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, Esq. Jeffrey D. Cohan, Esq. Mintz, Levin, Cohn, Ferris, Glovsky 919 Third Avenue New York, | New York 212-935-3000 | Mark D. Wood, Esq. Katten Muchin Rosenman LLP 525 W. Monroe Street Chicago, Illinois 60661 312-902-5200 |
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 FEE
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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 | | |
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE SELLING STOCKHOLDER MAY NOT RESELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS DECLARED EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED JUNE 11, 2021
PRELIMINARY PROSPECTUS
Acurx Pharmaceuticals, Inc.
Shares of Common Stock
We are offering 2,500,000 shares of common stock on a firm commitment basis, assuming an initial public offering price per share of $6.00. This is our initial public offering and no public market currently exists for our common stock. We anticipate that the initial public offering price will be between $5.00 and $7.00 per share and will be determined at pricing, based on, among other factors, our future prospects and those of our industry in general, and our sales, earnings and certain other financial and operating information in recent periods. A description of the determination of the initial public offering price is included in “
We are an “emerging growth company” and a “smaller reporting company” as defined under the federal securities laws and, as such, have elected to comply with certain reduced public company reporting requirements for this prospectus and may elect to do socomply with reduced public company reporting requirements in future filings.
Investing in our common stock is highly speculative and involves a highsignificant degree of risk. See “
Per Share | Total | ||||||
Public offering price | $ | $ | |||||
Underwriting discounts and commissions(1) | $ | $ | |||||
Proceeds to us, before expenses | $ | $ |
(1) | See “Underwriting” on page 25 for additional information regarding underwriting compensation. |
The underwriters may also purchase up to read about factors you should consideran additional shares from us at the public offering price, less the underwriting discount, within 30 days from the date of this prospectus. If the underwriters exercise the option in full, the total underwriting discounts and commissions payable by us will be $ and the total proceeds to us, before buying shares of 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 underwriters expect to deliver the sharessecurities against payment in New York, New York on or about , 2021.2024.
Sole Bookrunner
Titan Partners Group
a division of American Capital L.P.Network 1 Financial Securities, Inc.
The date of this prospectus is , 2021
TABLE OF CONTENTS
THE OFFERING | 7 | ||||||
RISK FACTORS | |||||||
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS | |||||||
USE OF PROCEEDS | |||||||
MARKET FOR COMMON STOCK AND DIVIDEND POLICY | |||||||
25 | |||||||
LEGAL MATTERS | |||||||
28 | |||||||
WHERE YOU CAN FIND MORE INFORMATION | |||||||
INCORPORATION OF DOCUMENTS BY REFERENCE |
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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 incorporated by reference herein or any amendment thereto. In addition, this prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which we have referredthis prospectus is a part, and you may obtain copies of those documents as described below under “
We have not, and the underwriters have not, authorized anyone to giveprovide any information or to make any representation to yourepresentations other than those contained in this prospectus. This prospectus, does not constitute an offerthe documents incorporated by reference herein or in any free writing prospectuses prepared by or on behalf of us or to sellwhich 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 the solicitationin any applicable free writing prospectus is current only as of an offer to buyits date, regardless of its time of delivery or any sale of our sharessecurities. Our business, financial condition, results of common stock other thanoperations and prospects may have changed since that date.
For investors outside the sharesUnited States: we have not, and the underwriters have not, done anything that would permit this offering or possession or distribution of our common stock covered hereby, nor does this prospectus constitute an offer to sell or the solicitation of an offer to buy any securities in any jurisdiction to any person to whom itwhere action for that purpose is unlawful to make such offer or solicitationrequired, other than in such jurisdiction.the United States. Persons outside the United States who come into possession of this prospectus in jurisdictions outside the United States are required tomust inform themselves about, and to observe any restrictions asrelating to, the offering of the securities and the distribution of this prospectus outside the United States.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been or will be filed or have been or will be incorporated by reference as exhibits to the registration statement of which this prospectus forms a part, and you may obtain copies of those documents as described in this prospectus under the heading “Where You Can Find More Information.”
Unless the context otherwise requires, “Acurx,” “ACXP,” “the Company,” “we,” “us,” “our” and similar terms refer to Acurx Pharmaceuticals, Inc.
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.
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The following is a summary of what we believe to be the most important aspects of our business and the offering of our securities under this prospectus. We urge you to read this entire prospectus, including the more detailed audited and unaudited financial statements, notes to the financial statements and other information incorporated by reference from our other filings with the SEC or included in any applicable prospectus supplement. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth in any prospectus supplements and in our most recent annual and quarterly filings with the SEC, as well as other information in this prospectus and any prospectus supplements and the documents incorporated by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities.
Overview
We are a late-stage biopharmaceutical company focused on developing a new class of small molecule antibiotics for difficult-to-treat bacterial infections. Our approach is to develop antibiotic candidates with a Gram-positive selective spectrum (“GPSS®”) that block the active site of the Gram positive specific bacterial enzyme deoxyribonucleic acid (“DNA”) polymerase IIIC ("pol IIIC”), inhibiting DNA replication and leading to Gram-positive bacterial cell death. Our research and development (“R&D”) pipeline includes antibiotic product candidates that target Gram-positive bacteria, including Clostridioides difficile, methicillin-resistant Staphylococcus aureus (“MRSA”), vancomycin resistant Enterococcus (“VRE”) and drug-resistant Streptococcus pneumoniae (“DRSP”).
These bacterial targets are listed as priority pathogens by the World Health Organization (“WHO”), the United States (“U.S.”) Centers for Disease Control and Prevention (“CDC”) and the U.S. Food and Drug Administration (“FDA”). Priority pathogens are those jurisdictions.which require new antibiotics to address the worldwide crisis of antimicrobial resistance (“AMR”) as identified by the WHO, CDC and FDA.
Our Market Opportunity
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 recent 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.
We believe we are developing the first DNA pol IIIC inhibitor to enter Phase 3 clinical trials and have clinically validated the efficacy of our lead pol IIIC antibiotic candidate in a Phase 2 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-stage antibiotic candidates that target Gram-positive bacteria for oral and/or parenteral treatment of infections caused by Clostridioides difficile (“C. difficile”), Enterococcus (including VRE), Staphylococcus (including MRSA), and Streptococcus (including antibiotic resistant strains).
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 C. difficile, MRSA, vancomycin-resistant Enterococcus, penicillin-resistant Streptococcus pneumonia (“PRSP”) and other resistant bacteria.
We have now “de-risked” this new class of antibiotics through our drug development activities as we advance to Phase 3 clinical trials by demonstrating proof of principal in Phase 2 human efficacy studies that demonstrate comparable efficacy to the standard of care with no drug related side effects and a positive impact on the microbiome of patients with C. difficile infections (“CDI”). We expect to partner with a fully-integrated pharmaceutical company for late-stage clinical trials and commercialization or conduct Phase 3 clinical trials prior to such partnership and continue to review partnership opportunities on an ongoing basis up to FDA approval.
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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. Phase 2 clinical data validate the efficacy of our lead antibiotic candidate as well as pol IIIC as an appropriate bacterial target.
Our Lead Product Candidate
Currently available antibiotics used to treat CDI utilize other mechanisms of action. We believe ibezapolstat is the first antibiotic candidate to work by blocking the DNA pol IIIC enzyme in C. difficile. This enzyme is necessary for replication of the DNA of certain Gram-positive bacteria, like C. difficile.
Our Other Candidates
We also have an early-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.
We continue to evaluate strategic transactions for the Company, including a partner for the further development and potential commercialization of our lead antibiotic candidate, ibezapolstat, as well as a potential sale, merger, third-party licensing arrangement or other strategic transaction. At this time, we have no commitments from potential partners or others to provide the Company with capital.
Recent Developments
Completion of Phase 2b Clinical Trial
On October 2, 2023, we discontinued our Phase 2b clinical trial of our lead antibiotic candidate, ibezapolstat, targeting the treatment of patients with CDI and anticipate advancing to Phase 3 clinical trials more expeditiously than originally planned. We made the decision to discontinue the Phase 2b clinical trial in consultation with our medical and scientific advisors and statisticians based upon observed aggregate blinded data and other factors, including the cost to maintain clinical trial sites and slow enrollment due to COVID-19.
