As
filed with the Securities and Exchange Commission on July 31, 2020
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CELSION
CORPORATION
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of
incorporation or organization)
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52-1256615
(I.R.S.
Employer
Identification No.)
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997
Lenox Drive, Suite 100
Lawrenceville,
New Jersey 08648
(609)
896-9100
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Michael
H. Tardugno
President
and Chief Executive Officer
997
Lenox Drive, Suite 100
Lawrenceville,
New Jersey 08648
(609)
896-9100
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Steven
G. Canner
Baker
& McKenzie LLP
452
Fifth Avenue
New
York, New York 10018
(212)
626 4884
Approximate
date of commencement of proposed sale to the public:
From
time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. [X]
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. [ ]
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [ ]
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
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[ ]
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Accelerated
filer
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[ ]
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Non-accelerated
filer
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[ ]
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Smaller
reporting company
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[X]
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Emerging
growth company
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[ ]
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CALCULATION
OF REGISTRATION FEE
Title of each class of securities to be
registered
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Amount
to be
registered
(1)
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Proposed
maximum
offering
price
per
share (2)
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Proposed
maximum
aggregate
offering
price (2)
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Amount of
registration
fee
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Common Stock, par value $0.01 per share
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3,200,000
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$
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1.24
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$
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3,968,000
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$
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515.05
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(1)
Represents shares of common stock, par value $0.01 per share, of the registrant, issuable upon exercise of 3,200,000
outstanding common stock purchase warrants at an exercise price of $1.24 per share, to be offered and sold by the selling
stockholders identified in this registration statement. In accordance with Rule 416 under the Securities Act of 1933, as
amended, this registration statement also covers such indeterminate number of additional shares of common stock of the
registrant as may become issuable in connection with any proportionate adjustment for any stock splits, stock combinations,
stock dividends, recapitalizations or similar events with respect to the registrant’s common stock.
(2)
Estimated solely for the purpose of computing the amount of the registration fee for the shares of common stock issuable upon
exercise of warrants being registered in accordance with Rule 457(g) under the Securities Act of 1933, as amended, based upon
the higher of (i) $1.24, the price at which the warrants may be exercised, and (ii) $1.11, the average of the high and
low prices for a share of the registrant’s common stock as reported on The NASDAQ Capital Market on July 30, 2020, a date
within five business days prior to the initial filing of this registration statement.
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall
become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. The selling stockholders may not sell these securities pursuant
to this prospectus until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and is not soliciting offers to buy these securities in any state where the offer or
sale is not permitted.
SUBJECT
TO COMPLETION, DATED JULY __, 2020
PROSPECTUS
3,200,000
Shares of Common Stock
This
prospectus relates solely to the resale, from time to time, by the selling stockholders identified in this prospectus under the
caption “Selling Stockholders,” of up to 3,200,000 shares of our common stock, par value $0.01 per share. The 3,200,000
shares consist solely of shares of common stock issuable upon exercise of 3,200,000 outstanding common stock purchase warrants
issued by us (the Original Warrants) on March 3, 2020, subject to that certain Securities Purchase Agreement, dated as of February
27, 2020, by and among the Company, and the investors named therein (the Securities Purchase Agreement) and subsequently exchanged
effective March 12, 2020 for exchange warrants pursuant to that certain exchange agreement, dated as of March 12, 2020 (the Exchange
Warrants or Warrants).
The
Warrants have an exercise price of $1.24 per share, subject to adjustment, will become exercisable on or after September 3, 2020
and have a five-year term through September 3, 2025. We are registering the resale of the shares of common stock underlying the
warrants as required by the Securities Purchase Agreement.
Our
registration of the shares covered by this prospectus does not mean that the selling stockholders will offer or sell any of the
shares. The selling stockholders may sell the shares offered by this prospectus from time to time on terms to be determined at
the time of sale through ordinary brokerage transactions or through any other means described in this prospectus under the caption
“Plan of Distribution.” The shares of common stock may be sold at fixed prices, at market prices prevailing at the
time of sale, at prices related to prevailing market price or at negotiated prices.
Our
common stock is listed on The NASDAQ Capital Market under the symbol “CLSN.” On July 30, 2020, the last reported closing
sale price of our common stock on The NASDAQ Capital Market was $1.15 per share.
Investing
in our common stock involves a high degree of risk. Before making an investment decision, please read “Risk Factors”
on page 7 of this prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2020.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This
prospectus relates to the resale by the selling stockholders identified in this prospectus under the caption “Selling Stockholders,”
from time to time, of up to 3,200,000 shares of our common stock issuable upon exercise of certain outstanding common stock purchase
warrants. We are not selling any shares of common stock under this prospectus and will not receive any proceeds from the sale
of shares of common stock by the selling stockholders.
This
prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission (SEC) utilizing
a “shelf” registration process. It omits some of the information contained in the registration statement and reference
is made to the registration statement for further information with regard to us and the securities being offered by the selling
stockholders. Any statement contained in the prospectus concerning the provisions of any document filed as an exhibit to the registration
statement or otherwise filed with the SEC is not necessarily complete, and in each instance, reference is made to the copy of
the document filed.
You
should read this prospectus, any documents that we incorporate by reference in this prospectus and the additional information
described below under “Where You Can Find More Information” and “Information Incorporated By Reference”
before making an investment decision. You should rely only on the information contained or incorporated by reference in this prospectus.
We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent
information, you should not rely on it. This prospectus is not an offer to sell these securities and it is not soliciting an offer
to buy these securities in any jurisdiction where the offer or sale is not permitted.
You
should not assume that the information in this prospectus or any documents we incorporate by reference herein or therein is accurate
as of any date other than the date on the front of those documents. Our business, financial condition, results of operations and
prospects may have changed since those dates.
Unless
the context indicates otherwise, as used in this prospectus, the terms “Celsion,” “the Company,” “we,”
“us” and “our” refer to Celsion Corporation, a Delaware corporation, and its wholly-owned subsidiary,
CLSN Laboratories, Inc., also a Delaware corporation. The Celsion brand and product names, including but not limited to Celsion®
and ThermoDox® contained in this prospectus are trademarks, registered trademarks or service marks of Celsion Corporation
or its subsidiary in the United States and certain other countries. This document may also contain references to trademarks and
service marks of other companies that are the property of their respective owners.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the information requirements of the Securities Exchange Act of 1934, as amended (the Exchange Act). In accordance
with the Exchange Act, we file annual, quarterly and current reports, proxy statements and other information with the SEC. Such
reports, proxy statements and other information filed by us are available to the public free of charge at www.sec.gov.
