As filed with the Securities and Exchange Commission
on July 28, 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
NeuBase
Therapeutics, Inc.
(Exact name of Registrant as specified in its
charter)
Delaware
(State or other jurisdiction of
incorporation or organization) |
2384
(Primary Standard Industrial
Classification Code Number) |
46-5622433
(I.R.S. Employer
Identification Number) |
350 Technology
Drive, Fourth Floor
Pittsburgh, PA 15219
(412) 763-3350
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Dr. Dietrich Stephan
Chief Executive Officer
NeuBase Therapeutics, Inc.
350 Technology Drive, Fourth Floor
Pittsburgh, Pennsylvania 15219
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Jeffrey T. Hartlin
Samantha H. Eldredge
Paul Hastings LLP
1117 S. California Avenue
Palo Alto, California, 94304-1106
(650) 320-1800
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.
x
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 |
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Accelerated filer |
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Non-accelerated filer |
x |
Smaller reporting company |
x |
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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 preliminary
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 preliminary prospectus is not an offer to sell these securities, and it is not soliciting an
offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated July
28, 2023
Preliminary Prospectus
Up to 5,394,068 shares of Common Stock
Pursuant to this prospectus, the selling stockholders
identified herein (the “Selling Stockholders”) are offering on a resale basis an aggregate of up to 5,394,068 shares
of common stock of NeuBase Therapeutics, Inc. (the “Company,” “we,” “us” or “our”),
par value $0.0001 per share (the “Common Stock”), consisting of (a) up to an aggregate of 578,697 shares of Common
Stock that are issuable upon exercise of unregistered long-term warrants (the “RD Series A Warrants”) (b) up to an
aggregate of 578,697 shares of Common Stock that are issuable upon exercise of unregistered short-term warrants (the “RD Series
B Warrants”), (c) up to an aggregate of 1,366,829 shares of Common Stock that are issuable upon exercise of unregistered pre-funded
warrants (the “PIPE Pre-Funded Warrants”), (d) up to 1,366,829 shares of Common Stock that are issuable upon exercise
of unregistered long-term warrants (the “PIPE Series A Warrants”), (e) up to 1,366,829 shares of Common Stock that
are issuable upon exercise of unregistered short-term warrants (the “PIPE Series B Warrants”), in each of cases of
(a) through (e) purchased pursuant to securities purchase agreements by and between us and the Selling Stockholders, each dated June 28,
2023 (the “Purchase Agreements”), and (f) up to 136,187 shares of Common Stock that are issuable upon the exercise
of certain private placement warrants (the “Placement Agent Warrants”, together with the RD Series A Warrants, the
RD Series B Warrants, the PIPE Pre-Funded Warrants, the PIPE Series A Warrants and the PIPE Series B Warrants, the “Warrants”)
issued to designees of H.C. Wainwright & Co., LLC, our placement agent (the
“Placement Agent”) pursuant to an engagement letter in connection with the Purchase Agreements and the offerings
contemplated thereunder.
We will not receive any of the proceeds from
the sale by the Selling Stockholders of the Common Stock. Upon any exercise of the Warrants by payment of cash, however, we will receive
the exercise price of the Warrants, which, if exercised in cash with respect to the 5,394,068 shares of Common Stock offered hereby,
would result in gross proceeds to us of approximately $9.5 million. However, we cannot predict when and in what amounts or if the Warrants
will be exercised by payments of cash and it is possible that the Warrants may expire and never be exercised, in which case we would
not receive any cash proceeds. In addition, upon exercise of any of the RD Series B Warrants or
the PIPE Series B Warrants, we will pay the Placement Agent a cash fee equal to 8.0% of the gross proceeds received from the exercise
of the RD Series B Warrants or the PIPE Series B Warrants (including a 1.0% management fee) and will also issue to the Placement Agent
(or its designees) additional Placement Agent Warrants to purchase a number of shares of Common Stock equal to 7.0% of the aggregate
number of shares of Common Stock issued upon such exercise of the RD Series B Warrants or the PIPE Series B Warrants.
The Selling Stockholders may sell or otherwise
dispose of the Common Stock covered by this prospectus in a number of different ways and at varying prices. We provide more information
about how the Selling Stockholders may sell or otherwise dispose of the Common Stock covered by this prospectus in the section entitled
“Plan of Distribution” on page 9. Discounts, concessions, commissions and similar selling expenses attributable to the
sale of Common Stock covered by this prospectus will be borne by the Selling Stockholders. We will pay all expenses (other than discounts,
concessions, commissions and similar selling expenses) relating to the registration of the Common Stock with the Securities and Exchange
Commission (the “SEC”).
Our Common Stock is listed on the Nasdaq Capital
Market under the symbol “NBSE.” On July 27, 2023, the last reported sale price of our Common Stock on the Nasdaq Capital
Market was $1.32 per share.
Investing in our securities involves a high
degree of risk. Before making any investment in these securities, you should consider carefully the risks and uncertainties described
in the section entitled “Risk Factors” beginning on page 5 of this prospectus.
Neither the SEC 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
About this Prospectus
This prospectus relates to
the resale by the Selling Stockholders identified in this prospectus under the caption “Selling Stockholders,” from time
to time, of up to an aggregate of 5,394,068 shares of Common Stock. We are not selling any shares of Common Stock under this prospectus,
and we will not receive any proceeds from the sale of shares of Common Stock offered hereby by the Selling Stockholders, although we
may receive cash from the exercise of the Warrants.
You should rely only on the
information provided in this prospectus, including any information incorporated by reference. We have not authorized anyone to provide
you with any other information and we take no responsibility for, and can provide no assurances as to the reliability of, any other information
that others may give you. The information contained in this prospectus speaks only as of the date set forth on the cover page and may
not reflect subsequent changes in our business, financial condition, results of operations and prospects.
We are not, and the Selling
Stockholders are not, making offers to sell these securities in any jurisdiction in which an offer or solicitation is not authorized
or permitted or in which the person making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful
to make such an offer or solicitation. You should read this prospectus, including any information incorporated by reference, in its entirety
before making an investment decision. You should also read and consider the information in the documents to which we have referred you
in the sections entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
Cautionary Note
Regarding Forward-Looking Statements
This prospectus and the documents
incorporated herein by reference contain “forward-looking statements” by us within the meaning of Section 27A of the Securities
Act, and Section 21E of the Exchange Act, including, without limitation, statements as to expectations, beliefs and strategies regarding
the future. These statements involve known and unknown risks, uncertainties and other important factors that may cause our actual results,
performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the
forward-looking statements. These forward-looking statements rely on a number of assumptions concerning future events and include, but
are not limited to, statements relating to:
| · | risks
and uncertainties associated with our research and development activities, including our
preclinical studies; |
| · | the
potential effects of public health outbreaks, epidemics or pandemics, such as the coronavirus
(COVID-19) pandemic; |
| · | the
timing or likelihood of regulatory filings and approvals or of alternative regulatory pathways
for our product candidates; |
| · | the
potential market opportunities for commercializing our product candidates; |
| · | our
expectations regarding the potential market size and the size of the patient populations
for our product candidates, if approved for commercial use, and our ability to serve such
markets; |
| · | estimates
of our expenses, future revenue, capital requirements and our needs for additional financing; |
| · | our
ability to continue as a going concern; |
| · | our
ability to develop, acquire and advance our product candidates into, and successfully complete,
preclinical studies and clinical trials and obtain regulatory approvals; |
| · | the
implementation of our business model and strategic plans for our business and product candidates; |
| · | the
initiation, cost, timing, progress and results of current preclinical studies and future
preclinical studies and clinical trials, and our research and development programs; |
| · | the
terms of future licensing arrangements, and whether we can enter into such arrangements at
all; |
| · | timing
and receipt or payments of licensing and milestone revenues or payments, if any; |
| · | the
scope of protection we are able to establish and maintain for intellectual property rights
covering our product candidates and our ability to operate our business without infringing
the intellectual property rights of others; |
| · | regulatory
developments in the United States and foreign countries; |
| · | the
performance of our third party suppliers and manufacturers; |
| · | our
ability to maintain and establish collaborations or obtain additional funding; |
| · | the
success of competing therapies that are currently or may become available; |
| · | our
financial performance; and |
| · | developments
and projections relating to our competitors and our industry. |
Any forward-looking statements
should be considered in light of these factors. Words such as “anticipates,” “believes,” “forecasts,”
“potential,” “goal,” “contemplates,” “expects,” “intends,” “plans,”
“projects,” “hopes,” “seeks,” “estimates,” “strategy,” “continues,”
“ongoing,” “opportunity,” “could,” “would,” “should,” “likely,”
“will,” “may,” “can,” “designed to,” “future,” “foreseeable future”
and similar expressions and variations, and negatives of these words, identify forward-looking statements. These forward-looking statements
are based on the expectations, estimates, projections, beliefs and assumptions of our management based on information currently available
to management, all of which are subject to change. These forward-looking statements are not guarantees of future performance and are
subject to risks and uncertainties that could cause actual results to differ materially from the results contemplated by the forward-looking
statements. Many of the important factors that will determine these results and values are beyond our ability to control or predict.
You are cautioned not to put undue reliance on any forward-looking statements. Except as otherwise required by law, we do not assume
any obligation to update any forward-looking statements.
In evaluating an investment
in our securities, you should carefully consider the discussion of risks and uncertainties described under the heading “Risk Factors”
contained in this prospectus, and under similar headings in other documents, including in our Annual Report on Form 10-K for the year
ended September 30, 2022 and in other filings with the SEC, that are incorporated by reference in this prospectus. You should carefully
read this prospectus, together with the information incorporated by reference in this prospectus as described under the headings “
“Where You Can Find More Information” and “Incorporation of Certain Information by Reference”,
completely and with the understanding that our actual future results may be materially different from what we expect.
