•our ability to raise additional capital;
many•the effectiveness and timeliness of these risks, uncertaintiesour preclinical studies and assumptions underclinical trials, and the heading “Risk Factors.” Additional cautionary statements or discussions of risks, uncertainties, and assumptions that could affect our results or the achievementusefulness of the expectationsdata;
•the adequacy of our capital to support our future operations and our ability to successfully initiate and complete clinical trials and regulatory submissions;
•fluctuations in our operating results;
•the success of current and future license and collaboration agreements;
•our dependence on contract research organizations, vendors and investigators;
•effects of competition and other developments affecting development of products;
•market acceptance of our product candidates;
•protection of intellectual property and avoiding intellectual property infringement;
•product liability; and
•other factors described in forward-looking statements are also contained in the documents we incorporate by reference into this prospectus.
Any forward-looking statement made by us in this prospectus, or any of the documents incorporated by reference in this prospectus speaks only as of the date on which it was made. We expressly disclaim any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in our expectations with regard thereto or any change in events, conditions, or circumstances on which any such statement is based. You should, however, review additional disclosures we make in our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K filedfilings with the SEC.
You should read this prospectus and the documents that we incorporated by reference inhave filed as exhibits to this prospectus completely and with the understanding that our actual future results levels of activity, and performance as well as other events and circumstances may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
Except as required by law, we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or developments. You should not assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements. Before deciding to purchase our securities, you should carefully consider the risk factors discussed and incorporated by reference in this prospectus and the documents incorporated herein.
USE OF PROCEEDS
AllThe net proceeds from any disposition of the shares of our common stock offeredcovered hereby will be received by this prospectus are being registered for the account of the Selling Stockholders.selling stockholders. We will not receive any of the proceeds from any such shares of common stock offered by this prospectus. We will, however, receive the salenet proceeds of these shares. any Warrants or Placement Agent Warrants exercised for cash. We expect to use the proceeds received from the exercise of the Warrants or Placement Agent Warrants, if any, for the development of our product candidates and general working capital purposes.
DIVIDEND POLICY
We have agreed to pay all costs, expenses and fees relating to the registration of the shares ofnever paid cash dividends on our common stock. Moreover, we do not anticipate paying periodic cash dividends on our common stock covered by this prospectus.
for the foreseeable future. We intend to use all available cash and liquid assets in the operation and growth of our business. Any future determination about the payment of dividends will be made at the discretion of our board of directors and will depend upon our earnings, if any, capital requirements, operating and financial conditions and on such other factors as our board of directors deems relevant.
SELLING STOCKHOLDERS
The shares of common stock being offered by the Selling Stockholdersselling stockholders are those previously issued to the selling stockholders, and those issuable to the selling stockholders, upon the exercise of the Warrants. For additional information regarding the issuance of these securities, see “Prospectus Summary—Registered Direct Offering of Common StockWarrants and Concurrent Private Placement of Warrants” on page 3 of this prospectus.Agent Warrants. We are registering the shares of common stock issuable upon exercise of the Warrants in order to permit the Selling Stockholdersselling stockholders to offer the shares for resale from time to time. Except for
Neither the ownership ofselling stockholders, nor any persons having control over the Warrants andselling stockholders, have held any position or office with us or our affiliates within the transactions contemplated pursuant to the Purchase Agreement, the Selling Stockholderslast three years or have not had anya material relationship with us or any of our predecessors or affiliates within the past three years.
years, other than as a result of the ownership of our shares or other securities; provided, however, Wainwright served as our placement agent in connection with the Private Placement, for which Wainwright received compensation.
The following table sets forth certain information with respect to the Selling Stockholders, including (i) the numberselling stockholders may sell some, all or none of their shares of our common stock beneficially owned by the Selling Stockholders prior to this offering based on their respective ownership of shares our common stock and warrants, assuming exercise of all warrants held bystock. We do not know how long the selling stockholders and without regard to any beneficial ownership limitations contained inwill hold the Warrants (ii)or Placement Agent Warrants, whether any will exercise the number of shares that may be offered by each of the Selling Stockholders pursuant to this prospectusWarrants or Placement Agent Warrants, and (iii) each Selling Stockholder’s beneficial ownership after completion of this offering assuming the sale of all ofupon such exercise, how long such selling stockholders will hold the shares of common stock covered bybefore selling them, and we currently have no agreements, arrangements or understandings with the selling stockholders regarding the sale of any of the shares.
The following table presents information regarding the selling stockholders and the shares that each may offer and sell from time to time under this prospectus.
The table is prepared based on information supplied to us by the Selling Stockholders. In computingselling stockholders without regard to ownership limitations set forth in the numberapplicable agreements or other documents relating to such shares, Warrants and Placement Agent Warrants, including (i) all of the shares offered hereby, and (ii) to our knowledge, all other securities held by each of the selling stockholders as of the date hereof, and reflects their respective holdings as of May 18, 2023. Except as noted below, beneficial ownership is determined in accordance with Section 13(d) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 13d-3 thereunder.
