Filed Pursuant to Rule 424(b)(7)
Registration Statement No. 333-268396
PROSPECTUS
Up to 81,150 Shares of Common Stock Issuable Upon Exercise of a
Warrant
This prospectus relates to the proposed resale from time to time by
Lincoln Park Capital Fund, LLC as selling stockholder of up to
81,150 shares of our common stock, par value $0.001 per share,
issuable upon the exercise of a warrant. The Lincoln Park Capital
Fund, LLC purchased the warrant from us pursuant to a securities
purchase agreement, dated August 3, 2022. We are not selling any of
our common stock pursuant to this prospectus, and we will not
receive any proceeds from the sale of our common stock offered by
this prospectus by the selling stockholder.
The selling stockholder may offer and sell or otherwise dispose of
the shares of our common stock described in this prospectus from
time to time through public or private transactions at prevailing
market prices, at prices related to prevailing market prices or at
privately negotiated prices. The selling stockholder will bear all
underwriting fees, commissions and discounts, if any, attributable
to the sales of shares and any transfer taxes. We will bear all
other costs, expenses and fees in connection with the registration
of the shares. See “Plan of Distribution” for more information
about how the selling stockholder may sell or dispose of their
shares of our common stock.
Our common stock is listed on The Nasdaq Global Market under the
trading symbol “ACRX.” On November 21, 2022, the last reported sale
price of the common stock was $2.26 per share.
Investing in our common stock involves a high degree of risk.
You should review carefully the risks and uncertainties described
under the heading “Risk Factors” on page 3 of
this prospectus, and under similar headings in the other documents
that are 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 determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is November 22,
2022.
TABLE OF CONTENTS
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| ABOUT THIS PROSPECTUS |
ii |
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| PROSPECTUS SUMMARY |
1 |
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| RISK FACTORS |
3 |
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| SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS |
4 |
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| USE OF PROCEEDS |
6 |
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| DESCRIPTION OF CAPITAL STOCK |
7 |
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| SELLING STOCKHOLDER |
10 |
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| PLAN OF DISTRIBUTION |
11 |
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| LEGAL MATTERS |
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| EXPERTS |
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| WHERE YOU CAN FIND ADDITIONAL INFORMATION |
13 |
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| INCORPORATION OF CERTAIN INFORMATION BY REFERENCE |
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ABOUT THIS PROSPECTUS
Neither we nor the selling stockholder have authorized anyone to
provide you with any information other than that contained in, or
incorporated by reference into, this prospectus. We take no
responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you.
This prospectus is an offer to sell only the shares of our common
stock offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. You should not assume
that the information contained in or incorporated by reference in
this prospectus is accurate as of any date other than their
respective dates. Our business, financial condition, results of
operations and prospects may have changed since those dates.
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
section titled “Where You Can Find Additional Information.”
Unless the context indicates otherwise, as used in this prospectus,
the terms “AcelRx,” “AcelRx Pharmaceuticals, Inc.,” “we,” “us” and
“our” refer to AcelRx Pharmaceuticals, Inc., a Delaware
corporation, and its subsidiaries.
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PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere
in this prospectus or incorporated by reference in 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 in our
securities discussed under the heading “Risk Factors”
contained in this prospectus and under similar headings in the
other documents that are incorporated by reference into this
prospectus. You should also carefully read the information
incorporated by reference into this prospectus, including our
financial statements, and the exhibits to the registration
statement of which this prospectus is a part.
AcelRx Pharmaceuticals, Inc.
Overview
We are a specialty pharmaceutical company focused on the
development and commercialization of innovative therapies for use
in medically supervised settings. DSUVIA® (known as DZUVEO® in
Europe) is focused on the treatment of acute pain, and each utilize
sufentanil, delivered via a non-invasive route of sublingual
administration, exclusively for use in medically supervised
settings. In November 2018, the U.S. Food and Drug Administration,
or FDA, approved DSUVIA for use in adults in a certified medically
supervised healthcare setting, such as hospitals, surgical centers,
and emergency departments, for the management of acute pain severe
enough to require an opioid analgesic and for which alternative
treatments are inadequate. The commercial launch of DSUVIA in the
United States occurred in the first quarter of 2019. In June 2018,
the European Commission, or EC, granted marketing approval of
DZUVEO for the management of acute moderate to severe pain in
adults in medically monitored settings. We are further developing a
distribution capability and commercial organization to continue to
market and sell DSUVIA in the United States. In geographies where
we decide not to commercialize products by ourselves, we may seek
to out-license commercialization rights. We currently intend to
commercialize and promote DSUVIA/DZUVEO outside the United States
with one or more strategic partners, and, in July 2021, entered
into a License and Commercialization Agreement with Laboratoire
Aguettant, or Aguettant, for Aguettant to commercialize DZUVEO in
the European Union, Norway, Iceland, Liechtenstein, Andorra,
Vatican City, Monaco, Switzerland and the United Kingdom. In July
2021, we also entered into a separate License and Commercialization
Agreement with Aguettant pursuant to which we obtained the
exclusive right to develop and, subject to FDA approval,
commercialize in the United States (i) an ephedrine pre-filled
syringe containing 10 ml of a solution of 3 mg/ml ephedrine
hydrochloride for injection, and (ii) a phenylephrine pre-filled
syringe containing 10 ml of a solution of 50 mcg/ml phenylephrine
hydrochloride for injection.
