As
filed with the Securities and Exchange Commission on August 11,
2020
Registration
No. 333-240271
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
AMENDMENT
NO. 1
TO
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CELSION
CORPORATION
(Exact
name of registrant as specified in its charter)
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Delaware
(State
or other jurisdiction of
incorporation or organization)
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52-1256615
(I.R.S.
Employer
Identification No.)
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997
Lenox Drive, Suite 100
Lawrenceville,
New Jersey 08648
(609)
896-9100
(Address,
including zip code, and telephone number, including area code, of
Registrant’s principal executive offices)
Michael
H. Tardugno
President
and Chief Executive Officer
997
Lenox Drive, Suite 100
Lawrenceville,
New Jersey 08648
(609)
896-9100
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copies
to:
Steven
G. Canner
Baker
& McKenzie LLP
452
Fifth Avenue
New
York, New York 10018
(212)
626 4884
Approximate
date of commencement of proposed sale to the public:
From
time to time after the effective date of this registration
statement.
If
the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. [ ]
If
any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [X]
If
this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
[ ]
If
this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box.
[ ]
If
this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
[ ]
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the
Exchange Act.
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Large
accelerated filer |
[ ] |
Accelerated
filer |
[ ] |
| Non-accelerated
filer |
[ ] |
Smaller
reporting company |
[X] |
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Emerging
growth company |
[ ] |
The
registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states
that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933, as
amended, or until the registration statement shall become effective
on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed.
The selling stockholders may not sell these securities pursuant to
this prospectus until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and is not soliciting offers
to buy these securities in any state where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED AUGUST __, 2020
PROSPECTUS
3,200,000
Shares of Common Stock
This
prospectus relates solely to the resale, from time to time, by the
selling stockholders identified in this prospectus under the
caption “Selling Stockholders,” of up to 3,200,000 shares of our
common stock, par value $0.01 per share. The 3,200,000 shares
consist solely of shares of common stock issuable upon exercise of
3,200,000 outstanding common stock purchase warrants issued by us
(the Original Warrants) on March 3, 2020, subject to that certain
Securities Purchase Agreement, dated as of February 27, 2020, by
and among the Company, and the investors named therein (the
Securities Purchase Agreement) and subsequently exchanged effective
March 12, 2020 for exchange warrants pursuant to that certain
exchange agreement, dated as of March 12, 2020 (the Exchange
Warrants or Warrants).
The
Warrants have an exercise price of $1.24 per share, subject to
adjustment, will become exercisable on or after September 3, 2020
and have a five-year term through September 3, 2025. We are
registering the resale of the shares of common stock underlying the
warrants as required by the Securities Purchase
Agreement.
Our
registration of the shares covered by this prospectus does not mean
that the selling stockholders will offer or sell any of the shares.
The selling stockholders may sell the shares offered by this
prospectus from time to time on terms to be determined at the time
of sale through ordinary brokerage transactions or through any
other means described in this prospectus under the caption “Plan of
Distribution.” The shares of common stock may be sold at fixed
prices, at market prices prevailing at the time of sale, at prices
related to prevailing market price or at negotiated
prices.
Our
common stock is listed on The NASDAQ Capital Market under the
symbol “CLSN.” On July 30, 2020, the last reported closing sale
price of our common stock on The NASDAQ Capital Market was $1.15
per share.
Investing
in our common stock involves a high degree of risk. Before making
an investment decision, please read “Risk Factors” on page 7 of
this prospectus.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal
offense.
The
date of this prospectus is
, 2020.
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
This
prospectus relates to the resale by the selling stockholders
identified in this prospectus under the caption “Selling
Stockholders,” from time to time, of up to 3,200,000 shares of our
common stock issuable upon exercise of certain outstanding common
stock purchase warrants. We are not selling any shares of common
stock under this prospectus and will not receive any proceeds from
the sale of shares of common stock by the selling
stockholders.
This
prospectus is part of a registration statement on Form S-3 that we
filed with the Securities and Exchange Commission (SEC) utilizing a
“shelf” registration process. It omits some of the information
contained in the registration statement and reference is made to
the registration statement for further information with regard to
us and the securities being offered by the selling stockholders.
Any statement contained in the prospectus concerning the provisions
of any document filed as an exhibit to the registration statement
or otherwise filed with the SEC is not necessarily complete, and in
each instance, reference is made to the copy of the document
filed.
You
should read this prospectus, any documents that we incorporate by
reference in this prospectus and the additional information
described below under “Where You Can Find More Information” and
“Information Incorporated By Reference” before making an investment
decision. You should rely only on the information contained or
incorporated by reference in this prospectus. We have not
authorized any other person to provide you with different
information. If anyone provides you with different or inconsistent
information, you should not rely on it. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to
buy these securities in any jurisdiction where the offer or sale is
not permitted.
You
should not assume that the information in this prospectus or any
documents we incorporate by reference herein or therein is accurate
as of any date other than the date on the front of those documents.
Our business, financial condition, results of operations and
prospects may have changed since those dates.
Unless
the context indicates otherwise, as used in this prospectus, the
terms “Celsion,” “the Company,” “we,” “us” and “our” refer to
Celsion Corporation, a Delaware corporation, and its wholly-owned
subsidiary, CLSN Laboratories, Inc., also a Delaware corporation.
The Celsion brand and product names, including but not limited to
Celsion® and ThermoDox® contained in this prospectus are
trademarks, registered trademarks or service marks of Celsion
Corporation or its subsidiary in the United States and certain
other countries. This document may also contain references to
trademarks and service marks of other companies that are the
property of their respective owners.
WHERE YOU CAN FIND MORE
INFORMATION
We
are subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the Exchange Act). In accordance
with the Exchange Act, we file annual, quarterly and current
reports, proxy statements and other information with the SEC. Such
reports, proxy statements and other information filed by us are
available to the public free of charge at www.sec.gov. We
also maintain a website at www.celsion.com, at which
you may access these materials free of charge as soon as reasonably
practicable after they are electronically filed with, or furnished
to, the SEC. The information available on or through our website is
not part of this prospectus and should not be relied
upon.
This
prospectus is part of a registration statement that we filed with
the SEC. This prospectus omits some information contained in the
registration statement in accordance with SEC rules and
regulations. You should review the information and exhibits in the
registration statement for further information about us and the
securities being offered hereby. Statements in this prospectus
concerning any document we filed as an exhibit to the registration
statement or that we otherwise filed with the SEC are not intended
to be comprehensive and are qualified by reference to the filings.
You should review the complete document to evaluate these
statements.
