As filed with the Securities and Exchange
Commission on October 13, 2017
Registration
No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LIPOCINE INC.
(Exact name of Registrant as specified
in its charter)
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Delaware
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2834
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99-0370688
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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675 Arapeen Drive, Suite 202
Salt Lake City, Utah 84108
(801) 994-7383
(Address, including zip code and telephone
number, of Registrant’s principal executive offices)
Mahesh V. Patel
President and Chief Executive Officer
Lipocine Inc.
675 Arapeen Drive, Suite 202
Salt Lake City, Utah 84108
(801) 994-7383
(Name, address, including zip code and
telephone number, including area code, of agent for service)
Copies to:
Nolan
S. Taylor
David
F. Marx
Michael
R. Newton
Dorsey & Whitney LLP
111 South Main Street, Suite 2100
Salt Lake City, Utah 84111
(801) 933-7360
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. (Check one):
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Large accelerated filer
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Accelerated filer
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x
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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Emerging growth company
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x
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If an emerging growth company, indicate by
check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act.
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities To Be Registered(1)
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Amount to be
Registered(1) (2)
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Proposed
Maximum
Aggregate Price
Per Unit(2)
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Proposed
Maximum
Aggregate Offering
Price (2) (3)
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Amount of
Registration Fee (6)
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Common Stock, par value $0.0001 per share
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N/A
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Preferred Stock, par value $0.0001 per share
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N/A
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Debt Securities(4)
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N/A
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Warrants(5)
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N/A
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Units
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N/A
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Total
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$
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150,000,000
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$
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12,478.01
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(7)
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1
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There are being registered hereunder such indeterminate number of shares of common stock, such indeterminate number of shares
of preferred stock, such indeterminate principal amount of debt securities, and such indeterminate number of warrants to purchase
common stock, preferred stock or debt securities as will have an aggregate initial offering price not to exceed $150,000,000. Any
securities registered hereunder may be sold separately or as units with other securities registered hereunder. The securities registered
also include such indeterminate amounts and numbers of shares of common stock and preferred stock and such indeterminate principal
amounts of debt securities as may be issued upon exercise of warrants, upon conversion of or exchange for debt securities that
provide for conversion or exchange, or pursuant to anti-dilution provisions of any such securities. No separate consideration
will be received for any shares of common stock, preferred stock, or principal amounts of debt securities so issued upon conversion
or exchange.
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2
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Pursuant to General Instruction II.D of Form S-3, the amount of securities to be registered for each class of securities, the
proposed maximum offering price per unit for each class of securities and the proposed aggregate offering price of each class of
securities are not specified.
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3
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The Registrant is hereby registering an indeterminate amount and number of each identified class of the identified securities
up to a proposed maximum aggregate offering price of $150,000,000 which may be offered from time to time at indeterminate prices,
including securities that may be purchased by underwriters. The Registrant has estimated the proposed maximum aggregate
offering price solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933,
as amended.
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4
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If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in
such greater principal amount as shall result in an aggregate initial offering price not to exceed $150,000,000, less the aggregate
dollar amount of all securities previously issued hereunder.
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5
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Includes warrants to purchase common stock, warrants to purchase preferred stock and warrants to purchase debt securities.
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6
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The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act.
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7
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As discussed below, pursuant to Rule 415(a)(6) of the Securities Act, this Registration Statement includes a total of $49,775,000
aggregate offering price of unsold securities that were previously registered on a registration statement on Form S-3 (Registration
No. 333-199093) and for which the registration fee was previously paid. Accordingly, the $12,478.01 registration fee shown above
has been calculated based on the proposed maximum offering price of the additional $100,225,000 of securities registered on this
Registration Statement.
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Pursuant to Rule 415(a)(6) of the Securities
Act, the securities registered pursuant to this Registration Statement include $49,775,000 aggregate offering price of unsold securities
of the registrant previously registered on its Registration Statement on Form S-3 (Registration No. 333-199093), initially filed
on October 1, 2014, as declared effective on October 14, 2014, which the registrant refers to as the Prior Registration Statement.
The previously paid filing fee relating to such unsold securities under the Prior Registration Statement will continue to be applied
to such unsold securities registered in this Registration Statement. To the extent that, after the filing date hereof and prior
to the effectiveness of this Registration Statement, any such unsold securities are sold pursuant to the Prior Registration Statement,
the registrant will identify in a pre-effective amendment to this Registration Statement the updated amount of unsold securities
from the Prior Registration Statement to be included in this Registration Statement pursuant to Rule 415(a)(6) and the updated
amount of new securities to be registered on this Registration Statement. Pursuant to Rule 415(a)(6), the offering of the unsold
securities registered under the Prior Registration Statement, if not previously terminated, will be deemed terminated as of the
date of effectiveness 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
that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This registration statement
contains two prospectuses:
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a base prospectus which covers the offering, issuance and sale of up to $150,000,000 of the registrant’s common stock, preferred stock, debt securities, warrants and units; and
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a sales agreement prospectus covering the offering, issuance and sale of up to $25,000,000 of the registrant’s shares of common stock that may be issued and sold under the Sales Agreement (the “Sales Agreement”) dated March 6, 2017 between the registrant and Cantor Fitzgerald & Co.
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The base prospectus immediately follows
this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified
in a prospectus supplement to the base prospectus. The sales agreement prospectus immediately follows the base prospectus.
The shares of common stock that may be offered, issued and sold under the sales agreement prospectus is included in the $150,000,000
of securities that may be offered, issued and sold by the registrant under the base prospectus. Upon termination of the Sales Agreement,
any portion of the $25,000,000 included in the sales agreement prospectus that is not sold pursuant to the Sales Agreement
will be available for sale in other offerings pursuant to the base prospectus.
The information in this prospectus
is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities,
and it is not soliciting offers to buy these securities in any state where such offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
OCTOBER 13, 2017
PROSPECTUS
LIPOCINE INC.
$150,000,000
Common
Stock, Preferred Stock,
Debt Securities,
Warrants and Units
From time to time, we may offer and sell
up to $150,000,000 of any combination of the securities described in this prospectus, either individually or in combination. We
may also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock,
or common stock, preferred stock or debt securities upon the exercise of warrants.
This prospectus provides a general description
of the securities we may offer. Each time we sell securities, we will provide specific terms of the securities offered in a supplement
to this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection with these
offerings. The prospectus supplement and any related free writing prospectus may also add, update or change information contained
in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference in this prospectus before you invest in any securities. This prospectus
may not be used to consummate a sale of securities unless accompanied by the applicable prospectus supplement.
Our common stock is listed on The NASDAQ
Capital Market under the symbol “LPCN”. On October 12, 2017, the last reported sale price for our common stock was
$4.15 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing on The
NASDAQ Capital Market or any securities market or other exchange of the securities, if any, covered by the prospectus supplement.
INVESTING IN OUR SECURITIES INVOLVES
RISKS. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING “RISK FACTORS” ON PAGE 5
AND CONTAINED IN THE APPLICABLE PROSPECTUS SUPPLEMENT AND ANY RELATED FREE WRITING PROSPECTUS AND UNDER SIMILAR HEADINGS IN THE
OTHER DOCUMENTS THAT ARE INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
The securities may be sold directly to investors,
through agents designated from time to time or to or through underwriters or dealers. For additional information on the methods
of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus. If any underwriters or
agents are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such underwriters
or agents and any applicable commissions or discounts and over-allotment options will be set forth in a prospectus supplement.
The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a
prospectus supplement.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2017
TABLE OF
CONTENTS
ABOUT THIS
PROSPECTUS
References in this prospectus and the documents
incorporated by reference to the “Company,” “Lipocine,” “our,” “us” or “we”
refer to Lipocine Inc. and its subsidiaries.
This prospectus is a part of a registration
statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process.
Under this shelf registration process, we may sell any combination of the securities described in this prospectus in one or more
offerings up to a total dollar amount of $150,000,000. This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities under this shelf registration, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided
to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus
or in any documents that we have incorporated by reference into this prospectus. You should read this prospectus, any applicable
prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as
described under the heading “Incorporation by Reference.”
You should rely only on the information
that we have provided or incorporated by reference in this prospectus, any applicable prospectus supplement and any related free
writing prospectus that we may authorize to be provided to you. We have not authorized any dealer, salesman or other person to
give any information or to make any representation other than those contained or incorporated by reference in this prospectus,
any applicable prospectus supplement or any related free writing prospectus that we may authorize to be provided to you. You must
not rely upon any information or representation not contained or incorporated by reference in this prospectus or the accompanying
prospectus supplement. This prospectus and the accompanying supplement to this prospectus do not constitute an offer to sell or
the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus
and the accompanying supplement to this prospectus constitute an offer to sell or the solicitation of an offer to buy securities
in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not
assume that the information contained in this prospectus, any applicable prospectus supplement or any related free writing prospectus
is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated
by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus,
any applicable prospectus supplement or any related free writing prospectus is delivered or securities sold on a later date.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
by reference contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended, which involve risks and uncertainties. Forward-looking statements
provide current expectations of future events based on certain assumptions and include any statement that does not directly relate
to any historical or current fact. Forward-looking statements may refer to such matters as products, product benefits, pre-clinical
and clinical development timelines, clinical and regulatory expectations and plans, regulatory developments and requirements, the
receipt of regulatory approvals, the results of clinical trials, patient acceptance of Lipocine’s products, manufacturing
and commercialization of Lipocine’s products, anticipated financial performance, future revenues or earnings, business prospects,
projected ventures, new products and services, anticipated market performance, future expectations for liquidity and capital resources
needs and similar matters. These are based on our management’s current beliefs, expectations and assumptions about future
events, conditions and results and on information currently available to us. Discussions containing these forward-looking statements
may be found, among other places, in the Sections of this prospectus entitled “Prospectus Summary” and “Risk
Factors.”
All statements, other than statements of
historical fact, included or incorporated herein regarding our strategy, future operations, financial position, future revenues,
projected costs, plans, prospects and objectives are forward-looking statements. In some cases, you can identify forward-looking
statements by terms such as “anticipate,” “believe,” “could,” “estimate,” “expect,”
“intend,” “may,” “plan,” “potential,” “predict,” “project,”
“should,” “will,” “would” and similar expressions. These statements involve risks, uncertainties
and other factors that may cause our actual results, performance, time frames or achievements to be materially different from any
future results, performance, time frames or achievements expressed or implied by the forward-looking statements. Risks, uncertainties
and other factors that might cause or contribute to such differences include, but are not limited to, those discussed in the Section
entitled “Risk Factors” in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. Given these
risks, uncertainties and other factors, many of which are beyond our control, you should not place undue reliance on these forward-looking
statements.