We also maintain a website at www.celsion.com, at which you may access these materials free of charge as soon as
reasonably practicable after they are electronically filed with, or furnished to, the SEC. The information available on or through
our website is not part of this prospectus and should not be relied upon.
This
prospectus is part of a registration statement that we filed with the SEC. This prospectus omits some information contained in
the registration statement in accordance with SEC rules and regulations. You should review the information and exhibits in the
registration statement for further information about us and the securities being offered hereby. Statements in this prospectus
concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended
to be comprehensive and are qualified by reference to the filings. You should review the complete document to evaluate these statements.
INFORMATION
INCORPORATED BY REFERENCE
SEC
rules allow us to “incorporate by reference” into this prospectus much of the information we file with the SEC, which
means that we can disclose important information to you by referring you to those publicly available documents. The information
that we incorporate by reference into this prospectus is considered to be part of this prospectus. These documents may include
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements. You
should read the information incorporated by reference because it is an important part of this prospectus.
This
prospectus incorporates by reference the documents set forth below that have previously been filed with the SEC:
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our
Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March 25, 2020;
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2020, filed with the SEC on May 15, 2020;
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the
portions of our definitive proxy statement on Schedule 14A filed with the SEC on April 29, 2020 that are deemed “filed”
with the SEC under the Exchange Act;
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our
Current Reports on Form 8-K filed with the SEC on March 3, 2020, March 9, 2020, March 13, 2020, April 23, 2020, June 1, 2020,
June 16, 2020, June 22, 2020, June 26, 2020 and July 13, 2020; and
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the
description of our common stock contained in our registration statement on Form 8-A filed with the SEC on May 26, 2000, as
amended by a Form 8-A/A dated February 7, 2008, and any amendments or reports filed for the purpose of updating such description.
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Any
statement contained in any previously filed document incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained in this prospectus or any prospectus modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute
a part of this prospectus.
We
also incorporate by reference any future filings, other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K
and exhibits filed on such form that are related to such items, made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act, in each case, other than those documents or the portions of those documents deemed to be furnished and not
filed in accordance with SEC rules, until the termination of the offering of the securities hereunder. Information in such future
filings updates and supplements the information provided in this prospectus. Any statements in any such future filings will be
deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed
to be incorporated herein by reference to the extent that statements in the later filed document modify or replace such earlier
statements.
We
will provide without charge to each person, including any beneficial owners, to whom this prospectus is delivered, upon his or
her written or oral request, a copy of any or all documents referred to above which have been or may be incorporated by reference
into this prospectus but not delivered with this prospectus, excluding exhibits to those documents unless they are specifically
incorporated by reference into those documents. You may request a copy of these documents by writing or telephoning us at the
following address.
Celsion
Corporation
997
Lenox Drive, Suite 100
Lawrenceville,
New Jersey 08648
(609)
896-9100
FORWARD-LOOKING
STATEMENTS
Statements
and terms such as “expect”, “anticipate”, “estimate”, “plan”, “believe”
and words of similar import regarding our expectations as to the development and effectiveness of our technologies, the potential
demand for our products, and other aspects of our present and future business operations, constitute forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995 and releases issued by the SEC and within the meaning
of Section 27A of the Securities Act of 1933, as amended (the Securities Act), and Section 21E of the Exchange Act. Although we
believe that our expectations are based on reasonable assumptions within the bounds of our knowledge of our industry, business
and operations, we cannot guarantee that actual results will not differ materially from our expectations. In evaluating such forward-looking
statements, readers should specifically consider the various factors contained in the Company’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2019 filed with the SEC on March 25, 2020, which factors include, without limitation, plans
and objectives of management for future operations or programs or proposed new products or services; changes in the course of
research and development activities and in clinical trials; possible changes in cost and timing of development and testing; possible
changes in capital structure, financial condition, working capital needs and other financial items; changes in approaches to medical
treatment; clinical trial analysis and future plans relating thereto; our ability to realize the full extent of the anticipated
benefits of our acquisition of substantially all of the assets of EGEN, Inc., including achieving operational cost savings and
synergies in light of any delays we may encounter in the integration process and additional unforeseen expenses; introduction
of new products by others; possible licenses or acquisitions of other technologies, assets or businesses; and possible actions
by customers, suppliers, partners, competitors and regulatory authorities. These and other risks and uncertainties could cause
actual results to differ materially from those indicated by forward-looking statements.
The
discussion of risks and uncertainties set forth in this prospectus is not necessarily a complete or exhaustive list of all risks
facing the Company at any particular point in time. We operate in a highly competitive, highly regulated and rapidly changing
environment and our business is in a state of evolution. Therefore, it is likely that new risks will emerge, and that the nature
and elements of existing risks will change, over time. It is not possible for management to predict all such risk factors or changes
therein, or to assess either the impact of all such risk factors on our business or the extent to which any individual risk factor,
combination of factors, or new or altered factors, may cause results to differ materially from those contained in any forward-looking
statement. Except as required by law, we assume no obligation to revise or update any forward-looking statement that may be made
from time to time by us or on our behalf for any reason, even if new information becomes available in the future.
PROSPECTUS
SUMMARY
The
following summary highlights information contained elsewhere or incorporated by reference in this prospectus. This summary does
not contain all of the information you should consider before investing in the securities. Before making an investment decision,
you should read the entire prospectus carefully, including the matters discussed under the heading “Risk Factors”
in this prospectus.
Company
Overview
We
are a fully integrated development clinical stage oncology drug company focused on advancing innovative cancer treatments, including
directed chemotherapies, DNA-mediated immunotherapy and RNA based therapies. Our lead product candidate is ThermoDox®, a proprietary
heat-activated liposomal encapsulation of doxorubicin, currently in a Phase III clinical trial for the treatment of primary liver
cancer (the OPTIMA Study). Second in our pipeline is GEN-1, a DNA-mediated immunotherapy for the localized treatment of ovarian
cancer. These investigational products are based on technologies that provide the platform for the future development of a range
of therapeutics for difficult to treat forms of cancer. The first technology, on which ThermoDox® is based, is Lysolipid Thermally
Sensitive Liposomes, a heat sensitive liposomal based dosage form that targets disease with known chemotherapeutics in the presence
of mild heat. The second technology is TheraPlas, a novel nucleic acid-based treatment for local transfection of therapeutic DNA
plasmids. With these technologies, we are working to develop and commercialize more efficient, effective and targeted oncology
therapies that maximize efficacy while minimizing side effects common to cancer treatments.