INFORMATION INCORPORATED BY
REFERENCE
SEC
rules allow us to “incorporate by reference” into this prospectus
much of the information we file with the SEC, which means that we
can disclose important information to you by referring you to those
publicly available documents. The information that we incorporate
by reference into this prospectus is considered to be part of this
prospectus. These documents may include Annual Reports on Form
10-K, Quarterly Reports on Form 10-Q and Current Reports on Form
8-K, as well as proxy statements. You should read the information
incorporated by reference because it is an important part of this
prospectus.
This
prospectus incorporates by reference the documents set forth below
that have previously been filed with the SEC:
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our
Annual Report on Form 10-K for the fiscal year ended December 31,
2019, filed with the SEC on March 25, 2020; |
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2020, filed with the SEC on May 15, 2020; |
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the
portions of our definitive proxy statement on Schedule 14A filed
with the SEC on April 29, 2020 that are deemed “filed” with the SEC
under the Exchange Act; |
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our
Current Reports on Form 8-K filed with the SEC on March 3, 2020,
March 9, 2020, March 13, 2020, April 23, 2020, June 1, 2020, June
16, 2020, June 22, 2020, June 26, 2020, July 13, 2020 and August 3,
2020; and |
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the
description of our common stock contained in our registration
statement on Form 8-A filed with the SEC on May 26, 2000, as
amended by a Form 8-A/A dated February 7, 2008, and any amendments
or reports filed for the purpose of updating such
description. |
Any
statement contained in any previously filed document incorporated
by reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement
contained in this prospectus or any prospectus modifies or
supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
We also incorporate by reference any future filings, other than
current reports furnished under Item 2.02 or Item 7.01 of Form 8-K
and exhibits filed on such form that are related to such items,
made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act, in each case, other than those documents or the
portions of those documents deemed to be furnished and not filed in
accordance with SEC rules, until the termination of the offering of
the securities hereunder, including any future filings made after
the filing of the registration statement and prior to its
effectiveness. Information in such future filings updates and
supplements the information provided in this prospectus. Any
statements in any such future filings will be deemed to modify and
supersede any information in any document we previously filed with
the SEC that is incorporated or deemed to be incorporated herein by
reference to the extent that statements in the later filed document
modify or replace such earlier statements.
We
will provide without charge to each person, including any
beneficial owners, to whom this prospectus is delivered, upon his
or her written or oral request, a copy of any or all documents
referred to above which have been or may be incorporated by
reference into this prospectus but not delivered with this
prospectus, excluding exhibits to those documents unless they are
specifically incorporated by reference into those documents. You
may request a copy of these documents by writing or telephoning us
at the following address.
Celsion
Corporation
997
Lenox Drive, Suite 100
Lawrenceville,
New Jersey 08648
(609)
896-9100
FORWARD-LOOKING
STATEMENTS
Statements
and terms such as “expect”, “anticipate”, “estimate”, “plan”,
“believe” and words of similar import regarding our expectations as
to the development and effectiveness of our technologies, the
potential demand for our products, and other aspects of our present
and future business operations, constitute forward-looking
statements within the meaning of the Private Securities Litigation
Reform Act of 1995 and releases issued by the SEC and within the
meaning of Section 27A of the Securities Act of 1933, as amended
(the Securities Act), and Section 21E of the Exchange Act. Although
we believe that our expectations are based on reasonable
assumptions within the bounds of our knowledge of our industry,
business and operations, we cannot guarantee that actual results
will not differ materially from our expectations. In evaluating
such forward-looking statements, readers should specifically
consider the various factors contained in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2019
filed with the SEC on March 25, 2020, which factors include,
without limitation, plans and objectives of management for future
operations or programs or proposed new products or services;
changes in the course of research and development activities and in
clinical trials; possible changes in cost and timing of development
and testing; possible changes in capital structure, financial
condition, working capital needs and other financial items; changes
in approaches to medical treatment; clinical trial analysis and
future plans relating thereto; our ability to realize the full
extent of the anticipated benefits of our acquisition of
substantially all of the assets of EGEN, Inc., including achieving
operational cost savings and synergies in light of any delays we
may encounter in the integration process and additional unforeseen
expenses; introduction of new products by others; possible licenses
or acquisitions of other technologies, assets or businesses; and
possible actions by customers, suppliers, partners, competitors and
regulatory authorities. These and other risks and uncertainties
could cause actual results to differ materially from those
indicated by forward-looking statements.
The
discussion of risks and uncertainties set forth in this prospectus
is not necessarily a complete or exhaustive list of all risks
facing the Company at any particular point in time. We operate in a
highly competitive, highly regulated and rapidly changing
environment and our business is in a state of evolution. Therefore,
it is likely that new risks will emerge, and that the nature and
elements of existing risks will change, over time. It is not
possible for management to predict all such risk factors or changes
therein, or to assess either the impact of all such risk factors on
our business or the extent to which any individual risk factor,
combination of factors, or new or altered factors, may cause
results to differ materially from those contained in any
forward-looking statement. Except as required by law, we assume no
obligation to revise or update any forward-looking statement that
may be made from time to time by us or on our behalf for any
reason, even if new information becomes available in the
future.
PROSPECTUS SUMMARY
The
following summary highlights information contained elsewhere or
incorporated by reference in this prospectus. This summary does not
contain all of the information you should consider before investing
in the securities. Before making an investment decision, you should
read the entire prospectus carefully, including the matters
discussed under the heading “Risk Factors” in this
prospectus.
Company
Overview
We
are a fully integrated development clinical stage oncology drug
company focused on advancing innovative cancer treatments,
including directed chemotherapies, DNA-mediated immunotherapy and
RNA based therapies. Our lead product candidate is ThermoDox®, a
proprietary heat-activated liposomal encapsulation of doxorubicin,
currently in a Phase III clinical trial for the treatment of
primary liver cancer (the OPTIMA Study). Second in our pipeline is
GEN-1, a DNA-mediated immunotherapy for the localized treatment of
ovarian cancer. These investigational products are based on
technologies that provide the platform for the future development
of a range of therapeutics for difficult to treat forms of cancer.
The first technology, on which ThermoDox® is based, is Lysolipid
Thermally Sensitive Liposomes, a heat sensitive liposomal based
dosage form that targets disease with known chemotherapeutics in
the presence of mild heat. The second technology is TheraPlas, a
novel nucleic acid-based treatment for local transfection of
therapeutic DNA plasmids. With these technologies, we are working
to develop and commercialize more efficient, effective and targeted
oncology therapies that maximize efficacy while minimizing side
effects common to cancer treatments.