In addition, past financial and/or operating
performance is not necessarily a reliable indicator of future performance and you should not use our historical performance to
anticipate results or future period trends. We can give no assurances that any of the events anticipated by the forward-looking
statements will occur or, if any of them do, what impact they will have on our results of operations and financial condition. Except
as required by law, we assume no obligation to update these forward-looking statements publicly, or to revise any forward-looking
statements to reflect events or developments occurring after the date of this prospectus, even if new information becomes available
in the future.
Prospectus Summary
This summary highlights selected information
from this prospectus and does not contain all of the information that you need to consider in making your investment decision.
You should carefully read the entire prospectus, including the risks of investing discussed under “Risk Factors” beginning
on page 5, the information incorporated by reference, including our financial statements, and the exhibits to the registration
statement of which this prospectus is a part.
Overview of Our Business
We are a specialty pharmaceutical company
focused on applying our oral drug delivery technology for the development of pharmaceutical products in the area of men’s
and women’s health. Our proprietary delivery technologies are designed to improve patient compliance and safety through orally
available treatment options. Our primary development programs are based on oral delivery solutions for poorly bioavailable drugs.
We have a portfolio of proprietary product candidates designed to produce favorable pharmacokinetic (“PK”) characteristics
and facilitate lower dosing requirements, bypass first-pass metabolism in certain cases, reduce side effects, and eliminate gastrointestinal
interactions that limit bioavailability. Our lead product candidate, TLANDO™ or LPCN 1021, is an oral testosterone replacement
therapy (“TRT”) and is currently under review by the United States Food and Drug Administration (“FDA”)
with a Prescription Drug User Fee Act (“PDUFA”) goal date of February 8, 2018. The FDA has deemed the resubmission
a complete response to its June 2016 Complete Response Letter (“CRL”) that requested additional information related
to the dosing algorithm for the proposed label. The TLANDO New Drug Application (“NDA”) is based on the results of
the Dosing Validation (“DV”
)
study. The DV study confirmed the efficacy of TLANDO with a fixed dose regimen
without need for dose adjustment. TLANDO was well tolerated upon 52-week exposure with no reports of drug related Serious Adverse
Events (“SAEs”). Additionally, the Bone, Reproductive and Urologic Drugs Advisory Committee (“BRUDAC”)
of the FDA plans to discuss the NDA for TLANDO. The advisory committee meeting date has not been finalized but will occur prior
to the PDUFA goal date. Although there is no guarantee of approval of TLANDO, we believe the results from the DV study confirm
the validity of a fixed dose approach without the need for dose titration to orally administering LPCN 1021. Additional pipeline
candidates include LPCN 1111, a next generation oral testosterone therapy product with the potential for once daily dosing, that
is currently in Phase 2 testing, and LPCN 1107, which has the potential to become the first oral hydroxyprogesterone caproate product
indicated for the prevention of recurrent preterm birth, and has completed an End-of-Phase 2 meeting with the FDA.
To date, we have funded our operations primarily
through the sale of equity securities and convertible debt and through up-front payments, research funding and milestone payments
from our license and collaboration arrangements. We have not generated any revenues from product sales and we do not expect to
generate revenue from product sales unless and until we obtain regulatory approval of TLANDO or other products.
We have incurred losses in most years since
our inception. Substantially all of our operating losses resulted from expenses incurred in connection with our product candidate
development programs, our research activities and general and administrative costs associated with our operations.
We expect to continue to incur significant
expenses and operating losses for the foreseeable future as we:
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prepare for an FDA Advisory Committee meeting;
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conduct further development of our other product candidates, including LPCN 1111 and LPCN 1107;
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continue our research efforts;
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maintain, expand and protect our intellectual property portfolio;
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expand our marketing and sales efforts as we perform pre-commercialization activities; and
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provide general and administrative support for our operations.
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To fund future long-term operations, we
will need to raise additional capital. The amount and timing of future funding requirements will depend on many factors, including
capital market conditions, regulatory requirements and outcomes related to TLANDO, regulatory requirements related to our other
development programs, the timing and results of our ongoing development efforts, the potential expansion of our current development
programs, potential new development programs, the pursuit of various potential commercial activities and strategies associated
with our development programs and related general and administrative support. We anticipate that we will seek to fund our operations
through public or private equity or debt financings or other sources, such as potential license, partnering and collaboration
agreements. In March 2017, we entered into a Controlled Equity Offering Sales Agreement (the “Sales Agreement”) with
Cantor Fitzgerald & Co. (“Cantor”) pursuant to which we may issue and sell, from time to time, shares of our common
stock through Cantor as our sales agent (the “ATM Offering”). However, even with the ATM Offering, we cannot be certain
that anticipated additional financing will be available to us on favorable terms, or at all. Although we have previously been
successful in obtaining financing through public and private equity securities offerings and our license and collaboration agreements,
there can be no assurance that we will be able to do so in the future. If we are unable to raise sufficient capital to fund our
planned business operations and the continued development of our product candidates, we will have to reduce operations and expenses
to conserve cash.
Corporate Information
Marathon
Bar Corp. (“Marathon Bar”) was incorporated on October 13, 2011, in the State of Delaware. On July 24, 2013, Marathon
Bar and MBAR Acquisition Corp. (“Merger Sub”), a wholly owned subsidiary of Marathon Bar, and Lipocine Operating Inc.
(“Lipocine Operating”), a privately held company incorporated in Delaware, executed an Agreement and Plan of Merger
(“Merger Agreement”). Pursuant to the Merger Agreement, Merger Sub merged with and into Lipocine Operating and Lipocine
Operating was the surviving entity. Additionally, pursuant to the Merger Agreement, Marathon Bar changed its name to Lipocine Inc.
Our
principal executive offices are located at 675 Arapeen Drive, Suite 202, Salt Lake City, Utah 84108 and our telephone number is
(801) 994-7383. We maintain a website at www.lipocine.com. Information contained in or accessible through our website does not
constitute a part of this prospectus.
The Securities We May Offer
We may offer shares of our common stock
and preferred stock, various series of debt securities and warrants to purchase any of such securities, either individually or
in units, with a total value of up to $150,000,000 million from time to time under this prospectus, together with any applicable
prospectus supplement and related free writing prospectus, at prices and on terms to be determined by market conditions at the
time of offering. This prospectus provides you with a general description of the securities we may offer. Each time we offer a
type or series of securities, we will provide a prospectus supplement that will describe the specific amounts, prices and other
important terms of the securities, including, to the extent applicable:
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designation or classification;
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aggregate principal amount or aggregate offering price;
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maturity, if applicable;
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original issue discount, if any;
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rates and times of payment of interest or dividends, if any;
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redemption, conversion, exchange or sinking fund terms, if any;
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conversion or exchange prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion
or exchange prices or rates and in the securities or other property receivable upon conversion or exchange;
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restrictive covenants, if any;
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voting or other rights, if any; and
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important United States federal income tax considerations.
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A prospectus supplement and any related
free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this
prospectus or in documents we have incorporated by reference. However, no prospectus supplement or free writing prospectus will
offer a security that is not registered and described in this prospectus at the time of the effectiveness of the registration statement
of which this prospectus is a part.
We may sell the securities directly to or
through underwriters, dealers or agents. We, and our underwriters or agents, reserve the right to accept or reject all or part
of any proposed purchase of securities. If we do offer securities through underwriters or agents, we will include in the applicable
prospectus supplement:
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the names of those underwriters or agents;
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applicable fees, discounts and commissions to be paid to them;
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details regarding over-allotment options, if any; and
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the net proceeds to us.
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Common Stock
. We may offer
shares of our common stock from time to time. Each outstanding share of common stock entitles the holder thereof to one vote per
share on all matters. Our bylaws provide that any vacancy occurring in the board of directors may be filled by the affirmative
vote of a majority of the remaining directors. Stockholders do not have preemptive rights to purchase shares in any future issuance
of our common stock. In the event of our liquidation, dissolution or winding up, holders of our common stock are entitled to receive,
ratably, the net assets available to stockholders after payment of all creditors. All of the issued and outstanding shares of our
common stock are duly authorized, validly issued, fully paid and non-assessable. Our common stock is described in greater detail
in this prospectus under “Description of Capital Stock — Common Stock.”
Preferred Stock
. Our board
of directors has the authority under our amended and restated certificate of incorporation, without further action by our stockholders,
to issue up to 10,000,000 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 rights, preferences, privileges and restrictions of the shares of each wholly unissued
series, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference and sinking fund
terms, 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). Our Preferred Stock is described in greater detail in this prospectus under “Description of Capital Stock —
Preferred Stock.”
We will fix the rights, preferences, privileges,
qualifications and restrictions of the preferred stock of each series that we sell under this prospectus and applicable prospectus
supplements in the certificate of designation relating to that series. We will incorporate by reference into the registration statement
of which this prospectus is a part the form of any certificate of designation that describes the terms of the series of preferred
stock we are offering before the issuance of the related series of preferred stock. We urge you to read the prospectus supplements
and any free writing prospectus that we may authorize to be provided to you related to the series of preferred stock being offered,
as well as the complete certificate of designation that contains the terms of the applicable series of preferred stock.
Debt Securities
. We may offer
debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible
debt. The debt securities will be issued under one or more documents called indentures, which are contracts between us and a trustee
for the holders of the debt securities. In this prospectus, we have summarized certain general features of the debt securities
under “Description of Debt Securities.” We urge you, however, to read the prospectus supplements and any free writing
prospectus that we may authorize to be provided to you related to the series of debt securities being offered, as well as the complete
indentures that contain the terms of the debt securities. Forms of indentures have been filed as exhibits to the registration statement
of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of debt securities
being offered will be filed as exhibits to the registration statement of which this prospectus is a part, or incorporated by reference
from a current report on Form 8-K that we file with the SEC.
Warrants
. We may offer warrants
for the purchase of our common stock, preferred stock and/or debt securities in one or more series, from time to time. We may issue
warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached
to or separate from those securities.
In this prospectus, we have summarized certain
general features of the warrants under “Description of Warrants.” We urge you, however, to read the prospectus supplements
and any free writing prospectus that we may authorize to be provided to you related to the particular warrants being offered, as
well as the complete warrant document or agreement that contain the terms of the warrants. Specific warrant documents or agreements
will contain additional important terms and provisions and will be filed as exhibits to the registration statement of which this
prospectus is a part, or incorporated by reference from a current report on Form 8-K that we file with the SEC.