The percentage of shares beneficially owned by each Selling Stockholders andprior to the percentage ownership of each Selling Stockholder, (i) shares of common stock subject to warrants held by the Selling Stockholders that are exercisable within 60 days after June 1, 2022, and (ii) shares of common stock issuable upon exercise of the Warrants, are deemed outstanding. The percentage of beneficial ownership after this offering is based on 56,116,243 shares of common stock outstanding on June 1, 2022. The information provided below does not necessarily indicate beneficial ownership for any other purpose.
This prospectus covers the resale of 7,004,5783,352,069 shares of our common stock that may be sold or otherwise disposedactually outstanding as of May 18, 2023.
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Name of Selling Stockholder | | Shares Beneficially Owned Before this Offering(1) | | | Percentage of Outstanding Shares Beneficially Owned Before this Offering(1) | | | Shares to be Sold in this Offering | | | Percentage of Outstanding Shares Beneficially Owned After this Offering(1) | |
Armistice Capital, LLC. (2) | | | 10,943,297 | | | | 78.4% | | | | 10,909,092 | | | | * | |
H.C. Wainwright & Co., LLC (3) | | | 254,545 | | | | 7.1% | | | | 254,545 | | | | - | |
*Represents beneficial ownership of less than one percent.
(1)The ability to exercise the Warrants and Placement Agent Warrants held by the Selling Stockholder. Such shares are issuableselling stockholders is subject to a beneficial ownership limitation that, at the Selling Stockholders upon the exercisetime of the Warrants. The Warrants are exercisable for a period of five years commencing on October 26, 2022 and expiring October 27, 2027. Allinitial issuance of the Warrants have an exercise priceand the Placement Agent Warrants, was capped at either 4.99% or 9.99% beneficial ownership of $0.3399 per share. See “Prospectus Summary—Registered Direct Offering of Common Stockour issued and Concurrent Private Placement of Warrants” for a complete description ofoutstanding common stock (post-exercise). These beneficial ownership limitations may be adjusted up or down (up to 9.99%), subject to providing advanced notice to us. Beneficial ownership as reflected in the Warrants. The Selling Stockholders may sell all, some or none of their shares in this offering, butselling stockholder table reflects the total number of shares potentially issuable underlying the Warrants and percentages set forththe Placement Agent Warrants and does not give effect to these beneficial ownership limitations. Accordingly, actual beneficial ownership, as calculated in accordance with Section 13(d) and Rule 13d-3 thereunder may be lower than as reflected 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.”table.
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| | Beneficial Ownership Before This Offering | | Beneficial Ownership After This Offering |
Selling Stockholder(1) | | Number of Shares Owned | | Shares of Common Stock to be sold in the Offering(2) | | Number of Shares Owned | | Percentage of Outstanding Shares(3) |
Lind Global Fund II LP(4) | | 5,197,007(8) | | 2,227,289(12) | | 2,969,718 | | | 5.29% |
Lincoln Park Capital Fund, LLC(5) | | 4,076,354(9) | | 2,227,289(13) | | 1,849,065 | | | 3.25% |
Intracoastal Capital LLC(6) | | 1,050,000(10) | | 1,050,000 | | 0 | | | 0.00% |
Hudson Bay Master Fund Ltd.(7) | | 2,284,347(11) | | 1,500,000(14) | | 784,347 | | | 1.38% |
(1)This table and the information in the notes below are based upon information supplied by the Selling Stockholders, including reports and amendments thereto filed with the SEC on Schedule 13G.
(2)The actual number of shares of common stock offered hereby and included in the registration statement, of which this prospectus forms a part, includes, in accordance with Rule 416 under the Securities Act, such indeterminate number of additional shares of our common stock as may become issuable in connection with any proportionate adjustment for any stock splits, stock combinations, stock dividends, recapitalizations or similar events with respect to common stock.
(3)Percentages are based on 56,116,243 shares of common stock outstanding on June 1, 2022, assuming the resale of all common stock covered by this prospectus.
(4)These securities are directly held by Lind GlobalArmistice Capital Master Fund II LP (“Lind Global LP”Ltd., a Cayman Islands exempted company (the “Master Fund”), and may be deemed to be indirectly beneficially owned by Lind Global Partners IIby: (i) Armistice Capital, LLC the general partner of Lind Global LP (“Lind Global LLC”Armistice Capital”), as the investment manager of the Master Fund; and Jeff Easton,(ii) Steven Boyd, as the managing memberManaging Member of Lind Global LLC (collectively, with Lind Global LP,Armistice Capital. The warrants are subject to a beneficial ownership limitation of 4.99% or 9.99%, which such limitation restricts the “Lind Global Owners”).selling stockholder from exercising that portion of the warrants that would result in the selling stockholder and its affiliates owning, after exercise, a number of shares of common stock in excess of the beneficial ownership limitation. The amounts and percentages in the table do not give effect to the beneficial ownership limitations. The address of Lind Global LPthe Master Fund is 444c/o Armistice Capital, LLC, 510 Madison Ave,Avenue, 7th Floor, 41, New York, NY 10022.
