As
filed with the Securities and Exchange Commission on November 26, 2024
Registration
No. 333-281887
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 1
to
Form
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
CELCUITY
INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
82-2863566 |
(State or other jurisdiction |
|
(I.R.S. Employer |
of incorporation or organization) |
|
Identification Number) |
16305
36th Avenue N., Suite 100
Minneapolis,
MN 55446
(763) 392-0123
(Address, including zip code, and telephone number, including area code, of principal executive offices)
Brian
F. Sullivan
Chief Executive Officer
16305 36th Avenue N., Suite 100
Minneapolis,
MN 55446
(763) 392-0123
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Please
send copies of all communications to:
Brent
Eilefson
General
Counsel
16305
36th Avenue N., Suite 100
Minneapolis,
MN 55446
(763)
392-0123 |
|
Jonathan
R. Zimmerman
Griffin
D. Foster
Faegre Drinker Biddle & Reath LLP
2200 Wells Fargo Center
90
South Seventh Street
Minneapolis,
Minnesota 55402
(612) 766-7000 |
Approximate
date of commencement of proposed sale to the public: From time to time after the effectiveness of the 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: ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated
filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ |
|
Accelerated filer ☐ |
|
Non-accelerated filer ☒ |
|
Smaller reporting company
☒ |
|
Emerging growth company ☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 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
Celcuity
Inc. is filing this Pre-Effective Amendment No. 1 (“Amendment No. 1”) to its Registration Statement on Form S-3 (333-281887),
originally filed on August 30, 2024 (the “Registration Statement”), solely to file an updated auditor consent as Exhibit
23.2. This Amendment No. 1 consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature
page to the Registration Statement, and the exhibit being filed with this Amendment No. 1. The remainder of the Registration Statement,
including the prospectus, is unchanged and has been omitted.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the various expenses in connection with the sale and distribution of the securities being registered. All
amounts shown are estimates, except the SEC registration fee. The registrant has agreed to pay these costs and expenses.
Securities and Exchange Commission registration fee | |
$ | 49,862 | |
FINRA corporate filing fees | |
| * | |
Printing and engraving expenses | |
| * | |
Legal fees and expenses | |
| * | |
Accounting fees and expenses | |
| * | |
Transfer Agent and Registrar fees | |
| * | |
Miscellaneous | |
| * | |
Total | |
$ | * | |
* |
Estimated expenses not
presently known. The applicable prospectus supplement will set forth the estimated aggregate amount of expenses payable in respect
of any offering of securities. |
Item
15. Indemnification of Directors and Officers.
Section
102(b)(7) of the Delaware General Corporation Law, or DGCL, provides that a Delaware corporation, in its certificate of incorporation,
may limit the personal liability of a director or officer to the corporation or its stockholders for monetary damages for breach of fiduciary
duties as a director or officer, except for liability for any:
|
● |
breach of the director’s
or officer’s duty of loyalty to the corporation or its stockholders; |
|
|
|
|
● |
act or omission not in
good faith or which involve intentional misconduct or a knowing violation of law; |
|
|
|
|
● |
a director for any unlawful
payment of dividends or redemption of shares; |
|
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|
|
● |
transaction from which
the director or officer derived an improper personal benefit; or |
|
|
|
|
● |
an officer in any action
by or in the right of the corporation. |
Section
145(a) of the DGCL provides, in general, that a Delaware corporation may indemnify any person who was or is a party, or is threatened
to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with such action, so long as the person acted in good faith
and in a manner he or she reasonably believed was in or not opposed to the corporation’s best interests, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section
145(b) of the DGCL provides, in general, that a Delaware corporation may indemnify any person who was or is a party, or is threatened
to be made a party, to any threatened, pending or completed action or suit by or in the right of the corporation to obtain a judgment
in its favor because the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another corporation or other enterprise. The indemnity may include expenses
(including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such
action, so long as the person acted in good faith and in a manner the person reasonably believed was in or not opposed to the corporation’s
best interests, except that no indemnification shall be permitted without judicial approval if a court has determined that the person
is to be liable to the corporation with respect to such claim. Section 145(c) of the DGCL provides that, if a present or former director
or officer has been successful in defense of any action referred to in Sections 145(a) and (b) of the DGCL, the corporation must indemnify
such officer or director against the expenses (including attorneys’ fees) he or she actually and reasonably incurred in connection
with such action.
Section
145(g) of the DGCL provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise against any liability asserted against and incurred by such person, in any
such capacity, or arising out of his or her status as such, whether or not the corporation could indemnify the person against such liability
under Section 145 of the DGCL.
Our
certificate of incorporation, as amended, and our bylaws provide for the limitation of liability and indemnification of our directors
and officers to the fullest extent permitted under the DGCL.
