As
filed with the U.S. Securities and Exchange Commission on November 1, 2023
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES
ACT OF 1933
LIPELLA
PHARMACEUTICALS INC.
(Exact
name of registrant as specified in its charter)
Delaware |
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2834 |
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20-2388040 |
(State
or other jurisdiction of
incorporation or organization) |
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(Primary
Standard Industrial
Classification
Code Number) |
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(I.R.S.
Employer Identification
Number) |
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7800
Susquehanna St.
Suite
505
Pittsburgh,
PA 15208
(412)
894-1853
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Jonathan
Kaufman
Chief
Executive Officer
7800
Susquehanna St.
Suite
505
Pittsburgh,
PA 15208
(412)
894-1853
(Name,
address including zip code, and telephone number, including area code, of agent for service)
With
copies to:
David
E. Danovitch, Esq.
Ben
Armour, Esq.
Aaron
M. Schleicher, Esq.
Sullivan
& Worcester LLP
1633
Broadway
New
York, NY 10019
(212)
660-3060
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
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 ☒ |
Emerging
Growth Company ☒ |
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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.
☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall
become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This 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 |
SUBJECT
TO COMPLETION |
DATED
NOVEMBER 1, 2023 |
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LIPELLA
PHARMACEUTICALS INC.
Up
to 2,730,264 Shares of Common Stock Issuable Upon Exercise of Certain Pre-Funded Common Stock Purchase Warrants, Common Stock
Purchase Warrants and Placement Agent Warrants
This prospectus relates to the offer
and resale of up to an aggregate of 2,730,264 shares (the “Warrant Shares”), of common stock, par value $0.0001 per
share (“Common Stock”) of Lipella Pharmaceuticals Inc. (the “Company”, “we”, “us”
or “our”) issuable upon the exercise of (i) pre-funded common stock purchase warrants (the “Pre-Funded Warrants”)
to purchase up to 1,315,790 Warrant Shares, with an exercise price of $0.001 per share, (ii) common stock purchase warrants (the
“Common Warrants”) to purchase up to 1,315,790 Warrant Shares, with an exercise price of $1.40 per share, and (iii)
placement agent common stock purchase warrants (the “Placement Agent Warrants” and, collectively, with the Pre-Funded
Warrants and Common Warrants, the “Warrants”), to purchase up to 98,684 Warrant Shares, with an exercise price of
$1.90 per share. The Pre-Funded Warrants and Common Warrants were issued pursuant to a securities purchase agreement (the “Purchase
Agreement”), dated October 23, 2023, between the Company and the Purchaser (as defined below). In addition, pursuant to
a certain engagement letter (the “Engagement Letter”) dated October 20, 2023, between the Company and the Placement
Agent (as defined below), the Company agreed to issue the Placement Agent or its designees, Placement Agent Warrants to purchase
up to 98,684 shares of Common Stock. The holders of the Warrants and the Warrant Shares are each referred to herein as a “Selling
Stockholder” and collectively as the “Selling Stockholders.” We are registering the resale of the Warrant Shares
as set forth in this prospectus to satisfy our obligations under the Purchase Agreement, the accompanying registration rights
agreement (the “Registration Rights Agreement”), dated as of October 23, 2023, and the Engagement Letter. For additional
information regarding the issuance of the Warrants to the Selling Stockholders, see “October 2023 Private Placement Transaction”
beginning on page 11.
This
prospectus also covers any additional shares of Common Stock that may become issuable upon any adjustment pursuant to the terms
of the Warrants issued to the Selling Stockholders by reason of stock splits, stock dividends, and other events described therein.
The
Warrant Shares will be resold from time to time by the Selling Stockholders listed in the section titled “Selling Stockholders”
beginning on page 19.
The
Selling Stockholders, or their respective transferees, pledgees, donees or other successors-in-interest, may sell the Warrant
Shares through public or private transactions at prevailing market prices, at prices related to prevailing market prices or at
privately negotiated prices. The Selling Stockholders may sell any, all or none of the securities offered by this prospectus,
and we do not know when or in what amount the Selling Stockholders may sell their Warrant Shares hereunder following the effective
date of this registration statement. We provide more information about how a Selling Stockholder may sell its Warrant Shares in
the section titled “Plan of Distribution” on page 20.
We are registering the Warrant Shares
on behalf of the Selling Stockholders, to be offered and sold by them from time to time. While we will not receive any proceeds
from the sale of our Common Stock by the Selling Stockholders in the offering described in this prospectus, we will receive $1.40
per share upon the cash exercise of the Common Warrants and $1.90 per share upon the cash exercise of the Placement Agent Warrants.
Assuming the cash exercise of the Common Warrants for all 1,315,790 Warrant Shares, we will receive aggregate gross proceeds of
approximately $1,842,106. Assuming the exercise of the Placement Warrants for all 98,684 Warrant Shares by payment of cash, we
will receive aggregate gross proceeds of approximately $187,500. The Warrants are immediately exercisable; however, we cannot
predict when and in what amounts or if the Common Warrants and Placement Warrants will be exercised, and it is possible that the
Common Warrants and Placement Warrants may expire and never be exercised, in which case we would not receive any cash proceeds.
We have agreed to bear all expenses incurred in connection with the registration of the Warrant Shares. The Selling Stockholders
will pay or assume discounts, commissions, fees of underwriters, selling brokers or dealer managers and similar expenses, if any,
incurred for the sale of the Warrant Shares.
Our
Common Stock is currently listed on the Nasdaq Capital Market under the symbol “LIPO.”
We
are an “emerging growth company” as the term is used in the Jumpstart Our Business Startups Act of 2012 (the “Jobs
Act”), and, as such, have elected to comply with certain reduced public company reporting requirements for this and future
filings.
This offering will terminate on
the earlier of (i) the date when all of the securities registered hereunder have been sold pursuant to this prospectus or Rule
144 under the Securities Act of 1933, as amended (the
“Securities Act”), and (ii) the date on which all of such securities may be sold pursuant to Rule 144 without volume
or manner-of-sale restrictions, and without the requirement for the Company to be in compliance with the current public information
requirement of such rule, unless we terminate it earlier.
Investing in our Common Stock involves
risks. You should carefully review the risks described under the heading “Risk Factors” beginning on page 6 and in
the documents which are incorporated by reference herein before you invest in our Common Stock.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2023.
TABLE
OF CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus describes the general
manner in which the Selling Stockholders may offer from time to time up to 2,730,264 Warrant Shares issuable upon the exercise
of the Warrants. You should rely only on the information contained in this prospectus and the related exhibits, any prospectus
supplement or amendment thereto and the documents incorporated by reference, or to which we have referred you, before making your
investment decision. Neither we nor the Selling Stockholders have authorized anyone to provide you with different information.
If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus and any prospectus
supplement or amendments thereto do not constitute an offer to sell, or a solicitation of an offer to purchase, the Warrant Shares
offered by this prospectus and any prospectus supplement or amendments thereto in any jurisdiction to or from any person to whom
or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction. You should not assume that the
information contained in this prospectus or any prospectus supplement or amendments thereto, as well as information we have previously
filed with the U.S. Securities and Exchange Commission (the “SEC”), is accurate as of any date other than the date
on the front cover of the applicable document.
If
necessary, the specific manner in which the Warrant Shares may be offered and sold will be described in a supplement to this prospectus,
which supplement may also add, update or change any of the information contained in this prospectus. To the extent there is a
conflict between the information contained in this prospectus and any prospectus supplement, you should rely on the information
in such prospectus supplement, provided that if any statement in one of these documents is inconsistent with a statement in another
document having a later date — for example, a document incorporated by reference in this prospectus or any prospectus supplement
— the statement in the document having the later date modifies or supersedes the earlier statement.
Neither
the delivery of this prospectus nor any distribution of Warrant Shares pursuant to this prospectus shall, under any circumstances,
create any implication that there has been no change in the information set forth or incorporated by reference into this prospectus
or in our affairs since the date of this prospectus. Our business, financial condition, results of operations and prospects may
have changed since such date.
When used herein, unless the context
requires otherwise, references to “Lipella,” the “Company,” “we,” “our” or “us”
refer to Lipella Pharmaceuticals Inc., a Delaware corporation.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any amendment and
the information incorporated by reference into this prospectus, including the sections entitled “Risk Factors,” contain
“forward-looking statements” within the meaning of Section 21(E) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and Section 27A of the Securities Act. These forward-looking statements include, without limitation:
statements regarding our business, strategies, products, future results and events and financial performance, and other similar
expressions concerning matters that are not historical facts. Words such as “may,” “will,” “should,”
“could,” “would,” “predicts,” “potential,” “continue,” “expects,”
“anticipates,” “future,” “intends,” “plans,” “believes” and “estimates,”
and variations of such terms or similar expressions, are intended to identify such forward-looking statements.
Forward-looking
statements should not be read as a guarantee of future performance or results and will not necessarily be accurate indications
of the times at, or by which, that performance or those results will be achieved. Forward-looking statements are based on information
available at the time they are made and/or our management’s good faith belief as of that time with respect to future events.
Our actual results may differ materially from those expressed in, or implied by, the forward-looking statements due to a number
of factors including, but not limited to, those set forth under the heading “Risk Factors” in this prospectus, as
well as other risks discussed in documents that we file with the SEC.
Forward-looking
statements speak only as of the date they are made. You should not put undue reliance on any forward-looking statements. We assume
no obligation to update forward-looking statements to reflect actual results, changes in assumptions or changes in other factors
affecting forward-looking information, except to the extent required by applicable securities laws. If we do update one or more
forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking
statements. You should review our subsequent reports filed with the SEC described in the sections of this prospectus and the accompanying
prospectus entitled “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference,”
all of which are accessible on the SEC’s website at www.sec.gov.
INDUSTRY
AND MARKET DATA
Unless
otherwise indicated, information contained in this prospectus concerning our industry and the market in which we operate, including
our market position, market opportunity and market size, is based on information from various sources, on assumptions that we
have made based on such data and other similar sources and on our knowledge of the markets for our products. These data sources
involve a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates.
We
have not independently verified any third-party information. While we believe the market position, market opportunity and market
size information included in this prospectus is generally reliable, such information may be imprecise. In addition, projections,
assumptions and estimates of our future performance and the future performance of the industry in which we operate is necessarily
subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the section titled
“Risk Factors” and elsewhere in this prospectus and in any documents that we incorporate by reference into this prospectus
and the registration statement of which this prospectus forms a part. These and other factors could cause results to differ materially
from those expressed in the estimates made by the independent parties and by us.
PROSPECTUS
SUMMARY
This summary highlights selected
information contained elsewhere in this prospectus or incorporated by reference into this prospectus. This summary does not contain
all of the information that you should consider before investing in our Common Stock. You should carefully read this entire prospectus,
and our other filings with the SEC, including the following sections, which are either included herein and/or incorporated by
reference herein, “Risk Factors,” “Special Note Regarding Forward-Looking Statements,” “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and the financial statements incorporated by reference
herein, before making a decision about whether to invest in our securities.