In January 2022, we acquired Lowell Therapeutics, Inc., or Lowell,
a privately held company, and as a result we acquired Niyad™, a
regional anticoagulant for the dialysis circuit during continuous
renal replacement therapy for acute kidney injury patients in the
hospital, that we plan to study under an investigational device
exemption, or IDE, and which has received Breakthrough Device
Designation status from the FDA. While not approved for commercial
use in the United States, the active drug component of Niyad,
nafamostat, has been approved in Japan and South Korea as a
regional anticoagulant for the dialysis circuit, disseminated
intravascular coagulation, and acute pancreatitis. Niyad is a
lyophilized formulation of nafamostat, a broad-spectrum, synthetic
serine protease inhibitor, with anticoagulant, anti-inflammatory,
and potential anti-viral activities. The second intended indication
for Niyad is as a regional anticoagulant for the dialysis circuit
for chronic kidney disease patients undergoing intermittent
hemodialysis in dialysis centers. In addition, we acquired LTX-608,
a proprietary nafamostat formulation for direct IV infusion that it
intends to develop for the treatment of acute respiratory distress
syndrome and disseminated intravascular coagulation.
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Private Placement of Shares of Preferred Stock and
Warrant
On August 3, 2022, we entered into a securities purchase agreement
with Lincoln Park Capital Fund, LLC, or Lincoln Park, pursuant to
which we issued in a private placement transaction an aggregate of
3,000 shares of Series A Preferred Stock, par value $0.001 per
share, together with a warrant to purchase up to an aggregate of
81,150 shares of common stock at an exercise price of $4.066 per
share (subject to adjustment as provided in the warrant), for an
aggregate subscription amount equal to $300,000. On October 12,
2022, we redeemed all 3,000 shares of Series A Preferred Stock for
an aggregate purchase price of $315,000.
The warrant is exercisable by means of cash and has term ending on
February 3, 2028. However, if at the time of exercise there is no
effective registration statement registering, or no current
prospectus available for, the resale of the warrant shares by
Lincoln Park, Lincoln Park may also exercise the warrant at their
election, in whole or in part, at such time by means of a net
exercise of the warrant on a cashless basis. The warrant
provides for proportional adjustment of the number and kind of
securities purchasable upon exercise of the warrant and the per
share exercise price upon the occurrence of certain events such as
stock splits, combinations, reverse stock splits and similar
events. In addition, until August 3, 2023, if we issue or sell (or
are deemed to have issued or sold) any common stock, convertible
securities or options (each as defined in the warrant), but
excluding shares of common stock deemed to have been issued or sold
by us in an “exempt issuance” (as defined in the warrant) or to
extend the term of such securities, for consideration per share, or
the New Issuance Price, less than a price equal to the exercise
price in effect immediately prior to such issue or sale or deemed
issuance or sale (each of the foregoing, a “Dilutive Issuance”),
then immediately after such Dilutive Issuance, the exercise price
then in effect shall be reduced to an amount equal to the New
Issuance Price.
Use of Proceeds
We will not receive any of the proceeds from the sale of shares of
our common stock by the selling stockholder in this offering. The
selling stockholder will receive all of the proceeds from the sale
of shares of our common stock hereunder.
The Nasdaq Global Market Listing
Our common stock is listed on The Nasdaq Global Market under the
symbol “ACRX.”
Company Information
We were originally incorporated as SuRx, Inc. in Delaware on July
13, 2005 and changed our name to AcelRx Pharmaceuticals, Inc. on
January 6, 2006. Our principal executive offices are located at
25821 Industrial Boulevard, Suite 400, Hayward, California 94545,
and our telephone number is (650) 216-3500. Our website address is
www.acelrx.com. The information contained in, or that can be
accessed through, our website is not part of, and is not
incorporated into, this prospectus and should not be considered
part of this prospectus.
