or prevent a change in control of our Company. These provisions could also
make it difficult for stockholders to elect directors that are not nominated by the current members of our board of directors or take
other corporate actions, including effecting changes in our management. These provisions include certain provisions that:
| · | permit the board of directors to establish the number of directors and fill any vacancies and newly created
directorships; |
| · | provide that, after a removal for cause, vacancies on our board of directors
may be filled by a majority of directors then in office, even though less than a quorum; |
| · | prohibit cumulative voting in the election of directors; |
| · | require majority voting to amend our certificate of incorporation and bylaws; |
| · | authorize the issuance of “blank check” preferred stock that our board of directors could
use to implement a stockholder rights plan; |
| · | restrict the forum for certain litigation against us to Delaware or federal courts; |
| · | establish advance notice requirements for nominations for election to our board of directors or for proposing
matters that can be acted upon by stockholders at annual stockholder meetings; and |
| · | bestow majority control of the stockholder vote to Fortress by virtue of their exclusive ownership of
our Class A Common Stock. |
In addition, our credit facility
includes, and other debt instruments we may enter into in the future may include, provisions entitling the lenders to demand immediate
repayment of all borrowings upon the occurrence of certain change of control events relating to our company, which also could discourage,
delay or prevent a business combination transaction.
The Company is not subject
to Section 203 of the Delaware General Corporation Law (the “DGCL”). In general, Section 203 may prohibit large
stockholders, in particular those owning 15% or more of our outstanding voting stock, from merging or combining with us for a period of
time without the approval of our board of directors. The Company elected to “opt out” of the provisions of Section 203
of the Delaware General Corporation Law (the “DGCL”) in the Third Amended and Restated Certificate of Incorporation.
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is VStock Transfer, LLC.
Stock Market Listing
Our common stock is listed on The Nasdaq Capital
Market under the symbol “DERM.”
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional
information we include in any applicable prospectus supplements, summarizes the material terms and provisions of the debt securities that
we may offer under this prospectus. While the terms we have summarized below will apply generally to any future debt securities we may
offer pursuant to this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the
applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any debt securities offered under such prospectus
supplement may differ from the terms we describe below, and to the extent the terms set forth in a prospectus supplement differ from the
terms described below, the terms set forth in the prospectus supplement shall control.
We may sell from time to time, in one or more
offerings under this prospectus, debt securities, which may be senior or subordinated. We will issue any such senior debt securities under
a senior indenture that we will enter into with a trustee to be named in the senior indenture. We will issue any such subordinated debt
securities under a subordinated indenture, which we will enter into with a trustee to be named in the subordinated indenture. We use the
term “indentures” to refer to either the senior indenture or the subordinated indenture, as applicable. The indentures will
be qualified under the Trust Indenture Act of 1939, as in effect on the date of the indenture (the “Trust Indenture Act”).
We use the term “debenture trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated
indenture, as applicable.
The following summaries of material provisions
of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by
reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each indenture will provide that debt securities
may be issued from time to time in one or more series and may be denominated and payable in U.S. dollars or foreign currencies or units
based on or relating to U.S. dollars or foreign currencies. Neither indenture will limit the amount of debt securities that may be issued
thereunder, provided the aggregate principal amount will not exceed the amount registered hereunder and remaining available for issuance.
Each indenture will provide that the specific terms of any series of debt securities shall be set forth in, or determined pursuant to,
an authorizing resolution and/or a supplemental indenture, if any, relating to such series.
We will describe in each prospectus supplement
the following terms relating to a series of debt securities:
| · | the title or designation; |
| · | the aggregate principal amount and any limit on the amount that may be issued; |
| · | the currency or units based on or relating to currencies in which debt securities of such series are denominated
and the currency or units in which principal or interest or both will or may be payable; |
| · | whether we will issue the series of debt securities in global form, the terms of any global securities
and who the depositary will be; |
| · | the maturity date and the date or dates on which principal will be payable; |
| · | the interest rate, which may be fixed or variable, or the method for determining the rate and the date
interest will begin to accrue, the date or dates interest will be payable and the record dates for interest payment dates or the method
for determining such dates; |
| · | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| · | the terms of the subordination of any series of subordinated debt; |
| · | the place or places where payments will be payable; |
| · | our right, if any, to defer payment of interest and the maximum length of any such deferral period; |
| · | the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt
securities pursuant to any optional redemption provisions; |
| · | the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking
fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities; |
| · | whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset
ratios or reserves; |
| · | whether we will be restricted from incurring any additional indebtedness; |
| · | a discussion on any material U.S. federal income tax considerations applicable to a series of debt securities; |
| · | the denominations in which we will issue the series of debt securities, if other than denominations of
$1,000 and any integral multiple thereof; and |
| · | any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities. |
We may issue debt securities that provide for
an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to
the terms of the indenture.
Conversion or Exchange Rights
We will set forth in the prospectus supplement
the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common stock or our other securities.
Even if non-convertible, there may be instances in which a noteholder may seek the right to exchange such debt for equity. We will include
provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions
pursuant to which the number of shares of our common stock or our other securities that the holders of the series of debt securities receive
would be subject to adjustment.
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence
and continuance of an event of default under the applicable indenture, will undertake to perform only those duties as are specifically
set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee under such indenture must use
the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject to this provision,
the debenture trustee is under no obligation to exercise any of the powers given it by the indenture at the request of any holder of debt
securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in whose
name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for
the interest.
We will pay principal of and any premium and interest
on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate
in the applicable prospectus supplement, we will make interest payments by check which we will mail to the holder. Unless we otherwise
indicate in a prospectus supplement, we will designate the corporate trust office of the debenture trustee in the City of New York as
our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement
any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in
each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the debenture
trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two
years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the security thereafter
may look only to us for payment thereof.
Governing Law
The indentures and the debt securities will be
governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Subordination of Subordinated Debt Securities
Our obligations pursuant to any subordinated debt
securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent
described in a prospectus supplement. The subordinated indenture will not limit the amount of senior indebtedness we may incur. It also
will not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase shares of our
common stock, preferred stock and/or debt securities. We may offer warrants separately or together with one or more additional warrants,
debt securities, shares of common stock, or shares of preferred stock, or any combination of those securities in the form of units, as
described in the applicable prospectus supplement. Each series of warrants will be issued under a separate warrant agreement to be entered
into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the certificates
relating to the series of warrants and will not assume any obligation or relationship of agency or trust for or with any holders of warrants
certificates or beneficial owners of warrants. The following description sets forth certain general terms and provisions of the warrants
to which any prospectus supplement may relate. The particular terms of the warrant to which any prospectus supplement may relate and the
extent, if any, to which the general provisions may apply to the warrants so offered will be described in the applicable prospectus supplement.
To the extent that any particular terms of the warrant, warrant agreement or warrant certificates described in a prospectus supplement
differ from any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus
supplement. We encourage you to read the applicable warrant agreement and warrant certificate for additional information before you decide
whether to purchase any of our warrants.