All subsequent written and
oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by our cautionary
statements. The forward-looking statements included or incorporated by reference herein are made only as of the date of this prospectus
(or as of the date of any such document incorporated by reference). We do not intend, and undertake no obligation, to update these forward-looking
statements, except as required by law.
Prospectus Summary
The following summary
highlights certain information contained elsewhere in this prospectus and the documents incorporated by reference herein. This summary
provides an overview of selected information and does not contain all of the information you should consider in making your investment
decision. Therefore, you should read the entire prospectus and the documents incorporated by reference herein carefully before investing
in our securities. Investors should carefully consider the information set forth under “Risk Factors” beginning on page 5
of this prospectus and the financial statements and other information incorporated by reference in this prospectus.
Overview
We have designed, built,
and validated a new technology platform (a peptide nucleic acid antisense oligonucleobase platform, which we call PATrOL™) that
can uniquely Drug the Genome™ to address the three disease-causing mechanisms (i.e., gain-of-function, change-of-function,
or loss-of-function of a gene), without the limitations of early precision genetic medicines. The technology is predicated on synthetic
peptide nucleic acid (“PNA”) chemistry and can directly engage the genome in a sequence-specific manner and address root
causality of diseases. These compounds operate by temporarily engaging the genome (or single and double-stranded RNA targets, if desired)
and interacting with cellular machinery that processes mutant genes to halt their ability to manifest a disease.
We have repeatedly demonstrated
in proof-of-concept preclinical animal studies the ability to address multiple disease-causing genes, and different causal mechanisms,
to resolve the disease state without the limitations of early genetic medicine technologies. As further validation of our PATrOL™
platform’s capabilities, in FY2021 and FY2022, we described data illustrating that our first-in-class platform technology can address
various types of causal insults by Drugging the Genome™ in animal models of a variety of human diseases after patient-friendly
routes of administration and does so in a well-tolerated manner.
We are developing precision
genetic medicines targeting rare, monogenic diseases for which there are no approved therapies, as well as more common genetic disorders,
including cancers that are resistant to current therapeutic approaches. Our disclosed pipeline includes therapeutic candidates for the
treatment of DM1, HD, as well as cancer-driving point mutations in KRAS, G12V and G12D, which are involved in many tumor types
and have historically been “undruggable”. In October 2022, we announced plans to expand our focus to include the advancement
of the differentiated gene editing capabilities of its platform. We are currently identifying and evaluating multiple indications for
potential future development.
Recent Developments
Change in Year End
On April 21, 2023, our Board
of Directors approved a change in our fiscal year end from September 30 to December 31, effective for the fiscal year beginning January
1, 2023 and ending December 31, 2023. As a result of the change in year end, we filed a Transition Report on Form 10-QT for the period
from October 1, 2022 through December 31, 2022. Our 2023 fiscal year will run from January 1, 2023 through December 31, 2023.
Reverse Stock Split
As previously disclosed on
a Current Report on Form 8-K filed on June 14, 2023, on June 14, 2023, we filed a Certificate of Amendment to our Amended and Restated
Certificate of Incorporation with the Secretary of State of the State of Delaware to effect a 1-for-20 reverse stock split of our shares
of Common Stock.
June 2023 Offerings
On June 28, 2023, we
entered into a securities purchase agreement (the “Registered Direct Purchase Agreement”) with the selling
stockholders identified herein (the “Selling Stockholders”) in connection with a registered direct offering (the
“Registered Direct Offering”) and concurrent private placement with an institutional investor (the
“Registered Direct Purchaser”). On June 28, 2023, we also entered into a securities purchase agreement (the
“PIPE Purchase Agreement” and, together with the Registered Direct Purchase Agreement, the “Purchase
Agreements”) and a registration rights agreement (the “Registration Rights Agreement”) with the Selling
Stockholders in connection with a concurrent private placement (the “PIPE Private Placement”) with the same
institutional investor (the “PIPE Purchaser” and, together with the Registered Direct Purchaser, the
“Purchaser”).
Pursuant to the Registered
Direct Purchase Agreement, we agreed to offer and sell in the Registered Direct Offering 187,700 shares of Common Stock and
pre-funded warrants (the “Pre-Funded Warrants”) to purchase up to an aggregate of 390,997 shares of Common Stock.
The Pre-Funded Warrants have an exercise price of $0.001 per share, are immediately exercisable and can be exercised at any time after
their original issuance until such Pre-Funded Warrants are exercised in full. Each share of Common Stock is being sold at an offering
price of $2.57 per share, and each Pre-Funded Warrant is being sold at an offering price of $2.569, which is equal to the purchase price
per share of Common Stock less $0.001.
Pursuant
to the Registered Direct Purchase Agreement, in a concurrent private placement, we also agreed to issue the RD Series A Warrants to purchase
up to an aggregate of 578,697 shares of Common Stock and the RD Series B Warrants to purchase up to an aggregate of 578,697 shares of
Common Stock. Each RD Series A Warrant has an exercise price of $2.32 per share, is exercisable immediately upon issuance, and will expire
five and one-half years following the date of issuance. Each RD Series B Warrant has an exercise price of $2.32 per share, is exercisable
immediately upon issuance, and will expire 18 months following the date of issuance.
Pursuant
to the PIPE Purchase Agreement, we agreed to offer and sell in the PIPE Private Placement unregistered pre-funded warrants (the “PIPE
Pre-Funded Warrants”) to purchase up to an aggregate of 1,366,829 shares of Common Stock, at an offering price of $2.569. The
PIPE Pre-Funded Warrants have an exercise price of $0.001 per share, are immediately exercisable and can be exercised at any time after
their original issuance until such PIPE Pre-Funded Warrants are exercised in full. Pursuant to the PIPE Purchase Agreement, we also agreed
to issue to the PIPE Purchaser unregistered long-term warrants to purchase up to 1,366,829 shares of Common Stock (the “PIPE
Series A Warrants”) and unregistered short-term warrants to purchase up to 1,366,829 shares of Common Stock (the “PIPE
Series B Warrants”). Each PIPE Series A Warrant has an exercise price of $2.32 per share, is exercisable immediately upon issuance,
and will expire five and one-half years following the date of issuance. Each PIPE Series B Warrant has an exercise price of $2.32 per
share, is exercisable immediately upon issuance, and will expire 18 months following the date of issuance.
We
received aggregate gross proceeds of $5.0 million from the Registered Direct Offering and PIPE Private Placement (collectively, the “Offerings”),
before deducting placement agent fees and other estimated offering expenses payable by us.
Pursuant
to an engagement letter, dated as of June 12, 2023, as amended on June 28, 2023 (as amended, the “Engagement Letter”),
between us and the Placement Agent, we agreed to pay the Placement Agent a cash fee equal to 8.0% of the gross proceeds received from
the Purchaser (including a 1.0% management fee) and also agreed to issue to the Placement Agent (or its designees) Placement Agent Warrants
to purchase up to 136,187 shares of Common Stock (which represents 7.0% of the aggregate number of shares of Common Stock, Pre-Funded
Warrants and PIPE Pre-Funded Warrants sold in the Offerings) on substantially the same terms as the PIPE Series A Warrants and the PIPE
Series B Warrants except that the exercise price of the Placement Agent Warrants is $3.2125 (or 125% of the offering price per share
of Common Stock in the Registered Direct Offering) and an expiration date of June 28, 2028, which is the five-year anniversary of the
commencement of the sales pursuant to the Offerings. We have also agreed to pay the Placement Agent in connection with the Offerings
$75,000 for non-accountable expenses and $7,388.85 for clearing fees. Pursuant to the Engagement Letter, we also agreed that, upon exercise
of any of the RD Series B Warrants or the PIPE Series B Warrants, we will pay the Placement Agent a cash fee equal to 8.0% of the gross
proceeds received from the exercise of the RD Series B Warrants or the PIPE Series B Warrants (including a 1.0% management fee) and will
also issue to the Placement Agent (or its designees) additional Placement Agent Warrants to purchase a number of shares of Common Stock
equal to 7.0% of the aggregate number of shares of Common Stock issued upon such exercise of the RD Series B Warrants or the PIPE Series
B Warrants.
Pursuant
to the terms of the Registration Rights Agreement and the Engagement Letter we have agreed to register for resale the shares of
Common Stock issuable upon the exercise of the RD Series A Warrants, the RD Series B Warrants, the PIPE Pre-Funded Warrants,
the PIPE Series A Warrants, the PIPE Series B Warrants and the Placement Agent Warrants, in each case on or prior to July 28, 2023.
We shall use commercially reasonable efforts to cause the registration statement covering the aforementioned securities to be
declared effective as promptly as possible after the filing thereof, but in any event no later than the 60th calendar day following
the date of the Registration Rights Agreement (or in the event of a full review by the Securities and Exchange Commission (the
“SEC”), the 90th calendar day following the date of the Registration Rights Agreement). Failure by us to meet the
filing deadlines and other requirements set forth in the Registration Rights Agreement may subject us to certain liquidated
damages.
The
Offerings closed on June 30, 2023.
Corporate Information
We were incorporated under
the laws of the State of Delaware on August 4, 2009, as successor to BBM Holdings, Inc. (formerly known as Prime Resource, Inc., which
was organized March 29, 2002 as a Utah corporation) pursuant to a reincorporation merger. On August 4, 2009, we reincorporated in Delaware
as “Ohr Pharmaceutical, Inc.” On July 12, 2019, we completed a reverse merger transaction (the “Merger”)
with NeuBase Corporation (formerly known as NeuBase Therapeutics, Inc.), a Delaware corporation, and, upon completion of the Merger,
we changed our name to “NeuBase Therapeutics, Inc.” Shares of our Common Stock commenced trading on the Nasdaq Capital Market
under the ticker symbol “NBSE” as of market open on July 15, 2019.