Units
. We may offer units
consisting of common stock, preferred stock, debt securities and/or warrants to purchase any of such securities in one or more
series. In this prospectus, we have summarized certain general features of the units under “Description of Units.”
We urge you, however, to read the prospectus supplements and any free writing prospectus that we may authorize to be provided to
you related to the particular units being offered, as well as the unit agreements that contain the terms of the units. We will
file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from a current
report on Form 8-K that we file with the SEC, the form of unit agreement and any supplemental agreements that describe the
terms of the units we are offering before the issuance of the related units.
THIS PROSPECTUS MAY NOT BE USED TO OFFER
OR SELL ANY SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
NASDAQ Capital Market
Listing
Our common stock is listed on The NASDAQ
Capital Market under the symbol “LPCN”. The applicable prospectus supplement will contain information, where applicable,
as to other listings, if any, on the NASDAQ Capital Market or other securities exchange of the securities covered by the applicable
prospectus supplement.
RISK FACTORS
An investment in our securities involves
a high degree of risk. The prospectus supplement applicable to each offering of our securities will contain a discussion of the
risks applicable to an investment in our securities. Prior to making a decision about investing in our securities, you should
carefully consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus supplement,
together with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or
incorporated by reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed
under Item 1A, “Risk Factors,” in our Annual Report on Form 10-K for the fiscal year ended December 31, 2016,
and our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2017 and June 30, 2017, both of which are incorporated
herein by reference, and may be amended, supplemented or superseded from time to time by other reports we file with the Securities
and Exchange Commission in the future. The risks and uncertainties we have described are not the only ones we face.
Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations.
USE OF PROCEEDS
Except as described in any applicable prospectus,
prospectus supplement and in any free writing prospectuses in connection with a specific offering, we currently intend to use the
net proceeds from this offering primarily for general corporate purposes.
RATIO OF
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The
following table sets forth, for each of the periods presented, our ratio of earnings to fixed charges and the ratio of earnings
to combined fixed charges and preferred stock dividends for each of the periods indicated. You should read this table in conjunction
with the financial statements and notes incorporated by reference in this prospectus.
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Six months ended June 30,
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Year ended December 31,
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2017
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2016
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2015
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2014
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Ratio of earnings to fixed charges (1)
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N/A
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N/A
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N/A
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N/A
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Ratio of earnings to combined fixed charges and preferred stock dividends (1)
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N/A
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N/A
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N/A
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N/A
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(1)
For purposes of this ratio, earnings is defined
as net loss. Our only fixed charge is the interest within our rent expense. Our earnings were insufficient to cover fixed charges
in all periods presented, and therefore we are unable to disclose a ratio of earnings to fixed charges for all periods
presented.
DESCRIPTION
OF CAPITAL STOCK
As of the date of this prospectus, our certificate
of incorporation authorizes us to issue 100,000,000 shares of common stock, par value $0.0001 per share, and 10,000,000 shares
of preferred stock, par value $0.0001 per share. The following is a summary of the rights of our common and preferred stock and
some of the provisions of our amended and restated certificate of incorporation and amended and restated bylaws, our registration
rights agreements and the Delaware General Corporation Law. Because it is only a summary, it does not contain all the information
that may be important to you and is subject to and qualified in its entirety by our amended and restated certificate of incorporation
and our amended and restated bylaws, a copy of each of which has been incorporated as an exhibit to the registration statement
of which this prospectus forms a part.
Our amended and restated certificate of incorporation
and our amended and restated bylaws contain certain provisions that are intended to enhance the likelihood of continuity and stability
in the composition of the board of directors, which may have the effect of delaying, deferring or preventing a future takeover
or change in control of Lipocine unless such takeover or change in control is approved by our board of directors.
Common Stock
As of September 30, 2017 there were 21,185,817
shares of common stock outstanding. In addition, as of September 30, 2017 there were: (i) 2,067,967 shares of common stock subject
to outstanding options; (ii) 272,000 shares of common stock subject to outstanding restricted stock units; and (iii) 896,020 shares
of common stock reserved for future issuance under our Amended and Restated 2014 Stock and Incentive Plan. Each outstanding share
of common stock entitles the holder thereof to one vote per share on all matters. Our bylaws provide that any vacancy occurring
in the board of directors may be filled by the affirmative vote of a majority of the remaining directors. Stockholders do not have
preemptive rights to purchase shares in any future issuance of our common stock. In the event of our liquidation, dissolution or
winding up, holders of our common stock are entitled to receive, ratably, the net assets available to stockholders after payment
of all creditors.
All outstanding shares of common stock are,
and all shares of common stock to be outstanding upon the closing of this offering will be, fully paid and nonassessable.
Additional shares of authorized common stock
may be issued, as authorized by our board of directors from time to time, without stockholder approval, except as may be required
by applicable stock exchange requirements.
The transfer agent and registrar for our
common stock is American Stock Transfer & Trust Company LLC. Their telephone number is 1-800-937-5449. Our common stock is
listed on The NASDAQ Capital Market under the symbol “LPCN”.
Preferred Stock
Our Board of directors has the authority
under our amended and restated certificate of incorporation, without further action by our stockholders, to issue up to 10,000,000
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 rights, preferences, privileges and restrictions of the shares of each wholly unissued series, including dividend
rights, conversion rights, voting rights, terms of redemption, liquidation preference and sinking fund terms, 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).
Our board of directors may authorize the
issuance of preferred stock with voting or conversion rights that could have the effect of restricting dividends on our common
stock, diluting the voting power of our common stock, impairing the liquidation rights of our common stock or otherwise adversely
affecting the rights of holders of our common stock. The issuance of preferred stock, while providing flexibility in connection
with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing
a change of control and may adversely affect the market price of our common stock. As of September 30, 2017, no shares of preferred
stock were outstanding, and we have no current plans to issue any shares of preferred stock.
Future Preferred Stock
. Our
board of directors will fix the rights, preferences, privileges, qualifications and restrictions of the preferred stock of each
series that we sell under this prospectus and applicable prospectus supplements in the certificate of designation relating to that
series. We will file as an exhibit to the registration statement of which this prospectus is a part, or incorporate by reference
into the registration statement of which this prospectus is a part the form of any certificate of designation that describes the
terms of the series of preferred stock we are offering before the issuance of the related series of preferred stock. This description
will include:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share;
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the purchase price per share;
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the dividend rate per share, dividend period and payment dates and method of calculation for dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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our right, if any, to defer payment of dividends and the maximum length of any such deferral period;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption
and repurchase rights;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock or other securities of ours, including warrants, and,
if applicable, the conversion period, the conversion price, or how it will be calculated, and under what circumstances it may be
adjusted;
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange period, the exchange
price, or how it will be calculated, and under what circumstances it may be adjusted;
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voting rights, if any, of the preferred stock;
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preemptive rights, if any;
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restrictions on transfer, sale or other assignment, if any;
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a discussion of any material or special United States federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind
up our affairs;
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any limitations on issuances of any class or series of preferred stock ranking senior to or on a parity with the series of
preferred stock being issued as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
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any other specific terms, rights, preferences, privileges, qualifications or restrictions of the preferred stock.
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When we issue shares of preferred stock
under this prospectus, the shares will be fully paid and nonassessable and will not have, or be subject to, any preemptive or similar
rights.
The General Corporation Law of the State
of Delaware, the state of our incorporation, provides that the holders of preferred stock will have the right to vote separately
as a class on any proposal involving fundamental changes in the rights of holders of that preferred stock. This right is in addition
to any voting rights that may be provided for in the applicable certificate of designation.
Anti-Takeover Effects of Our Certificate
of Incorporation and Bylaws
Our amended and restated certificate of
incorporation and amended and restated bylaws contain certain provisions that may have anti-takeover effects, making it more difficult
for or preventing a third party from acquiring control of Lipocine or changing our board of directors and management. According
to our amended and restated certificate of incorporation and amended and restated bylaws, the holders of our common stock do not
have cumulative voting rights in the election of our directors. The combination of the present ownership and control of 6% of our
issued and outstanding common stock by our executive officers and directors as a group as of September 30, 2017 and the lack of
cumulative voting, may make it more difficult for other stockholders to replace our board of directors or for a third party to
obtain control of the company by replacing our board of directors.
Delaware Anti-Takeover Law
We are subject to Section 203 of the Delaware
General Corporation Law, or Section 203. Section 203 generally prohibits a public Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless:
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prior to the date of the transaction, 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 consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or
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at or subsequent to the time of the transaction, the business combination is approved by the board of directors of the corporation
and authorized at an annual or special meeting of its stockholders, and not by written consent, by the affirmative vote of at least
66 2/3% of our outstanding voting stock that is not owned by the interested stockholder.
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In general, Section 203 defines a “business
combination” to include mergers, asset sales and other transactions resulting in financial benefit to a stockholder and an
“interested stockholder” as a person who, together with affiliates and associates, owns (or within three years, did
own) 15% or more of a corporation’s voting stock.
S
ection 203 could prohibit or delay
mergers or other takeover or change in control attempts not approved in advance by our Board of directors and, accordingly, may
discourage attempts to acquire us even though such a transaction may offer our stockholders the opportunity to sell their stock
at a price above the prevailing market price.
Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws
Provisions of our amended and restated certificate
of incorporation and amended and restated bylaws, which became effective following the closing of the Merger, may delay or discourage
transactions involving an actual or potential change of control or change in our Board of directors or our management, including
transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our stockholders might
otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our common stock.
Among other things, our amended and restated certificate of incorporation and bylaws:
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permit our Board of directors to issue up to 10,000,000 shares of preferred stock, with any
rights, preferences and privileges as they may designate (including the right to approve an acquisition or other change of control);
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provide that the authorized number of directors may be changed only by resolution of our
Board of directors;
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provide that directors may only be removed, subject to any limitation imposed by law, by
the holders of at least a majority of all of our then-outstanding shares of the capital stock entitled to vote generally at an
election of directors;
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provide that all vacancies, including newly created directorships, may, except as otherwise
required by law, be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum;
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require that any action to be taken by our stockholders must be effected at a duly called
annual or special meeting of stockholders and not be taken by written consent or electronic transmission;
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provide that stockholders seeking to present proposals before a meeting of stockholders or
to nominate candidates for election as directors at a meeting of stockholders must provide advance notice in writing, and also
specify requirements as to the form and content of a stockholder’s notice;
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provide that special meetings of our stockholders may be called only by the chairman of our
Board of directors, our chief executive officer or by our Board of directors pursuant to a resolution adopted by a majority of
the total number of authorized directors; and
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do not provide for cumulative voting rights (therefore allowing the holders of a majority
of the shares of common stock entitled to vote in any election of directors to elect all of the directors standing for election,
if they should so choose).