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RISK FACTORS
Investing in our common stock involves a high degree of risk.
Before deciding whether to invest in our common stock, you should
consider carefully the risks and uncertainties described under the
heading “Risk Factors” contained in our most recent Annual Report
on Form 10-K, as updated by our subsequent Quarterly Reports on
Form 10-Q and other filings we make with the Securities and
Exchange Commission, or the SEC, which are incorporated by
reference into this prospectus in their entirety, together with
other information in this prospectus and the documents incorporated
by reference. The risks described in these documents are not the
only ones we face, but those that we consider to be material. There
may be other unknown or unpredictable economic, business,
competitive, regulatory or other factors that could have material
adverse effects on our future results. Past financial performance
may not be a reliable indicator of future performance, and
historical trends should not be used to anticipate results or
trends in future periods. If any of these risks actually occur, our
business, financial condition, results of operations or cash flow
could be seriously harmed. This could cause the trading price of
our common stock to decline, resulting in a loss of all or part of
your investment. Please also read carefully the section below
titled “Special Note Regarding Forward-Looking Statements.”
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we have filed with the SEC that
are incorporated by reference contain “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1933, as
amended, or the Securities Act, and Section 21E of the Securities
Exchange Act of 1934, as amended, or the Exchange Act. These
statements relate to future events or to our future operating or
financial performance and involve known and unknown risks,
uncertainties and other factors that may cause our actual results,
performance or achievements to be materially different from any
future results, performances or achievements expressed or implied
by the forward-looking statements. Forward-looking statements may
include, but are not limited to, statements about:
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the accuracy of our estimates regarding the sufficiency of our cash
resources, future revenues, expenses, capital requirements and
needs for additional financing, and our ability to obtain
additional financing and continue as a going concern;
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our ability to manage our operating costs and reduce our cash
burn;
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the uncertainties and impact arising from the worldwide COVID-19
pandemic, including restrictions on the ability of our sales force
to contact and communicate with target customers and resulting
delays and challenges to our commercial sales of
DSUVIA® (sufentanil sublingual tablet, 30 mcg);
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our success in commercializing DSUVIA in the United States,
including the marketing, sales, and distribution of the product,
whether alone or with contract sales organizations and other
collaborators;
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our ability to identify and secure potential partnerships with a
third party having sufficient commercial resources to develop and
potential grow the DSUVIA franchise;
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our ability to satisfactorily comply with FDA regulations
concerning the advertising and promotion of DSUVIA;
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the size and growth potential of the markets for DSUVIA, and our
other product candidates in the United States, and our ability to
serve those markets;
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our ability to maintain regulatory approval of DSUVIA in the United
States, including effective management of and compliance with the
DSUVIA Risk Evaluation and Mitigation Strategies, or REMS,
program;
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acceptance of DSUVIA by physicians, patients and the healthcare
community, including the acceptance of pricing and placement of
DSUVIA on payers’ formularies;
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our ability to realize the expected benefits and potential value
created by the acquisition of Lowell Therapeutics Inc. for our
stockholders, on a timely basis or at all;
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our ability to develop, file for and obtain regulatory approval
for, and then successfully launch and commercialize products and
product candidates that we have in-licensed or acquired;
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our ability to file for and secure a potential Emergency Use
Authorization for our lead nafamostat product candidate,
Niyad™;
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our ability to develop sales and marketing capabilities in a timely
fashion, whether alone through recruiting qualified employees, by
engaging a contract sales organization, or with potential future
collaborators;
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successfully establishing and maintaining commercial manufacturing
and supply chain relationships with third party service
providers;
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our ability to manage effectively, and the impact of any costs
associated with, potential governmental investigations, inquiries,
regulatory actions or lawsuits that may be, or have been, brought
against us;
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continued demonstration of an acceptable safety profile of
DSUVIA;
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effectively competing with other medications for the treatment of
moderate-to-severe acute pain in medically supervised settings,
including IV-opioids and any subsequently approved products;
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our ability to manufacture and supply DZUVEO® to Laboratoire
Aguettant, or Aguettant, in accordance with their forecasts and the
License and Commercialization Agreement, or DZUVEO Agreement, with
Aguettant, including compliance with any import/export controls or
restrictions;
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the status of the DZUVEO Agreement or any other future potential
collaborations, including potential milestones and revenue share
payments under the DZUVEO Agreement;
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Aguettant’s ability to successfully launch and commercialize DZUVEO
in the European Union, or EU;
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our, or Aguettant’s, ability to maintain regulatory approval of
DZUVEO in the EU;
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our ability to obtain adequate government or third-party payer
reimbursement;
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our ability to attract additional collaborators with development,
regulatory and commercialization expertise;
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our ability to identify and secure potential commercial partners to
develop and then commercialize our developmental product
candidates;
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our ability to successfully retain our key commercial, scientific,
engineering, medical or management personnel and hire new personnel
as needed;
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regulatory developments in the United States and foreign
countries;
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the performance of our third-party suppliers and manufacturers,
including any supply chain impacts or work limitations;
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the success of competing therapies that are or become
available;
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our liquidity and capital resources; and
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our ability to obtain and maintain intellectual property protection
for our approved products and product candidates.