(5)
(3)TheseH.C. Wainwright & Co., LLC is a registered broker dealer and has a registered address of c/o H.C. Wainwright & Co., LLC, 430 Park Ave, 3rd Floor, New York, NY 10022. H.C. Wainwright & Co., LLC has sole voting and dispositive power over the securities are directly held by Lincoln Park Capital Fund, LLC (“LPC Fund”), and may be deemed to be indirectlyheld. The number of shares beneficially owned by Lincoln Park Capital,prior to this offering consist of shares of common stock issuable upon exercise of Placement Agent Warrants, which were received as compensation for the Private Placement. H.C. Wainwright & Co., LLC acquired the managing memberPlacement Agent Warrants in the ordinary course of LPC Fund (“LPC”)business and, at the time the placement agent warrants were acquired, H.C. Wainwright & Co., Rockledge Capital Corporation, a managing member of LPC (“RCC”), Joshua B. Scheinfeld, the sole shareholder of RCC, Alex Noah Investors, Inc., a managing member of LPC (“ANI”), and Jonathan I Cope, the sole shareholder of ANI. The address of LPC Fund is 440 North Wells, Suite 410, Chicago, Illinois 60654.
(6)These securities areLLC had no agreement or understanding, directly held by Intracoastal Capital LLC (“Intracoastal”), and may be deemedor indirectly, with any person to be indirectly beneficially owned by Mitchell P. Kopin, a manager of Intracoastal, and Daniel B. Asher, a manager of Intracoastal (collectively, with Intracoastal, the “Intracoastal Owners”). Each of the Intracoastal Owners disclaims beneficial ownership of the securities except to the extent of their respective pecuniary interests therein. The address of Intracoastal is 245 Palm Trail, Delray Beach, Florida 33483.
(7)These securities are directly held by Hudson Bay Master Fund Ltd. (“Hudson Bay Fund”), and may be deemed to be indirectly beneficially owned by Hudson Bay Capital Management LP, the investment manager of Hudson Bay Fund (“Hudson Bay LP”), Hudson Bay Capital GP LLC, the general partner of Hudson Bay LP (“Hudson Bay GP”), and Sander Gerber, the managing member of Hudson Bay GP (collectively with Hudson Bay Fund, the “Hudson Bay Owners”). Each of the Hudson Bay Owners disclaims beneficial ownership of the securities except to the extent of their respective pecuniary interestsdistribute such securities.
therein. The address of Hudson Bay Fund is 28 Havemeyer Place, Second Floor, Greenwich, Connecticut 06830.
(8)Consists of (i) 2,969,718 shares of common stock, and (ii) warrants to purchase up to 2,227,289 shares of common stock.
(9)Consists of (i) 1,044,718 shares of common stock, and (ii) warrants to purchase up to 3,031,636 shares of common stock.
(10)Consists of warrants to purchase up to 1,050,000 shares of common stock.
(11)Consists of warrants to purchase up to 2,284,347 shares of common stock.
(12)Consists of warrants to purchase up to 2,227,289 shares of common stock.
(13)Consists of Warrants to purchase up to 2,227,289 shares of common stock.
(14)Consists of Warrants to purchase up to 1,500,000 shares of common stock.
PLAN OF DISTRIBUTION
The Selling StockholdersEach selling stockholder of the securities and any of their respective pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their securities covered hereby on the Nasdaq Capitalprincipal 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. The Selling StockholdersA selling stockholder may use any one or more of the following methods when selling securities:
•ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
•block trades in which the 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 Stockholdersselling 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 Stockholdersselling 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 Stockholdersselling stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the Selling Stockholdersselling 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 2440;2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA IM-2440.
Rule 2121.
In connection with the sale of the securities or interests therein, the Selling Stockholdersselling 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 Stockholdersselling 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 Stockholdersselling 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-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholdersselling 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 of the Selling Stockholdersselling stockholder has informed the Companyus 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 incurred by us incident to the registration of the securities. We have agreed to indemnify the Selling Stockholdersselling stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
We agreed to keep this prospectus effective until nonethe 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 us 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 Selling Stockholders owns any Warrantssecurities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any sharesother rule of our common stock issuable upon exercise of the Warrants.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 Stockholdersselling 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 Stockholdersselling stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholdersselling 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).
DESCRIPTION OF CAPITAL STOCK
The summary of general terms and provisions of our capital stock set forth below does not purport to be complete and is subject to and qualified by reference to our Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) and Amended and Restated Bylaws (the “Bylaws,” and together with the Certificate of Incorporation, the “Charter Documents”), each of which is included as an exhibit to our most recent Annual Report on Form 10-K filed with the SEC and incorporated by reference herein. For additional information, please read the Charter Documents and the applicable provisions of the Delaware General Corporation Law (the “DGCL”).