Corporate
Information
We
were founded in 1982 and are a Delaware corporation. Our shares of common stock trade on The NASDAQ Capital Market under the symbol
“CLSN.” Our principal executive offices are located at 997 Lenox Drive, Suite 100, Lawrenceville, New Jersey 08648.
Our telephone number is (609) 896-9100 and our website is www.celsion.com. The information available on or through our
website is not part of or incorporated by reference into, this prospectus and should not be relied upon.
Description
of the Private Placement
On
February 27, 2020, we entered into the Securities Purchase Agreement, pursuant to which we agreed to issue and sell, in a registered
direct offering (the Offering), an aggregate of 4,571,428 shares of common stock, par value $0.01 per share, of the Company at
an offering price of $1.05 per share for gross proceeds of approximately $4.8 million before the deduction of the placement agent
fee and offering expenses.
In
a concurrent private placement (the Private Placement), we agreed to issue to the investors that participated in the Offering
(the Warrant holders), for no additional consideration, the Original Warrants, allowing for the purchase of up to 2,971,428 shares
of our common stock at an exercise price of $1.15 per share. The Original Warrants were issued to the Warrant holders on March
3, 2020. On March 12, 2020, we entered into an agreement with the Warrant holders (the Exchange Agreement) pursuant to which we
agreed to issue Exchange Warrants allowing for the purchase of up to 3,200,000 shares of our common stock at an exercise price
of $1.24 per share to each Warrant holder in exchange for the Original Warrants. Subject to limited exceptions, a Warrant holder
will not have the right to exercise any portion of its warrants if the holder, together with its affiliates, would beneficially
own in excess of 9.99% of the number of shares of common stock outstanding immediately after giving effect to such exercise (the
Beneficial Ownership Limitation); provided, however, that upon 61 days’ prior notice to the Company, the holder may increase
or decrease the Beneficial Ownership Limitation, provided that in no event shall the Beneficial Ownership Limitation exceed 9.99%.
We
filed the registration statement on Form S-3, of which this prospectus is a part, to fulfill our contractual obligations under
the Purchase Agreement to provide for the resale by these investors of up to 3,200,000 shares of common stock issuable upon exercise
of the Exchange Warrants. We agree to use commercially reasonable best efforts to cause such registration to become effective
and to keep such registration statement effective at all times until no Warrant holder owns any Warrants or Warrant Shares issuable
upon exercise thereof.
Recent
Developments
Net
Operating Losses
In
2019, the Company received approval from the New Jersey Economic Development Authority to sell $1.9 million of its State of New
Jersey net operating losses (NOLs) as part of the Technology Business Tax Certificate Program sponsored by The New Jersey Economic
Development Authority. Under the program, emerging biotechnology companies with unused NOLs and unused research and development
credits are allowed to sell these benefits to other companies. In early 2020, the Company entered into an agreement to sell these
NOLs and, in April 2020, the Company completed the sale of the New Jersey NOLs and received $1.8 million in net proceeds. The
Company has approximately $2.0 million available in future tax benefits remaining under the NOL program for future years and has
filed its application for approximately $1.9 million of these NOLs in June 2020. The Company anticipates selling those NOLs in
2020 but there can be no assurance as to the timing of any sale or that the NOLs may be sold at all.
Capital
on Demand Agreement
Under
the Company’s Capital on DemandTM Sales Agreement (the Capital on Demand Agreement) with JonesTrading Institutional
Services LLC, as sales agent, the Company sold 1,164,748 shares of its common stock for net proceeds of approximately $3.38 million
(at an average price of $2.90 per share) during the period of June 2, 2020 through June 12, 2020. The Company has not sold any
other shares under the Capital on Demand Agreement in 2020.
Underwritten
Offering
On
June 24, 2020, the Company issued and sold 2,666,667 shares of its common stock in an underwritten offering for net proceeds,
after deducting the underwriting discount and estimated offering expenses payable by the Company, of approximately $9.1 million.
Independent
Data Monitoring Committee Recommendation
On
July 13, 2020, the Company issued a press release announcing that it had received a recommendation from the independent Data Monitoring
Committee (the DMC) to consider stopping the Phase III OPTIMA Study of ThermoDox® in combination with radiofrequency ablation
for the treatment of hepatocellular carcinoma, or primary liver cancer (the Study). The recommendation was made following the
second pre-planned interim safety and efficacy analysis by the DMC on July 9, 2020. The DMC analysis found that the pre-specified
boundary for stopping the trial for futility of 0.900 was crossed with an actual value of 0.903. However, the 2-sided p-value
of 0.524 for this analysis provides uncertainty; subsequently, the DMC has left the final decision of whether to stop the OPTIMA
Study to the Company. There were no safety concerns noted during the interim analysis.
The
Offering
Shares
of common stock offered by the selling stockholders:
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3,200,000
shares of common stock issuable upon exercise of the Warrants.
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Shares
of common stock outstanding before this offering:
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33,232,380
shares
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Shares
of common stock outstanding after completion of this offering, assuming full exercise of the Warrants:
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36,432,380
shares
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Terms
of the Offering:
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The
selling stockholders may sell, transfer or otherwise dispose of any or all of the shares of common stock offered by this prospectus
from time to time on The NASDAQ Capital Market or any other stock exchange, market or trading facility on which the shares
are traded or in private transactions. The shares of common stock may be sold at fixed prices, at market prices prevailing
at the time of sale, at prices related to prevailing market price or at negotiated prices.
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Use
of Proceeds:
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All
proceeds from the sale of shares of common stock issuable upon exercise of the Warrants will be for the account of the selling
stockholders. We will not receive any proceeds from the sale of common stock offered pursuant to this prospectus.
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NASDAQ
Capital Market symbol:
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CLSN
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Trading:
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Our
shares of common stock currently trade on The NASDAQ Capital Market. There is no established trading market for the Warrants
and we do not intend to list the Warrants on any exchange or other trading system.