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In some cases, you can identify forward-looking statements by terms
such as “may,” “will,” “should,” “could,” “would,” “expects,”
“plans,” “anticipates,” “believes,” “estimates,” “projects,”
“predicts,” “potential” and similar expressions intended to
identify forward-looking statements. These statements reflect our
current views with respect to future events, are based on
assumptions and are subject to risks and uncertainties. Given these
uncertainties, you should not place undue reliance on these
forward-looking statements. We discuss in greater detail, and
incorporate by reference into this prospectus in its entirety, many
of these risks under the headings “Risk Factors” in our Annual
Report on Form 10-K for the year ended December 31, 2021, as
updated by our subsequent filings under the Exchange Act, which are
incorporated herein by reference, as may be updated or superseded
by the risks and uncertainties described under similar headings in
the other documents that are filed after the date hereof and
incorporated by reference into this prospectus. Also, these
forward-looking statements represent our estimates and assumptions
only as of the date of the document containing the applicable
statement.
These risks are not exhaustive. Other sections of this prospectus
may include additional factors that could harm our business and
financial performance. Moreover, we operate in a very competitive
and rapidly changing environment. New risk factors emerge from time
to time, and it is not possible for our management to predict all
risk factors nor can we assess the impact of all factors on our
business or the extent to which any factor, or combination of
factors, may cause actual results to differ from those contained
in, or implied by, any forward-looking statements.
You should not rely upon forward-looking statements as predictions
of future events. We cannot assure you that the events and
circumstances reflected in the forward-looking statements will be
achieved or occur.
Although we believe that the expectations reflected in the
forward-looking statements are reasonable, we cannot guarantee
future results, levels of activity, performance or achievements.
Except as required by law, we undertake no obligation to update
publicly any forward-looking statements for any reason after the
date of this prospectus or to conform these statements to actual
results or to changes in our expectations.
In addition, statements that “we believe” and similar statements
reflect our beliefs and opinions on the relevant subject. These
statements are based upon information available to us as of the
date of this prospectus, and while we believe such information
forms a reasonable basis for such statements, such information may
be limited or incomplete, and our statements should not be read to
indicate that we have conducted an exhaustive inquiry into, or
review of, all relevant information. These statements are
inherently uncertain and investors are cautioned not to unduly rely
upon these statements.
You should read this prospectus and the documents that we reference
in this prospectus and have filed as exhibits to the registration
statement of which this prospectus is a part with the understanding
that our actual future results, levels of activity, performance and
achievements may be different from what we expect. We qualify all
of our forward-looking statements by these cautionary
statements.
USE OF PROCEEDS
All the shares of our common stock to be sold pursuant to this
prospectus will be sold by the selling stockholder. We will not
receive any of the proceeds from such sales.
DESCRIPTION OF CAPITAL STOCK
Summary
Our authorized capital stock consists of 200,000,000 shares of
common stock and 10,000,000 shares of preferred stock, $0.001 par
value. As of October 31, 2022, we had 7,449,366 shares of common
stock issued and outstanding and no shares of preferred stock
issued and outstanding.
A description of the material terms and provisions of our amended
and restated certificate of incorporation and amended and restated
bylaws affecting the rights of holders of our capital stock is set
forth below. The description is intended as a summary, and is
qualified in its entirety by reference to our amended and restated
certificate of incorporation and our amended and restated bylaws
which are incorporated by reference into the registration statement
of which this prospectus is a part.