We determined that the Phase 2b clinical trial has performed as anticipated for each of ibezapolstat, our lead antibiotic candidate, and vancomycin, the control agent and a standard of care to treat patients with CDI, with high rates of clinical cure observed across the trial and no emerging safety concerns reported to date. Accordingly, the Independent Data Monitoring Committee will not be required to perform an interim analysis of the Phase 2b clinical trial data as originally planned but is supportive of our decision to early discontinue the Phase 2b clinical trial and will remain involved for our Phase 3 clinical trials. Prior to discontinuing the Phase 2b clinical trial, we notified FDA of our decision to early discontinue the trial. The trial was not discontinued due to safety concerns.
Top-Line Ibezapolstat Phase 2 Efficacy Results
On November 2, 2023, we announced top-line Phase 2 efficacy and safety results from the clinical trial of ibezapolstat in patients with CDI. The overall observed Clinical Cure rate in the combined Phase 2 trials in patients with CDI was 96% (25 out of 26 patients), based on 10 out of 10 patients (100%) in Phase 2a in the modified intent to treat population, plus 15 out of 16 (94%) patients in Phase 2b in the per protocol population, who experienced Clinical Cure during treatment with ibezapolstat. Ibezapolstat was well-tolerated, with three patients each experiencing one mild adverse event assessed by the blinded investigator to be drug-related. All three events were gastrointestinal in nature and resolved without treatment. There were no drug-related treatment withdrawals or no drug-related serious adverse events, or other safety findings of concern. In the Phase 2b vancomycin control arm, 14 out of 14 patients experienced clinical cure. We believe that, based on the pooled Phase 2 ibezapolstat clinical cure rate of 96% and the historical vancomycin cure rate of approximately 81% (Vancocin® Prescribing Information, January 2021), we will demonstrate non-inferiority of ibezapolstat to vancomycin in Phase 3 trials in accordance with the applicable FDA Guidance for Industry (October 2022). The Phase 2b clinical trial met the protocol primary objective of assessing the primary efficacy endpoint of the Clinical Cure rate after 10 days of oral treatment. Further analyses will be forthcoming regarding secondary and exploratory endpoints, including Sustained Clinical Cure data, Extended Clinical Cure data up to 94 days and comparative effects on the gut microbiome.
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We are currently preparing for an End-of-Phase 2 Meeting with FDA and advancement to Phase 3.
2023 At-the-Market Offering
On November 15, 2023, we entered into a Sales Agreement and established an “ATM Program,” pursuant to which we may offer and sell, from time to time through A.G.P/Alliance Global Partners, as sales agent, shares of our common stock having an aggregate offering price of up to $17.0 million. Under the Sales Agreement, the sales agent is entitled to compensation of 3.0% of the gross offering proceeds of all shares of common stock sold through it pursuant to the Sales Agreement.
As of the year ended December 31, 2023, we sold 698,121 shares of our common stock under the ATM Program at a weighted-average price of $3.76 per share, raising $2.6 million of gross proceeds and net proceeds of $2.4 million, after deducting commissions to the sales agent and other ATM Program related expenses. There remains approximately $14.4 million available for future sales of shares of common stock under the Sales Agreement.
2023 Registered Direct Offering
On May 16, 2023, we entered into a Securities Purchase Agreement (the “Purchase Agreement”) with a single healthcare-focused U.S. institutional investor named therein (the “2023 Investor”), pursuant to which we issued and sold, in a registered direct offering by us directly to the 2023 Investor (the “2023 Registered Offering”), an aggregate of 601,851 shares of common stock at an offering price of $3.00 per share and an aggregate of 731,482 pre-funded warrants exercisable for shares of common stock at an offering price of $2.9999 per pre-funded warrant. The pre-funded warrants sold to the 2023 Investor have an exercise price of $0.0001 and were immediately exercisable. As of September 30, 2023, all of the pre-funded warrants were exercised.
The gross proceeds to us from the 2023 Registered Offering were approximately $4.0 million and net proceeds after deducting the placements agent’s fees and other offering expenses payable by us were approximately $3.5 million. The securities were offered by us pursuant to a registration statement on Form S-3 (File No. 333-265956) previously filed with the SEC on July 1, 2022, and which was declared effective by the SEC on July 11, 2022.
In a concurrent private placement (the “2023 Private Placement” and, together with the 2023 Registered Offering, the “2023 Offerings”), we issued to the 2023 Investor Series C Warrants exercisable for an aggregate of 1,333,333 shares of common stock at an exercise price of $3.26 per share and Series D Warrants exercisable for an aggregate of 1,333,333 shares of common stock at an exercise price of $3.26 per share. Each Series C Warrant was exercisable commencing on November 18, 2023 and will expire on November 18, 2025. Each Series D Warrant was exercisable commencing on November 18, 2023 and will expire on November 19, 2029.
The 2023 Offerings closed on May 18, 2023.
In connection with the 2023 Offerings, we also entered into a Warrant Amendment Agreement with the 2023 Investor. Under the Warrant Amendment Agreement, we amended our existing Series A Warrants to purchase up to an aggregate of 1,230,769 shares of our common stock and Series B Warrants to purchase up to an aggregate of 1,230,769 shares of our common stock (collectively, the “Existing Warrants”) that were previously issued in July 2022, such that, effective upon the closing of the 2023 Offerings, the Existing Warrants were amended to have a termination date of May 18, 2029.
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Implications of Being an Emerging Growth Company
We are an emerging“emerging growth company,company” as defined underin the Jumpstart Our Business Startups Act of 2012, as amended (the “JOBS Act”). The JOBS Act provides thatWe will remain an emerging growth company can delay adopting new or revised accounting standards until such time as those standards apply to private companies. We cannot predict if investors will find our common stock less attractive because we may rely on these exemptions. If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price may be more volatile.
Smaller Reporting Company·
· 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 availed ourselves in this Prospectus of the reduced reporting requirements described above with respect to compensation disclosure requirements and selected financial data. As a result, the information that we provide stockholders and potential investors may be less comprehensive than what other public companies provide. When we are no longer deemed to be an emerging growth company, we will not be entitled to the exemptions provided in the JOBS Act discussed above. We have not elected to avail ourselves of the exemption that allows emerging growth companies to extend the transition period for complying with new or revised financial accounting standards. This election is irrevocable.
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 a 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,”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
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 applicable provisions ofsection entitled “Risk Factors” in this prospectus and in our Annual Report on Form 10-K for the Fixing America’s Surface Transportation Act, we are omitting our financial statements for periods prior to thefiscal year ended December 31, 2019 because they relate to historical periods that we believe will not be required to be included in the prospectus at the time of the offering. We intend to amend this registration statement to include all financial information required2023, which is incorporated herein by Regulation S-X at the date of such amendmentreference. You should read those risks before distributing a preliminary prospectus to investors.
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Corporate Information and research and development activities, in each case, with key vendors. We believe that the COVID-19 pandemic has highlighted the importance of antibiotic development in responding to global health issues particularly because many hospitalized COVID-19 patients were also prescribed antibiotics which only accelerates the current antimicrobial resistance crisis described by several regulatory bodies worldwide.
We were organized as a limited liability company in the State of Delaware in July 2017, and we commenced operations in February 2018 upon acquiring the rights to 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 and shall not be deemed to bea part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference. Investors should not rely on any such information in deciding whether to purchase our common stock. Immediately prior to the effectiveness of the registration statement of which this prospectus formsOn June 23, 2021, we converted from a part, Acurx Pharmaceuticals, LLC will convertDelaware limited liability company into a Delaware corporation pursuant to a statutory conversion and will change itschanged our name to Acurx Pharmaceuticals, Inc. See “
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Shares of Common Stock to Be Offered | shares. | |
Common Stock to Be Outstanding after this Offering | shares of common stock, or shares of common stock if the underwriters exercise their option to purchase additional shares of common stock in full. | |
Option to Purchase Additional Shares | We have granted a 30-day option to the underwriters to purchase up to an aggregate of additional shares of common stock from us at the public offering price, less underwriting discounts and commissions, on the same terms as set forth in this prospectus. | |
Use of Proceeds | We estimate that we will receive net proceeds from the sale of shares of our common stock in this offering of approximately $ , or $ if the underwriters exercise their option to purchase additional shares in full, assuming a public offering price of $ per share, which was the last reported sale price of our common stock on The Nasdaq Capital Market on , 2024, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. We intend to use the net proceeds from this offering primarily for working capital and other general purposes, including, but not limited to, clinical trials, research and development activities, capital expenditures, investments, acquisitions, should we choose to pursue any, and collaborations. See “Use of Proceeds” on page 13 of this prospectus for additional information. | |
Nasdaq Capital Market Symbol | ACXP. | |
Risk Factors | Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 8 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. |
The number of common stock, based on an assumed initial public offering price per share of $6.00, which is the midpoint of the price range set forth on the cover page of this prospectus.