Our
Business
Overview
We
are a clinical-stage biotechnology company focused on developing new drugs by reformulating the active agents in existing generic
drugs and optimizing these reformulations for new applications. We believe that this strategy combines many of the cost efficiencies
and risk abatements derived from using existing generic drugs with potential patent protections for our proprietary formulations;
this strategy allows us to expedite, protect, and monetize our product candidates. Additionally, we maintain a therapeutic focus
on diseases with significant, unaddressed morbidity and mortality where no approved drug therapy currently exists. We believe
that this focus can potentially help reduce the cost, time and risk associated with obtaining marketing approval.
Consistent
with our strategy, the initial indication that we are currently addressing (via development of our product candidate, which we
have designated as LP-10) is hemorrhagic cystitis (“HC”), which is chronic, uncontrolled urinary blood loss that results
from certain chemotherapies (such as alkylating agents) or pelvic radiation therapy (also called “radiation cystitis”).
Many radiation cystitis patients experience severe morbidity (and in some cases, mortality), and currently, there is no therapy
for their condition approved by the U.S. Food and Drug Administration (“FDA”), or, to our knowledge, any other regulatory
body. LP-10 is the development name of our reformulation of tacrolimus (an approved generic active agent) specifically optimized
for topical deposition to the internal surface of the urinary bladder lumen using a proprietary drug delivery platform that we
have developed and that we refer to as our metastable liposome drug delivery platform (our “Platform”). We are developing
LP-10 and our Platform to be, to our knowledge, the first drug candidate and drug delivery technology that could be successful
in treating cancer survivors who acquire HC.
In a second program, we are
developing a product candidate, which we have designated LP-310 and which employs a formulation similar to LP-10, for the treatment
of oral lichen planus (“OLP”). OLP is a chronic, T-cell-mediated, autoimmune oral mucosal disease, and LP-310 contains
tacrolimus which inhibits T-lymphocyte activation. Symptoms of OLP include painful burning sensations, bleeding and irritation
with tooth brushing, painful, thickened patches on the tongue, and discomfort when speaking, chewing or swallowing. These symptoms
frequently cause weight loss, nutritional deficiency, anxiety, depression, and scarring from erosive lesions. OLP can also be
a precursor to cancer, predominately squamous cell carcinoma, with a malignant transformation rate of approximately one percent.
LP-310 is the development name of our oral, liposomal formulation of tacrolimus (the same approved generic active agent in LP-10)
specifically optimized for local delivery to oral mucosa. We believe that our approach of using metastable liposomal tacrolimus
as a treatment for OLP is novel. To date, upon review of relevant FDA public data resources on approved drugs and biologics, we
are not aware of any other liposomal products developed to treat such disease. We recently received FDA Investigational New Drug
(IND) approval for a 12-subject, multicenter, phase-2a clinical trial with a dose escalation design.
Our Platform includes proprietary drug
delivery technologies optimized for use with epithelial tissues that coat lumenal surfaces, such as the colon, the various tissues
lining the mouth and esophagus and the tissues lining the bladder and urethra. The Company has two issued patents in the United
States that should exclude competitors from making, selling or using our LP-10 and LP-310 formulations in the United States until
July 11, 2035. We also have issued patents in Australia, Canada, and Europe that do not expire until October 22, 2034. Corresponding
patent applications are pending in the United States Patent Offices. We also have a pending United States patent application on
an improvement to the technology.
Since
our inception in 2005, we have focused primarily on business planning and progressing our lead product candidates, including progressing
LP-10 through clinical development, raising capital, organizing and staffing the Company.
Corporate
Information and Where You Can Find Us
We were incorporated under the laws
of the state of Delaware in February 2005. Our principal executive offices are located at 7800 Susquehanna Street, Suite 505,
Pittsburgh, PA 15208, and our telephone number is (412) 894-1853. We have approximately 6,000 square feet of combined laboratory,
office and warehouse space at our principal executive offices that we use in our research and development efforts, including a
sterile pharmaceutical pilot plant for manufacturing liposomal and other formulations, as well as relevant analytical facilities.
Our corporate website address is www.lipella.com. The information contained in, or accessible through, our website is not
incorporated by reference into this prospectus or the registration of which it forms a part and is intended for informational
purposes only. You should not consider such website information to be a part of the registration statement of which this prospectus
forms a part.
Implications
of Being an Emerging Growth and Smaller Reporting Company
We
qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012 (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:
| ● | reduced
obligations with respect to financial data; |
| ● | an
exception from compliance with the auditor attestation requirements of Section 404(b)
of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”); |
| ● | reduced
disclosure about our executive compensation arrangements in our periodic reports, proxy
statements and registration statements; and |
| ● | exemptions
from the requirements of holding non-binding advisory votes on executive compensation
or golden parachute arrangements. |
We may take advantage of these provisions
for up to five years following our December 2022 initial public offering (our “IPO”) or such earlier time that we
no longer qualify as an emerging growth company. We would cease to be an emerging growth company upon the earliest of:
| ● | the
last day of the fiscal year on which we have $1.235 billion or more in annual revenue, |
| ● | the
date on which we become a “large accelerated filer” (i.e., as of our fiscal
year end, the total market value of our common equity securities held by non-affiliates
is $700 million or more as of June 30), |
| ● | the
date on which we issue more than $1.0 billion of non-convertible debt over a three-year
period, or |
| ● | the
last day of our fiscal year following the fifth anniversary of the date of the completion
of our IPO. |
We
may choose to take advantage of some but not all of these reduced reporting burdens.
In
addition, under the JOBS Act, emerging growth companies can take advantage of an extended transition period and delay adopting
new or revised accounting standards until such time as those standards apply to private companies. We have elected to use this
extended transition period and, as a result, we will adopt new or revised accounting standards on the relevant dates on which
adoption of such standards is required for private companies. If we were to subsequently elect instead to comply with public company
effective dates, such election would be irrevocable pursuant to the JOBS Act.
Also,
we are a “smaller reporting company” (and may continue to qualify as such even after we no longer qualify as
an emerging growth company). For as long as we qualify as a “smaller reporting company,” we may provide reduced disclosure
in the public filings that we make with the SEC than larger public companies, such as the inclusion of only two years of audited
financial statements and only two years of management’s discussion and analysis of financial condition and results of operations
disclosure.
As
a result of qualifying as an emerging growth company and a smaller reporting company, to the extent we take advantage of the allowable
reduced reporting burdens, the information that we provide to our stockholders may be different than what you might receive from
other public reporting companies in which you hold equity interests.
ABOUT
THIS OFFERING
This
prospectus relates to the offer and resale by the Selling Stockholders of up to 2,730,264 Warrant Shares issuable upon the exercise
of the Warrants. All of the Warrant Shares, if and when sold, will be sold by the Selling Stockholders.
Warrant
Shares offered by the Selling Stockholders: |
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Up
to 2,730,264 shares of Common Stock. |
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Shares
of Common Stock outstanding after completion of this offering (assuming full exercise of the Warrants that are exercisable
for the Warrant Shares offered hereby): |
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8,534,209(1) |
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Use
of proceeds: |
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We
will not receive any of the proceeds from any sale of the Warrant Shares by the Selling Stockholders. We will receive proceeds
in the event that all of the Warrants are exercised at the exercise prices per share for cash which will result in gross proceeds
of approximately $2.0 million. Any proceeds that we receive from the exercise of the Warrants will be used for working capital
and general corporate purposes. See “Use of Proceeds.” |
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Risk
factors: |
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An
investment in our securities involves substantial risk. You should read carefully the “Risk Factors” section on
page 6 of this prospectus, and under similar headings in the other documents incorporated by reference into this prospectus.
Additional risks and uncertainties not presently known to us or that we currently deem to be immaterial may also impair our
business and operations. |
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Nasdaq
symbol for Common Stock: |
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“LIPO” |
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(1) |
Shares of our Common Stock that will be
outstanding after this offering is based on 5,803,945 shares of Common Stock outstanding as of October 30, 2023, but excludes
the following as of such date: (a) 1,078,000 shares of our securities issuable upon options outstanding under the Company’s
2008 Stock Incentive Plan (the “2008 Plan”) having an exercise price of $1.25 per share, all of which are fully
exercisable, (b) 1,375,000 shares of our securities issuable upon options outstanding under the Amended and Restated 2020
Stock Incentive Plan (the “Plan”), having exercise prices ranging from $2.19 to $5.00 per share, with a weighted
average exercise price of $3.93 per share, 1,194,333 of which are fully exercisable, and (c) 143,994 shares of Common Stock
issuable upon the exercise of fully exercisable warrants having an exercise price of $5.00 per share. |
RISK
FACTORS
An
investment in the securities offered under this prospectus involves a high degree of risk. You should carefully consider and evaluate
all of the information contained in this prospectus and in the documents that we incorporate by reference herein before you decide
to invest in our securities. In particular, you should carefully consider and evaluate the risks and uncertainties described under
the heading “Risk Factors” in this prospectus and in the documents incorporated by reference herein. Investors are
further advised that the risks described below may not be the only risks we face. Additional risks that we do not yet know of,
or that we currently think are immaterial, may also negatively impact our business operations or financial results. Any of the
risks and uncertainties set forth in this prospectus and in the documents incorporated by reference herein, as updated by annual,
quarterly and other reports and documents that we file with the SEC and incorporate by reference into this prospectus, could materially
and adversely affect our business, results of operations and financial condition, which in turn could materially and adversely
affect the value of our securities.
Risks
Related to the Resale of the Warrant Shares and Ownership of Shares of Our Common Stock
The
Selling Stockholders may choose to sell the Warrant Shares at prices below the current market price.
The
Selling Stockholders are not restricted as to the prices at which they may sell or otherwise dispose of the Warrant Shares covered
by this prospectus. Sales or other dispositions of the Warrant Shares below the then-current market prices could adversely affect
the market price of our Common Stock.
A
large number of shares of Common Stock may be sold in the market following this offering, which may significantly depress the
market price of our Common Stock.
The
Warrant Shares sold in the offering will be freely tradable without restriction or further registration under the Securities Act.
As a result, a substantial number of shares of Common Stock may be sold in the public market following this offering. If there
are significantly more shares of Common Stock offered for sale than buyers are willing to purchase, then the market price of our
Common Stock may decline to a market price at which buyers are willing to purchase the offered Common Stock and sellers remain
willing to sell Common Stock.
Neither
we nor the Selling Stockholders have authorized any other party to provide you with information concerning us or this offering.
You
should carefully evaluate all of the information in this prospectus, including the documents incorporated by reference herein
and therein. We may receive media coverage regarding our Company, including coverage that is not directly attributable to statements
made by our officers, that incorrectly reports on statements made by our officers or employees, or that is misleading as a result
of omitting information provided by us, our officers or employees. Neither we nor the Selling Stockholders have authorized any
other party to provide you with information concerning us or this offering, and recipients should not rely on this information.