Corporate
Information
We
were founded in 1982 and are a Delaware corporation. Our shares of
common stock trade on The NASDAQ Capital Market under the symbol
“CLSN.” Our principal executive offices are located at 997 Lenox
Drive, Suite 100, Lawrenceville, New Jersey 08648. Our telephone
number is (609) 896-9100 and our website is www.celsion.com.
The information available on or through our website is not part of
or incorporated by reference into, this prospectus and should not
be relied upon.
Description
of the Private Placement
On
February 27, 2020, we entered into the Securities Purchase
Agreement, pursuant to which we agreed to issue and sell, in a
registered direct offering (the Offering), an aggregate of
4,571,428 shares of common stock, par value $0.01 per share, of the
Company at an offering price of $1.05 per share for gross proceeds
of approximately $4.8 million before the deduction of the placement
agent fee and offering expenses.
In a
concurrent private placement (the Private Placement), we agreed to
issue to the investors that participated in the Offering (the
Warrant holders), for no additional consideration, the Original
Warrants, allowing for the purchase of up to 2,971,428 shares of
our common stock at an exercise price of $1.15 per share. The
Original Warrants were issued to the Warrant holders on March 3,
2020. On March 12, 2020, we entered into an agreement with the
Warrant holders (the Exchange Agreement) pursuant to which we
agreed to issue Exchange Warrants allowing for the purchase of up
to 3,200,000 shares of our common stock at an exercise price of
$1.24 per share to each Warrant holder in exchange for the Original
Warrants. Subject to limited exceptions, a Warrant holder will not
have the right to exercise any portion of its warrants if the
holder, together with its affiliates, would beneficially own in
excess of 9.99% of the number of shares of common stock outstanding
immediately after giving effect to such exercise (the Beneficial
Ownership Limitation); provided, however, that upon 61 days’ prior
notice to the Company, the holder may increase or decrease the
Beneficial Ownership Limitation, provided that in no event shall
the Beneficial Ownership Limitation exceed 9.99%.
We
filed the registration statement on Form S-3, of which this
prospectus is a part, to fulfill our contractual obligations under
the Purchase Agreement to provide for the resale by these investors
of up to 3,200,000 shares of common stock issuable upon exercise of
the Exchange Warrants. We agree to use commercially reasonable best
efforts to cause such registration to become effective and to keep
such registration statement effective at all times until no Warrant
holder owns any Warrants or Warrant Shares issuable upon exercise
thereof.
Recent
Developments
Net Operating Losses
In
2019, the Company received approval from the New Jersey Economic
Development Authority to sell $1.9 million of its State of New
Jersey net operating losses (NOLs) as part of the Technology
Business Tax Certificate Program sponsored by The New Jersey
Economic Development Authority. Under the program, emerging
biotechnology companies with unused NOLs and unused research and
development credits are allowed to sell these benefits to other
companies. In early 2020, the Company entered into an agreement to
sell these NOLs and, in April 2020, the Company completed the sale
of the New Jersey NOLs and received $1.8 million in net proceeds.
The Company has approximately $2.0 million available in future tax
benefits remaining under the NOL program for future years and has
filed its application for approximately $1.9 million of these NOLs
in June 2020. The Company anticipates selling those NOLs in 2020
but there can be no assurance as to the timing of any sale or that
the NOLs may be sold at all.
Capital on Demand Agreement
Under
the Company’s Capital on DemandTM Sales Agreement (the
Capital on Demand Agreement) with JonesTrading Institutional
Services LLC, as sales agent, the Company sold 1,164,748 shares of
its common stock for net proceeds of approximately $3.38 million
(at an average price of $2.90 per share) during the period of June
2, 2020 through June 12, 2020. The Company has not sold any other
shares under the Capital on Demand Agreement in 2020.
Underwritten Offering
On
June 24, 2020, the Company issued and sold 2,666,667 shares of its
common stock in an underwritten offering for net proceeds, after
deducting the underwriting discount and estimated offering expenses
payable by the Company, of approximately $9.1 million.
Independent Data Monitoring Committee
Recommendation
On
July 13, 2020, the Company issued a press release announcing that
it had received a recommendation from the independent Data
Monitoring Committee (the DMC) to consider stopping the Phase III
OPTIMA Study of ThermoDox® in combination with radiofrequency
ablation for the treatment of hepatocellular carcinoma, or primary
liver cancer (the Study). The recommendation was made following the
second pre-planned interim safety and efficacy analysis by the DMC
on July 9, 2020. The DMC analysis found that the pre-specified
boundary for stopping the trial for futility of 0.900 was crossed
with an actual value of 0.903. However, the 2-sided p-value of
0.524 for this analysis provides uncertainty; subsequently, the DMC
has left the final decision of whether to stop the OPTIMA Study to
the Company. There were no safety concerns noted during the interim
analysis.
The
Offering
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Shares
of common stock offered by the selling
stockholders: |
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3,200,000
shares of common stock issuable upon exercise of the
Warrants. |
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| Shares
of common stock outstanding before this offering: |
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33,232,380
shares |
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| Shares
of common stock outstanding after completion of this offering,
assuming full exercise of the Warrants: |
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36,432,380
shares |
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| Terms
of the Offering: |
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The
selling stockholders may sell, transfer or otherwise dispose of any
or all of the shares of common stock offered by this prospectus
from time to time on The NASDAQ Capital Market or any other stock
exchange, market or trading facility on which the shares are traded
or in private transactions. The shares of common stock may be sold
at fixed prices, at market prices prevailing at the time of sale,
at prices related to prevailing market price or at negotiated
prices. |
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of Proceeds: |
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All
proceeds from the sale of shares of common stock issuable upon
exercise of the Warrants will be for the account of the selling
stockholders. We will not receive any proceeds from the sale of
common stock offered pursuant to this prospectus. |
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| NASDAQ
Capital Market symbol: |
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CLSN |
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| Trading: |
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Our
shares of common stock currently trade on The NASDAQ Capital
Market. There is no established trading market for the Warrants and
we do not intend to list the Warrants on any exchange or other
trading system. |
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| Risk
Factors: |
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Investing
in our securities involves a high degree of risk and purchasers of
our securities may lose their entire investment. See “Risk Factors”
below and the other information included elsewhere in this
prospectus for a discussion of factors you should carefully
consider before deciding to invest in our securities. |
The
number of shares of our common stock outstanding is based on an
aggregate of 33,232,380 shares of our common stock outstanding as
of July 30, 2020 and excludes:
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4,348,142
shares of common stock issuable upon the exercise of outstanding
options as of March 31, 2020, having a weighted average exercise
price of $2.62 per share; |
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8,750
shares of common stock issuable upon the vesting of common stock
awards as of March 31, 2020, having a weighted average grant day
fair value of $1.59 per share; |
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3,826,098
shares of common stock issuable upon the exercise of outstanding
warrants as of March 31, 2020, having a weighted average exercise
price of $1.34 per share; and |
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Any
changes reserved for future issuance pursuant to our existing stock
incentive plan. |
RISK FACTORS
Investing
in our securities involves a high degree of risk. You should
carefully consider and evaluate all of the information contained in
this prospectus and in the documents incorporated by reference in
this prospectus before you decide to purchase our securities. In
particular, you should carefully consider and evaluate the risks
and uncertainties discussed below, together with the risks
described in “Part I - Item 1A. Risk Factors” of our most recent
Annual Report on Form 10-K, as updated by the additional risks and
uncertainties set forth in our most recent Quarterly Report on Form
10-Q and in other filings we make with the SEC and incorporated by
reference into this prospectus. Any of the risks and uncertainties
set forth therein could materially and adversely affect our
business, results of operations and financial condition, which in
turn could materially and adversely affect the trading price or
value of our securities. As a result, you could lose all or part of
your investment. See the section titled “Prospectus Summary –
Recent Developments” in this prospectus for additional
information.
