As
filed with the Securities and Exchange Commission on May 12, 2023
Registration
No. 333-259408
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 3
TO
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CINGULATE
INC.
(Exact
name of registrant as specified in its charter)
Delaware |
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2834 |
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86-3825535 |
(State
or other jurisdiction of
incorporation
or organization) |
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(Primary
Standard Industrial
Classification
Code Number) |
|
(I.R.S.
Employer
Identification
Number) |
1901
W. 47th Place
Kansas
City, KS 66205
(913)
942-2300
(Address,
including zip code, and telephone number, including
area
code, of registrant’s principal executive offices)
Shane
J. Schaffer
Chief
Executive Officer
Cingulate
Inc.
1901
W. 47th Place
Kansas
City, KS 66205
(913)
942-2300
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Michael
J. Lerner, Esq.
Steven
M. Skolnick, Esq.
Lowenstein
Sandler LLP
1251
Avenue of the Americas
New
York, New York 10020
(212)
262-6700
Approximate
date of commencement of proposed sale to public:
As
soon as practicable after this Registration Statement is declared effective.
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, 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 post-effective amendment filed pursuant to Rule 462(d) 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. ☐
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 ☒ |
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|
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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 to Section 7(a)(2)(B) of the 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
This
Post-Effective Amendment No. 3 (this “Amendment”) to the Registration Statement on Form S-1, as amended (Commission File
No. 333-259408) (the “Original Registration Statement”), of Cingulate Inc. (the “Company”) is being filed pursuant
to the undertakings in the Original Registration Statement to update and supplement the information contained in the Original Registration
Statement, which was originally declared effective by the Securities and Exchange Commission (the “SEC”) on December 7, 2021.
The
Original Registration Statement, as amended by this Amendment, pertains solely to the registration of 4,791,665 shares of common stock,
par value $0.0001 per share, underlying warrants previously issued by the Company to investors in its initial public offering. The shares
of common stock issuable upon exercise of the Warrants were initially registered on the Original Registration Statement.
This
Amendment is being filed to update the financial and other information contained in the Original Registration Statement and the prospectus
contained therein. No additional securities are being registered under this Amendment.
All
applicable registration fees were paid at the time of the original filing of the Original Registration Statement.
The
information contained in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS |
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SUBJECT
TO COMPLETION |
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DATED
MAY 12, 2023 |
4,791,665
Shares of Common Stock Issuable Upon Exercise of Previously Issued Warrants
Cingulate
Inc.
This
prospectus relates to the offer and sale by Cingulate, Inc., a Delaware corporation, of up to 4,791,665 shares of common stock underlying
warrants (the “Warrants”) previously issued by us in our initial public offering (the “IPO”) that are issuable
at a price of $6.00 per share from time to time upon exercise of the Warrants, the issuance of which were previously registered on a
Registration Statement on Form S-1 (File No. 333-259408).
We
are not selling any shares of our common stock in this offering and, as a result, we will not receive any proceeds from the sale of the
common stock covered by this prospectus. All of the net proceeds from the sale of our common stock will go to the holders of the Warrants.
Upon exercise of the Warrants, however, we will receive proceeds from the exercise of such Warrants if exercised for cash and not on
a cashless basis. Any proceeds received from the exercise of the Warrants will be used for general working capital and other corporate
purposes.
Our
common stock and warrants are listed on the Nasdaq Capital Market under the symbols “CING” and “CINGW,” respectively.
The last reported sale price of our common stock on the Nasdaq Capital Market on May 11, 2023 was $ 1.04 per share. The
last reported sale price of our warrants on the Nasdaq Capital Market on May 11, 2023 was $ 0.0723 per warrant.
We
are an “emerging growth company” under applicable Securities and Exchange Commission rules and will be subject to reduced
public company reporting requirements.
Investing
in our securities is highly speculative and involves a high degree of risk. See “Risk Factors” beginning on page 1 of this
prospectus and in the documents incorporated by reference into this prospectus for a discussion of information that should be considered
in connection with an investment in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2023.
TABLE
OF CONTENTS
PROSPECTUS
SUMMARY
This
summary highlights information contained elsewhere in this prospectus and does not contain all of the information that you should consider
before making your investment decision. Before investing in our securities, you should carefully read this entire prospectus and the
documents incorporated by reference herein, including the “Risk Factors” section in this prospectus and under similar captions
in the documents incorporated by reference into this prospectus. If any of the risks materialize, our business, financial condition,
operating results, and prospects could be materially and adversely affected. In that event, the price of our securities could decline,
and you could lose part or all of your investment. Unless we state otherwise or the context otherwise requires, the terms “we,”
“us,” “our,” “our business,” “the Company” and “Cingulate” refer to and similar
references refer: (1) on or following the consummation of the Reorganization Merger (as defined below), including our initial public
offering, to Cingulate Inc. and its consolidated subsidiaries, including Cingulate Therapeutics LLC, or CTx, and (2) prior to the consummation
of the Reorganization Merger, including our initial public offering, to CTx and its consolidated subsidiaries.
Overview
We
are a biopharmaceutical company using our proprietary Precision Timed ReleaseTM (PTRTM) drug delivery platform
technology to build and advance a pipeline of next-generation pharmaceutical products designed to improve the lives of patients suffering
from frequently diagnosed conditions characterized by burdensome daily dosing regimens and suboptimal treatment outcomes. With an initial
focus on the treatment of Attention Deficit/Hyperactivity Disorder (ADHD), we are identifying and evaluating additional therapeutic areas
where our PTR technology may be employed to develop future product candidates, such as anxiety disorders. Our PTR platform incorporates
a proprietary Erosion Barrier Layer (EBL) designed to allow for the release of drug substance at specific, pre-defined time intervals,
unlocking the potential for once-daily, multi-dose tablets.
