As
filed with the Securities and Exchange Commission on October 9,
2020
Registration No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CELSION
CORPORATION
(Exact
name of registrant as specified in its charter)
|
Delaware
(State or
other jurisdiction
of incorporation or organization)
|
52-1256615
(I.R.S.
Employer
Identification No.)
|
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.
|
Large
accelerated filer |
[ ] |
Accelerated
filer |
[ ] |
| Non-accelerated
filer |
[ ] |
Smaller
reporting company |
[X] |
| |
|
Emerging
growth company |
[ ] |
CALCULATION OF
REGISTRATION FEE
|
Title of
each class of securities to be registered |
|
Amount
to
be
registered
(1)
|
|
|
Proposed
maximum
offering
price
per
share (2)
|
|
|
Proposed
maximum
aggregate
offering
price (2)
|
|
|
Amount
of
registration
fee
|
|
|
Common
Stock, par value $0.01 per share |
|
|
247,524 |
|
|
$ |
1.01 |
|
|
$ |
250,000 |
|
|
$ |
27.28 |
|
(1)
Represents shares of common stock, par value $0.01 per share, of
the registrant, issuable upon exercise of 247,524 outstanding
common stock purchase warrants at an exercise price of $1.01 per
share, to be offered and sold by the selling stockholders
identified in this registration statement. In accordance with Rule
416 under the Securities Act of 1933, as amended, this registration
statement also covers such indeterminate number of additional
shares of common stock of the registrant as may become issuable in
connection with any proportionate adjustment for any stock splits,
stock combinations, stock dividends, recapitalizations or similar
events with respect to the registrant’s common stock.
(2)
Estimated solely for the purpose of computing the amount of the
registration fee for the shares of common stock issuable upon
exercise of warrants being registered in accordance with Rule
457(g) under the Securities Act of 1933, as amended, based upon the
higher of (i) $1.01, the price at which the warrants may be
exercised, and (ii) $0.715, the average of the high and low prices
for a share of the registrant’s common stock as reported on The
NASDAQ Capital Market on October 6, 2020, a date within five
business days prior to the initial filing of this registration
statement.
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 OCTOBER 9, 2020
PROSPECTUS
247,524
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 247,524 shares of our
common stock, par value $0.01 per share. The 247,524 shares consist
solely of shares of common stock issuable upon exercise of 247,524
outstanding common stock purchase warrants issued by us on August
28, 2020 (the “Warrants”), subject to that certain Venture Loan and
Security Agreement, dated as of June 27, 2018, as amended on August
28, 2020, by and among the Company and Horizon Technology Finance
Corporation, among others (the “Horizon Credit
Agreement”).
As
described below under “Selling Stockholders”, the Warrants are
immediately exercisable for cash or by net exercise from the date
of grant and will expire after ten years from the date of grant.
The Warrants are exercisable for a total of 247,524 shares of
common stock at $1.01 per share by the selling stockholders. We
will not receive any proceeds from the sale of shares of common
stock by the selling stockholders. We will receive proceeds from
the cash exercise of the Warrants, which, if exercised in cash with
respect to all of the 247,524 shares of common stock, would result
in gross proceeds of approximately $250,000 to us.
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 October 8, 2020, the last reported closing sale
price of our common stock on The NASDAQ Capital Market was $0.7003
per share.
Investing
in our common stock involves a high degree of risk. Before making
an investment decision, please read “Risk Factors” on page 5 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 solely to the resale, from time to time, by the
selling stockholders identified in this prospectus under the
caption “Selling Stockholders,” of up to 247,524 shares of our
common stock, par value $0.01 per share. The 247,524 shares consist
solely of shares of common stock issuable upon exercise of the
247,524 outstanding the 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 (the “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.