The global COVID-19 pandemic could have material adverse effects on
the Company and your investment.
In
January 2020, the World Health Organization declared an outbreak of
novel coronavirus (COVID-19) a global pandemic, and the U.S.
Department of Health and Human Services declared a public health
emergency to aid the U.S. healthcare community in responding to
COVID-19. This virus continues to spread globally and, as of
mid-May 2020, has spread to over 100 countries, including the
United States. Governments and businesses around the world have
taken unprecedented actions to mitigate the spread of COVID-19,
including, but not limited to, shelter-in-place orders,
quarantines, and significant restrictions on travel, as well as
restrictions that prohibit many employees from going to work.
Uncertainty with respect to the economic impacts of the pandemic
has introduced significant volatility in the financial markets. The
Company did not observe significant impacts on its business or
results of operations for the three months ended March 31, 2020 due
to the global emergence of COVID-19. While the extent to which
COVID-19 impacts the Company’s future results will depend on future
developments, the pandemic and associated economic impacts could
result in a material impact to the Company’s future financial
condition, results of operations and cash flows.
The
Company’s ability to raise additional capital may be adversely
impacted by potential worsening global economic conditions and the
recent disruptions to, and volatility in, financial markets in the
United States and worldwide resulting from the ongoing COVID-19
pandemic.
The
disruptions caused by COVID-19 may also disrupt preclinical
studies, the clinical trials process and enrollment of patients.
This may delay commercialization efforts. The Company is currently
monitoring its operating activities in light of these events and it
is reasonably possible that the virus could have a negative effect
on the Company’s financial condition and results of operations, the
specific impact is not readily determinable as of the date of these
financial statements.
The
actual amount of funds the Company will need to operate is subject
to many factors, some of which are beyond the Company’s control.
These factors include the following:
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the
progress of research activities; |
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the
number and scope of research programs; |
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the
progress of preclinical and clinical development
activities; |
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the
progress of the development efforts of parties with whom the
Company has entered into research and development
agreements; |
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the
costs associated with additional clinical trials of product
candidates; |
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the
ability to maintain current research and development licensing
arrangements and to establish new research and development and
licensing arrangements; |
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the
ability to achieve milestones under licensing
arrangements; |
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the
costs involved in prosecuting and enforcing patent claims and other
intellectual property rights; and the costs and timing of
regulatory approvals. |
You may experience future dilution as a result of future equity
offerings and other issuances of our securities. In addition, this
offering and future equity offerings and other issuances of our
common stock or other securities may adversely affect our common
stock price.
In
order to raise additional capital, we may in the future offer
additional shares of our common stock or other securities
convertible into or exchangeable for our common stock at prices
that may not be the same as the price per share in this offering.
We may not be able to sell shares or other securities in any other
offering at a price per share that is equal to or greater than the
price per share paid by investors in this offering, and investors
purchasing shares or other securities in the future could have
rights superior to existing stockholders. The price per share at
which we sell additional shares of our common stock or securities
convertible into common stock in future transactions may be higher
or lower than the price per share in this offering. You will incur
dilution upon exercise of any outstanding stock options, warrants
or upon the issuance of shares of common stock under our stock
incentive programs. In addition, the sale of shares in this
offering and any future sales of a substantial number of shares of
our common stock in the public market, or the perception that such
sales may occur, could adversely affect the price of our common
stock. We cannot predict the effect, if any, that market sales of
those shares of common stock or the availability of those shares of
common stock for sale will have on the market price of our common
stock.
We do not currently intend to pay dividends on our common stock,
and any return to investors is expected to come, if at all, only
from potential increases in the price of our common
stock.
At
the present time, we intend to use available funds to finance our
operations. Accordingly, while payment of dividends rests within
the discretion of our board of directors (our board), we have no
intention of paying any such dividends in the foreseeable future.
Any return to investors is expected to come, if at all, only from
potential increases in the price of our common stock.
USE OF PROCEEDS
All
shares of our common stock offered by this prospectus are being
registered for the account of the selling stockholders. We will not
receive any of the proceeds from the sale of these
shares.
DIVIDEND POLICY
We
have never declared or paid any cash dividends on our common stock
and do not currently anticipate declaring or paying cash dividends
on our common stock in the foreseeable future. We currently intend
to retain all of our future earnings, if any, to finance
operations. Any future determination relating to our dividend
policy will be made at the discretion of our board and will depend
on a number of factors, including future earnings, capital
requirements, financial conditions, future prospects, contractual
restrictions and other factors that our board may deem
relevant.
DESCRIPTION OF CAPITAL
STOCK
General
Our
authorized capital stock consists of 112,500,000 shares of common
stock, par value $0.01 per share, and 100,000 shares of preferred
stock, par value $0.01 per share. As of July 30, 2020, there were
33,232,380 shares of our common stock outstanding and no shares of
preferred stock outstanding.
The
following summary description of our capital stock is based on the
applicable provisions of the Delaware General Corporation Law, as
amended (DGCL), and on the provisions of our certificate of
incorporation, as amended (our certificate of incorporation), and
our bylaws, as amended (our bylaws). This information is qualified
entirely by reference to the applicable provisions of the DGCL, our
certificate of incorporation and bylaws. For information on how to
obtain copies of our certificate of incorporation and bylaws, which
are exhibits to the registration statement of which this prospectus
is a part, see the section titled “Where You Can Find Additional
Information” in this prospectus.
