Securities Registration: Employee Benefit Plan (s-8)
December 16 2019 - 4:35PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on December 16, 2019
Registration Statement No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CITIUS PHARMACEUTICALS, INC.
(Exact name of registrant as specified in
its charter)
Nevada
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27-3425913
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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11 Commerce Drive, First Floor
Cranford New Jersey 07016
(Address, including zip code, of registrant’s
principal executive offices)
Citius Pharmaceuticals, Inc. 2014 Stock
Incentive Plan
Citius Pharmaceuticals, Inc. 2018 Omnibus
Stock Incentive Plan
(Full title of the plans)
Myron Holubiak
President and Chief Executive Officer
11 Commerce Drive, First Floor
Cranford, New Jersey 07016
(908)-967-6677
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Alexander M. Donaldson, Esq.
Lorna A. Knick, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
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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☒
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark
if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Title of Securities to be
Registered
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Amount
to be
Registered
(1)(2)
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Proposed
Maximum
Offering Price
Per Share
(3)
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Proposed
Maximum
Aggregate
Offering Price
(3)
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Amount of
Registration Fee
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Common Stock, $0.001 par value per share (2014 Stock Incentive Plan)
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866,667
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$
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0.51
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$
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442,000
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$
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57.50
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Common Stock, $0.001 par value per share (2018 Omnibus Stock Incentive Plan)
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2,000,000
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$
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0.51
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$
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1,020,000
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$
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132.50
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TOTAL
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2,866,667
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$
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0.51
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$
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1,462,000
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$
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190.00
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(1)
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Consists of 866,667 shares reserved for issuance under the Citius Pharmaceuticals, Inc. 2014 Stock Incentive Plan (the “2014 Stock Plan”), and 2,000,000 shares reserved for issuance under the Citius Pharmaceuticals, Inc. 2018 Omnibus Stock Incentive Plan (the “2018 Stock Plan”).
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(2)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional shares of the Registrant’s common stock that become issuable under the 2014 Stock Plan or the 2018 Stock Plan by reason of any stock dividend, stock split, recapitalization, or other similar transaction that results in an increase in the number of outstanding shares of the Registrant’s common stock.
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(3)
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Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee based upon the average of the high and low prices of the Registrant’s common stock on the Nasdaq Capital Market on December 12, 2019.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1.
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Plan Information.
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Information required by Item 1 is included in documents that
will be sent or given by Citius Pharmaceuticals, Inc. (the “Registrant”) to participants in the plans covered by this
Registration Statement pursuant to Rule 428(b)(1) of the Securities Act.
Item 2.
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Registrant Information and Employee Plan Annual Information.
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The written statement required by Item 2 is included in documents
that will be sent or given by the Registrant to participants in the plans covered by this Registration Statement pursuant to Rule
428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The following documents previously filed by the Registrant with
the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:
(a) The Registrant’s Annual Report on Form 10-K for the
fiscal year ended September 30, 2019, filed with the Commission pursuant to Section 13(a) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) on December 16, 2019; and
(b) The description of the Registrant’s common stock contained
in the Registrant’s Registration Statement on Form S-1 filed with the Commission on April 20, 2017, pursuant to the Securities
Act, which description is incorporated by reference into the Form 8-A filed with the Commission on July 28, 2017, pursuant to the
Exchange Act and any amendment or report filed for the purpose of updating such description.
All documents filed, but not furnished, by the Registrant pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment
that indicates that all securities offered under this Registration Statement have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of
such documents. In no event, however, will any of the information, including exhibits, that the Registrant discloses under Item
2.02 and Item 7.01 of any report on Form 8-K that has been or may be, from time to time, furnished to the Commission, be incorporated
by reference into or otherwise become a part of this Registration Statement.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in
any other subsequently filed document that also is or is deemed to be incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or
superseded.
Item 4.
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Description of Securities.
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Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
Item 6.
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Indemnification of Directors and Officers.
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Neither the Registrant’s Articles
of Incorporation nor Bylaws prevent the Registrant from indemnifying our officers, directors and agents to the extent permitted
under the Nevada Revised Statute (“NRS”). NRS Section 78.7502 provides that a corporation shall indemnify any director,
officer, employee or agent of a corporation against expenses, including attorneys’ fees, actually and reasonably incurred
by him or her in connection with any the defense to the extent that a director, officer, employee or agent of a corporation has
been successful on the merits or otherwise in defense of any action, suit or proceeding referred to Section 78.7502(1) or 78.7502(2),
or in defense of any claim, issue or matter therein.
NRS Section 78.7502(1) provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except an action by or in the right of the corporation, by reason of
the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with the action, suit or proceeding if he or she: (a) is not liable pursuant to NRS 78.138;
or (b) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct
was unlawful.
NRS Section 78.7502(2) provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts paid
in settlement and attorneys’ fees actually and reasonably incurred by him or her in connection with the defense or settlement
of the action or suit if he or she: (a) is not liable pursuant to NRS Section 78.138; or (b) acted in good faith and in a manner
which he or she reasonably believed to be in or not opposed to the best interests of the corporation. Indemnification may not be
made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion
of all appeals there from, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only
to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application
that in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses
as the court deems proper.