· | 6,195,456 shares of common stock issuable upon the exercise of outstanding warrants with a weighted average exercise price of $3.28 per share; | |
· | 2,985,000 shares of our common stock issuable upon the exercise of stock options, with a weighted-average exercise price of $5.64 per share; and | |
· | 485,868 shares of common stock reserved for future issuance pursuant to future awards under our 2021 Equity Incentive Plan. |
Unless otherwise indicated, all information in this prospectus assumes no exercise of the underwriter’s over-allotment option;
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 | | |
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Investing in our common stocksecurities 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 below, together with allunder the heading “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2023. Any of the risks and uncertainties set forth below and in the Annual Report, as updated by annual, quarterly and other informationreports 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.
Risks Related to this Offering and Ownership of Our Common Stock
If you purchase our common stock in this offering, you will incur immediate and substantial dilution in the book value of your shares.
The public offering price will be substantially higher than the pro forma as adjusted net tangible book value per share of our common stock after this offering. Investors purchasing common stock in this offering will pay a price per share that substantially exceeds the pro forma as adjusted net tangible book value per share after this offering. As a result, investors purchasing common stock in this offering will incur immediate dilution of $ per share, based on the public offering price of $ per share, representing the difference between our pro forma as adjusted net tangible book value per share after giving effect to this offering and the public offering price. This dilution is due to our investors who purchased shares prior to this offering having paid substantially less when they purchased their shares than the price offered to the public in this offering. To the extent outstanding options and warrants are exercised, there will be further dilution to new investors. For a further description of the dilution that you will experience immediately after this offering, see the section in this prospectus including our financial statements and notes thereto, before deciding whether to investentitled “Dilution.”
A substantial number of shares of common stock may be sold in the market following this offering, which may depress the market price for our common stock. The risks and uncertainties described below are not
If our existing stockholders sell, or indicate an intention to sell, substantial amounts of our common stock in the only ones we face. Additional risks and uncertainties that we are unaware of, or that we currently believe are not material, may also become important factors that affect us. If any ofpublic market, the following risks occur, our business, operating results and prospects could be materially harmed. In that event, thetrading price of our common stock could decline,decline. Based on shares of common stock outstanding as of December 31, 2023, upon the completion of this offering we will have outstanding a total of shares of common stock, assuming no exercise of the underwriters’ option to purchase an additional shares. Of these shares, as of the date of this prospectus, shares of common stock, including the shares of common stock sold in this offering by us, plus any shares sold upon exercise of the underwriters’ option to purchase an additional shares, will be freely tradable, without restriction, in the public market immediately following this offering, assuming that our current directors and you could lose partofficers do not purchase shares in this offering. The remaining shares are subject to lock-up restrictions. The lock-up agreements pertaining to this offering will expire 45 days following the closing of the offering to which this prospectus relates, subject to earlier release of all or a portion of the shares subject to such agreements by the representative of the underwriters in this offering in its sole discretion. After the lock-up agreements expire, based upon the number of shares of common stock outstanding as of December 31, 2023, up to an additional shares of common stock will be eligible for sale in the public market, all of your investment.
As of March 15, 2024, there were 3,820,000 shares subject to outstanding options, which options have a weighted average exercise price of $5.10 per share under our equity compensation plan. The shares of common stock underlying these equity awards have been registered under the Securities Act and can be freely sold in the public market upon issuance, subject to the lock-up agreements described herein, to the extent applicable. Additionally, the number of shares of our common stock reserved for issuance under our 2021 Equity Incentive Plan, or the 2021 Plan, can automatically increase on January 2 of each year, beginning on January 2, 2022, by 4% of the total number of shares of our capital stock outstanding on such date, or a lesser number of shares determined by our board of directors. As of March 15, 2024, we had outstanding warrants exercisable for up to 6,136,245 shares with a weighted average exercise price of $3.28 per share. The shares of our common stock underlying such warrants will, upon issuance, be freely tradeable without restriction or further registration under the Securities Act.
8 |
There may be future sales of our common stock, which could adversely affect the market price of our common stock and dilute a stockholder’s ownership of common stock.
The sale of our common stock resulting from any future exercise(s) of (a) options granted to Our Business
We have a very limitedbroad discretion to determine how to use the funds raised in this offering and may use them in ways that may not enhance our operating history and are expected to incur significant operating losses duringresults or the early stageprice of our corporate development.
Our management will have broad discretion over the use of net proceeds from this offering, and we acquiredcould spend the rightsnet proceeds from this offering in ways our stockholders may not agree with or that do not yield a favorable return, if at all. We currently expect to our lead product candidate, ibezapolstat, in February 2018. We have a limited operating history. Our operations to date have beenuse the net proceeds from this offering for working capital and other general purposes, including, but not limited to, securing our initial product candidate, generating a second product candidate in-house, conducting clinical trials, research and regulatory development for our lead program and raising capital.
Our independent registered public accounting firm has expressed substantial doubt about our ability to continue as a going concern.
Our independent registered public accounting firm noted in its report accompanying our financial statements for the fiscal year ended December 31, 20202023 that we had suffered significant accumulated deficit and had negative operating cash flows and that the development and commercialization of our product candidates are expected to require substantial expenditures. We have not yet generated any material revenues from our operations to fund our activities, and are therefore dependent upon external sources for financing our operations. There can be no assurance that we will succeed in obtaining the necessary financing to continue our operations. As a result, our independent registered public accounting firm has expressed substantial doubt about our ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. If we cannot successfully continue as a going concern, our stockholders may lose their entire investment in our common stock.
We may need substantial additional funding. If we are unable to raise capital when needed, we could be forced to delay, reduce or eliminate our product development programs or commercialization efforts.
We expect our expenses to increase in connection with our ongoing activities, particularly as we continue research and development and initiate additional clinical trials of our product candidates and seek regulatory approval for these and potentially other product candidates. In addition, if we obtain regulatory approval for any of our product candidates, we expect to incur significant commercialization expenses related to product manufacturing, marketing, sales and distribution. In particular, the costs that may be required for the manufacture of any product candidate that receives marketing approval may be substantial. Accordingly, we may need to obtain substantial additional funding in connection with our continuing operations. If we are unable to raise capital when needed or on attractive terms, we could be forced to delay, reduce or eliminate our research and development programs or any future commercialization efforts.
9
As of December 31, 2023, we had approximately $7.5 million in cash. In June 2021, we completed the IPO for net cash proceeds of $14.8 million after deducting underwriting discounts and commissions and offering expenses. In July 2022, we completed a registered direct offering and concurrent private placement for net cash proceeds of $3.7 million after deducting placement agent fees and offering expenses. In May 2023, we completed a registered direct offering and concurrent private placement for net cash proceeds of $3.5 million after deducting placement agent fees and offering expenses. In November 2023, we entered into a Sales Agreement and established an ATM Program, pursuant to which we may be requiredoffer and sell, from time to time through A.G.P./Alliance Global Partners, as sales agent, shares of our common stock having an aggregate offering price of up to $17.0 million. As of the year ended December 31, 2023, we sold 698,121 shares of our common stock under the ATM Program, at a weighted-average price of $3.76 per share, raising $2.6 million of gross proceeds and net proceeds of $2.4 million after deducting commissions to the sales agent and other ATM Program related expenses. There remains approximately $14.4 million available for future sales of shares of common stock under the Sales Agreement. Other than the Sales Agreement and this offering, we currently do not have any commitments to obtain further funding through public or private equity offerings, debt financings, collaborations or licensing arrangements or other sources. Adequate additional funding mayfunds. We believe that, based upon our current operating plan, our existing capital resources, will not be availablesufficient to us on acceptable terms orfund our anticipated operations for at all. Our failure to raise capital as and when needed would have a negative impact onleast 12 months from the issuance of our financial conditionstatements for the year ended December 31, 2023. Our future capital requirements and the period for which we expect our abilityexisting resources to pursuesupport our business strategy.