INFORMATION INCORPORATED BY
REFERENCE
The
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 Reports on Form 10-Q for the fiscal quarters ended March
31, 2020 and June 30, 2020, filed with the SEC on May 15, 2020 and
August 14, 2020, respectively; |
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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, August 3,
2020, September 2, 2020, September 4, 2020 and September 8, 2020;
and |
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● |
the
description of our capital 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 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 such filings made after the
initial filing of this 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. With
these innovative cancer treatments, 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.
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 Warrants
On
June 27, 2018, the Company entered into a loan agreement with
Horizon Technology Finance Corporation (“Horizon”) that provided
$10 million in new capital (the “Initial Horizon Credit
Agreement”). The Company drew down $10 million upon closing of the
Initial Horizon Credit Agreement on June 27, 2018. The obligations
under the Initial Horizon Credit Agreement were secured by a
first-priority security interest in substantially all assets of the
Company other than intellectual property assets.
As a
fee in connection with the Initial Horizon Credit Agreement, the
Company issued Horizon warrants exercisable for a total of 190,114
shares of the Company’s common stock (the “Initial Warrants”) at a
per share exercise price of $2.63. The Initial Warrants were
immediately exercisable for cash or by net exercise from the date
of grant and expire after ten years from the date of
grant.
On
August 28, 2020, the Company entered into the First Amendment (the
“Amendment”) to the Initial Horizon Credit Agreement with Horizon
Funding I, LLC as an assignee of Horizon, Horizon Funding Trust
2019-1, as an assignee of Horizon, and Horizon as Collateral Agent.
In connection with the Amendment, the Company repaid $5 million of
the initial $10 million, and the remaining $5 million in
obligations were restructured. Pursuant to the Amendment, one-half
of the aggregate Initial Warrants, exercisable for a total of
95,058 shares of our common stock, were canceled, and, in
connection with the outstanding $5 million in obligations described
above, we issued Horizon Funding I, LLC and Horizon Funding Trust
2019-1 (collectively the “Horizon New Warrant Holders”)
collectively new warrants exercisable for collectively 247,524
shares of common stock at a per share exercise price of $1.01 (the
“New Warrants” or the “Warrants”).
The
Warrants are immediately exercisable for cash or by net exercise
from the date of grant and will expire after ten years from the
date of grant. Following the date of grant and within 90 days, we
are required to register the common stock underlying the
Warrants.
We
filed this registration statement on Form S-3, of which this
prospectus is a part, to fulfill our contractual obligations under
the Amendment to provide for the resale by the Horizon New Warrant
Holders of up to 247,524 shares of common stock issuable upon
exercise of the New Warrants. We agreed to use commercially
reasonable best efforts to cause such registration to become
effective and keep it continuously effective for the 10-year term
of the New Warrants.
The
Offering
|
Shares
of common stock offered by the selling
stockholders: |
|
247,524
shares of common stock issuable upon exercise of the
Warrants |
| |
|
|
| Shares
of common stock outstanding before this offering: |
|
36,159,780
shares |
| |
|
|
| Shares
of common stock outstanding after completion of this offering,
assuming full exercise of the Warrants: |
|
36,407,304
shares |
| |
|
|
| Terms
of the Offering: |
|
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. |
| |
|
|
| Use
of Proceeds: |
|
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. |
| |
|
|
| NASDAQ
Capital Market symbol: |
|
CLSN |
| |
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| Trading: |
|
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: |
|
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 36,159,780 shares of our common stock outstanding as
of October 5, 2020 and excludes:
|
|
● |
4,734,026
shares of common stock issuable upon the exercise of outstanding
options as of June 30, 2020, having a weighted average exercise
price of $2.76 per share; |
| |
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| |
● |
8,750
shares of common stock issuable upon the vesting of common stock
awards as of June 30, 2020, having a weighted average grant day
fair value of $1.59 per share; |
| |
|
|
| |
● |
3,826,098
shares of common stock issuable upon the exercise of outstanding
warrants as of June 30, 2020, having a weighted average exercise
price of $1.34 per share; and |
| |
|
|
| |
● |
Any
shares 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 and six months ended
June 30, 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 |
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● |
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 October 5, 2020, there were
36,159,780 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:
|
|
● |
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; |
| |
|
|
| |
● |
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:
|
|
● |
any
merger or consolidation involving the corporation and the
interested stockholder; |
| |
|
|
| |
● |
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; |
| |
|
|
| |
● |
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; |
| |
|
|
| |
● |
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 Warrants”. 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 247,524 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 247,524 Warrants
that we issued to the Horizon New Warrant Holders in connection
with the First Amendment to the Horizon Credit
Agreement.