We will provide in a prospectus supplement the
following terms of the warrants being issued:
| · | the specific designation and aggregate number of, and the price at which we will issue, the warrants; |
| · | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| · | the designation, amount and terms of the securities purchasable upon exercise of the warrants; |
| · | if applicable, the exercise price for shares of our common stock and the number of shares of common stock
to be received upon exercise of the warrants; |
| · | if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred
stock to be received upon exercise, and a description of that series of our preferred stock; |
| · | if applicable, the exercise price for our debt securities, the amount of debt securities to be received
upon exercise, and a description of that series of debt securities; |
| · | the date on which the right to exercise the warrants will begin and the date on which that right will
expire or, if the holder may not continuously exercise the warrants throughout that period, the specific date or dates on which the holder
may exercise the warrants; |
| · | whether the warrants will be issued in fully registered form or bearer form, in definitive or global form
or in any combination of these forms, although, in any case, the form of a warrant included in a unit (if applicable) will correspond
to the form of the unit and of any security included in that unit; |
| · | any applicable material U.S. federal income tax consequences; |
| · | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying
agents, transfer agents, registrars or other agents; |
| · | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants
on any securities exchange; |
| · | if applicable, the date from and after which the warrants and the common stock, preferred stock and/or
debt securities (to the extent included together in a unit) will be separately transferable; |
| · | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| · | information with respect to book-entry procedures, if any; |
| · | the anti-dilution provisions of the warrants, if any; |
| · | any redemption or call provisions; |
| · | whether the warrants may be sold separately or with other securities as parts of units (if applicable);
and |
| · | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange
and exercise of the warrants. |
Warrant Agent
The warrant agent for any warrants we offer will
be set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description, together with the additional
information that we include in any applicable prospectus supplements, summarizes the material terms and provisions of the units that we
may offer under this prospectus. While the terms we have summarized below will apply generally to any units that we may offer under this
prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus supplement. The terms
of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference from reports
that we file with the SEC the form of unit agreement that describes the terms of the series of units we are offering, and any supplemental
agreements, before the issuance of the related series of units. The following summary of material terms and provisions of the units are
subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements
applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular series
of units that we may offer under this prospectus, and the complete unit agreement and any supplemental agreements that contain the terms
of the units. To the extent that any particular terms of the units or unit agreement described in a prospectus supplement differ from
any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement.
General
We may issue units consisting of common stock,
preferred stock, one or more debt securities and/or warrants for the purchase of common stock, preferred stock and/or debt securities
in one or more series, in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security
included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each security included in the unit.
The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately,
at any time or at any time before a specified date.
We will describe in the applicable prospectus
supplement the terms of the series of units being offered, including:
| · | the designation and terms of the units and of the securities comprising the units, including whether and
under what circumstances those securities may be held or transferred separately; |
| · | any provisions of the governing unit agreement; |
| · | the price or prices at which such units will be issued; |
| · | the material U.S. federal income tax considerations relating to the units; and |
| · | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units. |
The provisions described in this section, as well
as those set forth in any prospectus supplement or as described under “Description of Capital Stock” “Description
of Debt Securities,” and “Description of Warrants” will apply to each unit, as applicable, and to any common
stock, preferred stock, debt security or warrant included in each unit, as applicable.
Unit Agent
The name and address of the unit agent for any
units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue units in such amounts and in such
numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent under
the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any unit. A single
bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or responsibility in case
of any default by us under the applicable unit agreement or unit, including any duty or responsibility to initiate any proceedings at
law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related unit agent or the holder
of any other unit, enforce by appropriate legal action its rights as holder under any security included in the unit.
PLAN OF DISTRIBUTION
General Plan of Distribution
We may offer securities under this prospectus
from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods.
We may sell the securities (1) through underwriters or dealers, (2) through agents or (3) directly to one or more purchasers,
or through a combination of such methods. We may distribute the securities from time to time in one or more transactions at:
| · | a fixed price or prices, which may be changed from time to time; |
| · | market prices prevailing at the time of sale; |
| · | prices related to the prevailing market prices; or |
We may directly solicit offers to purchase the
securities being offered by this prospectus. We may also designate agents to solicit offers to purchase the securities from time to time.
We will name in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.
If we utilize a dealer in the sale of the securities
being offered by this prospectus, we will sell the securities to the dealer, as principal. The dealer may then resell the securities to
the public at varying prices to be determined by the dealer at the time of resale.
If we utilize an underwriter in the sale of the
securities being offered by this prospectus, we will execute an underwriting agreement with the underwriter at the time of sale, and we
will provide the name of any underwriter in the prospectus supplement which the underwriter will use to make re-sales of the securities
to the public. In connection with the sale of the securities, we, or the purchasers of the securities for whom the underwriter may act
as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter may sell the securities
to or through dealers, and the underwriter may compensate those dealers in the form of discounts, concessions or commissions.
With respect to underwritten public offerings,
negotiated transactions and block trades, we will provide in the applicable prospectus supplement information regarding any compensation
we pay to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or commissions
allowed by underwriters to participating dealers. Underwriters, dealers and agents participating in the distribution of the securities
may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and commissions received by them and any
profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements
to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute
to payments they may be required to make in respect thereof.
We may authorize agents or underwriters to solicit
offers by certain types of institutional investors to purchase securities from us at the public offering price set forth in the applicable
prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We
will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus
supplement.
Shares of our common stock sold pursuant to the
registration statement of which this prospectus is a part will be authorized for listing and trading on the Nasdaq Capital Market. The
applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on the Nasdaq Capital Market
or any securities market or other securities exchange of the securities covered by the prospectus supplement. We can make no assurance
as to the liquidity of or the existence of trading markets for any of the securities.
In order to facilitate the offering of the securities,
certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the
securities. This may include over-allotments or short sales of the securities, which involve the sale by persons participating in the
offering of more securities than we sold to them. In these circumstances, these persons would cover such over-allotments or short positions
by making purchases in the open market or by exercising their over-allotment option. In addition, these persons may stabilize or maintain
the price of the securities by bidding for or purchasing the applicable security in the open market or by imposing penalty bids, whereby
selling concessions allowed to dealers participating in the offering may be reclaimed if the securities sold by them are repurchased in
connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
In compliance with the guidelines of the Financial
Industry Regulatory Authority, Inc., or FINRA, the maximum consideration or discount to be received by any FINRA member or independent
broker dealer may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and any applicable prospectus
supplement.
The underwriters, dealers and agents may engage
in other transactions with us, or perform other services for us, in the ordinary course of their business.
LEGAL MATTERS
The validity of the securities and certain other
matters will be passed upon for us by McGuireWoods LLP, Charlotte, North Carolina. Additional legal matters may be passed upon for us
or any underwriters, dealers or agents, by counsel that we name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Journey
Medical Corporation as of December 31, 2021 and 2020 and for each of the years then ended have been incorporated by reference herein in
reliance upon the report of KPMG LLP, an independent registered public accounting firm, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly
and current reports, proxy statements and other information with the SEC. We have filed with the SEC a registration statement on Form S-3
under the Securities Act with respect to the securities we are offering under this prospectus. This prospectus does not contain all of
the information set forth in the registration statement and the exhibits to the registration statement. For further information with respect
to us and the securities offered under this prospectus, we refer you to the registration statement and the exhibits filed as a part of
the registration statement. The SEC maintains an Internet site that contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC, including Journey Medical Corporation. The SEC’s Internet site can be found
at www.sec.gov. We maintain a website at www.jmcderm.com. Information found on, or accessible through, our website is not
a part of, and is not incorporated into, this prospectus, and you should not consider it part of this prospectus.
INCORPORATION OF INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
information that we file with it. Incorporation by reference allows us to disclose important information to you by referring you to those
other documents. The information incorporated by reference is an important part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. This prospectus omits certain information contained in the registration
statement, as permitted by the SEC. You should refer to the registration statement and any prospectus supplement filed hereafter, including
the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus
regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily
complete and each statement is qualified in all respects by that reference. Copies of all or any part of the registration statement, including
the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC
listed above in “Where You Can Find More Information.” The documents we are incorporating by reference are:
| · | our Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2022, filed on May 10, 2022, for the fiscal quarter ended June 30, 2022, filed on August 9, 2022, and for the fiscal quarter ended September 30,
2022, filed on November 10, 2022; |
In addition, all documents that we file pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the filing of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the
date of filing of such documents, except as to any document or portion of any document that is deemed furnished and not filed.
Pursuant to Rule 412 under the Securities
Act, any statement contained in the documents incorporated or deemed to be incorporated by reference in this Registration Statement shall
be deemed to be modified, superseded or replaced for purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference in this Registration
Statement modifies, supersedes or replaces such statement. Any such statement so modified, superseded or replaced shall not be deemed,
except as so modified, superseded or replaced, to constitute a part of this Registration Statement.