Our future capital requirements will depend on many factors, including:
· | the timing, progress, and results of our ongoing and planned clinical trials of our product candidates; |
· | our ability to manufacture sufficient clinical supply of our products candidates and the costs thereof; |
· | discussions with regulatory agencies regarding the design and conduct of our clinical trials and the costs, timing and outcome of regulatory review of our product candidates; |
· | the cost and timing of future commercialization activities, including product manufacturing, marketing, sales and distribution, for any of our product candidates for which we receive marketing approval; |
· | the costs of any other product candidates or technologies we pursue; |
· | our ability to establish and maintain strategic partnerships, licensing or other arrangements and the financial terms of such agreements; |
· | the revenue, if any, received from commercial sales of any product candidates for which we receive marketing approval; and |
· | the costs and timing of preparing, filing and prosecuting patent applications, maintaining and enforcing our intellectual property rights and defending any intellectual property-related claims. |
We cannot be certain that takes years to complete, and we may never generate the necessary data or results required to obtain regulatory approval and achieve product sales. In addition, our product candidates, if approved, may not achieve commercial success. Our commercial revenues, if any,additional funding will be derived from sales of products that we do not expect to be commercially available for several years, if at all. Accordingly, we will need to continue to rely on additional financing to achieve our business objectives. Adequate additional financing may not be available to us on acceptable terms, or at all. In addition, we may seek additional capital due to favorable market conditions or strategic considerations, even if we believe we have sufficient funds for our current or future operating plans. We also have certain restrictions on issuing shares and incurring indebtedness that are part of our investor rights agreement.
Any of the operating performanceabove events could significantly harm our business, prospects, financial condition and results of our competitors, including changes in market valuations of similar companies;
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This prospectus contains forward-looking statements. You can generally identifyand the documents incorporated by reference in this prospectus include forward-looking statements by our usewithin the meaning of forward-looking terminology suchSection 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “potential,” “predict,” “seek,” “will” or “should,” or the negative thereof or other variations thereon or comparable terminology. In particular, statements about the markets in which we operate and statements about our expectations, beliefs, plans, strategies, objectives, prospects, assumptions oramended (the “Exchange Act”), that relate to future events or performance contained in this prospectus under the headings “
· | our ability to obtain and maintain regulatory approval of ibezapolstat and/or our other product candidates; | |
· | our ability to successfully commercialize and market ibezapolstat and/or our other product candidates, if approved; | |
· | our ability to contract with third-party suppliers, manufacturers and other service providers and their ability to perform adequately; | |
· | the potential market size, opportunity and growth potential for ibezapolstat and/or our other product candidates, if approved; | |
· | our ability to build our own sales and marketing capabilities, or seek collaborative partners, to commercialize ibezapolstat and/or our other product candidates, if approved; | |
· | our ability to obtain funding for our operations; | |
· | the initiation, timing, progress and results of our preclinical studies and clinical trials, and our research and development programs; | |
· | the timing of anticipated regulatory filings; | |
· | the timing of availability of data from our clinical trials; | |
· | the impact of the ongoing COVID-19 pandemic and our response to it; | |
· | the accuracy of our estimates regarding expenses, capital requirements and needs for additional financing; | |
· | our ability to retain the continued service of our key professionals and to identify, hire and retain additional qualified professionals; | |
· | our ability to advance product candidates into, and successfully complete, clinical trials; | |
· | our ability to recruit and enroll suitable patients in our clinical trials and the timing of enrollment; | |
· | the timing or likelihood of the accomplishment of various scientific, clinical, regulatory and other product development objectives; | |
· | the pricing and reimbursement of our product candidates, if approved; | |
· | the rate and degree of market acceptance of our product candidates, if approved; | |
· | the implementation of our business model and strategic plans for our business, product candidates and technology; | |
· | the scope of protection we are able to establish and maintain for intellectual property rights covering our product candidates and technology; | |
· | developments relating to our competitors and our industry; |
11 |
· | the development of major public health concerns, including the novel coronavirus outbreak or other pandemics arising globally, and the future impact of it and COVID-19 on our clinical trials, business operations and funding requirements; | |
· | the effects of the recent disruptions to and volatility in the credit and financial markets in the United States and worldwide from the conflict between Russia and Ukraine as well as the conflict in the Middle East between Israel and Hamas; | |
· | the volatility of the price of our common stock; | |
· | our financial performance; and | |
· | other factors described from time to time in documents that we file with the SEC. |
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 those expressed or impliedthe 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 forward- looking statements include:
In light of these assumptions, risks and uncertainties, the results and events discussed in the forward-looking statements contained in this prospectus andor in any document incorporated herein by reference might not occur. Investors are cautioned not to place undue reliance on the documents that weforward-looking statements, which speak only as of the date of this prospectus or the date of the document incorporated by reference in this prospectusprospectus. We are not under any obligation, and have filed withwe expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of new information, future events or otherwise. All subsequent forward-looking statements attributable to us or to any person acting on our behalf are expressly qualified in their entirety by the SEC, as exhibitscautionary statements contained or referred to the registration statement of whichin this prospectus is a part with the understanding that our actual future results, levels of activity, performance, and events and circumstances may be materially different from what we expect.
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We estimate that the net proceeds to us from the sale of shares of common stock in this offering will be approximately $12.7 million, based on an assumed initial$ , or approximately $ if the underwriters exercise their option to purchase additional shares of common stock, assuming a public offering price of $6.00$ per share of common stock, which iswas the midpoint of the estimatedlast reported sale price range set forthper common share on the cover of this prospectus,The Nasdaq Capital Market on , 2024, and after deducting theestimated underwriting discounts and commissions and estimated offering expenses payable by us and assuming no exercise of the underwriter’s over-allotment option. If the underwriters exercise their over-allotment option in full, we estimate that our net proceeds will be $14.8 million based on an assumed initial public offering price of $6.00 per share, which is the midpoint of the estimated price range set forth on the cover of this prospectus, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us.
The expected use of net proceeds from this offering reflects our intentions based on our current plans and business conditions, which could change in the future as our plans and business conditions evolve. As of the date of this prospectus, we expect ACX-375Ccannot predict with certainty all of the particular uses for the net proceeds to be IND ready,received upon the completion of this offering or ready for testing in clinical trials.
Each $1.00 increase (decrease)or decrease in the assumed initial public offering price of $6.00$ per share, which is the midpointlast reported sale price of the estimated price range set forthour common stock on the cover of this prospectus,Nasdaq Capital Market on , 2024, would increase (decrease)or decrease the net proceeds to us from this offering by approximately $2.3$ million, assuming the number of shares of common stock offered by us, as set forth on the cover of this prospectus, remains the same and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us and assuming no exercise of the underwriter’s over-allotment option.us. We may also increase or decrease the number of shares of common stock that we are offering. An increase or decrease of 1.0 million shares of common stock in the number of200,000 shares of common stock offered by us would increase or decrease the net proceeds to us from this offering by approximately $5.5$ million, assuming the sale of all shares of common stock offered hereby, based on an assumed public offering price of $ per share, the last reported sale price of our common stock on the Nasdaq Capital Market on , 2024, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us.
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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 on March 15, 2024 on the Nasdaq Capital Market was $2.72 per share. As of March 15, 2024, there were 362 stockholders of record 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.
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The following table sets forth our capitalization as December 31, 2023:
· | on an actual basis; | |
· | on a pro forma basis, after giving effect to the sale of 1,139,662 shares of our common stock under the ATM Program after December 31, 2023; and | |
· | on a pro forma as adjusted basis, after giving effect to (i) the pro forma adjustments set forth above and (ii) the sale of shares of our common stock in this offering based on an assumed public offering price of $ per share, which was the last reported sale price of our common stock on the Nasdaq Capital Market on , 2024, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. The final public offering price will be determined through negotiation between us and the underwriters in the offering and may be at a discount to the current market price. Therefore, the assumed offering price used throughout this prospectus may not be indicative of the final public offering price. The pro forma as adjusted information set forth in the table below is illustrative only and will be adjusted based on the actual public offering price and other terms of this offering determined at pricing. |
You should read this table together with our financial statements and the related notes thereto, as well as “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the other financial information, incorporated by reference in this prospectus from our SEC filings, including our Annual Report on Form 10-K, our Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K. The information presented in the capitalization table below is unaudited.
