As filed with the Securities and Exchange Commission on June 11, 2021.
Registration No. 333-256516
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACURX PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation or organization) | | 2834 (Primary Standard Industrial Classification Code Number) | | 82-3733567 (I.R.S. Employer Identification Number) |
259 Liberty Avenue
Staten Island, NYNew York 10305
(917) 533-1469
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
David P. Luci
President and Chief Executive Officer
Acurx Pharmaceuticals, LLC
259 Liberty Avenue
Staten Island, NYNew York 10305
(917) 533-1469
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Ivan K. Blumenthal
Daniel A. Bagliebter
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
666 Third Avenue
New York, New York 10017
212-935-3000
Approximate date of commencement of proposed sale to the public:public
: As soon as practicable after the effective date of this registration statement.
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 check the following box. ☐
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 post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. ☐
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.
Large accelerated filer | ¨ | Accelerated filer | ¨ | |
Non-accelerated filer | Smaller reporting company | x | ||
Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 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.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE SELLING STOCKHOLDERS MAY NOT RESELL THESE SECURITIES UNTIL THE REGISTRATION FEE
| | ||||||||||||||
Title of Each Class of Securities To Be Registered | | | | Proposed Maximum Aggregate Offering Price(1)(2) | | | | Amount of Registration Fee(3)(4) | | ||||||
Common Stock, $0.001 par value per share | | | | | $ | 20,125,000 | | | | | | $ | 2,195.64 | | |
SUBJECT TO COMPLETION, DATED SEPTEMBER 14, 2022
PROSPECTUS
Acurx Pharmaceuticals, Inc.
2,627,224 Shares of Common Stock
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)selling stockholders of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
We are registering the resale of the shares of common stock of Acurx Pharmaceuticals, Inc. As a result ofcovered by this prospectus as required by the corporate conversion:
The selling stockholders may sell these shares through public or private transactions at market prices prevailing at the time of sale or at negotiated prices. The timing and amount of any sale are within the sole discretion of the outstanding warrants to purchase Class A membership interestsselling stockholders. Our registration of Acurx Pharmaceuticals, LLC will be adjusted in the same ratio as the one-half-for-one conversion ratio for outstanding warrants to purchase Class A membership interests of Acurx Pharmaceuticals, LLC noted above such that all of our outstanding warrants to purchase Class A membership interests of Acurx Pharmaceuticals, LLC which are currently exercisable at a weighted average price of $1.44 per Class A membership interest will automatically be adjusted such that the new exercise price for the warrants to purchase shares of common stockStock covered by this prospectus does not mean that the selling stockholders will offer or sell any of Acurx Pharmaceuticals, Inc. that willthe shares. For further information regarding the possible methods by which the shares may be outstanding upon consummating the corporate conversion will be at a weighted average pricedistributed, see “Plan of $2.88 per share, subject to certain adjustment provisions included in each such warrant.
The information in this preliminary 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 preliminary 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.
We are an “emerging growth company” as defined under the federal securities lawsapplicable Securities and Exchange Commission rules and, as such, have electedwe are subject to comply with certain reduced public company reporting requirements for this prospectus and may elect to do so in future filings.
Investing in our common stock is highly speculative and involves a highsignificant degree of risk. SeePlease consider carefully the specific factors set forth under “Risk Factors”Factors” beginning on page 12 to read about factors you should consider before buying shares7 of this prospectus and in our common stock.
Neither the Securities and Exchange Commission nor any other regulatory bodystate securities commission has approved or disapproved of these securities or passed upon the accuracydetermined if this prospectus is truthful or adequacy of the disclosures in this prospectus.complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2021
TABLE OF CONTENTS
THE OFFERING | 6 | ||||||
RISK FACTORS | |||||||
THE PRIVATE PLACEMENT | 8 | ||||||
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS | |||||||
USE OF PROCEEDS | |||||||
MARKET FOR COMMON STOCK AND DIVIDEND POLICY | |||||||
21 | |||||||
WHERE YOU CAN FIND MORE INFORMATION | |||||||
INCORPORATION OF DOCUMENTS BY REFERENCE |
i
ABOUT THIS PROSPECTUS
The registration statement that we have filed with the Securities and Exchange Commission (the “SEC”). includes exhibits that provide more detail of the matters discussed in this prospectus. You should not assume that the information contained inread this prospectus, is accurate on any date subsequent to the date set forth onrelated exhibits filed with the front cover of this prospectus even though this prospectus is delivered or shares of common stock are sold or otherwise disposed of on a later date. It is important for you to readSEC, and consider all information contained in this prospectus inthe documents incorporated by reference herein before making your investment decision. You should also read and considerrely only on the information provided in this prospectus and the documents to which we have referred you under “
The selling stockholders named in this prospectus may sell up to a statutory conversion, and will change its name to Acurx Pharmaceuticals, Inc. All holders of membership interests of, or warrants to purchase membership interests of, Acurx Pharmaceuticals, LLC will become holders of 2,627,224 shares of our common stock or options orpreviously issued and issuable upon exercise of warrants to purchase shares of our common stock from time to time. This prospectus also covers any shares of common stock that may become issuable as a result of share splits, share dividends, or similar transactions. We have agreed to pay the expenses incurred in registering these shares, including legal and accounting fees.
We have not, and the selling stockholders have not, authorized anyone to provide any information or to make any representations other than those contained in this prospectus, the documents incorporated by reference herein or in any free writing prospectuses prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. The information contained in this prospectus, the documents incorporated by reference herein or in any applicable free writing prospectus is current only as of its date, regardless of its time of delivery or any sale of our securities. Our business, financial condition, results of operations and prospects may have changed since that date.
The selling stockholders are offering to sell, and seeking offers to buy, shares of our common stock only under circumstances and in jurisdictions where it is lawful to do so. The selling stockholders are not making an offer to sell these securities in any state or jurisdiction where the offer or sale is not permitted.
Unless the context otherwise requires, “Acurx,” “ACXP,” “the Company,” “we,” “us,” “our” and similar terms refer to Acurx Pharmaceuticals, Inc., as described under the heading “Corporate Conversion.” In this prospectus, we refer to all transactions related to our conversion to a corporation as the Corporate Conversion.
Industry and Market Data
This prospectus or the documents incorporated by reference herein includes statistical and other industry and market data that we obtained from industry publications and research, surveys and studies conducted by third parties. Industry publications and third-party research, surveys and studies generally indicate that their information has been obtained from sources believed to be reliable, although they do not guarantee the accuracy or completeness of such information.
1
The following is a summary highlights selected information contained elsewhere inof what we believe to be the most important aspects of our business and the offering of our securities under this prospectus and does not contain all of the information thatprospectus. We urge you should consider in making your investment decision. Before investing in our common stock, you should carefullyto read this entire prospectus, including ourthe more detailed consolidated financial statements, notes to the consolidated financial statements and other information incorporated by reference from our other filings with the notes theretoSEC 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 information set forth underdocuments incorporated by reference herein or therein, before purchasing our securities. Each of the “Risk Factors”risk factors could adversely affect our business, operating results and “Management’s Discussion and Analysisfinancial condition, as well as adversely affect the value of Financial Condition and Results of Operations” sections of this prospectus. Except where the context otherwise requires or where otherwise indicated, the terms “Acurx,” “we,” “us,” “our,” “our company,” “Company” and “our business” refer, prior to the Corporate Conversion discussed herein, to Acurx Pharmaceuticals, LLC, and after the Corporate Conversion, to Acurx Pharmaceuticals, Inc.
Overview
We are a clinical stage biopharmaceutical company developing a new class of antibiotics for infections caused by bacteria listed as priority pathogens by the World Health Organization (“WHO”), the U.S. Centers for Disease Control and Prevention (“CDC”), and the U.S. Food and Drug Administration (“FDA”). Priority pathogens are those which require new antibiotics to address the worldwide crisis of antimicrobial resistance (“AMR”), as identified by the WHO, CDC and FDA. The CDC estimates that, in the U.S., antibiotic-resistant pathogens infect one individual every 11 seconds and result in one death every 15 minutes. The WHO recently stated that growing antimicrobial resistance is equally as dangerous as the ongoing COVID-19 pandemic, threatens to unwind a century of medical progress and may leave us defenseless against infections that today can be treated easily. According to the WHO, the current clinical development pipeline remains insufficient to tackle the challenge of the increasing emergence and spread of antimicrobial resistance.
