As
filed with the Securities and Exchange Commission on October 17, 2023
Registration
No. 333-268934
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT
NO. 4
TO
FORM
S-1
REGISTRATION
STATEMENT
Under
The
Securities Act of 1933
ZYVERSA
THERAPEUTICS, INC.
(Exact
name of Registrant as specified in its charter)
Delaware |
|
2834 |
|
86-2685744 |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Primary
Standard Industrial
Classification
Code Number) |
|
(I.R.S.
Employer
Identification
Number) |
2200
N. Commerce Parkway, Suite 208
Weston,
FL 33326
(754)
231-1688
(Address,
including zip code, and telephone number, including
area
code, of Registrant’s principal executive offices)
Stephen
C. Glover
Chief
Executive Officer
ZyVersa
Therapeutics, Inc.
2200
N. Commerce Parkway, Suite 208
Weston,
FL 33326
(754)
231-1688
(Name,
address, including zip code, and telephone number, including
area
code, of agent for service)
Copies
of all communications, including communications sent to the agent for service, to:
Faith
L. Charles
Todd
Mason
Thompson
Hine LLP
300
Madison Avenue, 27th Floor
New
York, New York 10017-6232
Phone:
(212) 344-5680
Fax:
(212) 344-6101
Approximate
date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
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, 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 Commission acting pursuant to said Section 8(a) may determine.
EXPLANATORY
NOTE
This
Amendment No. 4 to ZyVersa Therapeutics, Inc.’s Registration Statement on Form S-1 (File No. 333-268934) (the “Registration
Statement”) is being filed solely for the purpose of filing Exhibits 5.1 and 23.2 (which is included in Exhibit 5.1). Accordingly,
this Amendment No. 4 consists only of the facing page, this explanatory note, Item 16 of Part II of the Registration Statement, the signature
page, Exhibits 5.1 and 23.2 (which is included in Exhibit 5.1) and the Exhibit Index. The remainder of the Registration Statement is
unchanged and therefore has not been included in this Amendment No. 4.
Item
16. Exhibits and Financial Statement Schedules.
The
financial statements filed as part of this registration statement are listed in the index to the financial statements immediately preceding
such financial statements, which index to the financial statements is incorporated herein by reference.
Exhibit
Number |
|
Description |
2.1+ |
|
Business Combination Agreement, dated as of July 20, 2022, by and among Larkspur Health Acquisition Corp., Larkspur Merger Sub Inc., Stephen Glover and ZyVersa Therapeutics, Inc. (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on July 22, 2022). |
3.1 |
|
Second Amended and Restated Certificate of Incorporation of ZyVersa Therapeutics, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
3.2 |
|
Second Amended and Restated Bylaws of ZyVersa Therapeutics, Inc. (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
3.3 |
|
Certificate of Designation relating to the Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.3 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
3.4 |
|
Certificate of Designation relating to the Series B Convertible Preferred Stock (incorporated by reference to Exhibit 3.4 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
4.1 |
|
Specimen Class A Common Stock Certificate of ZyVersa Therapeutics, Inc. (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
4.2 |
|
Form of Warrant issued by the Company in connection with the Public Warrants (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
4.3 |
|
Form of Warrant issued by the Company in connection with the Private Placement Warrants (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
4.4 |
|
Form of Warrant issued by the Company to each PIPE Investor (incorporated by reference to Exhibit 4.4 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
4.5 |
|
Form of Bridge Warrant issued by the Company (incorporated by reference to Exhibit 4.5 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
4.6 |
|
Form of Warrant pursuant to License Agreement, dated April 18, 2019, by and between InflamaCORE, LLC and Variant Pharmaceuticals, Inc. (incorporated by reference to Exhibit 4.3 to the Company’s Form S-4 filed with the SEC on October 21, 2022). |
4.7 |
|