December 31, 2023 | ||||||||
(in thousands, except share and par value data) | ||||||||
Actual | Pro Forma | Pro Forma As Adjusted | ||||||
Cash and cash equivalents | $ | 7,474 | 11,774 | |||||
Shareholders’ equity | ||||||||
Common Stock; $0.001 par value, 200,000,000 shares authorized 14,468,229 shares issued and outstanding, actual, 15,607,891 shares issued and outstanding, pro forma, shares issued and outstanding, pro forma as adjusted | 14 | 16 | ||||||
Additional paid-in capital | 57,871 | 62,040 | ||||||
Accumulated deficit | (53,219 | ) | (53,219 | ) | ||||
Total shareholders’ equity | 4,667 | 8,837 | ||||||
Total capitalization | $ | 4,667 | 8,837 |
A $1.00 increase or decrease in the assumed public offering price of $ per share, the last reported sale price of our common stock on the Nasdaq Capital Market on , 2024, would increase or decrease our cash and cash equivalents, additional paid in capital, and total stockholders’ equity on a pro forma as adjusted basis, by approximately $ million, after deducting underwriting discounts and commissions and estimated offering expenses payable by us, and assuming no exercise of the underwriter’s over-allotment option and that the initial public offering pricenumber of such shares of common stock remainsoffered by us, as set forth on the cover page of this prospectus, remains the same. Conversely, a
An increase or decrease of 1.0 million shares of common stock in the number of200,000 shares of common stock offered by us, assuming that the assumed public offering price remains the same, would increase or decrease the netgross proceeds received by us by approximately $ million.
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The table and discussion above are based on 14,468,229 shares of common stock outstanding as of December 31, 2023, and the pro forma column in the table above is based on 15,607,891 shares of common stock outstanding as of December 31, 2023 on a pro forma basis, after giving effect to us fromthe issuance of 1,139,662 shares under the ATM Program since December 31, 2023, and excludes, as of such date, the following:
· | 6,195,456 shares of common stock issuable upon the exercise of outstanding warrants with a weighted average exercise price of $3.28 per share; |
· | 2,985,000 shares of our common stock issuable upon the exercise of stock options, with a weighted-average exercise price of $5.64 per share; and |
· | 485,868 shares of common stock reserved for future issuance pursuant to future awards under our 2021 Equity Incentive Plan. |
Unless otherwise indicated, the discussion and table above assume no exercise of the outstanding options and warrants described above after December 31, 2023 and no exercise by the underwriters of their option to purchase additional shares of our common stock.
16 |
If you invest in our common stock in this offering, your ownership interest will be diluted to the extent of the difference between the public offering price per share of our common stock in this offering and the pro forma as adjusted net tangible book value per share of our common stock after the closing of this offering.
As of December 31, 2023, our historical net tangible book value was $4.7 million, or $0.32 per share of common stock. Our historical net tangible book value per share is equal to our total tangible assets, less total liabilities, divided by the number of outstanding shares of common stock as of December 31, 2023.
On a pro forma basis, after giving effect to the sale of 1,139,662 shares of our common stock under the ATM Program after December 31, 2023, our pro forma net tangible book value as of December 31, 2023 would have been approximately $5.5$8.8 million, or approximately $0.57 per share of our common stock.
After giving further effect to the sale of shares of common stock in this offering based on an assumed public offering price of $ per share (which was the last reported sale price of our common stock on the Nasdaq Capital Market on , 2024), and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us, our pro forma as adjusted net tangible book value as of December 31, 2023 would have been $ million, or $ per share of common stock. This represents an immediate increase in pro forma as adjusted net tangible book value of $ per share to our existing shareholders and assuming no exercisean immediate dilution of $ per share to investors participating in this offering based on the underwriter’s over-allotment option and thatassumed public offering price. We determine dilution per share to investors participating in this offering by subtracting pro forma as adjusted net tangible book value per share after this offering from the initialassumed public offering price of such shares of common stock remains as set forth on the cover page ofper share paid by investors participating in this prospectus remains the same.offering. The as adjusted information discussed above is illustrative only and will adjustchange based on the actual initial public offering pricepricing and other terms of this offering determined at pricing.
The following table sets forth our cash and cash equivalents and capitalization as of March 31, 2021, as follows:
Assumed combined public offering price per share of common stock | $ | |||||
Historical net tangible book value per share as of December 31, 2023 | $ | 0.32 | ||||
Increase in historical net tangible book value per share as of December 31, 2023 attributable to the pro forma adjustments described above | $ | 0.25 | ||||
Pro forma net tangible book value per share as of December 31, 2023 | $ | 0.57 | ||||
Increase in pro forma net tangible book value per share as of December 31, 2023 attributable to investors purchasing shares in this offering | $ | |||||
Pro forma as adjusted net tangible book value per share as of December 31, 2023 after giving effect to this offering | ||||||
Dilution per share to new investors in this offering | $ |
Each $1.00 increase or decrease in the assumed public offering price of currently unvested board of director and corporate advisory council membership interests upon closing of$ per share, the public offering;
| | | 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 | | |
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If the underwriters exercise in full their option to purchase additional shares of the underwriter’s over-allotment option. An increase of 1.0 million shares in the number of shares offered by us would increaseour common stock, our pro forma as adjusted net tangible book value per share after this offering by $0.38would be $ per share, andrepresenting a decrease the dilution to new investors purchasing common stock in this offering to $4.07 per share, assuming the assumed initial public offering price remains the same and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us, and assuming no exercise of the underwriter’s over-allotment option. A decrease of 1.0 million shares in the number of shares offered by us would decrease our pro forma as adjusted net tangible book value per share after this offering by $0.45of $ to existing stockholders and dilution of $ in pro forma as adjusted net tangible book value per share and increase the dilution to new investors purchasing common stock in this offering to $4.90 per share, assumingoffering.
The foregoing table and discussion are based on 14,468,229 shares of common stock outstanding as of December 31, 2023, as adjusted for the assumed
· | 6,195,456 shares of common stock issuable upon the exercise of outstanding warrants with a weighted average exercise price of $3.28 per share; | |
· | 2,985,000 shares of our common stock issuable upon the exercise of stock options, with a weighted-average exercise price of $5.64 per share; and | |
· | 485,868 shares of common stock reserved for future issuance pursuant to future awards under our 2021 Equity Incentive Plan. |
Unless otherwise indicated, the discussion and commissions and estimated offering expenses payable by us and assumingtable above assume no exercise of the underwriter’s over-allotment option.
| | | 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 | | | |
To the extent that any outstanding exercisablewarrants or options or warrants are exercised, or new options or other securitiesequity awards are issued under our equity incentive plans, you may experienceor we issue additional shares in the future, there will be further dilution.dilution to new investors participating in this offering. In addition, we may choose to raise additional capital due to market conditions or strategic considerations, even if we believe we have sufficient funds for our current or future operating plans. To the extent that we raise additional capital by issuingis raised through the sale of equity or equity-based securities, or convertible debt, your ownership will bethe issuance of these securities could result in further diluted.
18 |
DESCRIPTION OF THE SECURITIES WE ARE OFFERING
We are offering shares of the corporate conversion:
| | | 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)% | | |
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 | | |
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 | | |
General
The following is a monthly basis over a 36-month period from the closingsummary of the offering, subject to accelerated vesting upon a Change of Control. In addition, each committee chairman will receive $750 per meeting and each committee member will receive $500 per committee meeting, in each case, for meetings attended by each such committee chairman and/or member.
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 | | |
| | | 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% | | |
Authorized Capital Stock
Our certificate of incorporation authorizes us to the effectiveness of the registration statement of which this prospectus forms a part.
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.
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.
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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 eliminateeliminates 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∕(66 2∕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∕(66 2∕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.
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Limitations on Liability and Indemnification of Officers and Directors
Our Certificatecertificate of Incorporationincorporation and Bylaws providesbylaws provide 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-heldpublicly 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:
· | before the stockholder became interested, the board of directors approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; |
· | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in some instances; or |
· | at or after the time the stockholder became interested, the business combination was approved by the board of directors of the corporation and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock that is not owned by the interested stockholder. |
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 beis 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.