Statement of Operations Data | | | Years Ended December 31, | | | Three Months Ended March 31, | | ||||||||||||||||||
| | | 2020 | | | 2019 | | | 2021 (unaudited) | | | 2020 (unaudited) | | ||||||||||||
Total Revenue | | | | | | | | | | | | | | | | ||||||||||
Operating Expenses | | | | | | | | | | | | | | | | | | | | | | | | | |
Research & Development | | | | $ | 2,202,979 | | | | | $ | 3,510,088 | | | | | $ | 91,908 | | | | | $ | 684,732 | | |
General & Administrative | | | | | 2,397,059 | | | | | | 2,421,165 | | | | | | 1,382,421 | | | | | | 594,369 | | |
Loss from Operation | | | | | 4,600,038 | | | | | | 5,931,253 | | | | | | 1,474,329 | | | | | | 1,279,101 | | |
Net Loss | | | | $ | 4,600,038 | | | | | $ | 5,931,253 | | | | | $ | 1,474,329 | | | | | $ | 1,279,101 | | |
Net Loss per Share of Common Stock, Basic and Diluted(1) | | | | $ | (0.74) | | | | | $ | (1.24) | | | | | | — | | | | | | — | | |
Weighted average number of shares outstanding, Basic and Diluted(1) | | | | | 6,190,875 | | | | | | 4,801,536 | | | | | | — | | | | | | — | | |
Pro forma weighted average common shares outstanding, Basic and Diluted(2) | | | | | 8,891,338 | | | | | | 7,501,999 | | | | | | — | | | | | | — | | |
| | | Period Ended March 31, | | |||||||||
Balance Sheet Data | | | 2021 (unaudited) | | | Pro Forma, As Adjusted(1) | | ||||||
Cash | | | | $ | 2,628,273 | | | | | $ | 15,331,076 | | |
Working Capital(2) | | | | | 2,181,562 | | | | | | 14,884,365 | | |
Total Assets | | | | | 2,981,838 | | | | | | 15,345,165 | | |
Total Liabilities | | | | | 510,678 | | | | | | 510,678 | | |
Accumulated Deficit | | | | | (15,274,941) | | | | | | (15,838,830) | | |
Total Members’ Equity | | | | $ | 2,471,160 | | | | | $ | 14,834,487 | | |
| | | Actual | | | Pro Forma Accelerated Vesting(3) | | | Pro Forma Corporate Conversion(1)(2) | | | Pro Forma As Adjusted | | ||||||||||||
Cash and cash equivalents | | | | $ | 2,628 | | | | | $ | 2,628 | | | | | $ | 2,628 | | | | | $ | 15,331 | | |
Equity: | | | | | | | | | | | | | | | | | | | | | | | | | |
Class A membership interests: 13,725,196 interests issued and outstanding, actual; 13,928,318 interests issued and outstanding pro forma (accelerated vesting); no interests issued or outstanding pro forma (corporate conversion); and no interests issued or outstanding pro forma (as adjusted)(1)(3) | | | | | 16,916 | | | | | | 17,480 | | | | | | — | | | | | | — | | |
Class B membership interests: 100,000 interests issued and outstanding, actual; 100,000 interests issued and outstanding pro forma (accelerated vesting); no interests issued or outstanding pro forma (corporate conversion); and no interests issued or outstanding pro forma (as adjusted)(1) | | | | | 830 | | | | | | 830 | | | | | | — | | | | | | — | | |
Common stock, $0.001 par value per share: no shares authorized, issued or outstanding, actual; no shares authorized, issued or outstanding pro forma (accelerated vesting); 7,041,159 shares issued and outstanding, pro forma (corporate conversion); and 9,541,159 shares issued and outstanding pro forma (as adjusted) | | | | | — | | | | | | — | | | | | | 7 | | | | | | 10 | | |
Preferred stock, $0.001 par value per share: no shares authorized, issued or outstanding, actual; no shares authorized, issued or outstanding pro forma (accelerated vesting); no shares issued or outstanding, pro forma (corporate conversion); and no shares issued or outstanding pro forma (as adjusted) | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| | | Actual | | | Pro Forma Accelerated Vesting(3) | | | Pro Forma Corporate Conversion(1)(2) | | | Pro Forma As Adjusted | | ||||||||||||
Additional Paid in Capital | | | | | | | | | | | | | | | | | 18,303 | | | | | | 14,824 | | |
Accumulated deficit | | | | | (15,275) | | | | | | (15,839) | | | | | | (15,839) | | | | | | — | | |
Total equity (deficit) | | | | $ | 2,471 | | | | | $ | 2,471 | | | | | $ | 2,471 | | | | | $ | 14,834 | | |
Total capitalization | | | | $ | 2,471 | | | | | $ | 2,471 | | | | | $ | 2,471 | | | | | $ | 14,834 | | |
|
| Assumed initial public offering price per share | | | | | | | | | | $ | 6.00 | | |
| Historical net tangible book value per Class A membership interest and Class B membership interest as of March 31, 2021 | | | | $ | 0.18 | | | | | | | | |
| Pro forma net tangible book value per share as of March 31, 2021 before this offering and after giving effect to the Corporate Conversion and the accelerated vesting of currently unvested membership interests(1) | | | | | 0.35 | | | | | | | | |
| Increase in the pro forma net tangible book value per share after giving effect to this offering | | | | | 0.17 | | | | | | | | |
| Pro forma as adjusted net tangible book value per share after this offering | | | | | | | | | | | 1.55 | | |
| Dilution per share to new investors participating in this offering | | | | | | | | | | $ | 4.45 | | |
| | | Shares Purchased | | | Total Consideration | | | Average Price Per Share | | | |||||||||||||||||||||||
| | | Number | | | Percent | | | Amount | | | Percent | | | | | ||||||||||||||||||
Existing stockholders | | | | | 7,041,159 | | | | | | 74% | | | | | $ | 17,579,876 | | | | | | 54% | | | | | $ | 2.49 | | | | ||
New investors | | | | | 2,500,000 | | | | | | 26% | | | | | $ | 15,000,000 | | | | | | 46% | | | | | $ | 6.00 | | | | ||
Total | | | | | 9,541,159 | | | | | | 100% | | | | | $ | 32,579,876 | | | | | | 100% | | | | | $ | 3.41 | | | |
| | | Three Months Ended March 31 (unaudited) | | | Percentage Increase | | ||||||||||||
| | | 2021 | | | 2020 | | ||||||||||||
| | | (in thousands) | | | | | | | | |||||||||
Research and Development Expenses | | | | $ | 92 | | | | | $ | 685 | | | | | | (86)% | | |
General and Administrative Expenses | | | | | 1,382 | | | | | | 594 | | | | | | 132% | | |
Total Expenses | | | | | 1,474 | | | | | | 1,279 | | | | | | (15)% | | |
Net Loss | | | | $ | 1,474 | | | | | $ | 1,279 | | | | | | (15)% | | |
| | | Years Ended December 31, | | | Percentage Increase | | ||||||||||||
| | | 2020 | | | 2019 | | ||||||||||||
| | | (in thousands) | | | | | | | | |||||||||
Research and Development Expenses | | | | $ | 2,203 | | | | | $ | 3,510 | | | | | | (37)% | | |
General and Administrative Expenses | | | | | 2,397 | | | | | | 2,421 | | | | | | —% | | |
Total Expenses | | | | | 4,600 | | | | | | 5,931 | | | | | | (22)% | | |
Net Loss | | | | $ | 4,600 | | | | | $ | 5,931 | | | | | | (22)% | | |
Our approach is to develop a new class of antibiotic candidates that block the DNA polymerase IIIC enzyme (“Pol IIIC”). We believe we are developing the first Pol IIIC inhibitor to enter clinical trials.trials and have clinically validated the efficacy of our lead antibiotic candidate in a Phase 2a clinical trial. We are currently enrolling patients in a Phase 2b clinical trial. Pol IIIC is the primary catalyst for DNA replication of several Gram-positive bacterial cells. Our research and development pipeline includes clinical stage and early stageearly-stage antibiotic candidates that target Gram-positive bacteria for oral and/or parenteral treatment of infections caused by
Pol IIIC is required for the replication of DNA in certain Gram-positive bacterial species. By blocking this enzyme, our antibiotic candidates are believed to be bactericidal and inhibit proliferation of several common gram-positive bacterial pathogens, including both sensitive and resistant
We intend to “de-risk” this new class of antibiotics through our drug development activities and potentially partner with a fully-integrated pharmaceutical company for late-stage clinical trials andand/or commercialization.
Our lead antibiotic candidate, ibezapolstat (formerly named ACX-362E), has a novel mechanism of action that targets the Pol IIIC enzyme, a previously unexploited scientific target. We recentlyPhase 2a clinical data validate the efficacy of our lead antibiotic candidate as well as Pol IIIC as an appropriate bacterial target.
On December 3, 2021, we commenced enrollment in a Phase 2b 64-patient, randomized (1-to-1), non-inferiority, double-blind trial of oral ibezapolstat compared to oral vancomycin, a standard of care, to treat C. difficile infections (“CDI”).
Prior to that, we completed aour Phase 2a clinical trial of ibezapolstat to treat patients with
2
The SAB noted that 10 out of 10 patients enrolled in the Phase 2a trial reached the Clinical Cure primary endpoint, defined in the study protocol as the resolution of diarrhea in the 24-hour period immediately before the end-of-treatmentend of treatment that is maintained for 48 hours after end of treatment. Such cure was sustained, meaning that the patients showed no sign of infection recurrence, for 30 days thereafter. This was the secondary endpoint. This outcome constitutes a 100% response rate for the primary and secondary endpoints of the trial. All 10 patients enrolled in the Phase 2a trial met the study'sstudy’s primary and secondary efficacy endpoints, namely, Clinical Cure at end of treatment and Sustained Clinical Cure of no recurrence of CDI at the 28-day follow-up visit. No treatment-related serious adverse events (“SAEs”) were reported by the investigators who enrolled patients in the trial. We believe these results represent the first-ever clinical data showing Pol IIIC has potential as a therapeutically-relevanttherapeutically relevant antibacterial target. We plan to commence aOur Phase 2b clinical trial pursuantcommenced enrollment on December 3, 2021 and we are continuing to the trial design described below.
Currently available antibiotics used to treat CDI infections utilize other mechanisms of action. We believe ibezapolstat is the first antibiotic candidate to work by blocking the DNA Pol IIIC enzyme in
C.We also have an early stageearly-stage pipeline of antibiotic product candidates with the same previously unexploited mechanism of action which has established proof of concept in animal studies. This pipeline includes ACX-375C, a potential oral and parenteral treatment targeting Gram-positive bacteria, including MRSA, VRE and PRSP.
Recent Developments
Referring Physician Program and Trial Site Expansion
In July 2022, we had two full-time employees and one part-time employee.
According to the physician prescribing data available to us from an industry-standard source, identified RPs in the U.S., was a double-blind, placebo- controlled study to determine safety, tolerability, pharmacokinetics and fecal concentrationsaggregate of ibezapolstat in 62 healthy volunteers. It was conducted in two parts; first, single ascending doses were administered to four cohorts of eight subjects each, and second, multiple ascending doses were administered that simulate the anticipated clinical treatment regimen. Safety information was analyzed through assessment of adverse events and other standard safety measures, while concentrations of ibezapolstat were determined in both blood and the feces, the latter being the critical site of drug delivery for treating CDI. In addition, the laboratory of Dr. Kevin Garey at the University of Houston performed state-of-the-art microbiomic testing of gastrointestinal flora in trial subjects as compared with vancomycin, the standard of care for the treatment of patients with CDI, which testing was the first of its kind in Phase 1 clinical trials for CDI.
We believe the commencementReferring Physician Program, which has a number of clinical trials (December 2018) and $25,000 paid uponother supportive elements, will enhance the successful completionrate of enrollment potentially mitigating or partially mitigating the countervailing enrollment disruption caused by the COVID-19 pandemic.
Additionally, in July 2022, we increased the target number of clinical trial drug supply suitable to supportsites participating in our Phase 1 clinical trial (December 2018). The patent jurisdictions of the acquired patents include the U.S., European Union, Japan and Canada.