Our principal executive offices
are located at 350 Technology Drive, Fourth Floor, Pittsburgh, PA 15219, and our telephone number is (412) 763-3350. Our website is located
at www.neubasetherapeutics.com. Any information contained on, or that can be accessed through, our website is not incorporated
by reference into, nor is it in any way part of, this prospectus and should not be relied upon in connection with making any decision
with respect to an investment in our securities. We are required to file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may obtain any of the documents filed by us with the SEC at no cost from the SEC’s website
at http://www.sec.gov.
We are a “smaller reporting
company” as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
have elected to take advantage of certain of the scaled disclosure available for smaller reporting companies in this prospectus as well
as our filings under the Exchange Act.
The Offering
The Selling Stockholders
identified in this prospectus are offering on a resale basis a total of 5,394,068 shares of Common Stock, consisting of (a) 578,697 shares
of Common Stock underlying the RD Series A Warrants, (b) 578,697 shares of Common Stock underlying the RD Series B Warrants, (c) 1,366,829
shares of Common Stock underlying the PIPE Pre-Funded Warrants, (d) 1,366,829 shares of Common Stock underlying the PIPE Series A Warrants,
(e) 1,366,829 shares of Common Stock underlying the PIPE Series B Warrants and (f) 136,187 shares of Common Stock underlying the Placement
Agent Warrants, as more fully described below.
Common Stock to be offered
by the Selling Stockholders |
Up to 5,394,068 shares
of Common Stock |
|
|
Common Stock outstanding prior to this
offering |
2,083,143 shares of Common Stock
as of July 21, 2023 |
|
|
Common Stock to be outstanding after
this offering |
7,477,211 shares of Common Stock,
assuming the exercise of all of the Warrants. |
|
|
Use of proceeds |
We will not receive any proceeds
from the sale of the shares of Common Stock by the Selling Stockholders, except for the Warrant exercise price paid for the Common
Stock offered hereby and issuable upon the exercise of the Warrants. See “Use of Proceeds” on page 6 of
this prospectus. |
|
|
Risk factors |
You should read the “Risk Factors” section beginning on page 5 of this prospectus for a discussion of factors to consider carefully before deciding to
invest in shares of our securities. |
|
|
Nasdaq Capital Market symbol |
Our Common Stock is listed on The
Nasdaq Capital Market under the symbol “NBSE.” We do not intend to apply for listing of the Warrants on any securities
exchange or nationally recognized trading system. |
The number of shares of Common Stock to be outstanding
after this offering is based on 2,083,143 shares of Common Stock outstanding as of July 21, 2023 and excludes the following as of such
date:
|
· |
314,672 shares of Common Stock issuable upon exercise of options outstanding as of July 21, 2023, with a weighted average exercise
price of $55.91 per share; |
|
· |
189,750 shares of Common Stock issuable upon exercise of warrants outstanding as of July 21, 2023, with a weighted average exercise
price of $2.57 per share; |
|
· |
19,823 shares of Common Stock issuable upon vesting of restricted stock unit awards outstanding as
of July 21, 2023, with a weighted-average grant date fair value of $4.00 per share; |
|
· |
13,334 shares of Common Stock available for issuance pursuant to our 2016 Consolidated Stock Incentive Plan; and |
|
· |
122,328 shares of Common Stock available for issuance pursuant to our 2019 Stock Incentive Plan. |
Risk Factors
Investing in our securities
involves a high degree of risk. Before investing in our securities, you should carefully consider the risks, uncertainties and assumptions
contained in this prospectus and discussed under the heading “Risk Factors” included in our Annual Report on Form 10-K for
the year ended September 30, 2022, as revised or supplemented by subsequent filings, which are on file with the SEC and are incorporated
herein by reference, and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in
the future. The risks described in these documents are not the only ones we face, but those that we consider to be material. There may
be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse effects
on our future results. Our business, financial condition, results of operations and future growth prospects could be materially and adversely
affected by any of these risks. In these circumstances, the market price of our Common Stock could decline, and you may lose all or part
of your investment.
Use of Proceeds
We will not receive any of
the proceeds from the sale of the Common Stock by the Selling Stockholders. Certain of the shares offered hereby are issuable upon the
exercise of the Warrants. Upon exercise of such Warrants for cash, we will receive the applicable cash exercise price paid by the holders
of the Warrants for gross proceeds of approximately $9.5 million (assuming the full exercise of the Warrants). However, we cannot predict
when and in what amounts or if the Warrants will be exercised by payments of cash and it is possible that the Warrants may expire and
never be exercised, in which case we would not receive any cash proceeds. In addition, upon exercise of any of the RD Series B Warrants
or the PIPE Series B Warrants, we will pay the Placement Agent a cash fee equal to 8.0% of the gross proceeds received from the exercise
of the RD Series B Warrants or the PIPE Series B Warrants (including a 1.0% management fee) and will also issue to the Placement Agent
(or its designees) additional Placement Agent Warrants to purchase a number of shares of Common Stock equal to 7.0% of the aggregate
number of shares of Common Stock issued upon such exercise of the RD Series B Warrants or the PIPE Series B Warrants.
We intend to use any proceeds
received by us from the cash exercise of the Warrants for working capital and general corporate purposes.
Dividend Policy
We have never paid cash dividends
on our Common Stock and we do not anticipate paying cash dividends in the foreseeable future, but intend to retain our capital resources
for reinvestment in our business. Any future determination to pay cash dividends on our Common Stock will be at the discretion of our
board of directors and will be dependent upon our financial condition, results of operations, capital requirements and other factors
as the board of directors deems relevant.
Determination
of Offering Price
The prices at which the shares
of Common Stock covered by this prospectus may actually be sold will be determined by the prevailing public market price for shares of
our Common Stock or by negotiations between the Selling Stockholders and buyers of our Common Stock in private transactions or as otherwise
described in “Plan of Distribution.”
Selling Stockholders
The Common Stock being offered
by the Selling Stockholders are those previously issued to the Selling Stockholders, and those issuable to the Selling Stockholders,
upon exercise of the Warrants. For additional information regarding the issuances of those shares of Common Stock and Warrants, see “Prospectus
Summary—Recent Developments—June 2023 Offerings” above. We are registering the shares of Common Stock in order
to permit the Selling Stockholders to offer the shares for resale from time to time. Except for the ownership of the shares of Common
Stock and the Warrants, the Selling Stockholders have not had any material relationship with us within the past three years.
The table below lists the
Selling Stockholders and other information regarding the beneficial ownership of the shares of Common Stock by each of the Selling Stockholders.
The second column lists the number of shares of Common Stock beneficially owned by each Selling Stockholder, based on its ownership of
the shares of Common Stock and Warrants, as of July 21, 2023, assuming exercise of the Warrants held by the Selling Stockholders on that
date, without regard to any limitations on exercises.
The third column lists the
shares of Common Stock being offered by this prospectus by the Selling Stockholders.
In accordance with the terms
of a registration rights agreement with the Selling Stockholders, this prospectus generally covers the resale of the maximum number of
shares of Common Stock issuable upon exercise of the Warrants, determined as if the outstanding Warrants were exercised in full as of
the trading day immediately preceding the date this registration statement was initially filed with the SEC, each as of the trading day
immediately preceding the applicable date of determination and all subject to adjustment as provided in the Registration Rights Agreement,
without regard to any limitations on the exercise of the Warrants. The fourth column assumes the sale of all of the shares offered by
the Selling Stockholders pursuant to this prospectus.
Under the terms of the Warrants,
a Selling Stockholder may not exercise the Warrants to the extent such exercise would cause such Selling Stockholder, together with its
affiliates and attribution parties, to beneficially own a number of shares of Common Stock which would exceed 4.99% or 9.99%, as applicable,
of our then outstanding Common Stock following such exercise, excluding for purposes of such determination shares of Common Stock issuable
upon exercise of such Warrants which have not been exercised. The number of shares in the second and fourth columns do not reflect this
limitation. The Selling Stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
Name of Selling Stockholder |
|
Number of Shares
of Common Stock
Beneficially
Owned Prior to
Offering(1) |
|
|
Maximum
Number of Shares
of Common Stock
to be Sold in this
Offering |
|
|
Number of Shares
of Common Stock
Beneficially
Owned After
Offering |
|
|
Percentage of
Shares Beneficially
Owned after
Offering(1) |
|
Armistice Capital, LLC.(2) |
|
|
5,671,052 |
|
|
|
5,257,881 |
|
|
|
413,171 |
|
|
|
5.5 |
% |
Michael Vasinkevich(3) |
|
|
87,330 |
|
|
|
87,330 |
|
|
|
0 |
|
|
|
0 |
% |
Noam Rubinstein(3) |
|
|
42,899 |
|
|
|
42,899 |
|
|
|
0 |
|
|
|
0 |
% |
Craig Schwabe(3) |
|
|
4,596 |
|
|
|
4,596 |
|
|
|
0 |
|
|
|
0 |
% |
Charles Worthman(3) |
|
|
1,362 |
|
|
|
1,362 |
|
|
|
0 |
|
|
|
0 |
% |
(1)
The ability to exercise the Warrants and Pre-Funded Warrants, as applicable, held by the Selling Stockholders is subject to a
beneficial ownership limitation that, at the time of initial issuance of the Warrants and Pre-Funded Warrants, as applicable, was
capped at either 4.99% or 9.99% beneficial ownership of the Company’s issued and outstanding Common Stock (post-exercise).