We
are targeting the ADHD stimulant-based treatment market, with an estimated US market size of $18 billion as of the September 2022. Stimulants
are the most commonly prescribed class of medications for ADHD and account for more than 90% of all ADHD medication prescriptions in
the United States, where approximately 80 million stimulant prescriptions were written during the 12-months ended September 2022. By
contrast, non-stimulant medications are typically employed only in the second-line or adjunctive therapy setting and account for 10%
of all ADHD medication prescriptions. Extended-release, or long-acting, dosage forms of stimulant medications are most frequently deployed
as the first-line treatment for ADHD and constitute approximately 59% of ADHD stimulant prescriptions by volume and nearly 83% of the
dollars. Most of these extended-release dosage forms are approved for once-daily dosing in the morning and were designed to eliminate
the need for re-dosing during the day. However, with the current ‘once-daily’ extended-release dosage forms, most patients
still receive a second or “booster” dose for administration later in the day (typically in the early afternoon) to achieve
entire active-day coverage and suffer from a multitude of unwanted side effects as a result. We believe there is a significant, unmet
need within the current treatment paradigm for true once-daily ADHD stimulant medications with lasting duration and superior side effect
profiles to better serve the needs of patients throughout their entire active-day.
Our
two proprietary, first-line stimulant medications: CTx-1301 (dexmethylphenidate) and CTx-1302 (dextroamphetamine), are being developed
for the treatment of ADHD in the three main patient segments: children (ages 6 -12), adolescents (ages 13-17), and adults (ages18+).
Both CTx-1301 and CTx-1302 are designed to address the key shortcomings of currently approved stimulant therapies by: providing an immediate
onset of action (within 30 minutes); offering ‘entire active-day’ duration; eliminating the need for a ‘booster/recovery’
dose of short-acting stimulant medications; minimizing or eliminating the rebound/crash symptoms associated with early medication ‘wear-off;’
and providing favorable tolerability with a controlled descent of drug blood levels. Furthermore, by eliminating the ‘booster’
dose used by up to 60% of ADHD patients in conjunction with their primary medication, we believe our product candidates will provide
important societal and economic benefits: reducing the abuse and diversion associated with short-acting stimulant medications; allowing
physicians to prescribe one medication versus two; allowing patients to pay for one medication versus two; and allowing payers to reimburse
one medication versus two.
Our
Organizational Structure
Cingulate
Inc. is a Delaware corporation that was formed to serve as a holding company. In connection with our initial public offering, we effected
certain organizational transactions. On September 29, 2021, Cingulate acquired Cingulate Therapeutics LLC, or CTx, through the merger
of a wholly-owned acquisition subsidiary of Cingulate with and into CTx (the “Reorganization Merger”). As a result of the
Reorganization Merger, CTx became a wholly-owned subsidiary of Cingulate. Unless otherwise stated or the context otherwise requires,
all information in this prospectus reflects the consummation of the Reorganization Merger.
Corporate
Information
Our
primary executive offices are located at 1901 West 47th Place, Kansas City, Kansas 66205 and our telephone number is (913)
942-2300. Our website address is www.cingulate.com. The information contained on, or that can be accessed through, our website
is not part of this prospectus and should not be considered as part of this prospectus or in deciding whether to purchase our securities.
Cingulate,
PTR, Cingulate Therapeutics, Enfoqis, Enfoqus, Trodesca, Ivoqus, Taylerza, Tymprezi, Accomplish, Mastery and our logo are some of our
trademarks used in this prospectus. This prospectus also includes trademarks, tradenames and service marks that are the property of other
organizations. Solely for convenience, our trademarks and tradenames referred to in this prospectus may appear without the ® and
™ symbols, but those references are not intended to indicate, in any way, that we will not assert, to the fullest extent under
applicable law, our rights or the right of the applicable licensor to these trademarks and tradenames.
Implications
of Being an Emerging Growth Company
As
a company with less than $1.235 billion in revenue during our most recently completed fiscal year, we qualify as an “emerging growth
company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. An emerging growth company may take advantage
of relief from certain reporting requirements and other burdens that are otherwise applicable generally to public companies. These provisions
include:
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reduced obligations with
respect to financial data, including presenting only two years of audited financial statements and only two years of selected financial
data in this prospectus; |
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an exception from compliance
with the auditor attestation requirement of Section 404 of the Sarbanes-Oxley Act of 2002, as amended, or the Sarbanes-Oxley Act; |
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reduced disclosure about
our executive compensation arrangements in our periodic reports, proxy statements and registration statements; and |
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exemptions from the requirements
of holding non-binding advisory votes on executive compensation or golden parachute arrangements. |
We
may take advantage of exemptions for up to five years or such earlier time that we are no longer an emerging growth company. Accordingly,
the information contained herein may be different than the information you receive from other public companies in which you hold stock.
We would cease to be an emerging growth company upon the earliest to occur of: (1) the last day of the fiscal year in which we have more
than $1.235 billion in annual gross revenue, (2) December 31, 2026, (3) the date we are deemed to be a “large accelerated filer”
as defined in the Securities Exchange Act of 1934, as amended, or the Exchange Act, and (4) the date on which we have during the previous
three-year period issued more than $1.0 billion in non-convertible debt securities.
The
JOBS Act also permits us, as an emerging growth company, to take advantage of an extended transition period to comply with the new or
revised accounting standards applicable to public companies and thereby allow us to delay the adoption of those standards until those
standards would apply to private companies. We have irrevocably elected to avail ourselves of this exemption and therefore, we will not
be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies.
THE
OFFERING
The
following summary of the offering contains basic information about the offering and our securities and is not intended to be complete.
It does not contain all the information that may be important to you. For a more complete understanding of our securities, please refer
to the section titled “Description of Securities.”
We
are registering the issuance by us of 4,791,665 shares of our common stock that may be issued from time to time upon the exercise of
the Warrants.