Common
Stock
Holders
of common stock to be registered hereunder are entitled to one vote
for each share held of record on all matters submitted to a vote of
stockholders and do not have cumulative voting rights. Subject to
any preferential rights of any outstanding preferred stock, holders
of common stock are entitled to receive ratably such dividends, if
any, as may be declared from time to time by our board out of funds
legally available therefor. In the event of a dissolution,
liquidation or winding-up of the Company, holders of common stock
are entitled to share ratably in all assets remaining after payment
of liabilities and any preferential rights of any outstanding
preferred stock.
Holders
of common stock have no preemptive or conversion rights or other
subscription rights. There are no redemption or sinking fund
provisions applicable to the common stock. All outstanding shares
of common stock are fully paid and non-assessable. The rights,
preferences and privileges of the holders of common stock are
subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock which may be
designated and issued in the future.
Preferred
Stock
Pursuant
to our certificate of incorporation, our board has the authority,
without further action by the stockholders (unless such stockholder
action is required by applicable law or NASDAQ rules), to designate
and issue shares of preferred stock in one or more series, to
establish from time to time the number of shares to be included in
each such series, to fix the designations, powers (including
voting), privileges, preferences and relative participating,
optional or other rights, if any, of the shares of each such series
and the qualifications, limitations or restrictions thereof and to
increase or decrease the number of shares of any such series, but
not below the number of shares of such series then
outstanding.
The
DGCL provides that the holders of preferred stock will have the
right to vote separately as a class or, in some cases, as a series
on an amendment to our certificate of incorporation if the
amendment would change the par value or, unless our certificate of
incorporation provides otherwise, the number of authorized shares
of the class or the powers, preferences or special rights of the
class or series so as to adversely affect the class or series, as
the case may be. This right is in addition to any voting rights
that may be provided in the applicable certificate of
designation.
Our
board may authorize the issuance of preferred stock with voting or
conversion rights that could adversely affect the voting power or
other rights of the holders of our common stock or other
securities. Preferred stock could be issued quickly with terms
designed to delay or prevent a change in control of our company or
make removal of management more difficult. Additionally, the
issuance of preferred stock may have the effect of decreasing the
market price of our common stock.
Anti-Takeover
Considerations and Special Provisions of Our Certificate of
Incorporation, Our Bylaws and the DGCL
Certificate of Incorporation and Bylaws
A
number of provisions of our certificate of incorporation and bylaws
concern matters of corporate governance and the rights of our
stockholders. Provisions that grant our board the ability to issue
shares of preferred stock and to set the voting rights, preferences
and other terms thereof may discourage takeover attempts that are
not first approved by our board, including takeovers that may be
considered by some stockholders to be in their best interests, such
as those attempts that might result in a premium over the market
price for the shares held by stockholders. Certain provisions could
delay or impede the removal of incumbent directors even if such
removal would be beneficial to our stockholders, such as the
classification of our board and the lack of cumulative voting.
Since our board has the power to retain and discharge our officers,
these provisions could also make it more difficult for existing
stockholders or another party to effect a change in
management.
These
provisions may have the effect of deterring hostile takeovers or
delaying changes in our control or in our management. These
provisions are intended to enhance the likelihood of continued
stability in the composition of our board and in the policies it
implements and to discourage certain types of transactions that may
involve an actual or threatened change of our control. These
provisions are designed to reduce our vulnerability to an
unsolicited acquisition proposal. The provisions also are intended
to discourage certain tactics that may be used in proxy fights.
However, such provisions could have the effect of discouraging
others from making tender offers for our shares and, as a
consequence, they also may inhibit fluctuations in the market price
of our shares that could result from actual or rumored takeover
attempts.
These
provisions also could discourage or make more difficult a merger,
tender offer or proxy contest, even if they could be favorable to
the interests of stockholders and could potentially depress the
market price of our common stock. Our board believes that these
provisions are appropriate to protect our interests and the
interests of our stockholders.
Classification
of Board; No Cumulative Voting. Our certificate of
incorporation and bylaws provide for our board to be divided into
three classes, with staggered three-year terms. Only one class of
directors is elected at each annual meeting of our stockholders,
with the other classes continuing for the remainder of their
respective three-year terms. Because our stockholders do not have
cumulative voting rights, our stockholders representing a majority
of the shares of common stock outstanding will be able to elect all
of our directors due to be elected at each annual meeting of our
stockholders.
Meetings
of and Actions by Stockholders. Our bylaws provide that annual
meetings of our stockholders may take place at the time and place
designated by our board. A special meeting of our stockholders may
be called at any time by our board, the chairman of our board or
our president. Our bylaws provide that (i) our board can fix
separate record dates for determining stockholders entitled to
receive notice of a stockholder meeting and for determining
stockholders entitled to vote at the meeting; (ii) we may hold a
stockholder meeting by means of remote communications; (iii) any
stockholder seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to our
secretary, request that our board fix a record date and our board
shall adopt a resolution fixing the record date in all events
within ten calendar days after a request is received; and (iv) a
written consent of stockholders shall not be effective unless a
written consent signed by a sufficient number of stockholders to
take such action is received by us within 60 calendar days of the
earliest dated written consent received.
Advance
Notice Requirements for Stockholder Proposals and Director
Nominations. Our bylaws provide that stockholders seeking to
bring business before an annual meeting of stockholders or to
nominate candidates for election as directors at an annual meeting
of stockholders must provide timely notice in writing. To be
timely, a stockholder’s notice must be delivered to, or mailed and
received by, our secretary at our principal executive offices not
later than the close of business on the 90th calendar day, nor
earlier than the close of business on the 120th calendar day in
advance of the date specified in our proxy statement released to
stockholders in connection with the previous year’s annual meeting
of stockholders. If the date of the annual meeting is more than 30
calendar days before or after such anniversary date, notice by the
stockholder to be timely must be not earlier than the close of
business on the 120th calendar day in advance of such date of
annual meeting and not later than the close of business on the
later of the 90th calendar day in advance of such date of annual
meeting or the tenth calendar day following the date on which
public announcement of the date of the meeting is made. In no event
shall the public announcement of an adjournment or postponement of
an annual meeting commence a new time period (or extend any time
period) for the giving of an advance notice by any stockholder. Any
stockholder that proposes director nominations or other business
must be a stockholder of record at the time the advance notice is
delivered by such stockholder to us and entitled to vote at the
meeting. Our bylaws also specify requirements as to the form and
content of a stockholder’s notice. These provisions may preclude
stockholders from bringing matters before an annual meeting of
stockholders or from making nominations for the election of
directors at an annual meeting of stockholders. Unless otherwise
required by law, any director nomination or other business shall
not be made or transacted if the stockholder (or a qualified
representative of the stockholder) does not appear at the meeting
to present the director nominee or other proposed
business.