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The amendment
of any of these provisions would require approval by the holders of at least 66 2/3% of the voting power of all of our then-outstanding
common stock entitled to vote generally in the election of directors, voting together as a single class.
DESCRIPTION
OF DEBT SECURITIES
This section describes the general terms
and provisions of the debt securities that we may offer using this prospectus and the related indentures. This section is only
a summary and does not purport to be complete. You must look to the relevant form of debt security and the related indenture for
a full understanding of all terms of any series of debt securities. The form of debt security and the related indenture have been
or will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part. See
“Where You Can Find More Information” for information on how to obtain copies.
We may issue senior or subordinated debt
securities from time to time in one or more series under one of two separate indentures, which may be supplemented or amended from
time to time. Senior debt securities will be issued under a senior indenture and subordinated debt securities will be issued under
a subordinated indenture. The senior debt indenture and the subordinated debt indenture are referred to individually in this prospectus
as the “indenture” and collectively as the “indentures.” This prospectus outlines briefly the provisions
of the indentures. The particular terms of a series of debt securities and the extent, if any, to which the particular terms of
the issue modify the terms of the indenture will be described in the accompanying prospectus supplement relating to such series
of debt securities. In some instances, certain of the precise terms of debt securities you are offered may be described in a further
prospectus supplement, known as a pricing supplement. The indentures are subject to and governed by the Trust Indenture Act of
1939, as amended, and may be supplemented or amended from time to time following their execution.
The debt securities may be denominated and
payable in U.S. dollars or foreign currencies. We may also issue debt securities with the principal amount, interest or other amounts
payable to be determined by reference to one or more currency exchange rates, securities or baskets of securities, commodity prices,
indices or any other financial, economic or other measure or instrument, including the occurrence or non-occurrence of any event
or circumstance. Debt securities may bear interest at a fixed rate, which may be zero, or a floating rate.
Some of the debt securities may be issued
as original issue discount debt securities. Original issue discount securities bear no interest or bear interest at below-market
rates and will be sold at a discount from their stated principal amount. The prospectus supplement relating to an issue of original
issue discount securities will contain information relating to United States federal income tax, accounting, and other special
considerations applicable to original issue discount securities.
Holders may present debt securities for
exchange or transfer, in the manner, at the places and subject to the restrictions stated in the debt securities and described
in the applicable prospectus supplement and other offering material we will provide. We will provide these services without charge
except for any tax or other governmental charge payable in connection with these services and subject to any limitations provided
in the applicable indenture pursuant to which such debt securities are issued.
Holders may transfer debt securities in
definitive bearer form and the related coupons, if any, by delivery to the transferee. If any of the securities are held in global
form, the procedures for transfer of interests in those securities will depend upon the procedures of the depositary for those
global securities.
We will generally have no obligation to
repurchase, redeem, or change the terms of debt securities upon any event (including a change in control) that might have an adverse
effect on our credit quality.
DESCRIPTION
OF WARRANTS
The following description, together with
the additional information we may include in any applicable prospectus supplements and free writing prospectuses, summarizes the
material terms and provisions of the warrants that we may offer under this prospectus, which may consist of warrants to purchase
common stock, preferred stock or debt securities and may be issued in one or more series. Warrants may be offered independently
or together with common stock, preferred stock or debt securities offered by any prospectus supplement, and may be attached to
or separate from those securities. While the terms we have summarized below will apply generally to any warrants that we may offer
under this prospectus, we will describe the particular terms of any warrants that we may offer in more detail in the applicable
prospectus supplement and any applicable free writing prospectus. The terms of any warrants offered under a prospectus supplement
may differ from the terms described below. However, no prospectus supplement will fundamentally change the terms that are set forth
in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that we file
with the SEC, the form of warrant document or agreement that describes the terms of the particular warrants we are offering before
the issuance of the related warrants. The following summaries of material provisions of the warrants are subject to, and qualified
in their entirety by reference to, all the provisions of the warrant document or agreement applicable to particular warrants. We
urge you to read the applicable prospectus supplement and any applicable free writing prospectus related to the particular warrants
that we sell under this prospectus, as well as the complete warrant document or agreement that contain the terms of the warrants.
General
We will describe in the applicable prospectus
supplement the terms relating to the warrants, including, if applicable:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued
with each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one
warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock,
as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such
exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreements and warrants may be modified;
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material United States federal income tax consequences of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before exercising their warrants, holders
of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or
interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon
our liquidation, dissolution or winding up or to exercise voting rights, if any.
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Exercise of Warrants
Each warrant will entitle the holder to
purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable
prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise
the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement.
After the close of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the
warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information, and
paying the required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement.
We will set forth in the warrant agreement or documents and in the applicable prospectus supplement the information that the holder
of the warrant will be required to deliver to the warrant agent.
Upon receipt of the required payment and
the warrant documents properly completed and duly executed at the office of the warrant agent or any other office indicated in
the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all
of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining
amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities
as all or part of the exercise price for warrants.
DESCRIPTION
OF UNITS
The following description, together with
the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions
of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units
that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable
prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security
that is not registered and described in this prospectus at the time of its effectiveness.
We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference from a current report on Form 8-K that we file
with the SEC, the form of unit agreement that describes the terms of the units we are offering, and any supplemental agreements,
before the issuance of the related units. The following summaries of material terms and provisions of the units are subject to,
and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental agreements applicable
to particular units. We urge you to read the applicable prospectus supplements related to the particular units that we sell under
this prospectus, as well as the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We may issue units comprised of one or more
debt securities, shares of common stock, shares of preferred stock and warrants in any combination. Each unit will be issued so
that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the
rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that
the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus
supplement the terms of the units, including:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the
units.
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The provisions described in this section,
as well as those described under “Description of Capital Stock,” “Description of Debt Securities” and “Description
of Warrants” will apply to each unit and to any common stock, preferred stock, debt security or warrant included in each
unit, respectively.
Issuance in Series
We may issue units in such amounts and in
numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act solely as our agent
under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder of any
unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no duty or
responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility to
initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the
related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security
included in the unit.
We, the unit agents, and any of their agents
may treat the registered holder of any unit certificate as an absolute owner of the units evidenced by that certificate for any
purpose and as the person entitled to exercise the rights attaching to the units so requested, despite any notice to the contrary.
PLAN OF
DISTRIBUTION
We may sell the securities from time to
time pursuant to underwritten public offerings, direct sales to the public, negotiated transactions, block trades or a combination
of these methods. We may sell the securities to or through underwriters or dealers, through agents, directly to one or more purchasers,
or through any combination of these methods. The distribution of the securities may be effected from time to time in one or more
transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related
to the prevailing market prices or at negotiated prices.
A prospectus supplement or supplements (and
any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of the
securities, including, to the extent applicable:
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the name or names of any underwriters or dealers, if any;
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the purchase price of the securities and the proceeds we will receive from the sale;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
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any public offering price;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchange or market on which the securities may be listed.
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Only underwriters named in the prospectus
supplement are underwriters of the securities offered by the prospectus supplement.
By Underwriters
If underwriters are used in the sale, they
will acquire the securities for their own account and may resell the securities from time to time in one or more transactions at
a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securities
to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject
to certain conditions, the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement.
Any public offering price and any discounts or concessions allowed or reallowed may change from time to time. We may use underwriters
with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of
any such relationship.
By Dealers
If a dealer is utilized in the sale of any
securities offered by this prospectus, we will sell those securities to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer at the time of resale. We will set forth the names of
the dealers and the terms of the transaction in the applicable prospectus supplement.
By Agents
We may sell securities directly or through
agents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe
any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent
will act on a best-efforts basis for the period of its appointment.
By Direct Sales
We may also directly sell securities offered
by this prospectus. In this case, no underwriters or agents would be involved. We will describe the terms of those sales in the
applicable prospectus supplement.
General Information
Underwriters, dealers and agents that participate
in the distribution of the securities offered by this prospectus may be deemed underwriters under the Securities Act, and any discounts
or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts and
commissions under the Securities Act.
We may authorize agents, dealers or underwriters
to solicit offers by certain types of institutional investors to purchase securities from us at the public offering price set forth
in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the
future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts
in the prospectus supplement.
We may provide agents and underwriters with
indemnification against civil liabilities related to this offering, including liabilities under the Securities Act, or contribution
with respect to payments that the agents or underwriters may make with respect to these liabilities. Agents and underwriters may
engage in transactions with, or perform services for, us in the ordinary course of business.
Some or all of the securities we offer,
other than common stock, will be new issues of securities with no established trading market. Any underwriters may make a market
in these securities, but will not be obligated to do so and may discontinue any market making at any time without notice. We cannot
guarantee the liquidity of the trading markets for any securities.
We may enter into derivative transactions
with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If
the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third parties may
use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of
stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock.
The third parties in such sale transactions will be identified in the applicable prospectus supplement.
One or more firms, referred to as “remarketing
firms,” may also offer or sell the securities, if the prospectus supplement so indicates, in connection with a remarketing
arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as agents for us. These remarketing
firms will offer or sell the securities in accordance with the terms of the securities. The prospectus supplement will identify
any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s compensation.
Remarketing firms may be deemed to be underwriters in connection with the securities they remarket.
Any underwriter may engage in overallotment,
stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act.
Overallotment involves sales in excess of the offering size, which create a short position. This short sales position may involve
either “covered” short sales or “naked” short sales. Covered short sales are short sales made in an amount
not greater than the underwriters’ over-allotment option to purchase additional securities in this offering described above.
The underwriters may close out any covered short position either by exercising their over-allotment option or by purchasing securities
in the open market. To determine how they will close the covered short position, the underwriters will consider, among other things,
the price of securities available for purchase in the open market, as compared to the price at which they may purchase securities
through the over-allotment option. Naked short sales are short sales in excess of the over-allotment option. The underwriters must
close out any naked short position by purchasing securities in the open market. A naked short position is more likely to be created
if the underwriters are concerned that, in the open market after pricing, there may be downward pressure on the price of the securities
that could adversely affect investors who purchase securities in this offering. Stabilizing transactions permit bids to purchase
the underlying security for the purpose of fixing the price of the security so long as the stabilizing bids do not exceed a specified
maximum. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold
by the dealer are purchased in a covering transaction to cover short positions.