The
market price and trading volume of our Common Stock may experience rapid and substantial volatility, which could cause purchasers
of our Common Stock to incur substantial losses.
The
market price of our Common Stock may fluctuate dramatically, and may decline rapidly, regardless of any developments in our business.
Overall, there are various factors, many of which are beyond our control, that could negatively affect the market price of our
Common Stock or result in fluctuations in the price or trading volume of our Common Stock, including:
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actual
or anticipated variations in our annual or quarterly results of operations, including our earnings estimates and whether we
meet market expectations with regard to our earnings; |
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our
current inability to pay dividends or other distributions; |
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publication
of research reports by analysts or others about us or the industry in which we operate, including the pharmaceutical or biotechnology
industry which may be unfavorable, inaccurate, inconsistent or not disseminated on a regular basis; |
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changes
in market valuations of similar companies; |
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market
reaction to any additional equity, debt or other securities that we may issue in the future, and which may or may not dilute
the holdings of our existing stockholders; |
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additions
or departures of key personnel; |
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actions
by institutional or significant stockholders; |
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short
interest in our Common Stock or our other securities and the market response to such short interest; |
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the
dramatic increase in the number of individual holders of our Common Stock and their participation in social media platforms
targeted at speculative investing; |
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speculation
in the press or investment community about our company or industries in which we operate; |
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strategic
actions by us or our competitors, such as acquisitions or other investments; |
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legislative,
administrative, regulatory or other actions affecting our business, our industry, including positions taken by the FDA; |
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investigations,
proceedings, or litigation that involve or affect us; and |
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the
occurrence of any of the other risk factors included in this registration statement of which this prospectus forms a part;
and |
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general
market and economic conditions. |
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Our Common Stock is currently
listed on the Nasdaq Capital Market (“Nasdaq”). If we are unable to maintain listing of our Common Stock on Nasdaq
or any stock exchange, our stock price could be adversely affected and the liquidity of our stock and our ability to obtain financing
could be impaired and it may be more difficult for our stockholders to sell shares of Common Stock that they hold.
Although our Common Stock is currently
listed on Nasdaq, we may not be able to continue to meet the exchange’s minimum listing requirements or those of any other
national exchange. If we are unable to maintain the listing of our Common Stock on Nasdaq or if a liquid market for our Common
Stock does not develop or is sustained, our Common Stock may remain thinly traded.
The
rules of The Nasdaq Stock Market LLC (the “Nasdaq Rules”) require listed issuers to comply with certain standards
in order to remain listed on Nasdaq. If, for any reason, we should fail to maintain compliance with these listing standards and
Nasdaq should delist our Common Stock from Nasdaq and we are unable to obtain listing on another national securities exchange,
trading in the shares of our Common Stock could be conducted in the over-the-counter market or on an electronic bulletin board
established for unlisted securities such as the Pink Sheets or the OTC Bulletin Board. In such event, a reduction in some or all
of the following may occur, each of which could have a material adverse effect on our shareholders:
|
● |
the
liquidity of our Common Stock; |
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|
● |
the
market price of our Common Stock; |
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|
● |
our
ability to obtain financing for the continuation of our operations; |
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● |
the
number of investors that will consider investing in our Common Stock; |
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|
● |
the
availability of information concerning the trading prices and volume of our Common Stock; and |
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|
● |
the
number of broker-dealers willing to execute trades in shares of our Common Stock. |
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Because
certain of our stockholders control a significant number of shares of our Common Stock, they may have effective control over actions
requiring stockholder approval.
As of October 30, 2023, our directors,
executive officers and principal stockholders, and their respective affiliates, beneficially own 2,284,675 shares of Common Stock,
or approximately 40% of our outstanding shares of Common Stock. As a result, these stockholders, acting together, may have
the ability to control the outcome of matters submitted to our stockholders for approval, including the election of directors
and any merger, consolidation or sale of all or substantially all of our assets. In addition, these stockholders, acting together,
may have the ability to control the management and affairs of our Company. Accordingly, this concentration of ownership might
harm the market price of our Common Stock by:
|
● |
delaying,
deferring or preventing a change in corporate control; |
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|
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impeding
a merger, consolidation, takeover or other business combination involving us; or |
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discouraging
a potential acquirer from making a tender offer or otherwise attempting to obtain control of us. |
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In
the event that our Common Stock is delisted from Nasdaq, U.S. broker-dealers may be discouraged from effecting transactions in
shares of our Common Stock because they may be considered penny stocks and thus be subject to the penny stock rules.
The SEC has adopted a number of rules
to regulate “penny stock” that restricts transactions involving stock which is deemed to be penny stock. Such rules
include Rules 3a51-1, 15g-1, 15g-2, 15g-3, 15g-4, 15g-5, 15g-6, 15g-7, and 15g-9 under the Exchange Act. These rules may have
the effect of reducing the liquidity of penny stocks. “Penny stocks” generally are equity securities with a price
of less than $5.00 per share (other than securities registered on certain national securities exchanges or quoted on Nasdaq if
current price and volume information with respect to transactions in such securities is provided by the exchange or system). Our
shares of Common Stock may in the future constitute, “penny stock” within the meaning of the rules, in which case,
the additional sales practice and disclosure requirements imposed upon U.S. broker-dealers for sales of penny stocks may discourage
such broker-dealers from effecting transactions in shares of our Common Stock, which could severely limit the market liquidity
of such shares of Common Stock and impede their sale in the secondary market.
A
U.S. broker-dealer selling penny stock to anyone other than an established customer or “accredited investor” (generally,
an individual with a net worth in excess of $1,000,000 or an annual income exceeding $200,000, or $300,000 together with his or
her spouse) must make a special suitability determination for the purchaser and must receive the purchaser’s written consent
to the transaction prior to sale, unless the broker-dealer or the transaction is otherwise exempt. In addition, the “penny
stock” regulations require the U.S. broker-dealer to deliver, prior to any transaction involving a “penny stock”,
a disclosure schedule prepared in accordance with SEC standards relating to the “penny stock” market, unless the broker-dealer
or the transaction is otherwise exempt. A U.S. broker-dealer is also required to disclose commissions payable to the U.S. broker-dealer
and the registered representative and current quotations for the securities. Finally, a U.S. broker-dealer is required to submit
monthly statements disclosing recent price information with respect to the “penny stock” held in a customer’s
account and information with respect to the limited market in “penny stocks.”
Stockholders should be aware that,
according to the SEC, the market for “penny stocks” has suffered in recent years from patterns of fraud and abuse.
Such patterns include: (i) control of the market for the security by one or a few broker-dealers that are often related to the
promoter or issuer; (ii) manipulation of prices through prearranged matching of purchases and sales and false and misleading press
releases; (iii) “boiler room” practices involving high-pressure sales tactics and unrealistic price projections by
inexperienced sales persons; (iv) excessive and undisclosed bid-ask differentials and markups by selling broker-dealers; and (v)
the wholesale dumping of the same securities by promoters and broker-dealers after prices have been manipulated to a desired level,
resulting in investor losses. Our management is aware of the abuses that have occurred historically in the penny stock market.
Although we do not expect to be in a position to dictate the behavior of the market or of broker-dealers who participate in the
market, management will strive within the confines of practical limitations to prevent the patterns described above from being
established with respect to our securities.
We
will have broad discretion as to the proceeds that we receive from the cash exercise by any holder of the Warrants, and we may
not use the proceeds effectively.
We
will not receive any of the proceeds from the sale of the Warrant Shares by the Selling Stockholders pursuant to this prospectus.
We may receive up to approximately $2.0 million in aggregate gross proceeds from cash exercises of the Warrants, based on the
per share exercise price of the Warrants, and to the extent that we receive such proceeds, we intend to use the net proceeds from
cash exercises of the Warrants for working capital and general corporate purposes. We have considerable discretion in the application
of such proceeds. You will not have the opportunity, as part of your investment decision, to assess whether such proceeds are
being used in a manner agreeable to you. You must rely on our judgment regarding the application of the net proceeds from cash
exercises of the Warrants, which may be used for corporate purposes that do not improve our profitability or increase the price
of our shares of Common Stock. Such proceeds may also be placed in investments that do not produce income or that lose value.
The failure to use such funds by us effectively could have a material adverse effect on our business, financial condition, operating
results and cash flow.
You
may experience future dilution as a result of issuance of the Warrant Shares, future equity offerings by us and other issuances
of our Common Stock or other securities. In addition, the issuance of the Warrant Shares and future equity offerings and other
issuances of our Common Stock or other securities may adversely affect our Common Stock price.
In order to raise additional capital,
we may in the future offer additional shares of our Common Stock or other securities convertible into or exchangeable for our
Common Stock at prices that may not be the same as the price per share as prior issuances of Common Stock. We may not be able
to sell shares or other securities in any other offering at a price per share that is equal to or greater than the price per share
previously paid by investors, and investors purchasing shares or other securities in the future could have rights superior to
existing stockholders. The price per share at which we sell additional shares of our Common Stock or securities convertible into
Common Stock in future transactions may be higher or lower than the prices per share for previous issuances of Common Stock or
securities convertible into Common Stock paid by certain investors. In addition, the exercise price of the Warrants for the Warrant
Shares may be equal to or greater than the price per share previously paid by certain investors. You will incur dilution upon
exercise of any outstanding stock options, warrants or upon the issuance of shares of Common Stock under our equity incentive
programs. In addition, the issuance of the Warrant Shares and any future sales of a substantial number of shares of our Common
Stock in the public market, or the perception that such sales may occur, could adversely affect the price of our Common Stock.
We cannot predict the effect, if any, that market sales of those shares of Common Stock or the availability of those shares for
sale will have on the market price of our Common Stock.
Provisions in our Second Amended
and Restated Certificate of Incorporation, as amended (our “Certificate of Incorporation”), and our amended and restated
by-laws (our “Bylaws”) and under Delaware law could make an acquisition of us, which may be beneficial to our stockholders,
more difficult and may prevent attempts by our stockholders to replace or remove our current management.
Provisions in our Certificate of Incorporation
and our Bylaws, as each may be amended and/or restated from time to time, may discourage, delay or prevent a merger, acquisition
or other change in control of us that stockholders may consider favorable, including transactions in which our stockholders might
otherwise receive a premium for their shares of Common Stock. These provisions also could limit the price that investors might
be willing to pay in the future for shares of our Common Stock, thereby depressing the market price of our Common Stock. In addition,
because our board of directors is responsible for appointing the members of our management team, these provisions may frustrate
or prevent any attempts by our stockholders to replace or remove our current management by making it more difficult for stockholders
to replace members of our board of directors. Among other things, these provisions:
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allow
the authorized number of our directors to be changed only by resolution of our board of directors; |
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establish
advance notice requirements for stockholder proposals that can be acted on at stockholder meetings and nominations to our
board of directors; |
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require
that stockholder actions must be effected at a duly called stockholder meeting and prohibit actions by our stockholders by
written consent; |
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limit
who may call special stockholder meetings; |
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authorize
our board of directors to issue capital stock without stockholder approval; and |
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require
the approval of a majority of the directors to amend or repeal certain provisions of our Bylaws. |
Moreover,
because we are incorporated in Delaware, we are governed by the provisions of Section 203 of the General Corporation Law of the
State of Delaware (the “DGCL”), which prohibits a person who owns in excess of 15% of our outstanding voting stock
from merging or combining with us for a period of three years after the date of the transaction in which the person acquired in
excess of 15% of our outstanding voting stock, unless the merger or combination is approved in a prescribed manner.
