Item 1.01. Entry into a Material Definitive Agreement.
On July 25, 2022, Acurx Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”), entered into Securities Purchase Agreements (the “Purchase Agreements”)
with a single healthcare-focused U.S. institutional investor named therein (the “Investor”), and with each of David P. Luci,
our President and Chief Executive Officer, Robert J. DeLuccia, our Executive Chairman, and Carl V. Sailer, a member of our board of directors
(collectively, the “Affiliate Investors”), pursuant to which the Company agreed to issue and sell, in a registered direct
offering by the Company directly to the Investor and to the Affiliate Investors (the “Registered Offering”), (i) an aggregate
of 1,159,211 shares (the “Shares”) of common stock (consisting of 1,100,000 shares for the Investor and an aggregate of 59,211
for the Affiliate Investors), par value $0.001 per share, of the Company (“Common Stock”), at an offering price of $3.25 per
share for the Investor and $3.80 per share for the Affiliate Investors and (ii) an aggregate of 130,769 pre-funded warrants exercisable
for shares of Common Stock (the “Pre-Funded Warrants”) to the Investor at an offering price of $3.2499 per Pre-Funded Warrant,
for aggregate gross proceeds from the Registered Offering of approximately $4.225 million before deducting the placement agent fee and
related offering expenses.
The Pre-Funded Warrants were sold, in lieu
of shares of Common Stock, to the Investor whose purchase of shares of Common Stock in the Registered Offering would otherwise
result in the Investor, together with its affiliates and certain related parties, beneficially owning more than 4.99% (or, at the
purchaser's option upon issuance, 9.99%) of the Company’s outstanding Common Stock immediately following the consummation of
the Registered Offering. Each Pre-Funded Warrant represents the right to purchase one share of Common Stock at an exercise price of
$0.0001 per share. The Pre-Funded Warrants are exercisable immediately and may be exercised at any time until the Pre-Funded
Warrants are exercised in full.
The Purchase Agreements contain customary representations
and warranties and agreements of the Company and the Investor (and of the Affiliate Investors) and customary indemnification rights and
obligations of the parties. Pursuant to the terms of each of the Purchase Agreements, the Company has agreed to certain restrictions on
the issuance and sale of its Common Stock or Common Stock Equivalents (as defined in the Purchase Agreements) during the 90-day period
following the closing of the Registered Offering.
The Shares and Pre-Funded Warrants were offered
by the Company pursuant to a registration statement on Form S-3 (File No. 333-265956), which was filed with the Securities and Exchange
Commission (the “Commission”) on July 1, 2022 and was declared effective by the Commission on July 11, 2022 (the “Registration
Statement”).
In a concurrent private placement (the “Private
Placement” and together with the Registered Offering, the “Offerings”), the Company agreed to issue to the Investor
and to the Affiliate Investors (i) series A warrants (the “Series A Warrants”) exercisable for an aggregate of 1,289,980 shares
of Common Stock (consisting of Series A Warrants (the “Investor Series A Warrants”) to purchase up to 1,230,769 shares of
common stock for the Investor and Series A Warrants (the “Affiliate Series A Warrants”) to purchase up to 59,211 shares of common stock
for the Affiliate Investors) at an exercise price of $3.25 per share for the Investor Series A Warrants and $3.55 per share for the Affiliate
Series A Warrants and (ii) series B warrants (the “Series B Warrants” and together with the Series A Warrants, the “Warrants”
and collectively with the Shares and the Pre-Funded Warrants, the “Securities”) exercisable for an aggregate of 1,289,980
shares of Common Stock (consisting of Series B Warrants (the “Investor Series B Warrants”) to purchase up to 1,230,769 shares
of common stock for the Investor and Series B Warrants (the “Affiliate Series B Warrants”) to purchase up to an aggregate of 59,211
shares of common stock for the Affiliate Investors) at an exercise price of $3.25 per share for the Investor Series B Warrants and $3.55
per share for the Affiliate Series B Warrants. Each Series A Warrant will be exercisable commencing on the sixth month anniversary of
the issuance date and will expire five years from the initial exercise date. Each Series B Warrant will be exercisable commencing on the
sixth month anniversary of the issuance date and will expire one year from the initial exercise date. The Warrants and the shares of our
Common Stock issuable upon the exercise of the Warrants are not being registered under the Securities Act of 1933, as amended (the “Securities
Act”), were not offered pursuant to the Registration Statement and were offered pursuant to the exemption provided in Section 4(a)(2)
under the Securities Act, and Rule 506(b) promulgated thereunder.