Any underwriters who are qualified market
makers on the NASDAQ Capital Market may engage in passive market making transactions in our common stock, preferred stock, warrants
and debt securities, as applicable, on the NASDAQ Capital Market in accordance with Rule 103 of Regulation M, during
the business day prior to the pricing of the offering, before the commencement of offers or sales of the securities. Passive market
makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a
passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent
bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered
when certain purchase limits are exceeded.
Similar to other purchase transactions,
an underwriter’s purchase to cover the syndicate short sales or to stabilize the market price of our securities may have
the effect of raising or maintaining the market price of our securities or preventing or mitigating a decline in the market price
of our securities. As a result, the price of our securities may be higher than the price that might otherwise exist in the open
market. The imposition of a penalty bid might also have an effect on the price of the securities if it discourages resales of the
securities.
Neither we nor the underwriters make any
representation or prediction as to the effect that the transactions described above may have on the price of the securities. If
such transactions are commenced, they may be discontinued without notice at any time.
Our common stock is listed on The NASDAQ
Capital Market under the symbol “LPCN”.
LEGAL MATTERS
Dorsey & Whitney LLP, Salt Lake City,
Utah will pass for us upon the validity of the securities being offered by this prospectus and applicable prospectus supplement,
and counsel named in the applicable prospectus supplement will pass upon legal matters for any underwriters, dealers or agents.
EXPERTS
The consolidated financial statements of
Lipocine Inc. as of December 31, 2016 and 2015, and for each of the years in the three-year period ended December 31, 2016, have
been incorporated by reference herein in reliance on the reports of KPMG LLP, independent registered public accounting firm, incorporated
by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We are a reporting company and file annual,
quarterly and current reports, proxy statements and other information with the SEC. We have filed with the SEC a registration statement
on Form S-3 under the Securities Act with respect to the securities we are offering under this prospectus. This prospectus does
not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For
further information with respect to us and the securities we are offering under this prospectus, we refer you to the registration
statement and the exhibits and schedules filed as a part of the registration statement. You may read and copy the registration
statement, as well as our reports, proxy statements and other information, at the SEC’s Public Reference Room at 100 F Street,
N.E., Washington, D.C. 20549. You can request copies of these documents by writing to the SEC and paying a fee for the copying
cost. Please call the SEC at 1-800-SEC-0330 for more information about the operation of the Public Reference Room. The SEC maintains
an internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically
with the SEC, where our SEC filings are also available. The address of the SEC’s web site is “http://www.sec.gov.”
We maintain a website at www.lipocine.com. Information contained in or accessible through our website does not constitute a part
of this prospectus.
INCORPORATION
BY REFERENCE
The SEC allows us to “incorporate
by reference” information that we file with it into this prospectus, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus.
The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with
the Commission will automatically update and supersede information contained in this prospectus and any accompanying prospectus
supplement. We incorporate by reference the documents listed below that we have previously filed with the Commission:
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Our Annual Report on Form 10-K for the year ended December 31, 2016;
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Our Definitive Proxy Statement filed on Schedule 14A on April 28, 2017;
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Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017 and June 30, 2017;
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Our Current Reports on Form 8-K filed on January 31, 2017, March 6, 2017 (only with respect to item 8.01), April 24, 2017,
May 26, 2017, June 13, 2017, June 19, 2017, June 26, 2017, June 28, 2017, July 7, 2017, July 10, 2017, August 8, 2017, August 9,
2017, August 14, 2017, September 8, 2017, September 20, 2017, September 21, 2017, and September 25, 2017; and
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The description of our common stock, which is contained in the Registration Statement on Form 8-A, as filed with the SEC on
March 18, 2014, including any amendment or report filed for the purpose of updating such description.
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We also incorporate by reference into this
prospectus additional documents that we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
excluding, in each case, information deemed furnished and not filed until we sell all of the securities we are offering or the
termination of the offering. Any statements contained in a previously filed document incorporated by reference into this prospectus
is deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus,
or in a subsequently filed document also incorporated by reference herein, modifies or supersedes that statement.
We will provide to each person, including
any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request, a copy of any or all of the
information that has been incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits
that are specifically incorporated by reference into such documents. Requests should be directed to: Lipocine Inc., Attention:
Investor Relations, 675 Arapeen Drive, Suite 202, Salt Lake City, Utah 84108 and our telephone number is (801) 994-7383.
$150,000,000
Lipocine Inc.
Common Stock, Preferred Stock,
Debt Securities,
Warrants and Units
The information
in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities
until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities, and it is not soliciting offers to buy these securities in any state where such offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED OCTOBER 13, 2017
PROSPECTUS
Up To
$25,000,000
Common
Stock
We have entered into a Controlled
Equity Offering
SM
Sales Agreement (the “Sales Agreement”) with
Cantor Fitzgerald & Co. (“Cantor Fitzgerald”) relating to shares of our common stock offered by this
prospectus. In accordance with the terms of the Sales Agreement, we may offer and sell shares of our common stock having an
aggregate offering price of up to $25,000,000 from time to time through Cantor Fitzgerald, acting as sales agent.
Our common stock is listed on the NASDAQ
Capital Market under the symbol “LPCN.” On October 12, 2017, the last reported sale price of our common stock on the
NASDAQ Capital Market was $4.15 per share.
Sales of our common stock, if any, under
this prospectus may be made in sales deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated
under the Securities Act of 1933, as amended (the “Securities Act”). Cantor Fitzgerald has agreed to act as sales agent
on a best efforts basis and use commercially reasonable efforts to sell on our behalf all of the shares of common stock requested
to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between Cantor Fitzgerald and
us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The compensation to Cantor Fitzgerald for
sales of common stock sold pursuant to the Sales Agreement will be at a fixed commission rate of 3.0% of the gross proceeds of
any shares of common stock sold under the Sales Agreement. In connection with the sale of the common stock on our behalf, Cantor
Fitzgerald will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of Cantor
Fitzgerald will be deemed to be underwriting commissions or discounts.
Investing in our securities involves
a high degree of risk. See “Risk Factors” beginning on page 7 of the accompanying prospectus, the “Risk
Factors” section beginning on page 17 of our Annual Report on Form 10-K for the year ended December 31, 2016, the “Risk
Factors” section beginning on page 29 of our Quarterly Report on Form 10-Q for the quarter ended March 31, 2017, the “Risk
Factors” section beginning on page 31 of our Quarterly Report on Form 10-Q for the quarter-ended June 30, 2017, and under
similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy
of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2017.
TABLE OF
CONTENTS
Prospectus
ABOUT THIS
PROSPECTUS
References in this prospectus and the documents
incorporated by reference to the “Company,” “Lipocine,” “our,” “us” or “we”
refer to Lipocine Inc. and its subsidiaries.
This prospectus is part of a registration
statement that we have filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration
process. This prospectus describes the specific terms of this offering and certain other matters. You should rely only on the information
contained in, or incorporated by reference in, this prospectus and any related “free writing prospectus.” Neither the
Company nor the underwriters has authorized anyone to provide information different from that contained in, incorporated or deemed
incorporated by reference into this prospectus.
We
provide information to you about this offering of shares of our common stock in two separate documents that are bound together:
(1) this at-the-market sales agreement prospectus, which describes the specific details regarding this offering; and (2) the
accompanying base prospectus, which provides general information, some of which may not apply to this offering. Generally, when
we refer to this “prospectus,” we are referring to both documents combined. If information in this at-the-market
sales agreement prospectus is inconsistent with the accompanying base prospectus, you should rely on this at-the-market sales agreement
prospectus. However, if any statement in one of these documents is inconsistent with a statement in a document having a later date
incorporated by reference in this prospectus, the statement in the document incorporated by reference modifies or supersedes the
earlier statement as our business, financial condition, results of operations and prospects may have changed since the earlier
dates.
We
note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document
that is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in some
cases, for the purpose of allocating risk among the parties to such agreement, and should not be deemed to be a representation,
warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made.
Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state
of our affairs.
Before you invest, you should read the registration
statement of which this prospectus forms a part, this prospectus and the documents incorporated by reference herein that are described
under the headings “Where You Can Find More Information” and “Incorporation by Reference.”
The information in this prospectus may only
be accurate on the date of this prospectus. You should assume that the information appearing in this prospectus is accurate only
as of the date on the front cover of this prospectus. Our business, financial condition, results of operations and prospects may
have changed since that date.
We are not making an offer of these securities
in any jurisdiction where the offer is not permitted.
This prospectus contains summaries of certain
provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information.
All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein
have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus
is a part, and you may obtain copies of those documents as described below under the heading “Where You Can Find More Information.”
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
by reference contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended, which involve risks and uncertainties. Forward-looking statements
provide current expectations of future events based on certain assumptions and include any statement that does not directly relate
to any historical or current fact. Forward-looking statements may refer to such matters as products, product benefits, pre-clinical
and clinical development timelines, clinical and regulatory expectations and plans, regulatory developments and requirements, the
receipt of regulatory approvals, the results of clinical trials, patient acceptance of Lipocine’s products, manufacturing
and commercialization of Lipocine’s products, anticipated financial performance, future revenues or earnings, business prospects,
projected ventures, new products and services, anticipated market performance, future expectations for liquidity and capital resources
needs and similar matters. These are based on our management’s current beliefs, expectations and assumptions about future
events, conditions and results and on information currently available to us. Discussions containing these forward-looking statements
may be found, among other places, in the Sections of this prospectus entitled “Prospectus Summary” and “Risk
Factors.”
All statements, other than statements of
historical fact, included or incorporated herein regarding our strategy, future operations, financial position, future revenues,
projected costs, plans, prospects and objectives are forward-looking statements. In some cases, you can identify forward-looking
statements by terms such as “anticipate,” “believe,” “could,” “estimate,” “expect,”
“intend,” “may,” “plan,” “potential,” “predict,” “project,”
“should,” “will,” “would” and similar expressions. These statements involve risks, uncertainties
and other factors that may cause our actual results, performance, time frames or achievements to be materially different from any
future results, performance, time frames or achievements expressed or implied by the forward-looking statements. Risks, uncertainties
and other factors that might cause or contribute to such differences include, but are not limited to, those discussed in the Section
entitled “Risk Factors” in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. Given these
risks, uncertainties and other factors, many of which are beyond our control, you should not place undue reliance on these forward-looking
statements.