Common Stock
Voting Rights. Each holder of common stock is entitled to
one vote for each share on all matters submitted to a vote of the
stockholders, including the election of directors. In all matters
other than the election of directors, the affirmative vote of the
majority of shares present in person, by remote communication, or
represented by proxy at a meeting of the stockholders and entitled
to vote generally on the subject matter shall be the act of the
stockholders. Directors shall be elected by a plurality of the
votes of the shares present in person, by remote communication, or
represented by proxy at a meeting of the stockholders and entitled
to vote generally on the election of directors. Our stockholders do
not have cumulative voting rights in the election of directors.
Accordingly, the holders of a majority of the voting shares are
able to elect all of the directors to be elected at any particular
time.
Dividends. Subject to preferences that may be applicable to
any then outstanding preferred stock, holders of our common stock
are entitled to receive dividends, if any, as may be declared from
time to time by our board of directors out of funds legally
available if our board of directors, in its discretion, determines
to issue dividends and then only at the times and in the amounts
that our board of directors may determine.
Liquidation. In the event of our liquidation, dissolution or
winding up, holders of common stock will be entitled to share
ratably in the net assets legally available for distribution to
stockholders after the payment of all of our debts and other
liabilities and the satisfaction of any liquidation preference
granted to the holders of any then outstanding shares of preferred
stock.
Rights. Holders of common stock have no preemptive,
conversion, subscription or other rights, and there are no
redemption or sinking fund provisions applicable to shares of
common stock.
Fully Paid and Nonassessable. All of outstanding shares of
common stock are fully paid and nonassessable.
Preferred Stock
Our board of directors may, without further action by our
stockholders, fix the rights, preferences, privileges and
restrictions of up to an aggregate of 10,000,000 shares of
preferred stock in one or more series and authorize their issuance.
These rights, preferences and privileges could include dividend
rights, conversion rights, voting rights, terms of redemption,
liquidation preferences, sinking fund terms and the number of
shares constituting any series or the designation of such series,
any or all of which may be greater than the rights of our common
stock. The issuance of our preferred stock could adversely affect
the voting power of holders of our common stock, and the likelihood
that such holders will receive dividend payments and payments upon
liquidation. In addition, the issuance of preferred stock could
have the effect of delaying, deferring or preventing a change of
control or other corporate action.
Anti-Takeover Effects of Provisions of our Certificate of
Incorporation and Bylaws and Delaware Law
Certificate of Incorporation and Bylaws. Our amended and
restated certificate of incorporation and amended and restated
bylaws include a number of provisions that may deter or impede
hostile takeovers or changes of control or management. These
provisions include:
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Issuance of Undesignated Preferred Stock. Under our
certificate of incorporation, our board of directors has the
authority, without further action by the stockholders, to issue up
to 10,000,000 shares of undesignated preferred stock with rights
and preferences, including voting rights, designated from time to
time by the board of directors. The existence of authorized but
unissued shares of preferred stock enables our board of directors
to make it more difficult or to discourage an attempt to obtain
control of us by means of a merger, tender offer, proxy contest or
otherwise.
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Classified Board. Our certificate of incorporation provides
for a classified board of directors consisting of three classes of
directors, with staggered three-year terms. Only one class of
directors will be elected at each annual meeting of our
stockholders, with the other classes continuing for the remainder
of their respective three-year terms. This provision may have the
effect of delaying a change in control of the board.
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Board of Directors Vacancies. Our Certificate of
Incorporation and Bylaws authorize only our board of directors to
fill vacant directorships. In addition, the number of directors
constituting our board of directors may be set only by resolution
adopted by a majority vote of our entire board of directors. These
provisions prevent a stockholder from increasing the size of our
board of directors and gaining control of our board of directors by
filling the resulting vacancies with its own nominees.
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Stockholder Action; Special Meetings of Stockholders. Our
certificate of incorporation provides that our stockholders may not
take action by written consent and may only take action at annual
or special meetings of our stockholders. Stockholders will not be
permitted to cumulate their votes for the election of directors.
Our bylaws further provide that special meetings of our
stockholders may be called only by a majority of our board of
directors, the chairman of our board of directors, or our chief
executive officer. These provisions may prevent stockholders from
corporate actions as stockholders at times when they otherwise
would like to do so.
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Advance Notice Requirements for Stockholder Proposals and
Director Nominations. Our bylaws provide advance notice
procedures for stockholders seeking to bring business before our
annual meeting of stockholders, or to nominate candidates for
election as directors at our annual meeting of stockholders. Our
bylaws also specify certain requirements as to the form and content
of a stockholder’s notice. These provisions may make it more
difficult for our stockholders to bring matters before our annual
meeting of stockholders or to nominate directors at our annual
meeting of stockholders.