The
following table sets forth certain information with respect to the
selling stockholders, including:
|
|
● |
the
shares of our common stock beneficially owned by each selling
stockholder prior to this offering, |
| |
● |
the
number of shares being offered by each selling stockholder pursuant
to this prospectus and |
| |
● |
each
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 such selling stockholder) 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 the selling stockholders and the percentage
ownership of the selling stockholders, shares of common stock
subject to warrants held by the selling stockholders that are
exercisable as of October 5, 2020, or exercisable within 60 days
after October 5, 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 36,159,780
shares outstanding on October 5, 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 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 discussed herein, the selling
stockholders do not have, and within the past three years have not
had, any position, office or other material relationship with us or
any of our predecessors or affiliates.
| |
|
Beneficial
Ownership Before This Offering |
|
|
|
Beneficial
Ownership After This Offering |
|
Selling
Stockholder(1) |
|
Number of
Shares Owned |
|
Shares
Underlying Warrants Offered Hereby |
|
Number
of Shares Owned(2) |
|
Percentage
of Outstanding Shares |
| Horizon Funding Trust
2019-1 |
|
171,290 |
|
123,762 |
|
47,528 |
|
* |
| Horizon Funding I,
LLC |
|
171,290 |
|
123,762 |
|
47,528 |
|
* |
*
Less than 1%.
(1)
This table and the information in the notes below are based upon
information supplied by the selling stockholders. Horizon Funding
Corporation may be deemed the beneficial owner of the securities
pursuant to Section 13(d) of the Securities Exchange Act of 1934,
as amended. The address of the principal business office of each of
Horizon Funding I, LLC, Horizon Funding Trust 2019 -1 and Horizon
Funding Corporation is 312 Farmington Avenue, Farmington,
CT.
(2)
Assumes that the selling stockholders exercises all outstanding New
Warrants and sells all shares underlying the New 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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|
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● |
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its account; |
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|
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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 a selling stockholder 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 a selling stockholder may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholder or, if any
broker-dealer acts as agent for the purchaser of shares, from the
purchaser in amounts to be negotiated. The selling stockholders do
not expect these commissions and discounts relating to its sales of
shares to exceed what is customary in the types of transactions
involved.
A
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. A selling stockholder 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. A selling
stockholder 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.
A
selling stockholder 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. The selling stockholders have
informed us that they do not have any agreement or understanding,
directly or indirectly, with any person to distribute the common
stock.
Because
a selling stockholder 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, a selling stockholder 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 a selling
stockholder 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 for the 10-year term
of the Warrants. 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 |
|
$ |
27.28 |
|
| Accounting fees and
expenses |
|
$ |
4,000.00 |
|
| Legal fees and
expenses |
|
$ |
25,000.00 |
|
| Printing and
miscellaneous expenses |
|
$ |
1,500.00 |
|
| Total |
|
$ |
30,527.28 |
|
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 Warrant to Purchase Common Stock, incorporated herein by
reference to Exhibit 4.1 to the Quarterly Report on Form 10-Q of
the Company filed with the SEC on August 14, 2018. |
|
|
|
|
|
4.2 |
|
Form
of Amended and Restated 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 September 4, 2020 |
|
|
|
|
|
5.1* |
|
Opinion
of Baker & McKenzie LLP. |
|
|
|
|
|
10.1 |
|
Venture
Loan and Security Agreement dated June 27, 2018, by and between
Celsion corporation and Horizon Technology Finance Corporation,
incorporated herein by reference to Exhibit 4.1 to the Quarterly
Report on Form 10-Q of the Company filed with the SEC on August 14,
2018. |
|
|
|
|
|
10.2 |
|
First
Amendment of Venture Loan and Security Agreement, dated as of
August 1, 2020, by and among Celsion Corporation, Horizon Funding
I, LLC, Horizon Funding Trust 2019-1, and Horizon Technology
Finance Corporation, incorporated herein by reference to Exhibit
10.1 to the Current Report on Form 8-K of the Company filed with
the SEC on September 4, 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). |
*
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 October 9, 2020.