Our
Certificate of Incorporation and our Bylaws provide that the Court of Chancery of the State of Delaware will be the exclusive
forum for substantially all disputes between us and our stockholders, which could limit our stockholders’ ability to obtain
a favorable judicial forum for disputes with us or our directors, officers or employees.
Our Certificate of Incorporation and
our Bylaws provide that the Court of Chancery of the State of Delaware is the exclusive forum for any derivative action or proceeding
brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising pursuant
to the DGCL, our Certificate of Incorporation or Bylaws; or any action asserting a claim against us that is governed by the internal
affairs doctrine. Notwithstanding the foregoing, the exclusive forum provision does not apply to suits brought to enforce any
liability or duty created by the Securities Act, the Exchange Act, or any other claim for which the federal courts have exclusive
or concurrent jurisdiction. Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce
any duty or liability created by the Exchange Act of the rules and regulations thereunder, and 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, and notwithstanding the provisions of our Certificate of Incorporation
and our Bylaws, compliance with the federal securities laws and the rules and regulations thereunder may not be waived by our
investors. The choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it
finds favorable for disputes with us or our directors, officers or other employees, which may discourage such lawsuits against
us and our directors, officers and other employees. Alternatively, if a court were to find the choice of forum provisions contained
in our Certificate of Incorporation and our Bylaws to be inapplicable or unenforceable in an action, we may incur additional costs
associated with resolving such action in other jurisdictions, which could materially and adversely affect our business, financial
condition, and results of operation.
OCTOBER
2023 PRIVATE PLACEMENT TRANSACTIONS
On October 23, 2023, the Company entered
into the Purchase Agreement with the purchaser identified on the signature pages thereto (the “Purchaser”) for the
issuance and sale in the October 2023 Private Placement of Pre-Funded Warrants to purchase up to 1,315,790 shares of Common Stock,
with an exercise price of $0.001 per share, and Common Warrants to purchase up to 1,315,790 shares of Common Stock, with an exercise
price of $1.40 per share (the “October 2023 Private Placement”). The Common Warrants are exercisable immediately upon
issuance and have a term of exercise equal to three years from the date of issuance. The combined purchase price for one Pre-Funded
Warrant and one accompanying Warrant was $1.519. The closing of the October 2023 Private Placement contemplated by the Purchase
Agreement occurred on October 25, 2023. Pursuant to the Purchase Agreement (and subject to certain exceptions), (i) for a period
of 45 days following the Effective Date (as such term is defined in the Purchase Agreement), the Company agreed not to enter into
any agreement to issue or announce the issuance of any shares of Common Stock or Common Stock Equivalents (as such term is defined
in the Purchase Agreement), and (ii) for a period of one year from the Effective Date, the Company agreed not to issue certain
securities if the issuance would constitute a Variable Rate Transaction (as such term is defined in the Purchase Agreement); provided,
however, beginning 45 days after the Effective Date, the Company may issue certain securities pursuant to an equity line of credit
or an “at-the-market” facility with H.C. Wainwright & Co., LLC, as the Company’s exclusive placement agent
in connection with the October 2023 Private Placement (the “Placement Agent”).
In
connection with the October 2023 Private Placement, the Company entered into the Registration Rights Agreement, pursuant to which
the Company agreed to prepare and file a registration statement with the SEC registering the resale of the shares of Common Stock
underlying the Pre-Funded Warrants and the Warrants no later than seven (7) business days after the date of the Registration Rights
Agreement, and to use reasonable best efforts to have the registration statement declared effective as promptly as practical thereafter,
and in any event no 45 calendar days following the date of the Registration Rights Agreement (or 75 calendar days following the
date of the Registration Rights Agreement in the event of a “full review” by the SEC).
H.C. Wainwright & Co., LLC acted
as the Company’s exclusive placement agent in connection with the October 2023 Private Placement. Pursuant to the Engagement
Letter, the Company paid the Placement Agent (i) a total cash fee equal to 7.5% of the aggregate gross proceeds of the October
2023 Private Placement, (ii) a management fee of 1.0% of the aggregate gross proceeds of the October 2023 Private Placement, and
(iii) a non-accountable expense allowance of $50,000. In addition, the Company issued to the Placement Agent or its designees
Placement Agent Warrants to purchase up to an aggregate of 98,684 shares of Common Stock, which represents 7.5% of the aggregate
number of shares of Common Stock underlying the Pre-Funded Warrants sold in the October 2023 Private Placement, at an exercise
price equal to $1.90 per share, or 125% of the effective offering price per share of Common Stock underlying the Pre-Funded Warrants
sold in the October 2023 Private Placement. The Placement Agent Warrants are exercisable immediately upon issuance and have a
term of exercise equal to three years from the date of issuance. Pursuant to the Engagement Letter, the Company further (i) granted
the Placement Agent tail financing rights for twelve (12) months following the expiration or termination of the Engagement Letter,
and (ii) a right of first refusal to act as exclusive financial advisor, sole book-runner and/or sole placement agent for a period
of twelve (12) months following the consummation of the October 2023 Private Placement. In addition, pursuant to the Engagement
Letter, upon any exercise for cash of the Common Warrants, the Company shall pay the Placement Agent (i) a cash fee of 7.5% of
the aggregate gross exercise price paid in cash and (ii) a management fee of 1.0% of the aggregate gross exercise price paid in
cash, and further, the Company shall issue to the Placement Agent (or its designees) warrants (“Additional Placement Agent
Warrants”) to purchase shares of Common Stock equal to 7.5% of the aggregate number of shares of Common Stock underlying
the Warrants that have been exercised. The Additional Placement Agent Warrants, if any, will have the same terms as the Placement
Agent Warrants. In addition, the Company is required to register the resale of shares of Common Stock underlying the Additional
Placement Agent Warrants upon issuance of such warrants pursuant to the Engagement Letter.
SELLING
STOCKHOLDERS
The Warrant Shares being offered by
the Selling Stockholders are the Warrant Shares issuable upon the exercise of the Warrants. For additional information regarding
the issuance of these securities, see “October 2023 Private Placement Transactions” on page 11 of this prospectus.
We are registering the Warrant Shares issuable upon exercise of the Warrants to permit the Selling Stockholders to offer such
shares for resale from time to time. Except for the ownership of the Warrants and other than as a result of the Engagement Letter,
none of the Selling Stockholders have had any material relationship with us within the past three (3) years.
The following table sets forth certain
information with respect to each Selling Stockholder, including (i) the shares of Common Stock beneficially owned by the Selling
Stockholder prior to this offering, (ii) the number of Warrant Shares being offered by the Selling Stockholder pursuant to this
prospectus and (iii) the Selling Stockholder’s beneficial ownership after completion of this offering. The registration
of the Warrant Shares issuable to the Selling Stockholders upon the exercise of the Warrants does not necessarily mean that the
Selling Stockholders will sell all or any of such shares, but the number of shares of Common Stock and percentages set forth in
the final two columns below assume that all shares of Common Stock being offered by the Selling Stockholders are sold. See “Plan
of Distribution.”
The table is based on information supplied
to us by the Selling Stockholders, with beneficial ownership and percentage ownership determined in accordance with the rules
and regulations of the SEC, and includes voting or investment power with respect to shares of Common Stock. This information does
not necessarily indicate beneficial ownership for any other purpose. In computing the number of shares of Common Stock beneficially
owned by a Selling Stockholder and the percentage ownership of that Selling Stockholder, shares of Common Stock subject to warrants
held by that Selling Stockholder that are exercisable for shares of Common Stock within 60 days after October 30, 2023, are deemed
outstanding. Such shares, however, are not deemed outstanding for the purposes of computing the percentage ownership of any other
stockholder.
This
prospectus covers the resale of up to an aggregate of 2,730,264 Warrant Shares that may be sold or otherwise disposed of by the
Selling Stockholders. Such shares are issuable to the Selling Stockholders upon the exercise of the Warrants. See “October
2023 Private Placement Transactions” in this prospectus for further details relating to the Warrant Shares and the Warrants.
Information
about the Selling Stockholders may change over time. Any changed information will be set forth in an amendment to the registration
statement or supplement to this prospectus, to the extent required by law.
| |
Number of Shares of Common Stock Beneficially Owned Prior to Offering(1) | | |
Maximum Number of Warrant Shares to be Sold Pursuant to this Prospectus(2) | | |
Number of Shares of Common Stock Beneficially Owned After Offering(3) | | |
Percentage Beneficially Owned After Offering(3) | |
Sabby Volatility Warrant Master Fund, Ltd.(4) | |
| 836,714 | | |
| 2,631,580 | | |
| — | | |
| — | % |
Michael Vasinkevich(5) | |
| 63,281 | | |
| 63,281 | | |
| — | | |
| — | % |
Noam Rubinstein(5) | |
| 31,085 | | |
| 31,085 | | |
| — | | |
| — | % |
Craig Schwabe(5) | |
| 3,331 | | |
| 3,331 | | |
| — | | |
| — | % |
Charles Worthman(5) | |
| 987 | | |
| 987 | | |
| — | | |
| — | % |
TOTAL | |
| 935,398 | | |
| 2,730,264 | | |
| — | | |
| — | % |
(1) |
All of the Warrants
that are exercisable for the Warrant Shares offered hereby contain certain beneficial ownership limitations, which provide
that a holder of the Warrants will not have the right to exercise any portion of its Warrants if such holder, together with
its affiliates, would beneficially own in excess of 4.99% or 9.99%, as applicable, of the number of shares of Common Stock
outstanding immediately after giving effect to such exercise, provided that upon at least 61 days’ prior notice to us,
a holder may increase or decrease such limitation up to a maximum of 9.99% of the number of shares of Common Stock outstanding
(each such limitation, a “Beneficial Ownership Limitation”.) As a result, the number of shares of Common Stock
reflected in this column as beneficially owned by each Selling Stockholder includes (i) any outstanding shares of Common Stock
held by such Selling Stockholder, and (ii) if any, the number of shares of Common Stock subject to the Warrants exercisable
for the Warrant Shares offered hereby and any other warrants that may be held by such Selling Stockholder, in each case which
such Selling Stockholder has the right to acquire as of October 30, 2023 or within 60 days thereafter and without it or any
of its affiliates beneficially owning more than 4.99% or 9.99%, as applicable, of the number of outstanding shares of Common
Stock as of October 30, 2023. |
|
|
(2) |
Represents shares
of Common Stock owned by the Selling Stockholders upon full exercise of the Warrants offered hereby. |
|
|
(3) |
The number of
shares owned and the percentage of beneficial ownership after this offering set forth in these columns are based on 5,803,945
shares of Common Stock outstanding on October30, 2023, which excludes (a) 1,078,000 shares of Common Stock issuable upon exercise
of outstanding options issued under the 2008 Plan at an exercise price of $1.25 per share and (b) 1,375,000 shares of Common
Stock issuable upon exercise of outstanding options issued under the Company’s 2020 Stock Incentive Plan (the “2020
Plan”) at exercise prices ranging from of $2.19 to $5.00 per share, having a weighted average exercise price of $3.93
per share, and assumes full exercise of the Warrants that are exercisable for the 2,730,264 Warrant Shares offered hereby.