In addition, past financial and/or operating
performance is not necessarily a reliable indicator of future performance and you should not use our historical performance to
anticipate results or future period trends. We can give no assurances that any of the events anticipated by the forward-looking
statements will occur or, if any of them do, what impact they will have on our results of operations and financial condition. Except
as required by law, we assume no obligation to update these forward-looking statements publicly, or to revise any forward-looking
statements to reflect events or developments occurring after the date of this prospectus, even if new information becomes available
in the future.
PROSPECTUS
SUMMARY
This summary is not complete and
does not contain all of the information that you should consider before investing in the securities offered by this prospectus.
You should carefully read this prospectus, including the documents we incorporate by reference, to understand fully our common
stock as well as other considerations that are important to you in making a decision to invest in our common stock. You should
pay special attention to the “Risk Factors” section beginning on page S-4 of this prospectus, the “Risk Factors”
section beginning on page 17 of our Annual Report on Form 10-K for the year ended December 31, 2016, which is incorporated by reference
in this prospectus along with our consolidated financial statements and notes to those consolidated financial statements, the “Risk
Factors” section beginning on page 29 of our Quarterly Report on Form 10-Q for the quarter ended March 31, 2017, which is
incorporated by reference in this prospectus, and the “Risk Factors” section beginning on page 31 of our Quarterly
Report on Form 10-Q for the quarter ended June 30, 2017, which is incorporated by reference in this prospectus and the other information
incorporated by reference in this prospectus to determine whether an investment in our common stock is appropriate for you. This
prospectus includes forward-looking statements that involve risks and uncertainties.
Overview of Our Business
We are a specialty pharmaceutical company
focused on applying our oral drug delivery technology for the development of pharmaceutical products in the area of men’s
and women’s health. Our proprietary delivery technologies are designed to improve patient compliance and safety through orally
available treatment options. Our primary development programs are based on oral delivery solutions for poorly bioavailable drugs.
We have a portfolio of proprietary product candidates designed to produce favorable pharmacokinetic (“PK”) characteristics
and facilitate lower dosing requirements, bypass first-pass metabolism in certain cases, reduce side effects, and eliminate gastrointestinal
interactions that limit bioavailability. Our lead product candidate, TLANDO™ or LPCN 1021, is an oral testosterone replacement
therapy (“TRT”) and is currently under review by the United States Food and Drug Administration (“FDA”)
with a Prescription Drug User Fee Act (“PDUFA”) goal date of February 8, 2018. The FDA has deemed the resubmission
a complete response to its June 2016 Complete Response Letter (“CRL”) that requested additional information related
to the dosing algorithm for the proposed label. The TLANDO New Drug Application (“NDA”) is based on the results of
the Dosing Validation (“DV”
)
study. The DV study confirmed the efficacy of TLANDO with a fixed dose regimen
without need for dose adjustment. TLANDO was well tolerated upon 52-week exposure with no reports of drug related Serious Adverse
Events (“SAEs”). Additionally, the Bone, Reproductive and Urologic Drugs Advisory Committee (“BRUDAC”)
of the FDA plans to discuss the NDA for TLANDO. The advisory committee meeting date has not been finalized but will occur prior
to the PDUFA goal date. Although there is no guarantee of approval of TLANDO, we believe the results from the DV study confirm
the validity of a fixed dose approach without the need for dose titration to orally administering LPCN 1021. Additional pipeline
candidates include LPCN 1111, a next generation oral testosterone therapy product with the potential for once daily dosing, that
is currently in Phase 2 testing, and LPCN 1107, which has the potential to become the first oral hydroxyprogesterone caproate product
indicated for the prevention of recurrent preterm birth, and has completed an End-of-Phase 2 meeting with the FDA.
To date, we have funded our operations primarily
through the sale of equity securities and convertible debt and through up-front payments, research funding and milestone payments
from our license and collaboration arrangements. We have not generated any revenues from product sales and we do not expect to
generate revenue from product sales unless and until we obtain regulatory approval of TLANDO or other products.
We have incurred losses in most years since
our inception. Substantially all of our operating losses resulted from expenses incurred in connection with our product candidate
development programs, our research activities and general and administrative costs associated with our operations.
We expect to continue to incur significant
expenses and operating losses for the foreseeable future as we:
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prepare for an FDA Advisory Committee meeting;
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conduct further development of our other product candidates, including LPCN 1111 and LPCN 1107;
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continue our research efforts;
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maintain, expand and protect our intellectual property portfolio;
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expand our marketing and sales efforts as we perform pre-commercialization activities; and
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provide general and administrative support for our operations.
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To fund future long-term operations, we
will need to raise additional capital. The amount and timing of future funding requirements will depend on many factors, including
capital market conditions, regulatory requirements and outcomes related to TLANDO, regulatory requirements related to our other
development programs, the timing and results of our ongoing development efforts, the potential expansion of our current development
programs, potential new development programs, the pursuit of various potential commercial activities and strategies associated
with our development programs and related general and administrative support. We anticipate that we will seek to fund our operations
through public or private equity or debt financings or other sources, such as potential license, partnering and collaboration agreements.
In March 2017, we entered into a Controlled Equity Offering Sales Agreement (the “Sales Agreement”) with Cantor Fitzgerald
& Co. (“Cantor”) pursuant to which we may issue and sell, from time to time, shares of our common stock through
Cantor as our sales agent (the “ATM Offering”). However, even with the ATM Offering, we cannot be certain that anticipated
additional financing will be available to us on favorable terms, or at all. Although we have previously been successful in obtaining
financing through public and private equity securities offerings and our license and collaboration agreements, there can be no
assurance that we will be able to do so in the future. If we are unable to raise sufficient capital to fund our planned business
operations and the continued development of our product candidates, we will have to reduce operations and expenses to conserve
cash.
Corporate Information
Marathon
Bar Corp. (“Marathon Bar”) was incorporated on October 13, 2011, in the State of Delaware. On July 24, 2013, Marathon
Bar and MBAR Acquisition Corp. (“Merger Sub”), a wholly owned subsidiary of Marathon Bar, and Lipocine Operating Inc.
(“Lipocine Operating”), a privately held company incorporated in Delaware, executed an Agreement and Plan of Merger
(“Merger Agreement”). Pursuant to the Merger Agreement, Merger Sub merged with and into Lipocine Operating and Lipocine
Operating was the surviving entity. Additionally, pursuant to the Merger Agreement, Marathon Bar changed its name to Lipocine Inc.
Our
principal executive offices are located at 675 Arapeen Drive, Suite 202, Salt Lake City, Utah 84108 and our telephone number is
(801) 994-7383. We maintain a website at www.lipocine.com. Information contained in or accessible through our website does not
constitute a part of this prospectus.
THE OFFERING
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Common stock offered by us
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Shares of our common stock having an aggregate offering price of up to $25.0 million.
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Common stock outstanding after this offering
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Up to 6,024,096 shares, assuming sales at a price of $4.15 per share, which was the closing price of our common stock on The NASDAQ Capital Market on October 12, 2017. The actual number of shares issued will vary depending on the sales price under this offering.
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Plan of Distribution
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“At the market offering” that may be made from time to time through our sales agent, Cantor Fitzgerald. See “Plan of Distribution” on page S-8.
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Use of Proceeds
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We currently intend to use the net proceeds from this offering primarily for general corporate purposes. See “Use of Proceeds” on page S-5 of this prospectus.
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Risk Factors
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Investing in our common stock involves a high degree of risk. You should consider carefully all the information included or incorporated by reference in this prospectus and the sections entitled “Risk Factors” beginning on page S-4 of this prospectus, page 17 of our Annual Report on Form 10-K for the year ended December 31, 2016, page 29 of our Quarterly Report on Form 10-Q for the quarter ended March 31, 2017, page 31 of our Quarterly Report on Form 10-Q for the quarter ended June 30, 2017, and under similar headings in the other documents that are filed after the date hereof and incorporated by reference in this prospectus before deciding whether to purchase our common stock in this offering.
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NASDAQ Capital Market symbol
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LPCN
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The number of shares of common stock to
be outstanding after this offering as reflected in the table above is based on the actual number of shares outstanding as of September
30, 2017, which was 21,185,817, and does not include, as of that date 2,067,967 options to purchase shares of our common stock
issued under our 2014 Stock and Incentive Plan and 272,000 restricted stock units of our common stock issued under our 2014 Stock
and Incentive Plan.
RISK FACTORS
Before you make a decision to invest
in our securities, you should consider carefully the risks described below, together with other information in this prospectus
and the information incorporated by reference herein and therein, including any risk factors contained in our annual and other
reports filed with the SEC. If any of the following events actually occur, our business, operating results, prospects or financial
condition could be materially and adversely affected. This could cause the trading price of our common stock to decline and you
may lose all or part of your investment. The risks described below are not the only ones that we face. Additional risks not presently
known to us or that we currently deem immaterial may also significantly impair our business operations and could result in a complete
loss of your investment.
RISKS RELATED TO THIS OFFERING
Since we have broad discretion in how we use the proceeds
from this offering, we may use the proceeds in ways with which you disagree.
We have not allocated specific amounts of
the net proceeds from this offering for any specific purpose. Accordingly, our management will have some flexibility in applying
the net proceeds of this offering. You will be relying on the judgment of our management with regard to the use of these net proceeds,
and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately.
It is possible that the net proceeds will be invested in a way that does not yield a favorable, or any, return for us. The failure
of our management to use such funds effectively could have a material adverse effect on our business, financial condition, operating
results and cash flow.
You will experience immediate dilution in the book value
per share of the common stock you purchase.
The offering price per share in this offering
may exceed the net tangible book value per share of our common stock outstanding prior to this offering. Assuming that an aggregate
of 6,024,096 shares of our common stock are sold at a price of $4.15 per share, the last reported sale price of our common stock
on the NASDAQ Capital Market on October 12, 2017, for aggregate gross proceeds of $25.0 million, and after deducting commissions
and estimated offering expenses payable by us, you will experience immediate dilution of $2.29 per share, representing the difference
between our as adjusted net tangible book value per share as of June 30, 2017 after giving effect to this offering and the assumed
offering price. The exercise of outstanding stock options and the vesting of outstanding restricted stock units will result in
further dilution of your investment. See “Dilution” on page S-7 for a more detailed discussion of the dilution you
will incur in connection with this offering.
You may experience future dilution as a result of future
equity offerings.
In order to raise additional capital, we
may at any time, including during the pendency of this offering, 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 sell shares or other securities in any other offering at a price per share that is less 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 or exchangeable
into common stock, in future transactions may be higher or lower than the price per share paid by investors in this offering.