Form of Warrant pursuant to License Agreement, dated December 15, 2015, by and between L&F Research LLC and Variant Pharmaceuticals, Inc. (incorporated by reference to Exhibit 4.4 to the Company’s Form S-4 filed with the SEC on October 21, 2022). |
4.8 |
|
Form of Warrant issued by the Company in connection with the Offering (incorporated by reference to Exhibit 4.8 to the Company’s Registration Statement filed with the SEC on April 24, 2023) |
4.9 |
|
Form of Pre-Funded Warrant issued by the Company in connection with the Offering (incorporated by reference to Exhibit 4.9 to the Company’s Registration Statement filed with the SEC on April 24, 2023) |
4.10 |
|
Form of Pre-Funded Warrant (incorporated by reference to Exhibit 4.11 to the Company’s Amendment No. 2 to Form S-1 Registration Statement, File No. 333-272657, filed with the SEC on July 7, 2023). |
4.11 |
|
Form of Common Warrant (incorporated by reference to Exhibit 4.10 to the Company’s Amendment No. 2 to Form S-1 Registration Statement, File No. 333-272657, filed with the SEC on July 7, 2023). |
4.12 |
|
Warrant Amendment (incorporated by reference to Exhibit 4.8.1 to the Company’s Post-Effective Amendment No. 1 to Form S-1 Registration Statement, File No. 333-272657, filed with the SEC on July 26, 2023). |
4.13 |
|
Form of Inducement Warrant (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on September 14, 2023). |
5.1* |
|
Opinion of Thompson Hine LLP |
10.1 |
|
Amended and Restated Registration Rights Agreement, dated as of December 12, 2022, by and among the Company and each of the purchasers identified on the signature pages thereto (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
10.2 |
|
Form of Shareholder Support Agreement, dated as of July 20, 2022, by and among Larkspur Health Acquisition Corp., ZyVersa Therapeutics, Inc. and certain of the stockholders of ZyVersa Therapeutics, Inc., identified on the signature pages thereto (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed with the SEC on July 22, 2022). |
10.3 |
|
Form of Lock-Up Agreement, dated as of July 20, 2022, by and among the Company and the parties listed on Schedule A thereto (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed with the SEC on July 22, 2022). |
10.4 |
|
Registration Rights Agreement, relating to Series A Preferred Stock, dated as of December 12, 2022, by and among the Larkspur Health Acquisition Corp. and each of the PIPE Investors (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
10.5 |
|
Registration Rights Agreement, relating to Series B Preferred Stock, dated as of December 12, 2022, by and among the Company and each purchaser identified on the signature pages thereto (incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
10.6 |
|
Business Combination Advisor Agreement, dated December 20, 2021, by and between the Company and A.G.P (incorporated by reference to Exhibit 1.2 to the Company’s Current Report on Form 8-K filed with the SEC on December 23, 2021). |
10.7+† |
|
License Agreement, dated April 18, 2019, by and between InflamaCORE, LLC and Variant Pharmaceuticals, Inc. (incorporated by reference to Exhibit 10.14 to the Company’s Form S-4 filed with the SEC on October 21, 2022). |
10.8+† |
|
License Agreement, dated December 15, 2015, by and between L&F Research LLC and Variant Pharmaceuticals, Inc. (incorporated by reference to Exhibit 10.15 to the Company’s Form S-4 filed with the SEC on October 21, 2022). |
10.8.1 |
|
Second Amendment to Waiver of Certain Rights under License Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 23, 2022). |
10.8.2 |
|
Amendment and Restatement Agreement, by and between L&F Research LLC and ZyVersa Therapeutics, Inc. (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the SEC on March 3, 2023). |
10.9+† |
|
First Amendment to License Agreement, dated January 9, 2020, by and between L&F Research LLC and Variant Pharmaceuticals, Inc. (incorporated by reference to Exhibit 10.16 to the Company’s Form S-4 filed with the SEC on October 21, 2022). |
10.10# |
|
ZyVersa Therapeutics, Inc. 2022 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.10 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
10.11# |
|
Form of Incentive Stock Option Grant Agreement under the Combined Entity 2022 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.6.1 to the Company’s Form S-4 filed with the SEC on September 27, 2022). |
10.12# |
|