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These provisions are intended to enhance the likelihood of
continued stability in the composition of our board of directors
and its policies and to discourage certain types of transactions
that may involve an actual or threatened acquisition of us. These
provisions are designed to reduce our vulnerability to an
unsolicited acquisition proposal. The provisions also are intended
to discourage certain tactics that may be used in proxy fights.
However, these provisions could have the effect of discouraging
others from making tender offers for our shares and, as a
consequence, they may also reduce fluctuations in the market price
of our shares that could result from actual or rumored takeover
attempts.
Section 203 of the Delaware General Corporation Law
We are subject to the provisions of Section 203 of the Delaware
General Corporation Law regulating corporate takeovers. This
section prevents some Delaware corporations from engaging, under
some circumstances, in a business combination, which includes a
merger or sale of at least 10% of the corporation’s assets with any
interested stockholder, meaning a stockholder who, together with
affiliates and associates, owns or, within three years prior to the
determination of interested stockholder status, did own 15% or more
of the corporation’s outstanding voting stock, unless:
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the transaction is approved by the board of directors prior to the
time that the interested stockholder became an interested
stockholder;
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upon consummation of the transaction which resulted in the
stockholder’s 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 such time that the stockholder became an
interested stockholder the business combination is approved by the
board of directors and authorized at an annual or special meeting
of stockholders by at least two-thirds of the outstanding voting
stock which is not owned by the interested stockholder.
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In general, Section 203 defines “business combination" to include
the following:
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any merger or consolidation involving the corporation and the
interested stockholder;
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any sale, transfer, pledge or other disposition of 10% or more of
the assets of the corporation involving the interested
stockholder;
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subject to certain exceptions, any transaction that results in the
issuance or transfer by the corporation of any stock of the
corporation to the interested stockholder;
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any transaction involving the corporation that has the effect of
increasing the proportionate share of the stock or any class or
series of the corporation beneficially owned by the interested
stockholder; or
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the receipt by the interested stockholder of the benefit of any
loss, advances, guarantees, pledges or other financial benefits by
or through the corporation.
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In general, Section 203 defines an “interested stockholder” as an
entity or person who, together with the person’s affiliates and
associates, beneficially owns, or within three years prior to the
time of determination of interested stockholder status did own, 15%
or more of the outstanding voting stock of the corporation.
A Delaware corporation may “opt out” of these provisions with an
express provision in its original certificate of incorporation or
an express provision in its certificate of incorporation or bylaws
resulting from a stockholders’ amendment approved by at least a
majority of the outstanding voting shares. We have not “opted out”
of these provisions and do not plan to do so. The statute could
prohibit or delay mergers or other takeover or change in control
attempts and, accordingly, may discourage attempts to acquire
us.
Listing on The Nasdaq Global Market
Our common stock is listed on The Nasdaq Global Market under the
symbol “ACRX.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is
Computershare, Inc.: 1-800-736-3001. The transfer agent's address
is 250 Royall Street, Canton, Massachusetts 02021.
SELLING STOCKHOLDER
We have prepared this prospectus to allow the selling stockholder
to offer and sell from time to time up to 81,150 shares of our
common stock issuable upon the exercise of a warrant.
The following table sets forth (i) the name of the selling
stockholder; (ii) the number of shares beneficially owned by the
selling stockholder; (iii) the number of shares that may be offered
under this prospectus; and (iv) the number of shares of common
stock beneficially owned by the selling stockholder assuming all of
the shares covered hereby are sold. We do not know how long the
selling stockholder will hold the shares before selling them, and
we currently have no agreements, arrangements or understandings
with the selling stockholder regarding the sale or other
disposition of any shares. The selling stockholder has not during
the three years prior to the date of this prospectus had, any
position, office or other material relationships with us or any of
our affiliates.
The information set forth in the table below is based upon
information obtained from the selling stockholder. Beneficial
ownership of the selling stockholder is determined in accordance
with Rule 13d-3(d) under the Exchange Act. The percentage of shares
beneficially owned prior to, and after, the offering is based on
7,449,366 shares of our common stock outstanding as of October 31,
2022, and assumes the issuance of 81,150 shares to the selling
stockholder.
As used in this prospectus, the term “selling stockholder” includes
the selling stockholder listed in the table below, together with
any additional selling stockholders listed in a prospectus
supplement, and their donees, pledgees, assignees, transferees,
distributees and successors-in-interest that receive shares in any
non-sale transfer after the date of this prospectus.