A holder (together with its affiliates) may not
exercise any portion of the Pre-Funded Warrants or Warrants to the extent that the holder would own more than 4.99% (or,
at the purchaser’s option upon issuance, 9.99%) of the Company’s outstanding Common Stock immediately after exercise. However,
upon at least 61 days’ prior notice from the holder to the Company, a holder with a 4.99% ownership blocker may increase
the amount of ownership of outstanding Common Stock after exercising the holder’s Pre-Funded Warrants or Warrants up
to 9.99% of the number of the Company’s Common Stock outstanding immediately after giving effect to the exercise, as such percentage
ownership is determined in accordance with the terms of the Pre-Funded Warrant or Warrant.
Pursuant to the terms of the Purchase Agreements,
the Company agreed to use commercially reasonable efforts to cause a registration statement on Form S-1 providing for the resale by holders
of shares of its Common Stock issuable upon the exercise of the Warrants, to become effective 180 days following the closing of the Registered
Offering and to keep such registration statement effective at all times.
The Offerings are expected to close on or about
July 27, 2022, subject to customary closing conditions.
On July 25, 2022, the Company entered into a co-placement
agency agreement (the “Placement Agent Agreement”) with A.G.P./Alliance Global Partners (“AGP”) and Maxim Group
LLC (“Maxim”, and together with AGP, the “Placement Agents”) pursuant to which the Company engaged AGP and Maxim
as the exclusive placement agents in connection with the Offerings. A.G.P./Alliance Global Partners is acting as lead placement agent and Maxim Group LLC is acting as co-placement agent for the offering
and the concurrent private placement. The Placement Agents agreed to use its reasonable best efforts to
arrange for the sale of the Securities. The Company agreed to pay the Placement Agents a placement agents fee in cash equal to 7.0% of
the gross proceeds from the sale of the Shares and Pre-Funded Warrants to the Investor and 3.5% for sales of Shares to the Affiliate Investors.
In addition to the cash fee, the Company agreed to issue to the Placement Agents warrants to purchase an aggregate of up to 5.0% of the
aggregate number of shares and shares of Common Stock issuable upon exercise of the Pre-Funded Warrants sold in the Offering to the Investor
and an aggregate of up to 2.5% of the aggregate number of shares of Common Stock sold to issuable upon exercise of the Pre-Funded Warrants
sold in the Offering to the Affiliate Investors (the “Placement Agent Warrants”). The Placement Agent Warrants shall be exercisable
commencing on the sixth month anniversary of the issuance date and expiring five years from the date of issuance. The Company also agreed
to reimburse the Placement Agents for all reasonable and documented travel and other out-of-pocket expenses, including the reasonable
fees of legal counsel not to exceed $50,000. The Placement Agent Agreement also contains representations, warranties, indemnification
and other provisions customary for transactions of this nature.
The foregoing summaries of the Placement
Agent Agreement, the Purchase Agreements, the Series A Warrants, the Series B Warrants, the Pre-Funded Warrants and the Placement
Agent Warrant do not purport to be complete and are subject to, and qualified in their entirety by, such documents attached as
Exhibits 1.1, 10.1, 4.1, 4.2, 4.3 and 4.4, respectively, to this Current Report on Form 8-K, which are incorporated herein by
reference.
This Current Report on Form 8-K does not constitute
an offer to sell any securities or a solicitation of an offer to buy any securities, nor shall there be any sale of any securities in
any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
A copy of the opinion of Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C. relating to the legality of the issuance and sale of the Shares is attached as Exhibit 5.1 hereto.