These beneficial ownership limitations may be adjusted up or down, subject to providing advanced notice to the Company. Beneficial
ownership as reflected in the selling stockholder table reflects the total number of shares potentially issuable underlying the
Warrants and Pre-Funded Warrants, as applicable, and does not give effect to these beneficial ownership limitations.
Accordingly, actual beneficial ownership, as calculated in accordance with Section 13(d) and Rule 13d-3 thereunder may be lower than
as reflected in the table.
(2) The securities are directly held by Armistice
Capital Master Fund Ltd., a Cayman Islands exempted company (the “Master Fund”), and may be deemed to be beneficially owned
by: (i) Armistice Capital, LLC (“Armistice Capital”), as the investment manager of the Master Fund; and (ii) Steven Boyd,
as the Managing Member of Armistice Capital. The warrants are subject to a beneficial ownership limitation of 4.99%, which such limitation
restricts the Selling Stockholder from exercising that portion of the warrants that would result in the Selling Stockholder and its affiliates
owning, after exercise, a number of shares of Common Stock in excess of the beneficial ownership limitation. The address of Armistice
Capital Master Fund Ltd. is c/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022.
(3) The
selling stockholder is affiliated with H.C. Wainwright & Co., LLC, a registered broker dealer with a registered address of H.C. Wainwright
& Co., LLC, 430 Park Ave, 3rd Floor, New York, NY 10022, and has sole voting and dispositive power over the securities held. The
number of shares beneficially owned prior to this offering consist of shares of Common Stock
issuable upon exercise of placement agent warrants, which were received as compensation in connection with the concurrent Registered
Direct Offering and the Private Placements consummated by us in June 2023. The selling stockholder
acquired the placement agent warrants in the ordinary course of business and, at the time the placement agent warrants were acquired,
the selling stockholder had no agreement or understanding, directly or indirectly, with any person to distribute such securities.
Plan of Distribution
Each Selling Stockholder
of the securities 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 the broker-dealer solicits purchasers; |
| · | block
trades in which the broker-dealer will attempt to sell the securities as agent but may position
and resell a portion of the block as principal to facilitate the transaction; |
| · | purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
| · | an
exchange distribution in accordance with the rules of the applicable exchange; |
| · | privately
negotiated transactions; |
| · | settlement
of short sales; |
| · | in
transactions through broker-dealers that agree with the Selling 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 of 1933, as amended (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-dealer
or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling 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 us that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the securities.
We are required to pay certain
fees and expenses incurred by us incident to the registration of the securities. We have agreed to indemnify the Selling 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 us to
be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or
(ii) all of the 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).
Description of
Capital Stock
General Matters
The following description
summarizes the most important terms of our capital stock. Because it is only a summary of the provisions of our certificate of incorporation,
as amended (the “Certificate of Incorporation”), and bylaws, as amended (the “Bylaws”), it does
not contain all of the information that may be important to you. For a complete description of the matters set forth in this “Description
of Capital Stock,” you should refer to our Certificate of Incorporation and Bylaws, each of which are included as exhibits to the
registration statement of which this prospectus is a part, and to the applicable provisions of Delaware law.
As of July 21, 2023, our
authorized capital stock consisted of 250,000,000 shares of Common Stock and 10,000,000 shares of preferred stock, $0.0001 par value
per share.
Common Stock
Dividend Rights. We
have never paid cash dividends on our Common Stock. Moreover, we do not anticipate paying periodic cash dividends on Common Stock for
the foreseeable future. Any future determination about the payment of dividends will be made at the discretion of our board of directors
and will depend upon its earnings, if any, capital requirements, operating and financial conditions and on such other factors as our
board of directors deems relevant.
Preferred Stock
We currently have no outstanding
shares of Preferred Stock. Under our Certificate of Incorporation, our board of directors has the authority, without further action by
stockholders, to designate one or more series of Preferred Stock and to fix the voting powers, designations, preferences, limitations,
restrictions and relative rights granted to or imposed upon the Preferred Stock, including dividend rights, conversion rights, voting
rights, rights and terms of redemption, liquidation preference and sinking fund terms, any or all of which may be preferential to or
greater than the rights of our Common Stock.
Our board of directors may
authorize the issuance of Preferred Stock with voting or conversion rights that could adversely affect the voting power or other rights
of the holders of Common Stock. The issuance of Preferred Stock, while providing flexibility in connection with possible acquisitions
and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in control and
may adversely affect the market price of the Common Stock and the voting and other rights of the holders of Common Stock.
Our board of directors may
specify the following characteristics of any Preferred Stock:
| · | the
designation and stated value, if any, of the class or series of Preferred Stock; |
| · | the
number of shares of the class or series of Preferred Stock offered, and the liquidation preference,
if any, per share; |
| · | the
dividend rate(s), period(s) or payment date(s) or method(s) of calculation, if any, applicable
to the class or series of Preferred Stock; |
| · | whether
dividends, if any, are cumulative or non-cumulative and, if cumulative, the date from which
dividends on the class or series of Preferred Stock will accumulate; |
| · | the
provisions for a sinking fund, if any, for the class or series of Preferred Stock; |
| · | the
provision for redemption, if applicable, of the class or series of Preferred Stock; |
| · | the
terms and conditions, if applicable, upon which the class or series of Preferred Stock will
be convertible into Common Stock, including the conversion price or manner of calculation
and conversion period; |
| · | voting
rights, if any, of the class or series of Preferred Stock; |
| · | the
relative ranking and preferences of the class or series of Preferred Stock as to dividend
rights and rights, if any, upon the liquidation, dissolution or winding up of our affairs; |
| · | any
limitations on issuance of any class or series of Preferred Stock ranking senior to or on
a parity with the class or series of Preferred Stock as to dividend rights and rights, if
any, upon liquidation, dissolution or winding up of our affairs; and |
| · | any
other specific terms, preferences, rights, limitations or restrictions of the class or series
of Preferred Stock. |
Anti-Takeover Effects of Certain Provisions
of our Certificate of Incorporation, Bylaws and the General Corporation Law of the State of Delaware
Certain provisions of Delaware
law and our Certificate of Incorporation contain provisions that could make the following transactions more difficult: acquisition of
our Company by means of a tender offer; acquisition of our Company by means of a proxy contest or otherwise; or removal of our incumbent
officers and directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that
stockholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in
a premium over the market price for our capital stock.
These provisions, summarized
below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage
persons seeking to acquire control of our Company to first negotiate with our board of directors. We believe that the benefits of increased
protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure
our Company outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement
of their terms.
Delaware Anti-Takeover
Statute
We are subject to Section
203 of the General Corporation Law of the State of Delaware (the “DGCL”), which prohibits persons deemed to be “interested
stockholders” from engaging in a “business combination” with a publicly-held Delaware corporation for three years following
the date these persons become interested stockholders unless the business combination is, or the transaction in which the person became
an interested stockholder was, approved in a prescribed manner or another prescribed exception applies. Generally, an “interested
stockholder” is a person who, together with affiliates and associates, owns, or within three years prior to the determination of
interested stockholder status did own, 15% or more of a corporation’s voting stock. Generally, a “business combination”
includes a merger, asset or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. The existence
of this provision may have an anti-takeover effect with respect to transactions not approved in advance by the board of directors, such
as discouraging takeover attempts that might result in a premium over the market price of the Common Stock.
Undesignated Preferred
Stock
The ability to authorize
undesignated Preferred Stock will make it possible for our board of directors to issue Preferred Stock with voting or other rights or
preferences that could impede the success of any attempt to change control of our Company. These and other provisions may have the effect
of deterring hostile takeovers or delaying changes in control or management of our Company.
Elimination of Stockholder
Action by Written Consent
Our Certificate of Incorporation
eliminates the right of stockholders to act by written consent without a meeting.
Classified Board;
Election and Removal of Directors; Filling Vacancies
Our board of directors are
divided into three classes. The directors in each class serve for a three-year term, one class being elected each year by our stockholders,
with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other
classes continuing for the remainder of their respective three-year terms. At all meetings of stockholders for the election of directors,
a plurality of the votes cast is sufficient to elect each director. Our Certificate of Incorporation provides for the removal of any
of our directors only for cause and requires a stockholder vote by the holders of at least 66 2/3% of the voting power of the then outstanding
voting stock. Furthermore, any vacancy on our board of directors, however occurring, including a vacancy resulting from an increase in
the size of the board, may only be filled by a resolution of the board of directors unless the board of directors determines that such
vacancies shall be filled by the stockholders. This system of electing and removing directors and filling vacancies may tend to discourage
a third party from making a tender offer or otherwise attempting to obtain control of our Company, because it generally makes it more
difficult for stockholders to replace a majority of the directors.
Choice of Forum
Our Certificate of Incorporation
provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware
will be the exclusive forum for: (a) any derivative action or proceeding brought on our behalf; (b) any action asserting a claim of breach
of fiduciary duty owed by any director, officer, employee, agent or stockholder of ours to us or our stockholders, creditors or other
constituents; (c) any action asserting a claim against us arising pursuant to the DGCL, the Certificate of Incorporation or the Bylaws;
or (d) any action asserting a claim governed by the internal affairs doctrine. Such exclusive forum provision, however, does not apply
to suits brought to enforce any liability or duty created by the Securities Act or the Exchange Act, or any other claim for which the
federal courts have exclusive 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 or the rules and regulations thereunder. As a result, the choice of forum
provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act or any other claim for which the
federal courts have exclusive jurisdiction. It could apply, however, to a suit that falls within one or more of the categories enumerated
in the choice of forum provision and asserts claims under the Securities Act inasmuch as 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. There is uncertainty as to whether a court would enforce this provision with respect to claims under
the Securities Act.