USE OF PROCEEDS
We may issue and sell shares of our common
stock having aggregate sales proceeds of up to $25.0 million from time to time. Because there is no minimum offering amount required
as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not
determinable at this time. There can be no assurance that we will sell any shares under or fully utilize the Sales Agreement with
Cantor Fitzgerald as a source of financing.
We will retain broad discretion over the
use of the net proceeds from the sale of the securities offered hereby. Accordingly, we reserve the right to use these proceeds
for different purposes or uses which we have not listed above. We currently intend to use the net proceeds from this offering primarily
for general corporate purposes. See “Risk Factors –
Since we have broad discretion in how we use the proceeds from
this offering, we may use the proceeds in ways with which you disagree
.”
Until we use the net proceeds of this offering,
we intend to invest the funds in investment grade, interest-bearing securities.
MARKET INFORMATION
Our common stock is listed on The NASDAQ
Capital Market. The following table sets forth, for the periods indicated, the high and low sales prices for our common stock,
as reported on the NASDAQ Capital Market.
|
|
|
High
|
|
|
Low
|
|
|
2015
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
8.38
|
|
|
$
|
5.00
|
|
|
Second Quarter
|
|
|
8.75
|
|
|
|
6.37
|
|
|
Third Quarter
|
|
|
19.23
|
|
|
|
7.85
|
|
|
Fourth Quarter
|
|
|
14.80
|
|
|
|
10.14
|
|
|
|
|
|
|
|
|
|
|
|
|
2016
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
12.99
|
|
|
$
|
7.90
|
|
|
Second Quarter
|
|
|
12.66
|
|
|
|
2.51
|
|
|
Third Quarter
|
|
|
4.93
|
|
|
|
2.96
|
|
|
Fourth Quarter
|
|
|
5.90
|
|
|
|
3.03
|
|
|
|
|
|
|
|
|
|
|
|
|
2017
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
4.86
|
|
|
$
|
3.25
|
|
|
Second Quarter
|
|
|
5.14
|
|
|
|
3.33
|
|
|
Third Quarter
|
|
|
5.33
|
|
|
|
3.52
|
|
|
Fourth Quarter*
|
|
|
4.38
|
|
|
|
3.83
|
|
*Through October 12, 2017
As of October 12, 2017,
there were approximately 134 holders of record of our common stock. This number does not include an undetermined number of stockholders
whose stock is held in “street” or “nominee” name.
DILUTION
Net tangible book value per share is total
tangible assets, reduced by total liabilities, divided by the total number of outstanding shares of common stock. Our net tangible
book value as of June 30, 2017 was approximately $25.1 million, or approximately $1.22 per outstanding share of common stock.
After giving effect to the assumed sale
of 6,024,096 shares of our common stock in this offering at an assumed offering price of $4.15 per share, the last reported sale
price of our common stock on the NASDAQ Capital Market on October 12, 2017, and after deducting estimated offering commissions
and estimated offering expenses payable by us, our as adjusted net tangible book value as of June 30, 2017 would have been approximately
$49.4 million, or $1.86 per share. This represents an immediate increase in net tangible book value of $0.64 per share to existing
stockholders and immediate dilution of $2.29 per share to investors purchasing our common stock in this offering at the public
offering price. The following table illustrates this calculation on a per share basis, assuming that we sell all of the securities
we are offering:
|
Assumed public offering price per share
|
|
|
|
|
|
$
|
4.15
|
|
|
Net tangible book value per share as of June 30, 2017
|
|
$
|
1.22
|
|
|
|
|
|
|
Increase in net tangible book value per share after this offering
|
|
$
|
0.64
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As adjusted net tangible book value per share as of June 30, 2017, after this offering
|
|
|
|
|
|
$
|
1.86
|
|
|
|
|
|
|
|
|
|
|
|
|
Dilution in as adjusted net tangible book value per share to new investors
|
|
|
|
|
|
$
|
2.29
|
|
The table above assumes for illustrative
purposes that an aggregate of 6,024,096 shares of our common stock are sold during the term of the Sales Agreement with Cantor
Fitzgerald at a price of $4.15 per share, the last reported sale price of our common stock on The NASDAQ Capital Market on October
12, 2017, for aggregate gross proceeds of $25.0 million. The shares subject to the Sales Agreement with Cantor Fitzgerald are being
sold from time to time at various prices. An increase of $0.50 per share in the price at which the shares are sold from the assumed
offering price of $4.15 per share shown in the table above, assuming all of our common stock in the aggregate amount of $25.0 million
during the term of the Sales Agreement with Cantor Fitzgerald is sold at that price, would increase our adjusted net tangible book
value per share after the offering to $1.90 per share and would increase the dilution in net tangible book value per share to new
investors in this offering to $2.75 per share, after deducting commissions and estimated aggregate offering expenses payable by
us. A decrease of $0.50 per share in the price at which the shares are sold from the assumed offering price of $4.15 per share
shown in the table above, assuming all of our common stock in the aggregate amount of $25.0 million during the term of the Sales
Agreement with Cantor Fitzgerald is sold at that price, would decrease our adjusted net tangible book value per share after the
offering to $1.80 per share and would decrease the dilution in net tangible book value per share to new investors in this offering
to $1.85 per share, after deducting commissions and estimated offering expenses payable by us. This information is supplied for
illustrative purposes only and may differ based on the actual offering price and the actual number of shares offered.
The above discussion is based on 20,587,308
shares of common stock outstanding as of June 30, 2017, and does not include 2,120,076 options to purchase shares of our common
stock issued under our 2014 Stock and Incentive Plan and our 2011 Equity Incentive Plan.
PLAN OF DISTRIBUTION
We have entered into a Controlled Equity
Offering
SM
Sales Agreement with Cantor Fitzgerald under which we may issue and
sell shares of our common stock having an aggregate gross sales price of up to $25.0 million from time to time through Cantor Fitzgerald
acting as agent. A copy of the Sales Agreement has been filed as an exhibit to our Annual Report on Form 10-K for the year ended
December 31, 2016 and is incorporated by reference into the registration statement of which this prospectus is a part. See “Where
You Can Find More Information” below.
Upon delivery of a placement notice and
subject to the terms and conditions of the Sales Agreement, Cantor Fitzgerald may sell our common stock by any method permitted
by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act.
We may instruct Cantor Fitzgerald not to sell common stock if the sales cannot be effected at or above the price designated by
us from time to time. We or Cantor Fitzgerald may suspend the offering of common stock upon notice and subject to other conditions.
We will pay Cantor Fitzgerald commissions,
in cash, for its services in acting as agent in the sale of our common stock. Cantor Fitzgerald will be entitled to compensation
at a fixed commission rate of 3.0% of the gross sales price per share sold. Because there is no minimum offering amount required
as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not
determinable at this time. We have also reimbursed Cantor Fitzgerald for certain specified expenses, including the fees and disbursements
of its legal counsel, in an amount equal to $50,000. We estimate that the total expenses for the offering, excluding compensation
and reimbursement payable to Cantor Fitzgerald under the terms of the Sales Agreement, will be approximately $55,000.
Settlement for sales of common stock will
occur on the second business day following the date on which any sales are made, or on some other date that is agreed upon by us
and Cantor Fitzgerald in connection with a particular transaction, in return for payment of the net proceeds to us. Sales of our
common stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such
other means as we and Cantor Fitzgerald may agree upon. There is no arrangement for funds to be received in an escrow, trust or
similar arrangement.
Cantor Fitzgerald will use its commercially
reasonable efforts, consistent with its sales and trading practices, to solicit offers to purchase the common stock shares under
the terms and subject to the conditions set forth in the Sales Agreement. In connection with the sale of the common stock on our
behalf, Cantor Fitzgerald will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation
of Cantor Fitzgerald will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and
contribution to Cantor Fitzgerald against certain civil liabilities, including liabilities under the Securities Act.
The offering of our common stock pursuant
to the Sales Agreement will terminate upon the termination of the Sales Agreement as permitted therein. We and Cantor Fitzgerald
may each terminate the Sales Agreement at any time upon ten days’ prior notice.
Cantor Fitzgerald and its affiliates may
provide various investment banking, commercial banking and other financial services for us and our affiliates, for which services
they may in the future receive customary fees. To the extent required by Regulation M, Cantor Fitzgerald will not engage in any
market making activities involving our common stock while the offering is ongoing under this prospectus in violation of Regulation
M.
This prospectus in electronic format may
be made available on a website maintained by Cantor Fitzgerald and Cantor Fitzgerald may distribute this prospectus electronically.
LEGAL MATTERS
Certain legal matters in connection with
the offering and the validity of the securities offered by this prospectus will be passed upon for us by Dorsey & Whitney
LLP, Salt Lake City, Utah. Cantor Fitzgerald & Co. is being represented in connection with this offering by Cooley LLP,
New York, New York.
EXPERTS
The consolidated financial statements of
Lipocine Inc. as of December 31, 2016 and 2015, and for each of the years in the three-year period ended December 31, 2016, have
been incorporated by reference herein and in the registration statement in reliance upon the reports of KPMG LLP, independent registered
public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We are a reporting company and file annual,
quarterly and current reports, proxy statements and other information with the SEC. We have filed with the SEC a registration statement
on Form S-3 under the Securities Act with respect to the securities we are offering under this prospectus. This prospectus does
not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For
further information with respect to us and the securities we are offering under this prospectus, we refer you to the registration
statement and the exhibits and schedules filed as a part of the registration statement. You may read and copy the registration
statement, as well as our reports, proxy statements and other information, at the SEC’s Public Reference Room at 100 F Street,
N.E., Washington, D.C. 20549. You can request copies of these documents by writing to the SEC and paying a fee for the copying
cost. Please call the SEC at 1-800-SEC-0330 for more information about the operation of the Public Reference Room. The SEC maintains
an internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically
with the SEC, where our SEC filings are also available. The address of the SEC’s web site is http://www.sec.gov. We maintain
a website at www.lipocine.com. Information contained in or accessible through our website does not constitute a part of this prospectus.
INCORPORATION
BY REFERENCE
The SEC allows us to “incorporate
by reference” information that we file with it into this prospectus, which means that we can disclose important information
to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus.