Issuance of Common Stock Underlying
the Warrants |
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Up to 4,791,665
shares of common stock issuable upon exercise of the outstanding Warrants issued in our initial public offering. Each warrant is
exercisable at any time for the purchase of one share of our common stock at an exercise price of $6.00 per share. The Warrants expire
on December 10, 2026. |
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Common Stock Outstanding
prior to this offering |
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11,677,435 shares. |
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Common Stock Outstanding
after this offering |
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16,469,100 shares (assuming
full exercise of the Warrants issued in our IPO). |
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Use of Proceeds |
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We will not receive any
net proceeds from the sale of our common stock by the holders of the Warrants. However, we will receive the exercise price per share
for each Warrant exercised for cash; however, we are unable to predict the timing or amount of potential Warrant exercises. As such,
we have not allocated any proceeds of such exercises to any particular purpose. Accordingly, all such proceeds will be used for working
capital and other general corporate purposes. |
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Nasdaq Capital Markets Symbols |
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Our common stock and warrants
are listed on the Nasdaq Capital Market under the symbols “CING” and “CINGW,” respectively. |
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Risk Factors |
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Investment in our securities
involves a high degree of risk and could result in a loss of your entire investment. See “Risk Factors” beginning on
page 1, and the other information included and incorporated by reference in this prospectus for a discussion of the factors you should
consider carefully before deciding to invest in our securities. |
The
number of shares of our common stock to be outstanding immediately after this offering is based on 11,677,435 shares of our common stock
outstanding as of April 25, 2023 and excludes, as of such date, the following:
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1,239,904
shares of our common stock issuable upon exercise of outstanding stock options issued under our 2021 Equity Incentive Plan (the “2021
Plan”), with a weighted average exercise price of $3.40 per share; |
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1,546,406
shares of our common stock that are available for future issuance under the 2021 Plan; and |
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208,333
shares of common stock issuable upon the exercise of the warrants issued to the underwriters in our IPO, with a weighted average
exercise price of $7.50 per share. |
RISK
FACTORS
An
investment in our securities involves a high degree of risk. Before deciding whether to purchase our securities, including the shares
of common stock offered by this prospectus, you should carefully consider the risks and uncertainties described under “Risk Factors”
in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, any subsequent Quarterly Report on Form 10-Q and our other
filings with the SEC, all of which are incorporated by reference herein. If any of these risks actually occur, our business, financial
condition and results of operations could be materially and adversely affected and we may not be able to achieve our goals, the value
of our securities could decline and you could lose some or all of your investment. Additional risks not presently known to us or that
we currently believe are immaterial may also significantly impair our business operations. If any of these risks occur, our business,
results of operations or financial condition and prospects could be harmed. In that event, the market price of our common stock and the
value of the warrants could decline, and you could lose all or part of your investment.
Risks
Related to the Securities Markets and Ownership of Our Securities
The
prices of our securities may be volatile, which could subject us to securities class action litigation and our stockholders could incur
substantial losses.
The
market price for our common stock and warrants may be volatile and subject to wide fluctuations in response to factors including the
following:
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actual or anticipated fluctuations in our quarterly
or annual operating results; |
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actual or anticipated changes
in the pace of our corporate achievements or our growth rate relative to our competitors; |
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failure to meet or exceed financial estimates and projections
of the investment community or that we provide to the public; |
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issuance of new or updated research or reports by securities
analysts; |
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share price and volume fluctuations attributable to
inconsistent trading volume levels of our common stock or warrants; |
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additions or departures of key management or other
personnel; |
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disputes or other developments related to proprietary
rights, including patents, litigation matters, and our ability to obtain patent protection for our technologies; |
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announcement or expectation of additional debt or equity
financing efforts; |
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sales of our common stock or warrants by us, our insiders
or our other stockholders; and |
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general economic, market or political conditions in
the United States or elsewhere (including, without limitation, conditions arising out the COVID-19 pandemic). |
In
particular, the market prices of clinical-stage companies like ours have been highly volatile due to factors, including, but not limited
to:
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any delay or failure in a clinical
trial for our product candidates or receive approval from the FDA and other regulatory agents; |
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developments or disputes concerning our product’s
intellectual property rights; |
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our or our competitors’ technological innovations; |
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fluctuations in the valuation of
companies perceived by investors to be comparable to us; |
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announcements by us or our competitors of significant
contracts, acquisitions, strategic partnerships, joint ventures, capital commitments, new technologies or patents; |
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failure to complete significant transactions or collaborate
with vendors in manufacturing our product; and |
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proposals for legislation that would place restrictions
on the price of medical therapies. |
These
and other market and industry factors may cause the market price and demand for our common stock and warrants to fluctuate substantially,
regardless of our actual operating performance, which may limit or prevent investors from readily selling their shares of common stock
or warrants and may otherwise negatively affect the liquidity of our common stock and warrants. In addition, the stock market in general,
and Nasdaq Capital Market and emerging growth companies in particular, have experienced extreme price and volume fluctuations that have
often been unrelated or disproportionate to the operating performance of these companies. In the past, when the market price of a security
has been volatile, holders of that security have instituted securities class action litigation against the company that issued the security.
If any of our stockholders brought a lawsuit against us, we could incur substantial costs defending the lawsuit. Such a lawsuit could
also divert the time and attention of our management.
If
securities or industry analysts do not publish research or publish inaccurate or unfavorable research about our business, our stock price
and trading volume could decline.
The
trading market for our common stock and warrants will depend in part on the research and reports that securities or industry analysts
publish about us or our business. We currently have limited research coverage by securities and industry analysts. If we fail to maintain
adequate coverage by securities or industry analysts, the trading price for our stock would be negatively impacted. If one or more of
the analysts who covers us downgrades our stock or publishes inaccurate or unfavorable research about our business, our stock price would
likely decline. If one or more of these analysts ceases coverage of us or fails to publish reports on us regularly, demand for our stock
could decrease, which could cause our stock price and trading volume to decline.
Future
sales of our common stock, warrants, or securities convertible into our common stock may depress our stock price.
The
price of our common stock or warrants could decline as a result of sales of a large number of shares of our common stock or warrants
or the perception that these sales could occur. These sales, or the possibility that these sales may occur, also might make it more difficult
for us to sell equity securities in the future at a time and at a price that we deem appropriate.
In
addition, in the future, we may issue additional shares of common stock, warrants or other equity or debt securities convertible into
common stock in connection with a financing, acquisition, litigation settlement, employee arrangements or otherwise. Any such issuance
could result in substantial dilution to our existing stockholders and could cause the price of our common stock or warrants to decline.
We
do not anticipate paying any cash dividends on our common stock in the foreseeable future.
We
do not anticipate paying any cash dividends on our common stock in the foreseeable future. We currently intend to retain any future earnings
to finance the operation and expansion of our business, and we do not expect to declare or pay any dividends in the foreseeable future.
Consequently, stockholders must rely on sales of their common stock and warrants after price appreciation, which may never occur, as
the only way to realize any future gains on their investment. There is no guarantee that shares of our common stock or warrants will
appreciate in value or even maintain the price at which stockholders have purchased their shares or warrants.
CAUTIONARY
NOTE REGARDING FORWARD LOOKING STATEMENTS
This
prospectus and any documents we incorporate by reference contain forward-looking statements that involve substantial risks and uncertainties.