However, the Certificate
of Incorporation does not relieve us of our duty to comply with federal securities laws and the rules and regulations thereunder, and
our stockholders will not be deemed to have waived our compliance with these laws, rules and regulations. Our Certificate of Incorporation
also provide that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will be deemed to
have notice of and consented to this choice of forum provision.
This choice of forum provision
in our Certificate of Incorporation may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable
for disputes with our Company or our directors, officers or other employees, which may discourage such lawsuits against our Company and
our directors, officers and other employees. In addition, stockholders who do bring a claim in the Court of Chancery in the State of
Delaware could face additional litigation costs in pursuing any such claim, particularly if they do not reside in or near Delaware. Furthermore,
the enforceability of similar choice of forum provisions in other companies’ governing documents has been challenged in legal proceedings,
and it is possible that a court could find these types of provisions to be inapplicable or unenforceable.
Amendment of Charter
Provisions
The amendment of any of the
above provisions in our Certificate of Incorporation, except for the provision making it possible for our board of directors to issue
undesignated Preferred Stock, would require approval by a stockholder vote by the holders of at least 66 2/3% of the voting power of
the then outstanding voting stock.
The provisions of the DGCL
and our Certificate of Incorporation could have the effect of discouraging others from attempting hostile takeovers and, as a consequence,
they may also inhibit temporary fluctuations in the market price of the Common Stock that often result from actual or rumored hostile
takeover attempts. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions
could make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interests.
Transfer Agent and Registrar
The transfer agent and registrar
for our Common Stock is Standard Registrar and Transfer Company. The transfer agent and registrar’s address is 440 East 400 South,
Suite 200, Salt Lake City, UT 84111.
Listing
Our Common Stock is listed
on the Nasdaq Capital Market under the symbol “NBSE.”
Legal Matters
Certain legal matters relating
to the issuance of the securities offered hereby will be passed upon for us by Paul Hastings LLP, Palo Alto, California.
Experts
The consolidated financial
statements of NeuBase Therapeutics, Inc. as of September 30, 2022 and 2021, incorporated herein by reference in this prospectus and in
the registration statement, have been audited by Marcum LLP, independent registered public accounting firm, as set forth in their report,
and are incorporated by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
Where You Can
Find More Information
We are required to file annual,
quarterly and current reports, proxy statements and other information with the SEC. Our filings with the SEC are available to the public
at the SEC’s Internet web site at http://www.sec.gov. Copies of certain information filed by us with the SEC are also available
on our website at www.neubasetherapeutics.com. Our website is not a part of this prospectus and is not incorporated by reference
in this prospectus, and you should not consider the contents of our website in making an investment decision with respect to our Common
Stock.
We have filed a registration
statement, of which this prospectus is a part, covering the securities offered hereby. As allowed by SEC rules, this prospectus does
not include all of the information contained in the registration statement and the included exhibits, financial statements and schedules.
You are referred to the registration statement, the included exhibits, financial statements and schedules for further information. You
should review the information and exhibits in the registration statement for further information about us and our subsidiaries and the
securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement
or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should
review the complete document to evaluate these statements.
Incorporation
of Certain Information by Reference
The SEC allows us to “incorporate
by reference” the information we have filed with them, which means that we can disclose important information to you by referring
you to those documents. The information we incorporate by reference is an important part of this prospectus, and information that we
file later with the SEC will automatically update and supersede this information. The documents we are incorporating by reference are:
| · | Our
Current Reports on Form 8-K (other than portions thereof furnished under Item 2.02 or Item
7.01 of Form 8-K and exhibits accompanying such reports that relate to such items) filed
with the SEC on (i) October 3, 2022, (ii) October 14, 2022, (iii) October 24, 2022, (iv)
December 29, 2022, (v) March 29, 2023, (vi) April 24, 2023, (vii) May 18, 2023, (viii) June 14, 2023 and (ix) June 30, 2023; and |
All documents we file with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except as to any portion of any report or document that is
not deemed filed under such provisions, (1) on or after the date of filing of the registration statement containing this prospectus and
prior to the effectiveness of the registration statement and (2) on or after the date of this prospectus until the earlier of the date
on which all of the securities registered hereunder have been sold or the registration statement of which this prospectus forms a part
has been withdrawn, shall be deemed incorporated by reference in this prospectus and to be a part of this prospectus from the date of
filing of those documents and will be automatically updated and, to the extent described above, supersede information contained or incorporated
by reference in this prospectus and previously filed documents that are incorporated by reference in this prospectus.
Nothing in this prospectus
shall be deemed to incorporate information furnished but not filed with the SEC pursuant to Item 2.02, 7.01 or 9.01 of Form 8-K.
Upon written or oral request,
we will provide without charge to each person, including any beneficial owner, to whom a copy of the prospectus is delivered a copy of
any or all of the reports or documents incorporated by reference herein (other than exhibits to such documents, unless such exhibits
are specifically incorporated by reference herein). You may request a copy of these filings, at no cost, by writing or telephoning us
at the following address: NeuBase Therapeutics, Inc., 350 Technology Drive, Fourth Floor, Pittsburgh, PA 15219, telephone: (412) 763-3350.
We maintain a website at www.neubasetherapeutics.com. You may access our definitive proxy statements on Schedule 14A, annual reports
on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and periodic amendments to those reports filed or furnished
pursuant to Section 13(a) or 15(d) of the Exchange Act with the SEC free of charge at our website as soon as reasonably practicable after
such material is electronically filed with, or furnished to, the SEC. The information contained in, or that can be accessed through,
our website is not incorporated by reference in, and is not part of, this prospectus. We have not authorized anyone to provide you with
any information that differs from that contained in this prospectus. Accordingly, you should not rely on any information that is not
contained in this prospectus. You should not assume that the information in this prospectus is accurate as of any date other than the
date of the front cover of this prospectus.
NeuBase
Therapeutics, Inc.
Up to 5,394,068 shares of Common Stock
PROSPECTUS
, 2023
PART II
Information Not Required in Prospectus
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets
forth the fees and expenses payable in connection with the registration of the Common Stock hereunder. All amounts other than the SEC
registration fees are estimates.
Item | |
Amount to be paid | |
SEC registration fees | |
$ | 930.28 | |
Legal fees and expenses | |
| 75,000.00 | |
Accounting fees and expenses | |
| 25,000.00 | |
Printing and miscellaneous expenses | |
| 3,000.00 | |
Total | |
$ | 103,930.28 | |
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Delaware
corporation. Reference is made to Section 102(b)(7) of the General Corporation Law of the State of Delaware (the “DGCL”),
which enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability
of a director for violations of the director’s fiduciary duty, except (1) for any breach of the director’s duty of loyalty
to the corporation or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment
of dividends or unlawful stock purchase or redemptions), or (4) for any transaction from which a director derived an improper personal
benefit.
Reference also is made to
Section 145 of the DGCL, which provides that a corporation may indemnify any persons, including officers and directors, who are,
or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person
was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director,
officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorney’s fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit
or proceeding, provided such officer, director, employee or agent acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the corporation’s best interest and, for criminal proceedings, had no reasonable cause to believe that
his or her conduct was unlawful. A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation
under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged
to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred
to above, the corporation must indemnify him against the expenses that such officer or director actually and reasonably incurred.
The Registrant’s Amended
and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), eliminates the personal liability
of directors to the fullest extent permitted by the DGCL and provides that the Registrant (1) shall indemnify and advance expenses
to any person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative,
by reason of the fact that he or she, or his or her testator or intestate, is or was a director or officer of the Registrant or any predecessor
of the Registrant, or serves or served at any other enterprise as a director or officer at the request of the Registrant or any predecessor
to the Registrant and (2) may indemnify and advance expenses to any person made or threatened to be made a party to an action, suit
or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she, or his or her testator
or intestate, is or was an employee or agent of the Registrant or any predecessor of the Registrant, or serves or served at any other
enterprise as an employee or agent at the request of the Registrant or any predecessor to the Registrant.
The Registrant has an insurance
policy that insures its directors and officers, within the limits and subject to the limitations of the policy, against certain expenses
in connection with the defense of actions, suits or proceedings, and certain liabilities that might be imposed as a result of such actions,
suits or proceedings, to which they are parties by reason of being or having been directors or officers.
The
Registrant has indemnification agreements with each of its directors and executive officers that may be broader than the specific indemnification
provisions contained in the DGCL. These indemnification agreements require the Registrant,
among other things, to indemnify a director or officer, to the fullest extent permitted by applicable law, for certain expenses, including
attorneys’ fees, judgments, penalties, fines and settlement amounts actually and reasonably incurred by them in any action or proceeding
arising out of their services as one of a director or officer of the Registrant, or any of the Registrant’s subsidiaries or any
other company or enterprise to which the person provides services at the Registrant’s request, including liability arising out
of negligence or active or passive misconduct by the director or officer. The Registrant believes that these agreements are necessary
to attract and retain qualified individuals to serve as directors and executive officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
In the three years preceding
the filing of this registration statement, the Registrant has issued the following securities that were not registered under the Securities
Act.