Form of Restricted Stock Unit Award Agreement under the Combined Entity 2022 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.6.2 to the Company’s Form S-4 filed with the SEC on September 27, 2022). |
10.13# |
|
Form of Non-Qualified Stock Option Grant Agreement under the Combined Entity 2022 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.6.3 to the Company’s Form S-4 filed with the SEC on September 27, 2022). |
10.14# |
|
Variant Pharmaceuticals, Inc. 2014 Equity Incentive Plan (incorporated by reference to Exhibit 10.7 to the Company’s Form S-4 filed with the SEC on September 27, 2022). |
10.15# |
|
Form of Indemnification Agreement by and between the Company and each of its officers and directors (incorporated by reference to Exhibit 10.15 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
10.16# |
|
Executive Employment Agreement, by and between the Company and Stephen Glover (incorporated by reference to Exhibit 10.16 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
10.17# |
|
Executive Employment Agreement, by and between the Company and Nicholas A. LaBella (incorporated by reference to Exhibit 10.17 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
10.18# |
|
Executive Employment Agreement, by and between the Company and Karen A. Cashmere (incorporated by reference to Exhibit 10.18 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
10.19# |
|
Executive Employment Agreement, by and between the Company and Peter Wolfe (incorporated by reference to Exhibit 10.19 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
10.20# |
|
Amendment to Variant Pharmaceuticals, Inc. 2014 Equity Incentive Plan (incorporated by reference to Exhibit 10.20 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
10.21# |
|
Executive Employment Agreement by and between the Company and Pablo Guzman, M.D. (incorporated by reference to Exhibit 10.21 to the Company’s Registration Statement on Form S-1 filed with the SEC on January 27, 2023) |
10.22 |
|
Form of Placement Agency Agreement (incorporated by reference to Exhibit 1.1 to Company’s Registration Statement on Form S-1 filed with the SEC on April 24, 2023) |
10.23 |
|
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.22 to Company’s Registration Statement on Form S-1 filed with the SEC on April 24, 2023) |
10.24 |
|
Form of Escrow Agreement (incorporated by reference to Exhibit 10.23 to Company’s Registration Statement on Form S-1 filed with the SEC on April 24, 2023) |
10.25 |
|
Placement Agency Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on July 26, 2023). |
10.26 |
|
Form of Securities Purchase Agreement (incorporated by reference to Exhibit 10.24 to the Company’s Registration Statement on Form S-1/A filed with the SEC on July 7, 2023). |
10.27 |
|
Form of Inducement Letter (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on September 14, 2023). |
16.1 |
|
Letter from Marcum LLP to the Securities and Exchange Commission (incorporated by reference to Exhibit 16.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
21.1 |
|
Subsidiaries of the Company (incorporated by reference to Exhibit 21.1 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
23.1 |
|
Consent of Ernst & Young LLP (incorporated by reference to Exhibit 23.1 to the Company’s Registration Statement on Form S-1 filed with the SEC on October 5, 2023). |
23.2* |
|
Consent of Thompson Hine LLP (included as part of Exhibit 5.1) |
24.1 |
|
Power of Attorney (included on the signature page of this Registration Statement) |
99.1 |
|
Securities Purchase Agreement, dated as of July 20, 2022, by and among Larkspur Health Acquisition Corp. and each purchaser identified on the signature pages thereto (incorporated by reference to Exhibit 99.2 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
99.2 |
|
Securities Purchase Agreement, dated as of December 12, 2022, by and among Larkspur Health Acquisition Corp. and each purchaser identified on the signature pages thereto (incorporated by reference to Exhibit 99.3 to the Company’s Current Report on Form 8-K filed with the SEC on December 13, 2022). |
107 |
|
Filing Fee Table (incorporated by reference to Exhibit 107 to the Company’s Registration Statement on Form S-1 filed with the SEC on October 5, 2023). |
101.INS |
|
XBRL
Instance Document |
101.SCH |
|
XBRL
Taxonomy Extension Schema Document |
101.CAL |
|