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Risk
Factors:
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Investing
in our securities involves a high degree of risk and purchasers of our securities may lose their entire investment. See “Risk
Factors” below and the other information included elsewhere in this prospectus for a discussion of factors you should
carefully consider before deciding to invest in our securities.
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The
number of shares of our common stock outstanding is based on an aggregate of 33,232,380 shares of our common stock outstanding
as of July 30, 2020 and excludes:
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4,348,142
shares of common stock issuable upon the exercise of outstanding options as of March 31, 2020, having a weighted average exercise
price of $2.62 per share;
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8,750
shares of common stock issuable upon the vesting of common stock awards as of March 31, 2020, having a weighted average grant
day fair value of $1.59 per share;
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3,826,098
shares of common stock issuable upon the exercise of outstanding warrants as of March 31, 2020, having a weighted average
exercise price of $1.34 per share; and
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Any
changes reserved for future issuance pursuant to our existing stock incentive plan.
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RISK
FACTORS
Investing
in our securities involves a high degree of risk. You should carefully consider and evaluate all of the information contained
in this prospectus and in the documents incorporated by reference in this prospectus before you decide to purchase our securities.
In particular, you should carefully consider and evaluate the risks and uncertainties discussed below, together with the risks
described in “Part I - Item 1A. Risk Factors” of our most recent Annual Report on Form 10-K, as updated by the additional
risks and uncertainties set forth in our most recent Quarterly Report on Form 10-Q and in other filings we make with the SEC and
incorporated by reference into this prospectus. Any of the risks and uncertainties set forth therein could materially and adversely
affect our business, results of operations and financial condition, which in turn could materially and adversely affect the trading
price or value of our securities. As a result, you could lose all or part of your investment. See the section titled “Prospectus
Summary – Recent Developments” in this prospectus for additional information.
The
global COVID-19 pandemic could have material adverse effects on the Company and your investment.
In
January 2020, the World Health Organization declared an outbreak of novel coronavirus (COVID-19) a global pandemic, and the U.S.
Department of Health and Human Services declared a public health emergency to aid the U.S. healthcare community in responding
to COVID-19. This virus continues to spread globally and, as of mid-May 2020, has spread to over 100 countries, including the
United States. Governments and businesses around the world have taken unprecedented actions to mitigate the spread of COVID-19,
including, but not limited to, shelter-in-place orders, quarantines, and significant restrictions on travel, as well as restrictions
that prohibit many employees from going to work. Uncertainty with respect to the economic impacts of the pandemic has introduced
significant volatility in the financial markets. The Company did not observe significant impacts on its business or results of
operations for the three months ended March 31, 2020 due to the global emergence of COVID-19. While the extent to which COVID-19
impacts the Company’s future results will depend on future developments, the pandemic and associated economic impacts could
result in a material impact to the Company’s future financial condition, results of operations and cash flows.
The
Company’s ability to raise additional capital may be adversely impacted by potential worsening global economic conditions
and the recent disruptions to, and volatility in, financial markets in the United States and worldwide resulting from the ongoing
COVID-19 pandemic.
The
disruptions caused by COVID-19 may also disrupt preclinical studies, the clinical trials process and enrollment of patients. This
may delay commercialization efforts. The Company is currently monitoring its operating activities in light of these events and
it is reasonably possible that the virus could have a negative effect on the Company’s financial condition and results of
operations, the specific impact is not readily determinable as of the date of these financial statements.
The
actual amount of funds the Company will need to operate is subject to many factors, some of which are beyond the Company’s
control. These factors include the following:
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the
progress of research activities;
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the
number and scope of research programs;
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the
progress of preclinical and clinical development activities;
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the
progress of the development efforts of parties with whom the Company has entered into research and development agreements;
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the
costs associated with additional clinical trials of product candidates;
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the
ability to maintain current research and development licensing arrangements and to establish new research and development
and licensing arrangements;
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the
ability to achieve milestones under licensing arrangements;
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the
costs involved in prosecuting and enforcing patent claims and other intellectual property rights; and the
costs and timing of regulatory approvals.
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You
may experience future dilution as a result of future equity offerings and other issuances of our securities. In addition, this
offering and future equity offerings and other issuances of our common stock or other securities may adversely affect our common
stock price.
In
order to raise additional capital, we may in the future offer additional shares of our common stock or other securities convertible
into or exchangeable for our common stock at prices that may not be the same as the price per share in this offering. We may not
be able to sell shares or other securities in any other offering at a price per share that is equal to or greater than the price
per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights
superior to existing stockholders. The price per share at which we sell additional shares of our common stock or securities convertible
into common stock in future transactions may be higher or lower than the price per share in this offering. You will incur dilution
upon exercise of any outstanding stock options, warrants or upon the issuance of shares of common stock under our stock incentive
programs. In addition, the sale of shares in this offering and any future sales of a substantial number of shares of our common
stock in the public market, or the perception that such sales may occur, could adversely affect the price of our common stock.
We cannot predict the effect, if any, that market sales of those shares of common stock or the availability of those shares of
common stock for sale will have on the market price of our common stock.
We
do not currently intend to pay dividends on our common stock, and any return to investors is expected to come, if at all, only
from potential increases in the price of our common stock.
At
the present time, we intend to use available funds to finance our operations. Accordingly, while payment of dividends rests within
the discretion of our board of directors (our board), we have no intention of paying any such dividends in the foreseeable future.
Any return to investors is expected to come, if at all, only from potential increases in the price of our common stock.
USE
OF PROCEEDS
All
shares of our common stock offered by this prospectus are being registered for the account of the selling stockholders. We will
not receive any of the proceeds from the sale of these shares.
DIVIDEND
POLICY
We
have never declared or paid any cash dividends on our common stock and do not currently anticipate declaring or paying cash dividends
on our common stock in the foreseeable future. We currently intend to retain all of our future earnings, if any, to finance operations.
Any future determination relating to our dividend policy will be made at the discretion of our board and will depend on a number
of factors, including future earnings, capital requirements, financial conditions, future prospects, contractual restrictions
and other factors that our board may deem relevant.
DESCRIPTION
OF CAPITAL STOCK
General
Our
authorized capital stock consists of 112,500,000 shares of common stock, par value $0.01 per share, and 100,000 shares of preferred
stock, par value $0.01 per share. As of July 30, 2020, there were 33,232,380 shares of our common stock outstanding and no shares
of preferred stock outstanding.