Drug | | | MIC range | | | MIC50 | | | MIC90 | | ||||||
Ibezapolstat | | | 1 – 4 | | | | | 2 | | | | | | 4 | | |
Vancomycin | | | 1 – 8 | | | | | 1 | | | | | | 4 | | |
Metronidazole | | | 0.25 – 4 | | | | | 1 | | | | | | 4 | | |
Organism | | | Micromyx Number | | | 362E | | | Metronidazole | |
Bifidobacterium brevi | | | 3967 (ATCC(1) 15698) | | | >32 | | | 2 | |
Bifidobacterium longum | | | 3968 (ATCC 15707) | | | >32 | | | 4 | |
Lactobacillus casei | | | 1722 (ATCC 393) | | | 16 | | | >32 | |
Lactobacillus acidophilus | | | 0681 | | | 4 | | | >32 | |
Eubacterium lentum | | | 1274 (ATCC 43055) | | | >32 | | | 0.25 | |
Clostridium perfringens | | | 3414 | | | 16 | | | 1 | |
Clostridium difficile | | | 3579 | | | 4 | | | 0.25 | |
| | | 3580 | | | 2 | | | 0.25 | |
| | | 3581 | | | 2 | | | 0.5 | |
| | | 3582 | | | 4 | | | 0.5 | |
| | | 3584 | | | 1 | | | 0.25 | |
| | | 3585 | | | 2 | | | 0.25 | |
| | | 3587 | | | 2 | | | 0.5 | |
Organism | | | Micromyx Number | | | 362E | | | Metronidazole | |
| | | 3588 | | | 0.5 | | | 0.25 | |
| | | 3589 | | | 2 | | | 1 | |
Quality Control Strains | | | | | | | | | | |
Clostridium difficile | | | 4381 (ATCC 700057) | | | 1 | | | 0.25 (0.12 – 0.5)(2) | |
Bacteroides fragilis | | | 0123 (ATCC 25285) | | | >32 | | | 0.25 (0.25 – 1) | |
| | | 362E | | | MTZ | | | VAN | | | FDX | |
MIC range: | | | 0.5 – 8 | | | 0.25 – >32 | | | 0.5 – 16 | | | 0.03 – > 8 | |
MIC50: | | | 2 | | | 0.5 | | | 1 | | | 0.5 | |
MIC90: | | | 4 | | | 4 | | | 4 | | | 2 | |
| | | ACX-362E (ibezapolstat) | | | MTZ | | | VAN | | | FDX | |
MIC range: | | | 1 – 8 | | | 0.25 – 16 | | | 0.5 – 4 | | | 0.015 – 1 | |
MIC50: | | | 4 | | | 0.5 | | | 1 | | | 0.12 | |
MIC90: | | | 4 | | | 1 | | | 2 | | | 0.25 | |
| | | | | | | | | | | | ACX-362E (ibezapolstat) | | | Metronidazole | | | Vancomycin | | ||||||||||||
Organism | | | Isolate No. | | | Type | | | Replicate | | | MIC | | | MBC | | | MIC | | | MBC | | | MIC | | | MBC | | |||
C. difficile | | | MMX 5680 | | | Ribotype 027 | | | A | | | 1 | | | 1 | | | 2 | | | 2 | | | 0.5 | | | | | 0.5 | | |
| | | | | | | | | B | | | 1 | | | 1 | | | 4 | | | 4 | | | 0.5 | | | | | 0.5 | | |
| | | | | | | | | C | | | 1 | | | 2 | | | 2 | | | 2 | | | 0.25 | | | | | 0.25 | | |
| | | BAA- 1382 | | | Ribotype 012 | | | A | | | 1 | | | 4 | | | 0.5 | | | 0.5 | | | 1 | | | | | 2 | | |
| | | | | | | | | B | | | 1 | | | 2 | | | 0.5 | | | 1 | | | 1 | | | | | 1 | | |
| | | | | | | | | C | | | 1 | | | 2 | | | 1 | | | 1 | | | 1 | | | | | 2 | | |
| | | BAA- 1875 | | | Ribotype 078 | | | A | | | 1 | | | >8* | | | 0.5 | | | 1 | | | 0.25 | | | | | 0.5 | | |
| | | | | | | | | B | | | 1 | | | 2 | | | 1 | | | 1 | | | 0.5 | | | | | 0.5 | | |
| | | | | | | | | C | | | 1 | | | >8* | | | 0.5 | | | 0.5 | | | 0.5 | | | | | 0.5 | | |
Registered Direct Offering and drug developers to evaluate the efficacy, in this case, of development stage antibiotic candidates and their comparability to one or more approved products. A “p value” of .0344 is within FDA standards used by drug development companies to compare an experimental product candidate, like ibezapolstat, against an existing standard-of-care.
On July 25, 2022, we entered into securities purchase agreements (the “Purchase Agreements”) with claims that cover ibezapolstat that expire in May 2023 and September 2030, respectively. The most important U.S. patent in
Name and principal position | | | Year | | | Salary ($) | | | Bonus ($) | | | Stock awards ($) | | | Option awards ($) | | | Non-equity incentive plan compensation ($) | | | All other compensation ($)(1) | | | Total ($) | | ||||||||||||||||||||||||
David P. Luci | | | | | 2020 | | | | | | 277,000(2) | | | | | | 20,775 | | | | | | 274,824 | | | | | | — | | | | | | — | | | | | | 23,438 | | | | | | 596,037 | | |
President and Chief Executive Officer | | | | | 2019 | | | | | | 266,833(2) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 23,438 | | | | | | 290,271 | | |
Robert J. DeLuccia | | | | | 2020 | | | | | | 277,000(3) | | | | | | 20,775 | | | | | | 274,824 | | | | | | — | | | | | | — | | | | | | 44,971 | | | | | | 617,570 | | |
Executive Chairman | | | | | 2019 | | | | | | 266,833(3) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 45,016 | | | | | | 311,849 | | |
Robert G. Shawah | | | | | 2020 | | | | | | 90,000(4) | | | | | | — | | | | | | 62,500 | | | | | | — | | | | | | — | | | | | | — | | | | | | 152,500 | | |
Chief Financial Officer | | | | | 2019 | | | | | | 90,000(4) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 90,000 | | |
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In a concurrent private placement (the “Private Placement” and, together with the Registered Direct Offering, the “Offerings”), we issued to the Affiliate Investors and Investor (i) series A warrants exercisable for an aggregate of 1,289,980 shares of common stock (consisting of series A warrants to purchase up to 1,230,769 shares of common stock for the Investor (the “Investor Series A Warrants”) and series A warrants to purchase up to 59,211 shares of common stock for the Affiliate Investors (the “Affiliate Series A Warrants”)) at an exercise price of $3.25 per Classshare for the Investor Series A membership interest,Warrants and $3.55 per share for the Affiliate Series A Warrants and (ii) series B warrants exercisable for an aggregate consideration of $2,293,613.
In connection with the Offerings, we entered into a Placement Agent Agreement with A.G.P./Alliance Global Partners and Maxim Group LLC (collectively, the “Placement Agents”), pursuant to which the Placement Agents acted as the exclusive placement agents in connection with the Offerings. Pursuant to the Placement Agent Agreement, we agreed to pay the Placement Agents (i) a fee equal to 7.0% of the aggregate gross proceeds from the Offerings to the Investor and (ii) a fee equal to 3.5% of the aggregate gross proceeds from the Offerings to the Affiliate Investors. In addition to the cash fee, we agreed to issue to the Placement Agents warrants to purchase an aggregate of up to (i) 5.0% of the aggregate number of common stock acquired by our directors, officers and 5% security holders in the financing transactions described above, assuming such Class A membership interests are converted into shares of common stock and such warrants to purchase Class A membership interests are converted into warrants to purchase shares of common stock issuable upon the exercise of the pre-funded warrants sold to the Investor in the Registered Direct Offering and (ii) 2.5% of the aggregate number of shares of common stock sold to the Affiliate Investors in the Registered Direct Offering. The placement agent warrants are exercisable for a period commencing January 27, 2023 and expiring July 27, 2027, and have an initial exercise price of $3.60 per share.
The gross proceeds to us from the Offerings were $4.2 million and net proceeds after deducting the placement agents’ fees and other offering expenses payable by us were approximately $3.7 million.
Implication of Being an Emerging Growth Company
We are an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, as amended (the “JOBS Act”). We will remain an emerging growth company until the earlier of (1) the last day of the fiscal year following the Corporate Conversion.
Participants | | | Common Stock | | | Warrants for Common Stock | | | Aggregate Purchase Price | | |||||||||
Executive Officers and Directors(1)(2) | | | | | | | | | | | | | | | | | | | |
Robert J. DeLuccia, Executive Chairman(3) | | | | | 1,853,527 | | | | | | 47,917 | | | | | $ | 350,000 | | |
David P. Luci, President and Chief Executive Officer(4) | | | | | 1,900,193 | | | | | | 33,750 | | | | | $ | 350,000 | | |
Robert G. Shawah, Chief Financial Officer | | | | | 302,500 | | | | | | 1,250 | | | | | $ | 35,000 | | |
Carl V. Sailer, Director Nominee(6) | | | | | 66,667 | | | | | | 33,334 | | | | | $ | 100,000 | | |
Jack H. Dean, PhD, Director Nominee(7) | | | | | 31,539 | | | | | | 10,000 | | | | | $ | 65,000 | | |
Joseph C. Scodari, Director Nominee | | | | | 6,154 | | | | | | — | | | | | $ | 20,000 | | |
Thomas Harrison, Director Nominee | | | | | 3,077 | | | | | | — | | | | | $ | 10,000 | | |
Participants | | | Common Stock | | | Warrants for Common Stock | | | Aggregate Purchase Price | | |||||||||
James Donohue, Director Nominee | | | | | 25,000 | | | | | | 12,500 | | | | | $ | 25,000 | | |
· | we may reduce our executive compensation disclosure; |
· | we may present only two years of audited financial statements, plus unaudited condensed financial statements for any interim period, and related Management’s Discussion and Analysis of Financial Condition and Results of Operations in this Prospectus; |
· | we may avail ourselves of the exemption from the requirement to obtain an attestation and report from our auditors on the assessment of our internal control over financial reporting pursuant to the Sarbanes-Oxley Act of 2002; and |
· | we may not require stockholder non-binding advisory votes on executive compensation or golden parachute arrangements. |
We have entered into investor rights agreements withavailed ourselves in this Prospectus of the investors who participated in our private placement financings between March 2018 and October 2019, including Messrs. DeLuccia, Luci, Sailer, Scodari, Harrison and Dean. Each such investor rights agreement imposes certain affirmative obligations on us and also grants certain rights to such investors, including certain registration rightsreduced reporting requirements described above with respect to compensation disclosure requirements and selected financial data. As a result, the securities held by them and certain additional rights. See “
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As a company with less than $1.0 billion in revenue during our last fiscal year, we qualify as an “emerging growth company.”
Smaller Reporting Company
We are also currently a “smaller reporting company,” meaning that we are not an investment company, an asset-backed issuer, or a majority-owned subsidiary of a parent company that is not a smaller reporting company, and have been operatinga public float of less than $250 million or annual revenues of less than $100 million during the most recently completed fiscal year. In the event that we are still considered a “smaller reporting company,” at such time as we cease being an “emerging growth company,” the disclosure we will be required to provide in our SEC filings will increase, but will still be less than it would be if we were not considered either an “emerging growth company” or a “smaller reporting company.” Specifically, similar to “emerging growth companies,” “smaller reporting companies” are able to provide simplified executive compensation disclosures in their filings; are exempt from the provisions of Section 404(b) of the Sarbanes-Oxley Act requiring that independent registered public accounting firms provide an attestation report on the effectiveness of internal control over financial reporting; and have certain other decreased disclosure obligations in their SEC filings, including, among other things, only being required to provide two years of audited financial statements in annual reports. Decreased disclosures in our SEC filings due to our status as an “emerging growth company” or “smaller reporting company” may make it harder for investors to analyze our results of operations and financial prospects.
Risks Associated with Our Business
Our business and our ability to implement our business strategy are subject to numerous risks, as more fully described in the section entitled “Risk Factors” in this prospectus and in our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, incorporated herein by reference. You should read these risks before you invest in our securities. We may be unable, for many reasons, including those that are beyond our control, to implement our business strategy.
Corporate Information and History
We were organized as a Delaware limited liability company underin the name Acurx Pharmaceuticals, LLC. In connection withState of Delaware in July 2017 and subsequentwe commenced operations in February 2018 upon acquiring the rights to the IPO,our lead antibiotic product candidate from GLSynthesis, Inc. Our principal executive offices are located at 259 Liberty Avenue, Staten Island, NY 10305 and our telephone number is (917) 533-1469. Our website address is www.acurxpharma.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference. On June 23, 2021, we will have converted from a Delaware limited liability company tointo a Delaware corporation pursuant to a statutory conversion, and changed our name to Acurx Pharmaceuticals, Inc. Existing holders
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Shares of Common Stock that May be Offered by the Selling Stockholders | Up to 2,627,224 shares of common stock. | |
Use of Proceeds | We will not receive any proceeds from the sale of the common stock by the selling stockholders. However, if all of the warrants were exercised for cash, we would receive gross proceeds of approximately $8.6 million. See the section entitled “Use of Proceeds” in this prospectus. | |
Offering Price | The selling stockholders may sell all or a portion of their shares through public or private transactions at prevailing market prices or at privately negotiated prices. | |
Nasdaq Capital Market Symbol | ACXP | |
Risk Factors | Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 7 of this prospectus, and any other risk factors described in the documents incorporated by reference herein, for a discussion of certain factors to consider carefully before deciding to invest in our common stock. |
Throughout this prospectus, when we refer to the time of our IPO, including certain 5% security holders, executive officers and directors, of our Class A membership units and Class B membership units, received shares of our common stock being registered on behalf of the selling stockholders for offer and sale, we are referring to the shares of common stock issuable upon exercise of the warrants, each as described under “The Private Placement” and “Selling Stockholders.” When we refer to the selling stockholders in this prospectus, we are referring to the selling stockholders identified in this prospectus and, as applicable, their donees, pledgees, transferees or other successors-in-interest selling shares of common stock or interests in shares of common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer.