Authorized Capital Stock
We are authorized to issue up to 110,000,000 shares, of which (i) 100,000,000 have been designated common stock, par value $0.0001 per share, and (ii) 10,000,000 have been designated preferred stock, par value $0.0001 per share. As of May 18, 2023, there were 3,352,069 shares of our common stock outstanding, held by 152 stockholders of record. This figure does not reflect the number of beneficial owners of shares of our common stock as a single stockholder of record often holds shares in nominee name (also referred to as, in “street name”) on behalf of multiple beneficial owners.
Common Stock
Voting Rights
The holders of shares of common stock have the exclusive power to vote on all matters presented to our stockholders unless Delaware law or the certificate of designation for an outstanding series of preferred stock gives the holders of that series of preferred stock the right to vote on certain matters. Each holder of shares of common stock is entitled to one vote per share.
When a quorum is present at any meeting, the vote of the holders of a majority of the voting power of the common stock entitled to vote and present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the Charter Documents or by law, a different vote is required in which case such express provision shall govern and control the decision of such question. Directors are elected by a plurality of the voting power of the shares present in person or represented by proxy and entitled to vote on the election of directors at a meeting at which a quorum is present, and stockholders are not entitled to cumulate their votes for the election of directors.
Dividend Rights
Subject to any prior rights of any preferred stock then outstanding, the holders of shares of common stock are entitled to receive dividends ratably out of funds legally available, when and if declared by our board of directors.
No Preemptive or Similar Rights
The common stock is not entitled to preemptive rights and is not subject to conversion, redemption or sinking fund provisions.
Right to Receive Liquidation Distributions
If we become subject to a liquidation, dissolution or winding-up, the assets legally available for distribution to our stockholders would be distributable ratably among the holders of the common stock and any participating preferred stock outstanding at that time, subject to prior satisfaction of all outstanding debt and liabilities and the preferential rights and payment of liquidation preferences, if any, on any outstanding shares of preferred stock.
Outstanding Stock Options and Restricted Stock Units
As of March 31, 2023, we had outstanding options to purchase 107,128 shares of our common stock at a weighted-average exercise price of $23.67 per share, pursuant to our 2015 Equity Incentive Plan. As of March 31, 2023, we had outstanding restricted stock units to acquire 12,220 shares of our common stock pursuant to our 2015 Equity Incentive Plan. As of March 31, 2023, there were 55,365 shares of our common stock reserved for future issuance under our 2015 Equity Incentive Plan.
2015 Employee Stock Purchase Plan
As of March 31, 2023, there were 4,004 shares of our common stock reserved for future issuance under the Employee Stock Purchase Plan.
Outstanding Warrants
As of March 31, 2023, there were the following warrants to purchase shares of our common stock outstanding:
•warrants to purchase 1,717 shares of our common stock issued to Wedbush Securities Inc., with an exercise price of $472.50 per share;
•warrants to purchase 151,341 shares of our common stock issued in connection with our public offering completed on February 11, 2020, with an exercise price of $28.75 per share;
•warrants to purchase 158,563 shares of our common stock issued in a private placement completed on December 11, 2020, with an exercise price of $29.55 per share;
•warrants to purchase 5,708 shares of common stock that were distributed to holders of rights that were granted under that certain merger agreement that we entered into with Salarius Pharmaceuticals, LLC on January 3, 2019, with an exercise price of $379.25 per share; and
•warrants to purchase 280,183 shares of our common stock issued in connection with that certain offering completed on April 26, 2022, with an exercise price of $8.50 per share.
On May 16, 2018, we issued (i) Pre-Funded Warrants to purchase up to 3,306,364 shares of our common stock, (ii) Series A-1 Warrants to purchase up to 3,636,364 shares of our common stock, (iii) Series A-2 Warrants to purchase up to 3,636,364 shares of our common stock, and (i) Placement Agent Warrants to purchase up to 254,545 shares of our common stock. Each Series A-1 Warrant is exercisable for a period of five and one-half (5.5) years from the issuance date at an exercise price of $1.40 per share. Each Series A-2 Warrant is exercisable for a period of eighteen (18) months from the issuance date at an exercise price of $1.40 per share. Each Pre-Funded Warrant was sold in lieu of shares of common stock, are exercisable immediately upon issuance, have an exercise price of $0.0001 per share and expire when exercised in full. Under the terms of the Warrants and the Placement Agent Warrants, the investor may not exercise the warrants to the extent such exercise would cause the investor, together with its affiliates and attribution parties, to beneficially own a number of shares of our common stock which would exceed 4.99% (or, at such investor’s option upon issuance, 9.99%), of our then outstanding common stock following such exercise, excluding for purposes of such determination shares of common stock issuable upon exercise of such warrants which have not been exercised.