On June 28, 2023, the Registrant
entered into securities purchase agreements relating to (a) the registered direct offering and sale of 187,700 shares of Common Stock
at a purchase price of $2.57 per share and Pre-Funded Warrants to purchase 390,997 shares of Common
Stock at an offering price of $2.569, which is equal to the purchase price per share of Common Stock less $0.001 to the Registered
Direct Purchaser and (b) a concurrent private placement to the Registered Direct Purchaser, in
which the Registrant issued RD Series A Warrants to purchase up to an aggregate of 578,697 shares of Common Stock and the RD Series B
Warrants to purchase up to an aggregate of 578,697 shares of Common Stock, in each case, at an exercise price of $2.32 per share exercisable
immediately upon issuance, with an expiration of five and one-half years with respect to the RD Series A Warrants and eighteen months
with respect to the RD Series B Warrants, in each case, following the date of issuance.
In addition, in a concurrent
private placement to the Registered Direct Purchaser, the Registrant also issued pre-funded warrants to purchase up
to an aggregate of 1,366,829 shares of Common Stock, at an offering price of $2.569, unregistered long-term warrants with a five
and one-half year term to purchase up to 1,366,829 shares of Common Stock at an exercise price
of $2.32 per share and unregistered short-term warrants with an eighteen month term to purchase up to
1,366,829 shares of Common Stock at an exercise price of $2.32 per share.
Unless otherwise noted, all
of the transactions described in Item 15 were exempt from registration under the Securities Act pursuant to Section 4(a)(2) of the Securities
Act in that such sales did not involve a public offering.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibits
Exhibit
Number |
|
Description |
|
Incorporated by Reference |
|
|
|
|
Form |
|
Date |
|
Exhibit No. |
|
|
|
|
|
|
|
|
|
2.1+ |
|
Agreement and Plan of Merger and Reorganization, dated as of January 2, 2019, by and among Ohr Pharmaceutical, Inc., Ohr Acquisition Com. and NeuBase Therapeutics, Inc. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
1/3/2019 |
|
2.1 |
|
|
|
|
|
|
|
|
|
2.2 |
|
First Amendment to the Agreement and Plan of Merger and Reorganization, dated as of June 27, 2019, by and among Ohr Pharmaceutical, Inc., Ohr Acquisition Corp. and NeuBase Therapeutics, Inc. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
7/3/2019 |
|
2.1 |
|
|
|
|
|
|
|
|
|
3.1 |
|
Amended and Restated Certificate of Incorporation of the Company. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
7/12/2019 |
|
3.1 |
|
|
|
|
|
|
|
|
|
3.2 |
|
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Company, filed with the Secretary of State of the State of Delaware on June 14, 2023. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
6/14/2023 |
|
3.1 |
|
|
|
|
|
|
|
|
|
3.3 |
|
Amended and Restated Bylaws of the Company. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
9/23/2019 |
|
3.1 |
|
|
|
|
|
|
|
|
|
4.1 |
|
Form of Series A Warrant issued to investors pursuant to the Securities Purchase Agreement, dated December 7, 2016, by and among Ohr Pharmaceutical, Inc. and the purchasers listed therein |
|
Current Report on Form 8-K (File No. 001-35963) |
|
12/8/2016 |
|
4.1 |
|
|
|
|
|
|
|
|
|
4.2 |
|
Form of Warrant issued to investors pursuant to the Securities Purchase Agreement, dated as of April 5, 2017, by and among Ohr Pharmaceutical, Inc. and the purchasers listed therein. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
4/6/2017 |
|
4.1 |
|
|
|
|
|
|
|
|
|
4.3 |
|
Purchase Agreement, dated December 28, 2022, by and between NeuBase Therapeutics, Inc. and Alumni Capital LP |
|
Current Report on Form 8-K (File No. 001-35963) |
|
12/29/2022 |
|
10.1 |
|
|
|
|
|
|
|
|
|
4.4 |
|
Form of Consulting Warrants |
|
Annual
Report on Form 10-K (File No. 001-35963) |
|
8/15/2011 |
|
10.21 |
|
|
|
|
|
|
|
|
|
4.5 |
|
Form of Common Stock Certificate. |
|
Registration Statement on Form S-8 (File No. 333-233346) |
|
8/16/2019 |
|
4.17 |
|
|
|
|
|
|
|
|
|
4.6 |
|
Form of Series A Common Stock Purchase Warrant. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
6/30/2023 |
|
4.1 |
|
|
|
|
|
|
|
|
|
4.7 |
|
Form of Series B Common Stock Purchase Warrant. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
6/30/2023 |
|
4.2 |
|
|
|
|
|
|
|
|
|
4.8 |
|
Form of Pre-Funded Common Stock Purchase Warrant (Registered Direct Offering). |
|
Current Report on Form 8-K (File No. 001-35963) |
|
6/30/2023 |
|
4.3 |
4.9 |
|
Form of Pre-Funded Common Stock Purchase Warrant (PIPE Private Placement). |
|
Current Report on Form 8-K (File No. 001-35963) |
|
6/30/2023 |
|
4.4 |
|
|
|
|
|
|
|
|
|
4.10 |
|
Form of Placement Agent Common Stock Purchase Warrant. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
6/30/2023 |
|
4.5 |
|
|
|
|
|
|
|
|
|
10.1† |
|
Securities Purchase Agreement, dated June 28, 2023 (Registered Direct Offering). |
|
Current Report on Form 8-K (File No. 001-35963) |
|
6/30/2023 |
|
10.1 |
|
|
|
|
|
|
|
|
|
10.2† |
|
Securities Purchase Agreement, dated June 28, 2023 (PIPE Private Placement). |
|
Current Report on Form 8-K (File No. 001-35963) |
|
6/30/2023 |
|
10.2 |
|
|
|
|
|
|
|
|
|
10.3# |
|
Ohr Pharmaceutical, Inc. 2016 Consolidated Stock Incentive Plan. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
3/21/2016 |
|
10.1 |
|
|
|
|
|
|
|
|
|
10.4 |
|
Form of Stock Option Agreement (2016 Consolidated Stock Incentive Plan). |
|
Current Report on Form 8-K (File No. 001-35963) |
|
12/15/2017 |
|
10.11(b) |
|
|
|
|
|
|
|
|
|
10.5 |
|
Form of Restricted Stock Agreement (2016 Consolidated Stock Incentive Plan). |
|
Current Report on Form 8-K (File No. 001-35963) |
|
12/15/2017 |
|
10.11(c) |
|
|
|
|
|
|
|
|
|
10.6† |
|
License Agreement, dated December 17, 2018, by and between NeuBase Therapeutics, Inc. and Carnegie Mellon University. |
|
Registration Statement on Form S-4 (File No. 333-230168) |
|
3/8/2019 |
|
10.15 |
|
|
|
|
|
|
|
|
|
10.7+ |
|
Amendment #1 to License Agreement, dated January 1, 2022, by and between NeuBase Therapeutics, Inc. and Carnegie Mellon University. |
|
Annual Report on Form 10-K (File No. 001-35963) |
|
12/21/2022 |
|
10.5 |
|
|
|
|
|
|
|
|
|
10.8 |
|
Form of NeuBase Therapeutics, Inc. Warrant Certificate. |
|
Registration Statement on Form S-4 (File No. 333-230168) |
|
3/8/2019 |
|
10.16 |
|
|
|
|
|
|
|
|
|
10.9# |
|
NeuBase Therapeutics, Inc. 2018 Equity Incentive Plan. |
|
Registration Statement on Form S-4 (File No. 333-230168) |
|
3/8/2019 |
|
10.19 |
|
|
|
|
|
|
|
|
|
10.10# |
|
Restricted Stock Purchase Agreement, made as of September 6, 2018, by and between NeuBase Therapeutics, Inc. and Dietrich A. Stephan. |
|
Registration Statement on Form S-4 (File No. 333-230168) |
|
3/8/2019 |
|
10.21 |
10.11# |
|
Amendment to Restricted Stock Purchase Agreement, made as of
December 26, 2018, by and between NeuBase Therapeutics, Inc. and Dietrich A. Stephan. |
|
Registration Statement on Form S-4 (File No. 333-230168) |
|
3/8/2019 |
|
10.22 |
|
|
|
|
|
|
|
|
|
10.12# |
|
Executive Employment Agreement, entered into as of
December 22, 2018 and effective as of August 28, 2018, by and between NeuBase Therapeutics, Inc. and Dietrich A. Stephan. |
|
Amendment No. 2 to Registration Statement on Form S-4
(File No. 333-230168) |
|
5/7/2019 |
|
10.23 |
|
|
|
|
|
|
|
|
|
10.13 |
|
At-Will Employment, Confidential Information, Invention Assignment and Arbitration
Agreement, dated December 22, 2018, by and between NeuBase Therapeutics, Inc. and Dietrich A. Stephan. |
|
Amendment No. 2 to Registration Statement on Form S-4 (File No. 333-230168) |
|
5/7/2019 |
|
10.24 |
|
|
|
|
|
|
|
|
|
10.14# |
|
Offer of Employment, dated July 11, 2019, by and between NeuBase Therapeutics,
Inc. and Dietrich A. Stephan. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
7/17/2019 |
|
10.1 |
|
|
|
|
|
|
|
|
|
10.15# |
|
NeuBase Therapeutics, Inc. 2019 Stock Incentive Plan |
|
Registration Statement on Form S-4 (File No. 333-230168) |
|
3/8/2019 |
|
Annex E |
|
|
|
|
|
|
|
|
|
10.16# |
|
Form of Option Agreement under the NeuBase Therapeutics, Inc. 2019 Stock
Incentive Plan. |
|
Registration Statement on Form S-8 (File No. 333-233346) |
|
8/16/2019 |
|
4.6 |
|
|
|
|
|
|
|
|
|
10.17# |
|
Form of Option Agreement under the NeuBase Therapeutics, Inc. 2018 Equity
Incentive Plan. |
|
Registration Statement on Form S-8 (File No. 333-233346) |
|
8/16/2019 |
|
4.8 |
|
|
|
|
|
|
|
|
|
10.18# |
|
NeuBase Therapeutics, Inc. Outside Director Compensation Policy. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
9/12/2022 |
|
10.1 |
|
|
|
|
|
|
|
|
|
10.19 |
|
Sublease Agreement, dated as of March 12, 2019, by and between NeuBase
Therapeutics, Inc. and StartUptown dba Avenu. |
|
Annual Report on Form 10-K (File No. 001-35963) |
|
1/10/2020 |
|
10.29 |
|
|
|
|
|
|
|
|
|
10.20 |
|
Amendment No. 1 to Sublease Agreement, dated as of May 21, 2019, by
and between NeuBase Therapeutics, Inc. and StartUptown dba Avenu. |
|
Annual Report on Form 10-K (File No. 001-35963) |
|
1/10/2020 |
|
10.30 |
|
|
|
|
|
|
|
|
|
10.21 |
|
Amendment No. 2 to Sublease Agreement, dated as of July 29, 2019, by and between NeuBase Therapeutics, Inc. and StartUptown dba Avenu. |
|
Annual Report on Form 10-K (File No. 001-35963) |
|
1/10/2020 |
|
10.31 |
10.22 |
|
Lease Extension to Sublease Agreement, dated as of February 26, 2020, by and between NeuBase Therapeutics, Inc. and StartUptown dba Avenu. |
|
Quarterly Report on Form 10-Q (File No. 001-35963) |
|
3/26/2020 |
|
10.1 |
|
|
|
|
|
|
|
|
|
10.23 |
|