XBRL
Taxonomy Extension Calculation Linkbase Document |
101.DEF |
|
XBRL
Taxonomy Extension Definition Linkbase Document |
101.LAB |
|
XBRL
Taxonomy Extension Label Linkbase Document |
101.PRE |
|
XBRL
Taxonomy Extension Presentation Linkbase Document |
# |
Management
contract or compensatory plan or arrangement. |
+ |
Schedules
and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish supplementally a copy
of any omitted schedule or exhibit to the SEC upon its request. |
† |
Certain
portions of this Exhibit have been omitted in accordance with Regulation S-K Item 601(b)(10). The Registrant agrees to furnish supplementally
an unredacted copy of this Exhibit to the SEC upon its request. |
* |
Filed
herewith. |
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 (the “Securities Act”);
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of 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 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 the registration statement
or any material change to such information in the registration statement; provided, however, that paragraphs (i), (ii) and (iii)
do not apply if the registration statement is on Form S-1 and the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained
in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement; |
|
|
(2) |
that,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; |
|
|
(3) |
to
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering; |
|
|
(4) |
that,
for the purpose of determining liability under the Securities Act to any purchaser: |
|
|
|
Each
prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements
relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness. |
|
|
|
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 first use, 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 date of first use; and |
|
|
(5) |
that,
for the purpose of determining liability of the registrant under the Securities Act 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: |
|
|
(a) |
any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
|
|
(b) |
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; |
|
|
(c) |
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 an undersigned registrant; and |
|
|
(d) |
any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 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 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 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement on Form S-1 to
be signed on its behalf by the undersigned, in the city of Weston, State of Florida, on October 17, 2023.
ZYVERSA
THERAPEUTICS, INC. |
|
|
|
|
By: |
/s/
Stephen C. Glover |
|
Name: |
Stephen
C. Glover |
|
Title: |
Chief
Executive Officer |
|
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints each of Stephen Glover and Peter Wolfe, acting alone or together with another
attorney-in-fact, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such
person and in his or her name, place and stead, in any and all capacities, to sign any or all further amendments (including post-effective
amendments) to this registration statement (and any additional registration statement related hereto permitted by Rule 462(b) promulgated
under the Securities Act (and all further amendments, including post-effective amendments, thereto)), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement on Form S-1 to
be signed on its behalf by the undersigned, thereunto duly authorized.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Stephen C. Glover |
|
Chief
Executive Officer, President and Chairman |
|
October
17, 2023 |
Stephen
C. Glover |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
/s/
Peter Wolfe |
|
Chief
Financial Officer and Secretary |
|
October
17, 2023 |
Peter
Wolfe |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
|
|
|
|
|
/s/
Robert G. Finizio* |
|
Director |
|
October
17, 2023 |
Robert
G. Finizio |
|
|
|
|
|
|
|
|
|
/s/
Min Chul Park, Ph.D.* |
|
Director |
|
October
17, 2023 |
Min
Chul Park, Ph.D. |
|
|
|
|
|
|
|
|
|
/s/
James Sapirstein |
|
Director |
|
October
17, 2023 |
James
Sapirstein |
|
|
|
|
|
|
|
|
|
/s/
Gregory Frietag |
|
Director |
|
October
17, 2023 |
Gregory
Frietag |
|
|
|
|
|
*
/s/ Stephen C. Glover |
|
By: |
Stephen
C. Glover |
|
|
Attorney-in-fact |
|
Exhibit
5.1
October
17, 2023
ZyVersa
Therapeutics, Inc.