Anti-Takeover Provisions in Charter Documents
Certain provisions of the Charter Documents, which are summarized below, may have the effect of delaying, deferring or preventing another person from acquiring control of us. These provisions may discourage takeovers, coercive or otherwise, and are also designed, in part, to encourage persons seeking to acquire control of our company to negotiate first with our board of directors. We believe that the benefits of increased protection of our potential ability to negotiate with an unfriendly or unsolicited acquirer outweigh the disadvantages of discouraging a proposal to acquire us because negotiation of these proposals could result in an improvement of their terms. These provisions include the following:
Board of Directors Vacancies. Pursuant to the Charter Documents, our board of directors may fill vacant directorships. In addition, directors may only be removed for cause and only upon the affirmative vote of at least sixty-six and two-thirds percent of the voting power of outstanding voting stock. In addition, the number of directors constituting the board of directors may be set only by a resolution adopted by a majority vote of the board of directors. These provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control or management of our company and will make it more difficult to change the composition of the board of directors, which will promote continuity of management.
Classified Board. The Charter Documents provide that our board of directors is classified into three classes of directors, with each class serving three-year staggered terms. A third-party may be discouraged from making a tender offer or otherwise attempting to obtain control of our company as it is more difficult and time-consuming for stockholders to replace a majority of the directors on a classified board of directors.
Stockholder Action; Special Meeting of Stockholders. Pursuant to Section 228 of the DGCL, any action required to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of stock entitled to vote thereon were present and voted, unless the Certificate of Incorporation provides otherwise. The Certificate of Incorporation provides that stockholders may not take action by written consent but may only take action at annual or special meetings of stockholders. As a result, a holder controlling a majority of our capital stock would not be able to amend the Bylaws or remove directors without holding a meeting of stockholders called in accordance with the Charter Documents. The Bylaws provides that special meetings of the stockholders may be called only upon a resolution approved by a majority of the total number of directors that we would have if there were no vacancies. These provisions might delay the ability of our stockholders to force consideration of a proposal or for stockholders controlling a majority of our capital stock to take any action, including the removal of directors.
Advance Notice Requirements for Stockholder Proposals and Director Nominations. The Bylaws provide advance notice procedures for stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders. The Bylaws specify certain requirements regarding the form and content of a stockholder’s notice and prohibit the conduct of any business at a special meeting other than as specified in the notice for such meeting. These provisions might preclude stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders if the proper procedures are not followed. These provisions may also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our company.
No Cumulative Voting. The DGCL provides that stockholders are not entitled to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. The Certificate of Incorporation does not provide for cumulative voting.
Amendment of Charter Provisions and Bylaws. The Charter Documents provides that the Bylaws may be adopted, amended, altered or repealed by either (i) a vote of a majority of the total number of directors of the board of directors or (ii) in addition to any other vote otherwise required by law, the affirmative vote of the holders of at least sixty-six and two-thirds percent of the voting power of all of the then outstanding shares of capital stock entitled to vote generally in the election of directors.
Our Charter Documents also provide that the provisions of the Certificate of Incorporation relating to provisions relating to the management of the business, board of directors, director liability, indemnification and forum selection., may only be amended, altered, changed or repealed by the affirmative vote of the holders of at least sixty-six and two-thirds percent of the voting power of all of our outstanding shares of capital stock entitled to vote generally in the election of directors, voting together as a single class.
Issuance of Undesignated Preferred Stock. The board of directors has the authority, without further action by our stockholders, to designate and issue shares of preferred stock with rights and preferences, including super voting, special approval, dividend or other rights or preferences on a discriminatory basis. The existence of authorized but unissued shares of undesignated preferred stock would enable the board of directors to render more difficult or to discourage an attempt to obtain control of our company by means of a merger, tender offer, proxy contest or other means.
Business Combinations with Interested Stockholders. We are subject to the provisions of Section 203 of the DGCL. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a business combination, such as a merger, with an interested stockholder (i.e., subject to certain exceptions, a person or group owning 15% or more of the corporation’s voting stock) for a period of three years following the date the person became an interested stockholder, unless (with certain exceptions) the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner.
Forum Selection. The Charter Documents provide that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will, to the fullest extent permitted by applicable law, be the sole and exclusive forum for:
•any derivative action or proceeding brought on behalf of our company;
•any action asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of our company to us or our stockholders;
•any action asserting a claim of breach of a fiduciary duty owed by any director, officer, or other employee of our company to us or our stockholders; and
•any action asserting a claim against us governed by the internal affairs doctrine.
in each such case, subject to such Court of Chancery of the State of Delaware having personal jurisdiction over the indispensable parties named as defendants therein. The Charter Documents also provides that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to have notice of, and to have consented to, this forum selection provision.
