LIPO Lipella Pharmaceuticals Inc

 

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		2834		20-2388040
(State or other jurisdiction of incorporation or organization)		(Primary Standard Industrial Classification Code Number)		(I.R.S. Employer Identification Number)

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 ☒

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

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

 

	Page
ABOUT THIS PROSPECTUS	1
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS	2
INDUSTRY AND MARKET DATA	2
PROSPECTUS SUMMARY	3
ABOUT THIS OFFERING	5
RISK FACTORS	6
OCTOBER 2023 PRIVATE PLACEMENT TRANSACTIONS	11
SELLING STOCKHOLDERS	12
USE OF PROCEEDS	14
DIVIDEND POLICY	15
PRINCIPAL STOCKHOLDERS	16
DESCRIPTION OF SECURITIES THAT THE SELLING STOCKHOLDERS ARE OFFERING	19
PLAN OF DISTRIBUTION	20
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITY	22
LEGAL MATTERS	22
EXPERTS	22
WHERE YOU CAN FIND MORE INFORMATION	22
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE	23

 

 

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.

 

 

 

 

 

 

 

 

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:

 

	●	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;
	●	our current inability to pay dividends or other distributions;

 

 

	●	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;
	●	changes in market valuations of similar companies;
	●	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;
	●	additions or departures of key personnel;
	●	actions by institutional or significant stockholders;
	●	short interest in our Common Stock or our other securities and the market response to such short interest;
	●	the dramatic increase in the number of individual holders of our Common Stock and their participation in social media platforms targeted at speculative investing;
	●	speculation in the press or investment community about our company or industries in which we operate;
	●	strategic actions by us or our competitors, such as acquisitions or other investments;
	●	legislative, administrative, regulatory or other actions affecting our business, our industry, including positions taken by the FDA;
	●	investigations, proceedings, or litigation that involve or affect us; and
	●	the occurrence of any of the other risk factors included in this registration statement of which this prospectus forms a part; and
	●	general market and economic conditions.

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;
	●	the market price of our Common Stock;
	●	our ability to obtain financing for the continuation of our operations;

 

	●	the number of investors that will consider investing in our Common Stock;
	●	the availability of information concerning the trading prices and volume of our Common Stock; and
	●	the number of broker-dealers willing to execute trades in shares of our Common Stock.

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;
	●	impeding a merger, consolidation, takeover or other business combination involving us; or
	●	discouraging a potential acquirer from making a tender offer or otherwise attempting to obtain control of us.

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:

 

 

	●	allow the authorized number of our directors to be changed only by resolution of our board of directors;
	●	establish advance notice requirements for stockholder proposals that can be acted on at stockholder meetings and nominations to our board of directors;
	●	require that stockholder actions must be effected at a duly called stockholder meeting and prohibit actions by our stockholders by written consent;
	●	limit who may call special stockholder meetings;
	●	authorize our board of directors to issue capital stock without stockholder approval; and
	●	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	%

 

*	Less than 1%.

(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 Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on March 31, 2023;

●	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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