The
following summary description of our capital stock is based on the applicable provisions of the Delaware General Corporation Law,
as amended (DGCL), and on the provisions of our certificate of incorporation, as amended (our certificate of incorporation), and
our bylaws, as amended (our bylaws). This information is qualified entirely by reference to the applicable provisions of the DGCL,
our certificate of incorporation and bylaws. For information on how to obtain copies of our certificate of incorporation and bylaws,
which are exhibits to the registration statement of which this prospectus is a part, see the section titled “Where You Can
Find Additional Information” in this prospectus.
Common
Stock
Holders
of common stock to be registered hereunder are entitled to one vote for each share held of record on all matters submitted to
a vote of stockholders and do not have cumulative voting rights. Subject to any preferential rights of any outstanding preferred
stock, holders of common stock are entitled to receive ratably such dividends, if any, as may be declared from time to time by
our board out of funds legally available therefor. In the event of a dissolution, liquidation or winding-up of the Company, holders
of common stock are entitled to share ratably in all assets remaining after payment of liabilities and any preferential rights
of any outstanding preferred stock.
Holders
of common stock have no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund
provisions applicable to the common stock. All outstanding shares of common stock are fully paid and non-assessable. The rights,
preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the rights of the
holders of shares of any series of preferred stock which may be designated and issued in the future.
Preferred
Stock
Pursuant
to our certificate of incorporation, our board has the authority, without further action by the stockholders (unless such stockholder
action is required by applicable law or NASDAQ rules), to designate and issue shares of preferred stock in one or more series,
to establish from time to time the number of shares to be included in each such series, to fix the designations, powers (including
voting), privileges, preferences and relative participating, optional or other rights, if any, of the shares of each such series
and the qualifications, limitations or restrictions thereof and to increase or decrease the number of shares of any such series,
but not below the number of shares of such series then outstanding.
The
DGCL provides that the holders of preferred stock will have the right to vote separately as a class or, in some cases, as a series
on an amendment to our certificate of incorporation if the amendment would change the par value or, unless our certificate of
incorporation provides otherwise, the number of authorized shares of the class or the powers, preferences or special rights of
the class or series so as to adversely affect the class or series, as the case may be. This right is in addition to any voting
rights that may be provided in the applicable certificate of designation.
Our
board may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power
or other rights of the holders of our common stock or other securities. Preferred stock could be issued quickly with terms designed
to delay or prevent a change in control of our company or make removal of management more difficult. Additionally, the issuance
of preferred stock may have the effect of decreasing the market price of our common stock.
Anti-Takeover
Considerations and Special Provisions of Our Certificate of Incorporation, Our Bylaws and the DGCL
Certificate
of Incorporation and Bylaws
A
number of provisions of our certificate of incorporation and bylaws concern matters of corporate governance and the rights of
our stockholders. Provisions that grant our board the ability to issue shares of preferred stock and to set the voting rights,
preferences and other terms thereof may discourage takeover attempts that are not first approved by our board, including takeovers
that may be considered by some stockholders to be in their best interests, such as those attempts that might result in a premium
over the market price for the shares held by stockholders. Certain provisions could delay or impede the removal of incumbent directors
even if such removal would be beneficial to our stockholders, such as the classification of our board and the lack of cumulative
voting. Since our board has the power to retain and discharge our officers, these provisions could also make it more difficult
for existing stockholders or another party to effect a change in management.
These
provisions may have the effect of deterring hostile takeovers or delaying changes in our control or in our management. These provisions
are intended to enhance the likelihood of continued stability in the composition of our board and in the policies it implements
and to discourage certain types of transactions that may involve an actual or threatened change of our control. These provisions
are designed to reduce our vulnerability to an unsolicited acquisition proposal. The provisions also are intended to discourage
certain tactics that may be used in proxy fights. However, such provisions could have the effect of discouraging others from making
tender offers for our shares and, as a consequence, they also may inhibit fluctuations in the market price of our shares that
could result from actual or rumored takeover attempts.
These
provisions also could discourage or make more difficult a merger, tender offer or proxy contest, even if they could be favorable
to the interests of stockholders and could potentially depress the market price of our common stock. Our board believes that these
provisions are appropriate to protect our interests and the interests of our stockholders.
Classification
of Board; No Cumulative Voting. Our certificate of incorporation and bylaws provide for our board to be divided into three
classes, with staggered three-year terms. Only one class of directors is elected at each annual meeting of our stockholders, with
the other classes continuing for the remainder of their respective three-year terms. Because our stockholders do not have cumulative
voting rights, our stockholders representing a majority of the shares of common stock outstanding will be able to elect all of
our directors due to be elected at each annual meeting of our stockholders.
Meetings
of and Actions by Stockholders. Our bylaws provide that annual meetings of our stockholders may take place at the time and
place designated by our board. A special meeting of our stockholders may be called at any time by our board, the chairman of our
board or our president. Our bylaws provide that (i) our board can fix separate record dates for determining stockholders entitled
to receive notice of a stockholder meeting and for determining stockholders entitled to vote at the meeting; (ii) we may hold
a stockholder meeting by means of remote communications; (iii) any stockholder seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to our secretary, request that our board fix a record date and our
board shall adopt a resolution fixing the record date in all events within ten calendar days after a request is received; and
(iv) a written consent of stockholders shall not be effective unless a written consent signed by a sufficient number of stockholders
to take such action is received by us within 60 calendar days of the earliest dated written consent received.
Advance
Notice Requirements for Stockholder Proposals and Director Nominations. Our bylaws provide that stockholders seeking to bring
business before an annual meeting of stockholders or to nominate candidates for election as directors at an annual meeting of
stockholders must provide timely notice in writing. To be timely, a stockholder’s notice must be delivered to, or mailed
and received by, our secretary at our principal executive offices not later than the close of business on the 90th calendar day,
nor earlier than the close of business on the 120th calendar day in advance of the date specified in our proxy statement released
to stockholders in connection with the previous year’s annual meeting of stockholders. If the date of the annual meeting
is more than 30 calendar days before or after such anniversary date, notice by the stockholder to be timely must be not earlier
than the close of business on the 120th calendar day in advance of such date of annual meeting and not later than the close of
business on the later of the 90th calendar day in advance of such date of annual meeting or the tenth calendar day following the
date on which public announcement of the date of the meeting is made. In no event shall the public announcement of an adjournment
or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of an advance notice
by any stockholder. Any stockholder that proposes director nominations or other business must be a stockholder of record at the
time the advance notice is delivered by such stockholder to us and entitled to vote at the meeting. Our bylaws also specify requirements
as to the form and content of a stockholder’s notice. These provisions may preclude stockholders from bringing matters before
an annual meeting of stockholders or from making nominations for the election of directors at an annual meeting of stockholders.