Investing in our securities involves a high degree of risk. You should carefully consider and evaluate all of the information contained in this prospectus and in the documents we incorporate by reference into this prospectus before you decide to purchase our securities. In particular, you should carefully consider and evaluate the risks and uncertainties described under the heading “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2021. Any of the risks and uncertainties set forth below and in the Annual Report, as updated by annual, quarterly and other reports and documents that we file with the SEC and incorporate by reference into this prospectus, or any prospectus, could materially and adversely affect our business, results of operations and financial condition, which in turn could materially and adversely affect the value of any securities offered by this prospectus. As a result, you could lose all or part of your investment.
On July 25, 2022, we entered into the Purchase Agreements with a single healthcare-focused U.S. institutional investor named therein (the “Investor”), and with each of David P. Luci, our President and Chief Executive Officer, Robert J. DeLuccia, our Executive Chairman, and Carl V. Sailer, a member of our board of directors (collectively, the “Affiliate Investors”) pursuant to which we issued and sold, in a private placement (the “Private Placement”), (i) series A warrants exercisable for an aggregate of 1,289,980 shares of Common Stock (consisting of series A warrants to purchase up to 1,230,769 shares of common stock for the Investor (the “Investor Series A Warrants”) and series A warrants to purchase up to 59,211 shares of common stock for the Affiliate Investors (the “Affiliate Series A Warrants”)) at an exercise price of $3.25 per share for the Investor Series A Warrants and $3.55 per share for the Affiliate Series A Warrants and (ii) series B warrants exercisable for an aggregate of 1,289,980 shares of common stock (consisting of series B warrants to purchase up to 1,230,769 shares of common stock for the Investor (the “Investor Series B Warrants”) and Series B Warrants to purchase up to an aggregate of 59,211 shares of common stock for the Affiliate Investors (the “Affiliate Series B Warrants”)) at an exercise price of $3.25 per share for the Investor Series B Warrants and $3.55 per share for the Affiliate Series B Warrants. Each series A warrant will be exercisable commencing on January 27, 2023 and will expire five years from the initial exercise date. Each series B warrant will be exercisable commencing on January 27, 2023 and will expire one year from the initial exercise date.
In connection with the Offerings, we entered into a Placement Agent Agreement with the Placement Agents, pursuant to which the Placement Agents acted as the exclusive placement agents in connection with the Offerings. Pursuant to the Placement Agent Agreement, we agreed to pay the Placement Agents (i) a fee equal to 7.0% of the aggregate gross proceeds from the Offerings to the Investor and (ii) a fee equal to 3.5% of the aggregate gross proceeds from the Offerings to the Affiliate Investors. In addition to the cash fee, we agreed to issue to the Placement Agents warrants to purchase an aggregate of up to (i) 5.0% of the aggregate number of shares of common stock and shares of common stock issuable upon the exercise of the pre-funded warrants sold to the Investor in the Registered Direct Offering and (ii) 2.5% of the aggregate number of shares of common stock sold to the Affiliate Investors in the Registered Direct Offering. The placement agent warrants are exercisable for a period commencing January 27, 2023 and expiring July 27, 2027, and have an initial exercise price of $3.60 per share.
Pursuant to the terms of the Purchase Agreements, we agreed to use commercially reasonable efforts to cause a registration statement on Form S-1 providing for the resale by holders of shares of our common stock issuable upon the exercise of the warrants, to become effective by January 23, 2023 and to keep such registration statement effective at all times.
The foregoing descriptions of the form of Purchase Agreements, the Placement Agent Agreement, the form of series A warrant, the form of series B warrant and the form of placement agent warrant are not complete and are subject to and qualified in their entirety by reference to the form of Purchase Agreements, the form of Placement Agent Agreement, the form of series A warrant, the form of series B warrant and the form of placement agent warrant, respectively, copies of which are attached as Exhibits 10.1, 1.1, 4.1, 4.2 and 4.4, respectively, to the Current Report on Form 8-K dated July 25, 2022, and are incorporated herein by reference.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that relate to future events or our future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ materially from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Words such as, but not limited to, “believe,” “expect,” “anticipate,” “estimate,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “targets,” “likely,” “will,” “would,” “could,” “should,” “continue,” and similar expressions or phrases, or the negative of those expressions or phrases, are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Although we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus and incorporated by reference in this prospectus, we caution you that these statements are based on our projections of the future that are subject to known and unknown risks and uncertainties and other factors that may cause our actual results, level of activity, performance or achievements expressed or implied by these forward-looking statements, to differ. The sections in our periodic reports, including our most recent Annual Report on Form 10-K, as revised or supplemented by our subsequent Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K, entitled “Business,” “Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” as well as other sections in this prospectus and the other documents or reports incorporated by reference in this prospectus, discuss some of the factors that could contribute to these differences. These forward-looking statements include, among other things, statements about:
We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking statements we make. We have included important cautionary statements in this prospectus and in the documents incorporated by reference in this prospectus, particularly in the “Risk Factors” section, that we believe could cause actual results or events to differ materially from the forward-looking statements that we make. For a summary of such factors, please refer to the section entitled “Risk Factors” in this prospectus, as updated and supplemented by the discussion of risks and uncertainties under “Risk Factors” contained in any supplements to this prospectus and in our most recent Annual Report on Form 10-K, as revised or supplemented by our subsequent Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K, as well as any amendments thereto, as filed with the SEC and which are incorporated herein by reference. The information contained in this document is believed to be current as of the date of this document. We do not intend to update any of the forward-looking statements after the date of this document to conform these statements to actual results or to changes in our expectations, except as required by law.
In light of these assumptions, risks and uncertainties, the results and events discussed in the forward-looking statements contained in this prospectus or in any document incorporated herein by reference might not occur. Investors are cautioned not to place undue reliance on the forward-looking statements, which speak only as of the date of this prospectus or the date of the document incorporated by reference in this prospectus. We are not under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of the Corporate Conversion.
We are not necessarily indicative of beneficial ownership forselling any other purpose. Under these rules, beneficial ownership includes any shares as to which the individual or entity has sole or shared voting power or investment power, which includes the power to dispose of or to direct the disposition of such security. Except as indicated in the footnotes below, we believe, based on the information furnished to us, that the individuals and entities named in the table below have sole voting and investment power with respect to all shares of common stock beneficially owned by them, subject to any community property laws.
| | | Shares Beneficially Owned Prior to Offering | | | Shares Beneficially Owned After Offering | | ||||||||||||||||||
Name of Beneficial Owner | | | Number | | | Percentage | | | Number | | | Percentage | | ||||||||||||
Named Executive Officers and Directors(1) | | | | | | | | | | | | | | | | | | | | | | | | | |
David P. Luci(2) | | | | | 1,053,606 | | | | | | 15.2% | | | | | | 1,053,606 | | | | | | 11.2% | | |
Robert G. Shawah(3) | | | | | 189,200 | | | | | | 2.7% | | | | | | 189,200 | | | | | | 2.0% | | |
Robert J. DeLuccia(4) | | | | | 1,030,273 | | | | | | 14.9% | | | | | | 1,030,273 | | | | | | 11.0% | | |
Joseph C. Scodari | | | | | 3,077 | | | | | | *% | | | | | | 3,077 | | | | | | * | | |
Jack H. Dean(5) | | | | | 17,693 | | | | | | *% | | | | | | 17,693 | | | | | | * | | |
Thomas Harrison(6) | | | | | 1,539 | | | | | | *% | | | | | | 1,539 | | | | | | * | | |
Carl Sailer(7) | | | | | 60,417 | | | | | | 1.1% | | | | | | 60,417 | | | | | | * | | |
James Donohue | | | | | 12,500 | | | | | | *% | | | | | | 12,500 | | | | | | * | | |
All executive officers and directors as a group (8 persons) | | | | | 2,368,304 | | | | | | 34.5% | | | | | | 2,368,304 | | | | | | 25.5% | | |
We will receive the exercise price upon any exercise of record by Mr. Luci, (ii) 15,083 sharesthe warrants, to the extent exercised on a cash basis. If all the warrants were exercised for cash, we would receive gross proceeds of approximately $8.6 million. However, the holders of the warrants are not obligated to exercise the warrants, and we cannot predict whether or when, if ever, the holders of the warrants will choose to exercise the warrants, in whole or in part. Accordingly, any proceeds from such exercise will be used for general corporate purposes and working capital.
MARKET FOR COMMON STOCK AND DIVIDEND POLICY
Our common stock is traded on the Nasdaq Capital Market under the symbol “ACXP.” The last reported sale price of our common stock heldon September 13, 2022 on the Nasdaq Capital Market was $4.45 per share. As of September 13, 2022, there were 357 stockholders of record by Mr. Luci’s spouse and (iii) 35,000 shares of our common stock.
We have never declared or paid any cash dividend on our common stock. We intend to retain any future earnings and do not expect to pay dividends in the foreseeable future.
The common stock heldbeing offered by the selling stockholders are those issuable to the selling stockholders upon exercise of record by Mr. Luci’s child.
The table below lists the selling stockholders and other information regarding the beneficial ownership of the shares of common stock by each of the selling stockholders. The second column lists the number of shares of common stock beneficially owned by each selling stockholder, based on its ownership of the shares of common stock, options to purchase common stock, and 625warrants, as of September 1, 2022, assuming exercise of the warrants held by the selling stockholders on that date, without regard to any limitations on exercises. The third column lists the maximum number of shares of our common stock underlying warrantsthat may be sold or otherwise disposed of by the selling stockholders pursuant to purchase shares of our common stock held of record by Mr. Shawah.
Under the terms of the warrants, a selling stockholder may not exercise the warrants to the extent such exercise would cause such selling stockholder, together with its affiliates and attribution parties, to beneficially own a number of shares of common stock which would exceed 4.99% (or for certain holders, 9.99%) of our then outstanding common stock following such exercise, excluding for purposes of such determination shares of common stock issuable upon exercise of the warrants which have not been exercised. The number of shares in the second column does not reflect this limitation. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
Information about the selling stockholders may change over time. Any changed information will be set forth in an amendment to the registration statement or supplement to this prospectus, to the extent required by law. Unless otherwise noted below, the address of each selling stockholder listed on the table is c/o Acurx Pharmaceuticals, Inc., 259 Liberty Avenue, Staten Island, NY 10305.