Filling
of Board Vacancies. Our certificate of incorporation and bylaws
provide that the authorized size of our board shall be determined
by our board by board resolution from time to time and that our
board has the exclusive power to fill any vacancies and newly
created directorships resulting from any increase in the authorized
number of directors and the stockholders do not have the power to
fill such vacancies. Vacancies in our board and newly created
directorships resulting from any increase in the authorized number
of directors on our board may be filled by a majority of the
directors remaining in office, even though that number may be less
than a quorum of our board, or by a sole remaining director. A
director so elected to fill a vacancy shall serve for the remaining
term of the predecessor he or she replaced and until his or her
successor is elected and has qualified, or until his or her earlier
resignation, removal or death.
Amendment
of the Certificate of Incorporation. Our certificate of
incorporation may be amended, altered, changed or repealed at a
meeting of our stockholders entitled to vote thereon by the
affirmative vote of a majority of the outstanding stock entitled to
vote thereon and a majority of the outstanding stock of each class
entitled to vote thereon as a class, in the manner prescribed by
the DGCL.
Amendment
of the Bylaws. Our bylaws may be amended or repealed, or new
bylaws may be adopted, by either our board or the affirmative vote
of at least 66 2/3 percent of the voting power of our outstanding
shares of capital stock.
Section 203 of the DGCL
We
are subject to Section 203 of the DGCL, which prohibits a Delaware
corporation from engaging in any business combination with any
interested stockholder for a period of three years after the date
that such stockholder became an interested stockholder, with the
following exceptions:
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● |
before
such date, the board of directors of the corporation approved
either the business combination or the transaction that resulted in
the stockholder becoming an interested stockholder; |
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● |
upon
completion of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least 85 percent of the voting stock of the corporation
outstanding at the time the transaction began, excluding for
purposes of determining the voting stock outstanding (but not the
outstanding voting stock owned by the interested stockholder) those
shares owned (i) by persons who are directors and also officers and
(ii) pursuant to employee stock plans in which employee
participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a
tender or exchange offer; and |
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● |
on or
after such date, the business combination is approved by the board
of directors and authorized at an annual or special meeting of the
stockholders, and not by written consent, by the affirmative vote
of at least 66 2/3 percent of the outstanding voting stock that is
not owned by the interested stockholder. |
In
general, Section 203 defines a business combination to include the
following:
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● |
any
merger or consolidation involving the corporation and the
interested stockholder; |
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● |
any
sale, lease, transfer, pledge or other disposition of ten percent
or more of the assets of the corporation to or with the interested
stockholder; |
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● |
subject
to certain exceptions, any transaction that results in the issuance
or transfer by the corporation of any stock of the corporation to
the interested stockholder; |
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● |
any
transaction involving the corporation that has the effect of
increasing the proportionate share of the stock or any class or
series of the corporation beneficially owned by the interested
stockholder; and |
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● |
the
receipt by the interested stockholder of the benefit of any loss,
advances, guarantees, pledges or other financial benefits by or
through the corporation. |
In
general, Section 203 of the DGCL defines an “interested
stockholder” as an entity or person who, together with the entity’s
or person’s affiliates and associates, beneficially owns, or is an
affiliate of the corporation and within three years prior to the
time of determination of interested stockholder status did own, 15
percent or more of the outstanding voting stock of the
corporation.
A
Delaware corporation may “opt out” of these provisions with an
express provision in its certificate of incorporation. We have not
opted out of these provisions, which may as a result, discourage or
prevent mergers or other takeover or change of control attempts of
us.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company, LLC (AST), located at 6201 15th
Avenue, Brooklyn, New York 11219. AST’s phone number is (800)
937-5449.
NASDAQ
Capital Market Listing
Our
common stock is listed on The NASDAQ Capital Market under the
symbol “CLSN.”
Warrants
For a
discussion of the terms of the Warrants, see “Prospectus Summary–
Description of the Private Placement”. The exercise price and the
number of shares of common stock issuable upon exercise of the
Warrants are subject to customary adjustments in connection with
stock splits or stock dividends or distributions or other similar
transactions.
SELLING STOCKHOLDERS
This
prospectus covers an aggregate of up to 3,200,000 shares of our
common stock that may be sold or otherwise disposed of by the
selling stockholders. Such shares are issuable to the selling
stockholders upon the exercise of an aggregate of 3,200,000 common
stock purchase warrants we issued to the selling stockholders in a
private placement transaction.
The
following table sets forth certain information with respect to each
selling stockholder, including:
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|
● |
the
shares of our common stock beneficially owned by the selling
stockholder prior to this offering, |
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● |
the
number of shares being offered by the selling stockholder pursuant
to this prospectus and |
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|
● |
the
selling stockholder’s beneficial ownership after completion of this
offering, assuming that all of the shares covered hereby (but none
of the other shares, if any, held by the selling stockholders) are
sold. |
The
registration of the shares of common stock issuable to the selling
stockholders upon the exercise of the warrants does not necessarily
mean that the selling stockholders will sell all or any of such
shares.
The
table is based on information supplied to us by the selling
stockholders, with beneficial ownership and percentage ownership
determined in accordance with the rules and regulations of the SEC
and include voting or investment power with respect to shares of
stock. This information does not necessarily indicate beneficial
ownership for any other purpose. In computing the number of shares
beneficially owned by a selling stockholder and the percentage
ownership of that selling stockholder, shares of common stock
subject to warrants held by that selling stockholder that are
exercisable as of July 30, 2020, or exercisable within 60 days
after July 30, 2020, are deemed outstanding. Such shares, however,
are not deemed outstanding for the purposes of computing the
percentage ownership of any other person. The percentage of
beneficial ownership after this offering is based on 33,232,380
shares outstanding on July 30, 2020.
The
registration of these shares of common stock does not mean that the
selling stockholders will sell or otherwise dispose of all or any
of those securities. The selling stockholders may sell or otherwise
dispose of all, a portion or none of such shares from time to time.
We do not know the number of shares, if any, that will be offered
for sale or other disposition by any of the selling stockholders
under this prospectus. Furthermore, the selling stockholders may
have sold, transferred or disposed of the shares of common stock
covered hereby in transactions exempt from the registration
requirements of the Securities Act since the date on which we filed
this prospectus.