2200
N. Commerce Parkway, Suite 208
Weston,
Florida 33326
Re: |
Registration
Statement on Form S-1 |
Ladies
and Gentlemen:
We
have acted as counsel to ZyVersa Therapeutics, Inc., a Delaware corporation (the “Company”), in connection
with the preparation and filing with the U.S. Securities and Exchange Commission (the “Commission”) of the
Registration Statement on Form S-1 on the date hereof, as amended from time to time (the “Registration Statement”),
under the Securities Act of 1933, as amended (the “Securities Act”), with respect to the resale by the selling
securityholders named in the Registration Statement under the caption “Selling Securityholders” (the “Selling
Securityholders”) of an aggregate of 24,647,598 shares of our common stock, par value
$0.0001 per share (“Common Stock”), consisting of up to (i) 5,858,714 shares of our Common Stock issued to
certain investors in various private placements to Larkspur Health LLC (the “Sponsor” or “Larkspur”)
and certain other investors in connection with the formation of the Sponsor, consummation of Larkspur Health Acquisition Corp.’s
initial public offering consummated December 23, 2021 (the “Larkspur IPO”) and at subsequent times (the “Private
Placements”), and which includes 35 shares of Series A Preferred Stock (the “Series A Preferred Stock”)
converted into 17,500 shares of Common Stock at the new conversion price of $2.00 per share, and 25,000 shares of Common Stock underlying
our Series A Preferred Stock; (ii) 4,878,875 shares of our Common Stock (the “PIPE Warrant Shares”) issuable
upon the exercise of certain private warrants having an exercise price of $11.50 (the “PIPE Warrants”) issued
pursuant to the PIPE Subscription Agreement to the investors signatory thereto (the “PIPE Subscription Agreement”);
(iii) 723,234 shares of our Common Stock underlying our Series B Convertible Preferred Stock (the “Series B Preferred Stock”)
issued to certain advisors in exchange for services at a price of $1,000 per share of such preferred stock and convertible into our Common
Stock at a conversion price of $7.00; (iv) 5,825,358 shares of our Common Stock (the “Public Warrant Shares”)
issuable upon the exercise of certain public warrants having an exercise price of $11.50 (the “Public Warrants”)
issued with shares of Larkspur Class A common stock in the form of units to investors in connection with the Larkspur IPO at a purchase
price of $10.00 per unit; (v) 240,204 shares of our Common Stock (the “Private Placement Warrant Shares”) issuable
upon the exercise of warrants, having an exercise price of $11.50 issued in connection with the consummation of the Business Combination
(as defined in the Registration Statement), which replaced the warrants exercisable for Larkspur Class A common stock (the “Private
Placement Warrants”) issued with Larkspur Class A common stock in the form of units to the Sponsor and certain other investors
concurrently with the closing of the Larkspur IPO at a purchase price of $10.00 per unit; and (vi) 7,121,213 shares of the Company’s
Common Stock (the “Inducement Warrant Shares”) in the form of Inducement Warrants (the “Inducement
Warrants”), having an exercise price of $0.1357, issued pursuant to the warrant exercise inducement offer letter (the “Inducement
Letter”) entered into on September 13, 2023, by and between the Company and the holder thereto.
In
connection with this opinion letter, we have examined and relied upon the Registration Statement, the Company’s second amended
and restated certificate of incorporation, as amended, and the Company’s second amended and restated bylaws, each as currently
in effect, a certificate of good standing, issued by the Delaware Secretary of State as of a recent date, and the originals or copies
certified to our satisfaction of such records, documents, certificates, memoranda, and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinions expressed below.
In
such examination and in rendering the opinions expressed below, we have assumed, without independent investigation or verification: (i)
the genuineness of all signatures on all agreements, instruments, corporate records, certificates, and other documents submitted to us;
(ii) the legal capacity, competency, and authority of all individuals executing documents submitted to us; (iii) the authenticity and
completeness of all agreements, instruments, corporate records, certificates, and other documents submitted to us as originals; (iv)
that all agreements, instruments, corporate records, certificates, and other documents submitted to us as certified, electronic, facsimile,
conformed, photostatic, or other copies conform to the originals thereof, and that such originals are authentic and complete; (v) the
due authorization, execution, and delivery of all agreements, instruments, corporate records, certificates and other documents by all
parties thereto (other than the Company); (vi) that no documents submitted to us have been amended or terminated orally or in writing,
except as has been disclosed to us in writing; and (vii) that the statements contained in the certificates and comparable documents of
public officials, officers, and representatives of the Company and other persons on which we have relied for the purposes of this opinion
letter are true and correct on and as of the date hereof.