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The following discussion is a summary of certainthe material U.S. federal income tax considerations applicable to non-U.S. holders (as defined below) with respect to theirconsequences of the acquisition, ownership and disposition of shares of our common stock, issued pursuantbut does not purport to this offering. For purposesbe a complete analysis of this discussion, a non-U.S. holder means a beneficial owner of our common stock that is for U.S. federal incomeall the potential tax purposes:
This discussionsummary also does not address all aspectsthe tax considerations arising under the laws of U.S. federal income taxation that may be relevant to a particular non-U.S. holder in light of that non-U.S. holder’s individual circumstances nor does it address any U.S. state or local or any non-U.S. taxes,jurisdiction, estate or gift tax, the 3.8% Medicare tax on net investment income or any alternative minimum tax consequences, or U.S. federal gift and estate tax laws, or any other aspect of any U.S. federal tax other than the income tax. This discussion also does not consider any specific facts or circumstances that may apply to a non-U.S. holder and does not address the special tax rules applicable to particular non-U.S. holders, such as:
· | banks, insurance companies or other financial institutions; | |
· | tax-exempt or government organizations; | |
· | brokers or dealers in securities or currencies; | |
· | persons whose functional currency is not the U.S. dollar; | |
· | persons required for U.S. federal income tax purposes to conform the timing of income accruals to their financial statements under Section 451(b) of the Code; | |
· | traders in securities that elect to use a mark-to-market method of accounting for their securities holdings; | |
· | persons that own, or are deemed to own, more than five percent of our capital stock; | |
· | certain U.S. expatriates, citizens or former long-term residents of the United States; | |
· | persons who hold our common stock as a position in a hedging transaction, “straddle,” “conversion transaction,” synthetic security, other integrated investment, or other risk reduction transaction; | |
· | persons who do not hold our common stock as a capital asset within the meaning of Section 1221 of the Code (generally, for investment purposes); | |
· | persons deemed to sell our common stock under the constructive sale provisions of the Code; | |
· | pension plans; | |
· | pass-through entities such as partnerships, S corporations, disregarded entities for federal income tax purposes and limited liability companies that are treated as a pass-through entity for U.S. federal income tax purposes (and investors therein); | |
· | persons for whom our stock constitutes “qualified small business stock” within the meaning of Section 1202 of the Code or as “Section 1244 stock” for purposes of Section 1244 of the Code; | |
· | integral parts or controlled entities of foreign sovereigns; | |
· | controlled foreign corporations (including “specified foreign corporations”); | |
· | tax-qualified retirement plans; | |
· | passive foreign investment companies and corporations that accumulate earnings to avoid U.S. federal income tax; or | |
· | persons that acquire our common stock as compensation for services. |
In addition, if a partnership, including any entity or arrangement classified as a partnership for U.S. federal income tax purposes, or persons that hold theirholds our common stock, throughthe tax treatment of a partner generally will depend on the status of the partner, the activities of the partnership, and certain determinations made at the partner level. Accordingly, partnerships or other pass-through entities. A partner in(including any arrangement classified as a partnership or other pass-through entityfor U.S. federal income tax purposes) that will hold our common stock, should consult his, her or its tax advisor regarding the tax consequences of acquiring, holding and disposing of our common stock through a partnership or other pass-through entity, as applicable.
You are urged to consult your tax advisor with respect to the application of the U.S. federal state, local and non-U.S.income tax laws to your particular situation, as well as any tax consequences of the purchase, ownership and disposition of our common stock.
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Definition of a U.S. Holder
For purposes of this summary, a “U.S. Holder” is any beneficial owner of our common stock that is a “U.S. person,” and is not a partnership, or an entity treated as a partnership or disregarded from its owner, each for U.S. federal income tax purposes. A U.S. person is any person that, for U.S. federal income tax purposes, is or is treated as any of the following:
· | an individual who is a citizen or resident of the United States; |
· | a corporation created or organized under the laws of the United States, any state thereof, or the District of Columbia; |
· | an estate, the income of which is subject to U.S. federal income tax regardless of its source; or |
· | a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more U.S. persons (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect to be treated as a U.S. person for U.S. federal income tax purposes. |
For purposes of this summary, a “Non-U.S. Holder” is any beneficial owner of our common stock that is not a U.S. Holder and is not a partnership, an entity treated as a partnership or an entity disregarded from its owner, in each case, for U.S. federal income tax purposes.
Tax Consequences to U.S. Holders
Distributions on Our Common Stock
As indicateddiscussed above under “Market for Common Stock and Dividend Policy,” we do not anticipate paying any dividends on our common stock in the “Dividend Policy” section of this prospectus, we have never declared or paid cash dividends on any of our capital stock and currently intend to retain all available funds and any future earnings to fund the development and growth of our business.
Gains on Sale or Other Disposition of Common Stock
For U.S. federal income tax purposes, gain or loss realized on the sale or other disposition of our common stock will be capital gain or loss and generally will be long-term capital gain or loss if the U.S. Holder held the common stock for more than one year. The amount of the gain or loss will equal the difference between the U.S. Holder’s tax basis in the common stock disposed of and the amount realized on the disposition. Long-term capital gains recognized by non-corporate U.S. Holders will be subject to reduced tax rates. The deductibility of capital losses is subject to limitations.
Tax Consequences to Non-U.S. Holders
Distributions on Common Stock
As discussed in the section entitled “Market for Common Stock and Dividend Policy ,” we do not anticipate paying any dividends on our common stock in the foreseeable future. If we make distributions on our common stock, those payments will constitute dividends for U.S. federal income tax purposes to the extent we have current or accumulated earnings and profits, as determined under U.S. federal income tax principles. To the extent those distributions exceed both our current and our accumulated earnings and profits, they will constitute a return of capital and will reduce a Non-U.S. Holder’s basis in our common stock but not below zero. Any remaining excess will be treated as capital gain and taxed as described below under “Gain on Sale or Other Taxable Disposition of Our Common Stock.” Any such distributions would be subject to the discussions below regarding back-up withholding and Foreign Account Tax Compliance Act, or FATCA.
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Subject to the discussion in the following two paragraphs in this section, dividendsbelow on effectively connected income, any dividend paid to a non-U.S. holderNon-U.S. Holder on our common stock generally will be subject to U.S. withholding of U.S. federal income tax either at a rate of 30% rateof the gross amount of the dividend or such lower rate as may be specified by an applicable income tax treaty. To receive a reduced treaty between the United States and such holder’s country of residence.
Dividends paid to a Non-U.S. Holder that is eligible for such lower rate of U.S. withholding tax as may be specified under an income tax treaty may obtain a refund or credit of any excess amounts withheld by timely filing a U.S. tax return with the IRS.
Gain on Sale or Other Disposition of Common Stock
Subject to the United Statesdiscussion below regarding backup withholding and such holder’s country of residence) on the net gain derived from the disposition, which mayFATCA, a Non-U.S. Holder generally will not be offset by certain U.S. source capital losses of the non-U.S. holder, if any (even though the individual is not considered a resident of the United States), provided that the non-U.S. holder has timely filedrequired to pay U.S. federal income tax returns with respect to such losses; or
· | the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States and not eligible for relief under an applicable income tax treaty, in which case the Non-U.S. Holder will be required to pay tax on the net gain derived from the sale under regular graduated U.S. federal income tax rates, and for a Non-U.S. Holder that is a corporation, such Non-U.S. Holder may also be subject to the branch profits tax at a 30% rate (or such lower rate as may be specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items; |
· | the Non-U.S. Holder is an individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs (as calculated pursuant to Section 7701(b) of the Code) and certain other conditions are met, in which case the Non-U.S. Holder will be required to pay a flat 30% tax on the gain derived from the sale, which tax may be offset by U.S. source capital losses (even though the Non-U.S. Holder is not considered a resident of the United States) (subject to applicable income tax or other treaties); or |
· | we are a “U.S. real property holding corporation” for U.S. federal income tax purposes, or a USRPHC, at any time within the shorter of the five-year period preceding the disposition or the Non-U.S. Holder’s holding period for our common stock. We believe we are not currently and do not anticipate becoming a USRPHC. Even if we become a USRPHC, however, gain arising from the sale or other taxable disposition by a Non-U.S. Holder of our common stock will not be subject to United States federal income tax if (a) shares of our common stock are “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market, such as Nasdaq, and (b) the Non-U.S. Holder owns or owned, actually and constructively, 5% or less of the shares of our common stock throughout the five-year period ending on the date of the sale or exchange. |
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Information Reporting and Backup Withholding
Information returns will be filed with the IRS in connection with distributions on our common stock and the proceeds of a sale or other disposition of our common stock. A non-exempt U.S. Holder may be subject to U.S. federal income tax as long as our common stockbackup withholding on these payments if it fails to provide an IRS form W-9 to the withholding agent.