We will provide, without charge, to each person,
including any beneficial owner, to whom a copy of this prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the documents incorporated by reference in this prospectus, other than exhibits to such documents unless such exhibits
are specifically incorporated by reference into such documents. Requests may be made by telephone at (480)
434-6670, or by sending a written request to Journey Medical Corporation, Attn: Investor Relations, 9237
E Via de Ventura Blvd. Suite 105, Scottsdale, Arizona 85258. Our internet address is www.jmcderm.com.
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$150,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
UNITS
PROSPECTUS
,
2023
The information in this prospectus is not complete
and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the
offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
DECEMBER 30, 2022
PROSPECTUS
![](https://content.edgar-online.com/edgar_conv_img/2022/12/30/0001104659-22-131336_tm2233626d1_s3imgsp2002.jpg)
4,900,000 SHARES OF COMMON STOCK
We have entered into an At
Market Issuance Sales Agreement (the “Sales Agreement”) with B. Riley Securities, Inc. (“B. Riley”), relating
to shares of our common stock offered by this prospectus. In accordance with the terms of the Sales Agreement, we may offer and sell up
to 4,900,000 shares of our common stock, par value $0.0001 per share, from time to time through or to B. Riley acting as our agent or
principal.
Our common stock is currently trading on The Nasdaq Capital Market
under the symbol “DERM”. On December 28, 2022, the last reported sale price of our common stock was $1.18.
We are a “smaller reporting
company,” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, and, as such, have elected to comply
with certain reduced public company reporting requirements.
Sales of our common stock,
if any, under this prospectus will be made in sales deemed to be an “at the market” equity offering as defined in Rule 415(a)(4) promulgated
under the Securities Act of 1933, as amended (the “Securities Act”). B. Riley is not required to sell any specific number
or dollar amount of securities, but will act as a sales agent using commercially reasonable efforts consistent with its normal trading
and sales practices, on mutually agreed terms between B. Riley and us. There is no arrangement for funds to be received in any escrow,
trust or similar arrangement.
Our common stock is listed
on the Nasdaq Capital Market, under the symbol “DERM.” As of November 1, 2022, the aggregate market value of our public float,
calculated according to General Instructions I.B.6. of Form S-3, is $17,467,322.17, based on 11,765,700 shares of common stock outstanding
as of December 28, 2022, of which 7,308,503 shares of our common stock are held by non-affiliates. We have not offered any securities
pursuant to General Instruction I.B.6 of Form S-3 during the prior 12 calendar month period that ends on, and includes, the date of this
prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell our common stock in a public primary offering
with a value exceeding more than one-third of our public float in any 12-month period so long as our public float remains below $75,000,000.
The compensation to B. Riley
for sales of common stock sold pursuant to the Sales Agreement will be an amount equal to 3.0% of the gross proceeds of any shares of
common stock sold under the Sales Agreement. In connection with the sale of the common stock on our behalf, B. Riley will be deemed to
be an “underwriter” within the meaning of the Securities Act and the compensation of B. Riley will be deemed to be underwriting
commissions or discounts. We have also agreed to provide indemnification and contribution to B. Riley with respect to certain liabilities,
including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Investing in our common stock involves a high
degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” beginning
on page S-6 of this prospectus and under similar headings in the other documents that are incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
B. Riley Securities
The date of this
prospectus is , 2023
TABLE OF CONTENTS
Prospectus
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
on Form S-3 that we have filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf”
registration process. Under this shelf registration process, we may sell any combination of the securities described in our base prospectus
included in the shelf registration statement in one or more offerings. In connection with such offers and when accompanied by the base
prospectus included in the registration statement of which this prospectus forms a part, this prospectus will be deemed a prospectus supplement
to such base prospectus.
This prospectus relates to the offering of our
common stock. Before buying any of the common stock that we are offering, we urge you to carefully read this prospectus, together with
the information incorporated by reference as described under the headings “Where You Can Find More Information” and
“Incorporation of Information by Reference” in this prospectus. These documents contain important information that
you should consider when making your investment decision.
This prospectus describes the terms of this offering
of common stock and also adds to and updates information contained in the documents incorporated by reference into this prospectus. To
the extent there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in
any document incorporated by reference into this prospectus that was filed with the SEC before the date of this prospectus, on the other
hand, you should rely on the information in this prospectus. If any statement in one of these documents is inconsistent with a statement
in another document having a later date (for example, a document incorporated by reference into this prospectus) the statement in the
document having the later date modifies or supersedes the earlier statement.
You should rely only on the information contained
in or incorporated by reference in this prospectus and in any free writing prospectus that we have authorized for use in connection with
this offering. We have not, and B. Riley has not, authorized anyone to provide you with different information. If anyone provides you
with different or inconsistent information, you should not rely on it. We are not, and the sales agent is not, making an offer to sell
these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this
prospectus, the documents incorporated by reference in this prospectus, and in any free writing prospectus that we have authorized for
use in connection with this offering, is accurate only as of the date of those respective documents. Our business, financial condition,
results of operations and prospects may have changed since those dates. You should read this prospectus, the documents incorporated by
reference in this prospectus, and any free writing prospectus that we have authorized for use in connection with this offering, in their
entirety before making an investment decision.
We further note that the representations, warranties
and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectus
were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among
the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should
not be relied on as accurately representing the current state of our affairs.
All references to “Journey,” the “Company,”
“we,” “us,” and “our” refer to Journey Medical Corporation.
PROSPECTUS SUMMARY
The following is a summary of what we believe
to be the most important aspects of our business and the offering of our common stock under this prospectus. We urge you to read this
entire prospectus, including the more detailed consolidated financial statements, notes to the consolidated financial statements and other
information incorporated by reference from our other filings with the SEC or included in any applicable prospectus supplement. Investing
in our common stock involves risks. Therefore, carefully consider the risk factors set forth in any prospectus supplements and in our
most recent Annual Report on Form 10-K and in our most recent Quarterly Reports on Form 10-Q filed with the SEC, as well as
any amendments thereto reflected in subsequent filings with the SEC, and any other information in this prospectus and any prospectus supplements
and the documents incorporated by reference herein or therein, before purchasing our common stock. Each of the risk factors could adversely
affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our common stock.
Our Company
We are a commercial-stage
pharmaceutical company founded in October 2014 that focuses on the development and commercialization of pharmaceutical products for
the treatment of dermatological conditions. Our current portfolio includes eight branded and three authorized generic prescription drugs
for dermatological conditions that are actively marketed in the U.S. We are managed by experienced life science executives with a track
record of creating value for their stakeholders and bringing novel medicines to the market, enabling patients to experience increased
quality of life and physicians and other licensed medical professionals to provide better care for their patients. We aim to acquire rights
to future products by licensing or otherwise acquiring an ownership interest in, funding the research and development of, and eventually
commercializing, dermatological products through our exclusive field sales organization.
On November 16,
2021, we completed an initial public offering (“IPO”) of our Common Stock, which resulted in net proceeds of approximately
$30.6 million, after deducting underwriting discounts and other offering costs.
We expect our expenses
will increase for the foreseeable future as we pursue business development opportunities, commercialize, and market new products and incur
additional costs associated with operating as a public company. To date, our business has not been materially impacted by COVID-19; however,
depending on the extent of the ongoing pandemic, it is possible that our business, financial condition and results of operations could
be materially and adversely affected by COVID-19 in the future. Our cash and cash equivalents balance was $34.9 million at September 30,
2022.
We are a majority-owned
subsidiary of Fortress Biotech, Inc. (“Fortress”).
Overview of the Business, Relevant Disease
States, Market, and Products
Journey Medical Corporation
is a commercial-stage pharmaceutical company founded in October 2014 that focuses on the development and commercialization of pharmaceutical
products for the treatment of dermatological conditions. Our current portfolio includes eight branded and three authorized generic prescription
drugs for dermatological conditions that are actively marketed in the U.S. Since inception, we have made significant investments to build
out our commercial product portfolios, which we believe, coupled with our experienced dermatology sales leadership team and our recently
expanded field sales force, will position our business for growth.