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Beneficial Ownership
Prior to This Offering
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Beneficial Ownership
After This Offering
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Name of Selling Stockholder
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Shares
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% of Total
Voting Power
Before This
Offering
|
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Number of
Shares Being
Offered
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Shares
|
|
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% of Total
Voting Power
After This
Offering
|
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Lincoln Park Capital Fund, LLC(1)
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81,150 |
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1.1 |
% |
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81,150 |
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|
— |
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|
|
— |
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(1)
|
Represents 81,150 shares of common stock underlying warrants held
by the selling stockholder. Lincoln Park Capital, LLC (“LPC”) is
the Managing Member of Lincoln Park Capital Fund, LLC (“Lincoln
Park”). Rockledge Capital Corporation (“RCC”) and Alex Noah
Investors, LLC (“Alex Noah”) are the managing Members of LPC. Josh
Scheinfeld is the president and sole shareholder of RCC as well as
a principal of LPC. Mr. Cope is the president and sole shareholder
of Alex Noah, as well as a principal of LPC. As a result of the
foregoing, Mr. Scheinfeld and Mr. Cope have shared voting and
shared investment power over shares of common stock of the Company
held directly by Lincoln Park. The address of Lincoln Park is 440
N. Wells Street, Suite 410, Chicago, Illinois 60654.
|
PLAN OF DISTRIBUTION
The selling stockholder and any of its pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of
the shares of common stock covered hereby on The Nasdaq Global
Market or any other stock exchange, market or trading facility on
which the common stock is traded or in private transactions. These
sales may be at fixed or negotiated prices. A selling stockholder
may use any one or more of the following methods when selling the
common stock:
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●
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ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
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●
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block trades in which the broker-dealer will attempt to sell the
securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
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●
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purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
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●
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an exchange distribution in accordance with the rules of the
applicable exchange;
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●
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privately negotiated transactions;
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●
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settlement of short sales;
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●
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in transactions through broker-dealers that agree with the Selling
Stockholders to sell a specified number of such securities at a
stipulated price per security;
|
| |
●
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through the writing or settlement of options or other hedging
transactions, whether through an options exchange or otherwise;
|
| |
●
|
a combination of any such methods of sale; or
|
| |
●
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any other method permitted pursuant to applicable law.
|
A selling stockholder may also sell securities under Rule 144 or
any other exemption from registration under the Securities Act of
1933, as amended, or the Securities Act, if available, rather than
under this prospectus.
Broker-dealers engaged by a selling stockholder may arrange for
other brokers-dealers to participate in sales. Broker-dealers may
receive commissions or discounts from a selling stockholder (or, if
any broker-dealer acts as agent for the purchaser of securities,
from the purchaser) in amounts to be negotiated, but, except as set
forth in a supplement to this Prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2121; and in the case of a principal
transaction a markup or markdown in compliance with FINRA Rule
2121.
In connection with the sale of the securities or interests therein,
a selling stockholder may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the securities in the course of hedging
the positions they assume. A selling stockholder may also sell
securities short and deliver these securities to close out their
short positions, or loan or pledge the securities to broker-dealers
that in turn may sell these securities. A selling stockholder may
also enter into option or other transactions with broker-dealers or
other financial institutions or create one or more derivative
securities which require the delivery to such broker-dealer or
other financial institution of securities offered by this
prospectus, which securities such broker-dealer or other financial
institution may resell pursuant to this prospectus (as supplemented
or amended to reflect such transaction).
A selling stockholder and any broker-dealers or agents that are
involved in selling the securities may be deemed to be
“underwriters” within the meaning of the Securities Act in
connection with such sales. In such event, any commissions received
by such broker-dealers or agents and any profit on the resale of
the securities purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. The selling
stockholder has informed us that it does not have any written or
oral agreement or understanding, directly or indirectly, with any
person to distribute the securities.
We are required to pay certain fees and expenses incurred by us
incident to the registration of the securities. We have agreed to
indemnify any selling stockholder against certain losses, claims,
damages and liabilities, including liabilities under the Securities
Act.