Although these provisions benefit us by providing increased consistency in the application of Delaware law for the specified types of actions and proceedings, the provisions may have the effect of increasing the costs of and discouraging lawsuits against our directors, officers, employees and agents. The enforceability of similar exclusive forum provisions in other companies’ charters has been challenged in legal proceedings, and it is possible that, in connection with one or more actions or proceedings described above, a court could rule that this provision in the Certificate of Incorporation is inapplicable or unenforceable. For example, the choice of forum provisions summarized above are not intended to, and would not, apply to suits brought to enforce any liability or duty created by the Exchange Act, or other claim for which the federal courts have exclusive jurisdiction. Additionally, there is uncertainty as to whether our choice of forum provisions would be enforceable with respect to suits brought to enforce any liability or duty created by the Securities Act, or other claims for which the federal courts have concurrent jurisdiction, and in any event stockholders will not be deemed to have waived our compliance with federal securities laws and rules and regulations thereunder.
Listing
OurThe common stock is listed on the Nasdaq Capital Market under the symbol “SLRX.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with itinto this prospectus, which means that we can disclose important information to you by referring you to thoseanother document filed separately with the SEC. The SEC file number for the documents instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be part ofin this prospectus and lateris 001-36812. The documents incorporated by reference into this prospectus contain important information that we file with the SEC will automatically update and supersede this information. We incorporateyou should read about us.
The following documents are incorporated by reference the documents listed below (other than any portions of any such documents that are not deemed “filed” under the Exchange Act in accordance with the Exchange Act and applicable SEC rules):
into this document:
•our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (filed2022, filed on March 25, 2022);
27, 2023;
•our Quarterly Report on Form 10-Qfor the quarter ended March 31, 2022 (filed2023 filed on May 12, 2022);11, 2023;
•those portions of our Definitive Proxy Statement on Schedule 14A filed on May 1, 2023 that are deemed “filed” with the SEC;
•our Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits accompanying such reports that relate to such items) filed with the SEC on January 10, 2023 and March 13, 2022, April 1, 2022, April 22, 2022,2023 and April 26, 2022;May 16, 2023; and
•the description of our common stock contained in our Registration Statement on Form 8-A filed on January 23, 2015, as updated by Exhibit 4.11 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, including any amendmentamendments or reportreports filed for the purpose of updating such description.
We also incorporate by reference into this prospectus all additional documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that we fileare related to such items) that are filed by us with the SEC under the terms of Sectionpursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act that are made after the initial filing date of the initial registration statement of which this prospectus is a part and prior to the effectiveness of thesuch registration statement as well as betweenand all documents that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus andbut prior to the termination of any offering of securities offered by this prospectus (excluding any portions thereof furnished by the Registrant, including but not limited to information furnished under Item 2.02offering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Item 7.01 and any exhibits relating to Item 2.02 or Item 7.01 furnished under Item 9.01 ofCurrent Reports on Form 8-K, and any certification required by 18 U.S.C. § 1350).
as well as proxy statements.
Any statement contained in this Registration Statementherein or in a document incorporated or deemed to be incorporated by reference ininto this Registration Statement shalldocument will be deemed to be modified or superseded for purposes of this Registration Statementthe document to the extent that a statement contained in this Registration Statementdocument or in any other subsequently filed document that is deemed to be incorporated by reference ininto this Registration Statementdocument modifies or supersedes suchthe statement.
You may request, orally or in writing, a copy of any or all of the documents incorporated herein by reference but not delivered with this prospectus,reference. These documents will be provided to you at no cost, by writing or telephoning uscontacting: Salarius Pharmaceuticals, Inc., Chief Financial Officer, at the following address and number: 2450 Holcombe Blvd., Suite X, Houston, TX 77021, and77021. In addition, copies of any or all of the documents incorporated herein by reference may be accessed at our telephone numberwebsite at www.salariuspharma.com. The information on such website is (832) 834-6992. We will not however, send exhibits to those documents, unless the exhibits are specifically incorporated by reference in those documents.and is not a part of this prospectus.
WHERE YOU CAN FIND MORE INFORMATION
We filed with the SEC a registration statement under the Securities Act for the securities offered by this prospectus. This prospectus does not contain all of the information in the registration statement and the exhibits and schedule that were filed with the registration statement. For further information with respect to us and our securities, we refer you to the registration statement and the exhibits and schedule that were filed with the registration statement. Statements contained in this prospectus about the contents of any contract or any other document that is filed as an exhibit to the registration statement are not necessarily complete, and we refer you to the full text of the contract or other document filed as an exhibit to the registration statement. The SEC maintains a website that contains reports, proxy and information statements, and other information regarding registrants that file electronically with the SEC. The address of the website is www.sec.gov.
We file periodic reports under the Exchange Act, including annual, quarterly and special reports, and other information with the SEC. These periodic reports and other information are available for inspection and copying at the SEC regional offices, public reference facilities and on the website of the SEC referred to above.