NRS Section 78.747 provides that except as otherwise provided
by specific statute, no director or officer of a corporation is individually liable for a debt or liability of the corporation,
unless the director or officer acts as the alter ego of the corporation. The court as a matter of law must determine the question
of whether a director or officer acts as the alter ego of a corporation.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling
us pursuant to the foregoing provisions, the Registrant has been informed that, in the opinion of the Commission, such indemnification
is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by the Registrant is against public policy as expressed hereby in the Securities Act and the Registrant will be governed by the
final adjudication of such issue.
Item 7.
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Exemption From Registration Claimed.
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Not applicable.
The following exhibits are filed as part of this Registration
Statement:
Exhibit
No.
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Description
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Form
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Filing
Date
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Exhibit
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Filed
herewith
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4.1
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Form of Registration Rights Agreement between the Purchasers named therein and Citius Pharmaceuticals Holdings, Inc., dated September 12, 2014
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8-K
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9/18/2014
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10.2
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4.2
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Placement Agent’s Unit Warrant in favor of Merriman Capital, Inc., dated September 12, 2014
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S-1/A
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12/29/2015
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10.12
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4.3
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Form of Investor Warrant, dated September 12, 2014
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8-K
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9/18/2014
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10.3
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4.4
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Form of Common Stock Purchase Warrant, dated May 10, 2017
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10-Q
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5/15/2017
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10.4
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4.5
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Warrant Agent Agreement dated August 3, 2017 between Citius Pharmaceuticals, Inc. and VStock Transfer, LLC
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8-K
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8/4/2017
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4.1
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4.6
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Form of Representative’s Warrant, dated August 3, 2017
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8-K
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8/4/2017
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4.2
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4.7
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Form of Investor Warrant, dated December 15, 2017
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8-K
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12/19/2017
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4.1
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4.8
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Form of Placement Agent Warrant, dated December 15, 2017
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8-K
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12/19/2017
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4.2
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4.9
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Form of Investor Warrant, dated March 28, 2018
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8-K
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3/29/2018
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4.1
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4.10
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Form of Placement Agent Warrant, dated March 28, 2018
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8-K
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3/29/2018
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4.2
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4.11
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Form of Common Stock Purchase Warrant, dated August 13, 2018
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8-K
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8/13/2018
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4.1
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4.12
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Form of Pre-Funded Common Stock Purchase Warrant, dated August 13, 2018
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8-K
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8/13/2018
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4.2
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4.13
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Form of Underwriter’s Common Stock Purchase Warrant, dated August 13, 2018
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8-K
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8/13/2018
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4.3
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4.14
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Form of Investor Warrant, dated April 3, 2019
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8-K
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4/3/2019
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4.1
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4.15
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Form of Placement Agent Warrant, dated April 3, 2019
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8-K
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4/3/2019
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4.2
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4.16
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Form of Common Stock Purchase Warrant issued on September 27, 2019
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8-K
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9/27/2019
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4.1
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4.17
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Form of Pre-Funded Common Stock Purchase Warrant issued on September 27, 2019
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8-K
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9/27/2019
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4.2
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4.18
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Form of Underwriter’s Common Stock Purchase Warrant issued on September 27, 2019
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8-K
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9/27/2019
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4.3
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5.1
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Opinion of Wyrick Robbins Yates & Ponton LLP
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X
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23.1
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Consent of Wolf & Company, P.C.
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X
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23.2
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Consent of Wyrick Robbins Yates & Ponton LLP (included in Exhibit 5.1)
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X
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24.1
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Power of Attorney (included on page S-1)
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X
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99.1
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Citius Pharmaceuticals, Inc. 2014 Stock Incentive Plan
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10-Q
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8/15/2016
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10.1
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99.2
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Citius Pharmaceuticals, Inc. 2018 Omnibus Stock Incentive Plan
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10-Q
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2/14/2018
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10.2
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(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:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
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(iii)
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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;
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provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in 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.
(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 Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement related to the securities offered therein, and the offering of such securities at the time shall
be deemed to be the initial bona fide offering thereof.
(h) 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 Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Cranford, State of New Jersey, on the 16th day of December, 2019.
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CITIUS PHARMACEUTICALS, INC.
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By:
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/s/ Myron Holubiak
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Myron Holubiak
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President and Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Myron Holubiak and Leonard Mazur, and each of his or her true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him or her and his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises,
as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Myron Holubiak
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President and Chief Executive Officer
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December 16, 2019
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Myron Holubiak
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(Principal Executive Officer)
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/s/
Jaime Bartushak
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Chief Financial Officer and Chief Accounting Officer
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December 16, 2019
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Jaime Bartushak
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(Principal Financial Officer and Principal Accounting Officer)
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/s/ Leonard Mazur
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Executive Chairman, Board of Directors
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December 16, 2019
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Leonard Mazur
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/s/ Suren Dutia
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Director
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December 16, 2019
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Suren Dutia
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/s/ Carol Webb
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Director
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December 16, 2019
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Carol Webb
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/s/ William Kane
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Director
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December 16, 2019
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Dr. William Kane
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/s/ Howard Safir
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Director
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December 16, 2019
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Howard Safir
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/s/ Eugene Holuka
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Director
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December 16, 2019
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Dr. Eugene Holuka
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5
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