Unless otherwise required by law, any director nomination or other business shall not be made or transacted if the stockholder
(or a qualified representative of the stockholder) does not appear at the meeting to present the director nominee or other proposed
business.
Filling
of Board Vacancies. Our certificate of incorporation and bylaws provide that the authorized size of our board shall be determined
by our board by board resolution from time to time and that our board has the exclusive power to fill any vacancies and newly
created directorships resulting from any increase in the authorized number of directors and the stockholders do not have the power
to fill such vacancies. Vacancies in our board and newly created directorships resulting from any increase in the authorized number
of directors on our board may be filled by a majority of the directors remaining in office, even though that number may be less
than a quorum of our board, or by a sole remaining director. A director so elected to fill a vacancy shall serve for the remaining
term of the predecessor he or she replaced and until his or her successor is elected and has qualified, or until his or her earlier
resignation, removal or death.
Amendment
of the Certificate of Incorporation. Our certificate of incorporation may be amended, altered, changed or repealed at a meeting
of our stockholders entitled to vote thereon by the affirmative vote of a majority of the outstanding stock entitled to vote thereon
and a majority of the outstanding stock of each class entitled to vote thereon as a class, in the manner prescribed by the DGCL.
Amendment
of the Bylaws. Our bylaws may be amended or repealed, or new bylaws may be adopted, by either our board or the affirmative
vote of at least 66 2/3 percent of the voting power of our outstanding shares of capital stock.
Section
203 of the DGCL
We
are subject to Section 203 of the DGCL, which prohibits a Delaware corporation from engaging in any business combination with
any interested stockholder for a period of three years after the date that such stockholder became an interested stockholder,
with the following exceptions:
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before
such date, the board of directors of the corporation approved either the business combination or the transaction that resulted
in the stockholder becoming an interested stockholder;
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upon
completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least 85 percent of the voting stock of the corporation outstanding at the time the transaction began, excluding
for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder)
those shares owned (i) by persons who are directors and also officers and (ii) pursuant to employee stock plans in which employee
participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in
a tender or exchange offer; and
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●
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on
or after such date, the business combination is approved by the board of directors and authorized at an annual or special
meeting of the stockholders, and not by written consent, by the affirmative vote of at least 66 2/3 percent of the outstanding
voting stock that is not owned by the interested stockholder.
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In
general, Section 203 defines a business combination to include the following:
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any
merger or consolidation involving the corporation and the interested stockholder;
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any
sale, lease, transfer, pledge or other disposition of ten percent or more of the assets of the corporation to or with the
interested stockholder;
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subject
to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation
to the interested stockholder;
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any
transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class
or series of the corporation beneficially owned by the interested stockholder; and
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the
receipt by the interested stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits
by or through the corporation.
|
In
general, Section 203 of the DGCL defines an “interested stockholder” as an entity or person who, together with the
entity’s or person’s affiliates and associates, beneficially owns, or is an affiliate of the corporation and within
three years prior to the time of determination of interested stockholder status did own, 15 percent or more of the outstanding
voting stock of the corporation.
A
Delaware corporation may “opt out” of these provisions with an express provision in its certificate of incorporation.
We have not opted out of these provisions, which may as a result, discourage or prevent mergers or other takeover or change of
control attempts of us.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC (AST), located at 6201 15th
Avenue, Brooklyn, New York 11219. AST’s phone number is (800) 937-5449.
NASDAQ
Capital Market Listing
Our
common stock is listed on The NASDAQ Capital Market under the symbol “CLSN.”
Warrants
For
a discussion of the terms of the Warrants, see “Prospectus Summary– Description of the Private Placement”. The
exercise price and the number of shares of common stock issuable upon exercise of the Warrants are subject to customary adjustments
in connection with stock splits or stock dividends or distributions or other similar transactions.
SELLING
STOCKHOLDERS
This
prospectus covers an aggregate of up to 3,200,000 shares of our common stock that may be sold or otherwise disposed of by the
selling stockholders. Such shares are issuable to the selling stockholders upon the exercise of an aggregate of 3,200,000 common
stock purchase warrants we issued to the selling stockholders in a private placement transaction.
The
following table sets forth certain information with respect to each selling stockholder, including:
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the
shares of our common stock beneficially owned by the selling stockholder prior to this offering,
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●
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the
number of shares being offered by the selling stockholder pursuant to this prospectus and
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●
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the
selling stockholder’s beneficial ownership after completion of this offering, assuming that all of the shares covered
hereby (but none of the other shares, if any, held by the selling stockholders) are sold.
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The
registration of the shares of common stock issuable to the selling stockholders upon the exercise of the warrants does not necessarily
mean that the selling stockholders will sell all or any of such shares.
The
table is based on information supplied to us by the selling stockholders, with beneficial ownership and percentage ownership determined
in accordance with the rules and regulations of the SEC and include voting or investment power with respect to shares of stock.
This information does not necessarily indicate beneficial ownership for any other purpose. In computing the number of shares beneficially
owned by a selling stockholder and the percentage ownership of that selling stockholder, shares of common stock subject to warrants
held by that selling stockholder that are exercisable as of July 30, 2020, or exercisable within 60 days after July 30, 2020,
are deemed outstanding. Such shares, however, are not deemed outstanding for the purposes of computing the percentage ownership
of any other person. The percentage of beneficial ownership after this offering is based on 33,232,380 shares outstanding on July
30, 2020.
The
registration of these shares of common stock does not mean that the selling stockholders will sell or otherwise dispose of all
or any of those securities. The selling stockholders may sell or otherwise dispose of all, a portion or none of such shares from
time to time. We do not know the number of shares, if any, that will be offered for sale or other disposition by any of the selling
stockholders under this prospectus. Furthermore, the selling stockholders may have sold, transferred or disposed of the shares
of common stock covered hereby in transactions exempt from the registration requirements of the Securities Act since the date
on which we filed this prospectus.