The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with
the Commission will automatically update and supersede information contained in this prospectus. We incorporate by reference the
documents listed below that we have previously filed with the Commission:
|
|
·
|
Our Annual Report on Form 10-K for the year ended December 31, 2016;
|
|
|
·
|
Our Definitive Proxy Statement filed on Schedule 14A on April 28, 2017;
|
|
|
·
|
Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2017 and June 30, 2017;
|
|
|
·
|
Our Current Reports on Form 8-K filed on January 31, 2017, March 6, 2017 (only with respect to item 8.01), April 24, 2017,
May 26, 2017, June 13, 2017, June 19, 2017, June 26, 2017, June 28, 2017, July 7, 2017, July 10, 2017, August 8, 2017, August 9,
2017, August 14, 2017, September 8, 2017, September 20, 2017, September 21, 2017, and September 25, 2017; and
|
|
|
·
|
The description of our common stock, which is contained in the Registration Statement on Form 8-A, as filed with the SEC on
March 18, 2014, including any amendment or report filed for the purpose of updating such description.
|
The description of our common stock, which
is contained in the Registration Statement on Form 8-A, as filed with the SEC on March 18, 2014, including any amendment or report
filed for the purpose of updating such description. We also incorporate by reference into this prospectus additional documents
that we may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, excluding, in each case, information
deemed furnished and not filed. Any statements contained in a previously filed document incorporated by reference into this prospectus
is deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus,
or in a subsequently filed document also incorporated by reference herein, modifies or supersedes that statement.
We will provide to each person, including
any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request, a copy of any or all of the
information that has been incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits
that are specifically incorporated by reference into such documents. Requests should be directed to: Lipocine Inc., Attention:
Investor Relations, 675 Arapeen Drive, Suite 202, Salt Lake City, Utah 84108, telephone: (801) 994-7383.
Up to $25,000,000
Common Stock
, 2017
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, other than underwriting discounts and commissions, payable by the registrant in connection with the offering
of the securities being registered. All the amounts shown are estimates, except for the SEC registration fee and the FINRA filing
fee.
|
SEC registration fee
|
|
$
|
12,478.01
|
|
|
FINRA Filing Fee
|
|
|
23,000.00
|
|
|
Accounting fees and expenses
|
|
|
*
|
|
|
Legal fees and expenses
|
|
|
*
|
|
|
Transfer Agent and Registrar Fees and Expenses
|
|
|
*
|
|
|
Miscellaneous expenses
|
|
|
*
|
|
|
Total
|
|
|
*
|
|
*These fees are calculated based
on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time. An estimate of the
aggregate amount of these expenses will be reflected in the applicable prospectus supplement.
Item 15. Indemnification of Officers and Directors
Our certificate of incorporation provides
that none of our directors will be personally liable to us, or our stockholders, for monetary damages for breach of fiduciary duty
as a director, except for liability:
|
|
·
|
for any breach of the director’s duty of loyalty to us or our
stockholders;
|
|
|
·
|
for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of the law;
|
|
|
·
|
under Section 174 of the Delaware General Corporation Law for the
unlawful payment of dividends; or
|
|
|
·
|
for any transaction from which the director derives an improper personal
benefit.
|
These provisions eliminate our rights and
those of our stockholders to recover monetary damages from a director for breach of his fiduciary duty of care as a director except
in the situations described above. The limitations summarized above, however, do not affect our ability or that of our stockholders
to seek non-monetary remedies, such as an injunction or rescission, against a director for breach of his fiduciary duty.
Section 145 of the Delaware General Corporation
Law provides a corporation with the power to indemnify any officer or director acting in his capacity as our representative who
is, or threatened to be, made a party to any lawsuit or other proceeding for expenses, judgment and amounts paid in settlement
in connection with such lawsuit or proceeding. The indemnity provisions apply whether the action was instituted by a third party
or was filed by one of our stockholders. The Delaware General Corporation Law provides that Section 145 is not exclusive of other
rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise. We have provided for this indemnification in our certificate of incorporation because we believe that it
is important to attract qualified directors and officers. We have further provided in our certificate of incorporation that no
indemnification shall be available, whether pursuant to our certificate of incorporation or otherwise, arising from any lawsuit
or proceeding in which we assert a direct claim, as opposed to a stockholders’ derivative action, against any directors and
officers (or a director or officer sues us). This limitation is designed to ensure that if we are involved in litigation adverse
to a director or officer, we do not have to pay for their legal fees.
We have entered into indemnification agreements
with each of our executive officers and directors that require us to indemnify such persons against any and all expenses, including
judgments, fines or penalties, attorney’s fees, witness fees or other professional fees and related disbursements and other
out-of-pocket costs incurred, in connection with any action, suit, arbitration, alternative dispute resolution mechanism, investigation,
inquiry or administrative hearing, whether threatened, pending or completed, to which any such person may be made a party by reason
of the fact that such person is or was a director, officer, employee or agent of our company, provided that such director or officer
acted in good faith and in a manner that the director or officer reasonably believed to be in, or not opposed to, our best interests.
The indemnification agreements also set forth procedures that will apply in the event of a claim for indemnification thereunder.
We believe that these provisions and agreements are necessary to attract and retain qualified persons as directors and officers.
Insofar as indemnification by us for liabilities
arising under the Securities Act may be permitted to our directors, officers or persons controlling us pursuant to provisions of
our certificate of incorporation and bylaws, or otherwise, we have been advised that in the opinion of the SEC, such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification
by such director, officer or controlling person of us 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 offered, we will, unless in the opinion of
our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication
of such issue.
At the present time, there is no pending
litigation or proceeding involving a director, officer, employee or other agent of ours in which indemnification would be required
or permitted. We are not aware of any threatened litigation or proceeding, which may result in a claim for such indemnification.
Item 16. Exhibits
|
Exhibit
|
|
|
|
Incorporated by Reference
|
|
Number
|
|
Description
|
|
Form
|
|
File Date
|
|
File Number
|
|
Exhibit
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1.1*
|
|
Form of Underwriting Agreement
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1.2
|
|
Controlled Equity Offering
SM
Sales Agreement between Lipocine Inc. and Cantor Fitzgerald & Co.
|
|
10-K
|
|
March 6, 2017
|
|
001-36357
|
|
10.22
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.1
|
|
Agreement and Plan of Merger and Reorganization, dated July 24, 2013, by and among Marathon Bar Corp., Lipocine Operating Inc., and MBAR Acquisition Corp.
|
|
8-K
|
|
July 25, 2013
|
|
333-178230
|
|
2.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.1
|
|
Amended and Restated Certificate of Incorporation
|
|
8-K
|
|
July 25, 2013
|
|
333-178230
|
|
3.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3.2
|
|
Amended and Restated Bylaws
|
|
8-K
|
|
July 25, 2013
|
|
333-178230
|
|
3.3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.1
|
|
Specimen Common Stock certificate
|
|
8-K
|
|
July 25, 2013
|
|
333-178230
|
|
4.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.2+
|
|
Form
of Senior Indenture
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.3+
|
|
Form
of Subordinated Indenture
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.4*
|
|
Form of Debt Security
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.5*
|
|
Form of Subordinated Debt Security
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.6*
|
|
Form of Certificate of Designation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.7*
|
|
Form of Preferred Stock Certificate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.8*
|
|
Form of Warrant Agreement
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.9*
|
|
Form of Warrant Certificate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.10*
|
|
Form of Unit Agreement
|
|
|
|
|
|
|
|
|
+ Filed herewith.
* To be filed by amendment or as an exhibit to a report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and incorporated herein by reference.
Item 17. Undertakings
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 of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(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 the undertakings
set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the registration statement is on Form S-3 or Form F-3
and 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 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration statements 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 of 1933, 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 of 1933 to any purchaser:
(i) If
the Registrant is relying on Rule 430B:
(A) 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
(B) 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 of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial
bona fide
offering thereof. Provided, however, that no statement made in
a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior
to such effective date.
(5) That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary
prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material
information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv)
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) That,
for purposes of determining any liability under the Securities Act of 1933, 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 such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(7) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(9) To
file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2)
of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, 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 Salt Lake City, State of Utah, on October 13, 2017.
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LIPOCINE INC.
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BY:
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/s/ Mahesh V. Patel
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Mahesh V. Patel
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President and Chief Executive Officer
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POWER OF
ATTORNEY
Each person whose signature appears below
constitutes and appoints Mahesh V. Patel and Morgan R. Brown, his or her true and lawful attorney-in-fact and agent with full powers
of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this registration statement and all additional registration statements
pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and necessary to be done in about the premises, as fully
to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on October
13, 2017.
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/s/ Mahesh V. Patel
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Chief Executive Officer (
principal executive officer
), President and Chairman
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Mahesh V. Patel
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of the Board
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/s/ Morgan R. Brown
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Executive Vice President and Chief Financial Officer
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Morgan R. Brown
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(
principal financial and accounting officer
)
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/s/ Stephen A. Hill
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Director
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Stephen A. Hill
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/s/ John W. Higuchi
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Director
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John W. Higuchi
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/s/ R. Dana Ono
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Director
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R. Dana Ono
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/s/ Jeffrey A. Fink
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Director
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Jeffrey A. Fink
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EXHIBIT INDEX
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Exhibit
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Incorporated by Reference
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Number
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Description
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Form
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File Date
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File Number
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Exhibit
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1.1*
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Form of Underwriting Agreement
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1.2
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Controlled Equity Offering
SM
Sales Agreement between Lipocine Inc. and Cantor Fitzgerald & Co.
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10-K
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March 6, 2017
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001-36357
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10.22
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2.1
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Agreement and Plan of Merger and Reorganization, dated July 24, 2013, by and among Marathon Bar Corp., Lipocine Operating Inc., and MBAR Acquisition Corp.
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8-K
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July 25, 2013
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333-178230
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2.1
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3.1
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Amended and Restated Certificate of Incorporation
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8-K
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July 25, 2013
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333-178230
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3.2
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3.2
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Amended and Restated Bylaws
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8-K
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July 25, 2013
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333-178230
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3.3
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4.1
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Specimen Common Stock certificate
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8-K
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July 25, 2013
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333-178230
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4.1
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4.2+
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|
Form
of Senior Indenture
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4.3+
|
|
Form
of Subordinated Indenture
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4.4*
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Form of Debt Security
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4.5*
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Form of Subordinated Debt Security
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4.6*
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Form of Certificate of Designation
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4.7*
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Form of Preferred Stock Certificate
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4.8*
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Form of Warrant Agreement
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4.9*
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Form of Warrant Certificate
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4.10*
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Form of Unit Agreement
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+ Filed herewith.
* To be filed by amendment or as an exhibit to a report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and incorporated herein by reference.
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