A Non-U.S. Holder may be subject to U.S. information reporting and backup withholding on dividend payments unless the Non-U.S. Holder complies with certification procedures to establish that it is regularly traded on an established securities market, as defined by applicablenot a U.S. Treasury Regulations, andperson (within the non-U.S. holder holds no more than 5% of our outstanding common stock, directly or indirectly, actually or constructively, during the shortermeaning of the 5-year period endingCode). The certification requirements generally will be satisfied if the Non-U.S. Holder provides the applicable withholding agent with a statement on the dateapplicable IRS Form W-8BEN or IRS Form W-8BEN-E (or suitable substitute or successor form), together with all appropriate attachments, signed under penalties of the disposition or the periodperjury, stating, among other things, that the non-U.S. holder held our common stock. If the foregoing exception does not apply, then if we are or were to become a U.S. real property holding corporation a purchaser may be required to withhold 15% of the proceeds payable to a non-U.S. Holder from a sale of our common stock and such Non-U.S. Holder generally will be taxed on its net gain derived from the disposition at the graduated U.S. federal income tax rates applicable to United States persons (as defined in the Code). Although there can be no assurance, we dois not believe that we are, or have been, a U.S. real property holding corporation, or that we are likely to become one in the future. No assurance can be provided that our common stock will be regularly traded on an established securities market for purposes of the rules described above. Non-U.S. holders should consult their own tax advisors about the consequences that could result if we are, or become, a U.S. real property holding corporation.
Payment of the proceeds of the sale or other disposition of common stock to or through a non-U.S. holder resides or is incorporated under the provisionsoffice of a specific treatyU.S. broker or agreement. of a non-U.S. broker with certain specified U.S. connections generally will be subject to information reporting requirements, but not backup withholding, unless the Non-U.S. Holder certifies under penalties of perjury that it is not a U.S. person or an exemption otherwise applies. Payments of the proceeds of a sale or other disposition of common stock to or through a U.S. office of a broker generally will be subject to information reporting and backup withholding, unless the Non-U.S. Holder certifies under penalties of perjury that it is not a U.S. person or otherwise establishes an exemption.
Backup withholding is not an additional tax. Any amounts withheld under theThe amount of any backup withholding rules from a payment togenerally will be allowed as a non-U.S. holder can be refunded or creditedcredit against the non-U.S. holder’s U.S. federal income tax liability if any,and may entitle the holder to a refund, provided that an appropriate claimthe required information is filed withtimely furnished to the IRS in a timely manner.
Foreign Account Tax Compliance Act (“FATCA”), generally impose a U.S. federal
FATCA imposes withholding tax aton certain types of payments made to foreign financial institutions and certain other non-U.S. entities. The legislation imposes a rate30% withholding tax on dividends on, or, subject to the discussion of 30% on paymentscertain proposed Treasury Regulations below, gross proceeds from the sale or other disposition of, dividends on our common stock paid to a “foreign financial institution” or to certain “non-financial foreign entities” (each as defined in the Code), unless (i) the foreign financial institution undertakes certain diligence and reporting obligations, (ii) the non-financial foreign entity unless (i) ifeither certifies it does not have any “substantial United States owners” (as defined in the foreign entity is a “foreign financial institution,” such foreign entity undertakes certain due diligence, reporting, withholding, and certification obligations, (ii) if the foreign entity is not a “foreign financial institution,” such foreign entity identifies certain of its U.S. investors, if any,Code) or furnishes identifying information regarding each substantial United States owner, or (iii) the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from these rules. If the payee is otherwise exempt under FATCA. Sucha foreign financial institution and is subject to the diligence and reporting requirements in (i) above, it must enter into an agreement with the U.S. Treasury requiring, among other things, that it undertake to identify accounts held by “specified United States persons” or “United States-owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and withhold 30% on payments to account holders whose actions prevent it from complying with these reporting and other requirements. If the country in which a payee is resident has entered into an “intergovernmental agreement” with the United States regarding FATCA, that agreement may permit the payee to report to that country rather than to the U.S. Department of the Treasury. The U.S. Treasury recently released proposed Treasury Regulations which, if finalized in their present form, would eliminate the federal withholding may also applytax of 30% applicable to payments ofthe gross proceeds of salesa sale or other dispositionsdisposition of our common stock, although under recentlystock. In its preamble to such proposed Treasury Regulations, the U.S. Treasury Regulations (the preamble to which specifiesstated that taxpayers are permitted tomay generally rely on suchthe proposed U.S. Treasury Regulations pending finalization), no withholding will apply to such payments of gross proceeds. Under certain circumstances, a non-U.S. holder may be eligible for refunds or credits of this withholding tax. An intergovernmental agreement between the United States and an applicable foreign country may modify the requirements described in this paragraph. Non-U.S. holdersregulations until final regulations are issued. Prospective investors should consult their own tax advisors regarding the possible implicationsimpact of this legislationthese rules on their investment in our common stock, and the possible impact of these rules on the entities through which they hold our common stock, including, without limitation, the process and deadlines for meeting the applicable requirements to prevent the imposition of thethis 30% withholding tax under FATCA.
The preceding discussion of U.S. federal tax considerations is for general information only. It is not tax advice. Prospective Investors should consult their tax advisors with respect to the application of the U.S. federal income tax laws to their particular situations as well as any tax consequences of the purchase, ownership, and disposition of our common stock arising under the U.S. federal estate or gift tax laws or under the laws of any state, local, or non-U.S. taxing jurisdiction or under any applicable income tax treaty.
24
We are offering the securities described in this prospectus through the underwriters named below. We have entered into an underwriting agreement dated , 2024 with Titan Partners Group LLC, a division of American Capital L.P. is actingPartners, LLC, as the representative of the underwriters ofin this offering. Subject to the terms and conditions of the underwriting agreement, dated , 2021, between usthe underwriters have agreed, severally and not jointly, to purchase the representativenumber of our securities set forth opposite its name below.
Underwriter | Number of Shares | |||
Titan Partners Group LLC, a division of American Capital Partners, LLC | ||||
Total |
A copy of the underwriters, we will agree to sellunderwriting agreement has been filed as an exhibit to the underwriters, andregistration statement of which this prospectus is part.
We have been advised by the underwriters will purchase from us, the aggregate amount of shares of our common stock indicated in the table below:
The underwriting agreement provides that the underwriters’ obligation to purchase the securities we are offering is subject to conditions contained in the underwriting agreement.
No action has been taken by us or the underwriters may change thethat would permit a public offering price per share and other selling terms by means of a supplement to this prospectus.
The underwriters have advised us that they do not intend to confirm sales to any account over which they exercise discretionary authority.
Underwriting Discount and Expenses
The following table summarizes the underwriting agreement, however, will provide that in the event the offering is terminated, any advance expense depositsdiscount and commission to be paid to the underwriters will be returned to the extent that offering expenses are not actually incurred in accordance with Financial Industry Regulation Authority (“FINRA”) Rule 5110(e).by us.
Per Share | Total Without Over- Allotment | Total With Full Over- Allotment | ||||||||||
Public offering price | $ | $ | $ | |||||||||
Underwriting discounts and commissions(1)(2) | $ | $ | $ | |||||||||
Proceeds to us, before expenses | $ | $ | $ | |||||||||
25
(1) | We have also agreed to reimburse the accountable expenses of the representative of the underwriters up to a maximum of $125,000. |
(2) | We have granted a 30-day option to the underwriters to purchase up to additional shares of common stock based on the assumed public offering price per share of common stock set forth above less the underwriting discounts and commissions solely to cover over-allotments, if any. |
We estimate that theour total expenses of the offering, payable by us, excluding the estimated underwriting discounts and commissions, will be approximately $1,100,715.
The securities we are offering are being offered by the underwriters subject to certain conditions specified in the underwriting agreement.
Over-allotment Option
In addition to the discount set forth in the above table, we have granted the underwriter a 30-day option to purchase from us up to an aggregateadditional common shares based on an assumed price of 6%$ per common share, which was the last reported sale price of our common shares on The Nasdaq Capital Market on , 2024, less the underwriting discount and commissions. If the underwriter exercises this option in full, the total underwriting discounts and commissions payable will be $ and the total proceeds to us, before expenses, will be approximately $ million. The underwriter may exercise the option solely to cover over-allotments, if any, made in connection with this offering.
Listing
Our shares of common stock sold in this offering (excludingare listed on The Nasdaq Capital Market under the symbol “ACXP.”
The last reported sale price of our shares sold through the exercise of the over-allotment option) (the “Underwriter Warrants”).common stock on March 15, 2024 was $2.72 per share. The Underwriter Warrants are exercisable 180 days after the effective date of the registration statement of which this prospectus forms a part at $ per share (125% of thefinal public offering price), butprice will be determined between us, the underwriters and the investors in the offering and may be at a discount to the current market price of our common stock. Therefore, the assumed public offering price used throughout this prospectus may not be transferred atindicative of the final public offering price.