We make available free of charge on or through our internet website our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. The information found on our website, www.salariuspharma.com, other than as specifically incorporated by reference in this prospectus, is not part of this prospectus.
such materials to the SEC. You may obtain a free copy of these reports in the “Investors” section of our website, www.salariuspharma.com.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the shares of our common stock. This prospectus, which constitutes part of the registration statement, does not include all of the information contained in the registration statement and the exhibits, schedules and amendments to the registration statement. For further information with respect to us and our common stock, we refer you to the registration statement and to the exhibits and schedules to the registration statement. Statements contained in this prospectus about the contents of any contract, agreement or other document are not necessarily complete, and, in each instance, we refer you to the copy of the contract, agreement or other document filed as an exhibit to the registration statement. Each of these statements is qualified in all respects by this reference. You should rely only on information contained in, or incorporated by reference into, this prospectus. We have not authorized anyone to provide you with information different from that contained in this prospectus or incorporated by reference in this prospectus.
The SEC maintains an Internet website, which is located at http://www.sec.gov, that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC. You may access the registration statement, of which this prospectus forms a part, at the SEC’s Internet website. Our reports on Forms 10-K, 10-Q and 8-K, and amendments to those reports, are also available for download, free of charge, as soon as reasonably practicable after these reports are filed with the SEC, at our website at www.salariuspharma.com. The content contained in, or that can be accessed through, our website is not a part of this prospectus.
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11,163,637 Shares of Common Stock |
____________________
PROSPECTUS
____________________
, 2023
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses to be incurred in connection with the offering described in this registration statement,Registration Statement, other than underwriting discounts and commissions, all of which will be paid by the Registrant.us. All amounts are estimates except the Securities and Exchange Commission, or SEC registration fee.
| | | | | | | | |
| | |
| | Amount |
SEC registration fee | $ | 221 |
Accounting fees and expenses | 10,000 |
Legal fees and expenses | 25,000 |
Printing and engraving expenses | 5,000 |
Miscellaneous | 4,779 |
Total | $ | 45,000 |
| | | | | |
| |
| Amount |
SEC registration fee | $1,778 |
Accountant’s fees and expenses | 10,000 |
Legal fees and expenses | 50,000 |
Pricing and miscellaneous expenses | 3,000 |
Total expenses | $ 64,778 |
| |
Item 15. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law or the (the “DGCL”) permits a corporation to eliminate the personal liability of its directors or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his or her 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. Our certificate of incorporation provides that no director shall be personally liable to us or our stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty.
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'attorneys’ fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he or she 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 he or she 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 his or her 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 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 indemnification for such expenses which the Court of Chancery or such other court shall deem proper.
Our certificate of incorporation provides that we will indemnify each person who was or is a party or threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of us), by reason of the fact that he or she is or was, or has agreed to become, our director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (all such persons being referred to as an Indemnitee), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys'attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding and any appeal therefrom if such Indemnitee acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, our best interests, and, with respect to any criminal action or proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful.
Our certificate of incorporation also provides that we will indemnify any Indemnitee who was or is a party to an action or suit by or in the right of us to procure a judgment in our favor by reason of the fact that the Indemnitee is or was, or has agreed to become, our director or officer, or is or was serving, or has agreed to serve, at our request as a director, officer, partner, employee or trustee or, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys'attorneys’ fees) and, to the extent permitted by law, amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding, and any appeal therefrom, if the Indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, our best interests, except that 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 us, unless a court determines that, despite such adjudication but in view of all of the circumstances, he or she is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that any Indemnitee has been successful, on the merits or otherwise, he or she will be indemnified by us against all expenses (including attorneys'attorneys’ fees) actually and reasonably incurred by him or her or on his or her behalf in connection therewith. If we do not assume the defense, expenses must be advanced to an Indemnitee under certain circumstances.
We maintain a general liability insurance policy that covers certain liabilities of our directors and officers arising out of claims based on acts or omissions in their capacities as directors or officers.
Insofar as the forgoingforegoing provisions permit indemnification of directors, executive officers, or persons controlling us for liability arising under the Securities Act of 1933, as amended, or the Securities Act, we have 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.
Item 16. Exhibits and Financial Statement Schedules.
The exhibits to the registration statement are listed in
(a) Exhibits
See the Exhibit Index attached hereto andList below, which is incorporated by reference herein.