To
our knowledge and except as noted below, none of the selling stockholders has, or within the past three years has had, any position,
office or other material relationship with us or any of our predecessors or affiliates.
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Beneficial
Ownership Before
This Offering
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Beneficial Ownership
After This Offering
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Selling Stockholder
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Number
of
Shares Owned(1)
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Shares Underlying
Warrants Offered
Hereby
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Number of Shares
Owned(2)
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Percentage of
Outstanding Shares
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Lincoln Park Capital Fund, LLC
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1,101,500
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1,100,000
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1,500
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*
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CVI Investments, Inc.
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1,100,000
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1,100,000
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0
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*
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Lind Global Macro Fund, LP
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333,333
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333,333
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0
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*
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Bigger Capital Fund, LP
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266,667
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266,667
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0
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*
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District 2 Capital Fund LP
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400,000
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400,000
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0
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*
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*
Less than 1%.
(1)
The number of shares owned includes the number of shares underlying the Warrants owned by each selling stockholder.
(2)
Assumes that each selling stockholder exercises all outstanding Warrants and sells all shares underlying the Warrants offered
hereby.
PLAN
OF DISTRIBUTION
The
selling stockholders may sell, transfer or otherwise dispose of any or all of the shares of common stock offered by this prospectus
from time to time on The NASDAQ Capital Market or any other stock exchange, market or trading facility on which the shares are
traded or in private transactions. These dispositions may be at fixed prices, at market prices prevailing at the time of sale,
at prices related to prevailing market price or at negotiated prices. The selling stockholders may use any one or more of the
following methods when selling shares:
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ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
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an
exchange distribution in accordance with the rules of the applicable exchange;
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privately
negotiated transactions;
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broker-dealers
may agree with the selling shareholder to sell a specified number of such shares at a stipulated price per share;
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a
combination of any such methods of sale;
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through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; or
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any
other method permitted pursuant to applicable law.
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Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholders or, if any broker-dealer acts as agent for the purchaser of shares, from
the purchaser in amounts to be negotiated. The selling stockholders does not expect these commissions and discounts relating to
its sales of shares to exceed what is customary in the types of transactions involved.
The
selling stockholder may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn
engage in short sales of the common stock in the course of hedging the positions they assume. The selling shareholders may also
sell shares of our common stock short and deliver these securities to close out its short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The selling shareholders may also enter into option or other transactions
with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery
to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or
other financial institution may resell pursuant to this prospectus, as supplemented or amended to reflect such transaction.
The
selling stockholders and any broker-dealers or agents that are involved in selling the shares may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each selling stockholder has informed us that it does not have any agreement or understanding, directly
or indirectly, with any person to distribute the common stock.
Because
the selling stockholders may be deemed to be an “underwriter” within the meaning of the Securities Act, it will be
subject to the prospectus delivery requirements of the Securities Act. In addition, any securities covered by this prospectus
which qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than under this prospectus.
The selling stockholders have advised us that there is no underwriter or coordinating broker acting in connection with the proposed
sale of the resale securities by the selling stockholders.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale shares may not simultaneously
engage in market making activities with respect to our common stock for the applicable restricted period, as defined in Regulation
M, prior to the commencement of the distribution. In addition, the selling stockholders will be subject to applicable provisions
of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases
and sales of shares of our common stock by the selling stockholders or any other person. All of the foregoing may affect the marketability
of the shares of common stock and the ability of any person or entity to engage in market-making activities with respect to the
shares of common stock. We will make copies of this prospectus available to the selling stockholders and have informed the selling
stockholders of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
We
have agreed to use commercially reasonable efforts to keep the registration statement continuously effective at all times until
(a) the warrant shares are sold under such registration statement or pursuant to Rule 144 under the Securities Act, (b) the warrant
shares may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 under the Securities Act, and (c) the five-year
anniversary of the date of the issuance of the warrants, whichever is the earliest to occur. The shares will be sold only through
registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states,
the shares may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from
the registration or qualification requirement is available and is complied with.
We
are required to pay certain fees and expenses in connection with the registration of the shares of common stock issuable upon
exercise of the warrant. We have agreed to indemnify the selling stockholders against certain losses, claims, damages and liabilities,
including liabilities under the Securities Act. We may also provide contribution with respect to payments that the selling stockholders
may make with respect to these liabilities.
We
will not receive any proceeds from the sale of the shares by the selling stockholders.
LEGAL
MATTERS
The
validity of the shares of our common stock being offered by this prospectus will be passed upon for us by Baker & McKenzie
LLP, New York, NY.
EXPERTS
WithumSmith+Brown,
PC (“Withum”), an independent registered public accounting firm, has audited our consolidated financial statements
included in our Annual Report on Form 10-K for the years ended December 31, 2019 as set forth in their report, which is incorporated
by reference in this prospectus. Our financial statements are incorporated herein by reference in reliance on Withum’s report,
given on their authority as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN THE PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the estimated costs and expenses payable by the registrant in connection with the offering of the securities
being registered.
SEC registration fee
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$
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515.05
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Accounting fees and expenses
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$
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5,000.00
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Legal fees and expenses
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$
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25,000.00
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Printing and miscellaneous expenses
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$
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3,000.00
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Total
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$
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33,515.05
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Item
15. Indemnification of Directors and Officers.
The
Company is incorporated under the laws of the State of Delaware. Our bylaws provide that we shall to the maximum extent and in
the manner permitted by the DGCL, indemnify each of its directors and officers against expenses (including attorneys’ fees),
judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the Company; provided, however, that the Company may modify the extent
of such indemnification by individual contracts with its directors and executive officers and, provided, further, that the Company
shall not be required to indemnify any director or officer in connection with any proceeding (or part thereof) initiated by such
person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized in advance
by our board, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in
the corporation under the DGCL or (iv) such indemnification is required to be made pursuant to an individual contract.
The
DGCL provides that a Delaware corporation has the power generally to indemnify its current and former directors, officers, employees
and other agents (each, a Corporate Agent) against expenses and liabilities, including amounts paid in settlement, in connection
with any proceeding involving such person by reason of his being a Corporate Agent, other than a proceeding by or in the right
of the corporation, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal proceeding, such person had no reasonable cause to believe his
conduct was unlawful.