The calculation of beneficial ownership reported in such columns takes into account the effect of the Beneficial Ownership
Limitations in any warrants held by the Selling Stockholders after this offering. |
|
|
(4) |
Sabby Management,
LLC, the investment manager of Sabby Volatility Warrant Master Fund, Ltd., and Hal Mintz, manager of Sabby Management, LLC,
may be deemed to share voting and dispositive power with respect to these securities. Each of Sabby Management, LLC and Hal
Mintz disclaims beneficial ownership over the securities listed except to the extent of their pecuniary interest therein.
The Pre-Funded Warrants and Common Warrants issued to Sabby Volatility Warrant Master Fund, Ltd are subject to a 9.99% and
4.99%, respectively, beneficial ownership limitation, which limitations prohibit the selling stockholder from exercising any
portion of the Warrants if, following such exercise, Sabby Volatility Warrant Master Fund, Ltd.’s ownership of our shares
of Common Stock would exceed the beneficial ownership limitation. The address of the selling stockholder is c/o Sabby Volatility
Warrant Master Fund, Ltd., c/o Ogier Fiduciary Services (Cayman) Limited, 89 Nexus Way, Camana Bay, Grand Cayman KY1-9007,
Cayman Islands.
|
|
|
(5) |
Referenced
person is affiliated with the Placement Agent, a registered broker-dealer with a registered address of H.C. Wainwright &
Co., LLC, 430 Park Ave, 3rd Floor, New York, NY 10022. Referenced person has sole voting and dispositive power over the securities
held, acquired the securities in the ordinary course of business and, at the time the securities were acquired, the selling
stockholder had no agreement or understanding, directly or indirectly, with any person to distribute such securities. |
|
|
USE
OF PROCEEDS
We
will not receive any of the proceeds from the sale of the Warrant Shares by the Selling Stockholders pursuant to this prospectus.
We may receive up to approximately $2.0 million in aggregate gross proceeds from cash exercises of the Warrants, based on the
per share exercise price of the Warrants. We intend to use a portion of the net proceeds we may receive from any cash exercises
of the Warrants for working capital and general corporate purposes.
The
Selling Stockholders will pay any agent’s commissions and expenses they incur for brokerage, accounting, tax or legal services
or any other expenses that they incur in disposing of the shares of Common Stock. We will bear all other costs, fees and expenses
incurred in effecting the registration of the shares of Common Stock covered by this prospectus and any prospectus supplement.
These may include, without limitation, all registration and filing fees, SEC filing fees and expenses of compliance with state
securities or “blue sky” laws.
We
cannot predict when or if the Warrants will be exercised, and it is possible that the Warrants may expire and never be exercised.
In addition, the Common Warrants and Placement Agent Warrants are exercisable on a cashless basis after ninety (90) days from
the date of issuance if at the time of exercise there is no effective registration statement registering, or the prospectus contained
therein is not available for, the issuance of the shares of Common Stock underlying the Common Warrants and Placement Agent Warrants.
As a result, we may never receive meaningful, or any, cash proceeds from the exercise of the Common Warrants and Placement Agent
Warrants, and we cannot plan on any specific uses of any proceeds we may receive beyond the purposes described herein.
See
“Plan of Distribution” elsewhere in this prospectus for more information.
DIVIDEND
POLICY
We
have never declared or paid cash dividends on our capital stock. We currently intend to retain all available funds and any future
earnings for use in the operation of our business and do not anticipate paying any dividends on our Common Stock in the foreseeable
future. Any future determination to declare dividends will be made at the discretion of our board of directors and will depend
on our financial condition, operating results, capital requirements, general business conditions and other factors that our board
of directors may deem relevant.
PRINCIPAL
STOCKHOLDERS
The following table sets forth, as
of October 30, 2023, information regarding beneficial ownership of our voting securities by:
|
● |
each
person, or group of affiliated persons, known by us to be the beneficial owner of more than 5% of our Common Stock; |
|
● |
each
of our named executive officers; |
|
● |
each
of our directors; and |
|
● |
all
of our executive officers and directors as a group. |
We have determined beneficial ownership
in accordance with the rules of the SEC and the information is not necessarily indicative of beneficial ownership for any other
purpose. Unless otherwise indicated below, to our knowledge, the persons and entities named in the table have sole voting and
sole investment power with respect to all shares of Common Stock that they beneficially own, subject to community property laws
where applicable. In computing the number of shares of Common Stock beneficially owned by a person and the percentage ownership
of that person, we deemed outstanding shares of Common Stock subject to options or warrants held by that person that are currently
exercisable or exercisable within 60 days of October 30, 2023. We did not deem such shares outstanding, however, for the purpose
of computing the percentage ownership of any other person.
We have based the percentage ownership
information prior to this Offering on an aggregate of 5,803,945 shares of Common Stock outstanding.
Unless
otherwise indicated, the address of each beneficial owner listed on the table below is c/o Lipella Pharmaceuticals Inc., 7800
Susquehanna St., Suite 505, Pittsburgh, PA 15208.
|
|
Beneficial Ownership |
|
Name and Address of Beneficial Owner (1) |
|
Common Stock |
|
|
|
|
|
Named Executive Officers and Directors |
|
Number
(2) |
|
|
Voting Power
(%) (2) |
|
Jonathan Kaufman (3) |
|
|
1,321,776 |
|
|
|
20.73 |
% |
Michael Chancellor (4) |
|
|
1,365,564 |
|
|
|
21.41 |
% |
Douglas Johnston (5) |
|
|
50,000 |
|
|
|
* |
|
Lori Birder |
|
|
— |
|
|
|
— |
|
Daniel Cohen (6) |
|
|
25,000 |
|
|
|
* |
|
Byong (Christopher) Kim (7) |
|
|
35,000 |
|
|
|
* |
|
Ryan Pruchnic (8) |
|
|
35,000 |
|
|
|
* |
|
Naoki Yoshimura (9) |
|
|
39,000 |
|
|
|
* |
|
All executive officers and directors as a group (8 persons) |
|
|
2,871,340 |
|
|
|
39.92 |
% |
|
|
|
|
|
|
|
|
|
5% Stockholders (excluding named executive officers) |
|
|
|
|
|
|
|
|
Sabby Volatility Warrant Master Fund, Ltd. (10) |
|
|
836,714 |
|
|
|
14.42 |
% |
Leaf Huang (11) |
|
|
555,557 |
|
|
|
9.67 |
% |
Michele Gruber (12) |
|
|
358,883 |
|
|
|
5.88 |
% |
Pittsburgh Life Sciences Greenhouse (13) |
|
|
287,447 |
|
|
|
5.14 |
% |
|
|
|
|
|
|
|
|
|
| (1) | Except
as otherwise indicated, the persons named in the table above have sole voting and investment
power with respect to all shares of Common Stock shown as beneficially owned by them. |
|
(2) |
Based on 5,803,945 shares of Common Stock
issued and outstanding as of October 30, 2023. |
|
(3) |
Number of shares of Common Stock beneficially
owned consists of (i) 688,943 shares of Common Stock and (ii) 632,833 shares of Common Stock issuable upon the exercise of
stock options held by Dr. Kaufman. Such number of shares beneficially owned does not include 86,667 shares of Common Stock
issuable upon the exercise of stock options held by Dr. Kaufman, which will not vest within 60 days of October 30, 2023. Such
stock options held by Dr. Kaufman are exercisable for shares of Common Stock at prices ranging from $1.25 to $5.00 per share. |
|
(4) |
Number of shares of Common Stock beneficially
owned consists of (i) 732,731 shares of Common Stock and (ii) 632,833 shares of Common Stock issuable upon the exercise of
stock options held by Dr. Chancellor. Such number of shares beneficially owned does not include 86,667 shares of Common Stock
issuable upon the exercise of stock options held by Dr. Chancellor, which will not vest within 60 days of October 30, 2023.
Such stock options held by Dr. Chancellor are exercisable for shares of Common Stock at prices ranging from $1.25 to $5.00
per share. |
|
(5) |
Number of shares of Common Stock beneficially
owned consists of 50,000 shares of Common Stock issuable upon the exercise of stock options held by Mr. Johnston, which are
exercisable for shares of Common Stock at a price of $2.19 per share. |
|
(6) |
Number of shares of Common Stock beneficially
owned consists of 25,000 shares of Common Stock issuable upon the exercise of stock options held by Mr. Cohen, which are exercisable
for shares of Common Stock at a price of $2.19 per share. |
|
(7) |
Number of shares of Common Stock beneficially
owned consists of 35,000 shares of Common Stock issuable upon the exercise of stock options held by Dr. Kim, which are exercisable
for shares of Common Stock at prices between $2.19 and $5.00 per share. |
|
(8) |
Number of shares of Common Stock beneficially
owned consists of 35,000 shares of Common Stock issuable upon the exercise of stock options held by Mr. Pruchnic, which are
exercisable for shares of Common Stock at prices between $2.19 and $5.00 per share. |
|
(9) |
Number of shares of Common Stock beneficially owned consists
of 39,000 shares of Common Stock issuable upon the exercise of stock options held by Dr. Yoshimura, which are exercisable
for shares of Common Stock at prices ranging from $1.25 to $5.00 per share. |
|
|
|
|
(10) |
Number of shares
of Common Stock beneficially owned is based on the Pre-Funded Warrants and Common Warrants issued to Sabby Volatility Warrant
Master Fund, Ltd, which is subject to a 9.99% and 4.99%, respectively, beneficial ownership limitation, which limitations
prohibit the selling stockholder from exercising any portion of the Warrants if, following such exercise, Sabby Volatility
Warrant Master Fund, Ltd.’s ownership of our shares of Common Stock would exceed the beneficial ownership limitation.