| |
CELSION
CORPORATION |
|
|
|
|
|
|
By: |
/s/
Michael H. Tardugno |
| |
|
Michael
H. Tardugno |
| |
|
Chairman
of the Board, President and
|
| |
|
Chief
Executive Officer |
POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that the undersigned officers and
directors of Celsion Corporation, a Delaware corporation, do hereby
constitute and appoint Michael H. Tardugno and Jeffrey W. Church,
and each of them individually, as the lawful attorneys-in-fact and
agents, each with full power of substitution or re-substitution,
with full power and authority to do any and all acts and things in
our name and on our behalf in our capacities as officers and
directors and to execute any and all instruments for us and in our
names in the capacities indicated below which said
attorneys-in-fact and agents, or either one of them, determine may
be necessary or advisable or required to enable said corporation to
comply with the Securities Act, and any rules or regulation or
requirements of the SEC in connection with this registration
statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority
to sign the names of the undersigned officers and directors in the
capacities indicated below to this registration statement, to any
and all amendments, both pre-effective and post-effective, and
supplements to this registration statement and to any and all
instruments or documents filed as part of or in conjunction with
this registration statement or amendments or supplements thereto,
and each of the undersigned hereby ratifies and confirms all that
said attorneys-in-fact and agents, or either one of them, shall do
or cause to be done by virtue hereof. This power of attorney may be
signed in several counterparts.
IN
WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated. 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) |
|
October
9, 2020 |
| |
|
|
|
|
|
/s/
Jeffrey W. Church |
|
Executive
Vice President and Chief Financial Officer |
|
|
| Jeffrey
W. Church |
|
(Principal
Financial Officer) |
|
October
9, 2020 |
| |
|
|
|
|
|
/s/
Timothy J. Tumminello |
|
Controller
and Chief Accounting Officer |
|
|
| Timothy
J. Tumminello |
|
(Principal
Accounting Officer) |
|
October
9, 2020 |
| |
|
|
|
|
|
/s/
Robert W. Hooper |
|
Director |
|
|
| Robert
W. Hooper |
|
|
|
October
9, 2020 |
| |
|
|
|
|
|
/s/
Alberto R. Martinez, M.D. |
|
Director |
|
|
| Alberto
R. Martinez, M.D. |
|
|
|
October
9, 2020 |
| |
|
|
|
|
|
/s/
Augustine Chow, Ph.D. |
|
Director |
|
|
| Augustine
Chow, Ph.D. |
|
|
|
October
9, 2020 |
| |
|
|
|
|
|
/s/
Frederick J. Fritz |
|
Director |
|
|
| Frederick
J. Fritz |
|
|
|
October
9, 2020 |
| |
|
|
|
|
|
/s/
Donald P. Braun, Ph.D. |
|
Director |
|
|
| Donald
P. Braun, Ph.D. |
|
|
|
October
9, 2020 |
| |
|
|
|
|
|
/s/
Andreas Voss, M.D. |
|
Director |
|
|
| Andreas
Voss, M.D. |
|
|
|
October
9, 2020 |
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