Beneficial Ownership Prior to the Offering(1) | Beneficial Ownership After the Offering(2) | |||||||||||||||||||
Name of Selling Stockholder | Number of Shares of Common Stock Beneficially Owned Prior to the Offering | Percentage of Outstanding Common Stock(2) | Maximum Number of Shares of Common Stock To Be Sold Pursuant to this Prospectus | Number of Shares of Common Stock Beneficially Owned After the Offering | Percentage of Outstanding Common Stock(2) | |||||||||||||||
Armistice Capital Master Fund Ltd. (3) | 3,570,361 | 25.5 | % | 2,461,538 | 1,108,823 | 7.8 | ||||||||||||||
David P. Luci (4) | 1,659,892 | 13.7 | % | 39,474 | 1,620,418 | 11.0 | ||||||||||||||
Robert J. DeLuccia (5) | 1,643,478 | 13.5 | % | 39,474 | 1,604,004 | 10.9 | ||||||||||||||
Carl V. Sailer (6) | 176,178 | 1.5 | % | 39,474 | 136,704 | 1.0 | ||||||||||||||
A.G.P./Alliance Global Partners+ (7) | 16,542 | * | 16,542 | — | — | |||||||||||||||
David Bocchi (8)+ | 7,089 | * | 7,089 | — | — | |||||||||||||||
Chris Pravecek (9) | 8,034 | * | 8,034 | — | — | |||||||||||||||
Kevin Oleskewicz (10) | 1,896 | * | 1,896 | — | — | |||||||||||||||
David Birenbaum (11) | 472 | * | 472 | — | — | |||||||||||||||
Harry Ioannou (12) | 4,490 | * | 4,490 | — | — | |||||||||||||||
George Anagnostou (13) | 4,490 | * | 4,490 | — | — | |||||||||||||||
Zachary Grodko (14) | 945 | * | 945 | — | — | |||||||||||||||
James Tang (15) | 472 | * | 472 | — | — | |||||||||||||||
Keith Donofrio (16) | 1,890 | * | 1,890 | — | — | |||||||||||||||
Jonathan Kurtin (17) | 472 | * | 472 | — | — | |||||||||||||||
Thomas Higgins (18) | 472 | * | 472 | — | — |
+ This selling stockholder is a broker-dealer or is an affiliate of a broker-dealer and has represented to us that will occurit acquired the securities in the ordinary course of business and that, at the time of such acquisition, it did not have any agreements or understandings, directly or indirectly, with any person to dispose of the securities, other than a commitment by us to register the securities pursuant to a registration statement.
* Represents less than 1%.
(1) | Assumes all warrants are exercised. |
(2) | Assumes that (i) all of the shares of common stock to be registered by the registration statement of which this prospectus is a part are sold in this offering and (ii) the selling stockholders do not acquire additional shares of our common stock after the date of this prospectus and prior to completion of this offering. The percentage of beneficial ownership after the offering is based on 14,183,833 shares of common stock, consisting of (a) 11,556,609 shares of our common stock outstanding on September 1, 2022, and (b) the 2,627,224 shares of our common stock underlying the warrants offered under this prospectus. The number of shares listed do not take into account any limitations on exercise of the warrants. |
(3) | Consists of (i) 1,108,823 shares of common stock and (ii) 2,461,538 shares of common stock issuable upon the exercise of warrants subject to certain beneficial ownership limitations held by the selling stockholder. The shares are directly held by Armistice Capital Master Fund Ltd., a Cayman Islands exempted company (the “Master Fund”), and may be deemed to be indirectly beneficially owned by: (i) Armistice Capital, LLC (“Armistice Capital”), as the investment manager of the Master Fund; and (ii) Steven Boyd, as the Managing Member of Armistice Capital. Armistice Capital and Steven Boyd disclaim beneficial ownership of the shares except to the extent of their respective pecuniary interests therein. The address of Armistice Capital Master Fund Ltd. is c/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022. |
(4) | Consists of (i) 1,028,460 shares of common stock, (ii) 56,349 shares of common stock issuable upon the exercise of warrants and (iii) 525,000 shares of common stock issuable upon the exercise of stock options within 60 days of September 1, 2022, held by David P. Luci, our President and Chief Executive Officer, (iv) 15,083 shares of our common stock held by Mr. Luci’s spouse and (v) 35,000 shares of our common stock held by Mr. Luci’s child. |
(5) | Consists of (i) 1,051,198 shares of common stock, (ii) 63,433 shares of common stock issuable upon the exercise of warrants and (iii) 525,000 shares of common stock issuable upon the exercise of stock options within 60 days of September 1, 2022, held by Robert J. DeLuccia, our Executive Chairman, and (iv) 3,847 shares of our common stock held by Mr. DeLuccia’s spouse. |
(6) | Consists of (i) 92,815 shares of common stock, (ii) 56,141 shares of common stock issuable upon the exercise of warrants and (iii) 22,222 shares of our common stock issuable upon exercise of stock options within 60 days of September 1, 2022, held by Carl V. Sailer, a member of our board of directors and (iv) 5,000 shares of our common stock held by Mr. Sailer’s spouse. |
(7) | Consists of 16,542 shares of common stock issuable upon the exercise of the placement agent warrants issued to A.G.P./Alliance Global Partners in connection with its role as placement agent in the Private Placement. |
(8) | Consists of 7,089 shares of common stock issuable upon the exercise of the placement agent warrants. |
(9) | Consists of 8,034 shares of common stock issuable upon the exercise of the placement agent warrants. |
(10) | Consists of 1,896 shares of common stock issuable upon the exercise of the placement agent warrants. |
(11) | Consists of 472 shares of common stock issuable upon the exercise of the placement agent warrants. |
(12) | Consists of 4,490 shares of common stock issuable upon the exercise of the placement agent warrants. |
(13) | Consists of 4,490 shares of common stock issuable upon the exercise of the placement agent warrants. |
(14) | Consists of 945 shares of common stock issuable upon the exercise of the placement agent warrants. |
(15) | Consists of 472 shares of common stock issuable upon the exercise of the placement agent warrants. |
(16) | Consists of 1,890 shares of common stock issuable upon the exercise of the placement agent warrants. |
(17) | Consists of 472 shares of common stock issuable upon the exercise of the placement agent warrants. |
(18) | Consists of 472 shares of common stock issuable upon the exercise of the placement agent warrants. |
Relationship with Certain Selling Stockholders
Mr. Luci is our co-founder and currently serves as our President and Chief Executive Officer. Mr. Luci previously served as managing director immediately prior to our initial public offering. Mr. Luci is one of our principal stockholders and has entered into certain agreements with us. For additional information with respect to Mr. Luci’s relationship with us please see the effectivenessdocuments incorporated by reference in this prospectus.
Mr. DeLuccia is our co-founder and currently serves as our Executive Chairman. Mr. DeLuccia previously served as managing partner and director immediately prior to our initial public offering. Mr. DeLuccia is one of our principal stockholders and has entered into certain agreements with us. For additional information with respect to Mr. DeLuccia’s relationship with us please see the documents incorporated by reference in this prospectus.
Mr. Sailer currently serves as a member of our board of directors. Mr. Sailer has entered into certain agreements with us. For additional information with respect to Mr. Sailer’s relationship with us please see the documents incorporated by reference in this prospectus.
Each selling stockholder of the securities and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on The Nasdaq Capital Market or any other stock exchange, market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A selling stockholder may use any one or more of the following methods when selling securities:
The selling stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”), if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121.
In connection with the sale of the securities or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The selling stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The selling stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. Each selling stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the securities.
The Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to use commercially reasonable efforts to keep this registration statement effective at all times until the selling stockholders no longer own any Warrants or shares of Common Stock issuable upon the exercise of the Warrants.
Under applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market making activities with respect to the Common Stock for the applicable restricted period, as defined in Regulation M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the Common Stock by the selling stockholders or any other person. We will make copies of this prospectus available to the selling stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
17 |
DESCRIPTION OF OUR SECURITIES TO BE REGISTERED
The securities to be registered on this registration statement on Form S-1 include up to an aggregate amount of 2,627,224 shares of common stock, consisting of (i) up to 1,289,980 shares of our common stock issuable upon exercise of series A warrants acquired by certain of the selling stockholders under the Purchase Agreements, (ii) up to 1,289,980 shares of our common stock issuable upon exercise of series B warrants acquired by certain of the selling stockholders under the Purchase Agreements and (iii) up to 47,264 shares of our common stock issuable upon exercise of placement agent warrants acquired by certain of the selling stockholders under the Placement Agent Agreement.
General
The following is a summary of material characteristics of our capital stock as set forth in our certificate of incorporation and bylaws, and certain provisions of Delaware law. The following description does not purport to be complete and is subject to and qualified in its entirety by, and should be read in conjuncture with, our certificate of incorporation and bylaws, each of which are filed as exhibits to this prospectus forms a part.
Authorized Capital Stock
Our certificate of this offering, our authorized capital stock will consist ofincorporation authorizes us to issue 200,000,000 shares of common stock, par value $0.001 per share, and 10,000,000 shares of preferred stock, par value $0.001 per share.
Common Stock
Voting.
Dividends.
Liquidation Rights. In the event of our liquidation, dissolution or winding-up, the holders of our common stock may be entitled to share, ratably, in all assets remaining available for distribution after payment or provision for payment of all debts and other liabilities and subject to the rights of each class or series of capital stock having preference over, or right to participate with, the common stock.
Preemptive and Similar Rights. The holders of our common stock have no preemptive or similar rights.
Forum Selection
Our certificate of incorporation that will be in effect upon the closing of this offering, our board of directors will be authorized to direct us to issue shares of preferred stock in one or more series without stockholder approval. Our board of directors has the discretion to determine the powers, privileges, preferences and relative participating, optional and other special rights, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock.
18 |
Anti-Takeover Provisions
Our Certificatecertificate of Incorporationincorporation and Bylawsbylaws contain provisions that may delay, defer or discourage another party from acquiring control of us. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our board of directors, which we believe may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, they also give our board of directors the power to discourage acquisitions that some stockholders may favor.
Authorized but unissued shares.shares. The authorized but unissued shares of our common stock and our preferred stock are available for future issuance without stockholder approval, subject to the requirements
Elimination of Stockholder Action by Written Consent. Our certificate of incorporation will eliminate the right of stockholders to act by written consent without a meeting.
Special meetings of stockholders.stockholders. Our certificate of incorporation and bylaws provide that, except as otherwise required by law or provided by the resolution or resolutions adopted by our board of directors designating the rights, powers and preferences of any series of preferred stock, special meetings of our stockholders may be called only by (a) our board of directors pursuant to a resolution approved by a majority of the total number of our directors that we would have if there were no vacancies or (b) the chair of our board of directors, and any power of our stockholders to call a special meeting is specifically denied.
Advance notice requirements for stockholder proposals and director nominations.nominations. Our bylaws provide for an advance notice procedure for stockholder proposals to be brought before an annual meeting of stockholders, including proposed nominations of candidates for election to our board of directors. In order for any matter to be “properly brought” before a meeting, a stockholder must comply with advance notice and duration of ownership requirements and provide us with certain information. Stockholders at an annual meeting may only consider proposals or nominations specified in the notice of meeting or brought before the meeting by or at the direction of our board of directors or by a qualified stockholder of record on the record date for the meeting, who is entitled to vote at the meeting and who has delivered timely written notice in proper form to our secretary of the stockholder’s intention to bring such business before the meeting. These provisions could have the effect of delaying stockholder actions that are favored by the holders of a majority of our outstanding voting securities until the next stockholder meeting.