Sabby Management, LLC, the investment manager of Sabby Volatility Warrant Master Fund, Ltd., and Hal Mintz, manager of Sabby
Management, LLC, may be deemed to share voting and dispositive power with respect to these securities. Each of Sabby Management,
LLC and Hal Mintz disclaims beneficial ownership over the securities listed except to the extent of their pecuniary interest
therein. The address of the selling stockholder is c/o Sabby Volatility Warrant Master Fund, Ltd., c/o Ogier Fiduciary Services
(Cayman) Limited, 89 Nexus Way, Camana Bay, Grand Cayman KY1-9007, Cayman Islands.
|
|
(11) |
Number of shares of Common Stock beneficially
owned is based solely on a Statement on Schedule 13G filed by Leaf Huang with the SEC on February 9, 2023 (the “Huang
Schedule 13G”). Based on the information provided in the Huang Schedule 13G, Mr. Huang’s address is c/o Eshelman
School of Pharmacy, University of North Carolina at Chapel Hill, 301 Pharmacy Lane, Chapel Hill, North Carolina 27599. |
|
(12) |
Number of shares of Common Stock beneficially
owned is based solely on a Statement on Schedule 13G filed by Michele Gruber with the SEC on March 29, 2023 and the Company’s
subsequent issuance to Mrs. Gruber of 5,000 fully vested stock options in June 2023. Such number of shares beneficially owned
does not include 6,667 shares of Common Stock issuable upon the exercise of stock options held by Mrs. Gruber, which will
not vest within 60 days of October 30, 2023. Such stock options held by Mrs. Gruber are exercisable for shares of Common Stock
at prices ranging from $1.25 to $5.00 per share. |
|
(13) |
Number of shares of Common Stock beneficially
owned as confirmed by Company’s management on October 2, 2023. Pittsburgh Life Sciences Greenhouse (“PLSG”)
is overseen by a board of directors. None of the directors of that board of directors has sole voting or dispositive power
with respect to shares of Common Stock held by PLSG. PLSG’s address is 2730 Sidney Street, Pittsburgh, PA 15203. |
DESCRIPTION
OF SECURITIES THAT THE SELLING STOCKHOLDERS ARE OFFERING
The
Selling Stockholders are offering for resale up to an aggregate of 2,730,264 shares of Common Stock issuable upon exercise of
the Warrants. The terms of our shares of Common Stock are contained in our Certificate of Incorporation and our Bylaws, Certificate
of Amendment to Second Amended and Restated Certificate of Incorporation, and Designation of Preferences, Rights and Limitations
of Series A Preferred Stock, each of which was filed or incorporated by reference as exhibits to our Annual
Report on Form 10-K for the fiscal year ended December 31, 2022,
and each of which is incorporated by reference herein. For a description of our Common Stock, see our Registration Statement on
Form
8-A, filed with the SEC on December 19, 2022 under
Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description and
(ii) Exhibit 4.—Description of the Registrant’s Securities Registered Pursuant to Section 12 of the Exchange Act,
to our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 31, 2023.
Our
Certificate of Incorporation authorizes the issuance of up to 200,000,000 shares of Common Stock and up to 20,000,000 shares of
blank check preferred stock, par value $0.0001 per share. Our board of directors may establish the rights and preferences of the
preferred stock from time to time.
PLAN
OF DISTRIBUTION
Each Selling Stockholder and any of
their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby
on the principal trading market or any other stock exchange, market or trading facility on which the securities are traded or
in private transactions. These sales may be at fixed or negotiated prices. A Selling Stockholder may use any one or more of the
following methods when selling securities:
● |
ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
● |
block
trades in which a broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction; |
● |
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
● |
an
exchange distribution in accordance with the rules of the applicable exchange; |
● |
privately
negotiated transactions; |
● |
settlement
of short sales; |
● |
in
transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number of such securities
at a stipulated price per security; |
● |
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
● |
a
combination of any such methods of sale; or |
● |
any
other method permitted pursuant to applicable law. |
The
Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act,
if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities,
from the purchaser) in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the case of an
agency transaction not in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a
principal transaction a markup or markdown in compliance with FINRA Rule 2121.
In connection with the sale of the
securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The
Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or
pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require
the delivery to such broker-dealers or other financial institution of securities offered by this prospectus, which securities
such broker-dealers or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect
such transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement
or understanding, directly or indirectly, with any person to distribute the securities.
We are required to pay certain fees
and expenses incident to the registration of the securities. We agreed to indemnify the Selling Stockholders against certain losses,
claims, damages and liabilities, including liabilities under the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling
Stockholders without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without
the requirement for the Company to be in compliance with the current public information under Rule 144 under the Securities Act
or any other rule of similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under
the Securities Act or any other rule of similar effect. The resale securities will be sold only through registered or licensed
brokers or dealers if required under applicable state securities laws. In addition, in certain states, the resale securities covered
hereby may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the
registration or qualification requirement is available and is complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not
simultaneously engage in market making activities with respect to the common stock for the applicable restricted period, as defined
in Regulation M, prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of
purchases and sales of the common stock by the Selling Stockholders or any other person. We will make copies of this prospectus
available to the Selling Stockholders and have informed them of the need to deliver a copy of this prospectus to each purchaser
at or prior to the time of the sale (including by compliance with Rule 172 under the Securities Act).
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION
FOR
SECURITIES ACT LIABILITY
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling
the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
LEGAL
MATTERS
The
validity of the issuance of the securities offered hereby will be passed upon for us by Sullivan & Worcester LLP, New York,
New York.
EXPERTS
The
financial statements of Lipella Pharmaceuticals Inc. as of December 31, 2022 and 2021 and for each of the two years in the period
ended December 31, 2022, incorporated in this prospectus by reference to the Annual
Report on Form 10-K for the year ended December 31, 2022, have been so incorporated in reliance on the report of Urish Popeck
& Co., LLC, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and
accounting.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes a part of a registration statement on Form S-1 filed under the Securities Act. As permitted by the SEC’s
rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not contain all the
information that is included in the registration statement. You will find additional information about us in the registration
statement and its exhibits. Any statements made in this prospectus or any prospectus supplement concerning legal documents are
not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise
filed with the SEC for a more complete understanding of the document or matter.
You
can read our electronic SEC filings, including such registration statement, on the internet at the SEC’s website at www.sec.gov.
We are subject to the information reporting requirements of the Exchange Act, and we file reports, proxy statements and other
information with the SEC. These reports, proxy statements and other information will be available at the website of the SEC referred
to above. We also maintain a website at https://www.lipella.com, at which you may access these materials free of charge
as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. However, the information
contained in or accessible through our website is not part of this prospectus or the registration statement of which this prospectus
forms a part, and investors should not rely on such information in making a decision to purchase our securities in this offering.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
SEC permits us to “incorporate by reference” into this prospectus the information contained in documents that we file
with the SEC, which means that we can disclose important information to you by referring you to those documents. Information that
is incorporated by reference is considered to be part of this prospectus and you should read it with the same care that you read
this prospectus. Information that we file later with the SEC will automatically update and supersede the information that is either
contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus from the date
those documents are filed. We have filed with the SEC and incorporate by reference in this prospectus, except as superseded, supplemented
or modified by this prospectus, the documents listed below (excluding those portions of any Current Report on Form 8-K that are
not deemed “filed” pursuant to the General Instructions of Form 8-K):
● |
our Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 12, 2023 and our Quarterly Report on Form 10-Q for the quarter ended June 30, 2023, filed with the SEC on August 14, 2023; |
|
|
● |
our
Definitive Proxy Statement on Schedule 14A (other than information furnished rather than filed), filed with the SEC on October
10, 2023; |
|
|
● |
our
Current Reports on Forms 8-K filed with the SEC on March
27, 2023, June 1, 2023,
June 23, 2023, August
2, 2023, August 8, 2023,
and October 26, 2023 (except
for Item 2.02 and Item 7.01 of any Current Report on Form 8-K which are not deemed “filed” for purposes of Section
18 of the Exchange Act and are not incorporated by reference in this prospectus); and |
|
|
● |
the
description of our Common Stock contained in (i) our registration statement on Form
8-A, filed with the SEC on December 19, 2022 under
Section 12(b) of the Exchange Act, including any amendments or reports filed for the purpose of updating such description and
(ii) Exhibit 4.2—Description of Registrant’s Securities Registered Pursuant to Section 12 of the Exchange Act, to
our Annual
Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 31, 2023. |
We
also incorporate by reference into this prospectus additional documents we may file with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act: (i) on or after the date of the initial filing of the registration statement of which this prospectus
is a part and prior to effectiveness of the registration statement, and (ii) on or after the date of this prospectus but before
the completion or termination of this offering (excluding any information not deemed “filed” with the SEC).
Any
statement contained in a previously filed document is deemed to be modified or superseded for purposes of this prospectus to the
extent that a statement contained in this prospectus or in a subsequently filed document incorporated by reference herein modifies
or supersedes the statement, and any statement contained in this prospectus is deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in a subsequently filed document incorporated by reference herein
modifies or supersedes the statement.
We
will provide this information upon written or oral request at no cost to the requester. You may request this information by contacting
our corporate headquarters at the following address: at 7800 Susquehanna St., Suite 505, Pittsburgh, PA 15208, Attn: Finance Department,
or by calling (412) 901-0315.
Copies
of these filings are also available through the “Investor Relations” section of our website at https://www.lipella.com.
For other ways to obtain a copy of these filings, please refer to “Where You Can Find More Information” above.
LIPELLA
PHARMACEUTICALS INC.
Up
to 2,730,264 Shares of Common Stock underlying Warrants
PROSPECTUS
The
date of this prospectus is , 2023.
PART
II - INFORMATION NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution.
The
following table sets forth an estimate of the fees and expenses relating to the issuance and distribution of the securities being
registered hereby, other than underwriting discounts and commissions, all of which shall be borne by the registrant. All of such
fees and expenses, except for the SEC registration fee, are estimated:
SEC registration fee |
|
$ |
463.43 |
|
Legal fees and expenses |
|
$ |
53,000.00 |
|
Printing fees and expenses |
|
$ |
15,000.00 |
|
Accounting fees and expenses |
|
$ |
5,000.00 |
|
Miscellaneous fees and expenses |
|
$ |
- |
|
Total |
|
$ |
73,463.43 |
|
Item
14. Indemnification of Officers and Directors.
We are incorporated under the laws
of the State of Delaware. Section 102 of the DGCL permits a corporation to eliminate the personal liability of directors of a
corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where
the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated
a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained
an improper personal benefit. As permitted by the DGCL, our Certificate of Incorporation eliminates a director’s liability
for monetary damages to the fullest extent under applicable law.
Section
145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation
and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’
fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by such person in connection with an
action, suit or proceeding to which such person is or is threatened to be made a party by reason of such position, if such person
acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation,
and, in any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful, except
that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any
claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the
extent that the Delaware Court of Chancery or other adjudicating court determines that, despite the adjudication of liability
but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses
which the Delaware Court of Chancery or such other court shall deem proper.
