Form S-3/A - Registration statement under Securities Act of 1933: [Amend]
22 November 2023 - 2:15PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on November 22, 2023
Registration
No. 333-275551
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Pre-Effective
Amendment No. 1
to
Form
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
CELCUITY
INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
82-2863566 |
(State
or other jurisdiction |
|
(I.R.S.
Employer |
of
incorporation or organization) |
|
Identification
Number) |
16305
36th Avenue N., Suite 100
Minneapolis,
MN 55446
(763) 392-0123
(Address, including zip code, and telephone number, including area code, of principal executive offices)
Brian
F. Sullivan
Chief Executive Officer
16305 36th Avenue N., Suite 100
Minneapolis,
MN 55446
(763) 392-0123
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Please
send copies of all communications to:
Eric O. Madson
Liz Dunshee
Fredrikson & Byron, P.A.
60 South Sixth Street, Suite 1500
Minneapolis,
Minnesota 55402
(612) 492-7000
Approximate
date of commencement of proposed sale to the public: From time to time after the effectiveness of the Registration Statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box: ☐
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, other than securities offered only in connection with dividend or interest reinvestment plans, 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 registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
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 ☐ |
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 Securities Act. ☐
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date
as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY
NOTE
This
Pre-Effective Amendment No. 1 (the “Amendment”) is being filed to amend the Registration Statement on Form S-3 (File No.
333-275551), originally filed by the registrant on November 14, 2023 (the “Registration Statement”). The sole purpose of
this Amendment is to include Exhibit 10.1, the Securities Purchase Agreement, dated October 18, 2023, by and among the registrant and
the Selling Stockholders, as an exhibit on the Exhibit Index hereto. Accordingly, this Amendment consists only of the cover page of the
Registration Statement, this Explanatory Note, the amended Exhibit Index to the Registration Statement and the signature pages. This
Amendment does not modify any provision of the prospectus contained in Part I or the balance of Part II of the Registration Statement.
Item
16. Exhibits.
The
following is a list of exhibits filed as part of this registration statement.
Exhibit |
|
Description |
4.1
** |
|
Certificate of Incorporation of the Company, as amended, including the Certificate of Designations of Preferences, Rights, and Limitations of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K/A filed with the SEC on April 7, 2023). |
4.2
** |
|
Bylaws of the Company (incorporated by reference to Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on November 13, 2017). |
4.3
** |
|
Specimen Certificate representing shares of common stock of Celcuity Inc. (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1/A filed with the SEC on September 12, 2017). |
4.4
** |
|
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 23, 2023). |
4.5
** |
|
Registration Rights Agreement, dated October 18, 2023, by and among the Company and the Investors named therein (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed with the SEC on October 23, 2023). |
5.1
** |
|
Opinion of Fredrikson & Byron, P.A. relating to the Securities |
10.1 |
|
Securities Purchase Agreement, dated October 18, 2023, by and among the Company and the Investors named therein (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 23, 2023). |
23.1
** |
|
Consent of Fredrikson & Byron, P.A. (included in Exhibit 5.1) |
23.2
** |
|
Consent of Boulay PLLP |
24.1
** |
|
Power of attorney (included on the signature page) |
107
** |
|
Filing Fee Table |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Pre-Effective Amendment No. 1 to the Registration Statement on Form
S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in Minneapolis, Minnesota, on November 22, 2023.
|
CELCUITY
INC. |
|
|
|
|
By: |
/s/
Brian F. Sullivan |
|
|
Brian
F. Sullivan |
|
|
Chairman
and Chief Executive Officer |
|
|
(Principal
Executive Officer) |
Pursuant
to the requirements of the Securities Act of 1933, this Pre-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities and on the dates indicated:
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Brian F. Sullivan |
|
Chairman
and Chief Executive Officer (Principal Executive Officer) |
|
November
22, 2023 |
Brian
F. Sullivan |
|
|
|
|
|
|
|
|
|
/s/
Vicky Hahne |
|
Chief
Financial Officer (Principal Financial and Accounting Officer) |
|
November
22, 2023 |
Vicky
Hahne |
|
|
|
|
|
|
|
|
|
* |
|
Chief
Science Officer, Vice President and Secretary, and Director |
|
November
22, 2023 |
Lance
G. Laing |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
November
22, 2023 |
Richard
E. Buller |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
November
22, 2023 |
David
F. Dalvey |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
November
22, 2023 |
Leo
T. Furcht |
|
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|
|
|
|
|
|
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* |
|
Director |
|
November
22, 2023 |
Richard
J. Nigon |
|
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|
|
|
|
|
|
|
* |
|
Director |
|
November
22, 2023 |
Polly
Murphy |
|
|
|
|
*By
Brian F. Sullivan as Attorney-in-Fact
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