Our
opinions are limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. Our
opinions herein are expressed solely with respect to the federal laws of the United States, the laws of the State of New York, and the
General Corporation Law of the State of Delaware as in effect on the date hereof. We are not rendering any opinion as to compliance with
any federal or state antifraud law, rule, or regulation relating to securities, or to the sale or issuance thereof. Our opinions are
based on these laws as in effect on the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events, or
developments which hereafter may be brought to our attention and which may alter, affect, or modify any of the opinions expressed herein.
We express no opinion as to whether the laws of any particular jurisdiction other than those identified above are applicable to the subject
matter hereof.
On
the basis of the foregoing, and in reliance thereon, we are of the opinion that:
| 1. | The
shares of Common Stock are validly issued, fully paid, and nonassessable. |
| | |
| 2. | Assuming
the Series A Preferred Stock has been issued in accordance with the terms of the Certificate
of Designation relating to the Series A Preferred Stock, the shares of Common Stock underlying
the Series A Preferred Stock, when issued upon conversion of the Series A Preferred Stock
in accordance with the Certificate of Designation relating to the Series A Preferred Stock,
will be validly issued, paid, and non-assessable. |
| | |
| 3. | Assuming
the PIPE Warrants have been issued in accordance with the terms of the PIPE Subscription
Agreement and delivered against payment therefor in accordance with the terms of the PIPE
Subscription Agreement, the PIPE Warrant Shares, when issued and paid for upon the exercise
of the PIPE Warrants in accordance with the terms of the PIPE Warrants and the PIPE Subscription
Agreement, will be validly issued, fully paid, and non-assessable. |
| | |
| 4. | Assuming
the Series B Preferred Stock has been issued in accordance with the terms of the Certificate
of Designation relating to the Series B Preferred Stock, the shares of Common Stock underlying
the Series B Preferred Stock, when issued upon conversion of the Series B Preferred Stock
in accordance with the Certificate of Designation relating to the Series B Preferred Stock,
will be validly issued, paid, and non-assessable. |
| | |
| 5. | Assuming
the Private Placement Warrants have been issued in accordance with the terms of the Warrant
Agreement, the Private Warrant Shares, when issued and paid for upon the exercise of the
Private Placement Warrants in accordance with the terms of the Private Placement Warrants
and the Warrant Agreement, will be validly issued, fully paid, and non-assessable. |
| | |
| 6. | Assuming
the Public Warrants have been issued in accordance with the terms of the Warrant Agreement,
the Public Warrant Shares, when issued and paid for upon the exercise of the Public Warrants
in accordance with the terms of the Public Warrants and the Warrant Agreement, will be validly
issued, fully paid, and non-assessable. |
| | |
| 7. | Assuming
the Inducement Warrants have been issued in accordance with the terms of the Inducement Letter,
the Inducement Warrant Shares, when issued and paid for upon the exercise of the Inducement
Warrants in accordance with the terms of the Inducement Warrants and the Inducement Letter,
will be validly issued, fully paid, and non-assessable. |
We
hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement, and to being named under the caption
“Legal Matters” contained therein. In giving this consent, we do not hereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
|
Very
truly yours, |
|
|
|
/s/
Thompson Hine LLP |
|
Thompson
Hine LLP |
ZyVersa Therapeutics (NASDAQ:ZVSA)
Historical Stock Chart
Von Apr 2024 bis Mai 2024
ZyVersa Therapeutics (NASDAQ:ZVSA)
Historical Stock Chart
Von Mai 2023 bis Mai 2024