As permitted by the DGCL, our Certificate
of Incorporation and our Bylaws provide that: (i) we are required to indemnify our directors and officers to the fullest extent
permitted by the DGCL; (ii) we may, in our discretion, indemnify our employees and agents as set forth in the DGCL; (iii) we are
required, upon satisfaction of certain conditions, to advance all expenses incurred by our directors and officers in connection
with certain legal proceedings; (iv) the rights conferred in our second amended and restated bylaws are not exclusive; and (v)
we are authorized to enter into indemnification agreements with our directors, officers, employees and agents.
We
have entered into indemnification agreements with certain of our directors and executive officers, and intend to enter into such
agreements with all of our directors and executive officers, which require us to indemnify such individuals against expenses,
judgments, fines, settlements and other amounts that any such person becomes legally obligated to pay (including with respect
to a derivative action) in connection with any proceeding, whether actual or threatened, to which such person may be made a party
by reason of the fact that such person is or was a director or officer of us or any of our affiliates, provided such person acted
in good faith and in a manner such person reasonably believed to be in, or not opposed to, our best interests. We also maintain
a directors’ and officers’ liability insurance policy to insure directors and officers against unindemnified losses
arising from certain wrongful acts in their capacities as directors and officers and reimburse us for those losses for which we
have lawfully indemnified the directors and officers. Such policy will contain various exclusions.
Item
15. Recent Sales of Unregistered Securities.
Set
forth below is information regarding all unregistered securities issued by us within the past three years. All share amounts presented
in this Part II, Item 15 reflect the reverse stock split of our outstanding shares of Common Stock on a 1-for-2.5 basis effected
in connection with the consummation of our initial public offering in December 2022.
In
September 2020, we issued 6,667 shares of Common Stock to a holder of stock options upon such holder’s exercise of such
options, for aggregate consideration of $8,334.
Between
October 2020 and June 2021, we issued an aggregate of 959,957 shares of Common Stock and warrants to purchase up to an aggregate
of 143,994 shares of Common Stock, exercisable for $5.00 per share, to investors in consideration for an aggregate of approximately
$3.6 million.
In
May 2021, we issued 800,000 shares of Common Stock to one investor in consideration for consulting services.
In
May 2020, we granted to four participants in our 2020 Plan options exercisable for up to an aggregate of 240,000 shares of Common
Stock at $3.75 per share.
In
March 2021, we granted to seven participants in our 2020 Plan options exercisable for up to an aggregate of 68,000 shares of Common
Stock at $5.00 per share.
In
March 2021, we granted to eight participants in our 2020 Plan options exercisable for up to an aggregate of 298,000 shares of
Common Stock at $5.00 per share.
In
September 2021, we granted to six participants in our 2020 Plan exercisable for up to an aggregate of 360,000 shares of Common
Stock at $5.00 per share.
On
March 1, 2022, we granted to a participant in our 2020 Plan options exercisable for up to 10,000 shares of Common Stock at $5.00
per share.
On
June 16, 2023, we granted to twelve participants in our 2020 Plan options exercisable for up to an aggregate of 424,000 shares
of Common Stock at $2.19 per share.
On
July 10, 2023, we granted 60,000 restricted shares of Common Stock to a service provider.
On
October 23, 2023, we issued pre-funded common stock warrants to purchase up to 1,315,790 shares of Common Stock and common stock
purchase warrants to purchase up to 1,315,790 shares of Common Stock to a holder pursuant to a securities purchase agreement between
such holder and the Company. In addition, we issued placement agent common stock purchase warrants to purchase up to 98,684 shares
of Common Stock to the placement agent.
Each
of the foregoing issuances was made in a transaction not involving a public offering pursuant to an exemption from the registration
requirements of the Securities Act in reliance upon Section 4(a)(2) of the Securities Act, or Regulation D or Rule 701 promulgated
under the Securities Act, as applicable.
Item
16. Exhibits.
(a)
Exhibits:
We
have filed the exhibits listed on the accompanying Exhibit Index of this registration statement, which Exhibit Index is incorporated
herein by reference.
(b)
Financial Statement Schedules.
All
other schedules have been omitted because the information required to be presented in them is not applicable or is shown in the
financial statements or notes.
Item
17. Undertakings.
The
undersigned registrant hereby undertakes:
(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) |
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended; |
(ii) |
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 the volume of securities
offered (if the total dollar value of the 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 this registration statement
or any material change to such information in this registration statement; |
provided,
however, that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities
and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended,
that are incorporated by reference in this registration statement or is contained in a form of prospectus filed pursuant to Rule
424(b) that is part of this registration statement;
(2) |
That,
for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; |
(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering; |
(4) |
That,
for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser: |
(i) |
Each
prospectus filed by the registrant pursuant to Rule 424 (b)(3) shall be deemed to be part of this registration statement as
of the date the filed prospectus was deemed part of and included in this registration statement; and |
(ii) |
Each
prospectus required to be filed pursuant to Rule 424 (b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933, as amended, shall be deemed to be part of and included in the registration
statement as of the earlier of the date such prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that
was made in the registration statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date; |
(5) |
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933, as amended, 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; |
(6) |
That,
for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934, as amended) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof; |
(7) |
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in
the Securities Act of 1933, as amended, and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securities Act of 1933, as amended, and will be governed
by the final adjudication of such issue. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the city of Pittsburgh, State of Pennsylvania, on November 1, 2023.
|
LIPELLA
PHARMACEUTICALS INC. |
|
|
|
|
By: |
/s/
Jonathan Kaufman
|
|
|
Jonathan
Kaufman
President
and Chief Executive Officer |
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person whose individual signature appears below hereby authorizes and appoints Jonathan Kaufman
with full power of substitution and resubstitution and full power to act, as his or her true and lawful attorney-in-fact and agent
to act in his or her name, place and stead, and to execute in the name and on behalf of each such person, individually and in
each capacity stated below, and to file any and all amendments to this registration statement, any related registration statement
filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and any or all pre- or post-effective amendments thereto,
and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the U.S. Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, and 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 for all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming that said attorney-in-fact and agent, or any substitute, may lawfully
do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities indicated below:
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Jonathan Kaufman |
|
|
|
|
Jonathan Kaufman |
|
President, Chief Executive Officer and Chairman of the Board
(Principal Executive Officer) |
|
November 1, 2023 |
|
|
|
|
|
/s/ Douglas Johnston |
|
|
|
|
Douglas Johnston |
|
Chief Financial Officer (Principal Financial Officer and
Principal Accounting Officer) |
|
November 1, 2023 |
|
|
|
|
|
/s/ Michael Chancellor |
|
|
|
|
Michael Chancellor |
|
Chief Medical Officer and Director |
|
November 1, 2023 |
|
|
|
|
|
/s/ Byong (Christopher)
Kim |
|
|
|
|
Byong (Christopher) Kim |
|
Director |
|
November 1, 2023 |
|
|
|
|
|
/s/ Ryan Pruchnic |
|
|
|
|
Ryan Pruchnic |
|
Director |
|
November 1, 2023 |
|
|
|
|
|
/s/ Naoki Yoshimura |
|
|
|
|
Naoki Yoshimura |
|
Director |
|
November 1, 2023 |
|
|
|
|
|
/s/ Lori Birder |
|
|
|
|
Lori Birder |
|
Director |
|
November 1, 2023 |
|
|
|
|
|
/s/ Daniel Cohen |
|
|
|
|
Daniel Cohen |
|
Director |
|
November 1, 2023 |
EXHIBIT
INDEX
Exhibit
No. |
Description |
|
|
3.1(i)(a) |
Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1(i)(a) to the Company’s Annual Report on Form 10-K filed with the SEC on March 31, 2023). |
|
|
3.1(i)(b) |
Certificate of Amendment to Second Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1(i)(b) to the Company’s Annual Report on Form 10-K filed with the SEC on March 31, 2023). |
|
|
3.1(i)(c) |
Certificate of Designation of Preferences, Rights and Limitations of Series A Preferred Stock (incorporated by reference to Exhibit 3.1(i)(c) to the Company’s Annual Report on Form 10-K filed with the SEC on March 31, 2023). |
|
|
3.1(ii) |
Second Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1(ii) to the Company’s Annual Report on Form 10-K filed with the SEC on March 31, 2023). |
|
|
4.1 |
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K, filed with the SEC on October 25, 2023). |
|
|
4.2 |
Form of Warrant (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K, filed with the SEC on October 25, 2023). |
|
|
4.3 |
Form of Placement Agent Warrant (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K, filed with the SEC on October 25, 2023). |
|
|
5.1* |
Opinion of Sullivan & Worcester LLP. |
|
|
10.1+ |
Employment
Agreement by and between the Company and Jonathan Kaufman, effective as of July 17, 2020 (incorporated by reference
to Exhibit 10.1 to the Company’s Registration Statement on Form S-1, filed with the SEC on July 29, 2022). |
|
|
10.2+ |
Amendment No. 1 to the Employment Agreement, dated August 4, 2023, by and between Lipella Pharmaceuticals Inc. and Jonathan Kaufman (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on August 8, 2023). |
|
|
10.3+ |
Employment
Agreement by and between the Company and Michael Chancellor, effective as of July 17, 2020 (incorporated by reference
to Exhibit 10.2 to the Company’s Registration Statement on Form S-1, filed with the SEC on July 29, 2022). |
|
|
10.4+ |
Amendment No. 1 to the Employment Agreement, dated August 4, 2023, by and between Lipella Pharmaceuticals Inc. and Michael Chancellor (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed with the SEC on August 8, 2023). |
|
|
10.5+ |
Employment
Agreement by and between the Company and Douglas Johnston, entered into on November 9, 2022 and effective as of November 1,
2022 (incorporated by reference to Exhibit 10.3 to the Company’s Registration Statement on Form S-1/A, filed
with the SEC on October 24, 2022). |
|
|
10.6 |
Lease,
dated June 1, 2019, between the Company and Bridgeway Development Corporation (incorporated by reference to Exhibit
10.11 to the Company’s Registration Statement on Form S-1/A, filed with the SEC on October 24, 2022). |
|
|
10.7 |
Amendment
No. 2 to Lease Agreement between the Company and Bridgeway Development Corporation, dated July 2, 2020 (incorporated
by reference to Exhibit 10.12 to the Company’s Registration Statement on Form S-1/A, filed with the SEC on October 24,
2022). |
10.8 |
Lease Agreement, executed on July 27, 2023, between the Company and Bridgeway Development Corporation (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on August 2, 2023). |
|
|
10.9+ |
Lipella Pharmaceuticals Inc. 2008 Stock Incentive Plan (incorporated by reference to Exhibit 10.4 to the Company’s Registration Statement on Form S-1/A, filed with the SEC on October 24, 2022). |
|
|
10.10+ |
Form of Stock Option Agreement for Lipella Pharmaceuticals Inc. 2008 Stock Incentive Plan (incorporated by reference to Exhibit 10.5 to the Company’s Registration Statement on Form S-1/A, filed with the SEC on October 24, 2022). |
|
|
10.11+ |
Lipella Pharmaceuticals Inc. 2020 Stock Incentive Plan, as amended and restated (incorporated
by reference to Exhibit 4.3 to the Company’s post-effective Amendment No. 1 to Registration Statement on Form S-8, filed
with the SEC on June 6, 2023). |
|
|
10.12+ |
Form of Option Agreement for Lipella Pharmaceuticals Inc. Amended and Restated 2020 Stock Incentive Plan (incorporated by reference to Exhibit 10.9 to the Company’s Registration Statement on Form S-1/A, filed with the SEC on November 28, 2022). |
|
|
10.13+ |
Form of Restricted Stock Unit Agreement for Lipella Pharmaceuticals Inc. Amended and Restated 2020 Stock Incentive Plan (incorporated by reference to Exhibit 10.10 to the Company’s Registration Statement on Form S-1/A, filed with the SEC on November 28, 2022). |
|
|
10.14+ |
Note
Cancellation and Stock Purchase Agreement between the Company and Dr. Michael Chancellor (incorporated
by reference to Exhibit 10.14 to the Company’s Registration Statement on Form S-1/A, filed with the SEC on October 24, 2022). |
|
|
10.15+ |
Form
of Indemnification Agreement (incorporated by reference to Exhibit 10.15 to the Company’s Registration Statement
on Form S-1/A, filed with the SEC on October 24, 2022). |
|
|
10.16 |
Letter
Agreement, dated February 9, 2022, by and between the Company and Young & Partners LLC (incorporated
by reference to Exhibit 10.19 to the Company’s Registration Statement on Form S-1/A, filed with the SEC on October 24, 2022). |
|
|
10.17 |
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on October 25, 2023). |
|
|
10.18 |
Form of Registration Rights Agreement (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed with the SEC on October 25, 2023). |
|
|
23.1* |
Consent of Urish Popeck & Co., LLC, independent registered public accounting firm. |
|
|
23.2* |
Consent of Sullivan & Worcester LLP (included in Exhibit 5.1). |
|
|
24.1* |
Power
of Attorney (included on signature page). |
|
|
107* |
Filing Fee Table. |
* |
Filed
herewith. |
+ |
Management
compensatory agreement. |
EXHIBIT 5.1
|
Sullivan & Worcester
LLP
1633 Broadway
New York, NY 10019 |
212 660 3000
sullivanlaw.com |
November
1, 2023
Lipella
Pharmaceuticals Inc.