As of December 29,
2022, our major actively marketed products, which have been approved by the U.S. Food and Drug Administration (“FDA”) for
sale in the United States, include:
|
· |
Amzeeq ((minocycline) topical foam, 4% for the treatment of inflammatory lesions of non-nodular moderate to severe acne vulgaris in adults and children 9 years and older), acquired and launched in January 2022; |
|
|
|
|
· |
Zilxi® ((minocycline) topical foam, 1.5% for inflammatory lesions due to rosacea in adults), acquired and launched in January 2022; |
|
|
|
| · | Qbrexza® (a medicated cloth towelette for the treatment of primary axillary
hyperhidrosis), acquired and launched in May 2021; |
| · | Accutane® (an oral isotretinoin drug for the treatment of severe recalcitrant
nodular acne), licensed in July 2020 and launched in March 2021; |
| · | Ximino® (an oral minocycline drug for the treatment of moderate to severe
acne), acquired and launched in August 2019; |
| · | Exelderm® Cream and Solution (a broad-spectrum antifungal intended for
topical use), acquired and launched in October 2018; and |
|
· |
Targadox® (an oral doxycycline drug for adjunctive therapy for severe acne), licensed in March 2015 and launched in October 2016. |
Additionally, we sell
three authorized generic products:
| · | minocycline
hydrocholoride extended release capsules, launched in April 2020; |
| · | sulconazole nitrate cream and solution, launched in
January 2020; and |
|
|
|
|
· |
doxycycline hyclate immediate release tablets, launched in May 2018; |
Our Strategy
We are a highly focused, pharmaceutical company
dedicated to developing and commercializing therapies for the treatment of dermatologic conditions that seeks to deliver value to patients,
physicians and the healthcare system, as well as to our stakeholders. Our strategic priorities include continuing to augment and grow
our product portfolio and organization in order to maximize the probabilities of sustainable long-term value creation. This will consist
of both commercial execution on our existing product portfolio, including lifecycle management, as well as investing in additional growth
strategies through product and company acquisitions, licensing, or developing new products.
For the year ended December 31, 2021, we
generated net product revenue of $63.1 million, compared to $44.5 million for the year ended December 31, 2020. For the nine months ended September 30, 2022, we generated net product revenue of $57.7 million, compared to $45.6 million for the nine
months ended September 30, 2021.
An important part of our growth strategy
is to identify new business development opportunities, including development stage and commercial drugs that we may acquire from
other pharmaceutical companies. On June 29, 2021, we entered into an agreement with DRL to license and acquire global (except for
the DRL retained rights to the BRIC and CIS countries) ownership rights, title, and interest to DFD-29, a modified release
minocycline late-stage development product that is being evaluated to treat inflammatory lesions of rosacea. DFD-29 is currently in
clinical development and will remain subject to FDA approval. We also remain responsible for funding the clinical program.
Additionally, we recently acquired two FDA-approved drugs. In May 2021, we acquired global ownership rights, title, and interest to
Qbrexza® (a medicated cloth towelette for the treatment of primary axillary hyperhidrosis) from Dermira. In December 2020, we
acquired an anti-itch product from Sun Pharmaceutical Industries Inc., which we plan on launching in the U.S. during the first half
of 2023. We are in various stages of discussion for other opportunities, both commercial and development stage, that could drive
additional growth in the business. Successful development and commercialization of any future in-licensed development stage or
commercial drugs will require us to navigate the many laws and regulations of governmental authorities and regulatory agencies
around the world, including the FDA, relating to the manufacture, development, approval and commercialization of investigational
drugs. For development stage drugs, we may require financial resources significantly in excess of those received by the Company upon
completion of its IPO, and it may take many years for us to receive marketing approval, if ever, for any in-licensed or acquired
product candidate.
Relationship with Fortress
We have a seven-year
operating history. We are a majority owned subsidiary of Fortress. Fortress is a biopharmaceutical company dedicated to acquiring, developing
and commercializing pharmaceutical and biotechnology products and product candidates at its majority-owned and majority-controlled subsidiaries
and joint ventures, and at entities founded by Fortress and in which it maintains significant minority ownership positions. Fortress has
a talented and experienced business development team, comprised of scientists, doctors, and finance professionals, who identify, evaluate,
and propose for our consideration promising products and product candidates.
Corporate Information
Journey
Medical Corporation was incorporated in Delaware in 2014. Our executive offices are located at 9237 E Via de Ventura Blvd. Suite 105,
Scottsdale, AZ 85258. Our telephone number is 480-434-6670, and our e-mail address is info@jmcderm.com or ir@jmcderm.com.
We
maintain a website with the address www.jmcderm.com. We make available free of charge through our Internet website our annual reports
on Form 10-K, quarterly reports on Form 10-K and current reports on Form 8-K, and any amendments to these reports, as
soon as reasonably practicable after we electronically file such material with, or furnish such material to, the Securities and Exchange
Commission (“SEC”). We are not including the information on our website as a part of, nor incorporating it by reference into,
this report. Additionally, the SEC maintains a website that contains annual, quarterly, and current reports, proxy statements, and other
information that issuers (including us) file electronically with the SEC. The SEC’s website address is http://www.sec.gov.
Implications of Being an Emerging Growth Company and a Smaller Reporting Company
We are an “emerging growth company”
as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”), and may remain an emerging growth company
until December 31, 2026, or until such earlier time as we have more than $1.07 billion in annual revenue, we become a “large
accelerated filer” under SEC rules, or we issue more than $1 billion of non-convertible debt over a three-year period.
The JOBS Act contains provisions that, among other things, reduce certain reporting requirements for an “emerging growth
company.” For so long as we remain an emerging growth company, we are permitted and plan to rely on exemptions from certain disclosure
requirements that are applicable to other public companies that are not emerging growth companies.
These exemptions include reduced disclosure
obligations regarding executive compensation. In addition, as an emerging growth company, we are not required to conduct votes seeking
approval, on an advisory basis, of the compensation of our named executive officers or the frequency with which such votes must be conducted.
We may take advantage of some or all of these exemptions until such time as we are no longer an emerging growth company.
We are also a “smaller reporting company,”
meaning that the market value of our stock held by non-affiliates is less than $700 million and our annual revenue was less
than $100 million during the most recently completed fiscal year. We may continue to be a smaller reporting company if either (i) the
market value of our stock held by non-affiliates is less than $250 million or (ii) our annual revenue was less than $100
million during the most recently completed fiscal year and the market value of our stock held by non-affiliates was less than
$700 million. If we are a smaller reporting company at the time we cease to be an emerging growth company, we may continue to rely on
exemptions from certain disclosure requirements that are available to smaller reporting companies. For so long as we remain a smaller
reporting company, we are permitted and intend to rely on exemptions from certain disclosure and other requirements that are applicable
to other public companies that are not applicable to a smaller reporting company.