Amendment of Certificate of Incorporation or Bylaws.Bylaws. The Delaware General Corporation Law (“DGCL”)DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation, unless a corporation’s certificate of incorporation requires a greater percentage. Our certificate of incorporation provides that certain provisions of our certificate of incorporation (namely, those provisions relating to (i) directors; (ii) limitation of director liability, indemnification and advancement of expenses and renunciation of corporate opportunities; (iii) meetings of stockholders; and (iv) certain amendments to our certificate of incorporation and bylaws) may not be altered, amended or repealed in any respect (including by merger, consolidation or otherwise), nor may any provision inconsistent therewith be adopted, unless such alteration, amendment, repeal or adoption is approved by the affirmative vote of the holders of at least sixty-six and two-thirds percent (662∕3%) of the voting power of all of our then-outstanding shares then entitled to vote generally in an election of directors, voting together as a single class. Our certificate of incorporation and bylaws also provide that approval of stockholders holding sixty-six and two-thirds percent (662∕3%) of the voting power of all of our then-outstanding shares entitled to vote generally in an election of directors, voting together as a single class, is required for stockholders to make, alter, amend, or repeal any provision of our bylaws. Our board of directors retains the right to alter, amend or repeal our bylaws.
Classified Board of Directors.Directors. Our certificate of incorporation upon the consummation of this offering, provides for a classified board of directors consisting of three classes of approximately equal size, each serving staggered three-year terms. Only the directors in one class will be subject to election by a plurality of the votes cast at each annual meeting of stockholders, with the directors in the other classes continuing for the remainder of their respective three-year terms. Stockholders do not have the ability to cumulate votes for the election of directors.
19 |
Limitations on Liability and Indemnification of Officers and Directors
Our Certificatecertificate of Incorporationincorporation and Bylawsbylaws provides indemnification for our directors and officers to the fullest extent permitted by the DGCL. We have entered into Indemnification Agreements with each of our directors that may be, in some cases, broader than the specific indemnification provisions contained under the DGCL. In addition, as permitted by the DGCL, our Certificatecertificate of Incorporationincorporation and Bylawsbylaws includes
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203 of the Delaware General Corporation Law.DGCL. In general, Section 203 prohibits a publicly-held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-year period following the time that such stockholder becomes an interested stockholder, unless the business combination is approved in a prescribed manner. A “business combination” includes, among other things, a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. An “interested stockholder” is a person who, together with affiliates and associates, owns, or did own within three years prior to the determination of interested stockholder status, 15% or more of the corporation’s voting stock.
Under Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:
A Delaware corporation may “opt out” of these provisions with an express provision in its original certificate of incorporation or an express provision in its amended and restated certificate of incorporation or by-laws resulting from a stockholders’ amendment approved by at least a majority of the outstanding voting shares. We have not opted out of these provisions. As a result, mergers or other takeover or change in control attempts of us may be discouraged or prevented.
Listing
Our common stock will be listed on The Nasdaq Capital Market under the symbol “ACXP.”
Transfer Agent and Registrar
The transfer agent and registrar of our common stock is VStock Transfer, LLC. They are located at 18 Lafayette Place, Woodmere, New York 11598. Their telephone number is (212) 828-8436.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York, New York, which has acted as our counsel in connection with this offering, will pass upon the validity of the sharesissuance of our common stock beingthe securities to be offered by this prospectus. Sullivan & Worcester LLP, New York, New York, has acted as counsel
The financial statements of Acurx Pharmaceuticals, Inc. (formerly Acurx Pharmaceuticals, LLC) appearing in Acurx Pharmaceuticals, Inc.’s Annual Report on Form 10-K for the underwriters.
We have filed with the SEC a registration statement on Form S-1 including exhibits and schedules, underwith respect to the shares of common stock offered by this prospectus with the SEC in accordance with the Securities Act that registersand the sharesrules and regulations enacted under its authority. This prospectus, which constitutes a part of our common stock to be sold in this offering. This prospectusthe registration statement, does not contain all of the information containedincluded in the registration statement and theits exhibits and schedules filed as part of the registration statement. For further information with respect to us and our common stock, we refer you to the registrationschedules. Any statement including all amendments, supplements, schedules and exhibits thereto. Statements containedmade in this prospectus as toconcerning the contents of any contract, agreement or other document are not necessarily complete, and each such statement is qualified in all respectsonly a summary of the actual contract, agreement or other document. If we have filed or incorporated by reference to the full text of suchany contract, agreement or other document filed as an exhibit to the registration statement. If a contract or document has been filed as an exhibit to the registration statement, you should read the exhibit for a more complete understanding of the document or matter involved. Each statement regarding a contract, agreement or other document is qualified by reference to the actual document. For further information regarding us and the shares of common stock offered by this prospectus, we refer you to the copies offull registration statement, including its exhibits and schedules, filed under the contract or documentSecurities Act.
The SEC maintains a website at http://www.sec.gov that has been filed. Each statement in this prospectus relating to a contract or document filed as an exhibit is qualified in all respects bycontains reports, proxy and information statements and other information regarding issuers that file electronically with the filed exhibit.
We also file annual, quarterly and current reports, proxy statements and other information with the SEC. TheYou can read our SEC maintains afilings on the SEC’s website at
Our website address is
http://www.acurxpharma.com. There we make available free of charge, on or through the investor relations section of our website, annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material with the SEC. The information contained21 |
INCORPORATION OF DOCUMENTS BY REFERENCE
The rules of the SEC allow us to incorporate by reference into this prospectus the information we file with the SEC. This means that we are disclosing important information to you by referring to other documents. The information incorporated intoby reference is considered to be part of this prospectus, except for any information superseded by information contained directly in this prospectus. We incorporate by reference the documents listed below (other than any portions thereof, which under the Exchange Act, and applicable SEC rules, are not deemed “filed” under the Exchange Act):
• | our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the SEC on March 16, 2022; |
• | our Current Reports on Form 8-K, filed with the SEC on June 7, 2022 and July 25, 2022(other than Item 9.01); and |
• | the description of our common stock contained in our Registration Statement on Form 8-A initially filed on June 23, 2021, including any amendment or report filed for the purpose of updating such description. |
The SEC file number for each of the documents listed above is 001-40536.
In addition, all documents subsequently filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the offering, shall not be deemed to be incorporated by reference into this prospectus; provided, however, that all reports, exhibits and other information that we “furnish” to the SEC will not be considered incorporated by reference into this prospectus. If we have incorporated by reference any statement or information in this prospectus and we subsequently modify that statement or information with information contained in this prospectus, the statement or information previously incorporated in this prospectus is also modified or superseded in the same manner.
You may request, orally or in writing, a copy of any or all of the documents incorporated herein by reference. These documents will be provided to you at no cost, by contacting:
Acurx Pharmaceuticals, Inc.
259 Liberty Avenue
Staten Island, NY 10305
Telephone: (917) 533-1469
You may also access these documents on our website, http://www.acurxpharma.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
You should rely only on information contained in, or incorporated by reference into, this prospectus and any prospectus supplement. We have not authorized anyone to provide you with information different from that contained in this prospectus or incorporated by reference in this prospectus. We are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
| | | 2020 | | | 2019 | | ||||||
ASSETS | | | | | | | | | | | | | |
CURRENT ASSETS | | | | | | | | | | | | | |
Cash | | | | $ | 3,175,411 | | | | | $ | 2,483,322 | | |
Prepaid Expenses | | | | | 48,609 | | | | | | 48,103 | | |
TOTAL CURRENT ASSETS | | | | | 3,224,020 | | | | | | 2,531,425 | | |
TOTAL ASSETS | | | | $ | 3,224,020 | | | | | $ | 2,531,425 | | |
LIABILITIES AND MEMBERS’ EQUITY | | | | | | | | | | | | | |
CURRENT LIABILITIES | | | | | | | | | | | | | |
Accounts Payable and Accrued Expenses | | | | $ | 455,931 | | | | | $ | 1,256,591 | | |
Paycheck Protection Program Loan | | | | | 16,625 | | | | | | — | | |
Advanced Receipt of Equity Subscriptions | | | | | — | | | | | | 454,980 | | |
TOTAL CURRENT LIABILITIES | | | | | 472,556 | | | | | | 1,711,571 | | |
NONCURRENT LIABILITIES | | | | | | | | | | | | | |
Paycheck Protection Program Loan | | | | | 49,878 | | | | | | — | | |
TOTAL LIABILITIES | | | | | 522,434 | | | | | | — | | |
COMMITMENTS AND CONTINGENCIES | | | | | | | | | | | | | |
MEMBERS’ EQUITY | | | | | | | | | | | | | |
Members’ Equity, Class A | | | | | 16,402,198 | | | | | | 9,920,428 | | |
Members’ Equity, Class B | | | | | 100,000 | | | | | | 100,000 | | |
Accumulated Deficit | | | | | (13,800,612) | | | | | | (9,200,574) | | |
TOTAL MEMBERS’ EQUITY | | | | | 2,701,586 | | | | | | 819,854 | | |
TOTAL LIABILITIES AND MEMBERS’ EQUITY | | | | $ | 3,224,020 | | | | | $ | 2,531,425 | | |
| | | 2020 | | | 2019 | | ||||||
OPERATING EXPENSES | | | | | | | | | | | | | |
Research and Development | | | | $ | 2,202,979 | | | | | $ | 3,510,088 | | |
General and Administrative | | | | | 2,397,059 | | | | | | 2,421,165 | | |
TOTAL OPERATING EXPENSES | | | | | 4,600,038 | | | | | | 5,931,253 | | |
NET LOSS | | | | $ | 4,600,038 | | | | | $ | 5,931,253 | | |
Pro Forma C Corporation Information (unaudited) – See Note 9 | | | | | | | | | | | | | |