In
the case of an action brought by or in the right of the corporation, indemnification of a Corporate Agent is permitted if such
person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the
corporation. However, no indemnification is permitted in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation, unless and only to the extent that the court in which such proceeding was brought
shall determine upon application that despite the adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to such indemnification.
To
the extent that a Corporate Agent has been successful on the merits or otherwise in the defense of such proceeding, whether or
not by or in the right of the corporation, or in the defense of any claim, issue or matter therein, the corporation is required
to indemnify such person for expenses in connection therewith. Under the DGCL, the corporation may advance expenses incurred by
a Corporate Agent in connection with a proceeding, provided that the Corporate Agent undertakes to repay such amount if it shall
ultimately be determined that such person is not entitled to indemnification. Our certificate of incorporation requires us to
advance expenses to any person entitled to indemnification, provided that such person undertakes to repay the advancement if it
is determined in a final judicial decision from which there is no appeal that such person is not entitled to indemnification.
The
power to indemnify and advance the expenses under the DGCL does not exclude other rights to which a Corporate Agent may be entitled
to under our certificate of incorporation, by laws, agreement, vote of stockholders or disinterested directors or otherwise.
Our
certificate of incorporation permits us to secure insurance on behalf of our directors, officers, employees and agents for any
expense, liability or loss incurred in such capacities, whether or not the Company would have the power to indemnify such person
against such liability under the provisions of the DGCL.
The
purpose of these provisions is to assist us in retaining qualified individuals to serve as our directors, officers, employees
and agents by limiting their exposure to personal liability for serving as such.
Item
16. Exhibits
EXHIBIT
NUMBER
|
|
DESCRIPTION
|
4.1
|
|
Form of Common Stock Purchase Warrant, incorporated herein by reference to Exhibit 4.1 to the Current Report on Form 8-K of the Company filed with the SEC on March 3, 2020.
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4.2
|
|
Form of Exchange Warrant, incorporated herein by reference to Exhibit 4.1 to the Current Report on Form 8-K of the Company filed with the SEC on March 13, 2020.
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5.1*
|
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Opinion of Baker & McKenzie LLP.
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10.1
|
|
Form of Securities Purchase Agreement dated as of February 27, 2020, by and among the Company and the purchasers named therein, incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K of the Company filed with the SEC on March 3, 2020.
|
|
|
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10.2
|
|
Form of Exchange Agreement dated as of March 12, 2020, incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K of the Company filed with the SEC on March 13, 2020.
|
|
|
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23.1*
|
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Consent of WithumSmith+Brown, PC.
|
|
|
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23.2*
|
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Consent of Baker & McKenzie LLP (included in Exhibit 5.1).
|
|
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24.1*
|
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Power of Attorney (included on the signature page hereto).
|
*
Filed herewith.
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table
in the effective registration statement; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration statement;
provided,
however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 and Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
If
the registrant is relying on Rule 430B:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in the registration statement to which that prospectus relates,
and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective date.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each
filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of the securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised
that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Lawrenceville, State of New Jersey, on July 31, 2020.
|
CELSION
CORPORATION
|
|
|
|
|
By:
|
/s/
Michael H. Tardugno
|
|
|
Michael
H. Tardugno
|
|
|
Chairman
of the Board, President and
Chief
Executive Officer
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that the undersigned officers and directors of Celsion Corporation, a Delaware corporation, do
hereby constitute and appoint Michael H. Tardugno and Jeffrey W. Church, and each of them individually, as the lawful attorneys-in-fact
and agents, each with full power of substitution or re-substitution, with full power and authority to do any and all acts and
things in our name and on our behalf in our capacities as officers and directors and to execute any and all instruments for us
and in our names in the capacities indicated below which said attorneys-in-fact and agents, or either one of them, determine may
be necessary or advisable or required to enable said corporation to comply with the Securities Act, and any rules or regulation
or requirements of the SEC in connection with this registration statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors
in the capacities indicated below to this registration statement, to any and all amendments, both pre-effective and post-effective,
and supplements to this registration statement and to any and all instruments or documents filed as part of or in conjunction
with this registration statement or amendments or supplements thereto, and each of the undersigned hereby ratifies and confirms
all that said attorneys-in-fact and agents, or either one of them, shall do or cause to be done by virtue hereof. This power of
attorney may be signed in several counterparts.
IN
WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. Pursuant to the requirements
of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates
indicated.
Signature
|
|
Title
|
|
Date
|
/s/
Michael H. Tardugno
|
|
Chairman,
President and Chief Executive Officer and Director
|
|
|
Michael
H. Tardugno
|
|
(Principal
Executive Officer)
|
|
July
31, 2020
|
|
|
|
|
|
/s/
Jeffrey W. Church
|
|
Executive
Vice President and Chief Financial Officer
|
|
|
Jeffrey
W. Church
|
|
(Principal
Financial Officer)
|
|
July
31, 2020
|
|
|
|
|
|
/s/
Timothy J. Tumminello
|
|
Controller
and Chief Accounting Officer
|
|
|
Timothy
J. Tumminello
|
|
(Principal
Accounting Officer)
|
|
July
31, 2020
|
|
|
|
|
|
/s/
Robert W. Hooper
|
|
Director
|
|
|
Robert
W. Hooper
|
|
|
|
July
31, 2020
|
|
|
|
|
|
/s/
Alberto R. Martinez, M.D.
|
|
Director
|
|
|
Alberto
R. Martinez, M.D.
|
|
|
|
July
31, 2020
|
|
|
|
|
|
/s/
Augustine Chow, Ph.D.
|
|
Director
|
|
|
Augustine
Chow, Ph.D.
|
|
|
|
July
31, 2020
|
|
|
|
|
|
/s/
Frederick J. Fritz
|
|
|
|
|
Frederick
J. Fritz
|
|
Director
|
|
July
31, 2020
|
|
|
|
|
|
/s/
Donald P. Braun, Ph.D.
|
|
|
|
|
Donald
P. Braun, Ph.D.
|
|
Director
|
|
July
31, 2020
|
|
|
|
|
|
/s/
Andreas Voss, M.D.
|
|
|
|
|
Andreas
Voss, M.D.
|
|
Director
|
|
July
31, 2020
|
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