Amendment No. 4 to Sublease Agreement, dated as of August 20, 2020. |
|
Annual Report on Form 10-K (File No. 001-35963) |
|
12/23/2020 |
|
10.26 |
|
|
|
|
|
|
|
|
|
10.24 |
|
Amendment No. 5 to Sublease Agreement, dated as of September 25, 2020. |
|
Annual Report on Form 10-K (File No. 001-35963) |
|
12/23/2020 |
|
10.27 |
|
|
|
|
|
|
|
|
|
10.25# |
|
Offer Letter of Employment, dated July 22, 2020, by and between NeuBase Therapeutics, Inc. and William Mann. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
7/28/2020 |
|
10.1 |
|
|
|
|
|
|
|
|
|
10.26# |
|
Offer Letter of Employment, dated January 10, 2022, by and between NeuBase Therapeutics, Inc. and Todd Branning. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
1/10/2022 |
|
10.1 |
|
|
|
|
|
|
|
|
|
10.27 |
|
Lease Agreement, dated as of October 2, 2020, by and between NeuBase Therapeutics, Inc. and 350 Technology Drive Partners, LLC. |
|
Annual Report on Form 10-K (File No. 001-35963) |
|
12/23/2020 |
|
10.30 |
|
|
|
|
|
|
|
|
|
10.28 |
|
First Amendment to Lease Agreement, dated December 28, 2020. |
|
Quarterly Report on Form 10-Q (File No. 001-35963) |
|
2/11/2021 |
|
10.2 |
|
|
|
|
|
|
|
|
|
10.29 |
|
Second Amendment to Lease Agreement, dated April 21, 2021. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
4/27/2021 |
|
10.1 |
|
|
|
|
|
|
|
|
|
10.30 |
|
Registration Rights Agreement, dated June 28, 2023. |
|
Current Report on Form 8-K (File No. 001-35963) |
|
6/30/2023 |
|
10.3 |
|
|
|
|
|
|
|
|
|
5.1* |
|
Opinion of Paul Hastings LLP. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23.1* |
|
Consent of Marcum, LLP, an Independent Registered Public Accounting Firm. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23.2* |
|
Consent of Paul Hastings, LLP (included within exhibit 5.1). |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24.1* |
|
Powers of Attorney (included on the signature page of Part II of the Registration Statement on Form S-1). |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
107* |
|
Filing Fee Table |
|
|
|
|
|
|
* Filed herewith.
# Indicates a management contract or compensatory
plan or arrangement.
+ Certain portions of this Exhibit have been
redacted pursuant to Item 601(b)(10) of Regulation S-K. The Company agrees to furnish supplementally an unredacted copy of this Exhibit
to the SEC upon request.
† Non-material schedules
and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish
supplemental copies of any of the omitted schedules and exhibits upon request by the SEC.
Financial Statement Schedules
All schedules have been omitted
because either they are not required, are not applicable or the information is otherwise set forth in the financial statements and related
notes thereto incorporated by reference herein.
ITEM 17. UNDERTAKINGS
| (a) | 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; |
| (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 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
(a)(1)(i), (ii), and (iii) of this section do not apply if the registration statement is on Form S-1, Form S-3, Form SF-3, or Form F-3
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 (15 U.S.C. 78m or
78o(d)) that are incorporated by reference in the registration statement.
| (2) | That, for the purpose of determining any
liability under the Securities Act of 1933, 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 to any purchaser: |
| (i) | Each prospectus filed by the Registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of
the date the filed prospectus was deemed part of and included in the registration statement;
and |
| (ii) | Each prospectus required to be filed pursuant
to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose
of providing the information required by section 10(a) of the Securities Act of 1933 shall
be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the prospectus. As 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) | The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (6) | 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 Act and is therefore unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person
of the Registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and will be governed
by the final adjudication of such issue. |
| (b) | The undersigned Registrant hereby undertakes
that: |
| (i) | For purposes of determining any liability
under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this registration statement as of the
time it was declared effective. |
| (ii) | For the purpose of determining any liability
under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus
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. |
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement on Form S-1 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Pittsburgh, State of Pennsylvania, on July 28, 2023.
|
NEUBASE THERAPEUTICS, INC. |
|
|
|
By: |
/s/ Dietrich Stephan |
|
Dr. Dietrich
Stephan |
|
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each of Dr. Dov A. Goldstein, Mr. Gerry J. McDougall, Dr. Franklyn G. Prendergast and Mr. Eric I. Richman constitutes
and appoints Dr. Dietrich Stephan and Mr. Todd P. Branning, and each of them, and that Dr. Dietrich Stephan constitutes and appoints
Mr. Todd P. Branning, and that Mr. Todd P. Branning constitutes and appoints Dr. Dietrich Stephan, as his true and lawful attorney-in-fact
and agent, upon the action of such appointee, with full power of substitution and resubstitution, to do any and all acts and things and
execute, in the name of the undersigned, any and all instruments which each of said attorneys-in-fact and agents may deem necessary or
advisable in order to enable the Registrant to comply with the Securities Act of 1933, as amended (the “Securities Act”),
and any requirements of the Securities and Exchange Commission (the “Commission”) in respect thereof, in connection
with the filing with the Commission of this Registration Statement on Form S-1 under the Securities Act, including specifically but without
limitation, power and authority to sign the name of the undersigned to such Registration Statement, and any amendments to such Registration
Statement (including post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith,
with the Commission, to sign any and all applications, Registration Statements, notices or other documents necessary or advisable to
comply with applicable state securities laws, and to file the same, together with other documents in connection therewith with the appropriate
state securities authorities, granting unto each of said attorneys-in-fact and agents full power and authority to do and to perform each
and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents 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 and on the dates
indicated.
Signatures |
|
Title |
|
Date |
|
|
|
|
|
/s/ Dietrich A. Stephan, Ph.D. |
|
Chief Executive Officer and Director |
|
July 28, 2023 |
Dietrich A. Stephan, Ph.D. |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
/s/ Todd P. Branning |
|
Chief Financial Officer and Secretary |
|
July 28, 2023 |
Todd P. Branning |
|
(Principal Financial and Accounting Officer) |
|
|
|
|
|
|
|
/s/ Dov A. Goldstein |
|
Director |
|
July 28, 2023 |
Dov A. Goldstein |
|
|
|
|
|
|
|
|
|
/s/ Gerald J. McDougall |
|
Director |
|
July 28, 2023 |
Gerald J. McDougall |
|
|
|
|
|
|
|
|
|
/s/ Franklyn G. Prendergast |
|
Director |
|
July 28, 2023 |
Franklyn G. Prendergast |
|
|
|
|
|
|
|
|
|
/s/ Eric I. Richman |
|
Director |
|
July 28, 2023 |
Eric I. Richman |
|
|
|
|
Exhibit 5.1
July 28, 2023 |
98993.00003 |
NeuBase Therapeutics, Inc.
350 Technology Drive
Pittsburgh, PA 15219
Re: | NeuBase Therapeutics, Inc. Registration Statement on Form S-1 |
Ladies and Gentlemen:
We have acted as counsel to NeuBase Therapeutics,
Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing by the Company of
a Registration Statement on Form S-1 (the “Registration Statement”) with the U.S. Securities and Exchange Commission
(the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”),
on or about the date hereof, with respect to the resale from time to time by the selling stockholders of the Company, as detailed in the
Registration Statement (collectively, the “Selling Stockholders”), of up to 5,394,068 shares of the Company’s
common stock, par value $0.0001 per share (“Common Stock”), which consists of (a) up to an aggregate of 578,697
shares of Common Stock that are issuable upon exercise of unregistered long-term warrants (the “RD Series A Warrants”),
(b) up to an aggregate of 578,697 shares of Common Stock that are issuable upon exercise of unregistered short-term warrants (the “RD
Series B Warrants”), (c) up to an aggregate of 1,366,829 shares of Common Stock that are issuable upon exercise of unregistered
pre-funded warrants (the “PIPE Pre-Funded Warrants”), (d) up to 1,366,829 shares of Common Stock that are issuable
upon exercise of unregistered long-term warrants (the “PIPE Series A Warrants”), (e) up to 1,366,829 shares
of Common Stock that are issuable upon exercise of unregistered short-term warrants (the “PIPE Series B Warrants”),
in each of the cases of (a) through (e), purchased pursuant to the Purchase Agreements (as defined below), and (f) up to 136,187 shares
of Common Stock that are issuable upon the exercise of certain private placement warrants (the “Placement Agent Warrants”,
and, collectively with the RD Series A Warrants, the RD Series B Warrants, the PIPE Pre-Funded Warrants, the PIPE Series A Warrants and
the PIPE Series B Warrants, the “Warrants”) issued to designees of H.C.