To
our knowledge and except as noted below, none of the selling
stockholders has, or within the past three years has had, any
position, office or other material relationship with us or any of
our predecessors or affiliates.
| |
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Beneficial
Ownership Before
This Offering |
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Beneficial Ownership
After This Offering |
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|
Selling Stockholder |
|
Number
of
Shares Owned(1) |
|
|
Shares Underlying
Warrants Offered
Hereby |
|
|
Number
of Shares
Owned(2) |
|
|
Percentage of
Outstanding Shares |
|
| Lincoln Park Capital Fund,
LLC |
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1,101,500 |
|
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1,100,000 |
|
|
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1,500 |
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* |
|
| CVI Investments, Inc. |
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1,100,000 |
|
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1,100,000 |
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0 |
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* |
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| Lind Global Macro Fund, LP |
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333,333 |
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333,333 |
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0 |
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* |
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| Bigger Capital Fund, LP |
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266,667 |
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266,667 |
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0 |
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* |
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| District 2 Capital Fund LP |
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400,000 |
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400,000 |
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0 |
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* |
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*
Less than 1%.
(1)
The number of shares owned includes the number of shares underlying
the Warrants owned by each selling stockholder.
(2)
Assumes that each selling stockholder exercises all outstanding
Warrants and sells all shares underlying the Warrants offered
hereby.
PLAN OF DISTRIBUTION
The
selling stockholders may sell, transfer or otherwise dispose of any
or all of the shares of common stock offered by this prospectus
from time to time on The NASDAQ Capital Market or any other stock
exchange, market or trading facility on which the shares are traded
or in private transactions. These dispositions may be at fixed
prices, at market prices prevailing at the time of sale, at prices
related to prevailing market price or at negotiated prices. The
selling stockholders may use any one or more of the following
methods when selling shares:
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers; |
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block
trades in which the broker-dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction; |
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purchases
by a broker-dealer as principal and resale by the broker-dealer for
its account; |
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an
exchange distribution in accordance with the rules of the
applicable exchange; |
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privately
negotiated transactions; |
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broker-dealers
may agree with the selling shareholder to sell a specified number
of such shares at a stipulated price per share; |
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a
combination of any such methods of sale; |
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through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise; or |
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any
other method permitted pursuant to applicable law. |
Broker-dealers
engaged by the selling stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholders or, if any
broker-dealer acts as agent for the purchaser of shares, from the
purchaser in amounts to be negotiated. The selling stockholders
does not expect these commissions and discounts relating to its
sales of shares to exceed what is customary in the types of
transactions involved.
The
selling stockholder may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the common stock in the course of hedging
the positions they assume. The selling shareholders may also sell
shares of our common stock short and deliver these securities to
close out its short positions, or loan or pledge the common stock
to broker-dealers that in turn may sell these securities. The
selling shareholders may also enter into option or other
transactions with broker-dealers or other financial institutions or
the creation of one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of
shares offered by this prospectus, which shares such broker-dealer
or other financial institution may resell pursuant to this
prospectus, as supplemented or amended to reflect such
transaction.
The
selling stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such
sales. In such event, any commissions received by such
broker-dealers or agents and any profit on the resale of the shares
purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Each selling stockholder has
informed us that it does not have any agreement or understanding,
directly or indirectly, with any person to distribute the common
stock.
Because
the selling stockholders may be deemed to be an “underwriter”
within the meaning of the Securities Act, it will be subject to the
prospectus delivery requirements of the Securities Act. In
addition, any securities covered by this prospectus which qualify
for sale pursuant to Rule 144 under the Securities Act may be sold
under Rule 144 rather than under this prospectus. The selling
stockholders have advised us that there is no underwriter or
coordinating broker acting in connection with the proposed sale of
the resale securities by the selling stockholders.
Under
applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the resale shares may not
simultaneously engage in market making activities with respect to
our common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In
addition, the selling stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of
purchases and sales of shares of our common stock by the selling
stockholders or any other person. All of the foregoing may affect
the marketability of the shares of common stock and the ability of
any person or entity to engage in market-making activities with
respect to the shares of common stock. We will make copies of this
prospectus available to the selling stockholders and have informed
the selling stockholders of the need to deliver a copy of this
prospectus to each purchaser at or prior to the time of the sale
(including by compliance with Rule 172 under the Securities
Act).
We
have agreed to use commercially reasonable efforts to keep the
registration statement continuously effective at all times until
(a) the warrant shares are sold under such registration statement
or pursuant to Rule 144 under the Securities Act, (b) the warrant
shares may be sold without volume or manner-of-sale restrictions
pursuant to Rule 144 under the Securities Act, and (c) the
five-year anniversary of the date of the issuance of the warrants,
whichever is the earliest to occur. The shares will be sold only
through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states,
the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the
registration or qualification requirement is available and is
complied with.
We
are required to pay certain fees and expenses in connection with
the registration of the shares of common stock issuable upon
exercise of the warrant. We have agreed to indemnify the selling
stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act. We may
also provide contribution with respect to payments that the selling
stockholders may make with respect to these liabilities.
We
will not receive any proceeds from the sale of the shares by the
selling stockholders.
LEGAL MATTERS
The
validity of the shares of our common stock being offered by this
prospectus will be passed upon for us by Baker & McKenzie LLP,
New York, NY.
EXPERTS
WithumSmith+Brown,
PC (“Withum”), an independent registered public accounting firm,
has audited our consolidated financial statements included in our
Annual Report on Form 10-K for the years ended December 31, 2019 as
set forth in their report, which is incorporated by reference in
this prospectus. Our financial statements are incorporated herein
by reference in reliance on Withum’s report, given on their
authority as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the estimated costs and expenses payable
by the registrant in connection with the offering of the securities
being registered.
| SEC registration fee |
|
$ |
515.05 |
|
| Accounting fees and expenses |
|
$ |
5,000.00 |
|
| Legal fees and expenses |
|
$ |
25,000.00 |
|
| Printing and
miscellaneous expenses |
|
$ |
3,000.00 |
|
| Total |
|
$ |
33,515.05 |
|
Item
15. Indemnification of Directors and Officers.
The
Company is incorporated under the laws of the State of Delaware.