Lock-up Agreements
Each of our officers and directors have agreed with the underwriters to be subject to a lock-up period of 45 days following the closing of the offering being made pursuant to this prospectus. This means that, during the lock-up period, such persons may not offer for sale, contract to sell, sell, distribute, grant any time prioroption, right or warrant to purchase, pledge, hypothecate or otherwise dispose of, directly or indirectly, any shares of our common stock or any securities convertible into, or exercisable or exchangeable for, shares of our common stock. Certain limited transfers are permitted during the date which is 180 days beginninglock-up period if the transferee agrees to these lock-up restrictions. We have also agreed, in the underwriting agreement, to similar lock-up restrictions on the issuance and sale by or on behalf of the Company of our securities from the date of commencement of sales of securities in connection with this offering and expiring on a date which is no more than five (5) years from the effective date of the offering in compliance with FINRA Rule 5110(e)(1)(A). The Underwriter Warrants have been deemed compensation by FINRA and are therefore subject to a 180-day lock-up pursuant to FINRA Rule 5110(e). Alexander Capital, L.P. (or its respective permitted assignees under Rule 5110(e)(2)(B)) will not sell, transfer, assign, pledge, or hypothecate the Underwriter Warrants or the securities underlying such warrants, nor will they engage in any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of such warrants or the underlying securitiesprospectus for a period of 18045 days following the dateclosing of commencementthis offering, subject to certain exceptions. Titan Partners Group LLC, a division of sales pursuantAmerican Capital Partners, LLC, may, in its sole discretion and without notice, waive the terms of any of these lock-up agreements and similar provisions in the underwriting agreement.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is VStock Transfer, LLC.
Indemnification
We have agreed to indemnify the offering. In addition,underwriters against certain liabilities, including certain liabilities arising under the Underwriter Warrants provide for “piggy-back” registration rights with respectSecurities Act, or to contribute to payments that the shares underlying such warrants, exercisable in certain cases for a period of no more than seven (7) years from the effective date of the offering in compliance with FINRA Rule 5110(g)(8)(D). We will bear all fees and expenses attendant to registering the securities issuable on exercise of the Underwriter Warrants other than underwriting commissions incurred and payable by the holders thereof. The exercise price and number of shares issuable upon exercise of the Underwriter Warrantsunderwriters may be adjusted in certain circumstances including in the event of a stock dividend, extraordinary cash dividend or our recapitalization, reorganization, merger or consolidation. However, the exercise price of the
26
Stabilization, Short Positions and Distribution of Shares
The underwriters may agree to allocate a number of shares for sale to its online brokerage account holders. Internet distributions will be allocated by the underwriters that will make internet distributions on the same basis as other allocations. Other than the prospectus in electronic format, the information on these websites is not part of, nor incorporated by reference into, this prospectus or the Registration Statement of which this prospectus forms a part, has not been approved or endorsed by us or the underwriters in their respective capacities as underwriters, and should not be relied upon by investors.
· | Syndicate covering transactions involve purchases of securities in the open market after the distribution has been completed in order to cover syndicate short positions. Such a naked short position would be closed out by buying securities in the open market. A naked short position is more likely to be created if the underwriters are concerned that there could be downward pressure on the price of the securities in the open market after pricing that could adversely affect investors who purchase in the offering. |
· | Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specific maximum. |
· | Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the |
These syndicate covering transactions, to cover syndicate short positions.
In connection with this offering, the underwriters also may engage in passive market making transactions in our common stock on the Nasdaq Capital Market in accordance with Rule 103 of Regulation M under the
Neither we nor the underwriters make any representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the prices of our securities. In addition, neither we nor the underwriters make any representation that the underwriters will engage in these transactions or that any transactions, once commenced will not be discontinued without notice.
Other Relationships
From time to time, certain of the underwriters and their respective affiliates may provide in the future, provide various advisory, investment banking,and commercial banking and other financial services forto us and our affiliatesin the ordinary course of business, for which they have received, and may in the futurewill receive customary fees. However, except as disclosedfees and commissions. The representative of the underwriters may receive additional compensation in connection with advisory services.
Electronic Distribution
A prospectus in electronic format may be made available on the websites maintained by the underwriters, if any, participating in this prospectus, we have no present arrangements withoffering and the underwriters for any further services.
27
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 shares of our common stock beingsecurities offered by this prospectus. Sullivan & Worcester LLP, New York, New York, has acted as counselhereby. Certain legal matters will be passed upon for the underwriters.
The financial statements of Acurx Pharmaceuticals, Inc. for the two years ended December 31, 2023 have been audited by CohnReznick LLP, independent registered public accounting firm, has audited our financial statements as of and for the years ended December 31, 2020, and 2019, as set forth in their report thereon appearing in Acurx Pharmaceuticals, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2023 and incorporated by reference herein. Such financial statements are incorporated by reference herein in reliance upon such report, which includes an explanatory paragraph regardingon Acurx Pharmaceuticals, LLC’sInc.’s ability to continue as a going concern. We have included our financial statements in this prospectus and elsewhere in the registration statement in reliance on CohnReznick LLP’s report,concern, given on theirthe authority of such firm as experts in accounting and auditing.
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 contained28
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, 2023, filed with the SEC on March 15, 2024; 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 Members Acurx
| | | 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 | | | | | $ | — | | |
29
| | | 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 | | |
Shares of Common Stock
PROSPECTUS
Sole Bookrunner
Titan Partners Group
a division of American Capital Partners
, 2024.
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 | $ | 4,243.50 | ||
FINRA filing fee | 4,812.50 | |||
Printing expenses | 25,000 | |||
Accounting fees and expenses | 25,000 | |||
Legal fees and expenses | 250,000 | |||
Transfer agent and registrar fees and expenses | 5,000 | |||
Miscellaneous | 10,944 | |||
Total expenses | $ | 325,000 |
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.us is sought, nor are we aware of any threatened litigation that may result in claims for indemnification.
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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.
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 May 18, 2023, we issued to an investor in a private placement Series C Warrants to purchase up to 1,333,333 shares of common stock and soldSeries D Warrants to purchase 1,333,333 shares of common stock, each with an exercise price of $3.26 per share.
On July 27, 2022, we issued to investors in a private placement Series A Warrants to purchase up to 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 placement agent warrants to purchase one-halfup to 63,018 shares of one Class A membership interest, at a purchasecommon stock with an exercise price of $1.00 per unit, for aggregate consideration$3.60 in connection with the closing of $865,000.
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
The Company granted shares of common stock to certain vendors in the ordinary course of business in exchange for consulting services. The Company granted 140,186 and 114,889 shares of common stock for the years ended December 31, 2023, and 2022, respectively, and warrants to purchase up to 2,729 shares of common stock, and 90,000 shares of common stock thus far in fiscal year 2024.
Prior to the Company’s initial public offering, the Company granted Class BA membership interests to eachcertain vendors in the ordinary course of Messrs. Lucibusiness in exchange for consulting services relating to research and DeLuccia in accordance with their respective employment agreements as amendeddevelopment activities and then in effect for services rendered in accordance with their respective employment agreements, as amended.investor relations. 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. SuchCompany granted 30,145 Class BA membership interests were subsequently cancelled in Marchfor the year ended December 31, 2021.
The above mentionedabove-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 occurthat occurred as part of our corporate conversion to take place prior toin connection with 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.
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Item 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
EXHIBIT INDEX
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# | 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. | |
* | To be filed by amendment. |
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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
(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 (i) are not materialsecurities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and (ii) would be competitively harmful if publicly disclosed.
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(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant herebyregistrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to providethis registration statement, regardless of the underwriting method used to sell the securities to the underwriters atpurchaser, if the closing specifiedsecurities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the underwriting agreement certificates in such denominations and registered in such names as requiredoffering made by the underwritersundersigned registrant to permit prompt deliverythe purchaser.
(6) That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to each purchaser.
(7) 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.
(8) The undersigned Registrantregistrant hereby undertakes that:
(i) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(ii) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.
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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 March 18, 2024.
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) | March 18, 2024 | ||||||
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/ | March 18, 2024 | |||||||
Joseph C. Scodari | ||||||||
/s/ Thomas Harrison | Director | March 18, 2024 | ||||||
Thomas Harrison | ||||||||
/s/ Jack H. Dean | Director | March 18, 2024 | ||||||
Jack H. Dean | ||||||||
/s/ James Donohue | Director | March 18, 2024 | ||||||
James Donohue |