THE OFFERING
Common Stock Offered By Us |
|
Up to 4,900,000 shares of our common stock. |
|
|
Common Stock to be Outstanding After This Offering |
|
Up to 16,665,700 shares, assuming sales of all 4,900,000 shares
of our common stock in this offering. |
|
|
Manner of Offering |
|
“At the market” offering that may be made from time to time through or to B. Riley, as our sales agent or principal. See “Plan of Distribution” on page S-14. |
|
|
Use of Proceeds |
|
We currently intend to use the net proceeds from this offering for
general corporate purposes, including working capital, research and development, payments for research and development — licenses
acquired, sales and marketing activities, general administrative matters, operating expenses and capital expenditures. See “Use
of Proceeds” on page S-9 of this prospectus. |
|
|
Risk Factors |
|
Investing in our common stock involves significant risks. See “Risk Factors” on page S-6 of this prospectus, and under similar headings in other documents incorporated by reference into this prospectus, for a discussion of certain factors you should carefully consider before deciding to invest in shares of our common stock. |
|
|
Nasdaq Capital Market symbol |
|
“DERM” |
The number of shares of common stock outstanding is based on an aggregate
of 11,765,700 shares of common stock and 6,000,000 shares of Class A common stock outstanding as of December 28, 2022, and excludes 1,124,120
shares of our common stock available as of December 28, 2022 for future grant or issuance pursuant to the Journey Medical Corporation
2015 Stock Incentive Plan.
RISK FACTORS
Investing in our securities involves a high
degree of risk. You should carefully review the risks and uncertainties described below and under the section titled “Risk Factors”
in our Annual Report on Form 10-K for the year ended December 31, 2021, and in our Quarterly Report on Form 10-Q for the quarter ended September 30, 2022, as updated by our subsequent filings, which are incorporated by reference into this prospectus,
before deciding whether to purchase any of the securities being registered pursuant to the registration statement of which this prospectus
is a part. Each of the risk factors could adversely affect our business, results of operations, financial condition and cash flows, as
well as adversely affect the value of an investment in our securities, and the occurrence of any of these risks might cause you to lose
all or part of your investment. Additional risks not presently known to us or that we currently believe are immaterial may also significantly
impair our business operations. Please also read carefully the section below titled “Cautionary Note Regarding Forward-Looking Statements.”
Risks Related to this Offering
You may experience immediate and substantial
dilution.
The offering price per share in this offering
may exceed the net tangible book value per share of our common stock outstanding prior to this offering. Assuming that an aggregate of
4,900,000 shares of our common stock are sold at a price of $1.18 per share, the last reported sale price of our common stock on The Nasdaq
Capital Market on December 28, 2022, for aggregate gross proceeds of approximately $5.8 million, and after deducting commissions
and estimated offering expenses payable by us, you would experience immediate dilution of $1.04 per share, representing our as adjusted
net tangible book value as of September 30, 2022, after giving effect to this offering. See the section titled “Dilution”
below for a more detailed illustration of the dilution you would incur if you participate in this offering.
In addition, we have a significant number of stock
options and warrants outstanding. To the extent that these have been or may be exercised, investors purchasing in this offering may experience
further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations even if
we believe we have sufficient funds for our current or future operating plans. To the extent that additional capital is raised through
the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders
or result in downward pressure on the price of our common stock.
Because the sales of the shares offered hereby
will be sold in “at the market offerings,” the prices at which we sell these shares will vary and these variations may be
significant. Purchasers of the shares we sell, as well as our existing stockholders, will experience significant dilution if we sell shares
at prices significantly below the price at which they invested.
Our management will have broad discretion
over the use of the net proceeds from this offering, and you may not agree with how we use the proceeds, and we may not use the proceeds
effectively.
Our management
will have broad discretion with respect to the use of proceeds of this offering, including for any of the purposes described in the section
of this prospectus titled “Use of Proceeds.” You will be relying on the judgment of our management regarding the application
of the proceeds of this offering. The results and effectiveness of the use of proceeds are uncertain, and we could spend the proceeds
in ways that you do not agree with or that do not improve our results of operations or enhance the value of our common stock. Our failure
to apply these funds effectively could have a material adverse effect on our business, delay the development of our product candidates,
and cause the price of our common stock to decline.
It is not possible to predict the actual
number of shares we will sell under the Sales Agreement, or the gross proceeds resulting from those sales.
Subject to certain limitations in the Sales Agreement
and compliance with applicable law, we have the discretion to deliver a placement notice to the sales agent at any time throughout the
term of the Sales Agreement. The number of shares that are sold through the sales agent after delivering a placement notice will fluctuate
based on a number of factors, including the limits we set with B. Riley in any applicable placement notice and the demand for our common
stock during the sales period. Because the price per share of each share sold will fluctuate during the sales period, it is not currently
possible to predict the gross proceeds to be raised in connection with those sales, if any.
The common stock offered hereby will be
sold in “at the market offerings,” and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares in this offering
at different times will likely pay different prices, and so they may experience different levels of dilution and different outcomes in
their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold in
this offering. In addition, there is no minimum or maximum sales price for shares to be sold in this offering. Investors may experience
a decline in the value of the shares they purchase in this offering as a result of sales made at prices lower than the prices they paid.
Future sales of
our common stock, or the perception that such future sales may occur, may cause our stock price to decline.
Sales of a substantial number of shares of our
common stock in the public market, or the perception that these sales could occur, following this offering could cause the market price
of our common stock to decline. A substantial majority of the outstanding shares of our common stock are, and the shares of common stock
sold in this offering upon issuance will be, freely tradable without restriction or further registration under the Securities Act.
We have never declared
or paid dividends on our capital stock and we do not anticipate paying dividends in the foreseeable future.
Our business requires significant funding, and
we currently invest available funds and earnings in product development. Therefore, we do not anticipate paying any cash dividends on
our common stock in the foreseeable future. We currently plan to invest all available funds and future earnings in the development and
growth of our business. As a result, capital appreciation, if any, of our common stock will be your sole source of potential gain for
the foreseeable future.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain matters discussed
in this prospectus, including the documents that we incorporate by reference, may constitute forward-looking statements for purposes of
the Securities Act of 1933, as amended (the “Securities Act”) and the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements
to be materially different from the future results, performance or achievements expressed or implied by such forward-looking statements.
The words “plan,” “predict,” “potential,” “continue,” “anticipate,” “believe,”
“estimate,” “may,” “expect,” “will,” “could,” “project,” “intend”
and similar expressions are generally intended to identify forward-looking statements. Our actual results may differ materially from the
results anticipated in these forward-looking statements due to a variety of factors, including, without limitation, those discussed under
the captions “Risk Factors,” and elsewhere in this report. All written or oral forward-looking statements attributable
to us are expressly qualified in their entirety by these cautionary statements. Such forward-looking statements include, but are not limited
to, statements about:
| · | our future financial performance, including our expectations regarding our revenue, cost and operating
expenses, including changes in technology and development, selling and marketing and general and administrative expenses, gross profit,
and our ability to achieve, and maintain, future profitability; |
| · | our business plan and our ability to effectively manage our growth; |
| · | economic and industry trends, projected growth, or trend analysis; |
| · | political, economic, legal, social and health risks, including the COVID-19 pandemic and subsequent public
health measures that may affect our business or the global economy and the actions we may take in response thereto; |
| · | developments and projections relating to our competitors and industry; |
| · | increases in costs and disruption of supply or shortage of raw materials; |
| · | our and our licensors’ ability to obtain, establish, maintain, protect and enforce intellectual
property and proprietary protection for our products and technologies and to avoid claims of infringement, misappropriation or other violation
of third-party intellectual property and proprietary rights; |
| · | the outcome of any current or future litigation; |
| · | our ability to hire and retain key management; |
| · | our ability to obtain additional financing; |
| · | our beliefs and objectives for future operations; |
| · | our ability to maintain, protect, and enhance our intellectual property; |
| · | our expectations concerning relationships with third parties, including strategic partners; |
| · | the volatility of the trading price of our common stock; |
| · | evolving regulations and the potential for unfavorable changes to, or failure by us to comply with, regulations;
and |
| · | our expectations regarding the period during which we qualify as an emerging growth company under the
Jumpstart Our Business Act. |
The forward-looking statements
contained in this prospectus reflect our views and assumptions as of the effective date of this report. New risks and uncertainties arise
from time to time, and it is impossible for us to predict these events or how they may affect us. Except as required by law, we assume
no responsibility for updating any forward-looking statements.
We qualify all of our forward-looking statements by these cautionary
statements. In addition, with respect to all of our forward-looking statements, we claim the protection of the safe harbor for forward-looking
statements contained in the Private Securities Litigation Reform Act of 1995.