In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,”
“expect,” “plan,” “anticipate,” “could,” “intend,” “target,”
“project,” “estimate,” “believe,” “estimate,” “predict,” “potential”
or “continue” or the negative of these terms or other similar expressions intended to identify statements about the future.
These statements speak only as of the date of this prospectus and involve known and unknown risks, uncertainties and other important
factors that may cause our actual results, performance or achievements to be materially different from any future results, performance
or achievements expressed or implied by the forward-looking statements. We have based these forward-looking statements largely on our
current expectations and projections about future events and financial trends that we believe may affect our business, financial condition
and results of operations. These forward-looking statements include, without limitation, statements about the following:
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our lack of operating history
and need for additional capital; |
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our plans to develop and
commercialize our product candidates; |
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the timing of our planned
clinical trials for CTx-1301, CTx-1302, and CTx-2103; |
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the timing of our New Drug
Application (NDA) submissions for CTx-1301, CTx-1302, and CTx-2103; |
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the timing of and our ability
to obtain and maintain regulatory approvals for CTx-1301, CTx-1302, CTx-2103, or any other future product candidate; |
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the clinical utility of
our product candidates; |
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our commercialization,
marketing and manufacturing capabilities and strategy; |
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our
expected use of cash;
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our competitive position
and projections relating to our competitors or our industry; |
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our
ability to identify, recruit, and retain key personnel; |
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the impact of laws and
regulations; |
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our expectations regarding
the time during which we will be an emerging growth company under the Jumpstart Our Business Startups Act of 2012 (the “JOBS
Act”); |
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our plans to identify additional
product candidates with significant commercial potential that are consistent with our commercial objectives; and |
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our estimates regarding
future revenue and expenses. |
Because
forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified and some
of which are beyond our control, you should not rely on these forward-looking statements as predictions of future events. The events
and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ materially
from those projected in the forward-looking statements. You should refer to the “Risk Factors” section of this prospectus
and the documents we incorporate by reference for a discussion of important factors that may cause our actual results to differ materially
from those expressed or implied by our forward-looking statements. Moreover, we operate in an evolving environment. New risk factors
and uncertainties may emerge from time to time, and it is not possible for management to predict all risk factors and uncertainties.
As a result of these factors, we cannot assure you that the forward-looking statements in this prospectus and the documents we incorporate
by reference will prove to be accurate. Except as required by applicable law, we do not plan to publicly update or revise any forward-looking
statements contained herein, whether as a result of any new information, future events, changed circumstances or otherwise. You should,
however, review the factors and risks and other information we describe in the reports we will file from time to time with the SEC after
the date of this prospectus.
You
should read this prospectus and the documents that we incorporate by reference in this prospectus and have filed as exhibits to the registration
statement of which this prospectus is a part completely and with the understanding that our actual future results may be materially different
from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
USE
OF PROCEEDS
We
will not receive any net proceeds from the sale of our common stock by the holders of the Warrants. However, we will receive the exercise
price per share for each Warrant exercised for cash; however, we are unable to predict the timing or amount of potential Warrant exercises.
As such, we have not allocated any proceeds of such exercises to any particular purpose. Accordingly, all such proceeds will be used
for working capital and other general corporate purposes.
DESCRIPTION
OF SECURITIES
The
following description summarizes the most important terms of our securities. Because it is only a summary, it does not contain all the
information that may be important to you. For a complete description, you should refer to our amended and restated certificate of incorporation
and restated bylaws, copies of which are filed as exhibits to the registration statement of which this prospectus forms a part, which
are incorporated by reference herein.
Authorized
Capitalization
We
have 250,000,000 shares of capital stock authorized under our amended and restated certificate of incorporation, consisting of 240,000,000
shares of common stock with a par value of $0.0001 per share and 10,000,000 shares of preferred stock with a par value of $0.0001 per
share.
As
of April 25, 2023, there were 11,677,435 shares of common stock outstanding, and no shares of preferred stock outstanding.
Common
Stock
Holders
of our common stock are entitled to such dividends as may be declared by our board of directors out of funds legally available for such
purpose. The shares of common stock are neither redeemable nor convertible. Holders of common stock have no preemptive or subscription
rights to purchase any of our securities.
Each
holder of our common stock is entitled to one vote for each such share outstanding in the holder’s name. No holder of common stock
is entitled to cumulate votes in voting for directors.
In
the event of our liquidation, dissolution or winding up, the holders of our common stock are entitled to receive a pro rata share of
our assets, which are legally available for distribution, after payments of all debts and other liabilities. All of the outstanding shares
of our common stock are fully paid and non-assessable.
Preferred
Stock
Our
board of directors has the authority, without further action by our stockholders, to issue up to 10,000,000 shares of preferred stock
in one or more classes or series and to fix the designations, rights, preferences, privileges and restrictions thereof, without further
vote or action by the stockholders. These rights, preferences and privileges could include dividend rights, conversion rights, voting
rights, terms of redemption, liquidation preferences, sinking fund terms and the number of shares constituting, or the designation of,
such class or series, any or all of which may be greater than the rights of common stock. The issuance of our preferred stock could adversely
affect the voting power of holders of common stock and the likelihood that such holders will receive dividend payments and payments upon
our liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deferring or preventing a change in
control of our company or other corporate action. No shares of preferred stock are outstanding, and we have no present plan to issue
any shares of preferred stock.
Warrants
Exercisability
The
Warrants were exercisable immediately upon issuance and expire December 10, 2026. The Warrants are exercisable, at the option of each
holder, in whole or in part by delivering to us and the warrant agent a duly executed exercise notice accompanied by payment in full
for the number of common stock purchased upon such exercise. If a registration statement registering under the Securities Act of 1933,
as amended (the “Securities Act”) the issuance of the shares of common stock underlying the Warrants is not effective or
available, the holder may, in its sole discretion, elect to exercise the Warrant through a cashless exercise, in which case the holder
would receive upon such exercise the net number of shares of common stock determined according to the formula set forth in the Warrant.
Unless otherwise specified in the Warrant, the holder will not have the right to exercise the Warrants, in whole or in part, if the holder
(together with its affiliates and any persons acting as a group together with the holder or any of the holder’s affiliates) would
beneficially own in excess of 4.99% of the number of our ordinary shares outstanding immediately after giving effect to the exercise,
as such percentage is determined in accordance with the terms of the Warrant. However, any holder may increase or decrease such percentage
to any other percentage not in excess of 9.99% upon at least 61 days’ prior notice from the holder to us.