Our bylaws provide that we shall to the maximum extent and in the
manner permitted by the DGCL, indemnify each of its directors and
officers against expenses (including attorneys’ fees), judgments,
fines, settlements and other amounts actually and reasonably
incurred in connection with any proceeding, arising by reason of
the fact that such person is or was an agent of the Company;
provided, however, that the Company may modify the extent of such
indemnification by individual contracts with its directors and
executive officers and, provided, further, that the Company shall
not be required to indemnify any director or officer in connection
with any proceeding (or part thereof) initiated by such person
unless (i) such indemnification is expressly required to be made by
law, (ii) the proceeding was authorized in advance by our board,
(iii) such indemnification is provided by the Company, in its sole
discretion, pursuant to the powers vested in the corporation under
the DGCL or (iv) such indemnification is required to be made
pursuant to an individual contract.
The
DGCL provides that a Delaware corporation has the power generally
to indemnify its current and former directors, officers, employees
and other agents (each, a Corporate Agent) against expenses and
liabilities, including amounts paid in settlement, in connection
with any proceeding involving such person by reason of his being a
Corporate Agent, other than a proceeding by or in the right of the
corporation, if such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation and, with respect to any criminal proceeding,
such person had no reasonable cause to believe his conduct was
unlawful.
In
the case of an action brought by or in the right of the
corporation, indemnification of a Corporate Agent is permitted if
such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests
of the corporation. However, no indemnification is permitted in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation, unless and only
to the extent that the court in which such proceeding was brought
shall determine upon application that despite the adjudication of
liability, but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to such
indemnification.
To
the extent that a Corporate Agent has been successful on the merits
or otherwise in the defense of such proceeding, whether or not by
or in the right of the corporation, or in the defense of any claim,
issue or matter therein, the corporation is required to indemnify
such person for expenses in connection therewith. Under the DGCL,
the corporation may advance expenses incurred by a Corporate Agent
in connection with a proceeding, provided that the Corporate Agent
undertakes to repay such amount if it shall ultimately be
determined that such person is not entitled to indemnification. Our
certificate of incorporation requires us to advance expenses to any
person entitled to indemnification, provided that such person
undertakes to repay the advancement if it is determined in a final
judicial decision from which there is no appeal that such person is
not entitled to indemnification.
The
power to indemnify and advance the expenses under the DGCL does not
exclude other rights to which a Corporate Agent may be entitled to
under our certificate of incorporation, by laws, agreement, vote of
stockholders or disinterested directors or otherwise.
Our
certificate of incorporation permits us to secure insurance on
behalf of our directors, officers, employees and agents for any
expense, liability or loss incurred in such capacities, whether or
not the Company would have the power to indemnify such person
against such liability under the provisions of the DGCL.
The
purpose of these provisions is to assist us in retaining qualified
individuals to serve as our directors, officers, employees and
agents by limiting their exposure to personal liability for serving
as such.
Item
16. Exhibits
|
EXHIBIT
NUMBER
|
|
DESCRIPTION |
|
4.1 |
|
Form
of Common Stock Purchase Warrant, incorporated herein by reference
to Exhibit 4.1 to the Current Report on Form 8-K of the Company
filed with the SEC on March 3, 2020. |
|
|
|
|
|
4.2 |
|
Form
of Exchange Warrant, incorporated herein by reference to Exhibit
4.1 to the Current Report on Form 8-K of the Company filed with the
SEC on March 13, 2020. |
|
|
|
|
|
5.1* |
|
Opinion
of Baker & McKenzie LLP. |
|
|
|
|
|
10.1 |
|
Form
of Securities Purchase Agreement dated as of February 27, 2020, by
and among the Company and the purchasers named therein,
incorporated herein by reference to Exhibit 10.1 to the Current
Report on Form 8-K of the Company filed with the SEC on March 3,
2020. |
|
|
|
|
|
10.2 |
|
Form
of Exchange Agreement dated as of March 12, 2020, incorporated
herein by reference to Exhibit 10.1 to the Current Report on Form
8-K of the Company filed with the SEC on March 13,
2020. |
|
|
|
|
|
23.1** |
|
Consent
of WithumSmith+Brown, PC. |
|
|
|
|
|
23.2* |
|
Consent
of Baker & McKenzie LLP (included in Exhibit
5.1). |
|
|
|
|
|
24.1* |
|
Power
of Attorney (included on the signature page
hereto). |
*Previously filed.
**
Filed
herewith.
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration
statement:
(i)
to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii)
to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20 percent 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 (1)(i), (1)(ii) and (1)(iii) above 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 Commission by the registrant
pursuant to Section 13 and Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration
statement.
(2)
That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3)
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities
Act to any purchaser:
If
the registrant is relying on Rule 430B:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by Section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to
the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(b)
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of the securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant 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 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 Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
Lawrenceville, State of New Jersey, on August 11, 2020.
| |
CELSION
CORPORATION |
| |
|
|
| |
By: |
/s/
Michael H. Tardugno |
| |
|
Michael
H. Tardugno |
| |
|
Chairman
of the Board, President and
Chief
Executive Officer
|
Pursuant
to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the
capacities and on the dates indicated.
|
Signature |
|
Title |
|
Date |
| |
|
|
|
|
|
/s/ Michael H.
Tardugno |
|
Chairman, President and Chief Executive Officer
and Director |
|
|
| Michael H. Tardugno |
|
(Principal Executive
Officer) |
|
August 11, 2020 |
| |
|
|
|
|
|
/s/ Jeffrey W.
Church |
|
Executive Vice President and Chief Financial
Officer |
|
|
| Jeffrey W. Church |
|
(Principal Financial
Officer) |
|
August 11, 2020 |
| |
|
|
|
|
|
* |
|
Controller and Chief Accounting
Officer |
|
|
| Timothy J. Tumminello |
|
(Principal Accounting
Officer) |
|
August 11, 2020 |
| |
|
|
|
|
| * |
|
Director |
|
|
| Robert W. Hooper |
|
|
|
August 11, 2020 |
| |
|
|
|
|
| * |
|
Director |
|
|
| Alberto R. Martinez,
M.D. |
|
|
|
August 11, 2020 |
| |
|
|
|
|
| * |
|
Director |
|
|
| Augustine Chow, Ph.D. |
|
|
|
August 11, 2020 |
| |
|
|
|
|
| * |
|
|
|
|
| Frederick J. Fritz |
|
Director |
|
August 11, 2020 |
| |
|
|
|
|
| * |
|
|
|
|
| Donald P. Braun,
Ph.D. |
|
Director |
|
August 11, 2020 |
| |
|
|
|
|
| * |
|
|
|
|
| Andreas Voss, M.D. |
|
Director |
|
August 11, 2020 |
| *
By: |
/s/
Jeffrey W. Church |
|
| |
(Jeffrey
W. Church) |
|
| |
Attorney-in-Fact |
|
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