USE OF PROCEEDS
We may issue and sell up to 4,900,000 shares of
our common stock from time to time. Because there is no minimum offering amount required as a condition to close this offering, the actual
total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. There can be no assurance that
we will sell any shares under or fully utilize the Sales Agreement with B. Riley as a source of financing.
We currently intend to use the net proceeds from
the sale of any securities offered under this prospectus for general corporate purposes unless otherwise indicated in the applicable prospectus
supplement. General corporate purposes may include working capital, research and development, payments for research and development — licenses
acquired, sales and marketing activities, general administrative matters, operating expenses and capital expenditures. We may also use
a portion of the net proceeds to acquire or invest in businesses, products and technologies that are complementary to our own, although
we have no commitments or agreements with respect to any acquisitions as of the date of this prospectus. Pending these uses, we may invest
the net proceeds in a variety of capital preservation instruments, including short-term, investment-grade, interest-bearing instruments
and U.S. government securities, or may hold such proceeds as cash, until they are used for their stated purpose. We have not determined
the amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation
of net proceeds.
DILUTION
If you invest in our common stock, your interest
will be diluted to the extent of the difference between the price per share of our common stock you pay in this offering and the as adjusted
net tangible book value per share of our common stock immediately after this offering.
Our historical net tangible book value (deficit)
as of September 30, 2022 was $(2.2 million), or $(0.13) per share. Net tangible book value per share is determined by dividing our
total tangible assets, less total liabilities, by the number of shares of our common stock outstanding, 11,642,659, as of September 30,
2022.
After giving effect to the sale of 4,900,000 shares
of our common stock in this offering at an assumed offering price of $1.18 per share, the last reported sale price of our common stock
on The Nasdaq Capital Market on December 28, 2022, and after deducting estimated offering commissions and offering expenses payable by
us, our as adjusted net tangible book value as of September 30, 2022 would have been $3.2 million, or $0.14 per share. This represents
an immediate increase in net tangible book value of $0.27 per share to existing stockholders and immediate dilution of $1.04 per share
to investors purchasing our common stock in this offering at the public offering price. The following table illustrates this dilution
on a per share basis:
Assumed public offering price per share |
$ |
1.18 |
|
Historical net tangible book value per share of as September 30, 2022 |
$ |
(0.13) |
|
Increase in net tangible book value per share attributable to new investors purchasing shares of common stock in this offering |
$ |
0.27 |
|
As adjusted net tangible book value per share as of September 30, 2022, after giving effect to this offering |
$ |
0.14 |
|
Dilution per share to investors purchasing our common stock in this offering |
$ |
1.04 |
|
The number of shares of common stock outstanding
is based on an aggregate of 11,642,659 shares of common stock and 6,000,000 shares of Class A common stock outstanding as of September
30, 2022, and excludes 1,142,620 shares of our common stock available as of September 30, 2022 for future grant or issuance pursuant to
the Journey Medical Corporation 2015 Stock Incentive Plan.
The table above assumes for illustrative purposes
that an aggregate of 4,900,000 shares of our common stock are sold during the term of the Sales Agreement with B. Riley at a price of
$1.18 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on December 28, 2022, for aggregate gross
proceeds of $5.8 million. The shares subject to the Sales Agreement with B. Riley are being sold from time to time at various prices.
An increase of $1.00 per share in the price at which the shares are sold from the assumed offering price of $1.18 per share shown in the
table above, assuming all 4,900,000 shares of our common stock are sold at that price during the term of the Sales Agreement with B. Riley,
would increase our pro forma as adjusted net tangible book value per share to $0.35 per share and would change the dilution in net tangible
book value per share to new investors in this offering to $1.83 per share, after deducting commissions and estimated aggregate offering
expenses payable by us. A decrease of $1.00 per share in the price at which the shares are sold from the assumed offering price of $1.18
per share shown in the table above, assuming all 4,900,000 shares of our common stock are sold at that price during the term of the Sales
Agreement with B. Riley, would decrease our pro forma as adjusted net tangible book value per share to $(0.07) per share and would change
the dilution in net tangible book value per share to new investors in this offering to $0.25 per share, after deducting commissions and
estimated aggregate offering expenses payable by us. This information is supplied for illustrative purposes only and assumes no exercise
of the options or warrants outstanding as of September 30, 2022. For more information, see “Description of Capital Stock.”
To the extent that options and warrants outstanding
as of September 30, 2022 have been or may be exercised or other shares issued, investors purchasing our common stock in this offering
may experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations
even if we believe we have sufficient funds for our current or future operating plans. To the extent that additional capital is raised
through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
DESCRIPTION OF CAPITAL STOCK
The following description summarizes the material
terms of our capital stock. Because it is only a summary, it does not contain all the information that may be important to you. For a
complete description of our capital stock, you should refer to our Third Amended and Restated Certificate of Incorporation and our Amended
and Restated Bylaws, each as amended from time to time, and to the provisions of applicable Delaware law.
Common Stock
Our common stock is traded on the Nasdaq Capital
Market under the symbol “DERM.”
The authorized capital stock of Journey consists
of 50,000,000 shares of common stock, with $0.0001 par value, 6,000,000 shares of which have been designated as Class A Common Stock,
and 5,000,000 shares of Preferred Stock, par value $0.0001 per share. The shares of Preferred Stock are undesignated.
Class A Common Stock
The description of our Class A Common Stock
in this item is for information purposes only. All of the Class A Common Stock has been issued to Fortress.
Class A Common Stock is identical to our
common stock other than as to voting rights and the election of directors for a definite period (as described below). On any matter presented
to our stockholders for their action or consideration at any meeting of our stockholders (or by written consent of stockholders in lieu
of meeting), each holder of outstanding shares of Class A Common Stock will be entitled to cast for each share of Class A Common
Stock held by such holder as of the record date for determining stockholders entitled to vote on such matter, the number of votes that
is equal to one and one-tenth (1.1) times a fraction, the numerator of which is the number of shares of outstanding common stock and the
denominator of which is the number of shares of outstanding Class A Common Stock (the “Class A Common Stock Ratio”).
Thus, the Class A Common Stock will at all times constitute a voting majority.
For a period of ten (10) years from the date
of the first issuance of shares of Class A Common Stock (the “Class A Director Period”), the holders of record of
the shares of Class A Common Stock (or other capital stock or securities issued upon conversion of or in exchange for the Class A
Common Stock), exclusively and as a separate class, shall be entitled to appoint or elect the majority of the directors of Journey (the
“Class A Directors”). Thus, the Class A Common Stock will be entitled to elect the majority of the board of directors
during the Class A Director Period.
Finally, each share of Class A Common Stock
is convertible, at the option of the holder, into one fully paid and nonassessable share of common stock (the “Conversion Ratio”),
subject to certain adjustments.
Features of Our Common Stock and Class A
Common Stock
Voting
Rights. The holders of our common stock are entitled to one vote for each share of common stock held and the holders of
our Class A Common Stock are entitled to the number of votes equal to the Class A Common Stock Ratio for each share of Class A
Common Stock held on all matters submitted to a vote of the stockholders, including the election of directors except as to the Class A
Directors during the Class A Director Period. Our certificate of incorporation and bylaws do not provide for cumulative voting rights.
No
Preemptive or Similar Rights. The holders of our common stock and Class A Common Stock have no preemptive or subscription
rights, and there are no redemption or sinking fund provisions applicable thereto. Additionally, the holders of our common stock (excluding
the holders of Class A Common Stock) have no conversion rights.