Exercise
Price
The
initial exercise price per share of common stock purchasable upon exercise of the Warrants is equal to $6.00 and is subject to adjustments
for stock splits or combinations, stock dividends and distributions, reclassifications, subdivisions, and other similar transactions.
No fractional shares will be issued in connection with the exercise of a Warrant. In lieu of fractional shares, we will pay the holder
an amount in cash equal to the fractional amount multiplied by the exercise price.
Fundamental
Transaction
If,
at any time while the Warrants are outstanding, (1) we consolidate or merge with or into another corporation whether or not the Company
is the surviving corporation, (2) we sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all
of our assets, or any of its significant subsidiaries (as defined in Rule 1-02 of Regulation S-X), (3) any purchase offer, tender offer
or exchange offer (whether by us or another individual or entity) is completed pursuant to which holders of the ordinary shares are permitted
to sell, tender or exchange their ordinary shares for other securities, cash or property and has been accepted by the holders of 50%
or more of the ordinary shares, (4) we consummate a securities purchase agreement or other business combination with another person or
entity whereby such other person or entity acquires at least 50% of the outstanding ordinary shares, or (5) we effect any reclassification
or recapitalization of the ordinary shares or any compulsory exchange pursuant to which the ordinary shares are converted into or exchanged
for other securities, cash or property, or each, a “Fundamental Transaction,” then upon any subsequent exercise of the Warrants,
the holders thereof will have the right to receive the same amount and kind of securities, cash or property as it would have been entitled
to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the
holder of the number of ordinary shares then issuable upon exercise of those Warrants, and any additional consideration payable as part
of the Fundamental Transaction.
Transferability
Subject
to applicable laws, the Warrants may be transferred at the option of the holders upon surrender of the to the warrant agent, together
with the appropriate instruments of transfer.
Warrant
Agent and Listing
The
Warrants were issued in registered form under the Warrant Agent Agreement between us and the warrant agent. The Warrants are listed on
Nasdaq under the symbol “CINGW.” The Warrants are represented only by one or more global warrants deposited with the warrant
agent, as custodian on behalf of The Depository Trust Company, or DTC, and registered in the name of Cede & Co., a nominee of DTC,
or as otherwise directed by DTC.
Rights
as a Stockholder
Except
as otherwise provided in the Warrant Agent Agreement or by virtue of such holder’s ownership of common stock, holders of the Warrants
do not have rights or privileges of holders of common stock, including any voting rights, until a holder exercises a Warrant.
Governing
Law
The
Warrants and the Warrant Agent Agreement are governed by New York law.
Anti-Takeover
Effects of Delaware law and Our Certificate of Incorporation and Bylaws
The
provisions of Delaware law, our amended and restated certificate of incorporation and our amended and restated bylaws described below
may have the effect of delaying, deferring or discouraging another party from acquiring control of us.
Section
203 of the Delaware General Corporation Law
We
are subject to Section 203 of the Delaware General Corporation Law, 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% 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) 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; or |
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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% of the outstanding voting stock that is not owned by the
interested stockholder. |
In
general, Section 203 defines business combination to include the following:
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any merger or consolidation
involving the corporation and the interested stockholder; |
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any sale, transfer, pledge
or other disposition of 10% or more of the assets of the corporation involving the interested stockholder; |
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subject to certain exceptions,
any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder; |
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any transaction involving
the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation
beneficially owned by the interested stockholder; or |
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the receipt by the interested
stockholder of the benefit of any loss, advances, guarantees, pledges or other financial benefits by or through the corporation. |
In
general, Section 203 defines an “interested stockholder” as an entity or person who, together with the person’s affiliates
and associates, beneficially owns, or within three years prior to the time of determination of interested stockholder status did own,
15% or more of the outstanding voting stock of the corporation.
Certificate
of Incorporation and Bylaws
Our
amended and restated certificate of incorporation and amended and restated bylaws provide for:
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classifying
our board of directors into three classes; |
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authorizing the issuance
of “blank check” preferred stock, the terms of which may be established and shares of which may be issued without stockholder
approval; |
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limiting the removal of
directors by the stockholders; |
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requiring a
supermajority vote of stockholders to amend our bylaws or certain provisions our certificate of incorporation; |
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prohibiting stockholder
action by written consent, thereby requiring all stockholder actions to be taken at a meeting of our stockholders; |
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eliminating the ability
of stockholders to call a special meeting of stockholders; |
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establishing advance notice
requirements for nominations for election to the board of directors or for proposing matters that can be acted upon at stockholder
meetings; and |
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establishing Delaware as
the exclusive jurisdiction for certain stockholder litigation against us. |
Potential
Effects of Authorized but Unissued Stock
Pursuant
to our amended and restated certificate of incorporation, we have shares of common stock and preferred stock available for future issuance
without stockholder approval. We may utilize these additional shares for a variety of corporate purposes, including future public offerings
to raise additional capital, to facilitate corporate acquisitions or payment as a dividend on the capital stock.
The
existence of unissued and unreserved common stock and preferred stock may enable our board of directors to issue shares to persons friendly
to current management or to issue preferred stock with terms that could render more difficult or discourage a third-party attempt to
obtain control of us by means of a merger, tender offer, proxy contest or otherwise, thereby protecting the continuity of our management.
In addition, the board of directors has the discretion to determine designations, rights, preferences, privileges and restrictions, including
voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences of each series of preferred stock,
all to the fullest extent permissible under the Delaware General Corporation Law and subject to any limitations set forth in our certificate
of incorporation. The purpose of authorizing the board of directors to issue preferred stock and to determine the rights and preferences
applicable to such preferred stock is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred
stock, while providing desirable flexibility in connection with possible financings, acquisitions and other corporate purposes, could
have the effect of making it more difficult for a third-party to acquire, or could discourage a third-party from acquiring, a majority
of our outstanding voting stock.