Wainwright & Co., LLC, the Company’s placement agent (the “Placement
Agent”) pursuant to an engagement letter, dated as of June 12, 2023, as amended on June 28, 2023 (the “Engagement
Letter”). The shares of Common Stock issuable upon exercise of the Warrants described in clauses (a) through (f) above are
referred to herein as the “Warrant Shares”.
This opinion letter is being furnished in accordance
with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
As such counsel and for purposes of our opinion
set forth below, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such
documents, resolutions, certificates and other instruments of the Company and corporate records furnished to us by the Company, and have
reviewed certificates of public officials, statutes, records and such other instruments and documents as we have deemed necessary or appropriate
as a basis for the opinion set forth below, including, without limitation:
NeuBase Therapeutics, Inc.
July 28, 2023
Page 2
| (i) | the Registration Statement; |
| (ii) | the securities purchase agreement, dated as of June 28, 2023, by and between the Company and Armistice Capital Master Fund Ltd. (the
“Purchaser”) in connection with a registered direct offering of securities (the “RD Purchase Agreement”); |
| (iii) | the securities purchase agreement, dated as of June 28, 2023, by and between the Company and the Purchaser in connection with a private
placement of securities (the “PIPE Private Placement Purchase Agreement” and, together with the RD Purchase
Agreement, the “Purchase Agreements”); |
| (iv) | the Engagement Letter; |
| (v) | the RD Series A Warrants; |
| (vi) | the RD Series B Warrants; |
| (vii) | the PIPE Series A Warrants; |
| (viii) | the PIPE Series B Warrants; |
| (ix) | the PIPE Pre-Funded Warrants; |
| (x) | the Placement Agent Warrants; |
| (xi) | the Amended and Restated Certificate of Incorporation of the Company, as amended from time to time, as presently in effect and as
certified as of July 24, 2023 by the Office of the Secretary of State of the State of Delaware (the “Certificate of Incorporation”); |
| (xii) | the Amended and Restated Bylaws of the Company, as presently in effect, as certified by an officer of the Company as of the date hereof; |
| (xiii) | a certificate, dated as of July 24, 2023, from the Secretary of State of the State of Delaware certifying as to the existence and
good standing of the Company under the laws of the State of Delaware (the “Delaware Good Standing Certificate”);
|
| (xiv) | resolutions adopted by the Board of Directors of the Company in April 2022, certified by an officer of the Company, relating to, among
other things, the formation and membership of the pricing committee of the Board of Directors (the “Pricing Committee”);
and |
NeuBase Therapeutics, Inc.
July 28, 2023
Page 3
| (xv) | minutes of the meeting of the Pricing Committee held on June 27, 2023, certified by an officer of the Company, relating to, among
other things, the approval of the Purchase Agreements and the issuance of the Warrants and the Warrant Shares. |
In addition to the foregoing, we have made such
investigations of law as we have deemed necessary or appropriate as a basis for the opinion set forth in this opinion letter.
In such examination and in rendering the opinion
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 authenticity and completeness of all agreements,
instruments, corporate records, certificates and other documents submitted to us as originals; (iii) that all agreements, instruments,
corporate records, certificates and other documents submitted to us as certified, electronic, facsimile, conformed, photostatic or other
copies conform to originals thereof, and that such originals are authentic and complete; (iv) the legal competency, capacity and authority
of all persons executing all agreements, instruments, corporate records, certificates and other documents submitted to us; (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; (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; (viii) that there has not been and there will not be any change in the good standing status
of the Company from that reported in the Good Standing Certificate; (ix) that each of the officers and directors of the Company has properly
exercised his or her fiduciary duties and (x) that the Warrant Shares will not be issued or transferred in violation of any restriction
contained in the Certificate of Incorporation and that upon issuance of any Warrant Shares, the total number of shares of Common Stock
issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the
Certificate of Incorporation; (xi) that at or prior to the time of the issuance and delivery of any of the Warrant Shares, the Registration
Statement will have been declared effective under the Securities Act and such effectiveness shall not have been terminated or rescinded;
and (xii) that the exercise price of the Warrants will not be adjusted to an amount below the par value of the Common Stock. As to all
questions of fact material to this opinion letter, and as to the materiality of any fact or other matter referred to herein, we have relied
(without independent investigation or verification) upon representations and certificates or comparable documents of officers and representatives
of the Company. With respect to the Warrants and the Warrant Shares, we express no opinion to the extent that, notwithstanding the Company’s
current reservation of shares of Common Stock, future issuances of securities of the Company, including the Warrant Shares and/or antidilution
adjustments to outstanding securities of the Company, including the Warrants, may cause the Warrants to be exercisable for more shares
of Common Stock than the number that then remain authorized but unissued.
Based upon the foregoing, and in reliance
thereon, and subject to the assumptions, limitations, qualifications and exceptions set forth herein, we are of the opinion that the
Warrant Shares have been duly authorized by all necessary corporate action on the part of the Company and, assuming a sufficient
number of authorized but unissued shares of Common Stock are available for issuance when the Warrants are exercised, the Warrant
Shares, when and if issued, delivered and paid for in accordance with the terms of the respective Warrants, will be validly issued,
fully paid and nonassessable.
NeuBase Therapeutics,
Inc. July 28, 2023
Page 4
Without limiting any of the other limitations,
exceptions, assumptions and qualifications stated elsewhere herein, we express no opinion with regard to the applicability or effect of
the laws of any jurisdiction other than the General Corporation Law of the State of Delaware, as in effect on the date of this opinion
letter. 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.
This opinion letter deals only with the specified
legal issues expressly addressed herein, and you should not infer any opinion that is not explicitly stated herein from any matter addressed
in this opinion letter.
This opinion letter is rendered solely in connection
with the registration of the Warrant Shares for resale by the Selling Stockholders under the Registration Statement. This opinion letter
is rendered as of the date hereof, and we assume no obligation to advise you or any other person with regard to any change after the date
hereof in the circumstances or the law that may bear on the matters set forth herein after the effectiveness of the Registration Statement,
even if the change may affect the legal analysis or a legal conclusion or other matters in this opinion letter.
We hereby consent to the filing of this opinion
letter as Exhibit 5.1 to the Registration Statement and to the reference to our firm in the Registration Statement under the heading “Legal
Matters.” In giving such 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 or regulations of the Commission thereunder.
Very truly yours,
/s/ Paul Hastings LLP
Exhibit 23.1
Independent
Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference in
this Registration Statement of NeuBase Therapeutics, Inc. on Form S-1 of our report dated December 21, 2022, with respect to our audits
of the consolidated financial statements of NeuBase Therapeutics, Inc. and subsidiaries as of September 30, 2022 and 2021 and for the
years then ended appearing in the Annual Report on Form 10-K of NeuBase Therapeutics, Inc. and subsidiaries for the year ended September
30, 2022. We also consent to the reference to our firm under the heading “Experts” in the Prospectus, which is part of this
Registration Statement.
/s/ Marcum llp
Marcum llp
New York, NY
July 27, 2023
Exhibit 107
Calculation of Filing
Fee Tables
Form S-1
(Form Type)
NeuBase Therapeutics,
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
Registered(1) |
|
Proposed
Maximum
Offering
Price per
Share (2) |
|
Maximum
Aggregate
Offering
Price (1) |
|
Fee
Rate |
|
Amount of
Registration
Fee |
|
Carry
Forward
Form
Type |
|
Carry
Forward
File
Number |
|
Carry
Forward
Initial
Effective
Date |
|
Filing Fee
Previously
Paid in
Connection
with
Unsold
Securities
to be
Carried
Forward |
Newly Registered Securities |
Fees to be Paid |
|
Equity |
|
Common Stock, par value $0.0001 per share |
|
Rule 457(c) |
|
5,394,068 |
|
$1.5650 |
|
$8,441,716.42 |
|
$110.20 per million |
|
$930.28 |
|
- |
|
- |
|
- |
|
- |
Fees Previously Paid |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
|
- |
Carry Forward Securities |
Carry Forward Securities |
|
- |
|
- |
|
- |
|
- |
|
|
|
- |
|
|
|
|
|
- |
|
- |
|
- |
|
- |
|
|
Total Offering Amounts |
|
|
|
$8,441,716.42 |
|
|
|
$930.28 |
|
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid |
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
Total Fee Offsets |
|
|
|
|
|
|
|
- |
|
|
|
|
|
|
|
|
|
|
Net Fee Due |
|
|
|
|
|
|
|
$930.28 |
|
|
|
|
|
|
|
|
(1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended, or the Securities Act, this registration statement also covers any additional securities that may be offered, issued or become issuable in connection with any stock split, stock dividend or similar transaction or pursuant to anti-dilution provisions of any of the securities. |
(2) |
Estimated solely for the purpose of calculation of the registration fee pursuant to Rule 457(c) under the Securities Act based on a per share price of $1.5650, the average of the high and low reported sales prices of the registrant’s common stock on the Nasdaq Capital Market on July 25, 2023. |
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