Historical loss from operations before income taxes | | | | | | | | | | | | | |
Pro forma provision (benefit) for income taxes | | | | | | | | | | | | | |
Pro forma net loss | | | | | | | | | | | | | |
Pro forma net loss per common share basic and diluted | | | | | | | | | | | | | |
Weighted average pro forma shares outstanding basic and diluted | | | | | | | | | | | | | |
| | | Class A Membership Interests | | | Class B Membership Interests | | | Accumulated Deficit | | | Total Members’ Equity | | ||||||||||||||||||||||||
| | | Number of Units | | | Amount | | | Number of Units | | | Amount | | ||||||||||||||||||||||||
Balance at January 1, 2019 | | | | | 8,391,650 | | | | | $ | 5,019,542 | | | | | | 100,000 | | | | | $ | 100,000 | | | | | $ | (3,269,321) | | | | | $ | 1,850,221 | | |
Private Placement Offerings, net of issuance costs of $18,045 | | | | | 2,009,252 | | | | | | 4,000,455 | | | | | | — | | | | | | — | | | | | | — | | | | | | 4,000,455 | | |
Share-Based Compensation | | | | | 495,833 | | | | | | 569,444 | | | | | | — | | | | | | — | | | | | | — | | | | | | 569,444 | | |
Share-Based Payments to Vendors | | | | | 161,931 | | | | | | 330,987 | | | | | | — | | | | | | — | | | | | | — | | | | | | 330,987 | | |
Net Loss | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (5,931,253) | | | | | | (5,931,253) | | |
Balance at December 31, 2019 | | | | | 11,058,666 | | | | | | 9,920,428 | | | | | | 100,000 | | | | | | 100,000 | | | | | | (9,200,574) | | | | | | 819,854 | | |
Private Placement Offerings, net of issuance costs of $51,409 | | | | | 1,421,629 | | | | | | 4,432,124 | | | | | | — | | | | | | — | | | | | | — | | | | | | 4,432,124 | | |
Executive Compensation Settled with Membership Interests | | | | | 312,680 | | | | | | 781,700 | | | | | | — | | | | | | — | | | | | | — | | | | | | 781,700 | | |
Share-Based Compensation | | | | | 553,419 | | | | | | 695,833 | | | | | | — | | | | | | — | | | | | | — | | | | | | 695,833 | | |
Share-Based Payments to Vendors | | | | | 147,413 | | | | | | 572,113 | | | | | | — | | | | | | — | | | | | | — | | | | | | 572,113 | | |
Net Loss | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (4,600,038) | | | | | | (4,600,038) | | |
Balance at December 31, 2020 | | | | | 13,493,807 | | | | | $ | 16,402,198 | | | | | | 100,000 | | | | | $ | 100,000 | | | | | $ | (13,800,612) | | | | | $ | 2,701,586 | | |
| | | 2020 | | | 2019 | | ||||||
Cash Flow from Operating Activities: | | | | | | | | | | | | | |
Net loss | | | | $ | (4,600,038) | | | | | $ | (5,931,253) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Share-Based Compensation | | | | | 695,833 | | | | | | 569,444 | | |
Share-Based Payments to Vendors | | | | | 572,113 | | | | | | 330,987 | | |
Executive Compensation Settled with Membership Interests | | | | | 781,700 | | | | | | — | | |
(Increase) / Decrease In: | | | | | | | | | | | | | |
Prepaid Expenses | | | | | (506) | | | | | | (15,374) | | |
Accounts Payable and Accrued Expenses | | | | | (800,660) | | | | | | 1,060,930 | | |
Net Cash Used In Operating Activities | | | | | (3,351,558) | | | | | | (3,985,266) | | |
Cash Flow from Financing Activities: | | | | | | | | | | | | | |
Proceeds from Advanced Receipts of Private Placement Offerings | | | | | — | | | | | | 454,980 | | |
Proceeds from Paycheck Protection Program Loan | | | | | 66,503 | | | | | | — | | |
Proceeds from Private Placement Offerings, net of issuance costs | | | | | 3,977,144 | | | | | | 4,000,455 | | |
Net Cash Provided By Financing Activities | | | | | 4,043,647 | | | | | | 4,455,435 | | |
Net Increase In Cash | | | | | 692,089 | | | | | | 470,169 | | |
Cash at Beginning of Year | | | | | 2,483,322 | | | | | | 2,013,153 | | |
Cash at End of Year | | | | $ | 3,175,411 | | | | | $ | 2,483,322 | | |
SUPPLEMENTAL DISCLOSURE | | | | | | | | | | | | | |
NONCASH FINANCING ACTIVITY | | | | | | | | | | | | | |
Vendor warrant issuance related to Private Placement Offering | | | | $ | 23,177 | | | | | $ | — | | |
| | | 2020 | | | 2019 | | ||||||
Accrued compensation expenses | | | | $ | 317,068 | | | | | $ | 854,244 | | |
Accrued research and development | | | | | 89,156 | | | | | | 347,363 | | |
Accrued professional fees | | | | | 49,707 | | | | | | 52,680 | | |
Other accounts payable and accrued expenses | | | | | — | | | | | | 2,304 | | |
Total | | | | $ | 455,931 | | | | | $ | 1,256,591 | | |
| Total Paycheck Protection Program Loan | | | | $ | 66,503 | | |
| Less current portion | | | | | 16,625 | | |
| Long-term Debt | | | | $ | 49,878 | | |
| 2021 | | | | $ | 16,625 | | |
| 2022 | | | | $ | 33,251 | | |
| 2023 | | | | $ | 16,627 | | |
| | | March 31, 2021 | | | December 31, 2020 | | ||||||
| | | (unaudited) | | | | | | | | |||
ASSETS | | | | | | | | | | | | | |
CURRENT ASSETS | | | | | | | | | | | | | |
Cash | | | | $ | 2,628,273 | | | | | $ | 3,175,411 | | |
Prepaid Expenses and Other Receivable | | | | | 14,089 | | | | | | 48,609 | | |
TOTAL CURRENT ASSETS | | | | | 2,642,362 | | | | | | 3,224,020 | | |
OTHER ASSETS | | | | | | | | | | | | | |
Deferred Initial Public Offering Costs | | | | | 339,476 | | | | | | — | | |
TOTAL ASSETS | | | | $ | 2,981,838 | | | | | $ | 3,224,020 | | |
LIABILITIES AND MEMBERS’ EQUITY | | | | | | | | | | | | | |
CURRENT LIABILITIES | | | | | | | | | | | | | |
Accounts Payable and Accrued Expenses | | | | $ | 444,175 | | | | | $ | 455,931 | | |
Paycheck Protection Program Loan | | | | | 16,625 | | | | | | 16,625 | | |
Advanced Receipt of Equity Subscriptions | | | | | — | | | | | | — | | |
TOTAL CURRENT LIABILITIES | | | | | 460,800 | | | | | | 472,556 | | |
NONCURRENT LIABILITIES | | | | | | | | | | | | | |
Paycheck Protection Program Loan | | | | | 49,878 | | | | | | 49,878 | | |
TOTAL LIABILITIES | | | | | 510,678 | | | | | | 522,434 | | |
COMMITMENTS AND CONTINGENCIES | | | | | | | | | | | | | |
MEMBERS’ EQUITY | | | | | | | | | | | | | |
Members’ Equity, Class A | | | | | 16,915,986 | | | | | | 16,402,198 | | |
Members’ Equity, Class B | | | | | 830,115 | | | | | | 100,000 | | |
Accumulated Deficit | | | | | (15,274,941) | | | | | | (13,800,612) | | |
TOTAL MEMBERS’ EQUITY | | | | | 2,471,160 | | | | | | 2,701,586 | | |
TOTAL LIABILITIES AND MEMBERS’ EQUITY | | | | $ | 2,981,838 | | | | | $ | 3,224,020 | | |
| | | Three Months Ended March 31, | | |||||||||
| | | 2021 | | | 2020 | | ||||||
��� | | | (unaudited) | | | (unaudited) | | ||||||
OPERATING EXPENSES | | | | | | | | | | | | | |
Research and Development | | | | $ | 91,908 | | | | | $ | 684,731 | | |
General and Administrative | | | | | 1,382,421 | | | | | | 594,370 | | |
TOTAL OPERATING EXPENSES | | | | | 1,474,329 | | | | | | 1,279,101 | | |
NET LOSS | | | | $ | 1,474,329 | | | | | $ | 1,279,101 | | |
Pro Forma C Corporation Information (unaudited) – See Note 9 | | | | | | | | | | | | | |
Historical loss from operations before income taxes | | | | | | | | | | | | | |
Pro forma provision (benefit) for income taxes | | | | | | | | | | | | | |
Pro forma net loss | | | | | | | | | | | | | |
Pro forma net loss per common share basic and diluted | | | | | | | | | | | | | |
Weighted average pro forma shares outstanding basic and diluted | | | | | | | | | | | | | |
| | | Class A Membership Interests | | | Class B Membership Interests | | | | | | | | | Total Members’ Equity | | |||||||||||||||||||||
| | | Number of Units | | | Amount | | | Number of Units | | | Amount | | | Accumulated Deficit | | |||||||||||||||||||||
Balance at January 1, 2020 | | | | | 11,058,666 | | | | | $ | 9,920,428 | | | | | | 100,000 | | | | | $ | 100,000 | | | | | $ | (9,200,574) | | | | | $ | 819,854 | | |
Private Placement Offerings, net of issuance costs of $51,409 | | | | | 182,002 | | | | | | 454,980 | | | | | | — | | | | | | — | | | | | | — | | | | | | 454,980 | | |
Executive Compensation Settled with Membership Interests | | | | | 312,680 | | | | | | 781,700 | | | | | | — | | | | | | — | | | | | | — | | | | | | 781,700 | | |
Share-Based Compensation | | | | | 136,111 | | | | | | 166,667 | | | | | | — | | | | | | — | | | | | | — | | | | | | 166,667 | | |
Share-Based Payments to Vendors | | | | | 57,440 | | | | | | 181,100 | | | | | | — | | | | | | — | | | | | | — | | | | | | 181,100 | | |
Net Loss | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,279,101) | | | | | | (1,279,101) | | |
Balance at March 31, 2020 | | | | | 11,746,899 | | | | | | 11,504,875 | | | | | | 100,000 | | | | | | 100,000 | | | | | | (10,479,675) | | | | | | 1,125,200 | | |
Balance at January 1, 2021 | | | | | 13,493,807 | | | | | $ | 16,402,198 | | | | | | 100,000 | | | | | $ | 100,000 | | | | | $ | (13,800,612) | | | | | $ | 2,701,586 | | |
Executive Compensation Settled with Membership Interests | | | | | 57,430 | | | | | | 186,650 | | | | | | 471,042 | | | | | | 730,115 | | | | | | — | | | | | | 916,765 | | |
Cancellation of Class B Issuance | | | | | — | | | | | | — | | | | | | (471,042) | | | | | | — | | | | | | — | | | | | | — | | |
Share-Based Compensation | | | | | 143,814 | | | | | | 191,667 | | | | | | — | | | | | | — | | | | | | — | | | | | | 191,667 | | |
Share-Based Payments to Vendors | | | | | 30,145 | | | | | | 135,471 | | | | | | — | | | | | | — | | | | | | — | | | | | | 135,471 | | |
Net Loss | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,474,329) | | | | | | (1,474,329) | | |
Balance at March 31, 2021 | | | | | 13,725,196 | | | | | $ | 16,915,986 | | | | | | 100,000 | | | | | $ | 830,115 | | | | | $ | (15,274,941) | | | | | $ | 2,471,160 | | |
| | | Three Months Ended March 31, | | |||||||||
| | | 2021 | | | 2020 | | ||||||
| | | (unaudited) | | | (unaudited) | | ||||||
Cash Flow from Operating Activities: | | | | | | | | | | | | | |
Net loss | | | | $ | (1,474,329) | | | | | $ | (1,279,101) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Share-Based Compensation | | | | | 191,667 | | | | | | 166,667 | | |
Share-Based Payments to Vendors | | | | | 135,471 | | | | | | 181,100 | | |
Executive Compensation Settled with Membership Interests | | | | | 916,765 | | | | | | 781,700 | | |
(Increase) / Decrease In: | | | | | | | | | | | | | |
Prepaid Expenses and Other Assets | | | | | (304,958) | | | | | | 35,341 | | |
Accounts Payable and Accrued Expenses | | | | | (11,754) | | | | | | (785,002) | | |
Net Cash Used In Operating Activities | | | | | (547,138) | | | | | | (899,295) | | |
Cash Flow from Financing Activities: | | | | | | | | | | | | | |
Proceeds from Advanced Receipts of Private Placement Offerings | | | | | — | | | | | | — | | |
Proceeds from Paycheck Protection Program Loan | | | | | — | | | | | | — | | |
Proceeds from Private Placement Offerings, net of issuance costs | | | | | — | | | | | | — | | |
Net Cash Provided By Financing Activities | | | | | — | | | | | | — | | |
Net Increase In Cash | | | | | (547,138) | | | | | | (899,295) | | |
Cash at Beginning of Period | | | | | 3,175,411 | | | | | | 2,483,322 | | |
Cash at End of Period | | | | $ | 2,628,273 | | | | | $ | 1,584,027 | | |
| | | March 31, 2021 | | | 2020 | | ||||||
Accrued compensation expenses | | | | $ | 30,187 | | | | | $ | 317,068 | | |
Accrued research and development | | | | | 62,310 | | | | | | 89,156 | | |
Accrued professional fees | | | | | 351,282 | | | | | | 49,707 | | |
Other accounts payable and accrued expenses | | | | | 396 | | | | | | — | | |
Total | | | | $ | 444,175 | | | | | $ | 455,931 | | |
| Total Paycheck Protection Program Loan | | | | $ | 66,503 | | |
| Less current portion | | | | | 16,625 | | |
| Long-term Debt | | | | $ | 49,878 | | |
| 2021 | | | | $ | 16,625 | | |
| 2022 | | | | $ | 33,251 | | |
| 2023 | | | | $ | 16,627 | | |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Other Expenses of Issuance and Distribution.