Choice
of Forum
Unless
we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and
exclusive forum for any stockholder to bring (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action
asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Company or the Company’s stockholders,
(iii) any action asserting a claim against the Company or any director or officer of the Company arising pursuant to, or a claim against
the Company or any director or officer of the Company, with respect to the interpretation or application of any provision of the DGCL,
our certificate of incorporation or bylaws, or (iv) any action asserting a claim governed by the internal affairs doctrine, except for,
in each of the aforementioned actions, any claims to which the Court of Chancery of the State of Delaware determines it lacks jurisdiction.
This provision will not apply to claims arising under the Exchange Act, or for any other federal securities laws which provide for exclusive
federal jurisdiction. However, the exclusive forum provision provides that unless we consent in writing to the selection of an alternative
forum, the federal district courts of the United States of America will be the exclusive forum for the resolution of any complaint asserting
a cause of action arising under the Securities Act. Therefore, this provision could apply to a suit that falls within one or more of
the categories enumerated in the exclusive forum provision and that asserts claims under the Securities Act, inasmuch as Section 22 of
the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability
created by the Securities Act or the rules and regulations thereunder. There is uncertainty as to whether a court would enforce such
an exclusive forum provision with respect to claims under the Securities Act.
We
note that there is uncertainty as to whether a court would enforce the provision and that investors cannot waive compliance with the
federal securities laws and the rules and regulations thereunder. Although we believe this provision benefits us by providing increased
consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging
lawsuits against our directors and officers.
Transfer
Agent
The
transfer agent of our common stock is Computershare Trust Company, N.A.
PLAN
OF DISTRIBUTION AND DETERMINATION OF OFFERING PRICE
We
will deliver shares of our common stock offered hereby upon exercise of the Warrants we issued in connection with our IPO. The form of
Warrant contains instructions for exercise. In order to exercise any of the Warrants, the holder must deliver to us or our Warrant Agent
the information required in the applicable form of Warrant and the Warrant Agency Agreement, along with payment for the exercise price
of the shares to be purchased. We will then deliver shares of our Common Stock in the manner described in the applicable form of Warrant
and the corresponding Warrant Agency Agreement, copies of which are filed as exhibits to the registration statement of which this prospectus
is a part.
Each
Warrant is exercisable for one share of our common stock, with an exercise price of $6.00 per share.
Upon
compliance by any holder with the instructions for exercise contained in the applicable form of Warrant and the Warrant Agency Agreement,
we will, within the time allotted by the applicable form of Warrant and Warrant Agency Agreement, issue to the holder shares of common
stock, free of a restrictive legend. Shares of common stock that are held by affiliates will be issued free of legend but will be deemed
control securities.
LEGAL
MATTERS
The
validity of the shares of common stock offered by this prospectus will be passed upon for us by Lowenstein Sandler LLP, New York, New
York.
EXPERTS
Our
consolidated financial statements as of December 31, 2022 and 2021, and for each of the years in the two-year period ended December 31,
2022, have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The audit report covering
the December 31, 2022 and 2021 consolidated financial statements contains an explanatory paragraph that states that our recurring losses
from operations and net capital deficiency raise substantial doubt about the entity’s ability to continue as a going concern. The
consolidated financial statements do not include any adjustments that might result from the outcome of that uncertainty.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
following documents filed with the SEC are incorporated by reference into this prospectus:
● |
our
Annual Report on Form 10-K for the year ended December 31, 2022, filed on March 10, 2023; |
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our Quarterly
Report on Form 10-Q for the quarter ended March 31, 2023, filed on May 10, 2023; |
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our
Current Reports on Form 8-K, filed on January
3, 2023, January
9, 2023 , March
13, 2023, April
25, 2023, May
3, 2023 and May
10, 2023 (other than any portions thereof deemed furnished and not filed); |
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our Definitive Proxy Statement on Schedule 14A,
filed on May 5, 2023 (other than any portions thereof deemed furnished and not filed); 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 December 3, 2021, including any amendments thereto or reports filed for
the purposes of updating this description, including Exhibit 4.5 to our Annual Report on Form 10-K for the year ended December 31,
2021, filed with the SEC on March 28, 2022. |
We
also incorporate by reference all documents we file pursuant to Section 13(a), 13(c), 14 or 15 of the Exchange Act (other than any portions
of filings that are furnished rather than filed pursuant to Items 2.02 and 7.01 of a Current Report on Form 8-K) after the date of the
initial registration statement of which this prospectus is a part and prior to effectiveness of such registration statement. All documents
we file in the future pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to
the termination of the offering are also incorporated by reference and are an important part of this prospectus.
Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded
for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document
which also is or deemed to be incorporated by reference herein 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 registration statement.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement we filed with the SEC. This prospectus does not contain all of the information set forth
in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities
we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the
registration statement. You should rely only on the information contained in this prospectus or incorporated by reference into this prospectus.
We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any jurisdiction
where the offer is not permitted. You should assume that the information contained in this prospectus, or any document incorporated by
reference in this prospectus, is accurate only as of the date of those respective documents, regardless of the time of delivery of this
prospectus or any sale of our securities.
We
are subject to the informational requirements of the Exchange Act and in accordance therewith we file annual, quarterly, and other reports,
proxy statements and other information with the Commission under the Exchange Act. Such reports, proxy statements and other information,
including the Registration Statement, and exhibits and schedules thereto, are available to the public through the Commission’s
website at www.sec.gov.
We
make available free of charge on or through our website our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports
on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended, as soon as reasonably practicable after we electronically file such material with or otherwise furnish it to the Commission.
The registration statement and the documents referred to under “Incorporation of Certain Information by Reference”
are also available on our website cingulate.com.
We
have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of
this prospectus.
4,791,665
Shares of Common Stock Issuable Upon Exercise of Previously Issued Warrants
PROSPECTUS
,
2023
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution.