We agreed to keep this prospectus effective until the earlier of
(i) the date on which the common stock may be resold by the selling
stockholder without registration and without regard to any volume
or manner-of-sale limitations by reason of Rule 144, without the
requirement for us to be in compliance with the current public
information under Rule 144 under the Securities Act or any other
rule of similar effect or (ii) all of the shares of common stock
have been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
securities will be sold only through registered or licensed brokers
or dealers if required under applicable state securities laws. In
addition, in certain states, the resale securities covered hereby
may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to
the common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In
addition, the selling stockholder will be subject to applicable
provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of
purchases and sales of the common stock by the selling stockholder
or any other person. We will make copies of this prospectus
available to the selling stockholder and have informed them of the
need to deliver a copy of this prospectus to each purchaser at or
prior to the time of the sale (including by compliance with Rule
172 under the Securities Act).
LEGAL MATTERS
Cooley LLP, Palo Alto, California, will pass upon the validity of
the shares of our common stock offered by this prospectus.
EXPERTS
WithumSmith+Brown, PC, independent registered public accounting
firm, has audited our consolidated financial statements and related
schedule included in our Annual Report on Form 10-K for the year
ended December 31, 2021, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the
registration statement. Such financial statements are incorporated
by reference in reliance on WithumSmith+Brown, PC’s report, given
on their authority as experts in accounting and auditing.
OUM & Co. LLP, independent registered public accounting firm,
has audited our consolidated financial statements and related
schedule included in our Annual Report on Form 10-K for the
year ended December 31, 2021, as set forth in their report, which
is incorporated by reference in this prospectus and elsewhere in
the registration statement. Such financial statements are
incorporated by reference in reliance on OUM & Co. LLP’s
report, given on their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
This prospectus is part of the registration statement on Form S-3
we filed with the SEC under the Securities Act and does not contain
all the information set forth in the registration statement.
Whenever a reference is made in this prospectus to any of our
contracts, agreements or other documents, the reference may not be
complete and you should refer to the exhibits that are a part of
the registration statement or the exhibits to the reports or other
documents incorporated by reference into this prospectus for a copy
of such contract, agreement or other document. Because we are
subject to the information and reporting requirements of the
Exchange Act, we file annual, quarterly and current reports, proxy
statements and other information with the SEC. Our SEC filings are
available to the public over the Internet at the SEC’s website at
http://www.sec.gov. Our website address is http://www.acelrx.com.
Information contained on or accessible through our website is not a
part of this prospectus and is not incorporated by reference
herein, and the inclusion of our website address in this prospectus
is an inactive textual reference only.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” information from
other documents that we file with it, which means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is considered
to be part of this prospectus. Information in this prospectus
supersedes information incorporated by reference that we filed with
the SEC prior to the date of this prospectus, while information
that we file later with the SEC will automatically update and
supersede the information in this prospectus. We incorporate by
reference into this prospectus and the registration statement of
which this prospectus is a part the information or documents listed
below that we have filed with the SEC (other than current reports
furnished under Item 2.02 or Item 7.01 of Form 8‑K and exhibits
filed on such form that are related to such items unless such Form
8‑K expressly provides to the contrary):
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●
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our Current Reports on Form 8‑K, which were filed with the SEC on
January 12, 2022; February 14, 2022,
March 1, 2022, March 31, 2022, May 9, 2022, June 2, 2022, July 15, 2022, July 25, 2022, July 26, 2022, July 28, 2022, August 4, 2022, August 12, 2022, September 23,
2022 and October 25, 2022; and
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All filings filed by us pursuant to the Exchange Act after the date
of the initial filing of the registration statement of which this
prospectus is a part and prior to effectiveness of the registration
statement shall be deemed to be incorporated by reference into this
prospectus.
We also incorporate by reference any future filings (other than
current reports furnished under Item 2.02 or Item 7.01 of Form 8‑K
and exhibits filed on such form that are related to such items
unless such Form 8‑K expressly provides to the contrary) made with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, including those made after the date of the initial
filing of the registration statement of which this prospectus is a
part and prior to effectiveness of such registration statement,
until we file a post-effective amendment that indicates the
termination of the offering of the securities made by this
prospectus and will become a part of this prospectus from the date
that such documents are filed with the SEC. Information in such
future filings updates and supplements the information provided in
this prospectus. Any statements in any such future filings will
automatically be deemed to modify and supersede any information in
any document we previously filed with the SEC that is incorporated
or deemed to be incorporated herein by reference to the extent that
statements in the later filed document modify or replace such
earlier statements.
You can request a copy of these filings, at no cost, by writing or
telephoning us at the following address or telephone number:
AcelRx Pharmaceuticals, Inc.
25821 Industrial Boulevard, Suite 400
Hayward, California 94545
Attn: Investor Relations
(650) 216-3500
15
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