The following table sets forth allthe costs and expenses, other than underwriting discounts and commissions, paid or payable by the RegistrantCompany in connection with the registration and sale of the common stockCommon Stock being registered. All amounts shown are estimates except for the SEC registration fee and the FINRA filing fee:
| | | Amount | | |||
SEC registration fee | | | | $ | 2,196 | | |
FINRA filing fee | | | | | 3,519 | | |
Initial listing fee | | | | | 50,000 | | |
Printing and engraving expenses | | | | | 125,000 | | |
Legal fees and expenses | | | | | 700,000 | | |
Accounting fees and expenses | | | | | 175,000 | | |
Transfer agent and registrar fees and expenses | | | | | 20,000 | | |
Miscellaneous expenses | | | | | 25,000 | | |
Total | | | | $ | 1,100,715 | | |
Amount | |||
SEC registration fee | $ | 996.10 | |
Accounting fees and expenses | 10,000.00 | ||
Legal fees and expenses | 25,000.00 | ||
Miscellaneous | 4,003.90 | ||
Total expenses | $ | 40,000.00 |
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law provides,and certain provisions of our certificate of incorporation and bylaws under certain circumstances provide for indemnification of our officers, directors and controlling persons against liabilities which they may incur in such capacities. A summary of the circumstances in which such indemnification is provided for is contained herein, but this description is qualified in its entirety by reference to our certificate of incorporation, bylaws and to the statutory provisions.
In general, thatany officer, director, employee or agent may be indemnified against expenses, fines, settlements or judgments arising in connection with a corporation may indemnify anylegal proceeding to which such 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 he or she 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, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if he or she actedthat person’s actions were in good faith, and in a manner he or she reasonablywere believed to be in or not opposed to theour best interests of the corporationinterest, and with respect to any criminal action or proceeding, such person had no reasonable cause to believe histheir actions were unlawful. Unless such person is successful upon the merits in such an action, indemnification may be awarded only after a determination by independent decision of the board of directors, by legal counsel, or herby a vote of the stockholders, that the applicable standard of conduct was unlawful.
The circumstances under which indemnification is granted in connection with an action brought on our behalf is generally the same as those set forth above; however, with respect to any threatened, pending or completed action or suit by or in the right of the corporationsuch actions, indemnification is granted only with respect to procure 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, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of the action. In such action or suit if he or sheactions, unless the court determines otherwise, the person to be indemnified must have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall have been in our best interest, and have not been adjudged to be liable to the corporation unless and onlycorporation.
Indemnification may also be granted pursuant to the extent that the Courtterms of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitledagreements which we are currently party to indemnity for such expenses that the Court of Chancery or other adjudicating court shall deem proper.
A stockholder’s investment may be adversely affected to the extent we will indemnify eachpay the costs of settlement and damage awards against directors and officers as required by these indemnification provisions. There is no pending litigation or proceeding involving any of our directors, and such officers to the fullest extent permittedor employees regarding which indemnification by law and the Charter and By-Laws.
Insofar as indemnification for liabilities of directors and officers of our company arising out of claims based on acts or omissions in their capacities as directors or officers.
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ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
In the three years preceding the filing of this registration statement, we have issued the following securities that were not registered under the Securities Act:
Private Placement Issuances
On July 27, 2022, we issued and sold to investors in a private placement series A warrants to purchase 1,289,980 shares of common stock and series B warrants to purchase 1,289,980 shares of common stock. An aggregate of 59,211 series A warrants and an aggregate of 4,150,000 Class A membership interests at a purchase59,211 series B warrants were issued to certain affiliates with an exercise price of $0.10$3.80 per Class A membership interest, for aggregate consideration of $415,000.
On July 27, 2022, we issued to the Placement Agents placement agent warrants to purchase one-half63,018 shares of one Class A membership interest, at a purchasecommon stock with an exercise price of $1.00 per unit, for aggregate consideration of $865,000.
On August 8, 2019, we issued and sold to investors in a private placement an aggregate of 1,248,750 units, each unit consisting of one Class A membership interest and one warrant to purchase one-half of one Class A membership interest, at a purchase price of $2.00 per unit, for aggregate consideration of $2,497,500.
On October 18, 2019, we issued and sold to investors in a private placement an aggregate of 483,501 units, each unit consisting of one Class A membership interest and one warrant to purchase one-half of one Class A membership interest, at a purchase price of $2.00 per unit, for aggregate consideration of $967,000.
On January 6, 2020, we issued and sold to investors in a private placement an aggregate of 182,002 units, each unit consisting of one Class A membership interest and one warrant to purchase one-fourth of one Class A membership interest, at a purchase price of $2.50 per unit, for aggregate consideration of $455,005.
On July 20, 2020, we issued and sold to investors in a private placement an aggregate of 533,900 Class A membership interests at a purchase price of $3.25 per Class A membership interest, for aggregate consideration of $1,735,175.
On October 16, 2020, we issued and sold to investors in a private placement an aggregate of 705,727 Class A membership interests at a purchase price of $3.25 per Class A membership interest, for aggregate consideration of $2,293,613.
None of the foregoing transactions involved any underwriters, underwriting discounts or commissions, or any public offering. We believe the offers, sales and issuances of the above securities were exempt from registration under the Securities Act (or Regulation D or Regulation S promulgated thereunder) by virtue of Section 4(a)(2) of the Securities Act because the issuance of securities to the recipients did not involve a public offering. The recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed upon the stock certificates issued in these transactions. All recipients had adequate access, through their relationships with us, to information about us. The sales of these securities were made without any general solicitation or advertising.
Service-Related Issuances
Prior to the Company’s initial public offering, the Company granted Class A Membership Interests to certain vendors in the ordinary course of business in exchange for consulting services relating to research and development activities and investor relations. The Company granted 30,145, 147,413, and 311,931 Class A Membership Interests for the years ended December 31, 2021, 2020 and 2019, respectively. During 2020, the Company also issued 10,077 warrants to purchase Class A Membership Interests to an investment banker for services relating to the October 2020 private placement.
In January 2020, the Company issued 312,680 Class A Membership Interests to its three executives to settle unpaid year-end compensation for 2019 and a year-end bonus award, which was approved by the board of directors.
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In January 2021, the Company issued 57,430 Class A Membership Interests to two of its executives to settle unpaid year-end bonus award and deferred compensation, which was approved by the board of directors.
On January 12, 2021, we issued 700,000 Class B membership interests to each of Messrs. Luci and DeLuccia in accordance with their respective employment agreements as amended and then in effect for services rendered in accordance with their respective employment agreements, as amended. The issuance of our securities in settlement of these accounts was made pursuant to Section 4(a)(2) and Rule 506(b) of the Securities Act. Such Class B membership interests were subsequently cancelled in March 2021.
The above mentioned issuances of unregistered securities do not reflect the conversion ratio of one-half of one share of common stock of Acurx Pharmaceuticals, Inc. for each Class A membership interest or Class B membership interest of Acurx Pharmaceuticals, LLC which shall occur as part of our corporate conversion to take place prior to the effectiveness of this registration statement.
No underwriters were used in the foregoing transactions, and no discounts or commissions were paid. All sales of securities described above were exempt from the registration requirements of the Securities Act in reliance on Section 4(a)(2) of the Securities Act, Rule 701 promulgated under the Securities Act or Regulation D promulgated under the Securities Act, relating to transactions by an issuer not involving a public offering. All of the foregoing securities are deemed restricted securities for purposes of the Securities Act.
Item 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
EXHIBIT INDEX
NUMBER | DESCRIPTION | HEREWITH | INCORPORATED BY REFERENCE HEREIN FROM FORM OR SCHEDULE | FILING DATE | SEC FILE/ REG. NUMBER | |||||||
Form 8-K (Exhibit 1.1) | July 25, 2022 | 001-40536 | ||||||||||
S-1 (Exhibit 3.2) | May 27, 2021 | 333-256516 | ||||||||||
S-1 (Exhibit 3.3) | May 27, 2021 | 333-256516 | ||||||||||
4.1 | Form of | Form 8-K (Exhibit 4.1) | July 25, 2022 | 001-40536 | ||||||||
Form 8-K (Exhibit 4.2) | July 25, 2022 | 001-40536 | ||||||||||
Form 8-K (Exhibit 4.4) | July 25, 2022 | 001-40536 | ||||||||||
4.4 | Form of Common Stock | S-1 (Exhibit 4.1) | May 27, 2021 | 333-256516 | ||||||||
X |
10.11 | |||||
S-1 (Exhibit | ||||||||||||
S-1 (Exhibit 10.11) | May 27, 2021 | 333-256516 | ||||||||||
10-K (Exhibit 21.1) | March 16, 2022 | 001-40536 | ||||||||||
23.1 | Consent of CohnReznick | X | ||||||||||
X | ||||||||||||
X | ||||||||||||
# | Certain confidential portions of this Exhibit were omitted by means of marking such portions with brackets (“[***]”) because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed. |
+ | Denotes management compensation plan or contract. |
Item 17. Undertakings
We hereby undertake:
(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 of 1933 (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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(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 paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs 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.
(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 marking such portions with brackets (“[***]”) becausea post-effective amendment any of the identified confidential portions 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) are not materialEach 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) wouldEach prospectus required to be competitively harmful if publicly disclosed.
(5) 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 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 registered inthe offering of such names as required bysecurities at that time shall be deemed to be the underwriters to permit prompt delivery to each purchaser.
(6) 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. 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.
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Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-1 and has duly caused this registration statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in Staten Island,the City of New York, State of New York, on September 14, 2022.
ACURX PHARMACEUTICALS, INC. | ||
By: | /s/ David P. Luci | |
David P. Luci | ||
President and Chief Executive Officer |
SIGNATURES AND POWER OF ATTORNEY
We, the dayundersigned directors and officers of June 11, 2021.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-1 has been signed by the following persons in the capacities and on the dates indicated.
/s/ David P. Luci | President, Chief Executive Officer and Director (Principal Executive Officer) | September 14, 2022 | ||||||
David P. Luci | ||||||||
/s/ Robert G. Shawah | Chief Financial Officer | |||||||
Robert G. Shawah | (Principal Financial Officer and Principal Accounting | |||||||
/s/ Robert J. DeLuccia | Executive Chairman | |||||||
/s/ Carl V. Sailer | Director | |||||||
/s/ | September 14, 2022 | |||||||
Joseph C. Scodari | ||||||||
/s/ Thomas Harrison | Director | September 14, 2022 | ||||||
Thomas Harrison | ||||||||
/s/ Jack H. Dean | Director | September 14, 2022 | ||||||
Jack H. Dean | ||||||||
/s/ James Donohue | Director | September 14, 2022 | ||||||
James Donohue |