The
following table indicates the expenses to be incurred in connection with the offering described in this registration statement, other
than underwriting
discounts and commissions, all of which will be paid by us. All amounts are estimated except the Securities and Exchange Commission registration
fee and the Financial Industry Regulatory Authority, Inc., or FINRA, filing fee.
| |
Amount | |
Securities and Exchange Commission registration fee | |
$ | 5,475.09 | |
FINRA filing fee | |
| 8,475.00 | |
Nasdaq Capital Market listing fees | |
| 145,000.00 | |
Accountants’ fees and expenses | |
| 800,000.00 | |
Legal fees and expenses | |
| 1,500,000.00 | |
Transfer Agent’s fees and expenses | |
| 25,000.00 | |
Printing and engraving expenses | |
| 50,000.00 | |
Underwriter Legal Fees and Expenses | |
| 150,000.00 | |
Miscellaneous | |
| 300,000 | |
Total expenses | |
$ | 2,983,950.09 | |
Item
14. Indemnification of Directors and Officers.
As
permitted by Section 102 of the Delaware General Corporation Law, we have adopted provisions in our amended and restated certificate
of incorporation and bylaws that limit or eliminate the personal liability of our directors for a breach of their fiduciary duty of care
as a director. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business
judgment based on all material information reasonably available to them. Consequently, a director will not be personally liable to us
or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for:
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any breach of the director’s duty of loyalty
to us or our stockholders; |
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any act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law; |
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any act related to unlawful stock repurchases, redemptions
or other distributions or payment of dividends; or |
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any transaction from which the director derived an
improper personal benefit. |
These
limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission. Our amended and
restated certificate of incorporation also authorizes us to indemnify our officers, directors and other agents to the fullest extent
permitted under Delaware law.
As
permitted by Section 145 of the Delaware General Corporation Law, our bylaws provide that:
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we may indemnify our directors, officers, and employees
to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; |
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we may advance expenses to our directors, officers
and employees in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject
to limited exceptions; and |
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the rights provided in our bylaws are not exclusive. |
Our
amended and restated certificate of incorporation, filed as Exhibit 3.1 hereto, and our amended and restated bylaws, filed as Exhibit
3.2 hereto, provide for the indemnification provisions described above and elsewhere herein. We have entered into and intend to continue
to enter into separate indemnification agreements with our directors and elective officers which may be broader than the specific indemnification
provisions contained in the Delaware General Corporation Law. These indemnification agreements generally require us, among other things,
to indemnify our officers and directors against liabilities that may arise by reason of their status or service as directors or officers,
other than liabilities arising from willful misconduct. These indemnification agreements also generally require us to advance any expenses
incurred by the directors or officers as a result of any proceeding against them as to which they could be indemnified. In addition,
we have purchased a policy of directors’ and officers’ liability insurance that insures our directors and officers against
the cost of defense, settlement or payment of a judgment in some circumstances. These indemnification provisions and the indemnification
agreements may be sufficiently broad to permit indemnification of our officers and directors for liabilities, including reimbursement
of expenses incurred, arising under the Securities Act of 1933, as amended, or the Securities Act.
Item
15. Recent Sales of Unregistered Securities.
On
July 19, 2021, the Company issued one share of its common stock, par value $0.0001 per share, to Cingulate Therapeutics, LLC for $0.0001.
Such issuance was exempt from registration under 4(a)(2) of the Securities Act of 1933, as amended, and Regulation D promulgated thereunder.
On
September 29, 2021 the Company issued 7,142,746 shares of its common stock, par value $0.0001 per share, to the former holders of units
of Cingulate Therapeutics LLC in connection with the Reorganization Merger. Such issuances were exempt from registration under 4(a)(2)
of the Securities Act of 1933, as amended, and Regulation D promulgated thereunder.
On August 9, 2022, Cingulate
Therapeutics LLC issued a $5 million promissory note (the “August Note”) to Werth Family Investment Associates
LLC (“WFIA”). Peter J. Werth, a member of the Company’s Board of Directors is the manager of WFIA. Such issuance
was exempt from registration under 4(a)(2) of the Securities Act of 1933, as amended, and Regulation D promulgated thereunder. On
May 9, 2023, Cingulate Therapeutics LLC amended and restated the August Note to increase the principal amount to $8.0 million (as so
amended and restated, the “Amended and Restated Note”). WFIA has the right during the first five business days of each
calendar quarter to demand payment of all outstanding principal and interest 120 days following notice to Cingulate Therapeutics
LLC. Cingulate Therapeutics LLC may prepay the Amended and Restated Note, in whole or in part, without premium or penalty; provided,
that no amount repaid may be reborrowed. Such issuance was exempt from registration under 4(a)(2) of the Securities Act of 1933, as
amended, and Regulation D promulgated thereunder.
On
April 24, 2023, we completed a private placement to Lincoln Park Capital Fund, LLC (“Lincoln Park”) pursuant to which we
have the right to sell to Lincoln Park up to $12.0 million in shares of common stock, subject to certain limitations, from time to time
over the 36-month period commencing on the date that a registration statement covering the resale of the shares is declared effective
by the SEC. We issued 368,023 Commitment Shares to Lincoln Park as consideration for its commitment to purchase our shares under the
Purchase Agreement. In the Purchase Agreement, Lincoln Park represented to us, among other things, that it was an “accredited investor”
(as such term is defined in Rule 501(a) of Regulation D under the Securities Act). The securities were and will be sold by us under the
Purchase Agreement in reliance upon an exemption from the registration requirements under the Securities Act afforded by Section 4(a)(2)
of the Securities Act.