7800
Susquehanna St., Suite 505
Pittsburgh,
Pennsylvania 15208
Ladies
and Gentlemen:
We
have acted as special counsel to Lipella Pharmaceuticals Inc., a Delaware corporation (the “Company”),
in connection with a Registration Statement on Form S-1 (the “Registration Statement”) filed on
November 1, 2023 by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended (the “Securities Act”), for the proposed resale from time to time
by the Selling Stockholders (as defined below) of an aggregate of up to (A) (i) 1,315,790 shares (the “Pre-Funded
Warrant Shares”) of common stock, par value $0.0001 per share, of the Company (the “Common Stock”)
issuable upon exercise of pre-funded common stock purchase warrants (the “Pre-Funded Warrants”) issued
by the Company and (ii) 1,315,790 shares (the “Common Warrant Shares”) of Common Stock, issuable upon
exercise of common stock purchase warrants (the “Common Warrants”) issued by the Company in a private
placement transaction occurring on October 23, 2023 (the “Private Placement”), pursuant to that certain
securities purchase agreement, dated as of October 23, 2023 (the “Purchase Agreement”), and (B) 98,684
shares (the “Placement Warrant Shares” and, collectively with the Pre-Funded Warrant Shares and Common
Warrant Shares, the “Warrant Shares”) of Common Stock, issuable upon exercise of placement agent common
stock purchase warrants (the “Placement Warrants” and, collectively with the Pre-Funded Warrants and
Common Warrants, the “Warrants”) issued by the Company in connection with the Private Placement, pursuant
to that certain engagement letter, dated as of October 20, 2023, as amended (the “Engagement Letter”).
The holders of the Warrant Shares are collectively referred to herein as the “Selling Stockholders.”
In
connection with this opinion, we have examined and relied upon the originals or copies certified or otherwise identified to our
satisfaction of the following: (i) the Registration Statement, including the exhibits filed therewith, (ii) the Purchase
Agreement and all exhibits and schedules attached thereto, (iii) the Engagement Letter, (iv) the Warrants, (v) the minutes
of meetings and resolutions of the board of directors of the Company as provided to us by the Company, (vi) the certificate
of incorporation and by-laws of the Company, each as restated and/or amended to date, and (vii) such other documents as we
have deemed necessary for purposes of rendering the opinion hereinafter set forth.
In
addition to the foregoing, we have relied as to matters of fact upon the representations made by the Company and its representatives
and upon representations made by the Selling Stockholders. We also have assumed the genuineness of all signatures on original
documents, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents
submitted to us as copies, the authenticity of the originals of such latter documents and the due authorization, execution and
delivery of all documents where authorization, execution and delivery are prerequisites to the effectiveness of such documents.
Other than our examination of the documents indicated above, we have made no other examination in connection with this opinion.
We
are members of the Bar of the State of New York. We do not hold ourselves out as being conversant with, or expressing any opinion
with respect to, the laws of any jurisdiction other than the laws of the State of New York and the General Corporation Law of
the State of Delaware (the “DGCL”). Accordingly, the opinions expressed herein are expressly limited
to the laws of the State of New York and the DGCL. Our opinion is based on these laws as in effect on the date hereof. We express
no opinion as to whether the laws of any other jurisdiction are applicable to the subject matter hereof. We are not rendering
any opinion as to compliance with any federal or state law, rule or regulation relating to securities, or to the sale or
issuance thereof.
Based
upon the foregoing and in reliance thereon, and subject to the qualifications, limitations, exceptions and assumptions set forth
herein, we are of the opinion that the Warrant Shares have been duly authorized for issuance by the Company, and such Warrant
Shares, when issued to the Selling Stockholders pursuant to the terms of the Warrants upon payment to the Company of the required
consideration in accordance with the terms of the Warrants, will be validly issued, fully paid and non-assessable shares of Common
Stock.
BOSTON
LONDON NEW YORK TEL AVIV WASHINGTON, DC
This
opinion letter speaks only as of the date hereof and we assume no obligation to update or supplement this opinion letter if any
applicable laws change after the date of this opinion letter or if we become aware after the date of this opinion letter of any
facts, whether existing before or arising after the date hereof, that might change the opinions expressed above.
This
opinion is furnished in connection with the filing of the Registration Statement and may not be relied upon for any other purpose
without our prior written consent in each instance. Further, no portion of this opinion may be quoted, circulated or referred
to in any other document for any other purpose without our prior written consent.
We
hereby consent to the filing of this opinion with the SEC as Exhibit 5.1 to the Registration Statement and to the reference
to our firm under the caption “Legal Matters” in the prospectus which forms part of the Registration Statement. In
giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7
of the Securities Act or the rules and regulations of the SEC promulgated thereunder.
|
Very truly yours, |
|
|
|
/s/ Sullivan &
Worcester LLP |
|
Sullivan & Worcester LLP |
BOSTON LONDON NEW YORK TEL AVIV WASHINGTON, DC
EXHIBIT
23.1
Consent
of Independent Registered Public Accounting Firm
To
the Board of Directors
Lipella
Pharmaceuticals Inc.
Pittsburgh,
PA
We
hereby consent to the use in the Prospectus constituting a part of this Registration Statement of our report dated March 31, 2023,
relating to the financial statements of Lipella Pharmaceuticals Inc., which is incorporated by reference in that Prospectus. Our
report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.
We
also consent to the reference to us under the caption “Experts” in the Prospectus.
/s/
Urish Popeck & Co., LLC
Pittsburgh,
PA
November
1, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-1
(Form Type)
Lipella Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified
in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
|
|
Security
Type |
|
Security
Class
Title |
|
Fee
Calculation
or Carry
Forward
Rule |
|
Amount
To Be
Registered
(1) |
|
|
Maximum
Offering
Price Per
Share (2) |
|
Maximum
Aggregate
Offering
Price |
|
Fee Rate |
|
Amount of
Registration Fee |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees to be paid |
|
Equity |
|
Common stock, $0.0001 par value per share, issuable upon full exercise of pre-funded common stock purchase warrants (3) |
|
Rule 457(c) |
|
1,315,790 |
|
|
$ |
1.15 |
|
$ |
1,513,158.50 |
|
0.0001476 |
|
$ |
223.34 |
|
Fees to be paid |
|
Equity |
|
Common stock, $0.0001 par value per share, issuable upon full exercise of common stock purchase warrants (4) |
|
Rule 457(c) |
|
1,315,790 |
|
|
$ |
1.15 |
|
$ |
1,513,158.50 |
|
0.0001476 |
|
$ |
223.34 |
|
Fees to be paid |
|
Equity |
|
Common stock, $0.0001 par value per share, issuable upon full exercise of placement agent common stock purchase warrants (5) |
|
Rule 457(c) |
|
98,684 |
|
|
$ |
1.15 |
|
$ |
113,486.60 |
|
0.0001476 |
|
$ |
16.75 |
|
Fees Previously Paid |
|
— |
|
— |
|
— |
|
— |
|
|
|
— |
|
|
— |
|
|
|
|
|
|
Carry Forward Securities |
|
— |
|
— |
|
— |
|
— |
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
Total Offering Amounts |
|
|
|
|
|
|
|
|
|
$ |
3,139,803.60 |
|
|
|
$ |
463.43 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fee Offset |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
463.43 |
|
(1) |
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), includes any additional shares of common stock, par value $0.0001 per share (the “Common Stock”), of Lipella Pharmaceuticals Inc. (the “Registrant”) that may from time to time be offered or issued to prevent dilution from any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common Stock. |
(2) |
Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(c) of the Securities Act, based upon the average of the high and low prices for a share of Common Stock as reported on the Nasdaq Capital Market on October 26, 2023, which date is a date within five business days of the filing of the registration statement filed by the Registrant for the registration of the securities listed in the table above (the “Registration Statement”). |
(3) |
Represents shares of Common Stock issuable upon the exercise of pre-funded common stock purchase warrants to purchase Common Stock at an exercise price of $0.001 that were issued by the Registrant on October 23, 2023 to the selling stockholders named in the Registration Statement. |
|
|
(4) |
Represents shares of Common Stock issuable upon the exercise of common stock purchase warrants to purchase Common Stock at an exercise price of $1.40 that were issued by the Registrant on October 23, 2023 to the selling stockholders named in the Registration Statement. |
|
|
(5) |
Represents shares of Common Stock issuable upon the exercise of placement agent common stock purchase warrants to purchase Common Stock at an exercise price of $1.90 that were issued by the Registrant on October 23, 2023 to the selling stockholders named in the Registration Statement. |
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