We
have also entered into separate indemnification agreements with our directors and officers in addition to the indemnification provided
for in our certificate of incorporation, as amended, and our bylaws. These indemnification agreements provide, among other things, that
we will indemnify our directors and officers for certain expenses, including damages, judgments, fines, penalties, settlements and costs
and attorneys’ fees and disbursements, incurred by a director or officer in any claim, action or proceeding arising in his or her
capacity as a director or officer of the Company or in connection with service at our request for another corporation or entity. The
indemnification agreements also provide for procedures that will apply in the event that a director or officer makes a claim for indemnification.
We
also maintain a directors’ and officers’ insurance policy pursuant to which our directors and officers are insured against
liability for actions taken in their capacities as directors and officers.
Item
16. Exhibits.
The
following is a list of exhibits filed as part of this registration statement.
Exhibit |
|
Description |
1.1 ** |
|
Form of Underwriting Agreement |
3.1 |
|
Certificate of Incorporation of the Company, as amended, including the Certificate of Designations of Preferences, Rights, and Limitations of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 9, 2024). |
3.3 |
|
Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 13, 2017). |
4.3 |
|
Specimen Certificate representing shares of common stock of Celcuity Inc. (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1/A filed with the SEC on September 12, 2017). |
4.4 |
|
Description of Registered Securities (incorporated by reference to Exhibit 4.2 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on March 27, 2024). |
4.5 ** |
|
Form of Preferred Stock
Certificate |
4.6 ** |
|
Form of Common Stock Warrant
Agreement and Warrant Certificate |
4.7 ** |
|
Form of Preferred Stock
Warrant Agreement and Warrant Certificate |
4.8 ** |
|
Form of Debt Securities
Warrant Agreement and Warrant Certificate |
4.9 ** |
|
Form of Unit Agreement |
4.10 |
|
Form of Indenture (incorporated by reference to Exhibit 4.10 to the Company’s Registration Statement on Form S-3 filed with the SEC on August 30, 2024). |
5.1 |
|
Opinion of Fredrikson & Byron, P.A. relating to the Securities (incorporated by reference to Exhibit 5.1 to the Company’s Registration Statement on Form S-3 filed with the SEC on August 30, 2024). |
23.1 |
|
Consent of Fredrikson & Byron, P.A. (included in Exhibit 5.1) (incorporated by reference to Exhibit 23.1 to the Company’s Registration Statement on Form S-3 filed with the SEC on August 30, 2024). |
23.2 * |
|
Consent of Boulay PLLP |
24.1 |
|
Power of attorney (included on the signature page to the Company’s Registration Statement on Form S-3 filed with the SEC on August 30, 2024). |
25.1 |
|
Statement of Eligibility
of Trustee Under Debt Indenture (to be filed separately pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939) |
107 |
|
Filing Fee Table (incorporated by reference to Exhibit 107 to the Company’s Registration Statement on Form S-3 filed with the SEC on August 30, 2024). |
* |
Filed herewith |
** |
To
be filed by amendment or incorporated by reference in connection with the offering of the securities. |
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act 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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
Provided,
however, that the undertakings set forth in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished
to the 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 a 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.
(5)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(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.
(6)
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.
(b)
The undersigned registrant hereby undertakes 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.
(h)
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 of 1933 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.
(j)
If and when applicable, the undersigned registrant, hereby undertakes 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 Act.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, 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 on Form S-3 to be signed on its behalf by
the undersigned, thereunto duly authorized, in Minneapolis, Minnesota, on November 26, 2024.
|
CELCUITY INC. |
|
|
|
|
By: |
/s/ Brian
F. Sullivan |
|
|
Brian F. Sullivan |
|
|
Chairman
and Chief Executive Officer
(Principal
Executive Officer) |
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated:
Signature |
|
Title |
|
Date |
|
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|
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/s/ Brian
F. Sullivan |
|
Chairman and Chief Executive
Officer (Principal Executive Officer) |
|
November
26, 2024 |
Brian F. Sullivan |
|
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|
|
/s/ Vicky
Hahne |
|
Chief Financial Officer
(Principal Financial and Accounting Officer) |
|
November
26, 2024 |
Vicky Hahne |
|
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|
* |
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Chief Science Officer,
Vice President and Secretary, and Director |
|
November
26, 2024 |
Lance G. Laing |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
November
26, 2024 |
Richard E. Buller |
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* |
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Director |
|
November
26, 2024 |
David F. Dalvey |
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* |
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Director |
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November
26, 2024 |
Leo T. Furcht |
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* |
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Director |
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November
26, 2024 |
Richard J. Nigon |
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* |
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Director |
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November
26, 2024 |
Polly Murphy |
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*By: |
/s/
Vicky Hahne |
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Vicky Hahne
Attorney-in-Fact |
|
Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated March 27, 2024, with
respect to the financial statements included in the Annual Report of Celcuity Inc. on the Form 10-K for the year ended December 31, 2023.
We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/
Boulay PLLP
Minneapolis,
Minnesota
November
26, 2024
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