Item
16. Exhibits and Financial Statement Schedules.
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Incorporated
by Reference |
Exhibit
Number |
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Exhibit
Description |
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Form |
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Exhibit |
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Filing
Date |
1.1** |
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Form of Underwriting Agreement |
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2.1†** |
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Agreement and Plan of Merger, dated August 30, 2021, among Cingulate, Inc., Cingulate Therapeutics LLC, and Cingulate Pharma LLC |
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3.1 |
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Amended and Restated Certificate of Incorporation of Cingulate Inc. |
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10-K |
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3.1 |
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3/28/2022 |
3.2 |
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Amended and Restated Bylaws of Cingulate Inc. |
|
10-K |
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3.2 |
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3/28/2022 |
4.1** |
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Specimen Certificate representing shares of common stock of Cingulate Inc. |
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4.2** |
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Form of Underwriter Common Stock Purchase Warrant |
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4.3** |
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Form of Warrant |
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4.4** |
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Form of Warrant Agency Agreement |
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5.1** |
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Legal opinion of Lowenstein Sandler LLP |
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10.1#** |
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Patent and Know-How License Agreement, dated August 8, 2018, between BDD Pharma Limited, Cingulate Therapeutics LLC and Drug Delivery International Limited |
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10.2# |
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Master Services Agreement between Cingulate Therapeutics LLC and Societal CDMO, Inc., dated October 24, 2022 |
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8-K |
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10.1 |
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10/25/2022 |
10.3+** |
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Employment Agreement, dated September 23, 2021, between Cingulate Therapeutics LLC and Shane J. Schaffer |
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10.4+** |
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Employment Agreement, dated September 23, 2021, between Cingulate Therapeutics LLC and Matthew N. Brams |
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10.5+** |
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Employment Agreement, dated September 23, 2021, between Cingulate Therapeutics LLC and Laurie A. Myers |
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10.6+** |
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Employment Agreement, dated September 23, 2021, between Cingulate Therapeutics LLC and Craig S. Gilgallon |
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10.7+** |
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Employment Agreement, dated September 23, 2021, between Cingulate Therapeutics LLC and Louis G. Van Horn |
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10.8+** |
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Employment Agreement, dated September 23, 2021, between Cingulate Therapeutics LLC and Raul R. Silva |
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10.9+ |
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Amendment to Employment Agreement, effective April 1, 2022, between Cingulate Therapeutics LLC and Raul R. Silva |
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10-Q |
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10.1 |
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8/11/2022 |
10.10+ |
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Amendment to Employment Agreement, effective January 1, 2023, between Cingulate Therapeutics LLC and Raul R. Silva |
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10-K |
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10.10 |
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3/10/2023 |
10.11+** |
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Form of Indemnification Agreement |
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10.12+** |
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Cingulate Inc. 2021 Omnibus Equity Incentive Plan |
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10.13+ |
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Form of Nonqualified Stock Option Award under 2021 Plan |
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10-Q |
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10.1 |
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5/12/2022 |
10.14+ |
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Form of Incentive Stock Option Award under 2021 Plan |
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10-Q |
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10.2 |
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5/12/2022 |
10.15+** |
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Form of Restricted Stock Unit Award under 2021 Plan |
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10.16+** |
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Form of Restricted Stock Award under 2021 Plan |
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10. 17 |
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At The Market Offering Agreement, dated January 3, 2023, by and between Cingulate Inc. and H.C. Wainwright & Co., LLC |
|
S-3 |
|
1.2 |
|
1/3/2023 |
10. 18 |
|
Joint Commercialization Agreement, dated March 7, 2023, by and between Cingulate Therapeutics, LLC and Indegene, Inc. |
|
10-K |
|
10.19 |
|
3/10/2023 |
10. 19 |
|
Purchase Agreement, dated April 24, 2023, by and between Lincoln Park Capital, LLC and Cingulate Inc. |
|
8-K |
|
10.1 |
|
4/25/2023 |
10. 20 |
|
Registration Rights Agreement, dated April 24, 2023, by and between Lincoln Park Capital, LLC and Cingulate Inc. |
|
8-K |
|
10.2 |
|
4/25/2023 |
10.21 |
|
Amended
and Restated Promissory Note, dated May 9, 2023, between Cingulate Therapeutics, LLC and Werth Family Investment Associates LLC |
|
8-K |
|
10.1 |
|
5/10/2023 |
10.22 |
|
Amendment to ATM Agreement, dated May 2, 2023, by and between Cingulate Inc. and H.C. Wainwright & Co., LLC |
|
10-Q |
|
10.5 |
|
5/10/2023 |
21.1 |
|
List of Subsidiaries of Cingulate Inc. |
|
10-K |
|
21.1 |
|
3/10/2023 |
23.1* |
|
Consent of Independent Registered Public Accounting Firm |
|
|
|
|
|
|
23.2** |
|
Consent of Lowenstein Sandler LLP (included in Exhibit 5.1) |
|
|
|
|
|
|
24.1** |
|
Power of Attorney |
|
|
|
|
|
|
†
Annexes, schedules and/or exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Registrant hereby undertakes to
furnish supplementally a copy of any of the omitted schedules and exhibits to the SEC on a confidential basis upon request.
*
Filed Herewith
**
Previously filed.
+
Indicates a management contract or compensatory plan.
#
Certain portions of this exhibit have been omitted because the omitted information is (i) not material and (ii) would likely cause competitive
harm to the Company if publicly disclosed.
Item
17. Undertakings.
The
undersigned registrant hereby undertakes to
(a)
Provide to the underwriters at the closing specified in the underwriting agreement certificates in such denominations and registered
in such names as required by the underwriters to permit prompt delivery to each purchaser.
(b)
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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% 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;
(c)
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.
(d)
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.
(e)
For the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b)
as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A (§230.430A of this chapter), shall be deemed to be part of and included in the registration statement
as of the date it is first used after effectiveness. 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
first use, 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 date of first use.
(f)
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
(g)
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 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.
(h)
That:
|
(1) |
For purposes of determining
any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
|
|
|
|
(2) |
For the purpose of determining
any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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. |
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Kansas City, Kansas, on the day of May 12, 2023.
|
CINGULATE
INC. |
|
|
|
By: |
/s/
Shane J. Schaffer |
|
Name: |
Shane J. Schaffer |
|
Title: |
Chief 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
held on the dates indicated:
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Shane J. Schaffer |
|
|
|
|
Shane J. Schaffer |
|
Chief Executive Officer, Chairman (Principal Executive
Officer) |
|
May
12, 2023 |
|
|
|
|
|
/s/
Louis G. Van Horn |
|
|
|
|
Louis G. Van Horn |
|
Chief Financial Officer (Principal Financial Officer) |
|
May
12, 2023 |
|
|
|
|
|
/s/
Jennifer L. Callahan |
|
|
|
|
Jennifer L. Callahan |
|
Corporate Controller (Principal Accounting Officer) |
|
May
12, 2023 |
|
|
|
|
|
/s/
Scott Applebaum |
|
|
|
|
Scott Applebaum |
|
Director |
|
May
12, 2023 |
|
|
|
|
|
* |
|
|
|
|
Peter J. Werth |
|
Director |
|
May
12, 2023 |
|
|
|
|
|
* |
|
|
|
|
Patrick Gallagher |
|
Director |
|
May
12, 2023 |
|
|
|
|
|
* |
|
|
|
|
Gregg
Givens |
|
Director |
|
May
12, 2023 |
|
|
|
|
|
* |
|
|
|
|
Curt
Medeiros |
|
Director |
|
May
12, 2023 |
*By: |
/s/
Shane J. Schaffer |
|
|
Shane J. Schaffer, Attorney-in-Fact |
|
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