The undersigned Registrant hereby undertakes:
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(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
| | | | | | | | | | | | | | | | | |
Exhibit Number | (a)Exhibit Title | to include any prospectus requiredFiled with this Form S-3 | Incorporated by Section 10(a)(3)Reference |
Form | File No. | Date Filed |
3.1 | | | 8-K | 001-36812 Exhibit 3.1 | 02/09/2015 |
3.2 | | | 8-K | 001-36812 Exhibit 3.1 | 07/22/2019 |
3.3 | | | 8-K | 001-36812 Exhibit 3.2 | 07/22/2019 |
3.4 | | | 8-K | 001-36812 Exhibit 3.2 | 07/22/2019 |
3.5 | | | 8-K | 001-36813 Exhibit 3.1 | 04/01/2022 |
4.1 | | | S-1 | 333-201276 Exhibit 4.1 | 12/29/2014 |
4.2 | | | S-1/A | 333-235879 Exhibit 4.8 | 02/06/2020 |
4.3 | | | 8-K | 001-36812 Exhibit 4.1 | 02/12/2020 |
4.4 | | | 8-K/A | 001-36812 Exhibit 4.1 | 12/11/2020 |
4.5 | | | 8-K | 001-36812 Exhibit 4.1 | 07/01/2021 |
4.6 | | | 8-K | 001-36812 Exhibit 4.1 | 04/22/2022 |
4.7 | | | 8-K | 001-36812 Exhibit 4.1 | 05/16/2023 |
4.8 | | | 8-K | 001-36812 Exhibit 4.2 | 05/16/2023 |
4.9 | | | 8-K | 001-36812 Exhibit 4.3 | 05/16/2023 |
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| (b) | to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
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5.1 | (c) | to include any material information with respect to the planX | | | |
10.1 | | | 8-K | 001-36812 Exhibit 10.1 | 05/16/2023 |
10.2 | | | 8-K | 001-36812 Exhibit 10.2 | 05/16/2023 |
23.1 | | X | | | |
23.2 | | X | | | |
24.1 | Power of attorney (included on Signature Page) | X | | | |
107 | | X | | | |
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;
(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 the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the “Commission”) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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 paragraphs (1)(a)(i), (1)(b)(ii) and (1)(c)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrantregistrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As
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(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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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;The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(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. |
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(4) | That, for the purpose of determining liability under the Securities Act to any purchaser: |
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| (a) | Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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| (b) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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| (c) | That, for purposes of determining any liability under the Securities Act, each filing of Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement 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.
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| (d) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a Registrant of expenses incurred or paid by a director, officer or controlling person of a 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, that Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the registrant undertakes that in a primary offering of securities of the 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 registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
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| (a) | Any preliminary prospectus or prospectus of the registrant relating to the offering required to be filed pursuant to Rule 424; |
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| (b) | Any free writing prospectus relating to the offering prepared by or on behalf of the registrant or used or referred to by the registrant; |
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| (c) | The portion of any other free writing prospectus relating to the offering containing material information about registrant or its securities provided by or on behalf of the registrant; and |
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| (d) | Any other communication that is an offer in the offering made by a registrant to the purchaser. |
EXHIBIT INDEX
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| EXHIBIT
NO.
| | IDENTIFICATION OF EXHIBIT | | |
| 4.1 | | | |
| 4.2 | | | |
| 4.3 | | | |
| 4.4 | | | |
| 4.5 | | | |
| 5.1 | | | |
| 10.1 | | | |
| 23.1 | | | |
| 23.2 | | | | | | | | |
| 24.1 | | | |
| 107 | | | |
SIGNATURES
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on formForm S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned thereunto duly authorized in the city of Houston, State of Texas, on June 10, 2022.this 26th day of May, 2023.
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SALARIUS PHARMACEUTICALS, INC. |
| |
By: | | /s/ MarkDavid J. RosenblumArthur |
Name: | | MarkDavid J. RosenblumArthur |
Title: | | President and Chief FinancialExecutive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David J. Arthur and Mark J. Rosenblum as his or her true and lawful attorney-in-fact and agent, with the full power of substitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments), and any other registration statements for the same offering pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| | | | | | | | | | | |
Signature | | Title | Date |
/s//s/ William K. McVicar | | Chairman of the Board | June 10, 2022May 26, 2023 |
William K. McVicar | | | |
| | Director, President & Chief Executive Officer | June 10, 2022 |
/s//s/ David J. Arthur | | (Director, President and Chief Executive Officer (Principal Executive Officer)Officer)
|
May 26, 2023 |
David J. Arthur | | | |
| | Chief Financial Officer | |
/s//s/ Mark J. Rosenblum | | (Chief Financial Officer (Principal Financial and Accounting Officer)Officer)
| June 10, 2022May 26, 2023 |
Mark J. Rosenblum | | | |
| | | |
/s//s/ Tess Burleson | | Director | June 10, 2022May 26, 2023 |
Tess Burleson | | | |
| | | |
/s//s/ Arnold Hanish | | Director | June 10, 2022May 26, 2023 |
Arnold Hanish | | | |
| | | |
/s//s/ Paul Lammers | | Director | June 10, 2022May 26, 2023 |
Paul Lammers | | | |
| | | |
/s//s/ Jon Lieber | | Director | June 10, 2022May 26, 2023 |
Jon Lieber | | | |
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/s//s/ Bruce McCreedy | | Director | June 10, 2022May 26, 2023 |
Bruce McCreedy | | | |