Adjustment
to Class A Common Stock Conversion Ratio. If Journey, at any time effects a subdivision or combination of the outstanding
common stock (or other capital stock or securities at the time issuable upon conversion of the Class A Common Stock) (by any stock
split, stock dividend, recapitalization, reverse stock split or otherwise), the Conversion Ratio for the Class A Common Stock in
effect immediately before that subdivision will be proportionately decreased or increased, as applicable depending on whether there is
a subdivision or combination, so that the number of shares of common stock issuable on conversion of each share of Class A Common
Stock shall be increased or decreased, as applicable, depending on whether there is a subdivision or combination, in proportion to such
increase or decrease in the aggregate number of shares of common stock outstanding. Additionally, if any reorganization, recapitalization,
reclassification, consolidation or merger involving the Company occurs in which the common stock (but not the Class A Common Stock)
is converted into or exchanged for securities, cash or other property, then each share of Class A Common Stock becomes convertible
into the kind and amount of securities, cash or other property which a holder of the number of shares of common stock of the Company issuable
upon conversion of one share of the Class A Common Stock immediately prior to such reorganization, recapitalization, reclassification,
consolidation or merger would have been entitled to receive pursuant to such transaction.
Blank-Check
Preferred Stock; Authorized but Unissued Common Stock. Our Board is authorized to issue, without shareholder approval, preferred
stock, the rights of which will be determined at the discretion of our Board and that, if issued, could operate as a “poison pill”
to dilute the stock ownership of a potential hostile acquirer to prevent an acquisition that our Board does not approve. Further, the
existence of authorized but unissued shares of common stock and preferred stock could render more difficult or discourage an attempt to
obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Anti-Takeover Provisions
Our Third Amended and Restated Certificate of
Incorporation and bylaws contain provisions that could delay or prevent a change in control of our Company. These provisions could also
make it difficult for stockholders to elect directors that are not nominated by the current members of our board of directors or take
other corporate actions, including effecting changes in our management. These provisions include certain provisions that:
| · | permit the board of directors to establish the number of directors and fill any vacancies and newly created
directorships; |
| · | provide that, after a removal for cause, vacancies on our board of directors
may be filled by a majority of directors then in office, even though less than a quorum; |
| · | prohibit cumulative voting in the election of directors; |
| · | require majority voting to amend our certificate of incorporation and bylaws; |
| · | authorize the issuance of “blank check” preferred stock that our board of directors could
use to implement a stockholder rights plan; |
| · | restrict the forum for certain litigation against us to Delaware or federal courts; |
| · | establish advance notice requirements for nominations for election to our board of directors or for proposing
matters that can be acted upon by stockholders at annual stockholder meetings; and |
| · | bestow majority control of the stockholder vote to Fortress by virtue of their exclusive ownership of
our Class A Common Stock. |
In addition, our credit facility
includes, and other debt instruments we may enter into in the future may include, provisions entitling the lenders to demand immediate
repayment of all borrowings upon the occurrence of certain change of control events relating to our company, which also could discourage,
delay or prevent a business combination transaction.
The Company is not subject
to Section 203 of the Delaware General Corporation Law (the “DGCL”). In general, Section 203 may prohibit large
stockholders, in particular those owning 15% or more of our outstanding voting stock, from merging or combining with us for a period of
time without the approval of our board of directors. The Company elected to “opt out” of the provisions of Section 203
of the Delaware General Corporation Law (the “DGCL”) in the Third Amended and Restated Certificate of Incorporation.
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is VStock Transfer, LLC.
Stock Market Listing
Our common stock is listed on The Nasdaq Capital
Market under the symbol “DERM.”
PLAN OF DISTRIBUTION
We have entered into a Sales Agreement with
B. Riley, under which we may issue and sell from time to time up to 4,900,000 shares of our common stock through or to B. Riley as
our sales agent or principal. Sales of our common stock, if any, will be made at market prices by any method that is deemed to be
“at the market” as defined in Rule 415(a)(4) under the Securities Act, including sales made directly on any
trading market for our common stock. If authorized by us in writing, B. Riley may purchase shares of our common stock as
principal.
B. Riley will offer our common stock subject to
the terms and conditions of the Sales Agreement on a daily basis or as otherwise agreed upon by us and B. Riley. We will designate the
maximum amount of common stock to be sold through B. Riley on a daily basis or otherwise determine such maximum amount together with B.
Riley. Subject to the terms and conditions of the Sales Agreement, B. Riley will use its commercially reasonable efforts to sell on our
behalf all of the shares of common stock requested to be sold by us. We may instruct B. Riley not to sell common stock if the sales cannot
be effected at or above the price designated by us in any such instruction. B. Riley or we may suspend the offering of our common stock
being made through B. Riley under the Sales Agreement upon proper notice to the other party. B. Riley and we each have the right, by giving
written notice as specified in the Sales Agreement, to terminate the Sales Agreement in each party’s sole discretion at any time.
The aggregate compensation payable to B. Riley
as sales agent is equal to 3.0% of the gross sales price of the shares sold through it pursuant to the Sales Agreement. We have also agreed
to reimburse B. Riley up to $60,000 of B. Riley’s actual outside legal expenses incurred by B. Riley in connection with this offering.
We have also agreed to reimburse the B. Riley for certain ongoing expenses. We estimate that the total expenses of the offering payable
by us, excluding commissions payable to B. Riley under the Sales Agreement, will be approximately $190,000.
The remaining sales proceeds, after deducting
any expenses payable by us and any transaction fees imposed by any governmental, regulatory, or self-regulatory organization in connection
with the sales, will equal our net proceeds for the sale of such common stock.
B. Riley will provide written confirmation to
us following the close of trading on the on each day in which common stock is sold through it as sales agent under the Sales Agreement.
Each confirmation will include the number of shares of common stock sold through it as sales agent on that day, the volume weighted average
price of the shares sold, the percentage of the daily trading volume and the net proceeds to us.
We will report at least quarterly the number of
shares of common stock sold through B. Riley under the Sales Agreement, the net proceeds to us and the compensation paid by us to B. Riley
in connection with the sales of common stock.
Settlement for sales of common stock will occur,
unless the parties agree otherwise or otherwise required by law, on the second business day that is also a trading day following the date
on which any sales were made in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow,
trust or similar arrangement.
In connection with the sales of our common stock
on our behalf, B. Riley will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation
paid to B. Riley will be deemed to be underwriting commissions or discounts. We have agreed in the Sales Agreement to provide indemnification
and contribution to B. Riley against certain liabilities, including liabilities under the Securities Act. As sales agent, B. Riley will
not engage in any transactions that stabilizes our common stock.
Our common stock is currently listed on The Nasdaq
Capital Market and trades under the symbol “DERM.” The transfer agent of our common stock is VStock Transfer, LLC.
B. Riley and/or its affiliates have provided,
and may in the future provide, various investment banking and other financial services for us for which services they have received and,
may in the future receive, customary fees.
LEGAL MATTERS
The validity of the securities and certain other matters will be passed
upon for us by McGuireWoods LLP, Charlotte, North Carolina. B. Riley is being represented in connection with this offering by Duane Morris
LLP, New York, New York.
EXPERTS
The consolidated financial statements of Journey
Medical Corporation as of December 31, 2021 and 2020 and for each of the years then ended have been incorporated by reference herein in
reliance upon the report of KPMG LLP, an independent registered public accounting firm, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly
and current reports, proxy statements and other information with the SEC. We have filed with the SEC a registration statement on Form S-3
under the Securities Act with respect to the securities we are offering under this prospectus. This prospectus does not contain all of
the information set forth in the registration statement and the exhibits to the registration statement. For further information with respect
to us and the securities offered under this prospectus, we refer you to the registration statement and the exhibits filed as a part of
the registration statement. The SEC maintains an Internet site that contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC, including Journey Medical Corporation. The SEC’s Internet site can be found
at www.sec.gov. We maintain a website at www.jmcderm.com. Information found on, or accessible through, our website is not
a part of, and is not incorporated into, this prospectus, and you should not consider it part of this prospectus.
INCORPORATION OF INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference”
information that we file with it. Incorporation by reference allows us to disclose important information to you by referring you to those
other documents. The information incorporated by reference is an important part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. This prospectus omits certain information contained in the registration
statement, as permitted by the SEC. You should refer to the registration statement and any prospectus supplement filed hereafter, including
the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus
regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily
complete and each statement is qualified in all respects by that reference. Copies of all or any part of the registration statement, including
the documents incorporated by reference or the exhibits, may be obtained upon payment of the prescribed rates at the offices of the SEC
listed above in “Where You Can Find More Information.” The documents we are incorporating by reference are:
| · | our Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 2022, filed on May 10, 2022, for the fiscal quarter ended June 30, 2022, filed on August 9, 2022, and for the fiscal quarter ended September 30,
2022, filed on November 10, 2022; |
In addition, all documents that we file pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the filing of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the
date of filing of such documents, except as to any document or portion of any document that is deemed furnished and not filed.
Pursuant to Rule 412 under the Securities
Act, any statement contained in the documents incorporated or deemed to be incorporated by reference in this Registration Statement shall
be deemed to be modified, superseded or replaced for purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference in this Registration
Statement modifies, supersedes or replaces such statement. Any such statement so modified, superseded or replaced shall not be deemed,
except as so modified, superseded or replaced, to constitute a part of this Registration Statement.
We will provide, without charge, to each person,
including any beneficial owner, to whom a copy of this prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the documents incorporated by reference in this prospectus, other than exhibits to such documents unless such exhibits are
specifically incorporated by reference into such documents. Requests may be made by telephone at (480) 434-6670, or by sending a written
request to Journey Medical Corporation, Attn: Investor Relations, 9237 E Via de Ventura Blvd. Suite 105,
Scottsdale, Arizona 85258. Our internet address is www.jmcderm.com.
4,900,000 Shares of Common Stock
PROSPECTUS
B. Riley Securities
, 2023
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an itemization
of the various expenses, all of which we will pay, in connection with the issuance and distribution of the securities being registered.
All of the amounts shown are estimated except the SEC Registration Fee and the FINRA Filing Fee.
SEC Registration Fee | |
$ | 16,530 | |
FINRA Filing Fee | |
$ | 23,000 | |
Printing and Engraving | |
| * | |
Legal Fees and Expenses | |
| * | |
Accounting Fees and Expenses | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | * | |
*
These fees will depend on the type of securities offered and number of offerings and, therefore,
cannot be estimated at this time. In accordance with Rule 430B under the Securities Act, additional information regarding estimated
fees and expenses will be provided at the time information as to an offering is included in a prospectus supplement.
Item 15. Indemnification of Directors and Officers
Section 145(a) of the Delaware General
Corporation Law (“DGCL”) provides, in general, that a Delaware corporation may indemnify any person who was or is a party,
or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) because that person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with such action, so long as the person acted in good faith
and in a manner he or she reasonably believed was in or not opposed to the corporation’s best interests, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL provides,
in general, that a Delaware corporation may indemnify any person who was or is a party, or is threatened to be made a party, to any threatened,
pending or completed action or suit by or in the right of the corporation to obtain a judgment in its favor because the person is or was
a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise. The indemnity may include expenses (including attorneys’ fees) actually
and reasonably incurred by the person in connection with the defense or settlement of such action, so long as the person acted in good
faith and in a manner the person reasonably believed was in or not opposed to the corporation’s best interests, except that no indemnification
shall be permitted without judicial approval if a court has determined that the person is to be liable to the corporation with respect
to such claim. Section 145(c) of the DGCL provides that, if a present or former director or officer has been successful in defense
of any action referred to in Sections 145(a) and (b) of the DGCL, the corporation must indemnify such officer or director
against the expenses (including attorneys’ fees) he or she actually and reasonably incurred in connection with such action.
Section 145(g) of the DGCL provides,
in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise against any liability asserted against and incurred by such person, in any such capacity, or arising out
of his or her status as such, whether or not the corporation could indemnify the person against such liability under Section 145
of the DGCL.
As permitted by Section 102 of the DGCL,
we have adopted provisions in our certificate of incorporation that limit the liability of our directors for monetary damages for breach
of their fiduciary duties, except for liability that cannot be eliminated under the DGCL. Delaware law provides that directors of a corporation
will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except liability for any of the
following:
| · | any breach of their duty of loyalty to the corporation or the stockholders; |
| · | acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of
law; |
| · | unlawful payments of dividends or unlawful stock purchases or redemptions as provided in Section 174
of the DGCL; or |
| · | any transaction from which the director derived an improper personal benefit. |
This limitation of liability does not apply to
liabilities arising under the federal securities laws and does not affect the availability of equitable remedies such as injunctive relief
or rescission.
Our certificate of incorporation and our Bylaws
also provide that we will indemnify our directors and executive officers and may indemnify our other officers and employees and other
agents to the fullest extent permitted by law. We believe that indemnification under our Bylaws covers at least negligence and gross negligence
on the part of indemnified parties. Our Bylaws also permit us to secure insurance on behalf of any officer, director, employee or other
agent for any liability arising out of his or her actions in this capacity, regardless of whether our Bylaws would permit indemnification.
We have secured such insurance.
In addition, we have entered into separate indemnification
agreements with our directors and officers in addition to the indemnification provided for in our certificate of incorporation and bylaws.
These indemnification agreements provide, among other things, that we will indemnify our directors and officers for certain expenses,
including damages, judgments, fines, penalties, settlements and costs and attorneys’ fees and disbursements, incurred by a director
or officer in any claim, action or proceeding arising in his or her capacity as a director or officer of the company or in connection
with service at our request for another corporation or entity. The indemnification agreements also provide for procedures that will apply
in the event that a director or officer makes a claim for indemnification.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions
or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
Item 16. Exhibits
* To be filed by amendment or as an exhibit to a report pursuant to
Section 13(a), 13(c) or 15(d) of the Exchange Act.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table
in the effective registration statement; and
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information
in the registration statement;
provided, however, that subsections (i), (ii),
and (iii) do not apply if the information required to be included in a post-effective amendment by those subsections is contained
in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining
liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section
10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date.
(5) That, for the purpose of determining
liability of the registrant under the Securities Act 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.
(b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant
to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant, the registrant has
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. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes
to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act, in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2) of the
Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, our Company 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,
thereto duly authorized, in Scottsdale, Arizona, on December 30, 2022.
|
JOURNEY MEDICAL CORPORATION |
|
|
|
|
By: |
/s/ Claude Maraoui |
|
|
Claude Maraoui
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each of
the undersigned directors and officers of Journey Medical Corporation hereby appoints Claude Maraoui and Ernie De Paolantonio, and each
of them acting singly, as his or her true and lawful attorney-in-fact and agent, for him or her and in his or her name, place and stead,
with full power to act alone, to sign on his or her behalf and in the capacity set forth below, any and all amendments and post-effective
amendments and supplements to this Registration Statement on Form S-3 and to file each such amendment and post-effective amendment
and supplements to this Registration Statement, with all exhibits thereto, and any and all other documents in connection therewith, with
the Securities and Exchange Commission, hereby granting unto said attorney-in-fact and agent full power and authority to do and perform
any and all acts and things requisite and necessary or appropriate to be done in and about the premises as fully to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully 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 in the capacities and on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Claude Maraoui |
|
Chief Executive Officer, President and Director |
|
December 30, 2022 |
Claude Maraoui |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Lindsay A. Rosenwald |
|
Executive Chairman |
|
December 30, 2022 |
Lindsay A. Rosenwald |
|
|
|
|
|
|
|
|
|
/s/ Ernie De Paolantonio |
|
Chief Financial Officer |
|
December 30, 2022 |
Ernie De Paolantonio |
|
(Principal Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/ Neil Herskowitz |
|
Director |
|
December 30, 2022 |
Neil Herskowitz |
|
|
|
|
|
|
|
|
|
/s/ Jeff Paley |
|
Director |
|
December 30, 2022 |
Jeff Paley, M.D. |
|
|
|
|
|
|
|
|
|
/s/ Justin Smith |
|
Director |
|
December 30, 2022 |
Justin Smith |
|
|
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|
|
|
|
/s/ Miranda Toledano |
|
Director |
|
December 30, 2022 |
Miranda Toledano |
|
|
|
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